Plaintiff 1 and one other (Law Firm Shin Young-young, Attorney Song-chul, Counsel for the plaintiff-appellant)

The Head of Seoul Regional Employment and Labor Agency

May 23, 2019

1. All of the plaintiffs' claims are dismissed.

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

The defendant's rejection disposition against the plaintiffs on July 6, 2018 shall be revoked.

1. Details of the disposition;

A. Plaintiff 1 is an occupational counselor, Plaintiff 2 is an administrative assistant, and Plaintiff 1 is appointed on January 29, 2018, and Plaintiff 1 is working for the ○○ Local Employment and Labor Office, Plaintiff 2 is a public official employed on a flexible basis at ○○○○○ ○○○ Labour Office.

B. On May 11, 2018, the Defendant held a deliberative committee on the assessment of the salary grade for new public officials on a flexible basis and demarcated the beginning salary grade for the Plaintiffs as 4, and did not reflect in the definition of the salary grade the career of Plaintiff 1, among the career experience before the appointment of the Plaintiffs, at ○○ Employment and Labor Office from March 28, 201 to January 28, 2018, and Plaintiff 2, from March 29, 2010 to January 28, 2018, work experience of Plaintiff 2 as a job counselor for 25 hours a week at ○○○ △△△△△△△△△△△△△△△ (hereinafter “instant career”).

C. On June 26, 2018, the Plaintiffs filed a motion with the Defendant to re-determine the beginning salary grade of the Plaintiffs by aggregating the instant work experience. However, on July 6, 2018, the Defendant respondeded to the Plaintiff to reject the Plaintiff’s motion to re-determine the salary grade (hereinafter “instant disposition”).

Article 8(2) and attached Table 16 of the Public Officials Remuneration Regulations included in the main sentence of this Decree 2.b.7 of the career conversion rate of public officials in general service, etc. 2.B.7 of the Public Officials in general service, as a result of the inquiry about the meaning of “standing civil professional experience” among “career counselors in general service pursuant to Article 4-4(1) of the Employment Security Act, in order for them to be recognized as ordinarily specialized private professional experience in accordance with the work guidelines such as the Public Officials Remuneration Regulations and the remuneration of public officials, they shall have been directly engaged in the same field as that of the expected class and class to be assigned, and have been paid regular remuneration and full-time work experience. In this case, the term “full-time” refers to the form of full-time work as a pool of “5 days, week 40 hours,” and the form of work of the ○ Plaintiffs is not subject to the re-Definition of salary grade

D. On July 18, 2018, the Plaintiffs dissatisfied with the instant disposition, filed a petition review with the Ministry of Personnel Management (Ministry of Personnel Management), but the said appeals review committee dismissed the Plaintiffs’ claim on September 18, 2018.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

In recognizing the work experience of private vocational counselors under the relevant Acts and subordinate statutes, such as the Public Officials Remuneration Regulations and the Public Officials Remuneration Guidelines, the same field shall be 100 percent in the same field, and the same field shall be 80 percent in the same field, and the meaning of the full-time work shall be limited to one week and 5 days in the same week and 40 hours in the same week. However, if the private work experience of private vocational counselors uniformly determined by the Ordinance of the Ministry of Employment and Labor, such as the Operation Regulations for Vocation Advisors, is not reflected in the determination of the salary class at the time of new appointment, the above work experience conversion rate provision shall be an unqualified provision. Ultimately, the work experience of private vocational counselors who work full-time under Article 4-4(1) of the Employment Security Act shall be deemed to be included in the work experience continuously for a certain period, even if they are not on a pool, and thus, the disposition of this case shall be revoked as it does not reflect the Plaintiffs’ work experience in the determination of the salary class.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Article 4-4(1) of the Employment Security Act provides that an employment security office may place a job counselor who is not a public official (hereinafter referred to as “private employment counselor”), and Article 4-4(2) of the same Act provides that a person employed for 5 hours a day and 25 hours a week among private employment counselors shall be categorized as “short-time work counselor (short-time work counselor)” and Article 2 subparag. 3 of the Employment Security Act defines a person employed for 25 hours a week from among private employment counselors as “short-time work counselor (short-time work counselor)” (Article 2 subparag. 2 of the same Act).

Meanwhile, Article 47(1) of the State Public Officials Act provides that “the matters concerning salary grade and raise in salary shall be prescribed by Presidential Decree.” Accordingly, attached Tables 15 and 16 subparag. 2-B-7 of the Public Officials Remuneration Regulations (hereinafter “instant provision”) provides that “the private vocational counselor who has worked as a full-time employee pursuant to Article 4-4(1) of the Employment Security Act shall be converted into 100 percent of work experience in the same field.” However, the said Public Officials Remuneration Regulations do not directly provide for the meaning of “full-time” (the Ministry of Personnel Management, which is the rules established to clarify the standards for handling duties related to remuneration, such as defining salary grades, shall also convert the work guidelines for remuneration of public officials, etc., which are 50 to 10 percent of work experience in the same field for not less than three months, according to the identity of the field).

2) In full view of the following circumstances, including the language and text of the relevant Acts and subordinate statutes concerning the definition of salary grades, the legislative intent, equity between ordinary counselors and part-time counselors, etc., it is reasonable to deem that the term “private vocational counselor who works full-time” under the instant provisions as the requirements for the career to be included in the definition of salary grades is “private vocational counselor who works full-time with an employer to the extent that he/she works for a part-time as a part-time private vocational counselor under social norms while maintaining a regular employment relationship with an employer, and therefore, the Plaintiffs’ career as a part-time counselor is not included in the career to be converted into the definition of salary grades under the instant provisions

① The prior meaning of “standing worker” refers to “work or any other similar work for a fixed period of time after having worked every day,” and the prior meaning of “non-standing worker” refers to “work or any other work for a fixed or limited period of time.” The instant provision added the requirement of “on-time work” in addition to the requirement of work experience as a private vocational counselor, it conforms to the meaning of the above language and text to the effect that an ordinary counselor only refers to, or excludes a limited number of hours of work.

② Article 50 of the Labor Standards Act adopts as the basic principle for working hours of 40 hours a week, 8 hours a day, and 1 week as a part-time worker. Article 2(2) of the Regulations on the Operation of Vocation Advisors also defines a worker whose contractual period per week is shorter than that of “ordinary workers” as a part-time worker. Article 2(2) of the same Act also defines a worker whose contractual work hours are 8 hours a day and 40 hours a week as a “ordinary counselor.”

③ Furthermore, if it is interpreted that there is no need to meet the contractual work hours per week to constitute “standing work” as alleged by the Plaintiffs, there is no reason to add the requirement that the instant provision will work “standing work” in addition to the career counselors in the private sector under Article 4-4(1) of the Employment Security Act.

(4) In addition, since ordinary counselors and short-time counselors differ in contractual work hours, even if there is a difference between the work experience (work period) of short-time counselors and the work experience of ordinary counselors in defining the salary grade of private vocational counselors, it cannot be deemed unreasonable.

⑤ As a matter of principle, the attached Table 16 of the Public Officials Remuneration Regulations reflects only “the full-time work experience” among public officials’ or similar work experience in defining the beginning salary class. The work experience as a part-time public official in a fixed term position and a member of the local council during the part-time work experience is exceptionally reflected in defining the beginning salary class (Article 1-A). This can be seen as a premise that “part-time work worker” is excluded from “part-time work worker” in the concept of “part-time work worker,” and such interpretation needs to be maintained uniformly with the provisions of this case.

(6) The meaning of “standing worker” widely used in the Public Officials Remuneration Regulations need to be consistently interpreted. As the scope and proportion of similar career experience of the Public Officials Remuneration Regulations expands, the Ministry of Employment and Labor prepared around October 2012 in order to establish and operate the detailed criteria, defines the concept of full-time worker as “where the relevant agency is subject to the same working hours as that of the regular employee of the relevant agency,” and the Ministry of Public Administration and Security provides that “on the basis of the regular payment of wages above the minimum wage under the Labor Standards Act (see subparagraph 9 subparag. 8), and the Ministry of Public Administration and Security provides guidance on the amendment of the Public Officials Remuneration Regulations around May 2012, the term “on the basis of the amendment of the Public Officials Remuneration Regulations,” stating “on the basis of the same working hours as that of the regular employee of the relevant agency,” the term “on the basis of the aforementioned revision,” and the term “on the basis of the Ordinance of the Ministry of Public Administration and Security,” the said provision can only be interpreted differently from the said provision.

3. Conclusion

Therefore, all of the plaintiffs' claims are dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Park Jong-yang (Presiding Judge)