In a case where: (a) Company A et al. had worked as a sports assistant for a golf course operated by Company B; (b) Company B decided to hold a meeting without complying with the request for collective bargaining to improve working conditions; and (c) Company B failed to comply with such request; and (d) Company B rendered a disposition restricting access to a golf course on the grounds that Company B interfered with the business of Company B by inciting the Gyeonggi-do assistant to attend the meeting; (b) Company A et al. was a legitimate member of the trade union not premised on the labor contract relationship with Company B; and (c) Company A et al. was a legitimate member of the trade union not premised on the labor contract relationship

In a case where: (a) Company A et al. had worked as a sports assistant for a golf course operated by Company B; (b) Company B decided to hold a meeting without complying with the request for collective bargaining to improve working conditions; and (c) Company B did not appear, the Plaintiff et al. conspired Party B et al. to attend the meeting to interfere with the business of Company B; and (b) imposed a disposition restricting access to a golf course on the grounds that the Plaintiff et al. interfered with the business of Company B, the case held that: (a) in light of all the circumstances, it is difficult to readily conclude that Party A et al. was an employee under the Labor Standards Act or a contractual relationship to provide similar protection to workers under the Labor Standards Act with Company B; (b) the employee status under the Trade Union and Labor Relations Adjustment Act is recognized; and (c) Company A et al. did not require a subordinate relationship with Company B as a member of a trade union, namely, the legitimate member of a trade union not premised on a labor contract relationship with Company B; and (d) the time when

Article 2(1)1 and Article 23(1) of the Labor Standards Act; Article 2(1)1 and 4(d) of the Trade Union and Labor Relations Adjustment Act; Article 81 subparag. 1 of the Trade Union and Labor Relations Adjustment Act

Plaintiff 1 and four others (Attorney Kim-sik, Counsel for the plaintiff-appellant)

Han-ro Co., Ltd. (Attorney Go-o et al., Counsel for defendant-appellant)

Daegu District Court Decision 2006Kadan164920 Decided December 11, 2008

April 23, 2015

1. The judgment of the first instance court is modified following the plaintiffs' changes in their claims in the trial.

A. All of the plaintiffs' primary claims are dismissed.

B. Upon the plaintiffs' preliminary claim, the defendant shall pay to the plaintiffs 1, 2, 3, and 5 12,65,702 won each, 11,367,257 won each, and 5% per annum from June 19, 2004 to May 21, 2015, and 20% per annum from the next day to the date of full payment.

C. All of the plaintiffs' remaining conjunctive claims are dismissed.

2. Of the total litigation costs, 2/3 shall be borne by the Plaintiffs, and the remainder by the Defendant, respectively.

3. Paragraph 1-b. above may be provisionally executed.

1. Purport of claim

In the first place, the defendant's dismissal against the plaintiffs on August 19, 2003 is confirmed to be null and void. The defendant shall pay to the plaintiffs 1, 2, 3, and 5 1,594,938 each month from August 19, 2003 to August 18, 2008, 6% each year from August 19, 2008 to December 2, 2008, and 20% each year from the next day to the day of full payment. The defendant shall pay to the plaintiffs 4 1,326,512 each month from August 19, 2003 to August 18, 2008 to the day of full payment, and 1,512% each year from August 26, 2008 to the day of full payment.

Preliminaryly, the defendant shall pay to the plaintiffs 1, 2, 3, and 5 20,949,380 won each of them, 18,265,120 won each of them, and 5% per annum from June 19, 2004 to June 26, 2008, and 20% per annum from the next day to the date of full payment (the plaintiff changed his claim in the trial, and in particular the plaintiff voluntarily withdrawn the part of the claim for monetary payment from August 19, 2008 to the date of full payment).

2. Purport of appeal

A. The plaintiffs: It is modified as stated in the judgment of the first instance court.

B. Defendant: The part against the Defendant among the judgment of the first instance is revoked, and all of the Plaintiffs’ claims on the revocation are dismissed.

1. Basic facts

A. On February 3, 2001, 3,106 members of the Gyeongbuk-gu consortiums were declared bankrupt, and 3,106 members of the Gyeongbuk-gu consortiums constituted a membership council and established the defendant Han-dong Co., Ltd.

B. On November 15, 2001, the Defendant: (a) opened and opened the Gando Congym (hereinafter “instant golf club”) on February 10, 2002, the Defendant allowed those who wish to enter the instant golf club from among the sports assistants who entered the Gando Congym (hereinafter “instant golf club”); (b) from around 1994, Plaintiffs 1, 2, and 5 from around 194, Plaintiff 3 from around 195, and Plaintiff 4 from around May 2001 to as business assistant; and (c) entered the instant golf club from February 10, 2002 to the Defendant’s business assistant.

C. On June 9, 2003, some of the sports assistants of the instant golf course including Nonparty 1 (hereinafter “instant trade union”) established a branch of the National Women’s Union of Korea (hereinafter “the instant trade union”).

D. From June 12, 2003 to June 14, 2003, the Defendant publicly announced that Gyeonggi assistants will select sports-related workers (not general employees, but not sports-related workers, as much as the incomes are less than those of sports-related assistants, it is rare to support the selection of sports-related workers, and ordinary three-party workers will be in charge of this work), and upon submitting the job application form, Nonparty 2 was newly employed on June 17, 2003 as a 18th of that month by employing Nonparty 2 as a sports-related worker and a chief of the field.

마. 이에 ‘피고가 이 사건 노동조합을 와해시키기 위하여 허위로 경기진행요원을 선발한다는 공고를 하여 다른 경기보조원들로 하여금 지원하지 않도록 한 후 입사지원서를 제출한 소외 2를 캐디 마스터로 채용함으로써 경기보조원 중 신망이 두터운 자를 캐디 마스터로 선발하는 관례를 깼다’는 비난여론이 경기보조원들 사이에 일어나자, 피고는 2003. 6. 26. ‘직원의 채용은 회사의 고유 권한이므로 이에 대한 불만 등을 이유로 선동 및 압력을 행사하는 등의 행위를 삼가하여 줄 것을 당부한다’는 내용의 공고를 하였다. 이러한 가운데 경기보조원 소외 3이 소외 2와 다투는 사건이 일어나자, 피고는 사실규명 절차도 없이 소외 3에게만 출입제한처분을 하였고, 이러한 과정에서 소외 1을 비롯하여 일부 경기보조원들은 피고로 하여금 소외 3을 복직시키도록 하기 위하여 노력하였다.

F. In addition, the head of the Daegu Branch of the Korean Women's Union (hereinafter referred to as the "head of women's labor-management Daegu Branch") requested the Defendant to conduct collective bargaining to improve the working conditions of business assistants three times from July 18, 2003 to August 2 of the same year.

G. However, without complying with the above collective bargaining request, the Defendant publicly announced to the Gyeonggi assistant that “from August 13, 2003 to the 14th day of that month, the Plaintiff will hold a meeting with a representative director to discuss all matters concerning the Gyeonggi Assistant’s business, and if he does not attend the meeting, he shall be deemed to be absent from office without permission.” The instant trade union opened an emergency executive meeting to determine that the meeting would reduce the union’s unity and decided to attend the meeting.

H. On August 19, 2003, the Defendant held a meeting of executive members and prevented them from working as game assistants without summons, etc. to the disciplinary procedure and from having access to the Defendant on the ground that the five executive members including Nonparty 1 (Plaintiff 2, Plaintiff 3, Plaintiff 5, and Nonparty 5), who are the president of the instant trade union, including Nonparty 1, who were the president of the instant trade union, instigates them to attend the meeting and interfere with the Defendant’s business. Accordingly, some of the sports assistants, including Plaintiff 1 and Plaintiff 4, including Plaintiff 1, and Plaintiff 4, including the instant trade union, began to be a tent farming when demanding their withdrawal. The Defendant issued a disposition to restrict their access to the instant golf course against Plaintiff 1, and Plaintiff 4 (hereinafter “the instant disposition of restriction on access” or “the instant dismissal”).

I. The president of the Women's Labor-Management-gu Branch requested the Defendant to conduct collective bargaining six times from August 20, 2003 to September 24, 2003. Of these, some of the Defendant's sports assistants constituted the 6th regular meeting.

On November 17, 2003, the defendant held a joint conference (the steering committee consisting of the representative members elected from among the members elected from among the members of the golf course of this case, and the board of directors of the defendant decided on important matters of the defendant, such as the appointment and dismissal of a joint representative director, etc. by organizing a joint conference) and decided that "a negotiation counter with Gyeonggi assistant shall be unified into the sports subcommittee, and a negotiation counter with Gyeonggi assistant shall be integrated into the sports subcommittee, and a delegation of the whole right concerning the cancellation of conditional restriction of entry restriction negotiation, premised on the signature of the sports assistant subject to the restriction of entry, shall be delegated to the sports subcommittee."

(k) On December 13, 2003, Nonparty 1 agreed to the effect that, in the presence of Nonparty 6 to Nonparty 7 of the chairman of the Daegu Regional Labor Office’s Labor Relations Division in the capacity of the chairman of the instant trade union, “in the event that the Defendant would give disadvantages to the union members, such as the prohibition of entry, in accordance with the party’s voluntary work rules, it shall be fair to maintain fairness with the business assistants belonging to the standing union, and immediately cancel the entry restriction and return to work, 18 members including the president, etc. shall return to work within 10 days from the date of agreement, and shall not cancel all complaints and accusations arising between the two parties, and shall not take unfavorable measures against their days” (hereinafter “instant agreement”). On behalf of 66 members of the instant trade union, Nonparty 1 and other union members comply with the standing rules. It did not force the union members to join the standing union or to have the union members enter the standing union (the same shall not apply to the case where multiple trade union agreements are made.”

Other. On December 15, 2003, the Defendant held a joint conference to the effect that “If it is impossible to do so by having the president of the Gyeonggi-do and the president of Nonparty 8 hold further negotiations, other than a written agreement or a pledge, he/she will sign the agreement with the sports assistant in agriculture.”

(m) The Defendant maintained the restriction of access to the Plaintiffs until the closing of the instant argument.

(n) The actual working conditions of Defendant Gyeonggi-do assistants;

(1) If there is a shortage of sports assistants in the instant golf course, the Defendant does not prepare a contract in a labor contract or any other form other than the Defendant’s representative director, head of the sports division, director, etc., after making a recruitment advertisement in daily newspapers to submit a resume, copy of resident registration, etc., and after setting the interview date, and after making an interview with the Defendant’s representative director, head of the sports division, director, etc., and making the results of the interview. The Plaintiffs, through the above process, became employed as sports assistants in the instant golf course before the establishment of the Defendant, and became established by the Defendant, to work for the instant golf course operated by the Defendant. As such, the sports assistants selected should undergo overall education on the sports support work, such as the method of customer response, the sports assistant’s basic matters to be observed, the guidelines for supporting the visitors, and the methods of activities for supporting the visitors.

(2) On the instant golf course operated by the Defendant, approximately 108 sports assistants, including the Plaintiffs, were working for the instant golf course to assist visitors with the golf games. However, on May 2002, sports assistants elected six lighting assistants, including Plaintiff 3, by voting for the first patrolmen.

(3) In order to conduct the business trip to the instant golf course in accordance with the sequence set by the Defendant’s games, sports assistants, including the Plaintiffs, continued to leave from the games following the completion of the business assignment on the day, to prepare for a case where a business trip is needed due to the visitors, who worked in the work hours set by dividing the entire sports assistants into three groups, and who were not scheduled after the completion of the business assignment in line with their sequences.

(4) The duties of sports assistants employed in the instant golf course consisting of a group with the sports team allocated by the sequences, and provides advice on the methods of public communication of the golf course, the remaining distance to the target branch, the selection of the club, etc., while engaging in the golf course. On the other hand, the golf bank transportation and search for the balls entering the forest by cutting off the golf course in compliance with the demands of the visitors, or cutting off the turfs, flafing the turfs arising from the display of the golf course, or removing the turfs arising from the display of the golf course, and then controlling the athletic speed in order to coordinate the interests of the general public in accordance with the encouragement of the Defendant Gyeonggi and its employees.

(5) Gyeonggi assistants are not subject to the rules of employment set by the Defendant for the general employees. In the event of absence or early retirement of game assistants without permission, excessive demand for money and valuables to visitors, and violation of uniforms, etc., the promotion of election from among the game assistants and the formation of a disciplinary committee, and the glare’s opinion on the disciplinary action against the game assistants, and the final disciplinary action level, including the restriction on access to a golf course, which cannot work as game assistants according to the Defendant’s direction, is set, and the level of the Defendant’s direction, including the restriction on access to a golf course, is determined. The Plaintiffs also received the restriction on access to a golf course and did not perform

(6) On the other hand, the Defendant provided all the equipment necessary for the game assistant to carry out the uniforms and the game auxiliary duties.

(7) In return for the performance of the above-mentioned business activities, sports assistants receive Capitalddi (cadiefe) from visitors after the end of the game. The Defendant, as one of the operation policies of the instant golf course, set the amount of Capitalddi in advance, and uniformly set the payment of capitalddi, and have the visitors pay it directly to the match assistant. If the match assistant demands the visitors to pay the additional service fees in addition to the prescribed capitalddi, and causes the visitors’ complaints, it would no longer be able to perform the sports support activities in the instant golf course upon receiving the restriction on access to the golf course.

(8) The Defendant did not pay all the money and other valuables corresponding to the capital gains or the business suspension allowances prescribed under the Labor Standards Act even if business assistants are unable to provide services on a golf course without any cause due to the reduction of visitors, etc., due to the reduction of visitors, etc., and did not include capital gains in the Defendant’s importation or withhold labor income tax, and did not subscribe business assistants in the national pension, employment insurance, industrial accident compensation insurance, medical insurance, etc. as the insured.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 4, and 11 (including branch numbers, if any; hereinafter the same shall apply), non-party 1's testimony of non-party 1 of the first instance court, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiffs' assertion

1) The primary cause of the claim

A) Under the premise that the Plaintiffs are workers under the Labor Standards Act, the instant restriction disposition against the Plaintiffs is substantially null and void as a dismissal with no justifiable reason under Article 23 of the Labor Standards Act. Thus, the Plaintiff is obligated to seek confirmation of the invalidity of the instant restriction disposition, i.e., the date of the instant restriction on access, i., the date of the instant restriction on access, i.e., the date of the instant dismissal to the

B) Even if the Plaintiffs are not workers under the Labor Standards Act, the Plaintiffs and the Defendant enter into a labor supply contract similar to the labor contract, and thus, the status corresponding to the Labor Standards Act is maintained through the good faith principle under Article 2 of the Civil Act. On the premise that the Plaintiffs’ instant restriction on access solely on the sole ground that the Plaintiffs instigated Gyeonggi assistants to attend the meeting is invalid due to the excessive disposition beyond the reasonable scope, or null and void due to the violation of the good faith principle, or deviation from the discretionary authority, and thus, the Plaintiffs are obliged to pay the wages of five-year

2) Preliminary Claim Grounds

A) The instant disposition of restriction on access is an unfair labor practice under Article 81 subparag. 1 of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union and Labor Relations Adjustment Act”), and thus, constitutes a tort against the Plaintiffs, part of the amount of ten months and mental damage equivalent to wages should be compensated.

B) The denial of the instant restriction and the instant agreement constitutes a non-performance of obligation under the continuous service contract, similar to the contract and delegation, existing between the Plaintiffs and the Defendant, or a nonperformance of obligation under the instant agreement itself, and thus, the part of the amount of ten months out of the property damage equivalent to wages and the amount of mental damage ought to be compensated.

B. Defendant’s assertion

1) The Plaintiffs, who are sports assistants of the instant golf course, are not workers under the Labor Standards Act that provide labor for the purpose of wages under their employment subordinate relationship, and there is no legal relationship between the Plaintiffs and the Defendant. Therefore, the Plaintiffs’ assertion seeking wages on the premise that an implied or marina labor contract or labor provision contract of similar form has been established between the Plaintiffs and the Defendant is without merit.

2) Inasmuch as the Defendant’s instant disposition of access restriction on the ground of the Plaintiff’s illegal act does not constitute an employee under the Trade Union and Labor Relations Adjustment Act, the Plaintiffs’ assertion to seek compensation for damages on the premise that the disposition was an illegal act or nonperformance of obligation as an unfair labor practice under the Trade Union and Labor Relations Adjustment Act is without merit.

3. Judgment as to the main claim

A. Whether the instant golf course business assistant constitutes a worker under the Labor Standards Act

1) Relevant legal principles

(4) In order to apply the restriction on unfair dismissal, etc. to legal relations between the Plaintiff and the Defendant, the Plaintiff first falls under the category of workers prescribed in Article 2 (1) 1 of the Labor Standards Act. Determination as to whether a contract constitutes a worker under the Labor Standards Act, regardless of whether the contract is an employment contract or a contract for work, or whether the worker provides labor in a subordinate relationship with the employer for the purpose of wages at the golf course. Determination as to whether a dependent relationship exists shall be made with the employer, and shall be subject to the rules of employment, service regulations, personnel regulations, etc., specific and direct direction and supervision by the employer, whether the worker is designated as working hours and working places are detained by the employer, whether the worker is in need of replacement of the work, whether the worker has the nature of remuneration itself, whether the labor contract has any basic wage or whether the labor relationship with the golf course operation order has been provided, and whether the labor contract has any economic condition and status of the party concerned, such as the provision of labor at the golf course operation.

2) Determination

A) In light of the above legal principles, it is difficult for the Plaintiffs to know that the above facts were added to the above facts. ① The business of Gyeonggi Assistants, who are engaged in the instant golf course, is set up only with specific visitors using golf facilities, and assist them in the sports of visitors, and such as transporting golf banks which contain golf loans to meet the demands of visitors. The sports assistant business is not originally required to provide services to visitors as a matter of course, and it cannot be said that such services by Gyeonggi Assistants are unnecessary for the operation of the golf course. ② Gyeonggi Assistants cannot be viewed as having provided services to the Plaintiffs’ employees under the premise that they did not receive the Defendant’s instruction and supervision on the sports assistant’s own as well as on the fact that they did not receive the Defendant’s instruction and supervision on the sports assistant’s own as well as on the fact that they did not receive any necessary money from the Defendant’s sports assistant for the purpose of using the sports assistant’s own under the Labor Standards Act.

B) On the premise that the legal relations similar to the employment contract between the plaintiffs and the defendant are maintained, the plaintiffs asserted that the restriction of entry in this case is null and void against the good faith principle, so it is difficult to conclude that the evidence submitted by the plaintiffs alone has established a contractual relationship between the plaintiffs and the defendant to provide similar protection to the workers under the Labor Standards Act. On the premise of this, there is no ground for the plaintiffs' assertion that the restriction of entry in this case violates the good faith principle as an abuse of rights or deviates from the disciplinary discretion (if the plaintiffs recognize the status similar to the workers, then the payment of wages should be ordered until the reinstatement at least in monetary aspect, and there is no difference between the cases where the status of workers

B. Sub-determination

Ultimately, the plaintiffs' primary claims seeking wages from August 18, 2008 from the date of dismissal on the premise that the legal relations, such as the labor contract or other similar labor provision contract, have been established between the plaintiffs and the defendant, are without merit.

4. Judgment on the conjunctive claim

A. Whether the instant golf course assistant constitutes a worker under the Trade Union and Labor Relations Adjustment Act

1) Relevant legal principles

Workers in the main sentence of Article 2(1)1 and 4(d) of the Trade Union and Labor Relations Adjustment Act refer to “persons who live in salary, salary, or any other income equivalent thereto, regardless of the type of occupation.” Workers in the Trade Union and Labor Relations Adjustment Act refers to those who engage in labor under the subordinate relationship with others and live in a life by receiving wages, etc. in return for such labor. The dependent relationship is determined by the actual labor relationship between the employer and the provider of labor regardless of the form of the relevant labor supply contract, such as employment, contract, delegation, and pseudonym, regardless of whether the form of the relevant labor supply contract is a form of employment, contract, etc. (see Supreme Court Decisions 90Nu1731, May 25, 1993; 2005Da64385, Oct. 13, 2006; 201Du23139, Mar. 27, 2014, etc.).

2) Determination

위 법리에 비추어 이 사건에 관하여 보건대, 앞서 든 증거 및 갑 제13 내지 44호증의 각 기재와 제1심 증인 소외 1의 증언에 변론 전체의 취지를 종합하면, 피고의 경기보조원들은 내장객의 경기보조업무를 수행함에 있어서 캐디 마스터 등 피고의 지시를 받고, 출근에 있어서도 피고에 의하여 지정된 번호순서에 따라 출근시간이 정하여지며, 새벽근무도 해야 하고, 휴장일에도 출근하여 교육을 받거나 피고의 지휘·감독하에 골프장 시설 및 전동카트 청소, 오물 수거 등의 노무를 제공하여야 하며, 캐디 마스터 등 피고 측의 업무 지시나 결정에 위반하거나 무단결근을 하는 경우에 벌칙으로서 수입에 결정적인 타격을 주는 일정 기간 근무정지나 배치 거부 등의 제재를 받고, 2003. 8. 2. 조장 제도를 폐지하기 이전까지는 피고 측에 의하여 지명된 캐디 조장에 의한 통제를 받았으며, 내장객 보조업무가 종료되면 내장객으로부터 캐디 피를 지급받은 사실을 인정할 수 있고, 위 인정 사실에다가 ① 원고들을 포함한 이 사건 골프장의 경기보조원들은 골프장 운영자인 피고와 내장객에게 노무를 제공하고서 내장객으로부터 받는 캐디 피를 유일한 수입원으로 하여 생활하는 사람인 점, ② 피고는 필요에 따라 경기보조원을 모집하고, 신규 경기보조원을 상대로 경기보조원의 자질에 관한 교육을 하고 있고, 경기보조원들은 기존의 관행, 피고로부터 받은 교육 내용, 경기보조원 수칙 및 피고가 경기팀장이나 캐디 마스터를 통하여 수시로 지시하는 내용에 따라 업무를 수행한다는 점, ③ 경기보조원들은 골프장 내장객에게 본래의 경기보조 서비스를 제공하면서 수시로 피고의 지시를 받아 신속한 경기 진행 등 내장객에 대한 관리업무와 디벗 수리, 오물 수거 등 골프장 시설 관리업무를 수행하고 있는데, 이는 신속한 골프경기 진행 및 경기팀 간의 일정한 간격 유지를 통하여 코스의 회전율을 높이고 골프장에 대한 이미지 관리를 통하여 내장객의 만족도를 증대시킴으로써 궁극적으로 이 사건 골프장 운영수익을 극대화하려는 피고의 이익에 부합하는 것이어서 경기보조원들이 이러한 업무를 자율적으로 수행한다고 보기는 어려운 점, ④ 경기보조원들은 내장객들에 대한 경기보조업무 시마다 별도로 구체적·직접적인 지휘·감독을 받고 있지는 않으나, 피고가 정한 순번 및 출장예정시간에 따라 출근, 근무 및 퇴근시간이 정해지고, 경기팀장, 캐디 마스터 등의 정기적인 점호 교육이나 공고 등을 통한 지시사항 전달, 출근부 작성, 복장과 언행, 지각과 조퇴 등에 관한 제재, 포상 등을 통하여 일상적인 근태관리를 받고 있으므로, 피고는 경기보조원들의 근무내용, 근무시간 및 근무장소에 대하여 상당한 정도의 지휘·감독을 하고 있다고 볼 수 있는 점, ⑤ 경기보조원들은 경기보조업무 수행과정에서 필요한 작업도구를 피고로부터 제공받아 사용하고 있으므로 노무 이외에 자신의 자본을 투여하는 일이 없고, 그 업무내용이 단순 노무 제공의 측면이 강하며, 피고가 지정한 순번에 따라 출장의 기회를 제공받으므로 내장객을 임의로 선택하거나 교체를 요구할 수 없고, 캐디 피의 액수도 경기보조원들이 내장객과 사이에 임의로 정할 수 있는 것이 아니어서 경기보조원들 스스로 노무 제공을 통한 이윤의 창출과 손실의 초래 등 위험을 부담하는 독립사업자로 볼 수 없는 점, ⑥ 이 사건 골프장의 경기보조원들은 출장일수가 적지 않고, 피고가 정하는 출장순번에 따라 출장하는데 자신의 출장순번이 언제 돌아올지 정확히 예측할 수 없어 실제로 이 사건 골프장 외의 다른 골프장에서 경기보조업무를 수행하는 것은 사실상 불가능하므로 피고에 전속되어 계속적인 경기보조업무를 수행하고 있다고 보아야 하는 점, ⑦ 캐디 피의 경우, 근로기준법상의 임금이라고 단정하기는 어렵지만, 경기보조원이 피고 회사에 의하여 경기보조원으로 선발·채용될 때 경기보조원은 피고가 임의로 지정하는 내장객에게 노무 제공을 하기로 하고 그 대가로 피고로부터 캐디 피로서 1경기당 일정한 금원을 지급받기로 하는 묵시적인 약정이 있었다고 보이고, 이와 같은 약정은 고용계약관계에 근사하므로 캐디 피를 노조법 제2조 제1호 의 ‘기타 이에 준하는 수입’으로 볼 수 있는 점, ⑧ 그 외에도 경기보조원의 업무의 성질이나 회사에 의하여 근무시간이 정해져 있고 매일 출근하여야 하는 관계상 다른 회사에의 취업이 사실상 곤란하여 경기보조원들은 피고에 거의 전속되어 있다고 보이는 점, ⑨ 2003. 6. 9. 이 사건 골프장의 경기보조원들을 가입대상으로 한 이 사건 노동조합이 설립되어 활동한 점, ⑩ 전국여성노동조합 대구지부는 수차례에 걸쳐 피고에 대하여 경기보조원의 근로조건 개선을 위한 단체교섭을 요청하기도 한 점, ⑪ 이 사건 노동조합장인 소외 1은 2003. 12. 13. 대구지방노동청 근로감독과장 소외 6의 입회하에 피고 경기분과위원회 위원장 소외 7과의 사이에 이 사건 출입제한처분 해제와 관련하여 교섭절차 등을 가진 점 등을 종합하면, 이 사건 골프장의 경기보조원들은 자신들의 노무 제공의 대가인 캐디 피만으로 생활하는 자로서 노조법 제2조 제1항 제1호 , 제4호 (라)목 본문에서 말하는 ‘기타 이에 준하는 수입에 의하여 생활하는 자’에 해당하는바, 피고의 구체적인 지휘·감독에 따라 자신들의 노무 제공을 하고 있고, 경기보조원들의 업무 수행과정에 피고가 관여하는 정도가 커서 경기보조원들의 피고에 대한 인적·업무적 종속성이 비록 근로기준법상의 근로자 정도의 구체성, 개별성을 갖추지는 못했지만 그 정도가 상당하고, 특히 경기보조원들의 캐디 피 수입도 피고에 의하여 상당한 영향을 받고 있으므로 경기보조원 스스로 독립하여 자신의 위험과 계산으로 사업을 영위할 수 있는 독립사업자성의 징표가 미흡하므로 이 사건 골프장의 경기보조원들에 대하여는 노조법상의 근로자성을 인정할 수 있다( 위 대법원 2011다78804 판결 참조).

Therefore, it is reasonable to view that the Plaintiffs are legitimate members of the instant trade union, which is not premised on the labor contract relations with the Defendant, in other words, that they are regional unions and their membership and do not need a subordinate relationship with the specific employer. Although the Defendant did not bear the obligations under the Labor Standards Act, it constitutes an employer under the Trade Union and Labor Relations Adjustment Act, it constitutes an employer under the Trade Union and Labor Relations Adjustment Act

B. The legality of the instant restriction disposition

1) Criteria for determining unfair labor practices

A) As seen earlier, the Plaintiffs, who are sports assistants to the instant golf course, constitute workers under the Trade Union and Labor Relations Adjustment Act. Accordingly, the Defendant’s instant restriction disposition on access constitutes unfair labor practices under the Trade Union and Labor Relations Adjustment Act.

B) In cases where an employer’s act of providing disadvantages to workers is deemed to have been performed on the ground of the worker’s lawful labor practice, unlike the ground that the act was done on the ground of the worker’s trade union activity, the act should be deemed to be an unfair labor practice. Whether the act was done on the ground that the employer performed justifiable acts for the worker’s trade union operations, the period when the employer performed the act of causing disadvantages to the worker, the relationship between the employer and non-members, the imbalance between the union members and non-members in the same kind of circumstances, the consistency with the past practice, the employer’s speech and behavior or attitude toward the worker, and other circumstances that may presume the existence of the employer’s intent to engage in the unfair labor practice (see, e.g., Supreme Court Decision 9Du2963, Apr. 11, 200). In addition, the determination of whether the employer’s act constitutes an unfair labor practice as prescribed by the Trade Union and Labor Relations Act ought to be made by comprehensively examining and examining all the circumstances under which the employer can be presumed to exist.

2) Determination as to whether the instant restriction disposition constitutes unfair labor practice

A) Defendant’s assertion

Since the plaintiffs refused the control of the car masters and interfered with the defendant's work, the restriction of access of this case was imposed to the minimum extent of the golf course of this case and disciplinary meaning of the plaintiffs' unfair act. Therefore, there is a justifiable reason for the restriction of access of this case.

B) Determination

In light of the above legal principles, the following circumstances acknowledged as to the instant case: ① the Defendant announced that sports assistants and the Defendant would be able to take advantage of the custom immediately after the establishment of the instant trade union; ② the Defendant’s employment of Nonparty 2 as an applicant for the restriction on access to a golf course, which is subject to the expulsion without any specific reason, was offered to Nonparty 3, i.e., the Plaintiff’s restriction on access to the golf course from the date of establishment of the instant trade union; ③ Nonparty 1 and the Plaintiffs’ sports assistant Nonparty 3 were allowed to take advantage of the fact that the Plaintiff’s restriction on access to the golf course, which were subject to the restriction on access to the instant case, were unfairly dismissed; ④ the Defendant’s restriction on access to the instant case, which was issued by Nonparty 1 and the Plaintiff’s sports assistant Nonparty 3, on the ground that the Plaintiff’s restriction on access to the instant case did not collectively participate; ④ the Defendant’s restriction on access to the instant case’s organization and the Defendant’s restriction on access to the Plaintiff’s 1’s sports assistant, including the Plaintiff 3.

3) Sub-decisions

Therefore, the Defendant’s restriction on access to the Plaintiffs should be deemed unlawful as an unfair labor practice under Article 81 subparag. 1 of the Trade Union and Labor Relations Adjustment Act.

C. Defendant’s liability for damages

1) Occurrence of damages liability

A) Liability for damages caused by tort

The plaintiffs are the legitimate members of the trade union of this case, which is not premised on the labor contract relations with the defendant. The defendant bears the duty under the Trade Union and Labor Relations Adjustment Act as an employer under the Trade Union and Labor Relations Adjustment Act. The defendant's restriction on access of this case is illegal in violation of Article 81 subparagraph 1 of the Trade Union and Labor Relations Adjustment Act

Ultimately, according to the above facts, the Defendant, even though there is no ground to impose sanctions on the Plaintiffs to limit access to the instant golf course, may be deemed to have been disadvantageously imposed on the Plaintiffs under the intent of excluding the Plaintiffs from the instant golf course. As a result, the Plaintiffs were unable to take part in the instant golf course and received from the visitors. In particular, without setting the deadline for the restriction on access to the instant golf course, the Plaintiffs deprived of the sports assistant’s opportunity to take part in the instant golf course until accepting the conditions actually demanded by the Defendant. Therefore, by restricting the Plaintiffs’ access to the instant golf course without justifiable grounds, the Defendant infringed the Plaintiffs’ right to provide sports support services, etc. to the visitors in the instant golf course and receive money equivalent to the instant amount of money, and it is reasonable to deem the Defendant’s act as such constitutes a tort as it is not permissible under the sound social norms and social norms of our country.

B) Liability for damages due to default

According to the facts found above, the plaintiffs and the defendant agreed to allow the plaintiffs to freely enter the golf course in this case and receive service fees from them, and provide them with equipment necessary therefor. The plaintiffs naturally induce visitors to follow the defendant's golf course operation policy in using the golf course in this case, and offer services such as regulating the rate of competition, so that the operation and use of the golf course can be achieved smoothly, and a contract for continuous service similar to brokerage, contract, or delegation, which is a bearer contract with the duty to cooperate to the defendant. However, although it is difficult for the plaintiffs to view that "the plaintiffs instigated Gyeonggi assistants to participate in the meeting and interfere with the defendant's business" was unable to be deemed to have failed to perform the duty under the contract for continuous service similar to the above brokerage, contract, or delegation, the defendant imposed restrictions on the entry of this case without notifying the plaintiffs of the reasons therefor, and the agreement of this case was reached thereafter. Thus, the defendant is liable for damages under the above contract between the plaintiffs and the defendant.

The defendant asserted that the agreement of this case was reached between the non-party 7, not a legitimate person under the Commercial Act and the articles of incorporation of the defendant. However, according to the facts acknowledged earlier, the non-party 7, the chairman of the game subcommittee of this case, granted the right of representation to the agreement of this case from the defendant. Thus, the defendant's argument is without merit.

C) Sub-determination

Therefore, the defendant is liable for damages suffered by the plaintiffs due to the above illegal acts or nonperformance of obligation.

2) Scope of damages

A) Property losses

(1) Criteria for calculating damages

Property losses due to tort or non-performance refer to the difference between the property losses caused by the illegal harmful act and the current property losses caused by the illegal act. In a lawsuit seeking compensation for damages due to nonperformance or non-performance of obligation, the maximum amount recognized as the occurrence of property losses, and where it is difficult to prove specific damages due to the nature of the case, the court may determine the scope of losses in proximate causal relation by taking into account all the indirect facts, such as the relationship between the parties revealed by the result of examination of evidence and the purport of the entire pleadings, the circumstances leading up to nonperformance and the occurrence of property losses, the nature of losses, and all the circumstances after the occurrence of damages. The damages incurred by the Defendant’s limited entry restriction disposition in this case are equivalent to the amount of damages that would have been enjoyed or could have been acquired without the disposition. However, considering the contract contents between the Plaintiffs and the Defendant, the possibility and degree of substitution of game auxiliary services offered by the Plaintiffs, the background leading up to such disposition, the possibility of re-employment and re-employment of the Plaintiffs after the disposition, and the possibility of the Plaintiffs’ continued employment restriction period of the Plaintiffs’ damages.

(2) Fruits offsetting

In full view of the above evidence and the purport of the entire pleadings, the plaintiffs can be recognized as having caused considerable hindrance to the defendant's business due to the game assistants' inciting them to attend a meeting and the tent farming. Such plaintiffs' negligence also became the cause of the defendant's occurrence and expansion of damages due to the defendant's restriction on access to the case. Therefore, it is reasonable to consider the amount of damages that the defendant should compensate for, but it is reasonable to consider it as 20%, so the defendant's liability is limited to 80%.

(3) Scope of damages

In the report on the basic statistical survey of the wage structure, the wage consists of the monthly wage and the annual special wage, and the sum of the amount calculated by dividing the annual special wage by 12 months is the total monthly wage in the above report of investigation. In the event that the average wage is calculated by statistical income in the above report of investigation, barring special circumstances, it shall be based on the statistical income that reflects all the income in the statistical data, i.e., the monthly wage and the annual special wage (see Supreme Court Decision 2009Du10895, Nov. 24, 201).

According to the facts acknowledged earlier, the monthly average income of Plaintiffs 1, 2, 3, and 5 at the time of the instant disposition of access restriction was 1,594,938 won [1,308,810 won (the salary of 41.3.3,53,543 ±12 months for annual special salary) + 286,128 won (the salary of 3,43,543 ±12 months), Plaintiff 4's average income of Plaintiffs 1, 2, 3, and 5 was 1,594,938 won at the time of the instant disposition of access restriction by entry of evidence No. 9 (the monthly income of Plaintiffs 1, 2, 308,810 (the salary of 41.3,43,543 ±6,543 ±616,415,516,415 ±636,516,417,514,67,617.

Therefore, if the ratio of the plaintiffs' liability is deducted from the average monthly income of each of the above six months of the plaintiffs, the defendant is obligated to pay 7,65,702 won [9,569,634 won (1,594,938 won x 6 months) x 80%, and 6,367,257 won [7,959,072 won (1,326,512 won x 6 months) x 80%], which is losses equivalent to wages for six months from the date of the restriction on access of this case to the plaintiff 4] to the plaintiff 6,367,257 won [7,959,072 won (1,326,512 won x 6 months) x 80%].

B) Consolation money

As seen earlier, the Defendant issued the instant restriction to the Plaintiffs by unfair labor practices violating Article 81(1) of the Trade Union and Labor Relations Adjustment Act, which are mandatory provisions, and the disposition is unlawful. In addition, the Defendant took unfavorable measures against the Plaintiffs under the intent of excluding the Plaintiffs from the instant golf course, inasmuch as there was no ground to impose sanctions to the extent that the restriction was to be imposed on access. Although it is difficult for the Plaintiffs to deem that the Plaintiffs failed to perform their duties under the continuous service contract similar to the above brokerage, contract, or delegation, the Defendant issued the instant restriction of access without sufficiently notifying the Plaintiffs of such ground, and failed to comply with the instant agreement that was made thereafter. As a result, the Plaintiffs were unable to be the only means of livelihood of the Plaintiffs. In particular, the instant restriction of access did not set the time limit, and it is clear in light of the empirical rule that the Plaintiffs suffered serious mental distress by deprived of their business assistants until the Defendant accepted the conditions required.

Considering all the circumstances revealed in the arguments, such as the details and contents of the restriction on access of this case, the degree of damage suffered by the plaintiffs, and the situation after the disposition, it is reasonable to determine the amount of consolation money that the defendant is liable to compensate for to the plaintiffs as KRW 5,00,000.

3) Sub-decisions

Therefore, the Defendant is obligated to pay to Plaintiffs 1, 2, 3, and 5 12,655,702 won each (7,65,702 won + 5,000,000 won) to Plaintiffs 4, 11,367,257 won (6,367,257 won + 5,000,000 won) and damages for delay calculated by the ratio of 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment, after the date of the instant restriction on entry, for each of the above money.

5. Conclusion

Therefore, the plaintiffs' primary claims are all dismissed due to the changes in the plaintiffs' primary claims, as they are without merit, and the plaintiffs' primary claims are accepted within the scope of the above recognition with merit, and the remainder of the preliminary claims are dismissed as they are without merit, and the judgment of the court of first instance is modified as above, and it is so decided as per Disposition.

Judges Lee Jae-young (Presiding Judge)