(영문) 부산고등법원 2021.1.13. 선고 2020나50822 판결

The judgment of the first instance is revoked. The plaintiff A confirmed that he is the defendant's employee, and the defendant expressed his intention of employment to the plaintiff B and C.

Reasons

1. Basic facts

The reasoning for this part of the court's explanation is the same as that of Paragraph 1 among the reasons for the judgment of the court of first instance. Thus, this part is cited by the main sentence of Article 420 of the Civil Procedure Act

2. The plaintiffs' assertion

The Plaintiffs, as employees of the Defendant’s collaborative company, were formally engaged in the work of building vessels built by the Defendant, but actually received orders from the Defendant, directly or indirectly, and conducted the shipbuilding work by organizing a work group with the employees belonging to the Defendant. As such, the substance of the labor relationship between the Plaintiffs and the Defendant constitutes the dispatch of workers. However, the Defendant, as the user company, continued to use the Plaintiffs as temporary agency workers for more than two years.

Therefore, in the case of Plaintiff A to which the former Act on the Protection, etc. of Dispatched Workers (amended by Act No. 8076 of Dec. 21, 2006, hereinafter referred to as the "former Dispatch Act"), Article 6(3) of the former Dispatched Workers Act applies, since the Defendant is deemed to directly employ the above Plaintiff from December 10, 206 when two years have passed since the above Plaintiff was used as a temporary agency worker pursuant to Article 6(3) of the former Dispatched Workers Act, the Plaintiff A seeks confirmation of the status of the Defendant’s worker, and in the case of Plaintiff B and C, to which the Act on the Protection, etc. of Dispatched Workers (hereinafter referred to as the “Dispatch Act”) applies, the Defendant requested the Defendant to express his/her intention of employment to Plaintiff B and C.

3. Determination

A. Relevant legal principles

According to Article 2 subparagraph 1 of the Dispatch Act, "temporary placement of workers" means that a temporary work agency employs a worker and has him/her engage in work for a user company under the direction and order of the user company according to the terms of the temporary placement contract while maintaining the employment relationship.

In a case where the Plaintiff’s employer requires a certain employee to perform the work for a third party, whether the legal relation constitutes a temporary placement of workers subject to the Dispatch Act does not go against the order or form of the contract attached by the parties, but rather, whether the third party orders, directly or indirectly, a binding order to perform the work itself with respect to the relevant employee, etc. Whether the relevant employee is actually incorporated into a third party’s business, such as: (a) whether the relevant employee is deemed to have been actually incorporated into a third party’s business; (b) whether the Plaintiff’s employer independently exercises the authority to select the workers to be placed in the work or to determine the number of workers, education and training, work hours, leave, work attitude inspection, etc.; (c) whether the purpose of the contract is specifically determined by the specific scope of the work performed by the relevant employee is distinct from the work performed by the third party; and (d) whether the relevant employee has expertise in the work performed by the relevant employee; and (e) whether the Plaintiff’s employer has independent corporate organizations or facilities necessary to achieve the purpose of the contract (see Supreme Court Decision 20106Da63646, Feb. 26, 26, 20101016.

B. Specific determination

1) As to whether the Defendant’s direct and indirect work site construction order was issued to the employees of the Defendant’s subcontractor, it is difficult to recognize that the Defendant’s order to directly and indirectly suspend the work of the Defendant’s work site was based on the Defendant’s 5-lane work site construction work site, and that the Defendant’s order to directly and indirectly suspend the work of the Defendant’s work site was issued, and that the Defendant’s order to directly engage in the work of the Plaintiff’s work site was not based on the Defendant’s 6-lane work site construction work site, and that it was difficult to recognize that the Defendant’s order to directly and indirectly engage in the work of the Plaintiff’s work site was based on the Defendant’s 5-lane work site construction work site, and that the Defendant’s order to directly engage in the work of the Plaintiff’s work site was based on the Defendant’s 5-lane work site construction work site’s construction work site’s construction work site’s construction work site’s construction work site’s construction work site’s construction work site’s construction work site’s construction work site’s construction site’s construction work site’s 1.

2) Next, as to whether workers belonging to the defendant's subcontractor can be seen as practically incorporated into the defendant's business, the following circumstances are established by examining whether the defendant's workers and the employees belonging to the defendant's subcontractor work jointly constructing one ship by sharing a number of blocks of the ship, using the defendant's subcontractor and the workers belonging to the defendant's subcontractor. The defendant's work of constructing one ship is acknowledged as having close to or identical to the employees belonging to the defendant's subcontractor. However, since the defendant's workers belonging to the subcontractor were included in the defendant's work, the defendant's work cannot be seen as having been acknowledged as having been separated from the defendant's work in light of the above circumstances, including Gap's evidence Nos. 60 and 61, Eul's evidence No. 11, witness E's testimony, and the defendant's work cannot be seen as having been separated from the defendant's work of constructing one block in the process of building, i.e.,, the defendant's work of collecting various members in the process of building the defendant's work.

3) Next, as to whether the Defendant’s collaborative company independently exercises its power to decide on the selection of workers, number of workers, recess hours, inspection of work attitude, etc., the above acknowledged facts and Gap evidence Nos. 52, Eul evidence Nos. 11 and 34, and witness I’s witness I’s testimony, the following circumstances are as follows: ① the Defendant’s collaborative company has separately prepared the rules of employment, and has employed workers who meet its own standards, such as those who have been engaged in shipbuilding and adjacent work; ② it appears that the Defendant has exercised its independent personnel rights by considering the situation of work situation such as departure, retirement, leave, etc.; ② the Defendant’s collaborative company has been aware of the number of workers working time, number of workers on holidays, etc. However, in light of the Defendant’s duty to prevent industrial accidents as well as the Defendant’s collaborative company’s employees under the Industrial Safety and Health Act as a contract, it appears that it appears necessary for the Defendant to have independently determined the number of workers on the work site, and ③ it appears necessary for the Defendant’s employees to have been given its own authority.

4) Next, the purpose of the contract is to determine the specific scope of the contract with limited work, to distinguish the work performed by the defendant's employees from the work performed by the defendant's employees, to have expertise in the work performed by the defendant's partner, to determine whether the defendant's collaborative company has an independent corporate organization or facility necessary to achieve the purpose of the contract, to consider the whole purport of the pleadings, such recognition, Gap evidence No. 52, Eul evidence No. 22, and Eul evidence No. 34. In other words, the part constructed by the defendant's collaborative company is distinguished from the work performed by the defendant's independent collaborative company or other collaborative company. ② The defendant's collaborative company selected an independent collaborative company capable of properly performing the contracted work ordered by the defendant after evaluating its business plan, construction capacity, etc., as part of the defendant's construction work performed by the defendant's independent collaborative company or construction work performed by the defendant's industrial accident manager, and it is reasonable to establish the defendant's independent collaborative company's organization and construction work team's employees as part of the contract' work team or construction work team.

C. Sub-committee

In full view of the above circumstances, since the worker dispatch relationship between the plaintiffs and the defendant cannot be deemed to have been formed, the plaintiffs' assertion based on this premise is without merit without further review.

4. Conclusion

Therefore, the plaintiffs' claim is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiffs' appeal is dismissed as it is without merit. It is so decided as per Disposition.