2015Da254873 Wages

Plaintiff 1 and six others

Attorney Lee Jae-in, Counsel for the plaintiff-appellant

Daejeon Cultural Broadcasting Corporation

Law Firm LLC (LLC, Attorneys Park Sang-hoon et al., Counsel for the plaintiff-appellant-appellant)

Daejeon High Court Decision 201411589 Decided November 26, 2015

December 24, 2019

The part of the lower judgment against the Plaintiffs is reversed, and that part of the case is remanded to the Daejeon High Court.

All of the Defendant’s appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Judgment on the ground of appeal No. 1 by the plaintiffs

A. 1) Article 4(2) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “ Fixed-Term Act”) provides that “If an employer employs a fixed-term worker for more than two years despite the absence or extinguishment of the grounds under the proviso of paragraph (1), the fixed-term worker shall be deemed an employee who has entered into an employment contract without a fixed period of time.” Under such provision, with respect to the working conditions of an employee deemed to have entered into an employment contract without a fixed period of time, the rules of employment, etc. are equally applied unless otherwise specified. The specific reasons are as follows: (a) Article 4(2) of the Fixed-term and Part-Time Workers Act provides that the effect when an employer employs a fixed-term worker for more than two years; or (b) Article 8(1) of the Act provides that the remaining working conditions except for the fixed-term worker are valid, the employer shall not be deemed to have entered into an employment contract with the same or similar terms and conditions as the fixed-term worker under the Act on the Protection, etc. of Fixed-term Workers.

C) The purpose of strengthening the protection of the working conditions of fixed-term workers to contribute to the sound development of the labor market is to limit the term of employment of fixed-term workers to two years in principle, and instead to put a penal provision on such violations, to consider them as an employee who has entered into an employment contract without a fixed period of time (Articles 1 and 4(1) and (2)). In full view of the purpose of the fixed-term employment law, the structure and purport of the relevant regulations, the developments leading up to the enactment thereof, etc., if an employee enters into an employment contract without a fixed period of time engaged in the same or similar work within the employer’s business or workplace, it is reasonable to interpret that Article 97 of the Labor Standards Act equally applies to an employee who is deemed to have entered into an employment contract without a fixed period of time pursuant to Article 4(2) of the Fixed-term Employment Act, applicable to the said employee, barring any other special circumstances. Article 97 of the Labor Standards Act provides that a labor contract which falls short of the standards set by the rules of employment should be null and void.

B. The reasoning of the lower judgment and the record reveal the following. (1) The Plaintiffs were employed as fixed-term workers in the Defendant Company, and were regarded as a worker who entered into an employment contract without a fixed period of time between March 2010 and July 201, pursuant to Article 4(2) of the Fixed-term Workers Act.

2) The Defendant’s rules of employment, the personnel regulations based thereon, and the remuneration regulations have been applied differently to all the employees who concluded an employment contract without a fixed period of time (hereinafter “regular employees”) who had existed before they were deemed workers who concluded an employment contract without a fixed period of time.

3) From July 1, 2007, the enforcement of the Fixed-term Employment Act, to the date of the closing of argument in the lower court, the Defendant did not separately establish the rules of employment setting the working conditions of those deemed workers who have concluded an employment contract with no fixed period as the Plaintiffs. 4) Even after deeming the Plaintiffs as workers who have concluded an employment contract with no fixed period of time, the Defendant paid wages after preparing an employment contract in the same form as at the time they were fixed-term workers. Accordingly, compared to the full-time workers to whom the Defendant’s rules of employment, etc. apply, the Plaintiffs received basic wages and bonuses only 80%, and were not paid for continuous service allowances, and the self-driving subsidies were paid less than KRW 100,000 per month, and did not receive a regular salary class after May 2012.

5) Meanwhile, compared with regular workers who provide labor in the same department as the plaintiffs, there was no particular difference in terms of the content and scope of work, quality and quantity of work, etc.

C. Examining these circumstances in light of the aforementioned legal principles, the Plaintiffs deemed to have concluded a non-fixed-term employment contract pursuant to Article 4(2) of the Fixed-term Employment Act shall be deemed to have taken charge of the same position within the same department and apply the working conditions stipulated in the Defendant’s employment rules, etc., which apply to regular workers providing the same kind of work. Accordingly, the part of an employment contract which stipulates working conditions that fall short of the criteria stipulated in the Defendant’s employment rules, etc. is null and void, and the relevant part is subject to the criteria stipulated in the employment rules, etc., and thus, the Plaintiffs should be paid basic wages, bonuses, continuous service allowances, and self

D. Nevertheless, the lower court determined that the Defendant’s employment rules, etc. do not apply to the Plaintiffs on the sole basis of the circumstances indicated in its holding, and rejected the Plaintiffs’ claim seeking reimbursement of the difference on the ground that payment of basic wages and bonuses below regular workers does not violate Article 6 of the Labor Standards Act. In so determining, the lower court erred by misapprehending the legal doctrine on the working conditions, etc. of workers deemed to have concluded an employment contract without a fixed period of time under Article 4(2) of the Fixed-Term Workers Act, thereby adversely affecting the conclusion

2. Judgment on the Defendant’s grounds of appeal

The Defendant’s assertion in the grounds of appeal is premised on the premise that the Defendant’s employment rules, etc. are not applied to the Plaintiffs. As such, the lower court erred by misapprehending the legal principles on the interpretation of labor contract, Article 6 of the Labor Standards Act, the determination of social status, and the reasonable grounds for discrimination in determining that the Defendant is obligated to provide the Plaintiffs with continuous service allowances and self-driving subsidies.

However, as seen earlier, the Defendant’s rules of employment are applied to the Plaintiffs, and as a result, the Plaintiffs should be paid basic pay, bonus, continuous service allowance, and self-driving subsidy according to the criteria set by the Defendant’s rules of employment, and regular salary pay. Ultimately, the Defendant’s assertion in the grounds of appeal on a different premise is without merit without further review.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the plaintiffs, the part against the plaintiffs among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The defendant's appeal is dismissed in its entirety as it is without merit. It is so decided as per Disposition by the assent of

Justices Kim Jae-hyung

Justices Min Min-young

Justices Lee In-bok and Lee Dong-won