[1] Whether a person asserts discrimination in order to constitute a discriminatory treatment prohibited under the Labor Standards Act and a person who is compared should essentially belong to the same comparable group (affirmative)

[2] The case holding that the supplementary provision does not violate the prohibition of discrimination under Article 6 of the Labor Standards Act, in a case where Gap et al. did not receive the starting salary which included the period of working as a contract-based employee as a contract-based worker when converting the starting salary of a contract-based employee into a contract-based position and then did not receive the starting salary which included the period of working as a contract-based employee as a contract-based employee, in the case where Gap et al. did not receive the starting salary of a contract-based employee when determining the starting salary of a contract-based employee as a contract-based employee

[1] The term “discriminatory treatment” under the Labor Standards Act refers to a case where a person, in essence, treats the same differently from the same, and where a person, in essence, treats the same differently from the same, there is no discrimination itself. Therefore, in order to constitute a discriminatory treatment prohibited under the Labor Standards Act, first of all, the person asserting discrimination, who is subject to comparison, should be in essence belonging to the same comparative group.

[2] The case holding that, in a case where Party A’s employment rules stipulate that a public corporation’s work experience, etc. shall be recognized 100% when determining the initial salary of a full-time employee in general service, but thereafter, Article 1 of the Addenda which stipulates that the initial salary of a full-time employee who is converted from a contract-based position to a general service is an amount calculated on the basis of remuneration that a non-regular employee was paid to a non-regular employee in general service, and Party B et al. did not receive the initial salary class for which the period of working as a contract-based employee was included when converting the contract-based from a contract-based position to a general service, the employment route differs between Party B et al. that is converted from a contract-based employee to a general service position through an open competitive examination or between the employees who are automatically converted from a contract-based employee and the employees who are automatically converted from a general service position through an open competitive examination to a general service position integration within a full-time employee, it does not seem to have any reasonable ground to distinguish the employment route from a general service position.

[1] Article 6 of the Labor Standards Act / [2] Article 6 of the Labor Standards Act

[1] Constitutional Court en banc Order 2009Hun-Ma538 Decided March 25, 2010 (HunGong162, 744) en banc Order 2010Hun-Ma167 Decided June 24, 2010 (Hun-Ma165, 1214)

Attached List of Plaintiffs (Attorney Lee Im-soo, Counsel for the plaintiff-appellant)

Korea Human Resources Development Service (Law Firm Han-ro, Attorneys Hong-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2012Na39631 decided December 7, 2012

All appeals are dismissed. The costs of appeal are assessed against each appellant.

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

1. Regarding the plaintiffs' grounds of appeal

A. Whether the consent of contract-based employees as to the supplementary provision of this case is necessary

(1) The ground of appeal on this part is that the judgment of the court below which rejected the plaintiffs' assertion that Article 2 (1) of the Addenda to the defendant's salary provision amended on October 1, 2007 (hereinafter "the supplementary provision of this case") was disadvantageously modified and that the contract-based employees' consent should be obtained according to the collective decision-making method (hereinafter "this case's consent") is unlawful.

(2) According to the reasoning of the lower judgment, the reasoning of the first instance judgment partially admitted by the lower court, and the evidence duly admitted, the following facts are revealed.

(A) Article 7(1) of the Defendant’s Remuneration Regulations and Article 42(2) of the Personnel Regulations (hereinafter “instant Rules of Employment”) provide that a public enterprise’s work experience, etc. shall be recognized as 100% when determining the starting salary for employees in general service who are regular employees.

The instant provision of the Rules of Employment stipulates the method of calculating the starting salary in cases where the Defendant individually employs the relevant non-regular employees to be in general service pursuant to Article 15(1)7 of the Rules of Employment whenever personnel management needs arise, and the government’s “comprehensive measures for non-regular workers in the public sector” (hereinafter “government’s comprehensive measures”) was prepared on August 8, 2006, and when two years have passed since the two-year period of time, the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “fixed-term Act”) was enforced before it was enacted on December 21, 2006.

(B) In contrast, this case’s supplementary provision provides that the starting salary of an employee who is converted from a contract-based position to a general office position according to the government’s comprehensive measures shall be the amount calculated based on the remuneration that a non-regular employee has received at the time of his/her employment, notwithstanding the instant employment rules provisions.

This case’s supplementary provision was enforced due to the enforcement of the Government’s comprehensive measures and the Fixed-term Act, and thus, the Defendant should treat all contractual workers employed for more than two years, regardless of the need for personnel management, as an employee who entered into an employment contract with no fixed period of time. Accordingly, the Defendant prepared a procedure for large-scale transition of contractual workers, and accordingly, required to grant the annual salary class for general service equivalent to the amount of the contract-based annual salary at the time

(3) According to the above facts, this case’s supplementary provision appears to have newly formulated the method of calculating the starting salary required for the establishment of a new employment route, which is essentially different from that of the previous employment rules, and it cannot be deemed that the previous employment rules were modified or modified disadvantageously. Therefore, when the defendant newly established the supplementary provision in this case, it cannot be deemed that the consent of the contract-based employees, including the plaintiffs, should be obtained, and the plaintiffs’ aforementioned assertion on a different premise is not acceptable.

In light of the reasoning of the judgment below, although it is not appropriate for the court below to determine the validity of the plaintiffs' assertion on the premise that the supplementary provision of this case constitutes an amendment to the rules of employment, the court below's conclusion and reasoning that the consent of this case is not required under the supplementary provision of this case can be deemed to contain the above purport of judgment, and contrary to what is alleged in the grounds of appeal, there is no error of law by misunderstanding the legal principles as to disadvantageous amendment to the rules of employment and the scope thereof, which are workers and

The Supreme Court precedents cited in the grounds of appeal are different from this case, and thus are inappropriate to be invoked in this case.

B. Whether the prohibition of discriminatory treatment under the Fixed-term Treatment Act is violated

Article 8 (1) of the Fixed-term Workers Act provides that an employer shall not discriminate against a fixed-term worker in comparison with a worker who has entered into an employment contract with no fixed-term worker.

The lower court determined that Article 8(1) of the Fixed-term Workers Act was prohibited from discriminatory treatment on the ground that the Plaintiffs were non-regular workers. In this case, the Plaintiffs, who were fixed-term workers, were subject to the instant supplementary provision only after they were transferred to an employee with no fixed-term employment contract, and the starting salary was determined upon the application of the instant supplementary provision, and thus, the Plaintiffs cannot be deemed to have been treated as discriminatory treatment on the ground that they were fixed-term workers pursuant to the instant supplementary provision, and thus, did not violate Article 8(1) of the Fixed-term Workers Act.

Examining the reasoning of the lower judgment in light of the above provision of the Fixed-term Act and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the prohibition of discrimination under the Fixed-Term Act.

C. Whether the prohibition of discriminatory treatment under the Labor Standards Act is violated

(1) Article 6 of the Labor Standards Act provides that an employer shall not give discriminatory treatment to working conditions on the grounds of gender, nationality, religion, or social status.

The term “discriminatory treatment” under the Labor Standards Act refers to a person who, in essence, treats different things differently in nature, and in cases where the person, in essence, treats different things differently in nature, cannot be deemed to exist. Therefore, in order to constitute a discriminatory treatment prohibited under the Labor Standards Act, a person asserting discrimination under the premise should first belong to the same comparable group in essence (see, e.g., Constitutional Court en banc Order 2009Hun-Ma538, Mar. 25, 2010; Constitutional Court en banc Order 2010Hun-Ma167, Jun. 24, 2010).

(2) The Plaintiffs are subject to comparison with the Plaintiffs subject to the application of the instant supplementary provision, and are class 5 employees in general service and full-time employees who are appointed through open recruitment methods, and are converted into class 6 employees in general service following the integration of series of class around 2006.

However, according to the reasoning of the lower judgment, the reasoning of the first instance judgment as partially admitted by the lower court, and the evidence duly admitted by the lower court, the Defendant calculated the starting salary by recognizing the starting salary as the career of the public enterprise without distinguishing whether the period in which the public enterprise had worked as a full-time employee or a part-time employee, and accordingly, if the Defendant’s contract employee is appointed as a full-time employee through the above procedure, he can receive the starting salary class which includes all the period in which the Defendant’s contract employee worked as a full-time employee. ② The Defendant integrated the full-time job class into the full-time job class while integrating the full-time job class in around 2006, integrated the work class into the full-time job class in general service, and the full-time employee was given the full-time class 6 of general service class as a consequence of absorbing the full-time job class in general service, and the fact that the part-time employee

Examining the above facts in light of the legal principles as seen earlier, ① there is a difference between the Plaintiffs who are converted from a non-regular contract position to a general service position through an open competitive examination or automatically converted from a general service position to a general service position following the integration of regular workers pursuant to the government’s comprehensive measures. ② The Defendant does not seem to have classified the employment route only formally with the intent to discriminate non-regular workers, and there is a reasonable ground to apply the different employment route depending on the subject. ③ As such, there is a difference in salary class due to the difference in the employment route, the Plaintiffs and the employees who are automatically appointed to a general service position through an open competitive examination or employees who are automatically converted from a general service position to a general service position cannot be deemed to fall under the same comparative group in essence.

(3) Therefore, it is insufficient to view that the instant supplementary provision does not violate the prohibition of discrimination under Article 6 of the Labor Standards Act, even if the contract-based period of contract-based employees converted into general service according to the government’s comprehensive measures, including the Plaintiffs, was not reflected in the salary class. Therefore, it is reasonable to view that the instant supplementary provision does not violate the prohibition of discrimination under Article 6 of the Labor Standards Act, without examining whether the employment type of fixed-term employees constitutes “social status” under Article 6 of the Labor Standards Act.

Although the reasoning of the judgment below is somewhat insufficient, the decision of the court below that the supplementary provision of this case did not violate the above prohibition provision is acceptable. Contrary to the allegations in the grounds of appeal, there were no errors of law by misapprehending the legal principles on the grounds of prohibition of discrimination and selection of comparable workers under the Labor Standards Act, or by omitting judgment, which affected the conclusion

D. The remaining grounds of appeal

The remaining grounds of appeal by the plaintiffs are based on the premise that the establishment of the supplementary provision of this case constitutes a disadvantage change in the rules of employment or discrimination on the ground that they are fixed-term workers, or that the Plaintiffs and the comparable persons who are assessed by the plaintiffs are essentially the same group. Thus, unless the above premise itself is acknowledged as seen earlier, this part of the grounds of appeal cannot be accepted as it does not need further determination, without

2. As to the Defendant’s ground of appeal

The lower court determined that the Plaintiffs may claim a long-term continuous service allowance calculated according to the continuous service period including the contract-based service period, on the ground that Article 29 of the Remuneration Regulations provides that the scope of the instant supplementary provision does not apply to the initial annual salary, and does not stipulate the exclusion of the application of Article 29 of the Regulations on Remuneration for Long-term Service Allowances, and that there are no special circumstances to exclude the previous service period as a non-regular employee from the “service period as an employee” which is the basis for calculating the long-term continuous service allowances.

Examining the reasoning of the lower judgment and the reasoning of the first instance judgment partially admitted by the lower court in light of the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine regarding the nature of long-term continuous service allowances or the continuous service period, etc., which is the basis for the calculation thereof, thereby adversely affecting the conclusion of the judgment

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: omitted

Justices Kim Shin (Presiding Justice)