Plaintiff 1 and eight others (Attorney Park Byung-hee, Counsel for the plaintiff-appellant)

Busan Metropolitan City Forestry Cooperatives (Attorney Park Jong-sung, Counsel for the defendant-appellant)

April 11, 2018

Busan District Court Decision 2016Da326948 Decided July 7, 2017

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 1 24,07,50 won, 17,337,500 won, 15,620,000 won, 17,695,000 won to the plaintiff 3, and 17,695,000 won to the plaintiff 4, and 6,92,500 won to the plaintiff 5, 13,072,500 won to the plaintiff 6, and 12,30,000 won to the plaintiff 7, and 15,127,500 won to the plaintiff 8, and 10,05,000 won to the plaintiff 9 as well as 10,00 won per annum to the day of complete payment.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is as follows: (a) the 5th judgment of the court of first instance is “acting” and “2014” of the 13th judgment as “2013”; and (b) the 13th judgment is as indicated in the first instance judgment, except for adding the contents of paragraph (2) below, thereby citing it as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. The addition;

○ The following shall be added to the back part of No. 16 of the fifth decision of the first instance.

In addition, Article 2 subparagraph 3 of the Enforcement Decree of the Framework Act on Agriculture, Rural Community and Food Industry provides that "forest" shall be construed as "forest cultivation business (including the creation, management, and operation of natural recreation forests and natural arboretums), forest product production and gathering business, and seed and seedling cultivation business for forestry."

○ The following shall be added to the back part of 13th decision of the first instance court.

"The plaintiff (the plaintiff shall set the calculation period on a yearly basis in calculating regular workers, and the number of working days should be set at one year. Accordingly, according to this, 45-46% workers at construction site and employees engaged in afforestation and afforestation-related services except finance shall be 46-47%. However, there are parts that are not clearly distinguishable from afforestation and forestry because the plaintiffs' duties were performed as projects for the development of forest resources. In light of the above circumstances, it is reasonable to see that the defendant's main business falls under forestry even if following the plaintiffs' argument."

○ The following shall be added to the back of the 7th judgment of the first instance court in accordance with the Rules of Employment of 18.

Article 14(1) of the Labor Standards Act provides that “The Rules of Employment of this case (hereinafter “instant Rules of Employment”). The Rules of Employment of this case merely stipulates that “We shall pay overtime work, night work, and holiday work allowances in addition to 50% of ordinary wages when work between 22:0 and 06:00 on the following day” (Article 14(1)), and does not stipulate weekly paid holiday work allowances and overtime work allowances and holiday work allowances as prescribed by the Labor Standards Act (Article 16(4)), but it is difficult to see the above provisions as excluding Article 63 of the Labor Standards Act).”

○ The following shall be added to the front part of the 7th judgment of the first instance court, “no time limit is specified” in the 18th judgment.

“The Rules of Employment of this case was enacted after January 1, 2014, or the Plaintiffs:

○ The following shall be added to the back part of the 8th judgment of the first instance court:

The proviso of Article 4 (1) 4 of the Fixed-term Employment Promotion Act provides that "if an employer enters into an employment contract with the aged, it may be employed for a fixed-term worker for more than two years." Paragraph (2) of the same Article provides that "if an employer is employed for a fixed-term worker for more than two years despite the absence or extinction of the proviso to paragraph (1), such fixed-term worker shall be deemed an employee who entered into an employment contract without a fixed-term period of time." In light of the purport of the above provision, the remaining plaintiffs except for those who are 55 years or older at the time of initial employment cannot be deemed an employee who entered into an employment contract without a fixed period of time, and the remaining plaintiffs except for those who are 5 weeks 2, 3, 6, 8, and 9 shall not be deemed an employee with a fixed-term employment contract for more than two years pursuant to the proviso to Article 4 (1) 1 of the Fixed-term Employment Promotion Act, and there is no evidence that the plaintiffs were employed for the same or similar work."

3. Conclusion

Since the judgment of the first instance is justifiable, the appeal against the plaintiffs against the defendant is dismissed in its entirety due to the lack of grounds.

Judges Sung-hee (Presiding Judge)

1) Article 2 subparag. 1 of the Act on Prohibition of Age Discrimination in Employment and Elderly Employment Promotion provides that “the aged person means a person who is aged above the age specified by Presidential Decree in consideration of the population and the composition of employees, etc.,” and Article 2(1) of the Enforcement Decree of the same Act provides that “the aged under Article 2 subparag. 1 of the same Act refers to a person aged above 55.”

2) On July 23, 2014, he/she entered on December 30, 2015 and retires on December 30, 2015.