208Guhap21218 Revocation of the Request for Remedy against Unfair Dismissal

Co., Ltd. 000

The Chairperson of the National Labor Relations Commission

1. Kim○-○

2. ○○

3. Stambed ○

October 23, 2008

November 6, 2008

1. On April 14, 2008, the National Labor Relations Commission revoked the final decision made on April 14, 2008 between the Plaintiff and the Intervenor joining the Defendant on the application case for final remedy.

2. The costs of litigation incurred between the Plaintiff and the Defendant are borne by the Defendant, and the costs of litigation incurred by the Plaintiff and the Intervenor joining the Defendant are borne by the Intervenor joining the Defendant.

The order is as set forth in the text.

1. Details of the decision made by the retrial;

A person shall be appointed.

2. Whether the decision on retrial is lawful.

A. Summary of the parties' assertion

(1) The plaintiff's assertion

The Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”) is the Intervenor’s and the Intervenor’s Intervenor’s Intervenor’s Intervenor’s Intervenor’s Intervenor’s Intervenor’s bonus received from the Plaintiff, without being subject to specific and direct direction and supervision from the Plaintiff in the course of performing his duties, and is not subject to the rules of employment different from other employees working in the Plaintiff Company. As such, the Intervenor’s Intervenor does not constitute a worker under the Labor Standards Act.

(2) The Intervenor joining the Defendant’s assertion

The Intervenor has been working for the purpose of wages under the direction of work by using machinery and raw materials provided by the employer at the Plaintiff’s workplace and under the supervision of the Plaintiff’s workplace, such as compliance with the hours of commuting, and therefore, the Intervenor constitutes a worker under the Labor Standards Act. However, it is reasonable for the Intervenor to notify the Intervenor of the time of attendance and the suspension of volume on the ground that the Intervenor joined the labor union and demanded collective bargaining.

(b) the relevant provisions;

/ Labor Standards Act

Article 2 (Definitions) (1) The definitions of terms used in this Act shall be as follows:

1. The term "worker" means a person who provides his/her labor to a business or workplace for the purpose of wages, irrespective of the type of occupation;

means.

Article 47 (Contract Workers) Any employer shall guarantee certain amount of wages to those who are employed on a contract or other equivalent basis for work hours.

【Civil Code

Article 657 (Exclusive Nature of Rights and Duties) (2) No worker shall have a third party provide his labor in lieu of himself without the consent of the employer.

(c) Facts of recognition;

(1) The Plaintiff is a company operating the clothing manufacturing business, and the process of the Plaintiff’s production of the clothing is largely divided into four steps, such as a plan (including design, ordering and organizing specific work of the production process in advance for the production of the clothing ) / Foundation (work in a certain form of string so that it can become a string in accordance with design instructions) / the string (work in a certain form of string so that it can become a string in accordance with design instructions) / the completion (work in which string in a three-dimensional quantity by attaching a string of strings) / the completion (work in which string in a string of the clothes made and making it possible for sale).

(2) For this purpose, the Plaintiff is a designer, a ston, a foundation, a fals, a mamer (or the foregoing), a salper, a salper, a salper, a bottom disposal, etc. on the clothes whose salary system has been finished), a salper (at the end of Japanese language, flading the shape of the clothes whose salary system has been completed, flading, a person who conducts baling, inspection, etc.). Except for the provision of salper, the Plaintiff is a monthly salary-grade employee (one stalter in charge of a swimming line is a monthly salary-grade employee), and the salpering shall be paid by the Plaintiff each month by settling the remuneration in the amount completed as a unit of work as a guest recruitment.

(3) In the event that the Plaintiff entered into a bar contract with the Plaintiff, it is agreed that the Plaintiff does not require any document, such as a resume employment application for the guest subscription or assistant subscription, unlike the time of hiring other employees, and does work in accordance with the production instruction as to the contents of work unit work according to the type of clothes. The number of guest subscription who entered into a bar contract with the Plaintiff is eight, the number of outside visitors who work in the Plaintiff Company’s building is five, and there is no difference between the cost of work for the inside guest subscription and the outside guest subscription. The inside subscription uses the re-wing mold, the maintenance cost of the re-wing mold provided by the Plaintiff, and the Plaintiff did not pay the repair cost and the rent for the use of re-wing mold or the cost of work for the use of the re-wing mold.

(4) In employing and using a guide, a guest offer (referred to as a 's guide worker', 's guide worker', 's guide worker', and 's guide worker') most of a guide worker is a spouse of a guest worker and is paid remuneration from a guest worker. The plaintiff does not entirely participate when a guest worker employs a guide worker or alters a guide worker worker.

(5) On February 1995, the Intervenor Kim ○ concluded a labor contract with the Plaintiff and retired on April 1996, while serving as an employee. On August 8, 1996, the Intervenor concluded a contract with the Plaintiff and served as a guest (trade) employee. The Intervenor Lee ○ was the spouse of the Intervenor Kim ○, who was working as an intervenor Kim ○, at the Plaintiff’s workplace from September 1996, and was paid remuneration of KRW 140,000 per month from the Intervenor Kim ○○. From August 2001 to the Plaintiff’s workplace, the Intervenor Park ○○ was paid a monthly remuneration of KRW 1,40,000 by the Intervenor Kim ○. From the Plaintiff’s workplace.

(6) Although the intervenors did not receive from the plaintiff to get from work, they were ordinarily going to work at 9:0 a.m. as the workers of the plaintiff company, and left 7:0 p.m. (the intervenor Kim ○ had the key of the plaintiff's company to save their commuting hours by avoiding the distance between the house and the plaintiff's company's workplace, and the distance between the plaintiff's company's workplace and the plaintiff's company's company's workplace is far away, and therefore, the intervenor kept to work at 8:0 a.m.). The intervenor was not subject to sanctions from the plaintiff even if he was absent from office or dismissed. However, as seen later, the intervenor Kim ○○ was confirmed by the plaintiff's leader of Red ○○ on July 13: 207, when the dispute occurred due to the collective bargaining request.

(7) The intervenors performed the dynasing work in accordance with the work instruction written by the dynasor. The poor management of the dynasty work was carried out immediately at the work site by the dynasian, the dynasar, the president, etc. In the case of the dynas whose quantity accounts for 80% of the quantity, the delivery date was not set separately, and in the case of the dynas whose quantity accounts for 20% of the quantity, the delivery date was set, but did not impose any particular sanction or disadvantage even if the guest fails to deliver the goods on the delivery date.

(8) Both the intervenors, including the intervenors, have received only the Plaintiff’s goods. The monthly average income is KRW 4 million per team (one guest and one assistant participant), but there are many cases where it exceeds KRW 7 million. The Intervenor Kim○ registered his business on July 3, 2001. The Intervenor Park○ registered his business on December 5, 2002 with the trade name of ○○ unemployment, and the Intervenor Park○○ was registered on December 5, 2002, and the Intervenor was not covered by two four mothers, and the Intervenor paid the Intervenor’s business income tax and value-added tax on behalf of the Plaintiff.

(9) On December 3, 2006, the Intervenor Kim ○ joined the Seoul Labor Relations Commission’s (hereinafter “this case’s Trade Union”) on December 3, 2006, and the Intervenor Lee ○○ and Park ○ joined the instant Trade Union on June 9, 2007. The instant Trade Union demanded the Plaintiff to conduct collective bargaining by asserting monthly salary, etc. on June 14, 2007, and the collective bargaining was conducted on June 15, 2007, but the Plaintiff’s demand for the submission of the Plaintiff’s Trade Union’s list of union members was not complied with.

(10) The Trade Union sent a public notice demanding collective bargaining on June 18, 2007, and thereafter requested collective bargaining on the same terms and conditions as 15 times until August 7, 2007. On June 18, 2007, the Plaintiff demanded reconsideration of the list of union members belonging to the Plaintiff company, and us does not have any obligation to comply with the demand for collective bargaining by us, and if there is no worker who has joined us among us, us must inform us that she will faithfully respond to the demand for bargaining by us, and she sent a public notice of the summary of 'the summary' to the Trade Union, and thereafter notified 10 times or more.

(11) On June 23, 2007, 10 members of the Intervenor and the labor union of this case were to hold an assembly requesting collective bargaining in front of the New World department stores located in Gangnam-gu Seoul, Seoul, and thereafter, they demanded collective bargaining between about five minutes after entering the Plaintiff’s store in the department store. In addition, on June 30, 2007, ten members of the labor union of this case were to conduct collective bargaining before the Cheongdong-dong BYO store, and on July 14, 2007: 0:0 to 17: 17: 16: 00 on July 24, 2007; hereinafter “the Plaintiff’s labor union member of this case’s labor union member of this case’s labor union member of this case’s labor union member of this case’s labor union member of this case’s labor union member of this case’s labor union member of this case’s labor union member of this case’s labor union member of this case’s labor union member.

(12) On July 16, 2007, the Plaintiff notified the Intervenor at work of July 16, 2007 that “it is no longer possible to allow unlawful acts such as interference with business and defamation, and thus, it cannot reduce the volume in the workplace.”

[Ground of recognition] Gap 1 to 15, Eul 1 to 5 (including branch numbers), witness Red ○, new ○, Lee ○, Lee ○

each testimony (other than part of ○○’s testimony which is not believed to be part of the testimony), the entire pleadings.

Purport

D. Determination

(1) Determination as to whether an employee is a worker under the Labor Standards Act shall be made based on whether an employee provided his/her labor in a subordinate relationship with an employer for the purpose of wages in substance rather than an employment contract or a subordinate relationship with the employer. Determination as to whether an employee is a subordinate relationship should be made by determining the content of work, and shall be subject to the rules of employment or service (person) and the employer’s considerable direction and supervision during the course of performing work, whether the employer designates working hours and place and is detained by the employer, whether the employee is able to operate his/her business on his/her own on his/her own account, such as holding the equipment, raw materials, work tools, etc., or having a third party employ and act on behalf of the employer; whether the employer has a superior risk, such as the creation of profits and losses through the provision of labor; whether the remuneration was determined on his/her own nature; whether the amount of basic wages or wages was withheld; whether the employee was exclusive in relation to the provision of fixed wages and his/her basic social security system or not should be determined on its own basis.

(2) We examine whether the Intervenor is a worker under the Labor Standards Act in this case.

① First, the Plaintiff directed the Intervenor Kim ○○○○○○○○○○○○○○○ of specific work details to be performed by the participants using the work order. However, in light of the fact that such work contents can be performed on a contract for the purpose of completing the work, and the nature of the clothing manufacturing is essential for the completion of clothes, it is difficult to deem that the Plaintiff immediately directed and supervised the intervenors in a specific manner. Rather, in light of the fact that the intervenors selected the method of performing the work order as a staff member in a highly advanced salary class, and the Plaintiff did not give the Intervenor any particular instruction on the part of the Intervenor, it is difficult to view that the Plaintiff performed a specific individual direction and supervision on the part of the Intervenor (in the meantime, it is difficult to view that the Intervenor performed the work as a supplement and supervision of the Plaintiff’s employees, even though it is difficult for the Intervenor’s employees to modify the defect or defect in the work process of the Intervenor’s goods).

② In light of the fact that the intervenors were internal air space, unlike the external air space, engaged in the work by using the rewing frame provided by the Plaintiff at the Plaintiff’s workplace, and the intervenors were obligated to respect the right to manage the original facilities, if the intervenors were to commute to and from the workplace of the Plaintiff, but were absent or dismissed by the intervenors, they did not receive any particular sanction against the Plaintiff when the intervenors were absent or dismissed, and the intervenors were not subject to any particular sanction from the Plaintiff even if the date of payment for dancing set by the payment period, it is difficult to view that the intervenors were subject to the Plaintiff’s rules of employment or service regulations, or are bound by the Plaintiff’s working hours designated by the Plaintiff (the Intervenor Kim ○, this○○○, and this○○ received a written confirmation of early retirement from the head of the Spanton Red○○ on the expiration date of the instant contract, but it is difficult to view that the intervenors were ordinarily obligated to obtain a written confirmation or receive a written confirmation at the time of early retirement from the workplace).

③ The Intervenor Kim ○○-○’s ○○○ is a highly advanced salary class technician, and thus, the Intervenor would generally enter into a labor contract that receives a certain amount of wages subordinate to the Plaintiff. However, it would be more likely that concluding a contract that receives remuneration according to the amount of work performed under his/her responsibility. Furthermore, the Intervenor’s direction and supervision can be free (in cases where the Plaintiff becomes an external guest, restrictions on the place of work may be free even on the place of work) and that concluding a contract with the Plaintiff is preferred to enter into a contract with the Plaintiff.

④ In light of the fact that the guest recruitment is employed by the assistant recruitment under his/her responsibility, and the assistant recruitment is paid wages from the guest recruitments, and the plaintiff does not participate in the case where the assistant recruitments are employed or changed, it is difficult to view that the assistant recruitments are replaced with the assistant recruitments, and that the assistant recruitments are merely workers of the guest recruitments.

[If a guest member is a plaintiff's employee, such as a review decision, the assistant member is a guest employee, and this case constitutes an employee under the German Labor Law (indirect user, mitt verber, plaintiff in this case) and is employed by an employer under the German Labor Law (in this case, the intermediary, Mittesmann, the intervenor Kim ○ in this case) and the employer of another worker (in this case, an indirect employee, mitt ○, an intervenor ○), and a labor contract is made with another worker (in this case, an intervenor ○) and the employee directly provides labor to his own employer without a contractual relationship. However, as seen above, the review decision is not acceptable since it directly recognized the existence of labor relations between the plaintiff and the assistant employee and it is contrary to the above facts.

⑤ 객공 ( 客工 ) 의 어원은 중국의 역사서에 등장하는 객호 ( 客戶 ) , 객민 ( 客民 ) , 객가 ( 客 家 ) 등에서 유래한 것으로 보인다 . 먼저 , 객호는 원적지 등 본래의 공부상 등록지 ( 당 ( 唐 ) 나라 때에는 균전토지에 등재된 곳을 , 명 ( 明 ) 나라 때에는 조세부과를 목적으로 하는 부역황책 ( 賦役黃冊 ) 에 등재된 곳을 원적지 ( 原籍地 ) 라고 하였다를 떠나 객지에서 토지를 빌려 농사에 종사하는 자를 의미하는데 , 이를 객공의 해석에 유추하면 , 객공은 근로자 명부에 등재되지 아니한 채 의류제조업에 종사하는 사용자와 봉제계약을 체결하고 봉 제작업에 종사하는 기술자를 의미한다고 보아야 할 것이다 .

(3) The Plaintiff may determine the unit cost of supply in superior status to the Intervenor, and the Intervenor is engaged in the salary-related business upon entering into a contract with the Plaintiff. As such, the Intervenor is recognized as economically subordinate to the Intervenor, and it is difficult to deem that the Plaintiff performed specific and individual command and supervision on the salary-related business, as seen above, the Intervenor is subject to the Plaintiff’s rules of employment or service regulations, etc., or is bound by the Plaintiff’s working hours. Considering that the Intervenor is subject to the Plaintiff’s rules of employment or service regulations, and that the Intervenor does not directly employ or replace the assistant, and that the Plaintiff does not participate in any particular participation, it is difficult to view the Intervenor as an employee under the Labor Standards Act solely on the basis of the economic subordinate nature of the above to the extent that the Intervenor was engaged in the salary-related business. Accordingly, the first instance judgment on a different premise is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and it is so decided as per Disposition with the assent of all participating Justices.

Judges fixed-ranking of the presiding judge

Judge Cho Chang-young

Judges Equitable: