Plaintiff 1 and 2 others (Law Firm Han, Attorneys Kwon Du-pop et al., Counsel for the plaintiff-appellant)

South Sea Chemical Co., Ltd. (Law Firm Sang-ok, Attorneys Gyeong-Gyeong et al., Counsel for the plaintiff-appellant)

July 12, 2013

Seoul Central District Court Decision 201Gahap8196 Decided November 22, 2012

1. The defendant's appeal is all dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant shall pay 13,685,633 won to the plaintiff 1, 138,60,691 won to the plaintiff 2, and 124,709,981 won to the plaintiff 3, and 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of full payment. The defendant shall pay 4,139,820 won to the plaintiff 1 and 2 each month from January 1, 2012 until each plaintiff is reinstated.

2. Purport of appeal

Of the judgment of the court of first instance, the part of the defendant failure shall be revoked, and all of the plaintiffs' claims corresponding thereto shall be dismissed.

1. Basic facts

A. The defendant employs approximately 460 full-time workers (including approximately 700 workers belonging to the non-party company as seen below) and carries on the manufacturing business of fertilizers, etc. The defendant's composite fertilizer factory is a place where 20 raw materials, such as lead acid, nitrogen, chloudium, and roof, are produced.

B. The plaintiffs' labor contract relationship

1) On June 9, 1997, Plaintiff 1 entered a continental enterprise corporation (hereinafter “alternative land company”) and the affiliation of Plaintiff 1 was changed on March 1, 2001 to the South Mawn Promotion Co., Ltd. (hereinafter “Seoul Maw Promotion”), and the affiliation was changed on February 1, 2008 to the continental company.

2) On April 11, 1996, Plaintiff 2 entered the continental company, and the affiliation was changed on March 1, 2001.

3) On January 17, 2000, Plaintiff 3 entered a continental company, and the affiliation was changed on June 1, 2007, and the affiliation was changed on February 1, 2008 to a continental company.

4) At the time of the above-mentioned change, the Plaintiffs’ wages and all the working conditions were to be succeeded to by the changed company as it is. From June 9, 1997, Plaintiffs 1 and 2 from April 11, 1996, Plaintiff 3 worked as an employee for the production of the Defendant’s composite fertilizer in which the contract was entered into with the continental company and the South-North Korea Promotion (hereinafter collectively referred to as “foreign company”) from January 17, 200, and the Defendant’s composite fertilizer company that entered into a contract with the said changed company.

C. The non-party company entered into a collective agreement on wages and working conditions with a trade union in the company, hired new workers by giving a public notice of employment under the name of the non-party company, and exercised its independent personnel authority and disciplinary action against its employees. In addition, the non-party company directly paid wages to its employees, processed the tax withholding and payment of wage and salary, and conducted its own business activities such as paying individual business income by purchasing four insurance in the name of each representative, and making a separate business registration.

D. On February 21, 2008, the Plaintiffs filed a petition against the Defendant on illegal dispatch to the Gwangju Regional Labor Office, and on December 9, 2008, filed a petition against the Defendant for confirmation of the status of an employee with the Seoul Central District Court 2008Gahap123693, and the said court accepted the Plaintiffs’ claim on November 13, 2009. The Defendant appealed on Seoul High Court 2009Na117975, but the said court dismissed the Defendant’s appeal, and the Defendant again filed a petition against this, the final appeal is pending (hereinafter “the first lawsuit”).

E. On September 1, 2008, Plaintiff 1, and Plaintiff 3, who entered into a contract with the Defendant, changed its affiliation to the Cocoding System Technology (hereinafter “Cocoding System”). After that, the Defendant prevented Plaintiff 2 from entering the factory on the ground that the promotion of Southern was suspended from business on December 10, 208, and prevented Plaintiff 1 and Plaintiff 3 from taking out the Defendant’s private document without permission from December 18, 2008.

F. The Cocoa system dismissed Plaintiff 1 and Plaintiff 3 on January 21, 2009 due to the absence from office without permission. Accordingly, the said Plaintiffs filed an application for unfair dismissal against the Cocoa system with the former Southern Regional Labor Relations Commission, and issued a reinstatement order against Plaintiff 1 and Plaintiff 3 on April 3, 2009 in accordance with the order of reinstatement from office on April 3, 2009 of the said committee. Meanwhile, the Cocoa system filed an application for reexamination with the National Labor Relations Commission on the determination of the said committee, but the said application for reexamination was dismissed on June 25, 2009.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 7, 73 through 78 (including branch numbers; hereinafter the same shall apply), Eul evidence No. 8, and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiffs

1) The plaintiffs formally concluded a labor contract with the non-party company, but since the substance of the contract concluded between the defendant and the non-party company is a worker dispatch contract, Article 6 (3) 1 of the former Act on the Protection, etc. of Temporary Agency Workers (amended by Act No. 8076 of Dec. 21, 2006; hereinafter the "former Dispatch Act") (hereinafter the "instant provision"), the plaintiff 1 and the plaintiff 2 from July 1, 2000, when two years have passed since each of the former Dispatch Act was enforced, and the plaintiff 3 deemed employment from January 17, 2002, which was the day after the second year from the date of the dispatch to the defendant, and the relationship between the plaintiffs and the defendant was established.

2) However, the Defendant did not pay wages to the Plaintiffs who provided labor to the Defendant from September 1, 2008, and from around December 2008, the Defendant refused to receive labor provided by the Plaintiffs even if they were not actually dismissed or dismissed by preventing the Plaintiffs from entering their factories.

3) Therefore, the Defendant is obligated to pay the Plaintiffs monthly wages from September 1, 2008 to December 31, 201, to the difference between the Defendant’s unpaid wages and the wages actually received from the Nonparty Company or the Cocoa system, and from January 1, 2012 to the Defendant’s workplace.

B. Defendant

1) The plaintiffs were workers of the non-party company who were under the direction and supervision of the non-party company, and the defendant, the contractor of the non-party company, did not have been directed and ordered in the position of the employer, which is a requirement for the temporary placement of workers, in addition to the direction of the non-party company, and since the plaintiffs' duties and the duties of the workers belonging to the defendant are different

2) Since there is no labor relationship between the plaintiffs and the defendant, even if the defendant prevented the entry of the plaintiffs' factories, it cannot be said that the plaintiffs were actually dismissed or the plaintiffs refused to receive labor provided. Therefore, the plaintiffs' claim based on this premise is without merit.

3. Whether the provision of this case applies to the plaintiffs

(a) Criteria for determining contract and dispatch;

1) Article 6(3) of the former Dispatch Act provides that “If a user company continues to use a temporary agency worker for more than two years, it shall be deemed that the temporary agency worker is employed from the day following the expiry of the two-year period.” According to Article 2(1) of the same Act, “temporary agency of workers” means “the temporary agency has a temporary agency worker, while maintaining an employment relationship after the employment relationship with the worker and under the direction and order of the user company in accordance with the terms of the temporary agency contract, to have the user company engage in work for the

2) According to the facts acknowledged earlier, the non-party company has an independent business activity, such as exercising personnel rights and paying wages directly to workers. However, whether the non-party company constitutes a genuine contract relationship with the defendant, or whether it constitutes a contract dispatch relationship in substance, although it is formally a contract relationship. Determination on this issue is not the appearance or form of the contract, but rather the overall circumstances such as the content of the contract, the process of performing its duties, and the eligibility of the parties to the contract. The detailed criteria are as follows.

A) Contents of a contract: Whether there exists an agreement on the completion of a specific day (whether the purpose of the contract is clear, whether the time limit for the purpose of the contract is clearly set), whether delivery and receipt is necessary after the completion of the day, whether a claim for payment can be made before the completion of the day (in the case of temporary placement, it is possible to claim payment according to the amount of work hours according to the amount of work hours regardless of the degree of objective work progress), whether there is any incomplete performance of the day or defect in the result, whether the temporary work agency is liable for the warranty liability therefor (in the case of temporary work agency, it is liable only when there is negligence on

B) The process of performing duties: (a) whether the contractor directly directs and supervises workers on the job site and manages their labor (which means supervision of whether they are on attendance, leave, and leave, and burden of education and training for workers) or not the contractor’s work performance process is linked and subordinate to the contractor’s work performance process; (b) whether the contractor’s work performance process is a systematic distinction between the contractor’s work performance and part of the work; and (c) whether the contractor directly provides labor in matters other than those subject to contract.

(c) Eligibility of parties to a contract: Whether the party has the ability to perform the work that has become the subject matter of the contract (professional technical ability, high level of professional manpower, the provision of working clothes or other protective clothes, the supply of labor materials, the possession of independent business facilities), and whether the party can be specialized in a specialized area;

B. Facts of recognition

1) Contracts between the defendant and the non-party company

The defendant entered into a contract with the non-party company every year using the standardized contract form, and the main contents of the contract form entered into in 200 and around 2001, which was the time when the plaintiffs claim for employment, are as follows.

A) The term of the contract shall be one year, and if either party does not notify his intention to terminate the contract 30 days prior to the expiration date, it shall be deemed to have been automatically extended by up to one month each.

B) The content of the contract was based on the contract text, and the content of the contract was written on the contract text, and the contract was written on the basis of the machinery maintenance work, landscaping work, administrative buildings, shipbuilding work, material management work, vehicle and equipment maintenance work, machinery operation work, cleaning work, etc. The details of the contract’s work related to the complex fertilizer factory were as follows: checking and maintaining various equipment and facilities (including all equipment and facilities of the complex fertilizer plant, such as pumps, elevators, and consortiums) and cleaning related thereto. This was the same as the work performed by the employee belonging to the Defendant.

C) The contract cost is determined by aggregating the basic contract cost and the variable cost, and the specific contract cost is calculated based on the agreement. According to the agreement, the basic contract amount was calculated by multiplying the hourly unit price for the employees belonging to the non-party company by the fixed working hours, and the change was determined by the overtime work, the night work, the holiday work, the monthly work, the monthly work, and the annual work, which provide that each of the allowances shall be calculated at the fixed rate of the above hourly unit price.

D) The non-party company claims the contract cost to the defendant by the fifth day of the following month, and the defendant shall pay it by the tenth day of the following month.

E) The non-party company appointed an on-site agent to take charge of duties, such as ① labor management of the employees of the non-party company, ② contact and coordination with the Defendant regarding the performance of the contract, ③ contract or acceptance of orders, ④ processing of special orders other than written orders, ④ maintaining the regulatory order of the employees of the non-party company, and other duties relating to the performance of the contract.

f) The Defendant provides the non-party company with all necessary work sites, water supply, electricity, atmosphere room, shower room and equipment (inletin, caterin, etc.), special tools, work expendable goods and other work materials, and special safety and health protective equipment necessary for the performance of personal safety and contract work shall be provided by the non-party company.

G) If the non-party company’s failure to comply with an incomplete processing due to a defect in the course of performing the contractual work performed by the non-party company, the non-party company shall immediately take corrective measures or be liable for damages. In addition, the non-party company shall be liable for damages against the defendant in the event of a

2) Type of operation of the Defendant’s complex fertilizer plant

A) The Defendant’s complex fertilizer plant produces complex fertilizers by operating machinery equipment in the 1st to the 7th floor factories, and in the 2nd factory, the 1st to the 7th floor factories. The two producers are not independent, but each Ra’s same floor is connected with each other, and each Ra’s employees engaged in duties on the 7th floor.

B) On-site instruction systems of a complex fertilizer plant were conducted in the order of the head of the complex fertilizer team, the manager of the management department (the assistant of the secretary) , the shift leader of each group , and the shift leader of each group , and the on-site workers (the employees belonging to the defendant and the employees belonging to the non-party company). On-site workers were ordered by all the employees belonging to the defendant and the employees belonging to the non-party company to work on the day from the shift leader of each group , and completed the preparation of daily work days and the loading status of the combined fertilizer warehouse

C) The Plaintiffs, along with the employees belonging to the Defendant, organized and organized the composite fertilizer team organization pursuant to the Defendant’s “B, C, and D” list, and arranged and organized under each Article (8 hours, and worked for the 4th class (8 hours). Each Article was composed of 9 (10 persons where there is an intersection) including three employees belonging to the Defendant and the remaining employees of the non-party company, including the three employees belonging to the Defendant and the non-party company. The Defendant managed the organization of working hours and working hours of the employees belonging to the Defendant and the non-party employees belonging to the non-party company, and the said employees were placed in accordance with the Defendant’s work order.

D) Workers belonging to the non-party company were in charge of the duties of OF SITE (on-site drivers of the first floor), on-site drivers of the second and third floor, and on-site drivers of the fifth and sixth floor. Specifically, in the case of work with the on-site drivers belonging to the defendant, the non-party company conducted the duties of checking and maintaining the equipment of each floor for every two hours through cooperation without distinguishing the duties, and cleaning the removal of valves and pumps, sludge, and sludge.

E) On March 1, 2007, South Postal Promotion: (a) appointed Nonparty 1, the general secretary of the South friendly Promotion, to the general secretary of the field agent; (b) Nonparty 1 consulted on the principal duties with the Defendant’s labor officer, etc. and worked at the office of the South friendly Promotion Headquarters. On the other hand, on October 1, 2007, South Postal Promotion was an employee of the Defendant’s security guard team who works as the on-site agent, and was appointed Nonparty 2, Nonparty 3, Nonparty 4, Nonparty 5, and Nonparty 6, but the said on-site agent was merely designated as the on-site agent in preparation for emergency situations at night, and was on duty at the Defendant guard.

F) Although working clothes, safety shoes, etc. were paid by the non-party company, the non-party company was owned by the Defendant. The non-party company’s composite fertilizer plant, which is the working place, was paid by the Defendant, various working tools, such as insertings, electric piracys, grains, pipes, etc. (the above dust marries, heat stacks, etc. were kept in front of the atmosphere, so they could be employed by both the Defendant’s employees or the non-party company employees. The Defendant’s employees and the non-party company employees used the same transit bus.

3) The defendant's involvement in the work of the employees of the non-party company

A) The head of the Defendant Lottery Team, while carrying out a combined fertilizer plant, pointed out the tasks without the classification of the employees belonging to the Defendant and the employees belonging to the non-party company, and carried out safety education and job training for the said employees.

B) The Defendant management officer prepared the status of individual work attitude, and received confirmation from the head of the Defendant Lottery Team, took charge of the Plaintiffs’ commuting management, and approved the Plaintiffs’ overtime work, holidays, and vacations upon receiving a report. In extenuating circumstances, such as the suspension of the operation of a composite fertilizer plant, the Defendant manager did not approve the application for leave of the employees of the non-party company.

C) The defendant alternate leader (the defendant's third-class employee) was responsible for the duties to direct and supervise on-site workers and to guide and train subordinate employees, and reported the defendant's work attitude to the defendant's manager by recording his/her work attitude in his/her work site without distinction between the employees belonging to the defendant and the non-party company, and reported it to the defendant's manager, and made an order to work on-site workers.

D) The Defendant, by providing the Defendant’s employees and the employees belonging to the non-party company with circular assignment training, assigned the above workers to the assignment of the first floor drivers, the second and third floor drivers, the fifth and sixth floor drivers, and the third and sixth class drivers, etc.

E) If an occupational defect occurred due to the error of the employee of the non-party company, the employee prepared and submitted an explanatory note to the defendant, and the defendant directly assessed the non-party company's work and presented official commendation to the non-party company's employees.

[Based on the recognition] Evidence Nos. 2 through 64, Evidence Nos. 5, 6, and 18, Part of Evidence No. 8, and the purport of the whole pleadings

(c) Markets:

1) Whether the worker dispatch relationship exists or not

In full view of the facts acknowledged earlier and the following circumstances revealed by the evidence revealed, it is reasonable to view that the contract entered into between the Defendant and the Nonparty Company constitutes a temporary placement contract, and accordingly, the Plaintiffs were dispatched to the work site of the Defendant and was directly directed and supervised by the Defendant.

A) Details of the contract

(1) According to each contract document entered into between the non-party company and the defendant, the defendant is entitled to request the work as described in the contract document, but the part to which the contract was received is not clearly distinguishable from the work of the employee to which the defendant belongs.

(2) As the price for completion of the standard contract as of the end of each month, the contract cost is to be paid on the 10th of the following month, but this is not the result of the day, but the contract cost is to be paid on a monthly basis depending on the degree of labor provision for the employees belonging to the non-party company. There is no time period for the purpose

(3) In the event of a business defect, the defendant can demand the non-party company's liability for warranty and liability for damages. In fact, the defendant did not ask the non-party company for the warranty liability in relation to the defect part, although he received an explanatory note from the employees under his control.

B) The process of performance of duties

(1) At the work site of the defendant, employees belonging to the non-party company including the plaintiffs were assigned to work in the same group with the employees belonging to the defendant, and even in the scope of work, the non-party company was placed in each floor of the composite fertilizer factory that is organically connected to the defendant, and engaged in the inspection and maintenance of equipment and devices and the production of composite fertilizers in addition to the simple cleaning work. The employees belonging to the non-party company appears to have engaged in the above work in cooperation with the employees belonging to the defendant who are placed on each floor in the process of performing their work, and it is not deemed that they performed only the work after being assigned separate duties distinct from the work of the employee belonging to the defendant.

(2) On-site agents belonging to the non-party company did not work at the place of the defendant's work, and the manager of the defendant's work, together with the employees belonging to the non-party company, identified the work status, personnel status, etc. of the workers belonging to the non-party company and pointed out matters, and actually managed the workers belonging

(3) The Plaintiffs changed from a continental company to a promotion of South Korea, and the affiliation of Plaintiffs 1 and 3 was changed again to a continental company, but the duties performed were the same as the Defendant’s management and production of a complex fertilizer plant, and the wage and all of the conditions were succeeded to the changed company.

(4) The Defendant managed the working hours and work schedule of the employees belonging to the Defendant and the employees belonging to the non-party company, and the said employees provided labor accordingly.

(5) The Defendant managed the overtime work and leave work of the employees belonging to the non-party company, and when the employees belonging to the non-party company use leave, the Defendant obtained approval from the Defendant manager.

(6) In regard to this, the Defendant asserted that he exercised the right of inspection or instruction as a contractor, but considering that the Defendant determined working hours for workers belonging to the non-party company in addition to the work site and actually directed and supervised the contents of the work, it is reasonable to deem that it exceeded the limit of the right of instruction for contract. Therefore, the above argument is difficult to accept.

C) Eligibility of the contracting party;

(1) Some of the tasks assigned to the employees belonging to the non-party company did not require the contractor’s professional skills or worker’s skill as part of the tasks assigned to the non-party company, and did not have been put into work the non-party company’s own skills or capital in performing the production of multiple fertilizers required by the defendant.

(2) The work site was provided by the Defendant, and various work tools, such as insertings and electric sea machines, etc., and the Defendant paid them.

2) Application of the instant provision

A) According to the former Dispatch Act, a person who intends to engage in a temporary work agency business shall obtain the permission of the Minister of Labor as prescribed by the Ordinance of the Ministry of Labor (Article 7(1)5). Since the business of direct production in the manufacturing industry is excluded from the business of temporary placement of workers in principle (Article 5(1)6). As seen earlier, in this case, insofar as the contract between the defendant and the non-party company is a contract for temporary placement of workers in substance, it shall be deemed illegal temporary placement, and in this case, the provision of this case shall also apply (see Supreme Court en banc Decision 2007Du22320, Sept. 18, 2008).

B) Therefore, Plaintiff 1 and Plaintiff 2 are deemed to be employed respectively from July 1, 200, when two years have elapsed since the enforcement of each former Dispatch Act, and from January 17, 2002, from the day following the expiration of two years from the date of dispatch to the Defendant, respectively. In this case, the period of employment relationship is no longer determined based on the grounds that there are no special circumstances (see Supreme Court en banc Decision 2007Du22320, Sept. 18, 2008).

3) Defendant’s assertion and judgment

A) Claim on the change of temporary work agency

(1) The defendant's assertion

Even if the temporary placement relationship is established, the Plaintiffs clearly expressed their dissenting opinion refusing to apply the principle of employment by entering into a new employment contract with the changed temporary work agency after the date of employment deeming that the temporary work agency was changed under the instant provision, and thus, the said provision does not apply to the Plaintiffs pursuant to the proviso of the instant provision. Even if the instant provision applies to the Plaintiffs, the effect of employment deeming that the temporary work agency to which the Plaintiffs belong after the date of employment deeming that the temporary work agency to which the Plaintiffs belong was changed was extinguished. Furthermore, even if the validity of employment deeming that the employment deeming that the employment deeming period is more than two years after the user company clearly becomes aware of the change to which the employees were employed, the time of employment deeming that the employment deeming period was more than two years after the date when the user company becomes aware of the change to which the employees were employed. As such, from September 1, 2010 to September 1, 2008, and Plaintiff 2 is deemed to have been employed from March 1, 2003, respectively.

(2) Determination

As seen earlier, even if the Plaintiffs’ temporary work agency was changed after the effect of employment as seen earlier, so long as the Plaintiffs’ temporary work agency relationship was succeeded to between the Plaintiffs and the Defendant, there is no obstacle to recognizing the effect of direct employment as long as the Plaintiffs’ temporary work agency relationship was terminated as it is. However, if the temporary work agency changed without such reason, it is apprehended for the user company to abuse it and continuously conclude a contract by changing the temporary work agency, thereby allowing the user company to illegally use the dispatched workers in the long term, and thus, it cannot be seen as such. Furthermore, the change of the Plaintiffs’ temporary work agency to Plaintiff 1 and 3 by the promotion of South and North Korea is merely made by the Defendant, the user company, based on the conclusion of the contract with Nonparty Company and Cry system and the substance of the worker temporary work contract. Considering that it cannot be deemed that the Plaintiffs’ change of the Plaintiffs’ temporary work agency position at the time of employment with the changed temporary work agency after the change of the Plaintiffs’ temporary work agency, the Plaintiffs’ assertion that the changed employment contract concluded with the user company cannot be seen as the employer’s objection.

B) The argument regarding the principle of invalidation

(1) The Defendant brought the instant lawsuit on August 24, 201, which was 13 years after the former Dispatch Act came into force on July 1, 1998. The Defendant asserts that the exercise of the right is not allowed even if it is based on the principle of invalidation due to the exercise of the right after the Defendant made a legitimate expectation that the Plaintiffs would not exercise their right to claim wages.

(2) Considering that it was not easy for the Plaintiffs to file a claim for confirmation of the status of workers or a claim for wage payment against the Defendant at the location where the Defendant’s factory works, as seen earlier, the Plaintiffs filed a petition for illegal dispatch with the Gwangju Regional Labor Agency around February 21, 2008, where the Plaintiffs continued to work for the Defendant, and subsequently won the first lawsuit on October 1, 201, and subsequently won in the second instance of the first lawsuit on October 24, 201, it cannot be deemed as the exercise of rights against the principle of invalidation. The Defendant’s assertion on this part is without merit.

C) Relevant argument as to speech and good faith principle

(1) On January 21, 2009, the defendant asserted that the plaintiff 1 and the plaintiff 3 filed an application for unfair dismissal with the Jeonnam Regional Labor Relations Commission for dismissal, and received an order of reinstatement on April 3, 2009. On September 7, 2009, the above plaintiffs filed a claim for unpaid wages against the Coco system, thereby claiming that the above plaintiffs' user is the Cocoa system. However, in the lawsuit of this case, the defendant's assertion that the above plaintiffs are the employers is against the principle of speech and good faith, and thus, it is not permissible.

(2) Upon dismissal of Plaintiff 1 and Plaintiff 3 on January 21, 2009, the above plaintiffs filed an application for unfair dismissal with the Jeonnam Regional Labor Relations Commission, and returned to the Konam System in accordance with the above committee's order of restoration from the original position, as seen earlier. In full view of the overall purport of the pleadings in each of the statements in No. 3-1 through No. 5 of the evidence No. 3, the plaintiffs 1 and 3 filed a lawsuit against the Konam System on September 7, 2009, the Busan District Court 2009Da14988, the same court 2009Gau14971, and the same court 2009Gau14971, and the plaintiff's system is still pending in the appellate court as of September 7, 2009.

(3) However, as revealed in the facts acknowledged earlier, ① on January 21, 2009, before the dismissal from the Cocoa system, Plaintiff 1 and Plaintiff 3 asserted the status of the employee, such as requesting confirmation of the status of the employee, etc., and ② Plaintiff 1 and Plaintiff 3 filed a claim for unfair dismissal and remedy against the Cocoa system against the above Plaintiffs, as temporary agency workers, were placed in an unstable legal position because it is unclear whether the above Plaintiffs are entitled to receive wages from the Defendant on the premise that a labor contract relationship exists with the Defendant under the application of the provision of this case as the temporary agency workers. Accordingly, both the Defendant and the Cocoa system were refused to pay wages to secure the survival of the above Plaintiffs, and it is merely against the Cocoa system that was actually entered into an actual labor contract in order to secure the wages of the above Plaintiffs (and the other party asserts that there was a labor contract relationship with the above Plaintiffs, and thus, it cannot be viewed that the above Plaintiffs did not seek the payment of wages again against the Defendant.

4. Determination on the claim for wages

A. The parties' assertion

1) The plaintiffs

In the event that the instant provision is applied and a labor contract relationship between the Plaintiffs and the Defendant is established, working conditions such as wages shall be applied to workers performing the same or similar kind of work as the Plaintiffs, and the Plaintiffs’ wages to be paid to the Plaintiffs shall be calculated based on the Defendant’s employment rules and the part applied to class 4 on-site operators among the employees belonging to the Defendant, as they perform the same or similar work as class 4 on-site operators.

2) Defendant

A) Even if the instant provision is applied and a labor contract relationship between the Plaintiffs and the Defendant is established, the former Dispatch Act only provides for the instant provision on deeming employment, but does not provide for working conditions. Therefore, with respect to the Plaintiffs’ working conditions, the wage should be calculated by applying, as it is, the working conditions set between the Plaintiffs and the Nonparty Company.

B) Even if the Plaintiffs and the Defendant newly set the working conditions, the Plaintiffs’ wages to be paid to the Plaintiffs should be calculated on the basis of the Defendant’s employment rules and the part applied to the on-site driver under the collective agreement, as they were to perform the same or similar work as the on-site operator of the Defendant’s day duty (off duty2).

C) Even if the Plaintiffs, as alleged by the Plaintiffs, performed the same or similar duties as the class 4 on-site operators belonging to the Defendant, the Defendant proceeds from the employment process by two methods of open recruitment and screening. Since the Plaintiffs are employed by screening, the wages to be paid to the Plaintiffs should be calculated on the basis of the portion applied to the screening employees.

B. Determination

1) Working conditions where the instant provision applies

Article 6-2 (3) of the Act on the Protection, etc. of Temporary Agency Workers newly established on December 21, 2006 provides that “If a temporary agency worker needs to use the temporary agency worker continuously for more than two years and the worker is engaged in the same or similar work as the temporary agency worker, working conditions shall apply to the temporary agency worker.” However, the purpose of the amendment is to enhance the protection of temporary agency workers and to prevent unreasonable discrimination against the temporary agency worker, and to prevent the abuse of the temporary agency worker contract by the user company and the temporary agency worker's temporary agency worker's temporary agency worker's temporary agency worker's temporary agency worker's temporary agency worker's temporary agency worker's temporary agency worker's temporary agency worker's temporary agency worker's temporary agency worker's temporary agency worker's temporary agency worker's temporary agency worker's temporary agency worker's temporary agency worker's temporary agency worker's temporary agency worker's temporary agency worker's temporary agency worker's temporary agency worker's temporary agency worker's temporary agency worker's work.”

2) Working conditions applicable to the plaintiffs

A) Facts of recognition

(1) At the time of January 1, 2002, the Defendant’s position was classified into class 3 or higher, class 4 (on-site drivers, office workers), daily work workers (on-site drivers, on-site drivers, wharf cleaning stations, and cooking stations, etc.) (1).

(2) At the time of January 1, 2002, the Defendant’s composite fertilizer factory, 12 workers belonging to the non-party company, including the 17th class 4th class on-site operators and the plaintiffs, had worked for the above factory, and the plaintiffs did not have been placed for the above factory while working for the defendant.

(3) The Plaintiffs and the employees belonging to the Defendant were organized into the composite fertilizer team organization in accordance with the Defendant’s “B-C’s “B-D Organization List” and arranged and organized under Article A, B-C, and D. Each section was subdivided into a shift officer, a Board 1, 2, a master, a first floor on-site driving officer, a second and third floor on-site driving officer, a fifth and sixth floor on-site driving officer, and a person in charge of the duties of OF SITE. The employees belonging to the Defendant, who are assigned to the duties of the on-site driving staff of each of these floors, were class 4 on-site driving personnel. Meanwhile, the Plaintiffs were assigned to the on-site driving personnel of the second and third floor, the fifth and sixth floor on-site driving personnel, and the 1st floor on-site driving personnel of the Defendant, the employees belonging to the Defendant and the employees belonging to Nonparty 1 and the employees belonging to Nonparty 5 on-site driving personnel, and the employees belonging to Nonparty 1 and Nonparty 5 on-site driving personnel.

(4) Workers belonging to the non-party company, including the plaintiffs, and employees belonging to the defendant, shall prepare a daily work log for each assigned area and obtain approval from the defendant manager, and received safety education and job training from the defendant shift commander.

(5) Article 7 of the Personnel Regulations provides that “In principle, an employee shall be employed through open competitive notice,” and Article 9(1) provides that “If a person falling under any of the following subparagraphs is employed, he/she may be employed through screening” and each of the following subparagraphs provides that a person who has rendered distinguished services to the State and his/her bereaved family members (title 1), a person who has rendered distinguished services to the State under the Act on the Honorable Treatment, etc. of Persons of Distinguished Services to the State, a person holding a certificate of special occupational category (title 2), and a person who is deemed particularly necessary for the operation of the company

(6) The Defendant was employed as a Grade 4 on-site driver without requiring a special career or certificate of qualification from among the graduates who have completed military service. The Defendant was employed as a Grade 4 on-site driver through open competitive employment around 191 by ten workers belonging to a continental enterprise.

(7) On February 1, 2008, the Defendant excluded the employees of the non-party company including the Plaintiffs from the complex fertilizer plant. At that time, the employees of the non-party company were employed on behalf of the employees of the non-party company at Grade 4 on-site driving.

[Basis] Evidence Nos. 3, 80, Eul Nos. 12, 16, 17, and 19, and the purport of the whole pleadings

B) Determination

(1) In full view of the following circumstances, it is reasonable to view that the working conditions applicable to the Plaintiffs apply to class 4 on-site operators among the collective agreements concluded between the Defendant’s rules of employment and the labor union consisting of the Defendant’s employees and the Defendant’s employees.

(A) At the Defendant’s work site, the Plaintiffs were assigned to work in the same group with the employees belonging to the Defendant, and were placed in each floor of a complex fertilizer plant with the employees belonging to the Defendant, and performed the work of checking and managing each floor machinery and tools, producing complex fertilizers, and cleaning garbages, such as sludges. In this case, the Plaintiffs appear to have performed the work such as the Defendant’s Class 4 on-site driver under the contract between the Defendant and the non-party company, as stipulated in the contract between the Defendant and the non-party company, and do not seem to have performed the work only after being assigned a separate work from the Class 4 on-site driver under the jurisdiction

(B) On-site drivers and the Plaintiffs, who belong to the Defendant, received safety education and job training from the head of the Defendant’s alternate department. The content of such education appears to be identical, and it does not seem that the content of education differs from that of the Defendant or the Nonparty Company.

(C) The defendant placed only those who have a class of class 4 or higher at a complex fertilizer factory or workers belonging to the non-party company including the plaintiffs, and there is no placement of a daily on-site driver.

(D) Whether the employment has been made through a screening as to whether the employment has been made through open recruitment is not related to the same or similar type of business, and the defendant shall, in principle, employ a class 4 on-site operator through open competition notice, and the employment is made only once there is a person who meets the requirements, and it shall not be deemed that the plaintiffs are subject to screening.

(2) Therefore, the defendant is obligated to pay the amount of wages calculated under the above rules of employment and collective agreement from September 1, 2008, which the plaintiffs sought from September 1, 2008 to the reinstatement of the plaintiffs, less the amount equivalent to the wages the plaintiffs received from the non-party company (the defendant has a defense that the three years elapsed retroactively from the date of filing the lawsuit among the plaintiffs' claim for wages, and the three years elapsed retroactively from August 24, 201, the plaintiffs claim only wages for three years retroactively from August 24, 201, which is the date of filing the lawsuit in this case. Thus, the defendants' defense is without merit).

(c)the calculation of a specific amount;

1) Determination of wages by item

Based on the premise that Plaintiff 1 and Plaintiff 2 were newly admitted to the Defendant on July 1, 200, and Plaintiff 3 on January 17, 2002, respectively, the criteria for the calculation of wages under the rules of employment and collective agreement of the Defendant to be applied to the Plaintiffs are as follows. The wage amount by item and the detailed calculation details by item under this criteria are as shown in the corresponding column of each of the attached Table.

(1) Basic wages:

Under Article 5(1) of the Regulations on Employee Remuneration and Retirement Allowance, the basic salary of class 4 refers to the salary class on the salary table of the 2008 professional engineer in accordance with Article 5(1) of the Defendant’s Regulations. In the case of the Plaintiffs, since the Plaintiffs performed the same kind of work for at least two years at the time of employment deeming that they performed the same work for at least 2 years, the Plaintiffs’ salary class is calculated by recognizing the career experience corresponding to 16 months under Article 12 of the Rules on Personnel Management of the Defendant (i.e., 24 months x 70% x a small number of employees) and calculating the salary class, and reflecting the details of the wage class on March 2, 2010 and December 2011, the amount is as stated in the “basic salary

(2) Vocational class:

According to Article 5 (2) of the Rules on Employee Remuneration and Retirement Allowance of the Defendant, occupational salary refers to the amount obtained by subtracting the basic salary of the corresponding salary from the standard remuneration (in the beginning salary). Accordingly, the Plaintiffs’ occupational salary shall be calculated by subtracting the amount of KRW 529,100 from the basic salary of initial salary from KRW 938,100, which is the basic salary of initial salary (public) in 2008.

(3) Various allowances.

Working environment allowance for △△: 60,000 won per month (Article 11 and attached Table 5 of the Rules on the Payment of Employees’ Remuneration)

△△△ Allowances: 30,000 won per month (Article 8 of the Rules on the Payment of Employees’ Remuneration)

Seoul High School: 125,000 won per month (Article 13 of the Rules on the Payment of Employees’ Remuneration)

Family Allowances for △△: 60,000 won per month (Article 9 of the Rules on the Payment of Employees’ Remuneration)

Environmental Health Allowances: 3% (Article 18 of the Rules on the Payment of Employees’ Remuneration) of the monthly standard remuneration (basic pay + functional pay)

The △△ Military Force Training Expenses: annual “(monthly standard remuneration + Environmental Health Allowances) 】 300% (Article 20(2) of the Employee Remuneration Rules), and the amount calculated by dividing the above amount by 12 months for the convenience of calculation shall be deemed to have been paid every month.

(4) Bonuses.

The defendant shall pay 600% of the sum of the environmental health allowances as annual bonus on the monthly standard remuneration (Article 19(2) of the Rules on the Payment of Employees' Remuneration), and shall be deemed to have received every month the amount calculated by the methods of "(monthly standard remuneration + environmental health allowances + 600% ± 12" for the convenience of calculation.

(5) Night work allowances.

The Plaintiffs’ monthly ordinary wage is calculated by the method of “standard remuneration + work environment allowance + site allowance + bonus to be monthly + physical training allowance to be monthly + hourly average wage.” The amount calculated by dividing it by 179 hours per month prescribed in Article 50(2) of the collective agreement. Meanwhile, the Plaintiffs are 32 hours for night work per working period (16 days) (4 hours at night work x 7 hours + 4 hours at night x 4 days x 1 hour) and such work period is repeated on January 9 of each month (365 days ± 16 months ± 12 months, and small number of places hereinafter). Accordingly, each night work allowance for the Plaintiffs is stated in the separate sheet.

(6) Annual leave allowances:

The annual leave allowance occurs in cases where an employee fails to use his/her annual leave after acquiring the annual leave right, and where the above annual leave is used all, he/she cannot claim the annual leave allowance. However, there is no evidence to recognize that the Plaintiffs did not use or would not use the prescribed annual leave, such as that assertion, the annual leave allowance does not include the scope of unpaid wages.

[Reasons for Recognition] Facts without dispute, Gap's 3, 65 through 72, 79, 80 evidence, Eul's 2, 3, 12 through 14, 16, 17, 19, and the purport of the whole pleadings

2) Timing of payment of wages

The plaintiffs claim wages on the premise that the wages are paid on the last day of the month, and the defendant does not explicitly dispute such claim. Thus, the defendant is deemed to have led to confession as to the last day of the month.

3) Wages from September 1, 2008 to December 31, 2011

The amount received by Plaintiffs 1 and 3 from the non-party company from September 1, 2008 to July 18, 2009 and the amount received by Plaintiff 2 from September 1, 2008 to May 21, 2009 are the same as the amount indicated in the “existing payment” column in the attached Table, so there is no dispute between the parties. Thus, when calculating each of the Plaintiffs’ respective wages from September 1, 2008 to December 31, 201, it is as stated in the “total amount of delayed payment” column in the attached Table.

4) Each wage from January 1, 2012 to the Plaintiffs’ reinstatement.

In addition, the Defendant is obligated to pay the Plaintiffs the amount of wages from January 1, 2012 to December 31, 201, in addition to the unpaid wages from September 1, 2008 to December 31, 201, which the Plaintiffs seek in lump sum. In computing the wages after January 1, 2012, the Plaintiffs 1 and 2: (i) monthly 3,695,950 won + working environment allowances of KRW 60,00 + KRW 30,000 + KRW 30,000 + KRW 30,000 + KRW 60, KRW 30,000 + KRW 60, KRW 40, KRW 00 + KRW 60, KRW 30,000 + KRW 60, KRW 40,000 + KRW 30,000 + KRW 30,000 + KRW 48,360, KRW 305,536,00.

D. Sub-determination

(3) With respect to 15,07,163 won and 43 won which are 10.1.2, with respect to 2.10 to 3.2, with respect to 10.2, with respect to 10,40,000 won and 10.2, with respect to 10 to 2.3,000 won which are 10.2, with respect to 2,000 won and 10.3,00 won per annum from 10 to 16.2, with respect to 2,000 won which are 10.3,00 won per annum 2,000 to 16.3,00 won per annum 2,000,000 won per annum 2,00 to 10.3,00 won per annum 16,000 to 2,00 won per annum 16.3,00 won per annum 2,00 won per annum 2,00 won per annum

5. Conclusion

Therefore, the plaintiffs' claims of this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. However, the judgment of the court of first instance is justifiable with the conclusion as above. Therefore, the defendant's appeal is dismissed as it is without merit.

[Attachment Omission]

Judges Kim Jong-tae (Presiding Judge)

(1) Article 6 (Period of Dispatch) (3) Where a user company continues to use a temporary agency worker more than two years, it shall be deemed that the temporary agency worker is employed from the day following the expiry of the two-year period: Provided, That this shall not apply where the relevant temporary agency worker explicitly expresses his/her objection.

2) From around 2004, the content of the contract agreement on the basis of the contract was related to the management of complex fertilizer plant facilities, reaction facility management, D/F facility management, ancillary facility management, and management of tiny water treatment facilities. In light of the detailed contents of the business of managing complex fertilizer plant facilities management, it was conducted to check, manage, and clean various equipment and facilities on each floor of the complex fertilizer plant. This is almost similar to the above business set forth in the contract agreement around 200 and around 2001.

Note 3) Since 2004, the contract amount was set in accordance with the Defendant’s standards for the performance of fertilizer production.

4) According to the statements in Gap evidence Nos. 33-1, 2, and 34, the plaintiff 1 and the plaintiff 2 received an official commendation from each male e-mail promotion on December 28, 2007, and on December 29, 2006, their affiliation was stated as the "Dispatched Business Department", and on February 27, 2007, the plaintiff 2 discovered early from the defendant that the combined fertilizer factory Dra was separated from the defendant's mother's panty, thereby receiving an excellent level of safety after being recognized as having contributed to the safety operation of factories and the prevention of industrial accidents.

(5) Article 7 (Permission for Temporary Work Agency) (1) A person who intends to engage in temporary work agency business shall obtain permission from the Minister of Labor, as prescribed by the Ordinance of the Ministry of Labor. The same shall also apply to any change in important matters prescribed by the Ordinance of the Ministry

(1) Article 5 (Business Eligible for Dispatch of Workers) (1) Temporary work agency business is subject to those affairs prescribed by Presidential Decree, which require specialized knowledge, skills, or experience, except for the direct production and process of manufacturing business.

Note 7) In 2008, the title was changed to the general specialist in 2008, and in 2010, the title was changed to the special service.

8) A daily on-site driver employed mainly from among veterans, and only six persons assigned to maintenance, safety (fire fighting), quality team, and early mountain team.