[1] Standard for determining whether an employee constitutes “worker” under the Labor Standards Act

[2] The case affirming the judgment below which found the defendant guilty on the ground that the above caregiver constitutes a worker under the Labor Standards Act, in case where the defendant, as the representative of the company, was prosecuted for violating the Labor Standards Act on the ground that he did not pay wages, etc., such as visiting caregiver Gap, etc., who were employed by the company while operating the elderly medical care business

[1] Article 2(1)1 and 4 of the Labor Standards Act / [2] Articles 36 and 109(1) of the Labor Standards Act

[1] Supreme Court Decision 2001Do2778 decided Aug. 21, 2001 (Gong2001Ha, 2125) Supreme Court Decision 2009Do311 decided Mar. 12, 2009

Defendant

Defendant

Seoul Southern District Court Decision 2010No2290, 201No303 decided June 24, 2011

The appeal is dismissed.

The grounds of appeal are examined.

In determining whether a contract constitutes a worker under the Labor Standards Act, regardless of whether the contract is an employment contract under the Civil Act or a contract for work, or a subordinate relationship with an employer for the purpose of wages in substance, the determination shall be based on whether the worker provided the worker with labor in a subordinate relationship with the employer for the purpose of wages. In determining whether a subordinate relationship exists, the determination of whether the contents of work are determined by the employer and are subject to the rules of employment, service regulations, personnel regulations, etc., whether the employer is specifically and directly directed and supervised by the employer in the performance of work, whether the working hours and place are designated by the employer and are detained by the employer, whether the worker is replaced by his/her work, such as substitution of equipment, raw materials, work tools, etc., whether the remuneration has the characteristic of the work itself, whether the basic salary or fixed wage has the characteristic of the work itself, whether the wage has the nature of the wage and salary income, whether the continuous provision of the labor relationship and the exclusive nature and degree of the employer, whether the status of the worker is recognized as an employee under other Acts and subordinate statutes on social security system, and the economic conditions of both parties, etc.

The court below found that the first instance court and the lower court acknowledged the following circumstances acknowledged by evidence duly admitted and investigated by the medical care worker under relevant Acts and subordinate statutes, i.e., (i) the care worker can not be individually entrusted with the care worker; (ii) the medical care worker's working hours, place, and contents are determined according to the terms and conditions of the contract with the care worker; (ii) the care worker's work hours cannot be handled through consultation with the care worker; and (iii) the care worker's work hours cannot be reported and adjusted in advance to the company; (iv) the care worker's work hours and contents are prepared and reported to the company every month; (v) the care worker can not work independently by employing a third party; (v) the company's care worker's care worker's care worker's care worker's care worker's care care worker's care care worker's care worker care worker's care; and (v) the company's care worker's care worker's basic wages or fixed wages are not provided according to the nature of the care worker's care worker's's care worker's care worker's duty.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)