Plaintiff 1 and 12 others (Attorney Seo Young-young et al., Counsel for the plaintiff-appellant)

Korea hydroelectric Power Co., Ltd. (Law Firm Pacific, Attorneys Kim Sang-min et al., Counsel for the defendant-appellant)

May 26, 2016

1. All of the plaintiffs' claims are dismissed.

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

【State Claim】

1. The plaintiffs confirm that they are the defendant's worker status from each of the relevant dates stated in the attached Table's "admission Date".

2. The defendant shall pay to the plaintiffs the amount of money stated in the "amount of claim" as stated in the attached Table, and each of them at the rate of 6% per annum from the next day of service of a copy of the complaint of this case until the day of service of a copy of the complaint of this case as of May 24, 2016, and 15% per annum from the next day to the day of complete payment.

【Preliminary Claim of Plaintiffs other than Plaintiffs 7 and 11, and Claim of Preliminary Claim of Plaintiffs 7 and 11】

1. The plaintiffs confirm that they are the defendant's worker status from the date specified in the "date of acquisition of the worker status" in attached Table.

2. The defendant shall pay to the plaintiffs the amount of money stated in the "amount of preliminary claim" as stated in the attached Table and each of them at the rate of 6% per annum from the next day of service of a copy of the complaint of this case until the day of service of a copy of the complaint of this case as of May 24, 2016, and 15% per annum from the next day to the day of complete payment.

【Claim 2 by Plaintiffs 7 and 11’s Preliminary Claim】

1. The defendant expressed his intention to employ the plaintiff 7 and 11.

2. The Defendant shall pay to Plaintiffs 7 and 11 the amount stated in the “amount of preliminary claim” as stated in the attached Table, and each of them, 6% per annum from the day following the delivery of a duplicate of the complaint of this case to the day of service of a duplicate of the complaint of this case as of May 24, 2016, and 15% per annum from the next day to the day of full payment.

1. Basic facts

A. On April 2, 2001, the Defendant, a corporation established by the Korea Electric Power Corporation for the purpose of generating nuclear power, etc., which is operated by the Korea Electric Power Corporation, is operating the light and nuclear headquarters (hereinafter referred to as the “OCO power plant of this case” in the order of its jurisdiction, and the general term is referred to as the “each power plant of this case”). The power generator 1 and 2 at the first power plant of this case; the power generator 3 and 4 at the second power plant of this case; the power generator 5 and 6 at the third power plant of this case are installed and operated respectively.

(b) Each power plant of this case consists of an operating room, technical room, and safety team, the operating room is composed of an operating room, a radiation safety team, a chemical safety team, and a 12 development team, and the technical room is composed of a maintenance technology team, a machine team, an electricity team, and a measurement and control team.

C. Since 197, the Korea Electric Power Corporation or the Defendant entrusted the field of radiation protection ( access to radiation controlled area, work control, salt and washing), radioactive waste (radioactive waste disposal, radioactive waste disposal), health and physical therapy (operation of radiation reading and employees, radiation (radiation measurement and measurement equipment) and the field of quality control with the Korea Electric Power Corporation or the Defendant, which has entered into an entrustment contract with the Defendant, are as follows.

The table service period contained in the main text of the First Power Plant of this case 1: 2.1. to 3.1.2, 1997; the Radiation Engineering Corporation of this case 2.1 to 2.2, 1997; 3.2, the Radio Power Plant of this case 1.2, the Radio Power Plant of this case 20, 201 to 3.1, 201; the Radio Power Plant of this case 2.3, the Radio Power Plant of this case 20, 201 to 3.2, 201, the Radio Power Plant of this case 20, the Radio Power Plant of this case 1 to 3.2, 200, the Radio Power Plant of this case 1 to 21.3, 201, the Nuclear Power Plant of this case 20, 201 to 21.3, 201, the Nuclear Power Plant Construction Corporation of this case 1 to 3.2, 2007.

D. The Plaintiffs entered into an employment contract with a service company that had entered into an entrustment contract with the Defendant as of the date specified in the attached Table “the date of entry” and each of the instant power plants has been performing the work of concluding an entrustment contract with the Defendant. If a service company is changed, the Plaintiffs have continuously entered into an employment contract with the changed service company and continued to work at each of the instant power plants.

[Ground of recognition] Evidence Nos. 2, Eul evidence Nos. 1, 2, Eul evidence No. 3-1, 2, Eul evidence No. 4-1, 2, Eul evidence No. 5, and the purport of the whole pleadings

2. The plaintiffs' assertion

A. The contents of the primary claim

The plaintiffs entered into a labor contract with the service company formally, but the service company is merely a labor agency of the defendant et al., which failed to maintain the independence of the service company, and actually received labor by the Korea Electric Power Corporation or the defendant directly using and directing the plaintiffs. Thus, the labor contract relationship between the plaintiffs and the Korea Electric Power Corporation or the defendant entered into an implied labor contract from the first entry date

Therefore, the Korea Electric Power Corporation or the defendant is in the employer status against the plaintiffs from the first entry date. Thus, the Korea Electric Power Corporation or the defendant must pay the plaintiffs the same wages as the defendant's employees performing the same business as the plaintiffs. Nevertheless, the plaintiffs have received only less wages from the service company to which they belong for the pertinent period. The defendant is obligated to pay the difference

From November 2010 to October 2013, the amount of wages for which the plaintiffs have not received from the defendant for three years from November 2010 is identical to the amount stated in the column of "index claim amount" in the attached Table. Therefore, the defendant is liable to pay each of the above amounts and each of the damages for delay to the plaintiffs.

B. The plaintiffs except the plaintiffs 7 and 11, as well as the plaintiffs 7 and 11's preliminary claims

Even if there was no implied employment contract relationship between the defendant, etc. and the service company, the contract was concluded between the service company and the plaintiffs, but its substance constitutes the dispatch of workers, and the defendant, etc. who is the user company, continued to use the plaintiffs as temporary agency workers for more than two years.

Therefore, except the plaintiffs 7 and 11, to which the former Act on the Protection, etc. of Temporary Agency Workers (amended by Act No. 8076 of Dec. 21, 2006, hereinafter "the former Dispatch Act") applies, the plaintiffs' direct employment is deemed to have been made at the expiration of two years pursuant to the main sentence of Article 6 (3) of the former Dispatch Act, and thus, the Korea Electric Power Corporation or the defendant is in the employer status against the plaintiffs other than plaintiffs 7 and 11.

Meanwhile, Plaintiff 7 and Plaintiff 11, to whom the amended Act on the Protection, etc. of Temporary Agency Workers (amended by Act No. 8076, Dec. 21, 2006; Act No. 11279, Feb. 1, 2012; hereinafter “amended Dispatch Act”) applies, have a direct employment obligation to the Defendant at the expiration of two years pursuant to Article 6-2(1) of the amended Dispatch Act, and Plaintiff 11 had a direct employment obligation to the Defendant at the expiration of two years, and Plaintiff 7 and Plaintiff 11 continued to provide labor. Since the Defendant entered into an implied employment contract upon receipt of the aforementioned obligation, the Defendant is an employer status against Plaintiff 7 and Plaintiff 11 from that time. Even if not, the Defendant expressed the intent to enter into the employment contract by the delivery of the duplicate of the complaint of this case. Thus, the Defendant is in the employer status with respect to Plaintiff 7 and Plaintiff 111 from that date.

Therefore, the defendant should pay the same wages as the defendant's employees who conduct the same business as the plaintiffs from the time of establishment of a direct labor contract relationship with the plaintiffs. Nevertheless, the plaintiffs have received only less wages from service companies belonging to the relevant period. The defendant has a duty to pay the difference to the plaintiffs.

In such cases, since November 2010 to October 2013, the amount of wages for which the plaintiffs have not received from the defendant for three years from November 2010 is the same as the amount stated in the column for “preliminary claim amount” in the attached Table, the defendant is liable to pay the above amount of each money and each damages for delay to the plaintiffs.

C. Contents of the assertion as to the claim of the second preliminary claim by Plaintiffs 7 and 11

If the defendant does not have a direct employment relationship between the plaintiff 7, 11 and the defendant, the defendant is at least responsible for the direct employment of the plaintiff 7 and 11, so the defendant is obligated to express such intent of employment.

In this case, the defendant is liable to compensate the amount of the difference between the defendant's employees who are engaged in the same work as the plaintiff 7 and 11 and the actual plaintiff 7 and 11 for the damages incurred by the defendant's non-performance of the obligation to employ the plaintiff 7 and 11, which would have been paid by the defendant to the plaintiff 7 and 11 if the defendant fulfilled the obligation to employ the plaintiff 7 and 11.

3. Determination

A. Determination as to whether an implied employment contract relationship exists between the plaintiffs and the defendant (determination as to the prime claim)

1) Relevant legal principles

If an employee employed by the employer of a third party and employed by the employer of a third party to be an employee of a third party, the employer of the plaintiff is not merely a formal and nominal relationship with the third party, such as having no identity or independence as a business owner, and in fact, the relevant employee is in a subordinate relationship with the third party, and the actual payment of wages is a third party and the other party to the provision of labor is also a third party, so an implied employment contract relationship between the relevant employee and the third party is established (see Supreme Court Decision 97Nu1946, Nov. 12, 199, etc.).

2) Determination

On the other hand, the existence of the service companies, the plaintiffs' employer, can be said to be identical to the defendant's labor agency by lacking identity or independence as the business owner. In fact, the plaintiffs are subordinate to the defendant, and there is no evidence to support the circumstances of the defendant, in fact, there is no actual payment of wages.

Rather, comprehensively taking account of the following facts or circumstances, the service contract between the defendant and the service company is merely a formal form, and its existence is either nominal or formal, or is so long as it can be deemed that the service company has lost its identity or independence as the business owner, and thus, an implied employment contract relationship between the plaintiffs and the defendant cannot be deemed to have been established.

A) As of the date of the instant lawsuit, both the service companies that concluded a labor contract with the Plaintiffs and the service companies that concluded the labor contract with the Plaintiffs as of the date of the instant lawsuit are those that reported to the engineering business entities under the Engineering Industry Promotion Act (hereinafter “The Engineering Industry Act”), and are selected through an open competitive bid through the evaluation and qualification examination conducted by the Korea Electric Power Corporation or the Defendant.

B) The service companies leased and used the site offices from the Korea Electric Power Corporation or the Defendant within each of the instant electric power stations, and the said site offices are located and used by the site agents and employees of each service company.

C) In addition to the site office rent, the above service companies are also paying expenses for the use and generation of electricity, water, waste (waste), etc. to the Korea Electric Power Corporation or the Defendant.

D) The above service companies are themselves operating a bus for their employees.

E) The service companies have established and implemented their own rules of employment separately from the Korea Electric Power Corporation or the Defendant, and are subject to disciplinary action, reward, etc. against employees, and not only pay all taxes including corporate tax, as an independent business entity, but also subscribe to four major insurance for its employees. In addition, the service companies are performing their own business such as withholding of wage and salary income tax, year-end settlement, etc.

3) Sub-determination

Therefore, the plaintiffs' primary claim under the premise that an implied labor contract relationship exists between the plaintiffs and the defendant is without merit without any need to further examine the remaining points.

B. Determination as to whether the worker dispatch relationship is established (determination as to the plaintiffs' preliminary claims except plaintiffs 7 and 11, the preliminary claims of plaintiffs 7 and 11, the preliminary claims of plaintiffs 7 and 11, and the second preliminary claims)

1) Relevant legal principles

Worker dispatch means that a temporary work agency employs a worker and has him/her engage in work for the user company under the direction and order of the user company in accordance with the terms of the contract on temporary placement of workers. Whether the legal relationship is a temporary placement of an employee subject to the Dispatch Act, rather than the name or form of the contract attached by the party concerned, rather than a reasonable direction and order such as giving a binding order to the worker directly or indirectly, whether it can be deemed that the worker is actually incorporated into a third party’s business, such as the selection of the worker to be placed in the work, or the number of workers, training, leave of absence, leave of absence, inspection of work attitude, etc., whether the contract purpose is specifically determined by the contract purpose is distinct from the work of the worker belonging to a third party, and whether the worker has a real purpose of the contract, such as Plaintiff’s own organization or facility, etc., and whether the contract purpose is determined in accordance with the objective of the contract on temporary placement of workers (see, e.g., Supreme Court Decision 201Du2629, Feb. 26, 20292).

2) Determination

In full view of the following facts and circumstances, each statement or image of Gap 63, 114 through 116, Eul 3 through 6, 8, 9, 16, 18, 24 through 26, 28, 30 through 33, 36, 39 through 41, and 43 through 45 (including the number of branch numbers), it is difficult to view that the service company’s employment relationship is a temporary placement relationship in which the plaintiffs employed the plaintiffs and let them engage in work on the part of the defendant under the direction and order of the defendant.

A) The Plaintiffs’ work performed by the service companies to which the Plaintiffs belong is the Korea Electric Power Corporation or the Defendant’s commission contract with the Korea Electric Power Corporation. The work performed by the Plaintiffs is the access to a health room and work performed by the Korea Electric Power Corporation or the Defendant. The work is the work performed by those who have passed the evaluation of their work performance for at least three years in the field of radiation control or for at least one year in the field of radiation protection. The work is the work performed by those who have passed the evaluation of their work performance. Details of the above work are ① radiation controlled area (Accessers, pollution monitoring, pollution monitoring, access control, observation and inspection of entrance procedures), ② radiation exposure control (ray concentration and electronic input, personal dose payment and collection), ③ radiation exposure control (radioactive contamination degree measurement, removal and release of materials tracking, tracking of materials, record-keeping and inspection of radiation contamination level and radiation contamination level, ③ inspection and inspection of the operation of the Defendant’s equipment, and the work conducted by the Korea Electric Power Corporation.

B) The Plaintiffs worked as the 3rd class, and both the Plaintiffs’ organization and work hours were determined directly by the service companies, and there was no case where the Plaintiffs and the Defendant’s health and physical personnel were organized into one group. At the time of their work, the Plaintiffs worked for each service company. The employees belonging to the service companies, such as the Plaintiffs, form a trade union separate from the trade union organized by the employees belonging to the Defendant, and directly enter into a collective agreement with the service companies, other than the Defendant. In light of these circumstances, it cannot be deemed that the employees belonging to the service companies were actually incorporated into the Korea Electric Power Corporation or the Defendant’s business, such as the employees belonging to the service companies consisting of one of the Korea Electric Power Corporation or one of the employees belonging to the Defendant, and directly performing joint work.

C) As seen earlier, the Plaintiffs’ adjustment and work input hours were determined directly by the service companies, and the service companies’ employees, such as the Plaintiffs, are employed by the service companies themselves in preparation for the absence of work due to other reasons, such as leave of absence, etc., and there is no case where the employees belonging to the Defendant are replaced by the Plaintiffs. The service companies voluntarily provide education and training for their employees, including the Plaintiffs, and directly provide management of their work performance for their employees. As such, the service companies that are the Plaintiff’s employer independently exercise their authority to decide on the number of workers to be employed in work, the number of workers, the education and training, the hours of work, the inspection of the degree of leave of absence, etc.

D) As seen earlier, the service company, the plaintiffs' employer, had a field agent at the site office located at each of the instant power plants, and had the service company direct and supervise its employees, and there is no evidence to acknowledge that the Korea Electric Power Corporation or the defendant issued, directly or indirectly, a binding order with regard to the performance of its duties, etc., directly or indirectly, to the plaintiffs, and that the Korea Electric Power Corporation or the defendant ordered the plaintiffs to direct and supervise its employees.

E) As seen earlier, the service firms, the plaintiffs' representative, have an organization separate from the Korea Electric Power Corporation or the defendant, and have an independent corporate organization or facilities necessary to achieve the purpose of the contract as engineering business entities who passed the open competitive bidding of the Korea Electric Power Corporation or the defendant.

F) Meanwhile, without going through the employees belonging to the Defendant, the Plaintiffs appears to have been engaged in the work by directly inputting the results of the work performed by the Plaintiffs using the ID and password of the employees belonging to the Defendant, but this seems not to be a normal way to perform the work. In addition, in the case of the Plaintiffs working at the 1st power plant of this case, the Plaintiffs wear the work uniform provided by the Defendant to the same extent as the Defendant’s health and safety income sources if they perform the work within the radiation controlled area. However, it is difficult to deem that the Plaintiffs and the employees belonging to the Defendant have formed a single work group in terms of the characteristics of the relevant work. Furthermore, it is difficult to deem that the Plaintiffs’ work group was formed between the Plaintiffs and the service companies belonging to the Defendant, based on the judgment that it constitutes a case where the Defendants interfere with the Defendant’s work or interfere with the service duties due to the Plaintiff’s negligence, neglect, or delay of the work performed by the service companies, and thus, the service companies should exercise their rights against the Plaintiffs, but it is difficult to consider the Defendant’s disciplinary action against the contractor (contractor).

3) Sub-determination

Therefore, without any need to further examine the remainder of the plaintiffs' preliminary claims except for plaintiffs 7 and 11 and the preliminary claims of plaintiffs 7 and 11 and the secondary claims of plaintiffs 11, which are premised on the establishment of a worker-reader relationship.

4. Conclusion

Therefore, all of the plaintiffs' primary claims, plaintiffs 7 and 11's conjunctive claims, plaintiffs 7 and 11's primary claims, and the second preliminary claims are dismissed.

[Attachment]

Judges of the Republic of Korea (Presiding Judge)