Gangwonland Co., Ltd. (Law Firm LLC, Attorneys Seo Il-bong et al., Counsel for the plaintiff-appellant)

The Chairperson of the National Labor Relations Commission

September 10, 2015

1. On April 13, 2015, the National Labor Relations Commission revoked the decision made by the review on the application case for a correction of discrimination between the Plaintiff, Nonparty 1, Nonparty 2, Nonparty 3, Nonparty 4, and Nonparty 5.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the decision on retrial;

A. The Plaintiff is a company operating a casino business, tourist hotel business, skiing ground business, and golf course business (hereinafter “instant company”). Nonparty 1, Nonparty 2, Nonparty 3, Nonparty 4, and Nonparty 5 (hereinafter “instant workers”); and, individually, when indicating them, the Plaintiff entered into a labor contract with the Plaintiff on August 17, 2012 with the term of the contract from August 20, 201 to February 19, 2013, during which the term of the contract was extended from February 20, 2013 to August 13, 2013 (the term of the contract from February 20, 2013 to August 19, 2013 to 14, 2013 to 10, respectively, was extended from February 20, 2013 to 13, 2013 to 14, respectively.

B. On September 23, 2014, the instant workers filed an application for the correction on the grounds that the instant workers received discriminatory treatment from the Plaintiff from the Plaintiff in the snow, summer vacation, prosecution, special bonus, and hotel service charges. On January 7, 2015, the Gangwon Regional Labor Relations Commission recognized the Plaintiff as the discriminatory treatment under Article 8(1) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “ Fixed-Term Act”), and ordered the Plaintiff to pay the amount equivalent to the snow, summer vacation, prosecution, special bonus, and hotel service charges, which were not paid during the working period of the instant workers.

C. On February 13, 2015, the Plaintiff dissatisfied with the foregoing initial inquiry tribunal, filed an application for reexamination with the National Labor Relations Commission, and the National Labor Relations Commission dismissed the Plaintiff’s application for reexamination on April 13, 2015 (hereinafter “instant initial inquiry”).

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, 6, Eul evidence 1 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the decision on the retrial of this case is lawful

A. The plaintiff's assertion

The decision on review of this case shall be revoked on the ground that it is unlawful for the following reasons.

1) On August 20, 2012, the instant worker, who had been paid the lowest wage out of the ladler with no fixed period of working in the instant company as of August 20, 2012 (hereinafter referred to as “regular workers”) shall be the comparable worker. However, as of August 20, 2012, the instant company, as of August 20, 201, was employed as a contractual worker for one year and six months, and was paid the lowest wage out of the 2th class of the employee who was transferred to a regular worker with his work as of January 1, 2011, and thus, the said employee is the comparable worker of the instant worker.

2) ① 비교대상 근로자가 이 사건 근로자들보다 재직기간이 2년 7개월 더 긴 점, ② 비교대상 근로자는 이 사건 회사에 입사한 후 9주간의 교육을 받지만 이 사건 근로자들은 외부 근무경력이 있는 경우 1주, 외부 근무경력이 없는 경우 4주의 교육만 받은 점, ③ 비교대상 근로자는 위와 같이 이 사건 근로자들보다 재직기간이 길고 더 자세한 교육을 받기 때문에 이 사건 근로자들보다 업무숙련도가 높은 점, ④ 비교대상 근로자는 이 사건 회사에서 블랙잭, 바카라, 룰렛, 다이사이, 빅휠, 캐리비언스터드포커, 쓰리카드포커, 카지노워 등 8개 종목을 진행하지만, 이 사건 근로자들은 그중 블랙잭, 바카라 등 2개 종목만 진행하였던 점 등에 비추어 보면, 원고가 이 사건 근로자들에게 설·하계휴가·추석·연말 특별상여금, 호텔봉사료를 지급하지 않은 것에는 합리적인 이유가 있다.

B. Relevant provisions

The provisions of the attached Table shall be as specified in the attached Table.

C. Determination

1) As to the existence and selection of comparable workers

A) Relevant legal principles

Article 8(1) of the Fixed-term Workers Act provides that “An employer shall not discriminate against a worker who has entered into an employment contract without a fixed period of time engaged in the same or similar kind of work in the relevant business or workplace on the ground that he/she is a fixed-term worker,” and stipulates “regular workers who have entered into an employment contract with no fixed period of time engaged in the same or similar work at the relevant business or workplace” (hereinafter “regular workers”). Here, whether a worker selected as a worker subject to comparison falls under the same or similar work of fixed-term workers, not the work specified in the employment rules or employment contracts, but the work actually performed by the worker. However, even if the work performed by the worker is not entirely inconsistent with each other and is somewhat different from the scope of, responsibility, and authority over, the work performed by the worker, barring special circumstances, shall be deemed to have been engaged in the same or similar work (see Supreme Court Decision 2011Du7045, Oct. 25, 2012).

B) Existence of comparable workers

In full view of the following circumstances that can be seen by adding the whole purport of the pleadings to the statements in Gap evidence Nos. 6, 7, 15, 19, and Eul evidence Nos. 1, 2, and 4, it is reasonable to deem that he/she engaged in the same or similar kind of work on the ground that there is no substantial difference between the content of the main business that the workers with a fixed-term with a worker in the instant case and

(1) According to Article 11-2 of the Organizational Regulation, employees belonging to the Plaintiff constitute casino business occupational group regardless of whether the occupational group for business support, business support, casino business occupational group, hotel business occupational group, leisure business occupational group, technical occupational group, and labor occupational group are classified as business group, business group for business support, casino business group, hotel business group, leisure business group, technical occupational group, and labor group.

(2) The Plaintiff employed the instant workers as substitute workers in order to fill the shortage of human resources due to temporary sea-dr’s childcare leave, etc. The instant workers, as a regular worker, worked for 8 hours a day and 40 hours a week a week and 40 hours a week when concluding an employment contract with the Plaintiff, and agreed to receive wages at a time.

(3) 이 사건 근로자들은 정규직 딜러와 마찬가지로 카지노에서 딜러 업무를 수행하였다. 정규직 딜러는 블랙잭(blackjack), 바카라(baccarat), 룰렛(roulette), 다이사이(tai-sai), 빅휠(big wheel), 캐리비언스터드포커(Carribean Stud Poker), 쓰리카드포커(three card poker), 카지노워(casino war) 등 8개 종목을 진행하는 데에 비해 이 사건 근로자들은 그중 블랙잭, 바카라 등 2개 종목만 진행하여 이 사건 근로자들과 정규직 딜러 사이에 진행할 수 있는 종목의 수가 달랐으나, 블랙잭, 바카라가 전체 진행 게임 중 76.7%를 차지하였다.

C) Selection of comparable workers

(1) As there is a difference in position and salary grade between regular workers and regular workers, we examine who is part of regular workers is the comparable worker of the instant workers.

The prohibition of discriminatory treatment stipulated in Article 8 of the Fixed-term Workers Act is aimed at protecting the working conditions of fixed-term workers by prohibiting the employer from providing discriminatory treatment compared to regular workers on the ground that they are fixed-term workers. However, given that, in the case of selecting a worker subject to the highest treatment among regular workers, there is a risk of reverse discrimination that the worker subject to the highest treatment would suffer any disadvantage than the fixed-term workers, it is reasonable to select the worker subject to the lowest treatment. In addition, in light of the aforementioned purport of Article 8 of the Fixed-term Workers Act, it is sufficient to view that the comparable worker is a full-time worker subject to the lowest treatment that exists in the organization of the relevant business or workplace, and that such position or the regular worker in the salary class is not required to actually work for a considerable period of time. Accordingly, even if the employer did not employ a full-time worker for a considerable period of time or only the regular worker in the salary class who works for the highest salary class at the time of the recruitment of a fixed-term worker, it is the lowest worker under the organization of the relevant business or workplace.

According to Article 7 of the personnel regulations of the Plaintiff and Article 12 of the Regulations on the Organization, the positions of the employees belonging to the Plaintiff are subordinate members, directors, representatives, directors, deputy heads, and chiefs, and the salary class of the employees belonging to the Plaintiff has 1 to 15 salary class for each position, and the salary class of the new employees is in principle 1 salary class for the new employees.

According to the contents and legal principles of the above organization regulations, since a person who received the lowest treatment in the organization among regular workers with the Plaintiff’s affiliates is a regular worker of the employee class 1, it is reasonable to view the said employee as a comparative worker of the instant worker.

(2) In light of the fact that the Defendant was employed as a contractual sear in the instant company and converted to a regular sear, the Defendant asserts that, among the instant workers, the comparable workers of the instant worker 5, whose external work experience is one year, shall be regarded as a full-time worker with the salary class lower than the salary class 1, and the comparable workers of the instant worker 1 through 4, who had no external work experience, shall be regarded as a full-time worker with the salary class lower than the salary class 1, which is lower than the salary class 1. However, as seen earlier, since there is no employee lower than the salary class 1 among the full-time workers in the Plaintiff’s organization, the comparable workers asserted by the Defendant cannot be deemed as a full-time worker with the instant company. Accordingly, the aforementioned assertion by the Defendant cannot be accepted on a different premise.

2) As to the existence of unfavorable treatment

A) Criteria for determination

Article 2 subparag. 3 of the Fixed-term Workers Act defines discriminatory treatment as “unfavorable treatment in terms of wages and other working conditions, etc., without any justifiable reason.” The term “discriminatory treatment” refers to the overall disadvantages inflicted on fixed-term workers by treating fixed-term workers differently from the comparable workers in terms of wages and other working conditions (see Supreme Court Decision 2011Du7045, Oct. 25, 2012). However, in cases where there are differences between fixed-term workers and the comparable workers or there are differences between the detailed items constituting wages and the comparable workers, it shall not be considered whether there is any unfavorable treatment in terms of the detailed items of wages, and it shall be determined by dividing the wage items that meet the payment requirements by the provision of labor into the wage items that meet the payment requirements, and the total amount of all the items included therein shall be determined based on the total amount, in the case of the former.

B) Facts of recognition

(1) The basic salary of a full-time endr is the sum of the salary class and the job class, whose monthly working hours are 209 hours (including 35 hours of paid-in hours of paid-in hours), and the basic salary of a fixed-term endr is the amount calculated by the rate at which it is differentiated depending on external work experience, and is as set out in the following table (see Article 14 and attached Table 3 of the Benefit Regulations (Evidence 3)).

2,00,00 won for basic salary grade of duty at a salary grade (total) 142,00,000 won for basic salary grade of duty (total) since 2013 after 2012, which is included in the main sentence, 2457,00 won for 50,000 won for 438,000 won for 538,000 won for 938,000 won for 2457,000 won for 50,000 won for 474,000 won for 50,000 won for 50,000 won for 474,000 won for 50,000 won for 974,000 won for basic salary grade of duty.

Table classification contained in the main sentence shall be from August 20, 2012 to February 19, 2013, to August 20, 2013, to August 19, 2013, to August 20, 2013, to November 19, 2013; group 14,580 won to March 31, 2014; group 210,000 won to KRW 11,11,00 won to KRW 10,000 (group 210,000 won to KRW 11,000,000 for group 210,00 won to KRW 11,000 for group 2: Group 2 outside: Group 1 outside work experience);

(2) Ordinary allowances, such as overtime work, night work, and holiday work allowances, were equally paid to full-time end-time workers and part-time workers.

(3) In addition to the basic salary and legal allowances, 100% of the total amount of 300,000 won per month (Article 20-2 of the wage rules), customer service allowances (Article 20-3 of the wage rules), regular bonuses (Article 100% of the total amount of 30,000 won per month on the payment date of salary in January, March, May, July, September, September, September, and November), special bonuses (Article 21 of the wage rules, Article 7 of the Enforcement Rule of the wage rules), special bonuses [Article 7 of the wage rules), and the subsequent special bonuses (the end of the first half of the second half of the year) are paid at 10% of the total amount of 30,000 won on the basic salary, and the payment standard for annual special bonuses was made at 300,000 won on the basis of the basic salary (Article 20-3 of the wage rules) and the payment standard set forth in Article 27 of the wage rules (see the above wage rules).

- Standard for payment of hotel service charges

The amount of monthly payment of the table contained in the main sentence of this Act, August 163, 2012, 420, June 72, 2013, 72,750, September 68, 2012, 68,080, October 66, 2012, 185, 640, August 49, 870, 2013, 72, 960, October 11, 2011, October 75, 2013, October 13, 2013, October 18, 2013, October 18, 201, October 13, 206, October 14, 2013, October 18, 2013, October 18, 2013, 306, October 18, 2014

(4) In light of the aforementioned regular workers’ wage system and the amount of part-time with fixed-term workers’ wage system, the employee’s salary class 1 with the premise that monthly work hours are 209 hours (including 35 hours of paid-in and paid-in hours) during the period in which the instant workers worked (from August 20, 2012 to March 31, 2014) are as follows.

본문내 포함된 표 ■ 정규직 딜러: 55,375,981원 ○ 기본급 : 18,380,841원 - 2012. 8. 20.~2012. 12. 31.(1호봉) : 4,044,906원[922,000원×(4개월+12일), 원 미만은 버림, 이하 같다] - 2013. 1. 1.~2013. 8. 19.(1호봉) : 7,140,900원[938,000원×(7개월+19일)] - 2013. 8. 20.~2014. 3. 31.(2호봉) : 7,195,035원[974,000원×(7개월+12일)] ○ 벽지(문화)수당 : 1,938,710원[100,000원×(19개월+12일)] ○ 고객서비스수당 : 5,816,130원[300,000원×(19개월+12일)] ○ 정기상여금 : 12,492,000원 - 2012. 9., 11. : 2,444,000원[(922,000원+300,000원)×2] - 2013. 1., 3., 5., 7. : 4,952,000원[(938,000원+300,000원)×4] - 2013. 9., 11., 2012. 1., 3. : 5,096,000원[(974,000원+300,000원)×4] ○ 특별상여금 : 15,006,000원 - 2012.경 추석 특별상여금(2012. 9. 28. 지급) : 1,222,000원(922,000원+300,000원) - 2012.경 연말 특별상여금(2012. 12. 31. 및 2013. 1. 21. 지급) : 4,301,000원 [(922,000원+300,000원)×2+(938,000원+300,000원)×1.5] - 2013.경 설 특별상여금(2013. 2. 8. 지급) : 1,238,000원(938,000원+300,000원) - 2013.경 하계 특별상여금(2013. 6. 28. 지급) : 1,238,000원(938,000원+300,000원) - 2013.경 추석 특별상여금(2013. 9. 17. 지급) : 1,274,000원(974,000원+300,000원) - 2013.경 연말 특별상여금(2014. 3. 7. 지급) : 4,459,000원[(974,000원+300,000원)×3.5] - 2014.경 설 특별상여금(2014. 1. 29. 지급) : 1,274,000원(974,000원+300,000원) ○ 호텔봉사료 : 1,742,300원 ■ 기간제 딜러 ① 외부 근무경력이 없는 경우 : 29,935,720원 (4,580원×209시간×6개월)+(6,600원×209시간×6개월)+[10,000원×209시간×(7개월+12일)] ② 외부 근무경력이 1년 있는 경우 : 42,092,600원 (10,000원×209시간×12개월)+[11,000원×209시간×(7개월+12일)]

(In fact that there is no dispute, entry in Gap's 3, 4, 5, 7, and 8 and the purport of the whole pleadings.

C) the existence of unfavorable treatment

It is necessary to determine whether there exists unfavorable treatment for the instant workers on the basis of the total sum of the basic pay, remote area (cultural allowances), customer service allowances, and regular bonuses, since the amount of the annual bonus, which falls under the wage paid for the prescribed work, and the hotel service charges fall under the wage paid for the prescribed work.

The total amount of wages of the instant workers with a monthly working hours of 209 hours (including the hours of paid leave from August 20, 2012 to March 31, 2014) is KRW 5,375,981, and KRW 29,935,720, and KRW 42,600, in the event that the instant worker has no external work experience, and KRW 29,935,720, and KRW 42,600. In light of the difference in the amount of the said wages, the Plaintiff may be deemed to have treated the instant workers with a fixed-term work period of this case by failing to pay snow, summer leave, year-end special bonus, or hotel service charges.

3) As to the existence of reasonable grounds

A) Article 2 Subparag. 3 of the Fixed-term Workers Act provides that “where there is no reasonable ground” means where there is no need to treat a fixed-term worker differently, or where it is deemed necessary to treat a fixed-term worker differently, the method and degree thereof are inappropriate. Whether there exists a reasonable ground shall be determined by comprehensively taking into account the details of the unfavorable treatment at issue in an individual case and the factors such as the form of employment of fixed-term workers, the contents, scope, authority and responsibility of work, wage, and other working conditions, based on the circumstances based on which the employer and the employer considered the unfavorable treatment as a ground for unfavorable treatment (see Supreme Court Decision 2011Du7045, Oct. 25, 20

B) As seen earlier, there is a difference in the wage payment system of the instant workers with a regular endur as well as the instant workers’ wage payment system (a regular endur: the calculation of the base wage by aggregating the salary class and the job class. In other words, according to the Plaintiff’s personnel regulations, the instant company’s wage system has a structure that determines the amount of the salary class and the job class for employees on the basis of the class and salary class and the annual wage system based thereon (or the job-based disease system). Such a system is the method that determines wages based on the inner elements, such as the number of years of continuous service. However, in light of the purpose of the annual wage system premised on the premise that the accumulation of the annual wage system based on the premise of long-term employment leads to the increase in the ability to work, it is reasonable to apply the annual wage system to the instant contracted workers, who are contractual workers under the premise of short-term employment.

C) Therefore, in the instant case, unlike regular withstanding workers, there are reasonable grounds for the part that did not pay snow, summer vacations, drillings, annual end bonuses, and hotel service fees to the instant workers. In light of the following circumstances revealed from the respective descriptions and the purport of the entire arguments, even if there is a difference in the wage level between the instant workers and the regular withstanding workers, which are comparable workers, due to the difference in the factors determining the wage and working conditions, such as characteristics of employment form, employment conditions, employment conditions, scope of and ability to work, number of years of service, etc., it is reasonable to deem that there exists a reasonable ground to view that the Plaintiff has a difference between the comparable workers and the instant workers in the wage level, including snow, summer vacations, vacations, annual bonuses, special bonuses, hotel service charges, etc.

(1) Relating to the recruitment process of regular workers: (a) unlike other occupational groups, when the Plaintiff is employed as a full-time worker who belongs to the casino business occupational group, the Plaintiff has been employed for a certain period of time prior to the employment, and has been employed as a contract with the contract with the contract with the contract with the contract with the worker for a certain period of time. Accordingly, on July 11, 2011, the employees converted into a full-time worker with the contract with the contract with the contract with the one year and six months prior to the transition, and on January 1, 2014, the employees converted into a full-time worker with the contract with the contract with the contract with the two years prior to the transition. In addition, even if the contract with the contract with the full-time worker with the outside worker’s experience, the contract with the contract worker with the outside worker is subject to one week, and four weeks when the contract with the contract worker with the outside worker has no outside work experience. As such, the contract worker with the contract worker with the employment period more than one year and six months more than the work of this case.

(2) 담당 업무의 차이: 비교대상 근로자는 블랙잭, 바카라, 룰렛, 다이사이, 빅휠, 캐리비언스터드포커, 쓰리카드포커, 카지노워 등 8개 종목을 진행하는 데에 비해 이 사건 근로자들은 그중 블랙잭, 바카라 등 2개 종목만 진행한다. 블랙잭, 바카라가 전체 진행 게임 중 76.7%를 차지하여 비교대상 근로자와 이 사건 근로자들의 주된 업무에는 차이가 없으나 비교대상 근로자만 수행할 수 있는 특수한 업무가 존재하고 이는 원고가 임금을 정할 때 고려할 수 있는 사정이다.

(3) A fixed-term worker with outside work experience: ① The number of visitors or sales of the instant worker was considerably high compared to other casinos (the number of visitors as of 2013 is 3,024,511 annually; annual sales of the Plaintiff’s casino is 1,209,332,00,000 won; annual number of visitors at ○○○○○○○ △△△△△△△△△△△△△△△△△ KRW 200, annual number of visitors is 912,288; annual sales are 212,823,00,000 won; annual number of workers participating in the instant game is 12,00,000,000 or more, and the number of workers engaged in the instant work experience is 10,024,000,0000,0000 won or more than that of other casinos, and thus, it cannot be deemed that the Plaintiff’s wage is inappropriate.

(4) 외부 근무경력이 없는 기간제근로자 관련: 외부 근무경력이 없는 사람이 블랙잭, 바카라 중 어느 한 종목에서 어느 정도 숙달되는 데까지 필요한 기간은 5~7개월 정도여서 위 두 종목에서 어느 정도 숙달되는 데에는 1년 정도의 기간이 필요하다. 따라서 외부 근무경력이 없는 이 사건 근로자 1 내지 4는 비교대상 근로자보다 업무능력이 상당히 떨어진다고 볼 수 있다(이러한 사정을 고려하여 원고는 외부 근무경력이 없는 이 사건 근로자 1 내지 4에게 외부 근무경력이 있는 이 사건 근로자 5가 지급받은 시급의 50% 정도밖에 지급하지 않았다).

4) Sub-committee

Therefore, the judgment of the retrial of this case is unlawful on a different premise.

3. Conclusion

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

[Attachment]

Judges Happiness (Presiding Judge)