[1] Whether golf course capital constitutes a worker under the Labor Standards Act (negative)

[2] The person who bears the burden of proving that an employer’s act constitutes an unfair labor practice under the Trade Union and Labor Relations Adjustment Act (i.e., an employee or a trade union) and where disciplinary action is taken due to a legitimate ground for dismissal of disciplinary action, whether the employer constitutes an unfair labor practice solely on the ground that the employer has a trace of causing the worker’s union

[3] In a case where golf course capital Gap et al. received disciplinary action from Eul Co., Ltd. which operated a golf course and sought confirmation of invalidity of disciplinary action against Eul, the case affirming the judgment below that although Gap et al. did not constitute a worker under the Labor Standards Act, it can be recognized as an employee under the Trade Union and Labor Relations Adjustment Act

[4] In a case where a person in a position to substantially and specifically control and decide basic labor conditions, etc. of workers engaged in an act of controlling or intervening in the organization or operation of a labor union, whether such person is an employer subject to an order to remedy unfair labor practices (affirmative)

[1] The golf course’s work does not entirely enter into a labor supply contract, such as an employment contract and employment contract, with the golf course operator. ② The golf course’s work does not include the provision of services to the visitors as a matter of course, and ② the provision of services by gyddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd used used

[2] Whether an employer’s act constitutes an unfair labor practice under the Trade Union and Labor Relations Adjustment Act (hereinafter “Labor Relations Adjustment Act”) is proved by the employee or the trade union asserting such act. Thus, even after conducting necessary hearings, in a case where it is impossible to determine the existence of an employer’s intent to engage in unfair labor practice because it is unclear, the risk or disadvantage resulting therefrom should be borne by the employee or the trade union asserting such intent. In addition, as long as an employer took disciplinary action upon dismissal of an employee due to a legitimate ground for dismissal of the employee, the employer has a negative figure of causing the employee’s failure to engage in the labor union activity, the ground alone does not lead to the conclusion that the dismissal of the employer constitutes an unfair labor practice under the Trade Union

[3] In a case where golf course capital Gap et al. received disciplinary action from Eul Co., Ltd. which operated a golf course and sought confirmation of invalidity of disciplinary action against Eul, the case affirming the judgment below which held that although Gap et al. cannot be viewed as a worker under the Labor Standards Act who provided labor to Eul for the purpose of earning wages, it can be recognized as an employee under the Trade Union and Labor Relations Adjustment Act.

[4] If an employer who employs workers with respect to the basic labor conditions, etc. commits an act as prescribed by Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act by controlling or participating in the organization or operation of a trade union, then the employer is an employer subject to an order for remedy ordering correction.

[1] Article 2 (1) 1 of the Labor Standards Act / [2] Article 81 of the Trade Union and Labor Relations Adjustment Act, Article 23 (1) of the Labor Standards Act / [3] Article 2 (1) 1 of the Labor Standards Act, Article 2 subparagraph 1 of the Trade Union and Labor Relations Adjustment Act / [4] Articles 2 subparagraph 2, 81 subparagraph 4, and 84 (1) of the Trade Union and Labor Relations Adjustment

[1] Supreme Court Decision 95Nu13432 Decided July 30, 1996 (Gong1996Ha, 2697) / [2] Supreme Court Decision 94Nu3001 Decided December 23, 1994 (Gong1995Sang, 691) Supreme Court Decision 2009Du9574 Decided July 28, 201 / [4] Supreme Court Decision 2007Du8881 Decided March 25, 201 (Gong2010Sang, 823)

Plaintiff 1 and 37 others (Law Firm LLC et al., Counsel for the plaintiff-appellant)

Plaintiff 38 et al.

8. Tourist Development Co., Ltd. (Law Firm Barun et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2009Na112116 decided August 26, 201

All appeals are dismissed. The costs of appeal by Plaintiffs 38, 39, and 40 are assessed against the above Plaintiffs, and the costs of appeal by the Defendant are assessed against the Defendant.

The grounds of appeal are examined.

1. As to the grounds of appeal by Plaintiffs 38, 39, and 40

A. Whether the employee is a worker under the Labor Standards Act

The issue of whether a worker is a worker under the Labor Standards Act (hereinafter referred to as the “Labor Standards Act”) shall be determined depending on whether the form of a contract is an employment contract or a contract for employment, and whether a worker has a subordinate relationship with an employer for the purpose of wages. Whether a dependent relationship is determined as above shall be determined by the employer’s contents of work, and whether the employer has a considerable direction and supervision in the course of performing work under the rules of employment or employment regulations, etc., whether the employer is bound by the employer, whether the employer is capable of operating his/her business on his/her own account, whether the employer owns equipment, raw materials, working tools, etc., or has a third party employed to act on behalf of the employer, and whether the employer has a superior economic and social status, such as the creation of profits and losses through the provision of labor, whether the nature of remuneration was determined by the basic salary or fixed wage, whether the wage was determined by withholding the wage and salary income tax, whether the relationship with the provision was exclusive to the employer, and whether the status of the employee was recognized as a social security system.

On the other hand, capitals worked at golf courses do not enter into a labor contract, employment contract, etc. with the operator of golf courses, and ② The sports support service by glddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd.

The lower court determined that, on the grounds stated in its reasoning, although capitals provide labor to the Defendant in a certain subordinate relationship, the other party to the sports supporting service, which is the main labor, shall be the golf course user directly paying capital, and the purpose of part of labor directly provided to the Defendant is merely an incidental work conducted by the Defendant in return for receiving the opportunity to enter and use the golf course in this case, and thus, it cannot be viewed as a labor provision for the purpose of wage. Therefore, it is difficult to view that capitals, such as the Plaintiffs, do not necessarily constitute a labor provider with a direct need to protect to the extent that they should be fully applied to the various protection systems under the Labor Standards Act, under the management and supervision of the State, for the purpose of wage purposes, the Plaintiffs cannot be deemed workers under the Labor Standards Act that provide labor to the Defendant.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and the evidence duly admitted by the court below, the above recognition and judgment of the court below are just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles as to the concept of workers under the Labor Standards Act and by omitting judgment as to the implied delegation assertion as to the payment

B. Whether to conduct unfair labor practices under the Trade Union and Labor Relations Adjustment Act

Inasmuch as an employer’s act constitutes an unfair labor practice under the Trade Union and Labor Relations Adjustment Act (hereinafter “Labor Relations Adjustment Act”), the employer bears the burden of proving that the employer’s act constitutes an unfair labor practice under the Trade Union and Labor Relations Adjustment Act. Therefore, even after having undergone necessary hearings, if it is unclear whether the employer has intended to engage in unfair labor practice and it is impossible to determine the existence thereof, the risks or disadvantages arising therefrom should be borne by the employee or the trade union asserting such intent (see Supreme Court Decision 2009Du9574, Jul. 28, 2011). Furthermore, as long as the employer took disciplinary action against the dismissal of an employee on the ground that there is a legitimate ground for disciplinary action, the employer has been slicking against the dismissal of the employee, which alone does not constitute an unfair labor practice under the Trade Union and Labor Relations Adjustment Act by abuse of the right to disciplinary action (see Supreme Court Decision 94Nu3001, Dec. 23, 1994).

The court below determined that since the above plaintiffs' activities of a trade union should be permitted to the extent that they do not interfere with normal competition operation, it is hard to conclude that the above plaintiffs' requests for the determination is not likely to interfere with normal competition operation, since it is difficult to easily predict the degree of demand for capitals during the period of two months or more or more, and it is difficult to conclude that the above plaintiffs' requests for the determination is not likely to cause interference with normal competition operation, and thus, it is difficult to recognize the fact that the documents related to the request for the determination set forth by the above plaintiffs specified the period of the determination for a long time, and did not include specific partnership activities, and that Article 10 of the collective agreement concluded between the defendant and the trade union of this case should be allowed to the extent that it does not interfere with normal competition operation. Thus, the court below determined that the defendant did not permit the resolution under such circumstances, and it is difficult to conclude that the above plaintiffs' activities of a trade union were conducted by ordering the above plaintiffs to act without permission for the resolution of the resolution without permission.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and the evidence duly admitted by the court below, the above recognition and judgment of the court below are justified. Contrary to the allegations in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles on unfair labor

C. Whether it constitutes an anti-social juristic act, good faith or abuse of rights

Examining the reasoning of the judgment below in light of the records, the decision of the court below that the defendant's expulsion measures against the above plaintiffs pursuant to the business assistant rules of this case are not against the good faith principle or it is difficult to view that the defendant abused power as to sanctions prescribed by the business assistant rules of this case, is just, and there is no violation of law such as failing to exhaust all necessary deliberations or misunderstanding of the legal principles as to anti-social legal acts, good faith or abuse of rights,

2. As to the Defendant’s grounds of appeal on the remaining Plaintiffs except Plaintiff 38, 39, 40, and 41

A. Whether to be an employee under the Labor Relations Adjustment Act

Workers under the Trade Union and Labor Relations Adjustment Act refers to those who engage in labor and live in a life by receiving wages, etc. in return under the employment relationship with others. The employment-subsidiary relationship is determined by the actual relationship between the employer and the provider of labor regardless of the form of the relevant labor supply contract, such as employment, contract, delegation, and lifeless contract (see, e.g., Supreme Court Decisions 90Nu1731, May 25, 1993; 2005Da64385, Oct. 13, 2006).

The court below presumed that since workers under the Trade Union and Labor Relations Adjustment Act do not require a direct labor contract, it is not required to have a labor contract, it should be evaluated factors such as the degree of employer's direction and supervision and whether workers are able to independently conduct business on their own risk and account, etc. Then, it can be viewed that the defendant is under considerable direction and supervision over the contents of work, working hours, and place of work of dials, and since dials are provided with an opportunity for business trip according to the order designated by the defendant, it can not be arbitrarily selected or replaced, and since dials are not allowed to arbitrarily determine the amount of dials, it cannot be seen that the defendant cannot be seen that the defendant's trade union's business trip of this case cannot be seen as an exclusive business trip of this case under the Trade Union and Labor Relations Adjustment Act, since it can not be seen that the defendant's business trip of this case cannot be seen as an independent business trip of the defendant's trade union's trade union's trade union's business trip of this case.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and the evidence adopted by the court below, even if the court below puts more emphasis on the evaluation element of "the dependent nature and independent dependent nature of business" rather than personal dependence in the judgment of workers, the judgment of the court below that recognized the Plaintiffs as workers under the Trade Union and Labor Relations Adjustment Act is just and acceptable, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the concept of workers under the Trade Union and Labor Relations Adjustment

B. Whether the employer is under the Trade Union and Labor Relations Adjustment Act

If a person who is in a position to substantially and specifically control and decide the rights and responsibilities of an employer who employs the worker with respect to the basic labor conditions, etc. commits an act prescribed in Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act by controlling or participating in the organization or operation of a trade union, he/she is an employer subject to an order for remedy ordering correction (see Supreme Court Decision 2007Du8881, Mar. 25, 2010, etc.).

The lower court determined that the Plaintiffs were legitimate members of the instant trade union, which is not premised on the labor contract relations between the Defendant and the employer, and the Defendant did not bear the duty prescribed in the Labor Standards Act because they were not the employers under the Labor Standards Act, on the premise that the Plaintiffs are providing their own labor according to the Defendant’s specific direction and supervision, and that the Defendant’s involvement in the process of performing their duties is considerably high, and that they are the employers under the Labor Standards Act, and that they are the employers under the Labor Standards Act.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and the evidence duly admitted by the court below, the above judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to the concept of employer under the Trade Union and Labor Relations Adjustment Act, contrary to

C. Whether the business trip reservation disposition is an unfair labor practice

The lower court determined that: (a) the grounds for sanctions against Plaintiffs 38, 39, 40, and 41, who are subject to the expulsion disposition, were the grounds for its legitimacy; (b) the act of refusing to take a business trip around September 16, 2008 and the act of causing an accident during the previous operation of the company; and (c) in the case of Plaintiffs 36, the act of causing an accident during the previous operation of the company; (b) the indefinite long-term reservation disposition as in the instant case is a sanction that does not follow the business assistant rules; and (c) considering the details and contents of the above sanctions, it is difficult to regard the above sanctions as grounds for sanctions as serious as possible; and (d) further, even until the closing of argument in the lower court, the above sanctions were maintained without the deadline, and thus, the pertinent dispositions were not effective in determining the amount of sanctions as to the remaining unfair labor practices of each of the Plaintiffs.

Examining the reasoning of the judgment below in light of the evidence duly admitted by the court below, the above judgment of the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles on unfair labor practices

D. Whether the expulsion disposition against the plaintiff 41 is valid

The lower court determined that the Defendant’s disposition of expulsion of Plaintiff 41 immediately expulsion without undergoing any other sanctions prescribed by the Gyeonggi Assistant Rules was null and void, on the grounds that it was an verbal abuse against the Nonparty by the head of the sports team belonging to the Defendant, the act of inducing the Plaintiff to refuse to take a business trip on September 16, 2008 against the instant trade union members, and the act of using diskettes with false facts on September 23, 2008, and it is difficult to view that individual acts recognized as the above sanctions constitute considerably serious cases compared to other sanctions prescribed by the sports assistant rules. Since there is no evidence to deem that the said Plaintiff violated the sports assistant rules and there is no well-being, the Defendant violated other sanctions prescribed by the sports assistant rules and immediately expelled Plaintiff 41 without going through the sports assistant rules. Furthermore, the Defendant’s disposition of expulsion of Plaintiff 41 was a deviation or abuse of discretion on the sanction granted by the Defendant before expulsion, and there was a procedural error that did not grant the opportunity to vindicate under the sports assistant rules before expulsion.

Examining the reasoning of the judgment below in light of the evidence duly admitted by the court below, the above judgment below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles as to unfair labor practices, freedom of contract, or termination of contract under

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal by Plaintiffs 38, 39, and 40 are assessed against the above Plaintiffs, and the costs of appeal by the Defendant are assessed against the Defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)