2014Guhap4161 Verification of Workers' Status

1. A;

2. B

3. C.

4. D;

5. E.

6. F;

Busan Metropolitan City Young-gu

September 17, 2015

November 19, 2015

1. From January 1, 2015, the Plaintiffs confirm that the Defendant’s community-based integrated health promotion project is in the position of workers who concluded an employment contract with the Defendant for which no term is fixed.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

(a) Status of a party;

The defendant is a local government that establishes and operates a Yeongdeungpo-gu public health clinic under its jurisdiction, and the plaintiffs are nurses (Plaintiffs A, C, D, E), and dental hygiene officers (Plaintiff F) who have worked for the above public health clinic as the human resources in charge of visiting health care projects.

(b) History of the Visit Health Management Business (attached Form 1.)

1) Visiting health care business is a business that directly visits basic recipients, the next lowest income bracket, the elderly living alone, and the health care business by employing professional human resources, such as nurses, dietitians, physical care centers, and dental life specialists, at a public health clinic. The above business was introduced for the first time by some local governments around 190, and was wholly amended by the Regional Public Health Act (Act No. 5101 on December 29, 1995).

2) Since then in 2005, visiting health management services were transferred to local governments. On September 20, 2006, among the government's promotion of market formation for the expansion of social services in the area of the Ministry of Health and Welfare, the name was changed to a "specific visiting health management services" through institutionalization in the area of services, and since April 2007, local governments began to provide health management services according to the life cycle for vulnerable families in the region with 15.476 billion won as one of the "specific visiting health management services under the State's financial support".

3) Visiting health management projects were operated with 50% of the national expenses and 50% of the local expenses as financial resources, and were managed as one of the government-funded employment projects based on Article 13-2 of the Framework Act on Employment Policy, and the Ministry of Health and Welfare and local governments have been audited by the Board of Audit and Inspection in relation to the actual status

4) However, the Ministry of Health and Welfare, around 2012, 17 individual projects implemented by a local government for the purpose of health care for healthy living room, chronic disease prevention, and vulnerable social health care (to visit health management projects, community-centered rehabilitation, health center-oriented rehabilitation projects, public health clinic services, nutrition fluor, anti-smoking clinic, iron powder production support, dental health center, children's dental health care centers, care for the elderly, mediation of non-fluorial concentration in tap water, dementia examination support, dementia examination, case management, oriental medicine health promotion projects, oriental medicine prevention and management projects, prevention and management of cardio-cerebrovascular diseases, etc.) were integrated and continued to operate one comprehensive project for health promotion projects from January 1, 2013 to 10 local community-based integrated projects (the local community-based integrated projects). Accordingly, the integrated projects for health promotion projects were integrated and integrated from 13.1.0 to 13.0 local community-based integrated projects (the local community-based integrated projects).

(c) Guidelines for the conversion of indefinite contract positions between the Ministry of Employment and Labor and the Ministry of Health and Welfare;

1) The Ministry of Employment and Labor and the Ministry of Health and Welfare, as part of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter referred to as the “fixed-term Act”) as part of the Act on the Protection, etc. of Workers by the Government’s Welfare Policies, unemployment measures, etc. in accordance with the proviso of Article 4(1)5 of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers and Article 3(2)1 of the Enforcement Decree of the same Act, appears to be “the provision of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers is an exception to the restriction on the period of use of fixed-term workers (i.e., employed as a fixed-term worker for more than two years).” The above guidance on the pre-integrated visit health management projects, which was introduced by the Ministry

2) However, on January 16, 2012, the Ministry of Employment and Labor: (a) prepared, in principle, guidelines to convert workers engaged in regular and continuous work among non-regular workers in the public sector into non-regular workers (unfixed-term employment contracts); (b) the Ministry of Health and Welfare, on December 12, 2012, pursuant to the above guidelines, pursuant to the Ministry of Health and Welfare’s guidelines, decided that the fixed-term workers engaged in the integrated visit health management business should be included in the unlimited-term contract workers (i.e., a worker in charge of visiting health management business after integration) by integrating individual projects, such as the integrated visit health management business from January 1, 2013 to the community integrated health promotion business; and (c) decided that the fixed-term workers, including the Plaintiffs, who are in charge of visiting health management business, should be regarded as a worker who entered into an unfixed-term employment contract if the continuous work period exceeds two years. Meanwhile, the above guidelines were issued to the national local government, and became familiar with the duty capability education.

D. Conclusion and renewal of employment contracts between the plaintiffs and the defendant

1) The number of workers engaged in the business of visit health management before and after integration conducted by the Defendant since 2007 and the forms of their employment are as listed in Table 1.

1. The number of workers engaged in the business of visiting health before and after the consolidation of the defendant and the type of employment;

A person shall be appointed.

2) From March 23, 2007, the Plaintiffs were employed as personnel in charge of the Defendant’s integrated visit health management services from June 1, 201 to June 1, 201. Meanwhile, employees, including the Plaintiffs, engaged in the Defendant’s integrated and late visit health management services, including the Plaintiffs, have prepared a new employment contract by renewal of a fixed-term employment contract with the Defendant for a period of one year without any specific disclosure employment procedure until 2013, as long as they do not want to resign. Although there was a public announcement of employment in 2014, there was no applicant except the Plaintiff and the pre-existing employees, and also prepared a new employment contract as they are employed by all the pre-existing employees. The details of the conclusion and renewal of the employment contract of the Plaintiffs are as shown in Table 2 below.

Table 2. Details of employment contracts and renewals by December 31, 2014

A person shall be appointed.

December 31, 2014;

3) Meanwhile, employees, including the Plaintiffs, engaged in the business of visit and health management before and after the consolidation of the Defendant, were paid retirement allowances from the Defendant each time the contract term of each fixed-term employment contract expires, but the Defendant accumulated retirement allowances to the said employees for the labor contract in 2013, and the said employees received retirement allowances for the said employees for the year 2013 and 2014 after the contract term of the labor contract in 2014 expires.

E. The defendant's notification on the expiration of the contract period and employment of part-time public officials

1) A public health clinic established and operated by a nationwide local government is the total of 255 public health clinics. Among them, 219 public health clinics are performing visiting health care projects as part of community integration health promotion projects. Among them, 219 public health clinics are 219, and a large number of 219 public health clinics are c) the workers in charge of visiting health care projects under their control in accordance with the guidelines of the Ministry of Employment and Labor and the Ministry of Health and Welfare, such as the above c) and the Ministry of Health and Welfare. Of the autonomous Gus in Busan Metropolitan City, the annual Gu was converted into a inorganic contract worker around March 2014, and around September 2014, the captain-gun changed the worker in charge of visiting health care projects under their control into a inorganic contract worker. Meanwhile, the Plaintiffs requested a inorganic contract conversion from around December 2013 to the Defendant and the organization negotiation, but the Defendant notified the workers in charge of visiting health care projects including the Plaintiffs of the expiration of the contract period (hereinafter referred to as “the expiration of the contract period”).

3) After the integration on December 18, 2014, the Defendant published a recruitment plan to employ human resources to be engaged in the visiting health management business as a public official on a part-time and fixed-term basis, and there was no applicant on January 7, 2015, February 16 of the same year, and March 3 of the same year. Ultimately, on the basis of the recruitment procedure, the Defendant employed a total of seven nurses (two of them are workers who were engaged in the visiting health management business after the consolidation of the Defendant) as a public official on a part-time basis.

F. Plaintiffs’ remedy

1) On March 27, 2015, the Plaintiffs asserted as follows and filed an application for remedy with the Busan Regional Labor Relations Commission seeking reinstatement, etc.

A visiting health management business cannot be subject to the proviso of Article 4(1) of the Fixed-term Act. Even if the above proviso is applicable, since the main sentence of Article 4(1) of the Fixed-term Act was applied from January 1, 2013 to the Ministry of Health and Welfare, the Plaintiffs are those who worked for more than two years including the period before January 1, 2013, and accordingly, they should be deemed to have entered into an employment contract without a fixed period of time. In addition, even though the renewal right has been formed in light of the fact that the employment contract has been renewed for several years, the Defendant shall notify the expiration of the contract term of this case without reasonable grounds on the ground that the contract term has expired on December 12, 2014. This constitutes an unfair dismissal, which is bound to be an unfair labor act of treating disadvantages caused by the suspicion of the Plaintiffs and the trade unions.

2) However, the Busan Regional Labor Relations Commission, on June 2, 2015, recognized that the notice of the expiration of the contract period as of December 31, 2014, which was given by the Defendant to the Plaintiffs, was unfair. Within 30 days from the date of receipt of the written ruling, the Defendant rendered a decision that the Plaintiffs were reinstated to their original position and paid the amount equivalent to the wages that could have been paid if they had worked normally during the dismissal period.

3) Accordingly, on July 9, 2015, the Defendant filed an application for reexamination seeking the revocation of the said determination with the National Labor Relations Commission. However, on September 11, 2015, a judgment dismissing the said application for reexamination was rendered.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 4, 6, 7, 14, 16, 17 (including each number; hereinafter the same shall apply), Eul evidence 1 to 3, witness G's testimony, and the purport of the whole pleadings

2. The plaintiffs' assertion

Since January 1, 2015 for the following reasons, the plaintiffs shall be deemed workers who have concluded an employment contract with the defendant as human resources in charge of visiting health promotion projects among the defendant's community integrated health promotion projects, for which no period of time has been fixed. Accordingly, the plaintiffs shall seek confirmation by the lawsuit of this case. 3)

A. As seen in the above Table 2, the Plaintiffs concluded the first fixed-term employment contract with the Defendant and then renewed the employment contract several times until December 31, 2014. The term pre-integrated visit health management business (up to December 31, 2012) falls under Article 4(1) proviso 5 of the Fixed-term Act and thus can be employed as a fixed-term employee without a limit of two years. However, the Plaintiffs were excluded from the subject of the proviso of Article 4(1) proviso of the Fixed-term Visit Act (up to January 1, 2013). However, it is intended to protect the employment relationship continuously since the Ministry of Employment and Labor and the Ministry of Health and Welfare concluded the first fixed-term employment contract with the Defendant by respecting the nature of the above business and the substance of the employment relationship, and thus, it should not be deemed that the Plaintiffs continued to work for a fixed-term employee exceeding 20 years prior to the first fixed-term employment contract as an employee under Article 4(1) proviso of the Act.

B. Even if the plaintiffs should exclude the period of employment as an employee of a visiting health management business prior to the integration until December 31, 2012, when determining whether the above period of employment exceeds two years, the plaintiffs concluded the first fixed-term employment contract with the defendant and renewed the employment contract several times without any specific examination procedure until December 31, 2014, as seen in attached Table 2, and the plaintiffs have a legitimate right to expect renewal of the employment contract with the defendant. The plaintiffs' refusal of renewal of employment contract with the plaintiffs and employment of a part-time public official on a part-time basis is to avoid the application of the Fixed-term Act, and there is no justifiable reason to refuse renewal of employment contract. Accordingly, it shall be deemed that the employment contract is maintained after December 31, 2014, which is the expiration date of the employment contract after the consolidation between the plaintiffs and the defendant, and even if the plaintiffs were to work as an employee of the visiting health management business after the consolidation, the period of employment contract shall be more than two years, as the period of employment contract is more than two (2).

3. Determination

(a) Relevant statutes;

2. Attached Form 2.

B. Determination as to the First Claim

1) Whether a visit health management project before and after the integration constitutes Article 4(1) proviso 5 of the Fixed-term Act

A) With respect to this issue, both the Plaintiffs and the Defendant are subject to the proviso of Article 4(1)5 of the Fixed-term Care Act (amended by Act No. 1190, Jan. 1, 2013). However, it does not dispute that the visit health care business after the consolidation after January 1, 2013 is not subject to the proviso of Article 4(1)5 of the Fixed-term Care Act. However, this is not a requirement subject to confession, but a matter concerning the interpretation and application of law. Therefore, in the trial of a specific dispute case, the right to interpretation of law is exclusively subject to the Supreme Court’s highest court, and thus, it is necessary to review the above matter by changing the proviso.

B) Article 4(1) main text and Article 4(2) of the Fixed-term Workers Act provide that when an employer employs a fixed-term worker for more than two years, the fixed-term worker shall, in principle, be deemed an employee who has entered into an employment contract without a fixed-term employment period (Article 3(3) of the same Act): Provided, That the proviso to Article 4(1)5 of the Fixed-term Workers Act provides that where an employee provides jobs in accordance with the government’s welfare policies, unemployment measures, etc., and the Presidential Decree prescribes that an employer may employ a fixed-term worker for more than two years. Accordingly, Article 3(2)1 of the Enforcement Decree of the same Act provides that “where an employee provides jobs in order to develop his/her vocational ability, promote employment, and provide necessary services to the public or residents in accordance with other statutes, such as the Framework Act on Employment Policy, Employment Insurance Act, etc., the State or a local government provides jobs for more than two years (see, e.g., Supreme Court Decision 201Du16281, supra.

However, in full view of the following circumstances, as alleged by the Plaintiffs and the Defendant, it is reasonable to view that the pre-integrated visit health management business prior to January 1, 2013 constitutes a case where a fixed-term worker can be employed for more than two years, subject to the proviso of Article 4(1)5 of the Fixed-term Act and Article 3(2)1 of the Enforcement Decree of the said Fixed-term Act, but the visit health management business after the consolidation is not subject to the proviso of Article 4(1)5 of the said Fixed-Term Workers Act, and thus it is possible to employ a fixed-term worker only within a period not exceeding two years (where a fixed-term worker is employed for more than two years, it is deemed that a fixed-term worker is an employee who entered into an employment contract without a fixed-term employment contract).

(1) The main purpose of a visiting health management program is not only to expand the social service of the disadvantaged class, but also to create jobs by expanding human resources necessary for the implementation of the program, and the program is being managed as a government-funded employment program based on Article 13-2 of the Framework Act on Employment Policy.

② The Ministry of Health and Welfare decided that the term-based workers engaged in the pre-integrated visit health management business shall be included in the subjects of inorganic contract transition in accordance with the guidelines of the Ministry of Employment and Labor on January 16, 2012 and Article 3(2)1 of the Enforcement Decree of the same Act, on the ground that the term-based workers engaged in the pre-integrated visit health management business fall under Article 4(1)5 of the Fixed-Term Workers Act and Article 4(2)1 of the Enforcement Decree of the same Act.

③ Visit health management projects have inherent limitations that can not continue where subsidies are granted from the National Treasury. However, for the purpose of promoting active health promotion and disease prevention policies pursuant to Articles 4(1) and 5 of the National Health Promotion Act, the third-party national health promotion plan (referring to the 10-year plan from 2011 to 2020) formulated by the Minister of Health and Welfare after deliberation of the National Health Promotion Policy Committee is listed as one of the priority tasks for visiting health management projects, and the plan to continuously increase the relevant budget by 2020 is included. Furthermore, the Ministry of Health and Welfare explicitly stated in accordance with the Ministry of Employment and Labor guidelines of the Ministry of Health and Welfare as of January 16, 2012, 17 individual projects, such as integrated visit health management projects, were integrated into local community health promotion projects, and decided to operate such projects regularly and continuously. Accordingly, the third-party integrated health management projects cannot be seen as one of the more integrated health promotion projects (the 10-party integrated health promotion projects, among 255 local governments currently established and operated.

2) As seen in the foregoing Paragraph 1, whether to calculate the period of continuous work including the period of continuous work before January 1, 2013 or not, the term of continuous work before the integration falls under the scope of proviso of Article 4(1)5 of the Fixed-term Work Act and Article 3(2)1 of the Enforcement Decree of the same Act; however, visit health management business after the integration after January 1, 2013 shall not be subject to proviso of Article 4(1)5 of the above Fixed-term Work Act. Article 4(2) of the Fixed-term Work Act provides that where an employer is employed as a fixed-term worker for more than two years without any ground under the proviso of Article 4(1) of the above Act (where it is possible to employ a fixed-term worker as a fixed-term worker for more than two years), it is reasonable to deem that the term of employment contract expires after the conclusion of a new term of employment contract as an employee under the proviso of Article 4(1)1 of the above Act, which does not fall under the proviso of Article 27(1).

Therefore, the first chapter of the Prior Plaintiffs is without merit on different premise.The judgment on the second chapter is without merit.

1) In principle, in the case of an employee who has concluded a labor contract with a fixed period of time whether the right to expect renewal of the labor contract is recognized or not, the status as an employee shall be terminated as a matter of course, and if the employment contract is not renewed, the employee shall retire automatically even if the employee has not expressed his/her intent of refusal of renewal. However, even though the term expires in a labor contract, employment contract, employment rules, collective agreement, etc., provides that the labor contract shall be renewed upon the fulfillment of certain requirements, regardless of the expiration of the term, or in full view of the circumstances surrounding the labor contract, such as the motive and circumstance in which the labor contract is concluded without such provision, the establishment of requirements and procedures for renewal of the labor contract, the standard for renewal of the contract, etc., and the details of the work performed by the employee, etc., if there is a fiduciary relationship that the labor contract shall be renewed upon the fulfillment of certain requirements between the parties to the labor contract, and thus, the employer’s refusal of the labor contract unfairly in violation of such provision does not have the same effect as the previous labor contract renewal (see Supreme Court Decision 2017Du7, Apr. 27, 2014.

In addition, as stipulated in Article 4(1) and (2) of the Fixed-Term Workers Act, an employer may employ a fixed-term worker within a two-year period of time, and where the total period of employment of a fixed-term worker exceeds two years, even if a fixed-term worker is deemed an employee without a fixed-term period of time, considering that the legislative purport of the above provisions is basically to ensure the status of workers by preventing abuse of a fixed-term employment contract, the legitimate expectation right for the renewal of a fixed-term worker already formed before the enforcement of the fixed-term employment contract is excluded or restricted (see Supreme Court Decision 2011Du12528, Feb. 13, 2014).

On the other hand, the standard point of determining whether a fixed-term worker has the right to renew or not and the right to renew is recognized, in principle, at the time of the employer's rejection of renewal, that is, at the time of the termination of a fixed-term employment contract, but in determining whether a fixed-term worker has the right to renew or not, it should be determined by considering various circumstances surrounding the employment relationship that exists at that time (the above Supreme Court Decision 2007Du1729 Decided 200) based on the point of termination of a fixed-term employment contract.

B) However, the following circumstances revealed by the above evidence are the circumstances that obstruct the Plaintiffs from recognizing that they have a legitimate expectation for the renewal of a contract:

① The Plaintiffs and the Defendant specified the contract term on a yearly basis whenever concluding a labor contract.

② Article 8 of each employment contract (Evidence A No. 1) prepared by the Plaintiffs and the Defendant in entering into a multiple fixed-term employment contract provides that the reduction of personnel is inevitable due to the reasons prescribed in Article 18 of the Busan Metropolitan City Yeongdeungpo-gu Life Insurance Contract and the Management Regulations for Fixed-term Workers for the Defendant’s Termination of the employment contract (see, e.g., Supreme Court Decision 7., Supreme Court Decision 2001Do319, Oct. 10, 2015; hereinafter “Management Regulations”).

3. The labor contract concluded by the Plaintiffs and the Defendant does not provide for the requirements or procedures for renewal, such as the provision that the contract is renewed if certain requirements are met, or the standard for renewal of the contract. On the other hand, the instant management regulations that are included in the contents of the above labor contract (which include the stipulation that the contract shall be concluded in accordance with the Yeongdeungpo-gu Busan Metropolitan City Rules on Life Insurance Contracts and Fixed-term Workers) do not seem to have any provision to the same effect.

④ The Plaintiffs received retirement allowances from the Defendant each year after the termination of the contract term of each fixed-term employment contract by 2012, and received retirement allowances accumulated in relation to the employment contract in 2013 and 2014 after the contract term of the employment contract in 2014 expires.

C) However, in light of the above legal principles as seen in the above (A), notwithstanding the following circumstances, it is reasonable to deem that the Plaintiffs may have a legitimate expectation right to renew the employment contract until the expiration of the period of the final employment contract on December 31, 2014, notwithstanding the circumstances described in the above (b), by comprehensively taking into account the evidence recognized or mentioned above, and the following circumstances acknowledged by the respective statements and the purport of the entire arguments as stated in Articles 9, 10, and 12, and the entire arguments.

① On March 23, 2007 and June 1, 201, the Plaintiffs entered into a fixed-term employment contract with the Defendant on June 1, 201, and have renewed the contract every three to seven times each year on December 31, 2014 after the expiration of the final contract period. Among the Plaintiffs, employees engaged in the Defendant’s pre- and post-integrated visit health management business, including the Plaintiffs, were dismissed or have not been denied renewal as long as they have no intention to resign. ② While the Plaintiffs were first employed, they entered into an employment contract with the Defendant through the open recruitment procedure, but only newly entered into the employment contract without undergoing the open recruitment procedure by 2013. Meanwhile, the open recruitment procedure was only a mere formal employment procedure.

③ On January 16, 2012, the Ministry of Employment and Labor: (a) prepared guidelines to convert workers engaged in regular and continuous work among non-regular workers in the public sector into non-regular contract positions in principle; (b) the Ministry of Health and Welfare, from January 12, 2012, pursuant to the above guidelines, decided that individual projects, such as visiting health management projects before integration, should be integrated into local community integration health promotion projects; (c) after integration, fixed-term workers engaged in visiting health management projects should be included in indefinite contract positions; (d) the above guidelines were issued to the local governments nationwide; and (e) the workers engaged in visiting health management projects, including the plaintiffs, are well informed of such contents through the education for strengthening the volume of their duties. Meanwhile, the Ministry of Employment and Labor, on December 16, 2014, there was a problem that the local government does not convert into fixed-term workers engaged in the integrated health management projects, such as visiting the local community contract positions into a non-permanent contract employment guidelines (see, e.g., reporting 13 p., self-government guidelines.

Since January 1, 2013, 17 individual projects, such as visiting health management projects before and after integration, were integrated into local community integrated health promotion projects, and the method of granting national subsidies for the said projects was changed from the support method for each individual project to the comprehensive support method for one project called local community integrated health promotion projects, but it cannot be said that the nature of the project itself before and after integration or its work content has been changed essentially.

⑤ In light of the fact that the Ministry of Health and Welfare, from January 1, 2013 to January 16, 2012, explicitly decided that 17 individual projects, such as a visit health management project, should be integrated into a local community integration health promotion project, and the current progress of the implementation of the national local government’s integrated health promotion project, at least once after integration after January 1, 2013, visit health management projects cannot be deemed temporary projects. Moreover, the third comprehensive plan to promote national health is likely to expand and operate the above projects according to the national health promotion plan.

(6) From among the 255 public health centers established and operated by each local government across the country, 219 public health clinics are performing the visiting health management projects as part of the regional community integrated health promotion projects. Even according to the Defendant’s assertion, even if some of the workers in visiting health management projects were to be followed, 120 public health clinics converted into inorganic contract workers (59 public health clinics converted into inorganic contract workers, 55 public health clinics consisting of inorganic contract workers, 3 fixed-term workers, and part-time public health clinics consisting of inorganic contract workers, and three public health clinics consisting of inorganic contract workers, and part-time public health clinics consisting of inorganic workers and part-time public officials. Furthermore, as shown by the Defendant, the year-gu and Gun, which are the basic local governments within the jurisdiction of Busan Metropolitan City, have not yet passed since January 1, 2013 (round March 2014 and around September 2014, 2014).

① The wages that the Plaintiffs received from the Defendant included a long-term continuous work allowance, and the wage has increased according to the salary grade system. Moreover, the Plaintiffs’ annual leave has been used according to the Plaintiffs’ continuous work training. 8 Although the Plaintiffs’ period employed in the integrated visit health management business before January 1, 2013 during which they were employed, the period during which they could be employed as a fixed-term worker for more than two years pursuant to the proviso to Article 4 (1) 5 of the Fixed-term Work Act and Article 3 (2) 1 of the Enforcement Decree of the same Act, the period during which they were employed in the integrated visit health management business before January 1, 2013 falls under the case where they could be employed as a fixed-term worker for more than two years after January 1, 2013. However, considering that the legislative purport of the above provision is to guarantee the status of workers by preventing abuse of the fixed-term employment contract, the Plaintiffs’ right to renewal or renewal of employment contract cannot be seen as being formed under the main text of Article 4 (1) of the Act.

① Article 11(1) of the Management Regulations, which is included in the contents of the employment contract entered into by the Plaintiffs and the Defendant, stipulate that "any of the following work shall be ordinarily occurring during the year and for which the long-term continuation or continuation is clearly anticipated," and Item 1 of Article 1 of the Management Regulations lists "where a public official is not necessarily required to perform due to a work which has a strong management and service character," and Item 2 of Article 2 provides that "where a public official needs human resources with certain qualifications, but it is more efficient to utilize a civilian, it is clearly anticipated that the visiting health management business will continue for a long period of time as a social service business that provides health care for the vulnerable class, and it is clearly anticipated that the visiting health management business after integration falls under Article 11(1)1 and 2 of the Management Regulations. In addition, Article 53 of the Management Regulations of this case provides that "the person having the right to employ a life-time worker or a workplace engaged in the same kind of work as the worker or a similar kind of work."

2) The defendant's rejection of renewal of employment contract is justified

A) As seen in the above Paragraph 1 above, the plaintiffs' right to expect renewal of an employment contract is recognized. Thus, the defendant's refusal of renewal of an employment contract in violation of this provision is invalid because it constitutes unfair dismissal. In light of the fact that as a matter of principle, it cannot be said that the level of trust on the continuation of the employment contract is equal to the level of trust on the existence of the employment contract between the worker who entered into an employment contract without a fixed period of time and the fixed-term worker, in principle, in the form of the contract itself, the refusal of renewal of the employment contract is not strict as stated in Article 23 Paragraph 1 of the Labor Standards Act in determining whether the employer's refusal of renewal is justifiable, and if there are reasonable grounds that are deemed reasonable by social norms, the employer's refusal of renewal is justifiable, and the employer is liable to assert and prove

B) However, the defendant asserts that, at the beginning, the local community integrated health promotion project is a project that a local government plans and carries out a project in compliance with the local characteristics and the demand of residents, and that the local government that carries out such project is able to determine the area and scope of individual project within budgetary limits, etc., and that, if a fixed-term worker in charge of the existing visiting health management project is converted into an indefinite contract, it would cause a problem of promoting

In light of the legal basis for the visit health management project before and after integration, the public nature of the project, and the background leading up to the integration of 17 individual projects, such as the visit health management project into the community integrated health promotion project, and the above fact that Article 8 of the employment contract provides that, as seen above, the defendant may terminate the employment contract, "in principle, it is inevitable to reduce the number of employees due to the reduction of work demand, restructuring of organization, etc. due to the reduction of the number of employees due to the reduction of administrative demand, etc." on the grounds that the defendant may terminate the employment contract. As of December 31, 2014, the plaintiffs' final employment contract was terminated, which resulted in excessive expenses, such as personnel expenses, etc., and thus it is impossible to maintain the visiting health management project itself after integration or to implement other individual projects that require more urgent implementation than the visit health management project among the 17 individual projects integrated into the community health promotion project, or if it is objectively apparent that the above situation occurs within the short period, there is a reasonable ground to deem the defendant to renew the employment contract with the plaintiffs.

However, on November 4, 2014, the Ministry of Health and Welfare recognized a request for the cooperation of the plaintiffs of the Ministry of Health and Welfare to provide stable services through various channels such as part-time and part-time public officials, etc. according to the conditions of the institution, on a regular and continuous basis, a local government-invested project is a project subject to the transition of indefinite contract positions to fixed-term workers whose continuous service period exceeds two years. In principle, the personnel expenses for indefinite contract workers may be organized at local expenses, but if it is difficult to transfer indefinite contract positions due to budget constraints, labor expenses may be organized within the budget for the local community integration promotion project to the extent that does not affect the smooth implementation of the project. The cost for indefinite contract workers included in the project expenses is recommended to be converted to local expenses on a yearly basis, and it is recognized that the request for the cooperation of the plaintiffs of the Ministry of Health and Welfare to provide stable services through various channels such as a part-time public official on a flexible basis (see, e.g., attached documents for reference on October 7, 2015).

① The Ministry of Health and Welfare, in accordance with the Ministry of Employment and Labor’s guidelines on January 16, 2012, explicitly decided to integrate 17 individual projects including visiting health management projects from January 1, 2013 to local community integration health promotion projects, and decided to operate regularly and continuously. The third comprehensive plan for national health promotion listed in one of the priority tasks includes a plan to continuously increase the relevant budget until 2020.

② On January 19, 2015, the Ministry of Health and Welfare made a request for cooperation on the budget for the integrated health promotion projects of local governments throughout the country, with the exception of those who are employed to carry out such projects, for a fixed-term worker who has worked for such projects for more than two years as permanent and continuous work. In recent years, external points such as press reports are continued in relation to the employment of those workers. In compliance with the government guidelines, it may actively cooperate in the transition of indefinite-term workers. To the extent that it does not affect the smooth implementation of the national health promotion projects, it is possible to compile in the budget for the integrated health promotion projects of the local community, and only once inform the local government that there is no disadvantage in excess of the standard personnel expenses due to the transition of indefinite-term workers employed to carry out the projects (see subparagraph 12-1, 2, 12-1), and the implementation of the integrated health promotion projects by the local government is no longer known out of the budget for the integrated health promotion projects of the local community.

(1) According to the Defendant’s assertion, the annual total amount of personnel expenses per worker, including the Plaintiffs, is approximately KRW 3,282,00 per worker, and the annual total amount of personnel expenses per worker employed as a public official on a flexible-time basis is approximately KRW 3,039,00 per worker, and the difference is merely about KRW 2,1.6 million per worker ( approximately KRW 2,60,000,000 per worker on the basis of the number of personnel in charge of visiting health management projects in 2014) (see, e.g., the Defendant’s preparatory brief as of July 17, 2015). However, considering that the Defendant’s total budget comprehensively subsidized to the National Health Promotion Project in 2014 is difficult to view that the Defendant’s total annual total amount of personnel expenses per worker is KRW 675,235,00,00,000 per worker on a flexible-time basis or that the amount of annual total personnel expenses per worker cannot be objectively converted within 21314.

⑤ Given the characteristics of visit health management business that directly visits households belonging to vulnerable groups to provide medical services, the establishment of human trust relationship through continuous contact between the human resources in charge and beneficiaries and the degree of skill training of the human resources in charge of the above business failure is an important factor to depend on the success of the above business (Article 3 National Health Promotion Master Plan points out that there is lack of case management ability as the human resources who received education are not employed cumulative due to the problems of the current visit health management business). However, the defendant employed a part-time public official on behalf of the plaintiffs who had already been in charge of visiting health management business for several years on or after December 31, 2014, it cannot be deemed that there is a special change in the demand for services provided by the defendant through the regional community integrated health promotion project, and as seen in the above paragraph, it cannot be deemed that there is a difference in the total business budget when employed as a public official on a part-time basis and personnel expenses when employed as a public official on a part-time basis in the employment of a public official on a part-time basis exceeding the existing contract renewal period.

④ The Defendant established a policy to refuse the renewal of an employment contract with the Plaintiffs in advance according to the results of discussions held by the head of the Busan Metropolitan City and the head of the Gun Council, which was held on October 16, 2014, and accordingly notified the Plaintiffs of the expiration of the contract term as of December 31, 2014, and there seems to be no procedure for evaluating the Plaintiffs’ work performance or work performance according to objective and reasonable standards.

D. Sub-determination

As seen earlier, the Plaintiffs’ right to expect renewal of an employment contract is recognized, while the Defendant’s refusal to renew an employment contract does not have a reasonable ground to be deemed reasonable under the generally accepted social norms, and thus is null and void just as unfair dismissal. As such, the Plaintiffs’ employment relationship is the same as the renewal of the previous employment contract (contract period until December 31, 2014). Accordingly, the employment relationship between the Plaintiffs and the Defendant remains in force after January 1, 2015. However, the calculation from January 1, 2013 when the Visit Health Management Business (as seen above, this does not fall under the proviso to Article 4(1) of the Fixed-term Act) started after the consolidation exceeds two years since the Defendant’s employment period as a fixed-term employee after January 1, 2015, the Plaintiffs are deemed to have no interest in dispute as long as the Defendant concluded an employment contract with the period from January 1, 2015.

4. Conclusion

Therefore, the plaintiffs' claims of this case are justified, and all of them are accepted. It is so decided as per Disposition.

The presiding judge, Kim Hong-il

Judges Lee Hong-hoon

Judges Kim Gi-sung

1) The former Regional Public Health Act (wholly amended by Act No. 5101 on December 29, 1995)

Article 9 (Duties of Public Health Centers) The public health center shall take charge of the following matters within the jurisdiction of local governments concerned:

12. Health and medical services by visiting home, social welfare facilities, etc.;

2) The Defendant shall have 59 public health clinics that convert all of the human resources in charge of existing visit health management services into inorganic contract workers, fixed-term workers and weapons.

The number of public health clinics with contract workers, 5 fixed-term workers, inorganic workers, and part-time public officials;

The defendant asserts that three public health clinics are three public health clinics, and public health clinics consisting of part-time workers and part-time public officials (the defendant).

Any worker engaged in visiting health management business, even if he/she complies with the defendant's argument, at the time of preparation on July 17, 2015;

Some of them are about 120 public health centers converted to inorganic contract positions. On the other hand, the Plaintiff is a public health center converted to inorganic contract positions.

(a) 115 public health clinics, 22 public health clinics in which the plan is being formulated, shall not be converted to a inorganic contract position.

There are 17 public health clinics to be regarded as inorganic contracts in accordance with the fixed-term contract law by entering into an employment contract for more than two years;

I asserts that it reaches this point.

3) Visiting health management projects are projects based on regional public health and directly visiting the socially disadvantaged groups, such as basic recipients and the elderly living alone.

be implemented as part of the defendant's public performance of duties (Article 9 (2) 2 of the Local Autonomy Act) that intends to provide health and medical services.

To be employed as a worker in charge of visiting health care business, certain requirements and qualifications such as medical knowledge, etc.

It is required that the contract of employment between the plaintiffs and the defendant is included in the contract of employment, and the contract of life and fixed-term worker of Busan Metropolitan City.

'Management Regulations' (refer to the defendant's duty of good faith, duty of confidentiality, duty of kind and fairness, duty of kind and integrity, and integrity in the documents referred to in the reference of October 2015, 7.)

Service regulations and certain grounds for dismissal and disciplinary reasons that are to be observed by the plaintiffs, such as duties, are stipulated, and disciplinary measures against the plaintiffs are imposed.

In full view of the fact that procedural rights, such as the right to attend and the right to interrogate, etc., the defendant's visiting health management work is guaranteed.

Since the status of the plaintiffs and the defendant are similar to public officials, the employment contract between the plaintiffs and the defendant is regarded as public law contracts.

Therefore, the plaintiffs are entitled to claim the confirmation of the status of workers under the above employment contract as a party suit under public law.

The defendant also raises an objection against the plaintiff's filing of the instant lawsuit in the form of a party suit under public law.

B) did not raise any question.

4) The Supreme Court has held that the criteria for determining the legitimacy of dismissal disposition is sufficient to the extent that the employment relationship cannot be continued by social norms.

It is justified if there is a reason to assume the responsibility for the old, and as a matter of social norms, the employee concerned shall be employed.

Whether it is impossible to continue an employment relationship shall be determined by the purpose and nature of the employer’s business, the conditions of the workplace, and the worker concerned.

The status of the company, the contents of the duties, the motive and background of the act of misconduct, and the risk of disturbing corporate deceptive order due to this, etc.

It should be determined by comprehensively examining various circumstances, such as impact on corporate order, past attitude of work, etc.

The decision was made (see, e.g., Supreme Court Decision 2001Du10455, May 28, 2002).