2012Guhap30080 Revocation of a decision made by a retrial for rectification of discrimination

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The Chairperson of the National Labor Relations Commission

Korea

March 20, 2013

April 5, 2013

1. All of the plaintiffs' claims are dismissed.

2. The costs of the lawsuit, including the part resulting from the supplementary participation, are assessed against the plaintiffs.

On July 25, 2012, the Central Labor Relations Commission revoked a decision on review on application for correction of discrimination between the Plaintiffs and the Defendant’s Intervenor.

1. Details of the decision on retrial;

A. The Plaintiffs are those who signed an employment contract with the head of the Seoul Local Employment and Labor Dong Office and work as a part-time work counselor at each employment center within the jurisdiction of the Seoul Local Employment and Labor Office during the period from March 29, 2010 to March 28, 2011.

B. On March 5, 2012, the Plaintiffs asserted that Defendant’s Intervenor’s non-payment of civil petition service allowance (30,000 won per month) paid to public officials in charge of civil petition affairs at the above Employment Center (hereinafter “public officials in charge of civil petition of this case”) constitutes discriminatory treatment prohibited under Article 8 of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “part-Time Workers Act”), and applied for correction thereof to the Seoul Regional Labor Relations Commission, but the said Labor Relations Commission dismissed the said application on May 2, 2012 on the ground that the Plaintiffs did not receive unfavorable treatment compared to the public officials in charge of civil petition of this case, who are comparative workers. The Plaintiffs asserted for reexamination on May 23, 2012, but the National Labor Relations Commission dismissed the application for reexamination on the same ground as the following (only “the part concerning the Plaintiff and the Intervenor”), and the part concerning the issue of the Central Labor Relations Commission’s determination in the instant lawsuit are as follows.

In principle, whether to treat a worker at a disadvantage should be compared with the detailed payment items such as wages paid to a part-time worker and the detailed payment items such as wages paid to a comparable person corresponding thereto. However, while the specific parts are higher than the compared person, other specific parts are lower than the compared person, or a part-time worker is comparable with the specific wage and working conditions.

On the other hand, where it is practically difficult to compare wages, etc. by detailed payment items, such as wage, etc., as in the case of disputing the claim that the employer provided the specific wage and working conditions on behalf of others, the employer may compare the comparable wage, etc. by one category. In this case, the benefits (such as extension, night, holiday work allowances) paid according to the actual labor provided should be excluded from the comparative criminal week.

While the plaintiffs' wages, etc. are composed of basic wages and bonuses, it is inappropriate to compare only civil service duty allowances, which are detailed payment items such as wages of public officials in charge of the civil petition of this case, with one category of wage increase through collective bargaining with the Ministry of Employment and Labor every year. On the other hand, in light of the fact that public officials in charge of the civil petition of this case are determined by considering the standard living cost, price level and other circumstances, and there are differences in wage increase methods such as wage increase without negotiating with labor unions, etc., it is appropriate to compare only the civil service duty allowances, which are detailed payment items such as wages of public officials in charge of the civil petition of this case, who are comparative workers, and the detailed payment items such as wages of public officials in charge of the civil petition of this case, etc. of this case, such as this case, are compared to one category.

The wages, etc. of the plaintiffs are 8,296 won when the basic salary and bonus are added to the Si salary in 2010, and 8,063 won when they are converted to the Si salary in 2011. On the other hand, in the case of public officials in charge of civil petition of this case who enter 2010 and are class 2 of class 9, the wages, etc. of the public officials in charge of civil petition of this case are 7,509 won when they are converted to the Si salary, and 7,160 won when they were employed in 2011 and were class 1 of class 9, and there is no unfavorable treatment compared to the wages, etc. of the comparable workers, and there is no discriminatory treatment.

[Ground for recognition] Unsatisfy, Gap evidence 1

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

A. The plaintiffs' assertion

The decision on the reexamination of this case which determined that the plaintiffs did not receive unfavorable treatment in the wages compared to the public officials in charge of civil petition of this case was unlawful for the following reasons.

1) The determination of whether a civil petition is disadvantageous treatment should not be made on the basis of the total amount of wages, and the determination should be made based on the purpose of the introduction of the civil petition service allowance itself. Since civil petition service allowances are paid for the boosting morale by the persons who perform civil petition affairs, it is unfavorable that a civil petition service allowance is not paid to the Plaintiffs who are in charge of the same civil petition as

2) In comparison of wages, other allowances paid to officials in charge of civil petition of this case, in addition to salary, good attendance allowances, fixed meal allowance, payment subsidy, and holiday leave allowance, shall also be included.

3) Even though the current wages of the plaintiffs are higher than those of the public officials in charge of the instant civil petition of Grades 1 and 2, since the plaintiffs only increase the salary according to the salary grade, but it is not recognized that the salary increase due to the salary grade increase is not recognized, the salary of the public officials in charge of the instant civil petition will be increased in the future.

4) Among the plaintiffs, those who have been recognized as having worked experience for a certain period should not be compared with public officials of class 1 and class 2 who are not recognized as having worked experience even before.

(b) Fact of recognition;

1) Progress of employment of counselors for part-time work

A) On February 2010, the Ministry of Employment and Labor, which was employed and used as a part of the human resources working at an employment center within the jurisdiction of the local employment and labor office and its branch office as a full-time employment counselor who is not a public official, established a plan to employ a short-term working counselor (at least 90 employees) for the purpose of providing a high-quality part-time work and family life compatible, etc., and issued the guidelines to six local employment and labor offices, which expanded the number of employees on January 13, 2011, and issued the guidelines for employment of a short-term working counselor (at least 207 employees) in 201.

Guidelines for the Employment Plan of Part-time Work Counselors (Emarment). I. Guidance for the creation of part-time jobs by the public sector, the creation of a good quality part-time job system for women in career group, etc.

For public service, etc., the employment support center shall employ a full-time work counselor at the employment support center on January 1: Part-time work counselor at the employment support center: A full-time work counselor at the employment support center in the Ministry of Labor - a document screening type - a computer ability evaluation (on-day work) - working hours for interview : 5 hours a day * 10:00 to 16:00 (including part-time work hours per hour): Work days per day - Labor days a week - Labor contract period: Remuneration of a full-time work (long-day work hours) - Remuneration of a full-time work counselor at the employment support center in proportion to working hours (five hours): A person who has no grounds for disqualification under Article 33 of the Public Officials Act and has obtained a certificate of qualification related to duties, such as a vocational counselor, vocational counseling, and career experience and labor management for a certain period of time or longer: The head of each local labor office shall apply the remuneration system of a full-time work.

B) According to the above guidelines, the head of the Seoul Regional Employment and Labor Agency began to employ a full-time employment counselor from March 29, 2010, and prepared a labor contract with the Plaintiffs, with the employment of the Plaintiffs from March 29, 2010 to March 28, 2011.

Article 2 (Period of Employment Contract) The term of employment contract shall not be fixed from October 2010.Article 3 (Duties in Charge, etc.) (1) The duties and the places of work referred to in Article 3 (Duties in Charge, etc.) are as follows: Employment Support2; Employment Support Center for Seoul ○○ General Employment (Work Hours, etc.) Article 4 (Work Hours, etc.) 2; Work Hours of Part-time Work Counselors shall be from 10:00 to 16:00 (Working Hours, including Hours of Work) 1) : The remuneration of 'B' shall be the basic salary under the Guidelines for Payment of Remuneration (Remuneration Table) and the basic salary shall be 600%:

The bonus shall be paid in installments by 50% per month.Article 10 (Rules of Employment) All matters not prescribed in this Agreement shall be governed by the Regulations of the Counseling Institute for Minimum-Time Work prescribed by the Minister of Labor.

C) At present, the Plaintiffs are in charge of civil petition counseling and civil petition-related documents processing in each employment center within the jurisdiction of the Seoul Regional Employment and Labor Office, such as employment support, corporate branch, workplace skill development, etc.

(ii) the introduction of civil petition service allowances;

A) Article 14 and attached Table 11 of the Regulations on Allowances, etc. for Public Officials provide that "the civil petition counter shall be in charge of civil petition affairs at administrative agencies established at various levels, and the public officials who handle civil petition documents on a regular basis shall be paid not more than 30,000 won per month for special duty allowances, and the persons eligible for allowances and the agencies concerned shall be determined by the competent Minister." Accordingly, the Ministry of Employment and Labor has enacted the Regulations on the Operation of the Civil Service Counseling Office in the Ministry of Employment and Labor and Labor and has paid 30,000 won per month to the public officials in charge of civil petition-related affairs (172 persons as of August 10, 207) at the headquarters of the Ministry of Employment

B) On December 29, 2010, the Ministry of Employment and Labor enacted the Regulations on the Payment of Allowances for Public Officials in Charge of Civil Petitions with the Ministry of Employment and Labor (Ordinance No. 24 of the Ministry of Employment and Labor), and, in addition to the above public officials, demanded the employment center of the local employment and labor offices to pay the above civil petition service allowance to the public officials who deal with civil petition consultation and civil petition-related documents. On March 28, 2012, the Ministry of Employment and Labor revised the same to the Ministry of Employment and Labor Directive No. 71 (Enforcement Date April 21, 2012) and stated the scope of the public officials eligible for civil petition service allowance at the employment center of the local employment and labor offices.

C) The head of the Seoul Regional Employment and Labor Office and the head of the regional branch office within the jurisdiction have paid civil petition service allowances from January 1, 201 to 173 public officials in charge of civil petitions of this case except for the 6th class team leader and 4 employees in charge of illegal receipt and investigation allowances separately paid, but they did not pay the above allowances on the ground that full-time job counselors or part-time work counselors including the plaintiffs are not public officials.

3) Comparing the remuneration system and amount of the Plaintiffs and public officials in charge of the instant civil petition

A) Wages of part-time work counselors like the Plaintiffs consisting of family allowances and performance bonuses paid in cases where there is a dependent based on basic pay (which shall be applied to the remuneration system of counselors on a full-time basis, and shall be calculated by subtracting in proportion to working hours) and bonuses equivalent to 50% of basic pay (600% per annum). The details of wages from September 201 to December 12, 201 of part-time work counselors falling under the 1 and 2 are as follows (for full-time work hours, full-time work counselors shall be 209 hours per month, and for part-time work counselors, 130.62 hours per month ( = 209 hours per month x 5/8);

A person shall be appointed.

A person shall be appointed.

B) The details of the benefits paid for the same period to the public officials in charge of the instant civil petition are as follows (209 hours are applied to monthly contractual work hours) and the allowances paid in addition thereto are family allowances paid according to the number of families, children’s school expenses subsidies, performance bonus paid according to work performance, and overtime work allowances paid during excess work hours.

A person shall be appointed.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, Eul evidence Nos. 1-5, 8, 9, the purport of the whole pleadings

C. Relevant statutes

The entries in the attached Table-related statutes are as follows.

D. Determination

1) As to whether public officials in charge of the instant civil petition constitute comparable workers

A) Article 2(1)1 of the Labor Standards Act, which provides labor for the purpose of wages, constitutes a worker prescribed in Article 2(1)1 of the Labor Standards Act. However, only if there are special provisions in the relevant statutes concerning public officials or are contrary to the nature of public officials, the application of labor law, such as the Labor Standards Act, to public officials is excluded (see, e.g., Supreme Court Decision 98Du9714, Aug. 21, 1998). Article 3(3) of the Part-Time Workers Act explicitly states that the State and the agencies of local governments are subject to the above Act. Thus, the pertinent civil petition officer

B) Whether an ordinary worker subject to comparison falls under the same or similar work as a part-time worker is determined on the basis of the actual work performed by the worker, not on the basis of the rules of employment, labor contracts, etc. However, even if the work performed by the worker is entirely different from the scope of the work, responsibility, authority, etc., barring any special circumstance, they should be deemed to have engaged in the same or similar work (see, e.g., Supreme Court Decisions 2011Du2132, Mar. 29, 2012; 2011Du1792, Nov. 15, 2012; 2007Da307, supra). As such, the Ministry of Employment and Labor’s provision on job-seeking consultation and job-seeking guidance for foreign workers regarding the provision of job-seeking consultation and job-seeking allowance to the public official, and the provision on job-seeking guidance and job-seeking guidance for foreign workers’ work.

C) The Defendant Intervenor asserted that, if there are multiple ordinary workers who are subject to comparison, the ordinary workers who receive a lower level of treatment should be considered as the comparative person. However, as seen earlier, in the case of the 1 and 2nd class, the wage of the full-time vocational counselor is higher than the public officials in charge of the instant civil petition, and thus, even if the Defendant Intervenor’s assertion was accepted, the Plaintiffs subject to comparison shall be the public officials in charge of the instant civil petition.

2) As to whether the treatment is disadvantageous

A) According to Article 2 subparag. 3 of the Part-Time Workers Act and Article 8(2) of the Act, an employer shall not give discriminatory treatment, on the ground that he/she is a part-time worker, compared to an ordinary worker engaged in the same or similar kind of work at the pertinent business or workplace, and the term “discriminatory treatment” here refers to unfavorable treatment in terms of wages and other working conditions, etc., without reasonable grounds. (B) However, in cases where the detailed items constituting wages between a part-time worker and a comparable worker are different or they are divided according to the detailed items, whether it is unfavorable shall not be determined by the detailed items of the wage, and the provision of the prescribed work must be determined by classifying the wage items that meet the requirements for payment by the total amount of all the items included therein, and in cases of the latter, the amount of the wage items that meet the requirements for payment shall be determined by the method of calculating the total amount of all the items included therein.

C) In the case of the plaintiffs, the basic salary and bonus for the public officials in charge of the civil petition of this case shall be clearly paid for the fixed amount of basic salary, fixed amount of attendance allowance, fixed amount of meal allowance, class allowance, and regular leave allowance. The civil petition work allowance shall be paid only for the public officials in charge of the civil petition affairs. However, it is not merely limited to the scope of the work subject to the payment, but it does not require the public officials to make additional work in addition to the provision of the prescribed work or to have a dependent (family allowance). Thus, it shall be included in the basic salary, fixed amount of attendance allowance, etc. In this case, it shall be judged that the plaintiffs' basic salary and bonus should be included in the calculation of the compensation for the civil petition of this case from September to December of the same year, 201 to the calculation of the compensation for all the public officials in charge of the civil petition of this case, and it shall be justified in the comparison of the plaintiffs' wage in this case, which did not meet the specific conditions of the public officials in charge of the civil petition of this case.

D) According to the Plaintiffs’ assertion, even if the Plaintiffs were to receive lower wages than public officials in charge of civil petition of this case in the future, since the wage system and the amount of the wage system for the Plaintiffs or public officials in charge of civil petition of this case can be modified through the future system improvement or collective agreement, it does not constitute discriminatory treatment that the Plaintiffs are likely to receive unfavorable treatment in the future.

E) The Plaintiffs asserted that it is unlawful to compare the former work experience with the public officials of Grades 9, 1, and 2 even to the short-time work counselor who had been recognized as having been employed. However, the Plaintiffs did not state what difference between the Plaintiffs, who have been recognized as having been employed, and the Plaintiffs who have been recognized as having been employed and the public officials in charge of the instant civil petition. Therefore, this part of the Plaintiffs’ assertion is without merit.

3) Sub-determination

The decision of the retrial of this case is lawful.

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed in entirety as it is without merit, and it is so decided as per Disposition.

Appointment of presiding judge or judge;

Judges Lee Byung-hee

Judge Kim Gin-hun

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.