[1] The method of determining who is liable to a certain employee for an employer under Articles 32 and 36 of the Labor Standards Act

[2] Whether a person who received remuneration from a large-scale discount supplier operated by an agricultural cooperative and manages the entire goods supplied to the cooperative constitutes a worker who is actually employed by the cooperative (affirmative)

[1] Determination of whether a worker is a worker under the Labor Standards Act shall be based on whether a worker provided labor in a subordinate relationship with the employer for the purpose of wage regardless of the form of a contract. Determination of whether a worker is a worker under the Labor Standards Act shall be made by comprehensively taking into account the following: (a) whether the content of work is determined by the employer; (b) whether the employer is subject to specific direction and supervision from the employer; (c) whether the working hours and place of work are designated by the employer; (d) ownership of equipment, raw materials, work tools, etc.; (e) whether the remuneration has a characteristic of the subject of work itself; (e) whether the basic salary or fixed wage is determined; (e) whether the wage has been withheld from the wage and salary tax; (e) whether the worker has continued to provide labor and the degree of exclusive employment to the employer; and (e) whether the worker has the economic and social conditions of the Parties in determining whether the employer bears the obligation under Articles 32 and 36 of the Labor Standards Act; and (e) whether the employer is a worker should be determined based on the type of contract or relevant laws.

[2] A person who manages the entire goods supplied to the agricultural cooperative with remuneration from a large-scale discount supplier operated by the agricultural cooperative constitutes a worker employed by the above cooperative.

[1] Articles 14, 15, 32, and 36 of the Labor Standards Act / [2] Articles 14, 15, 32, and 36 of the Labor Standards Act

Defendant

Defendant

Changwon Law Firm, Attorneys White-Gyeong et al.

Changwon District Court Decision 2005No1794 decided Dec. 21, 2005

The appeal is dismissed.

The grounds of appeal are examined.

Determination of whether a worker is a worker under the Labor Standards Act shall be based on whether a worker provides labor in a subordinate relationship with the employer for the purpose of wages regardless of the form of a contract. Determination of whether a worker is a worker under the rules of employment, service regulations, personnel regulations, etc., and is subject to specific and direct command and supervision from the employer in the course of performing his/her duties, whether the employer is designated working hours and working place, whether the remuneration is in the possession of equipment, raw materials, work tools, etc., whether the wage has the nature of the worker itself as a subject of work, whether the basic wage or fixed wage is determined, whether the wage has the nature of the worker itself, whether the wage is withheld from the wage tax, whether the status of the worker is recognized as a worker under other Acts and subordinate statutes, such as the continuity and degree of the labor provision relationship, whether the worker is exclusive to the employer, and whether the economic and social conditions of the Parties should be comprehensively considered. Determination of whether a worker bears the obligation under Articles 32 and 36 of the Labor Standards Act should be made based on the type of contract or related laws and regulations.

According to the evidence duly employed by the court below and the court of first instance maintained by the court below, the employees of the agricultural cooperative (title omitted) determined whether the complainants work commencement, amount of remuneration and payment method, details of leave, management of commuting to and from work, and leave relations, and the complainants performed their duties such as display and inventory inspection, large cleaning, warehouse adjustment, sales assistance, etc. in the direct trade market outside the above agricultural cooperative. In light of the above legal principles, although the complainants did not have concluded an explicit employment contract between the above cooperative, they are actually employed by the above cooperative and are subject to command and supervision, and the defendant, the representative of the above agricultural cooperative, is the employer who bears the duty under Articles 32 and 36 of the Labor Standards Act with respect to the complainants, and the amount paid by the suppliers to the complainants, not the employer, but the funds paid by the suppliers, shall be deemed to have been borne by the labor union and the product display expenses required by the above agreement.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to workers, employers, and violation of the rules of evidence.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)