[1] Requirements to recognize a third party’s employee as a third party’s employee at the place of business employed by the plaintiff’s employee

[2] The case holding that although the appearance of an in-house contract is in the form of an in-house contract, it is judged that there is a direct employment relationship between the employee of the contractor and the contractor

[1] Article 2 of the Labor Standards Act / [2] Article 2 of the Labor Standards Act

[1] Supreme Court Decision 78Da1530 delivered on July 10, 1979 (Gong1979, 12096) 99Ma628 delivered on July 12, 199 (Gong1999Ha, 1924) Supreme Court Decision 97Nu19946 delivered on November 12, 199 (Gong199Ha, 2525) Supreme Court Decision 2003Du3420 Delivered on September 23, 2003 (Gong2003Ha, 2095)

Plaintiff 1 and 29 others (Attorneys Lee Du-pon et al., Counsel for the plaintiff-appellant)

Hyundai U.S.C. (Attorney Han-il et al., Counsel for the defendant-appellant)

Busan High Court Decision 2004Na9787 decided Nov. 9, 2005

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined.

If an employee employed by the employer of a third party and employed by the employer of a third party to be an employee of a third party, the employer of the third party is merely a formal and nominal relationship with the third party, such as having no identity or independence as the employer, and in fact, the relevant employee is in a subordinate relationship with the third party, and the person who actually pays wages is a third party, and the party who provided labor is also a third party, and thus the relationship of implied labor contract exists between the relevant employee and the third party (see, e.g., Supreme Court Decisions 78Da1530, Jul. 10, 1979; 99Ma628, Jul. 12, 199; 97Nu1946, Nov. 12, 199; 203Du3434, Sept. 23, 2003).

According to the facts established by the court below, the following points are revealed.

For about 25 years from the date when the plaintiffs were employed by the defendant company, the defendant company has performed such tasks as vessel engine heat exchange, trial valves (SeaValve) and safeguard valves (Safety Valve) as the contractor's qualifications. The defendant company conducted the function test required by the defendant company for the workers recruited by the defendant company, and decided whether to be employed by the defendant company. The defendant company granted the eligibility to receive the allowances directly paid by the defendant company only to the successful candidates, and exercised substantial authority over the recruitment, promotion, and disciplinary action of the employees belonging to the tolerance company, such as demanding disciplinary action against the employees belonging to the defendant company, and notifying the list of promotion candidates.

In addition, the defendant company examined the plaintiffs' attendance, early retirement, leave, extended work period, working hours, attitude of work, etc., and determined the plaintiffs' work volume and work methods, order of work, and cooperation method to be conducted by them, and issued specific work instructions to the plaintiffs directly or through the person in charge of the employees belonging to the unlimited company. In addition, the defendant company directly exercised the right to direct and supervise the plaintiffs under the pretext of education, organization of work place, support of other departments, etc., when it does not have work quantity for the defendant company.

Furthermore, in principle, the tolerance company received the amount calculated as a unit of work per hour for the supplied volume from the Defendant company, but the Defendant company also calculated remuneration and decided the amount to be paid when employees belonging to the employees belonging to the employees belonging to the employees belonging to the tolerance company engaged in business support, safety education, or job training, etc. of other departments of the Defendant company which are not directly related to the repair of the vessel, as well as directly paid allowances, such as bonuses and retirement allowances, to the Plaintiffs. Meanwhile, the amount of work cost for the tolerance company was determined in accordance with the outcome of the wage agreement entered into between the Hyundai U.S. Trade Union organized by the employees belonging to the Defendant company (the so-called direct employees) and the Defendant company, such as the Plaintiffs’ retirement allowance and health insurance, etc., also paid by the Defendant company along with the fixed amount of work.

Finally, in the name of the business operator, the business operator is carrying out the business affairs such as withholding wage and salary income tax, income return, accounting books keeping, etc. for the employees under his control, but these affairs were carried out in the office provided by the defendant company, and the illegal company did not have its own equipment, and did not have independent physical facilities for the business management necessary for the education and training of the employees under his control.

Examining these circumstances in light of the legal principles as seen earlier, even if an acceptable company concluded a contract with the defendant company formally and provided labor from the plaintiffs, who are employees belonging to the defendant company, with the same appearance as the performance of their business, it is reasonable to view that the defendant company merely performed its function as a single business department or an agency for labor, and rather, the defendant company provided labor in subordinate relationship with the plaintiffs, and determined all the working conditions including wages. Thus, it is reasonable to view that the direct employment relationship between the plaintiffs and the defendant company was established, such as the employment of the plaintiffs company.

Nevertheless, the court below concluded that a direct labor contract relationship between the plaintiffs and the defendant company cannot be deemed to have been established on the grounds of its stated reasoning. Such judgment of the court below is in the form of a contract for appearance, but in substance, it erred by misapprehending the legal principles of a labor relationship to be evaluated as having an implied labor contract relationship between the workers of the contractor and the contractor in the name of the contractor, which affected the conclusion of the judgment. The plaintiffs' appeal pointing this out has

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)