Plaintiff 1 and 14 others (Attorneys Kim Young-deok et al., Counsel for the plaintiff-appellant)

The Chairman of the National Labor Relations Commission

Hyundai Motor Co., Ltd. (Attorney Han-il, Counsel for defendant-appellant)

may 22, 2007

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 12, 2006, the National Labor Relations Commission revoked the decision of reexamination made on July 12, 2005 between the plaintiffs and the defendant joining the defendant (hereinafter referred to as the "participating") and the decision made on July 2, 2005 regarding the case of unfair dismissal and the case of applying for reexamination of unfair labor practices.

1. Details of the decision on retrial;

The following facts shall not be disputed between the parties, or may be acknowledged by taking into account the whole purport of the pleadings in each entry of Gap evidence 1, 2, Eul evidence 1-1 through 15, and Eul evidence 2-1 through 11:

A. The intervenor is a company that operates automobile manufacture and sales business using 50,000 full-time workers in Seocho-gu Seoul (hereinafter omitted). The plaintiffs are those who were dismissed for a long time due to absence from work without permission or absence from work place, etc. while working for the non-party 1 corporation, etc. (hereinafter the Intervenor's partner company in Ulsan Factory). The plaintiffs are as follows:

On January 1, 2005, the non-party 1 corporation on February 1, 2005, the non-party 2, 1, 200. The non-party 2, 2, 3, 4, 1, 205, 2, 1, 205, 2, 1, 4, 205, 2, 1, 205, 1, 205, 2, 205, 2, 1, 3, 205, 2, 1, 4, 20, 205, 2, 1, 205, 2, 1, 3, 205, 2, 205, 2, 1, 205, 2, 3, 1, 2005, 2, 3, 205, 2, 3, 205, 2, 2005.

B. On February 23, 2005, the plaintiffs dismissed all applications against the intervenors and their above subcontractors on the grounds that the Intervenor is not the employer of the plaintiffs on July 19, 2005, as Busan Regional Labor Relations Commission No. 57, 2005dano14, 2005dano No. 67, 2005dano15, 2005dano84, the partner companies in this case are substantially employers of the plaintiffs. The Intervenor was suspected of the plaintiffs' trade union activities and ordered the subcontractor to dismiss the plaintiffs, and the Intervenor refused to receive labor by asserting that the refusal to receive labor constitutes unfair dismissal and unfair labor practices. The above Regional Labor Relations Commission dismissed all applications against the Intervenor on the grounds that the Intervenor is not the employer of the plaintiffs (the request for remedy against the subcontractor was dismissed all or the remedy against the non-party 7 corporation that was all dismissed or discontinued).

C. On August 19, 2005, the Plaintiffs filed an application for reexamination of unfair dismissal and unfair labor practice relief only with the Intervenor as the Central Labor Relations Commission No. 2005, 704, 2005No197 on August 19, 2005, but the National Labor Relations Commission also dismissed all the above Plaintiffs’ applications for reexamination on the same grounds as the above initial trial order on July 12, 2006 (hereinafter “instant reexamination decision”).

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

A. The plaintiffs' assertion

① The Intervenor added the Plaintiffs to the same production group with regular workers and allowed them to work in place of the same worker. If a vacancy occurs among regular workers, the Intervenor decided whether or not the previous worker continues to work or place him/her, and the Plaintiffs’ wage and other working conditions were determined by the Intervenor to be linked to the regular workers’ working conditions. In addition, even though the instant subcontractor operated as a company separate from the Intervenor in form, it was virtually no longer independent from the Intervenor. Thus, even if the Plaintiffs concluded a labor contract separately with the Intervenor, it is merely a formal and nominal relationship with the Intervenor, and thus, the Plaintiffs and the Intervenor did not directly work with the Intervenor under the relationship controlled and subordinate to the Intervenor, and thus, an implied labor contract relationship between the Plaintiffs and the Intervenor was established between the Intervenor and the Intervenor. ② In addition, the contract for work concluded between the Intervenor and the intra-company subcontractor was a disguised contract between the Plaintiffs, and thus, the Intervenor’s rejection of the Plaintiffs’ temporary agency work contract was unlawful under the Act on the Protection, etc. of Workers, 206.

(b) Fact of recognition;

All the evidence as mentioned above and evidence of subparagraph 3, evidence of subparagraph 4-1 through 5, evidence of subparagraph 5-1, evidence of subparagraph 5-2, evidence of subparagraph 6-1, evidence of subparagraph 6-2, evidence of subparagraph 8, evidence of subparagraph 9-1, 2, evidence of subparagraph 10-1 through 3, evidence of subparagraph 11-1 through 3, evidence of subparagraph 12, evidence of subparagraph 18 through 26, evidence of subparagraph 28 through 31, evidence of subparagraph 32-1, evidence of subparagraph 32, evidence of subparagraph 33, evidence of subparagraph 35-1 through 4, evidence of subparagraph 36-1 through 6, evidence of subparagraph 37, evidence of subparagraph 1 through 39-1, evidence of subparagraph 4, evidence of subparagraph 1 through 4, evidence of subparagraph 4-1, evidence of subparagraph 3-2, evidence of subparagraph 4-2, evidence of subparagraph 3, evidence of subparagraph 4-1 through 4, respectively.

(1) The plaintiffs' labor contract conclusion

(A) On each of the above employment dates, the Plaintiffs concluded a labor contract with each of the instant collaborative entities, separately setting working conditions, such as wages, working hours, places of work, holidays, etc., and joined each of the collaborative entities.

(B) The instant collaborative company, separate from the Intervenor, has established and operated its own rules of employment that stipulate the working conditions, such as employment, personnel affairs, wages, retirement, dismissal, reward, punishment, safety and health, accident compensation, equal employment for both genders, etc. The collaborative company of this case, separately from the Intervenor, has established and operated its own rules of employment. The employees under its jurisdiction have prepared a personal work card, work attendance record, work attendance record, work attendance record, attendance record, early retirement, work hours, annual paid leave, etc., and has been subject to disciplinary action such as dismissal of the employees under its control.

(C) In addition, the instant collaborative company has registered its business with the competent tax office as a corporation or a general entrepreneur and paid corporate tax or value-added tax. Separate from the Intervenor, it manages accounts such as settlement of accounts, preparation of financial statements, etc., and its employees are subscribed to four social insurances such as employment insurance, industrial accident compensation insurance, national health insurance, national pension, etc., and its employees directly paid wages, bonuses, etc. to the Plaintiffs, who are its employees, as well as directly paid wages, etc., and responded to the application for unfair dismissal requested by its employees, including the Plaintiffs.

(2) Contract agreement between the intervenor and the subcontractor in this case

The Intervenor entered into a contract with the instant collaborative entity using a standardized contract. The main contents of the contract are as follows.

(a) The intervenor shall have the subcontractor handle the affairs set out in the contract work detailed specifications and work standards, etc., and the subcontractor shall faithfully perform them (Article 3).

(B) If the collaborative entity engages in its operations at the Intervenor’s workplace, the representative shall stay in the Intervenor’s workplace and the representative is unable to stay in the Intervenor’s workplace, a person delegated with the authority to represent the collaborative entity with the Intervenor’s consent may stay on his/her behalf (Article IV).

(c) A subcontractor shall, in the course of performing the contract work, comply with the specifications of the work in accordance with the work standard (or specifications) provided by the intervenor, and the intervenor may require an explanation of the performance of the contract, and the intervenor may, on the basis of the work standard (or specifications), check the process of the partner’s work and the status of the performance of the work, inspect the quantity and quality of the work, and may require correction of the work method and the poor quality which are in contravention of the work standard (Article IV).

(d) The unit price and monthly planning contract amount shall be based on the detailed statement of the contract work, and the Supplier shall apply to the Intervenor at the end of each month to calculate the contract amount for the current month, and the Intervenor shall settle and pay the contract amount, and if the contract amount is terminated before the contract is completed, the Intervenor may calculate and pay the contract amount at the rate of the date completed (Article 5).

(e) In the event that the subcontractor performs the contract work within the Intervenor’s place of business, the intervenor may lend the subcontractor’s office, place of work, equipment, machinery, tools, etc., and the subcontractor shall compensate the subcontractor for the full amount of damages caused by the partner’s cause attributable to the subcontractor (Article 6).

(f) In carrying out the contract, the collaborative company must observe the relevant laws and regulations, prepare its own plan for dealing with its affairs, properly place its employees, and conduct direction, supervision and education, and exercise due diligence and due care to the intent of this contract (Article 8).

(G) A cooperator is responsible for fulfilling its employees’ obligations under the Labor Standards Act, Industrial Safety and Health Act, Industrial Accident Compensation Insurance Act, Employment Security Act, Social Insurance Act, and other relevant laws and regulations, and all liabilities resulting from nonperformance of the said laws and regulations (Article 10).

(h) If there is a defect in the performance of the contracting work due to a cause attributable to the collaborative company, the collaborative company shall be liable to the intervenor for the damages as stipulated in the Agreement on the Settlement of Clorries, and the intervenor shall be liable to compensate for the damages to the collaborative company if there is a defect in the performance of the contracting

(i) The Supplier shall subscribe to a surety insurance such as a surety insurance company, or deposit a bond to the Intervenor’s community credit cooperatives, and submit the certificate to the Intervenor (Article 20).

(3) The Intervenor’s “management of private partner companies” standard

An intervenor has prepared the standards of "management of private cooperative enterprises" to manage a contract agreement with an in-house subcontractor. The main contents of the standards are as follows:

(A) In-house subcontractor means an in-house resident subcontractor who enters into a contract for the services related to the direct and indirect sectors of production in the Intervenor’s place of business and who is the representative of the enterprise or the authorized person thereof stay in the workplace, and the intervenor has ordered such in-house subcontractor to contract the work specified in the contract at a specified place in the intervenor’s place of business and the subcontractor shall stay in the intervenor’s place of business and perform the work under the contract (3.1, 3.2).

(B) The Intervenor’s Cooperation and Support Team is responsible for and authorized to establish and implement policies, such as the selection of a company and the termination of transactions, the determination of contract amount, the conclusion of contracts, the evaluation of enterprises, and all kinds of standards necessary for the management of the company, and the modification of these standards. The production management team is responsible for and authorized to comprehensively support the operating team of the business division, such as the preparation of and the follow-up management for the number of workers for the work subject to the contract of the business division, the planning time, etc., and the inspection and confirmation of the business unit’s training, the business unit’s performance status, and the business entity’s overall support team. The operation team also has the responsibility and responsibility for the management of the business division in accordance with the working standards, the work guidance and work management, the work report submitted by the company, the confirmation and management of the feasibility of the business, and the verification of the performance of the business sector’s work (4.1,4.2, 4.3).

(C) The Intervenor’s operational team shall prepare data on the purpose of the sub-convenation, contents of work, period of contract, the number of persons engaged in the monthly planning work hours and examples, budget, clothes and safety supplies cost calculation, etc. for new sub-convenation, and shall request the cooperation support team to enter into a contract as a cooperation support team. The cooperation support team may adjust the appropriate number of operating companies and companies in consideration of the total number of employees. For the prevention of the failure to manage the company, small-scale companies with less than 20 employees are in principle merged with other companies, and the number of employees per company shall be adjusted from 40 to 80 for smooth work management (e.g., May 2, 3).

(d)The contract amount shall be determined by the agreement with the subcontractor from among the cost of quantity contracts, unit contracts, preservation contracts, rental contracts, emergency business contracts, equipment contracts, manager personnel expenses, and cleaning goods for each type of work, and the progress payment for each month shall be settled and paid once a month at the request of the contractor within 15th of the following month (5.6).

(e) The Intervenor’s operational team shall guide the collaborative company to prepare the work log and the work monthly report, and shall receive and keep a copy of the work log from the collaborative company every day, and shall require the collaborative company to submit a copy of the work log at the end of the month and confirm the content of the request for progress payment and comparison (5.6.5).

(f)In principle, the working places, facilities, machinery, etc. required by the collaborative entity in the performance of the contracted work shall be leased free of charge, and a separate agreement shall be drawn up at the time of an onerous loan, and the collaborative entity shall assist the collaborative entity in simple, working clothes, and other facilities, separate from the contract amount (5.8.3).

(g) In principle, the collaborative entity shall autonomously conduct all education for its employees, such as duties, safety, and education for knowledge, and, if requested in writing by the collaborative entity, the entity may conduct such education with or without compensation to its employees (5.84).

(h) periodically evaluate internal management and general management of collaborative entities and reflect the results of the evaluation when adjusting the number of persons for each contract and company (5.9).

(4) Establishment, implementation, etc. of various business standards

(A) For the prevention, management, etc. of various safety accidents due to the use of logistics equipment (stampers, forkickers, etc.) lent by a participant to a cooperative that supplies or installs production materials to the participant, the intervenor’s production management department, the chief of the material division, etc., have the authority to provide the subcontractor with safety education, instructions and guidance necessary for his/her duties, or to instruct and control the subcontractor to comply with safety regulations,” and the intervenor’s management standards for free rental logistics equipment and activities to prevent efficient safety and health management for the subcontractor, the intervenor’s environmental safety team leader, etc., has the authority to conduct regular safety inspections on the subcontractor and direct and supervise the subcontractor, respectively.

(B) In addition, the intervenor periodically subdivided in-house collaborative companies into human resources management, work management, general management, and other matters, and assessed the operation and management status thereof, and made the safety inspection table to conduct the safety inspection by itself, and obtained approval from the head of the division of the intervenor in the safety inspection table. In addition, the in-house collaborative company was made to prepare a work log report for the employees belonging to it and obtain approval from the head of the intervenor department. If the in-house collaborative company requests that certain facilities necessary for the intervenor be “matters”, it was also intended to review and install it.

(C) The Intervenor, as well as the relevant department of the Intervenor, has established and implemented guidelines for supervision of basic order, such as working hours of workers who take place in the company as well as the intra-company subcontractor. In the event that the intra-company subcontractor transfers his/her business, the Intervenor adjusted and resolved the transferee company to succeed to the employment and wages of the transferor company. On a regular basis, the employer measured the working environment at each work site and paid the harmful allowances to the intra-company subcontractor’s employees, as well as directly consulted on the difficulties of the intra-company subcontractor workers

(D) At the time of concluding a collective agreement with a trade union, the intervenor has reached an agreement on the improvement of treatment for workers belonging to in-house collaborative companies upon the request of the trade union. Meanwhile, since 2003, workers belonging to in-house collaborative companies separately form a trade union and engage in collective bargaining with their affiliate companies.

(5) The work attitude, etc. of the instant subcontractor in its employees

(A) Most of the Intervenor’s vehicle assembly and production work were conducted by means of automatic flow using the consortium labeling. Employees belonging to in-house collaborative companies were placed in combination with regular employees of the Intervenor on the consortium labelling left and right, and were engaged in simple and repetitive assembly work, etc. conducted by the Intervenor in accordance with the solar chart, the model, work standards, etc. prepared and issued in advance by the Intervenor.

(B) At the ordinary work site, the Intervenor’s manager and the on-site manager of the intra-company subcontractor were permanently stationed, and the Intervenor’s manager directly issued a necessary work order to the employees of the subcontractor when there are special circumstances, such as changes in the production process or the volume of work failure. In the Intervenor’s design process, the Intervenor’s manager directly issued a necessary work order to the employees of the subcontractor. The Intervenor’s design process has “kis” as the stage of the process of inspecting the defective work, and the key issued a direction for its revision through the on-site manager of the intra-company subcontractor where the defective work including the work of the employees of the subcontractor is inspected and defective.

(C) If the Intervenor paid various encouragements, travel expenses, gift expenses, etc. to workers, the Intervenor notified the intra-company subcontractor of the payment standards, and had the subcontractor pay various encouragements, travel expenses, gift expenses, etc. to its employees. In addition, the worker’s work hours, rest hours, etc. are the same as those of the regular workers of the Intervenor, and the intervenor had the worker of the intra-company subcontractor work in place of the vacancy if the vacancy occurs to the worker of the Intervenor due to industrial accident, temporary retirement, etc.

(6) Group response to a trade union's illegal dispatch case

In around 2004, the labor union of the intervenor filed a petition with the intervenor and in-house subcontractor to the Ministry of Labor for illegal dispatch suspicion. At that time, the intervenor called the representative of the in-house subcontractor and discussed countermeasures against the investigation into the Ministry of Labor, and prepared a list of documents to be prepared for the in-house subcontractor and issued them a list of documents to be prepared for the in-house subcontractor and verified the documents prepared by the in-house subcontractor.

C. Determination

(1) Whether an implied labor contract relationship is established

(A) If a person employed by the plaintiff employer who is engaged in a third party's work at the place of business, who is employed by the third party's employer, is an employee of the third party, the plaintiff employer is merely a formal and nominal one that can be deemed to be identical to the third party's labor agency by lacking identity or independence as an employer. In fact, the relevant employee has a subordinate relationship with the third party, and the person who actually pays wages is a third party, and the other party to the provision of labor is a third party, so an implied labor contract is established between the relevant employee and the third party (see Supreme Court Decision 97Nu1946 delivered on November 12, 199, etc.).

(B) In the instant case, the Intervenor provided the instant collaborative company with office and work tools, work clothes, etc. free of charge, and arranged employees belonging to the Intervenor’s factory in combination with the Intervenor’s regular employees at the Intervenor’s factory to conduct assembly work. The Plaintiffs’ working hours, rest hours, etc. are the same as those of the Intervenor’s regular employees, and in the case of a contract for the rate of contract, the method of receiving the contract amount is very insufficient to receive monthly wages. In the event of a vacancy in the Intervenor’s regular workers, the subcontractor’s employees are assigned to substitute workers by enacting the internal collaborative company management standards, etc., and the Intervenor manages and controls the collaborative company by allowing the collaborative company to maintain a proper number of employees or periodically assessing the collaborative company’s employees, etc., and the Intervenor’s employment relationship between the Plaintiffs and the Intervenor’s employees, such as the number of working days and work hours of the collaborative company after receiving the worker’s report, etc. from the collaborative company.

(C) However, the above facts are as follows: ① Corporate tax and other taxes are paid to the Intervenor as an independent business entity by establishing a company separate from the Intervenor, and the Intervenor’s work in the name of the subcontractor or its representative are separate from the accounting and settlement of accounts; ② The Intervenor established rules of employment separately from the Intervenor, and exercises personnel rights and disciplinary actions, such as employing workers, managing labor conditions, and taking disciplinary action; ③ The Intervenor’s work is also paid to the Intervenor’s employees under its own responsibility, and ④ The Intervenor’s work-related work-related work-related work-related work-related work-related work-related work-related workers’ work-related work-related work-related work-related work-related work-related work-related work-related workers’ work-related work-related work-related work-related work-related workers’ work-related work-related work-related workers’ work-related work-related workers’ work-related work-related work-related workers’ work-related work-related workers’ work-related work-related workers’ work-related work-related workers’ work-related workers’ work-related work-related workers’ work-related work-related workers’ work-related work-related work-related work-related workers’.

d) Determination as to whether she constitutes a temporary agency employment relationship

Article 2 of the Dispatch Act provides that workers of cooperative companies, including the plaintiffs, shall work at the end of the month in accordance with the specifications of the contract, while maintaining the employment relationship with the temporary work agency and under the direction and order of the user company (Article 2 of the Dispatch Act). In this case, workers of the cooperative company, including the plaintiffs, are engaged in work at the participant's workplace, but the subcontractor shall receive the contract amount at the end of the month in accordance with the detailed guidelines of the contract and completed work, and the representative of the cooperative company or the site manager shall be present at the work site and shall not be deemed to be engaged in the temporary work agency business's temporary placement of the plaintiffs and the subcontractor's temporary agency business's temporary agency business's temporary agency business's temporary agency business's temporary agency business's temporary agency business's temporary agency business's temporary agency business's temporary agency business's temporary agency business's temporary agency business's temporary agency business's temporary agency business's temporary agency business's temporary agency business's temporary agency business's temporary agency business's temporary agency business's temporary agency business's temporary agency business's temporary agency business's temporary agency business'.

(3) Sub-decisions

Therefore, in relation to the plaintiffs, the intervenor cannot be deemed as an employer who is the subject of unfair dismissal and disadvantage treatment, and the decision of the retrial of this case to the same purport is lawful.

3. Conclusion

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

Judges Jeong-hee (Presiding Judge)