(영문) 서울중앙지방법원 2017.11.10. 선고 2016가합542 판결

The defendant shall pay to the plaintiffs 5,00,000 won with 15% interest per annum from the delivery date of the copy of the complaint of this case to the delivery date of the 5,000,000 won where each of the above amounts exceeds 5,00,000 won, and from the delivery date of the copy of the complaint of this case to the delivery date of the 5,00,000 won where each of the amounts exceeds 5,00,000 won.

Reasons

1. Basic facts

A. Status of the parties

1) Since the establishment of the Human Resources Bank in 1996, each employment center belonging to the Ministry of Employment and Labor under the Defendant’s control employed non-public officials in various types of occupations as one-year fixed-term workers in line with new projects, in order to strengthen the employment infrastructure, most of them were converted into an inorganic contract worker.

2) Each employment center’s human resources structure is divided into public officials and non-public officials. Non-public officials were composed of six types of occupations of job counselors, office workers, job offers counselors, training counselors, job-related success counselors (hereinafter referred to as “satisony counselors”) and honorary counselors for employment assistance.

3) The Plaintiffs were employed as a fixed-term head counselor around March 2012, and was converted to a inorganic occupation around January 2014, or was employed as a fixed-term head counselor around July 2013, and was converted to a inorganic occupation around January 2015. However, all of the current inorganic contract workers who were employed as a fixed-term employee for 18 months to 22 months after employment.

(b) The content of the employment success project (hereinafter referred to as the "employment success project") is a comprehensive employment assistance system that systematically supports entry into the labor market by providing the integrated employment assistance program to the low-income vulnerable class with the "examination and career creation" according to the individual employment activity plan, and providing the "employment success allowance". The employment achievement project is a comprehensive employment assistance system that systematically supports entry into the labor market. The employment achievement project is divided into I type and II according to the characteristics of the target, the first type of employment success (hereinafter referred to as the "type of 1") of 0 to 64 years old, the second class (minimum 150%) of 0, the second class (minimum 150%) of 0, the second class (minimum 150%) of 0, the employment promotion of the homeless, the promotion of employment for the elderly, the elderly's children, the elderly's children, the elderly's children, the elderly's children, the elderly's children, and the elderly's children, the employment achievement of 0 to 10,0000.

[Ground] Facts without dispute, Gap evidence No. 1, Eul evidence No. 5, the purport of the whole pleadings

2. The plaintiffs' assertion

The Defendant paid performance bonuses, family allowances, children’s school allowances, fixed meal allowances, holiday meal expenses, holiday leave expenses, welfare points, etc. to public officials who mainly engage in work similar or similar to those of the Plaintiffs, except for public officials working at the Employment Promotion Team, among public officials working at the Employment Promotion Team, who take full charge of the work of the team leader and the support work. However, without reasonable grounds, the Plaintiffs, who are in charge of the same or similar work, paid only each of the above allowances. This is in violation of Article 8(1) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “ Fixed-Term Act”). The Defendant should pay to the Plaintiffs for a period from March 2012, 201 to January 201, or from July 201, 2013 to January 2015 to January 2014, 2015, the sum of the claim amount in attached Table 2 as a compensation for damages arising from wages or tort, and compensation for delay.

3. Determination

A. Relevant legal principles

According to Article 8(1) of the Fixed-term Workers Act, an employee subject to comparison is required to engage in the same or similar work as a fixed-term employee claiming discriminatory treatment. Whether an employee subject to comparison falls under the same or similar work as an employee subject to fixed-term employee shall be determined based on the work actually performed by the employee, not the work specified in the rules of employment or labor contract, etc. but rather on the basis of the work specified in the rules of employment or labor contract. However, even if the work performed by the employee is not completely different and the scope of, responsibility, and authority of, the work performed by

Article 2 subparag. 3 of the former Fixed-term Workers Act (amended by Act No. 11667, Mar. 22, 2013) defines discriminatory treatment as “an unfavorable treatment in terms of wages, other working conditions, etc. without any justifiable reason”. “Unjustifiable cause” refers to cases where the need to otherwise treat fixed-term workers is not recognized, or where the need to otherwise treat is recognized, the method and degree thereof are inappropriate. Whether reasonable grounds exist shall be determined by comprehensively taking into account the details of the unfavorable treatment in individual cases, as well as the factors for determining the terms and conditions of employment of fixed-term workers, such as the form of employment, scope of duties, rights, limited liability, wages, and other working conditions (see Supreme Court Decision 2011Du5391, Nov. 27, 2014).

B. Determination

Although the Defendant paid performance bonus, family allowances, children education allowances, fixed meal expenses, regular leave expenses, welfare points, etc. to public officials working at the Employment Promotion Team of the Employment Promotion Center, the Plaintiffs did not pay family allowances, children education allowances, fixed meal expenses, performance bonus, holiday bonus, regular leave expenses, and the fact that welfare points have been less paid, there is no dispute between the parties concerned. However, in light of the following types of arguments and procedures for employment, contents and scope of duties, authority, responsibility, wages, etc. of the Plaintiffs, it is difficult to view that public officials working at the Employment Promotion Team of the Employment Promotion Team constituted comparable workers under Article 8(1) of the Fixed-term Act, and it is difficult to view that public officials working at the Employment Promotion Team of the Plaintiffs, without reasonable grounds, committed acts unfavorable to the Plaintiffs under Article 8(1) of the Employment Promotion Team of the Act by taking full account of the overall purport of arguments.

(1) Most of the public officials working in the Employment Promotion Team of the Employment Promotion Center were employed through an open competitive recruitment examination of Grade 9 State public officials comprised of five subjects, such as administrative law, and interviews, pursuant to Article 28(1) of the State Public Officials Act. On April 2007 and November 1 of the same year, counseling public officials have work experience of at least three years (in order to become a vocational counselor, he/she has obtained qualifications as a vocational counselor under the National Technical Qualifications Act or has obtained at least four-year degree under the Higher Education Act; a person holding at least high school graduates, who has worked for at least three years as a daily employment center for local labor office; a document examination, written examination, and interview with the Ministry of Employment and Labor even in the employment procedure; a person who has worked for at least two years as a public official for the employment promotion team of the Employment Promotion Center of the Ministry of Employment and Labor. On the other hand, if he/she is required to be employed through a written examination and interview of the employment promotion team of the Employment Promotion Center, he/she is not subject to restrictions on qualifications for two or more.

② Unlike the par value counselors, public officials working in the Employment Promotion Team are in charge of various general administrative affairs (such as the head of the team and overall affairs of the team, civil petition counseling and resolution, preparation of various public documents, work performance and management, inspection plan of entrusted institutions, work of the Ministry of Employment and Labor cooperation headquarters) as well as various general administrative affairs (the duties of the head of the team and overall affairs of the team, preparation of work implementation plan, work performance management, inspection plan of entrusted institutions, and work of the Ministry of Employment and Labor cooperation team). Furthermore, public officials working in the Employment Promotion Team are in charge of one type of project for the low-income group and the low-income group, and the par value counselors are in charge of two types of work for the young and the middle-income group. In accordance with the guidelines for the management of human resources, if the number of work for the par value counselors is excessive, they are not possible to be assigned to one category of work for the first category of public official, but to be considered to be an exceptional measure for the first type of work for the failure of public officials and the number of participants in employment.

(3) Unlike package counselors, public officials who work at a employment-oriented public support team shall be subject to the application of the State Public Officials Act and the provisions on the service of State public officials and require the duty of good faith, the duty of obey, etc. of public officials, and

④ When comparing wages paid in consideration of contractual work as of the year 2013, the basic salary is KRW 1,203,50 for class 1 public officials of class 9 working at the employment-based public support team. With respect to the basic salary, the basic salary is KRW 1,719,797 when the basic salary was combined with all the class allowance, fixed meal allowance, holiday leave allowance, civil service duty allowance, welfare points for himself, and the minimum grade-based performance bonus. The remuneration of the failure key counselor is KRW 1,570,00, and the remuneration is deemed to be KRW 1,675,000 for each month when the regular salary is combined with all the salary, welfare points for himself, and performance bonus for class 9 public officials of class 1 working at the employment-based public support team (=1,797,797,719,797,971,675,000,000 won).

4. 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.