See Attached List of Plaintiffs (Law Firm LLC et al., Counsel for the defendant-appellant)

Korea Highway Corporation (Law Firm Squa, Attorneys Kim Yong-mun et al., Counsel for the plaintiff-appellant)

April 18, 2016

Suwon District Court Decision 2013 Gohap1392, 2013 Gohap3138 (Merger), 2013 Gohap4988 (Merger), 2013 Gohap5806 (Merger), 2013 Gohap5806 (Merger), 2013 Gohap10969 (Merger) decided September 3, 2014

1. The judgment of the first instance court, including any claims extended or added in the trial, shall be modified as follows:

A. The defendant shall express his/her intention to employ the rest of the plaintiffs except for the plaintiffs listed in the list of plaintiffs employed by the defendant 2 attached hereto.

B. The Defendant shall pay to the Plaintiffs 5% interest per annum from July 22, 2015 to June 24, 2016 and 20% interest per annum from the following day to the day of full payment.

C. Each of the plaintiffs' remaining claims is dismissed.

2. 1/10 of the total costs of litigation shall be borne by the Plaintiffs, and the remainder by the Defendant, respectively.

3. The above paragraph 1(b) may be provisionally executed.

[Claim]

1. The defendant expressed his/her intent to employ the above plaintiffs on each corresponding day stated in the "date of occurrence of the employment obligation" of the attached Table 4 attached hereto to the remaining plaintiffs except for the plaintiffs listed in the attached Table 2 of the list of plaintiffs employed by defendant 2.

2. The Defendant shall pay to the Plaintiffs the amount corresponding to each claim stated in the “amount of claim” listed in the separate sheet No. 3 attached hereto, 5% per annum from July 22, 2015 to the date of the instant judgment, and 20% per annum from the next day to the date of full payment (the parties changed the purport of the claim in the trial, and whether to expand or reduce the purport of the claim in addition to the addition of the claim for damages for delay, are as indicated in the “revision of Claim” column listed in the separate sheet No. 3. The Plaintiffs indicated in the separate list of the Plaintiffs employed by the Defendant No. 2 withdraw the part of the claim for employment).

[Purpose of Appeal by Plaintiffs]

The part against the plaintiffs falling under the order to pay additional amounts under the judgment of the court of first instance shall be revoked. The defendant shall pay the plaintiffs each corresponding amount of money stated in the attached Table 3 “Appeal Amount” column to the plaintiffs (as the plaintiffs have been amended in the court of first instance as above, the defendant shall be deemed to have filed an incidental appeal with respect to each corresponding amount and damages for delay stated in the attached Table 3 “Incidental Appeal Amount

【Purpose of Defendant’s Appeal】

The part against the defendant in the judgment of the first instance is revoked, and all of the plaintiffs' claims corresponding to the revocation are dismissed.

1. Summary of this case

The plaintiffs asserted that the "self-employed persons" did not obtain permission from the temporary work agency (the "after and after the worker dispatch contract" is employed by the temporary work agency (the "the worker dispatch contract" in this case) and provided the worker dispatch service for the defendant under the worker dispatch contract concluded between the temporary work agency and the defendant who is the user company (the "after and after the worker dispatch contract" in this case). Therefore, in accordance with the Act on the Protection, etc. of Temporary Agency Workers (hereinafter the "Dispatch Act"), the defendant expressed his/her intention to employ some plaintiffs, and the plaintiffs are liable for damages due to the violation of the prohibition of discrimination (before the occurrence of the employment obligation) under the Dispatch Act or the direct employment violation (after the occurrence of the employment obligation). Accordingly, the defendant asserts that "the plaintiff and the defendant are not in the worker dispatch relationship as prescribed by the Dispatch Act, and they are not liable for damages under the above Act, and there is no specific compensation for damages as to the plaintiffs' assertion."

Based on the above arguments, ① whether the relationship between the plaintiffs and the defendant can be seen as a temporary placement relationship under the Dispatch Act, ② if applicable, whether the defendant has a duty to express his/her intent to employ the plaintiff, ③ whether the defendant is liable for the violation of the prohibition of discrimination under the Dispatch Act or the liability for damages due to the breach of direct employment, ④ Specific scope of damages are examined in any way.

2. Facts of recognition;

A. The process of concluding the instant service contract

1) The Defendant (hereinafter “Defendant”) was a juristic person established with the aim of promoting road maintenance and contributing to the development of road traffic through the construction and management of roads and other activities related thereto, and was conducted with 7 regional headquarters and 45 branch offices, etc. other than the main office (Articles 1 and 2 of the Korea Highway Corporation Act). The Defendant’s duties prescribed by the Korea Highway Corporation Act are as follows.

1. Execution and management of construction works concerning the new construction, reconstruction, maintenance and repair of toll roads (including passages connected to toll roads) to promote the use of toll roads; 3. Execution and management of construction works concerning the new construction, reconstruction, maintenance and repair of toll roads; 4. Acquisition and management of real estate necessary for toll roads and gas stations; 6. Acquisition of real estate for toll roads and management of toll roads; 1. Execution of construction works concerning the construction, reconstruction, maintenance and repair of toll roads (including construction of roads connected to toll roads); 2. Execution of construction works concerning the installation, repair and repair of toll roads; 1. Execution of construction works concerning the construction, renovation, maintenance and repair of toll roads; 3. Execution of construction works concerning toll roads; 1. Execution of construction works concerning the construction, maintenance and repair of toll roads; 2. Execution of construction works concerning the installation, maintenance and repair of toll roads and construction works concerning new and renewable energy facilities entrusted to a local government or a third party; 3. Execution and management of construction works concerning new and renewable energy facilities entrusted to the State, a local government or a third party;

2) On June 2007, the Defendant: “On the part of the Defendant’s on-site safety patrol staff, etc., performed by the Defendant’s on-site safety patrol staff;” for 15 years or longer, the Defendant selected the employees remaining after the retirement age of at least three years from among the employees of the Defendant’s continuous service, as eligible for operation of the off-site security guards. The specific criteria for the selection of eligible operational officers

1) 1) 1: 2) 3: In the case of the same order, a person with a traffic experience (referring to a person with a traffic experience of at least one year in traffic management or traffic safety at a traffic station, local headquarters traffic team, branch office, or traffic wave) among employees subject to the wage peak system (referring to a person with a traffic experience of at least one year in traffic management or traffic safety) 2: In the case of the same order, a person with a high level of the "class measurement score" and "(2) of the number of persons succeeding to the on-site job of patrol" (the criteria for the measurement of the number of persons succeeding to the on-site job of patrol duty was abolished from 2012).

Note 2) “Mark”

3) The employees selected as eligible to operate the Foreign Legal Consultant (hereinafter referred to as the “Foreign Legal Consultant”) pursuant to the above criteria (hereinafter referred to as the “Foreign Legal Consultant”) received education necessary to establish and operate the Foreign Legal Consultant (hereinafter referred to as the “Foreign Legal Consultant”) from the Defendant Corporation and completed business registration, and thereafter employed the Safety Inspector (hereinafter referred to as the “Foreign Legal Consultant”) under the name of the Foreign Legal Consultant.

4) The Defendant provided the instant outsourcing business owner with education on “insurance-related matters”, such as ① the process of preparing business operators, including business registration, drawing up the rules of employment, recruitment and operation of employees, ② the determination and payment of personnel expenses, labor management, expenses and general management expenses, and tax management, ③ the methods of operating the national pension, health insurance, employment insurance, employment insurance, industrial accident compensation insurance, wage claim guarantee charges, group accident insurance, etc. The Defendant provided the instant outsourcing business owner with various forms of forms necessary for the instant outsourcing business operation, including a written application for probation, written employment approval, labor contract, employment agreement, employment consent, work performance evaluation statement, notice of dismissal, notice of dismissal, and standard employment rules. In particular, even though there were some external business owners independently set out in the rules of employment, the Defendant adopted the standard employment rules (draft No. 25-1 through 15) as they were prepared by the Defendant (Evidence No.

5) The Defendant concluded a service contract with the foreign owner of the instant case and the foreign owner of the instant case, stating that “the Defendant shall entrust the Defendant with the safety patrol, etc. on the expressway under the jurisdiction of the Defendant’s branch office” (hereinafter collectively collectively referred to as “instant service contract”).

6) In the case of the instant outsourcing business owner’s operating period, the retirement age was set at the time of the instant outsourcing business owner’s retirement (within the maximum period of six years), but after around 2012, the following was changed according to the class at the time of the instant outsourcing business owner’s retirement (attached Table 1).

125% (the largest five years) of the number of the remaining months of the retirement age of Grade 2 (the maximum five years), 100% of the number of the remaining months of the retirement age of Grade 3 (the maximum six years), 90% of the number of the remaining months of the retirement age of Grade 4 to Grade 5 (the maximum five years), 6.3% of the number of the remaining months of the retirement age of Grade 6 (the maximum five years) 83.3% (the maximum five years) of the remaining months of the retirement age of Grade 6 (the maximum five years), 6.7% of the number of the remaining months of the retirement age of Grade 6 (the maximum 4 years) / Table

7) As a result of the outsourcing work, around 70% of the safety patrol of the branch around the end of 201 came out, and the safety patrol of the former branch was taken out on April 201. Accordingly, from June 2007 to April 2013, the safety patrol of the Defendant’s expressway was performed by the safety patrol officer at the site (or on-site (or on-site (or on-site (hereinafter “on-site”) of the Defendant’s highway, and the remaining section was performed by the safety patrol officer at the instant safety patrol officer.

8) From November 12, 2007 to December 31, 2012, the safety patrol service on the section under the jurisdiction of ○○○ branch was performed by Nonparty 1 (△△△△ branch), who is an external business owner, for Plaintiffs 365, 366, 367, 368, 369, 370, 371, 372, 373, 374, 375, 376, 377, 378, and 379, while performing the safety patrol service on the section under the jurisdiction of ○○○ branch, the Defendant succeeded to the employment of the non-party 2 (the non-party 2), who is the external business owner, from July 1, 2013 to June 30, 2013. The Defendant succeeded to the employment of the non-party 2 (the non-party 2).

9) Unlike the method of paragraphs (1) through (6), from around 2014 to around 1) of the instant lawsuit, the Defendant’s partial branch offices (Seoul, Chungcheong, Hongcheon, Hongcheon, Seocheoncheon, and Bocheon Branch) (the instant service contract was concluded in the same way as Paragraph (1) to (6) of the instant contract, even though it was entrusted to a specialized company (the company that performed the safety patrol duty on the privately financed Highway) that performed the safety patrol duty irrespective of the Defendant’s filing of the instant lawsuit. However, the instant service contract was concluded in the same way as Paragraph (1) to (6).

B. Establishment of the foreign vaccination enterprise of this case

1) After completing the business registration individually, the external owner of the instant case paid wages by employing a safety patrolman, after which the recruitment advertisement was made, and performing duties such as withholding tax on earned income, payment of withholding tax, year-end tax settlement, etc., and subscribed to the National Pension, Employment Insurance, National Health Insurance, and Industrial Accident Compensation Insurance. In addition, after setting the rules of employment, the external owner managed the next year and compared status, and also exercised its independent disciplinary power against the safety patrolman.

2) 소외 3(♡♡기업)을 비롯한 이 사건 외주사업주는 법인설립 자본금, 사업자등록비, 이행(계약)보증보험료, 채용 관련 비용을 부담하고, 사무용 컴퓨터나 인쇄기, 복사기 등 일부 사무용품과 냉장고, 정수기, 냉난방용품 등 비품, 출퇴근등록기, CCTV 등을 마련하기도 하였다. 그러나 피고는 이 사건 외주사업주에게 이 사건 용역계약의 이행에 직접적으로 필요한 주요 시설과 장비인 안전순찰차량, 업무용 전화기, 차량관제 단말기, 사무실, 기타 사무실 비품(책상, 의자, 캐비닛 등) 등을 무상으로 제공하였다. 특히 피고가 제공한 안전순찰차량에는 피고의 회사명과 로고가 표시되었다.

3) The instant safety patrolman, like regular employees affiliated with the Defendant, worn the Defendant’s log and company name attached with the Defendant’s clothes. The name of the Defendant’s branch as well as the Defendant’s branch name and “” was stated on the front of the name cards used by some of the instant safety patrolman, and the Defendant’s log and the telephone number at the local headquarters were stated on the back (However, the cost of the production of the work clothes or name cards was borne by the external business owner).

C. Details of the instant service contract

1) The instant service contract concluded between the Defendant and the instant outsourcing company was comprised of general terms and conditions of the service contract, special terms and conditions of the service contract, and the content of the service contract (standard manuals).

2) Of the special terms and conditions of the instant service contract, the relevant contents are as follows (No. 18 No. 4, 5).

본문내 포함된 표 용역계약 특수조건 제2조(정의) 이 장에서 사용하는 용어의 정의는 다음과 같다. 2. “관리자(감독자)”라 함은 지사의 안전순찰업무 용역계약 과업이행을 직접 감독하는 지위에 있는 자로 지사장을 말한다.(주3) 4. “계약상대자”라 함은 피고와 안전순찰업무용역계약을 체결하여 지사의 안전순찰업무를 운영하는 자를 말한다. 5. “과업인원”이라 함은 계약상대자가 지사 안전순찰업무 운영을 위하여 계약서에서 정한 인원을 채용한 근무자를 말한다.(주4) 6. “사무장”이라 함은 근무자 중 계약상대자를 대리하는 근무자를 말한다. 제8조(고용) 계약상대자는 용역착수일까지 안전순찰업무 원활한 수행을 위하여 적격자 채용을 완료하여야 하며, 이 경우 인력의 원활한 확보를 위하여 피고의 현장직 또는 전 용역계약자의 고용원으로 재직 중인 자 중 적격한 자를 채용할 수 있다. 제10조(과업) ① 과업에 관하여는 일반조건 및 특수조건에서 정하는 경우를 제외하고는 ‘표준매뉴얼’에서 정하는 바에 의한다. ③ 계약목적 달성을 위하여 필요한 경우 표준매뉴얼 이외에 ‘추가업무’로 표준매뉴얼에 추가하여 지시할 수 있으며 또한 계약상대자의 요청에 의거 ‘추가업무’를 승인하여 시행할 수 있다. ④ 계약상대자가 이행해야 할 업무는 다음 각 호와 같으며, 세부적인 사항은 표준매뉴얼에 의한다. 가. 기본업무 1. 안전순찰업무 일반 2. 교통사고 처리업무 3. 원인자부담금 관련 업무 4. 운행제한차량 단속업무 5. 제한차량 단속업무 6. 안전순찰팀 운영에 관한 업무 7. 안전순찰차량 관리 8. 근무편성표 작성 9. 이용객 민원 처리업무 10. 관리시설물 등의 유지관리업무 11. 피고가 이용객에 대하여 지사에서 추진하는 안내전단 배포, 입간판 설치 등의 홍보업무 12. 피고가 지사운영과 관련하여 요구하는 각종 자료의 제출업무 13. 피고가 지사 운영을 평가하기 위하여 정기적으로 시행하는 평가업무 14. 지사 인근 지역의 안전사고 또는 교통사고 등의 발생으로 고속도로 교통흐름에 지장이 발생한 때에 교통소통 처리를 위한 업무 15. 기타 피고가 지사운영과 관련하여 지시하는 업무 나. 특별업무 대형교통사고, 폭설 등 재난재해 및 특별교통소통 대책 시에는 피고와 협의하여 안전순찰원을 추가로 활용할 수 있다. 이 경우 노임은 월별로 정산지급할 수 있다. 제11조(과업인원의 배치 등) ① 계약상대자는 용역계약을 이행하기 위하여 과업인원을 정규직으로 채용하여 당해 지사에 배치 및 근무자 편성을 하여야 한다. ② 계약상대자는 안전순찰원의 신규채용 또는 교체 시 자체 자격기준에 의거 선발하고, 안전순찰원의 성명·주소·연령·경력 등을 서면으로 피고에 즉시 통보하여야 한다. ④ 과업인원은 근무편성에 의거 지사에 상주 근무하여야 한다. 1. 과업수행과 관련하여 근무편성의 적절성 여부를 심사하여 피고는 그 의견을 통보할 수 있다. 2. 과업인원이 비상주하거나 과업 미수행 시 피고는 시정조치 등을 요구할 수 있으며, 과업인원 미충원, 지사 비상주, 과업 미수행 시는 해당 용역비를 감액 조치할 수 있다. 3. 과업인원 부족 시에는 피고에 그 사유를 통보하고 수일 내에 충원하여야 한다. 4. 경조사, 공무수행 등으로 일시적 결원 발생 시에는 피고 승인하에 직무 수행이 가능한 범위 내에서 대근(대근)을 실시할 수 있다. ⑤ 과업수행에 필요한 범위 내에서 과업인원의 탄력적 근무, 대체휴무제 등을 실시할 수 있으며, 이 경우 피고와 사전 협의하여야 한다. 제12조(안전 및 직무교육) ① 계약상대자는 과업의 원활한 수행을 위하여 피고 주관으로 시행하는 교육·훈련에 협조하여야 한다. ② 계약상대자는 원활한 업무수행 및 안전사고 예방을 위하여 자체계획을 수립하여 소속 직원에 대하여 월 1회 이상 직무(신규, 정기, 수시)교육 및 안전교육을 실시하고, 내용을 교육일지 및 교육참석자 명단에 기록·유지해야 한다. 제13조(계약금액의 조정) ① 물가변동으로 인한 계약금액의 조정은 일반조건 제15조에 의한 품목조정률 적용을 원칙으로 하되 적용방식은 다음 각 호의 방법에 의한다. 1. 노무비는 제조부문 시중노임단가에 산입되는 임금(기본급, 제 수당 등)을 시간급으로 환산하여 매년 제조부문 시중노임단가 이상으로 연계하여 적용한다. ② 설계변경으로 인한 계약금액의 조정은 다음 각 호에 의한다. 1. 지사의 설계는 연도별 해당 과업인원 인건비와 소요경비 등을 포함하여 설계하되 연도별 금액과 총 계약기간 금액을 구분하여 설계하여야 한다. 2. 계약기간 중 과업인원 증감 초래 시는 당초 설계를 변경할 수 있다. 3. 과업정원 미충원, 비상주, 과업미수행 시는 해당 용역금액은 설계 변경하여 감액처리 하여야 한다. 제15조(부실운영 조치) ① 관리자 및 계약담당자는 계약상대자가 계약조건 및 표준매뉴얼을 위배하거나 인건비를 부실 지급하여 과업에 지장을 초래한다고 판단될 경우 그 시정조치를 요구할 수 있다. ② 계약담당자는 계약상대자가 계약조건 및 표준매뉴얼을 위배하거나, 시정조치에 불응할 경우 주의, 경고조치를 취할 수 있다. 제16조(계약해지) ① 용역계약 일반조건에 의한 일반적인 계약해제·해지 외에 다음 각 호의 1에 해당하는 사항이 발생하였을 때 이 사건 용역계약을 해제 또는 해지한다. 1. 계약기간 중 안전순찰업무 부실운영 등으로 경고조치 3회 이상 시 2. 관련 법령 및 표준매뉴얼 등을 위반하고 관리·감독부서의 시정지시에 불응하여 정상적인 과업수행이 곤란한 경우 제19조 (경비사용 등) ① 경비는 사무용품비, 소모품비, 도서인쇄비, 여비교통비, 청소비, 비품수선비, 지급임차료, 비품감가상각비, 잡비 등 원가성 항목으로 매년 표준적인 집행실적을 조사하여 설계에 반영토록 하며, 계약상대자는 이와 같이 반영된 경비를 표준매뉴얼에 의거 과업수행에 지장이 없도록 충실히 집행하여야 한다.

Note 3) means

Note 4) means the note.

3) Of the standard manuals, the relevant contents of the instant case are as follows (No. 4-1, note 5), Article 18-6 of A

본문내 포함된 표 표준매뉴얼 [제1장 고속도로 안전순찰업무 과업] 제2절 과업목적 본 표준매뉴얼은 이 사건 용역계약에 있어서 피고와 용역계약을 체결한 계약상대자가 이행하여야 할 과업내용을 규정함을 목적으로 한다. 제3절 과업의 범위 1. 과업 대상 지역 가. 용역계약서에서 정한 지사의 관리구간 나. 기타 피고에서 지시하는 지역 2. 과업의 주요 내용 가. 안전순찰업무 일반에 관한 사항 1) 안전순찰원의 임무 2) 안전순찰업무 수행 시 준수사항 3) 안전순찰업무 수행 시 안전수칙 4) 안전순찰업무 수행 시 조치사항 5) 고객지원업무 6) 갓길 주·정차 시 안전관리 7) 안전시설 및 작업장 교통안전관리 상태 점검 8) 법규위반 차량 조치 9) 기타 피고가 지시하는 사항 나. 교통사고 처리업무에 관한 사항 (세부 내용 생략) 다. 원인자부담금 관련 업무에 관한 사항 (세부 내용 생략) 라. 운행제한차량 단속업무에 관한 사항 (세부 내용 생략) 마. 안전순찰팀 운영에 관한 사항 1) 근무자 편성, 배치 및 업무수행 2) 직무교육 및 민원처리 업무 3) 경비·일반관리비 집행 범위 4) 시설물 관리업무 등 5) 외주용역대금 운영 바. 안전순찰차량 관리 (세부 내용 생략) [제2장 과업의 지시 내용] 제1절 안전순찰업무 일반 1. 안전순찰원의 임무 안전순찰에 근무하는 자는 다음의 임무를 수행하여야 한다. 가. 고속국도 안전순찰 나. 교통사고 처리 및 안전관리 다. 원인자부담금 관련 업무 라. 법규위반 차량 계도, 고발 마. 운행제한차량 단속 바. 고객지원 업무 사. 안전시설 및 작업장 교통안전관리 상태 점검 아. 잡상인 계도, 단속 자. 노면잡물 등 교통장애요인 제거 차. 도로 및 교통상황 파악 및 전파 카. 교통지체 해소를 위한 현장관리 타. 기타 피고가 지시하는 사항 2. 안전순찰업무 수행 시 준수사항 라. 휴게는 동일장소에서 1시간 이상을 취할 수 없으며, 업무에 지장을 초래하지 않는 범위 내에서 실시한다. 마. 대기는 공사가 지정한 장소에서 안전조치 후 긴급출동 준비 상태에서 실시한다. 바. 운행 전 차량의 정비·점검과 경보장치, 통신장비, 전광표지 등의 이상 유무를 확인한다. 사. 차량에는 소정의 안전장구(라바콘, 신호봉, 신호깃발, 화살표지, 안전삼각대, LED경고등), 서류(순찰일지, 교통사고속보, 교통법규 위반 차량 적발통보서, 원인자부담금 부과기준), 기타장비(각삽, 빗자루, 줄자, 손전등, 소화기, 디지털카메라, 가리지잭, 배터리 연결선)를 비치하여야 한다. 아. 규정된 복장을 단정하게 착용한다. 3. 안전순찰업무 수행 시 안전수칙 나. 개인안전장구를 반드시 착용한다. 다. 긴급출동 시에는 경광등, 사이렌, 전광표지를 반드시 작동한다. 라. 현장 접근 시에는 서행하면서 후방 주행상태를 확인한다. 마. 조수석 탑승자는 현장 도착 전에 먼저 내려 교통 통제를 실시한다. 바. 차량 정차는 시거가 양호하고 안전한 장소로 한다. 사. 현장이 본선일 경우에는 유관기관 차량이 본선에 많이 정차하도록 유도한다. 아. 교통장애물 제거 및 기타 도로상 작업 시에는 원칙적으로 1인은 신호수 역할을 하고, 1인은 작업요원이 되어 교통안전 및 소통에 철저를 기한다. 차. 기타 피고 공사에서 정한 안전수칙을 준수한다. 4. 안전순찰업무 수행 시 조치사항 가. 도로상태, 안전시설 및 각종 표지 상태를 점검하여 그 이상 유무를 기록하고 이상 발견 시 필요한 조치를 취한다. 나. 무단보행 및 횡단자를 계도하고 필요에 따라 고발조치한다. 다. 고속국도변에서 가축방목을 못 하도록 계도한다. 라. 노면잡물, 동물사고 및 기타 교통장애요인 발견 시는 이를 즉시 제거 후 순찰일지에 기록하며 필요한 경우 피고에 지원 요청한다. 마. 습득물은 관련 법규에 정하는 바에 따라 처리한다. 바. 폭우, 강설, 결빙, 안개 등의 이상기후로 교통안전에 지장이 있을 때에는 상황실에 통보하고 상황실 근무자는 지사장, 각 영업소, 교통정보센터에 연락하여 이용자의 안전운행을 계도토록 한다. 사. 순찰 중 불법 주·정차 차량은 안전지대로 유도하고 불응하는 차량에 대해서는 사진촬영 후 고발 등 필요한 조치를 취한다. 제2절 교통사고 처리업무(세부 내용 생략) 제3절 원인자부담금 관련 업무(세부 내용 생략) 제4절 운행제한차량 단속업무(세부 내용 생략) 제5절 안전순찰팀 운영에 관한 업무 1. 근무자 편성, 배치 및 업무수행 가. 근무자 편성 및 배치 1) 계약상대자는 안전순찰업무 용역계약의 원활한 수행을 위하여 적격한 자로 피고가 산정한 인원(계약내용의 변경 등으로 운영인원이 조정된 경우를 포함한다)을 배치하고 근무자 편성을 하여야 한다. 가) 계약상대자는 안전순찰원을 공구별 7명으로 인원을 편성하여 24시간 2교대제로 근무하여야 한다. 나) 안전순찰원은 2인 1조로 하여 주간조, 야간조로 편성하여야 한다. 다) 안전순찰 근무조의 근무시간은 주간조 9:00~21:00, 야간조 21:00~익일 9:00로 한다. 라) 계약상대자는 순찰 근무조별, 공구별 책임자를 지정하여 1인을 선임, 1인을 조장으로 운영하여야 한다. 2) 계약상대자는 매월 마지막일 5일 전까지 익월 근무편성표를 작성하여야 하며, 피고에 통보 후 전 직원이 확인할 수 있도록 사무실에 게시하여야 한다. 4) 계약상대자는 안전순찰원의 신규채용 또는 교체 시 피고 ‘현장직직원관리예규’의 채용 자격 기준을 준용하여 선발하고, 안전순찰원의 성명·주소·연령·경력 등을 서면으로 공사에 즉시 통보하여야 한다. 8) 근무편성표상 편성된 인원은 임의대로 감 운영할 수 없으며 직원의 근태, 대근 등 각종 근태사유는 별도의 외주사 내규에 의거 서면으로 기록·관리하여야 한다. 10) 피고는 과업인원이 업무수행에 부적합하거나, 과업수행 능력이 현저히 저조할 경우에는 과업인원 교체를 요구할 수 있다. 11) 대형교통사고, 폭설 등 재난재해 및 특별교통소통대책 시에는 공사와 협의하여 안전순찰원을 추가로 활용할 수 있다. 이 경우 노임은 월별로 정산지급할 수 있다. 3. 경비·일반관리비 집행 범위 가. 공사는 다음 각 항의 1에 해당하는 경비를 부담한다. 1) 상·하수도 요금 2) 전력요금 3) 보일러 연료비 4) 관리시설물과 관련하여 부과되는 제세공과금 5) 안전순찰차량의 유류비, 정비비 및 보험료 등 차량관리 부대비용 6) 통신장비(TRS, PDA 등)의 사용료 나. 계약상대자는 다음 각 항의 1에 해당하는 경비를 부담한다. 1) 사무실 일반전화의 운영비용 2) 관리시설물의 유지 및 경미한 수선 3) 기타 안전순찰원과 직접적으로 관련하여 부과되는 제세공과금 제6절 안전순찰차량 관리 1. 장비의 지급 및 관리 가. 장비의 지급 1) 안전순찰에 필요한 안전순찰차는 피고가 구조변경, 긴급자동차 지정 및 신규 등록 후 지급한다. 3) 안전순찰차에 소요되는 보험료, 검사비, 제세공과금, 정비비 등 차량의 정상적인 운영 및 관리에 소요되는 비용은 피고가 부담한다. 2. 장비의 운영 가. 장비의 배차 2) 장비의 효율적 관리·운용을 위해 월간 배차계획을 수립, 시행해야 하며, 익월 배차 계획을 매월 5일 전에 공사에 보고해야 한다. 4) 피고가 업무적 필요에 의하여 배차를 요청하는 경우 이에 응해야 한다.

4) On July 201, the Defendant changed the part concerning the “organization and placement of workers under Paragraph 2-Section 5-1-A” among the contents of the standard manual as follows. Accordingly, the instant outsourcing business owner changed the method of organizing and placing workers from “3 Section 2 to “4 Section 3.”

1. Affairs concerning the operation of the Safety Control Team in Section 5 of the Standard Manual included in the main text; 1. Organization and placement of workers and performance of duties; 1. The contractor shall assign the number of persons calculated by the defendant (including the case where the number of operation personnel is adjusted due to a change in the terms of the contract, etc.) to the qualified person for the smooth performance of the safety patrol service contract and organize workers. (A) The contractor shall have eight persons for the safety patrol and work for 24 hours and 3 hours for each construction section. (b) The working hours for the safety patrol shall be comprised of two persons, 1, 2, 6:0:0 to 15:00, 14:00 to 23:00, 22:00 to 7:00 to 00, 22:00 to 7:00 of the end) and rest hours, after consultation with the person responsible for the safety patrol within the scope of the actual working hours, and the person responsible for the safety patrol may be appointed and operated within the scope of each construction section (1).

Note 6)

5) The instant service cost was determined by the so-called “calculated rate” method, which is calculated by multiplying the unit cost of contract determined by taking into account the labor cost, welfare cost, legal expenses (national pension, health insurance, business income), general management expenses, profit, etc. The instant outsourcing employer was obligated to maintain the number of safety patrolmen in compliance with the Defendant’s standard after the conclusion of the service contract. The instant outsourcing employer, after setting and paying wages to the relevant safety patrolmen based on the Defendant’s unit cost design, reported the details of the payment by wage item to the Defendant, and received the instant service cost. The “wages paid by the instant external employer to the safety patrolmen under his control” was somewhat different depending on the external employer. However, the Defendant issued corrective measures or sanctions against the external employer against the amount less than the appropriate amount (at least 96% of the amount designed by the Defendant by ordinary item).

D. Provision of labor by the plaintiffs under the instant service contract

1) The Plaintiffs concluded a labor contract with the instant outsourcing business owner on each relevant date indicated in the attached Table 4 “the date of entry” column for the attached Table. The Plaintiffs are performing the duties under the instant service contract (hereinafter “instant duties”) as a safety patrol officer for the section of the expressway section in charge of the relevant outsourcing business owner (However, the Plaintiffs listed in the attached Table 5’s employment relationship was transferred to the employees who already retired, dismissed, or the Defendant’s working-level workers (on-site workers). The relevant contents of the labor contract concluded with the relevant outsourcing business owner are as follows.

(1) On February 2, 200, the party's personal information 1.2.(1) working hours/(b) / wage / d. place of employment (the above detailed contents omitted) : f. contract period/g. management period (the above detailed contents omitted) / g. special agreement and other matters to be observed. The safety patrol officer shall comply with the party's rules and the defendant's service guidelines. (2) The safety patrol officer and us shall agree on the adjustment of hours and overtime, holidays and night work hours according to the employment rules. (3) The safety patrol officer shall not file a lawsuit against us and the defendant during her service, and shall file a lawsuit after submitting a resignation at the time of filing a lawsuit.

2) According to the instant service contract, the Plaintiffs performed the duties of the Defendant’s instruction, including “(1) safety patrol, ② traffic accident processing and safety management, ③ traffic accident management, ④ guidance and accusation on charges borne by borne persons, ④ traffic control of vehicles in violation of laws, ⑤ customer support, ② traffic safety facilities and workplace traffic safety control inspection, ④ traffic obstacle removal of miscellaneous, such as road and traffic condition, ② inspection and dissemination of road and traffic conditions, and ① on-site management to eliminate traffic congestion.” In addition to the duties of the qualy safety patrolman, the Plaintiffs also performed the duties of the Defendant’s instruction, including “traffic safety campaigns, joint control of restricted vehicles, joint control and publicity of safety belts, traffic zone unfolding and publicity, etc., for the users of the expressway who are difficult to use the rest area, and the survey on major transportation items of large-scale cargo vehicles,” and performed the duties outside the relevant external business owner’s jurisdiction in accordance with the direction of the Defendant.

E. The defendant's involvement in the implementation of the instant service contract

(i) employment and management of probation;

As seen earlier, the Defendant had the right to decide on the qualification of the instant safety patrolman. In the event of a change of a business owner in a specific section, most of the employment relationship of the instant safety patrolman was succeeded to a new business owner (the Plaintiffs stated in the column for the attached Form 4 employment obligation (the Plaintiffs are succeeded to a new business owner or move to an area by themselves). Around December 2011, the Defendant also promoted the “plan to employ the employees working on the Defendant’s site who have served more than two years as the Defendant’s on-site patrol staff in the instant case who wished to move to a new business owner or move to an area by themselves.” By December 2012, the Defendant reflected the “plan to employ the employees on the Defendant’s site to an external business owner at their desire.” The Defendant reflected the “plan to measure the number of employees on-site workers on the instant phase” in the instant order of selection in the process of the instant external business owner’s selection. If the number of employees on-site employees on the instant basis is considerably inappropriate or low in performing the duty.

The Defendant received a report on the name, address, age, career, status of probation, etc. of the safety patrolman under his jurisdiction, and the status of personnel issuance (promotion and retirement). The Defendant, at a regular or occasional level from the head office, regional head office, branch office, or branch office, inspected the operational status of the instant outsourcing business owner, or the status of the instant safety patrolman’s work, etc., and issued corrective measures against the instant outsourcing business owner regarding the negligence of management of the safety patrolman’s probation. The Defendant given a reward to the superior business owner through management evaluation of the external safety patrol affairs, and imposed sanctions against the subordinate business owner.

2) Working programming, working hours, places, etc.

In the case of “the number of workers, the method of organizing and allocating work teams, the time of commencement of work, the time of closure, recess hours, and waiting places”, it was determined in accordance with the standard manual prepared by the Defendant (Article 2-5 Section -1.-a., the organization and placement of workers of the Standard Manual). The outsourcing employer of the instant case prepared the work schedule and allocation schedule on a monthly basis, and reported to the Defendant.

If the Defendant, as necessary, specifically determines the details of the special work of the Safety Control Team, such as “emergency duty against heavy snow, special work during the period of temporary closure, participation in the signature movement of a large million person, special work due to rain, maintenance of a premium accident prevention Already, safety management, and inspection of the number of Chuncheon equipment,” and sent the instant out-of-the-state business owner, the instant out-going business owner ordered the instant out-of-the-spot to perform the special work accordingly. The reason for the special work includes a majority of those who do not directly engage in the safety patrol, such as participation in the local headquarters, participation in the signature movement of a large million person, and the special work expense was calculated in proportion to the working hours of the Safety Control Board.

(iii) direction and supervision of performance of duties;

The employees in the situation room belonging to the defendant could grasp the situation of the present highway and the location, operational distance, and working conditions of the present safety patrolman on a real-time basis through CCTV monitors installed in the situation room (such as 360·20·360· 360· 360· 360· 360· 20) and communication equipment, such as the satellite vehicle location verification system, the TRS frequency public communication system, etc. using the patrol vehicle installed in the patrol vehicle. In the event of an emergency or a civil petition, the employees in the situation room belonging to the defendant directly ordered the present safety patrolman to directly instruct the present safety patrol officer to place and perform necessary duties, and reported the results of the

The instant safety patrolman provided by the Defendant using smartphones for the safety patrol (the “PDA was provided before smartphones) and the Defendant’s development’s safety patrol to receive information necessary for performing his/her duties directly to the Defendant, or directly forward the reported matters, such as the site status and the result of performing his/her duties. On the device installed in the patrol vehicle, the instant safety patrolman entered the details of performing his/her duties every working hour, and submitted to the Defendant the “place of equipment operation,” which was printed out every day after the completion of his/her duties, and the “brack log,” which was prepared directly by the Defendant. The employees of the Defendant’s situation room shall identify the working hours and work status of the instant safety patrolman and prepare “traffic situation and work site,” and obtain approval from the traffic deputy chief and the head of the branch office.

“A certificate of salvage operation (No. 16-4) prepared by the safety patrol officer of this case according to the Defendant’s offer form, a report on the maintenance and repair of road facilities (No. 16-5), and patrol log (No. 17-1, 2)” are subject to the approval of the employees belonging to the Defendant (the employees of the situation room, the Deputy Traffic Chief, the Deputy Road Chief, the Deputy Road Chief, the head of a branch office, etc.). In particular, the inspection report of road maintenance and repair facilities is subject to the special direction of the head of the Defendant branch.

The CCTV monitors in the office of the foreign vessel owner of this case cannot be able to directly operate the screen on every five seconds, and it is not installed with the system for checking the location of the automobile or the TRS equipment, and thus, the foreign vessel owner of this case could not grasp in detail the location or work contents of the highway of this case. Since the foreign vessel owner of this case and its employees worked from 09:0 to 18:00 on a daily basis, the foreign vessel owner of this case and its employees could not direct and supervise the night and holiday work, unlike the employees working in the situation room of the Defendant, working at the same time as the foreign vessel owner of this case.

4) Work guidelines do not reach the order through the outing business owner of the instant case.

The Defendant, without consultation, notified the Foreign Affairs Officer of the work guidelines regarding the implementation of the instant service agreement through the documents, etc. set out below [Attachment 2]. In accordance with these guidelines, the specific duties to be performed by the Safety Guards were specified, and the Foreign Affairs Manager instructed the Foreign Affairs Manager to deliver them to the Safety Guards and perform them as they are.

[Attachment 2] Documents sent by the Defendant

본문내 포함된 표 작성시기 문서명(인정 근거) 내용 요지 1 2008. 1. 컨테이너 미결속 차량 집중단속 실시(갑 제106호증) 적재함에 결속장치를 하지 않은 컨테이너 운반차량에 대한 안전순찰원의 집중단속 계획 일정과 결속 정상 여부 판단자료 및 단속 결과 기록 서식을 기재한 문서이다. 2 2008. 3. 지정차로, 버스전용차로 및 갓길 운행 계도·단속 협조(갑 제105호증) 지정차로, 버스전용차로 및 갓길 운행 계도·단속을 위해 안전순찰차 LED전광표지 문자 표출 등을 통한 홍보·계도 방안과, 위반 차량 단속에 있어 안전순찰원을 신고요원으로 하여 사진촬영과 고발을 지시하고 집중단속을 위한 순찰근무 조정을 시행할 예정임을 알리는 문서이다. 3 2008. 6. 법규위반 차량관리 목표 수립 통보(갑 제101호증) 피고가 2008년 교통관리 적정성 평가기준과 관련한 교통법규 위반 차량 단속실적 관리 목표를 수립하여 통보하고 이에 따른 단속을 촉구하는 문서이다. 4 2009. 1. 긴급견인서비스 제도 적극 시행 지시(갑 제108호증) 각 지사에서 안전순찰원을 대상으로 ‘긴급견인서비스’ 제도의 취지 등을 교육하고, 안전순찰원으로 하여금 사고·고장차량 운전자에게 위 제도를 설명하고 적극적으로 견인 조치하도록 지시하는 문서이다. 5 2009. 1. 도로표지 정비지시(갑 제109호증) 안전순찰원에게 나들목 인근 및 접속도로 주변 표지의 이상 유무를 수시로 점검하도록 지시하는 문서이다. 6 2009. 3. 개인 안전장구 및 작업장 안전관리 철저(갑 제110호증) 안전순찰원 개인안전장구 착용 기준을 알리며 착용을 철저히 할 것을 촉구하고, 안전모 및 신호봉 사용 여부는 본부에서 CCTV로 확인하여 내부평가에 반영하겠다는 내용의 문서이다. 7 2009. 6. 교통안전사고 예방업무 철저(갑 제111호증) 갓길 주정차 및 고장차량 관련 교통사고 사례 교육, 이를 예방하기 위한 행동요령, 안전수칙 교육을 지시하는 문서이다. 8 2009. 7. 이동단속카메라 거치대 운영방안 수립(갑 제112호증) 주간에 안전순찰원이 미운영 중인 이동단속카메라 거치대에 삼각대 또는 모형카메라를 설치 및 철거할 것을 지시하는 문서이다. 9 2009. 9. 안전순찰차를 활용한 생수 제공 서비스 확대 시행(갑 제113호증) 안전순찰차를 활용한 생수 제공 서비스 확대 시행기간과 시행방법, 대상 등을 알리는 문서이다. 10 2009. 9. 안전순찰차 탑재식 카메라 활용방안 수립(갑 제127호증) 안전순찰차에 설치된 탑재식 카메라의 활용방안과 탑재식 카메라 운영지침을 기재한 문서이다. 11 2010. 2. 안전순찰차 전광판 활용 고속도로 안전운전 집중 계도방안 통보(갑 제128호증) 안전순찰차 전광판 계도 문안 표출 방법, 교통사고 원인별 취약시간대에 따른 졸음운전, 과속운전, 안전띠 매기 계도 시간 설정, 경광등, 사이렌 작동시간, 표출 문구 등에 관하여 기재한 문서이다. 12 2010. 3. 제한(의심)차량 도주 발생 단속방안 통보(갑 제129호증) 축중차로 및 하이패스 차로의 제한(의심)차량 도주 발생 시 세부적 단속 방법 및 도주차량 조치결과 보고 서식을 기재한 문서이다. 13 2010. 3. 외주안전순찰원 역량강화 방안 통보(갑 제132호증) 외주 안전순찰원에 대한 신규채용 자격요건 강화, 표준화된 교육체계 구축(신규 채용자 대상 교육, 정기 교육), 안전순찰 운영체계 강화(표준매뉴얼 발간, 복장 개선, 모의훈련 실시), 성과관리(평가 및 포상) 및 세부 추진계획을 기재한 문서이다. 14 2010. 5. 안전순찰원 근무수칙 십계명 포스터 배부(갑 제137호증) 2010. 5. 4. ‘안전순찰의 날’ 제정을 기념하여 제작한 안전순찰원 근무수칙 십계명 포스터를 배부하고, 안전순찰원 대기실과 상황실에 부착하도록 지시하는 문서이다. 15 2010. 5. 테러 경보(주의) 발령에 따른 조치결과 알림(갑 제138호증) 테러경보가 주의단계로 상향조정됨에 따라 비상연락망을 정비하고, 주요시설물(터널, 교량)에 대한 고속도로 순찰(3회 이상/일), 노선 순찰 시 비정상적이거나 의심스러운 행동을 하는 운전자 발견 시 즉시 보고할 것을 지시하는 문서이다. 16 2010. 9. 추석 연휴 교통사고 예방을 위한 안전순찰 강화(갑 제140호증) 추석 연휴 교통사고 예방을 위한 안전순찰 강화방안으로 교통량이 집중되는 시간대에 안전순찰 근무조 추가 운영(2개 공구 → 3개 공구), 안전순찰차 전광판 활용 계도 문안 집중 표출, 졸음운전 취약시간대 안전순찰차 경광등, 사이렌 작동 철저, 노선 순찰 외 대기 시 신속한 고객지원을 위한 본선 대기를 지시하는 문서이다. 17 2010. 12. 고속도로 2차 사고 예방대책(갑 제34호증의 6) 고속도로 2차 사고를 방지하기 위하여 눈, 비 등 기상변화 예보 시부터 안전순찰 회수를 늘리고(9~10회/일→ 12회/일), 특별순찰 근무조 편성을 하도록 지시하였다. 특히 위 사항을 즉시 실시하고, 현장의 의견은 차후 수렴하도록 명시되어 있다. 18 2011. 5. 주말 및 평일 취약시간대 교통사고 예방 철저(갑 제146호증) 교통사고 취약시간대에 안전순찰원의 본선 대기 및 순찰강화를 지시하고, 안전순찰차 전광판에 교통안전계도 문안을 집중표출하고 안전순찰차 경음기 및 졸음예방 알리미를 작동할 것을 지시하는 문서이다. 19 2011. 9. 추석 연휴 안전순찰 강화 지시(갑 제147호증) 교통관리 및 교통사고 예방을 위한 안전순찰팀 추가 투입을 지시하고, 순찰횟수를 ‘9~10회/일’에서 ‘12회/일’로 변경하는 문서이다. 20 2011. 10. 고객서비스 표준 매뉴얼(갑 제4호증의 2) ○ 안전순찰업무 준수사항·안전수칙, 고객지원 업무 범위 ·처리기준·주의사항, 고객 응대의 단계별 표준행동, 안전순찰차 휴대품, 용모/복장 등을 기재한 문서이다. ○ 특히 ‘표준응대안’으로서 고객응대의 상황 및 단계별로 안전순찰원이 취해야 할 구체적인 행동, 표정, 언어를 기재하고 있다. 21 2012. 4. 경찰관측소(POP)활용방안(갑 제8호증의 9) 노선 안전순찰 강화를 위해 안전순찰 차량의 상시 대기 장소를 지사 내, 영업소, 휴게소에서 경찰관측소(POP)로 변경하도록 하는 내용의 문서이다. 22 2012. 5. 화물차 단속방안(갑 제8호증의 8) 화물차량의 후부 안전판·반사판 미부착 및 훼손 차량에 대한 단속을 강화하기 위한 방안(안전순찰 스마트앱 활용 등)을 기재한 문서이다. 23 2012. 5. 화물차량단속실시(갑 제34호증의 10) 피고의 지사가 위 화물차 단속방안(갑 제8호증의 8)을 시행하기 위하여 구체적인 단속방법을 기재하고 법규위반 차량 적발통보서 양식 등을 첨부하여 해당 외주사업주에게 보낸 문서이다. 24 2012. 5. 알람순찰 강화방안수립(갑 제8호증의 1) ○ 2012. 5. 15.부터 2012. 6. 15.까지 기존 2개 공구, 2인 1조에서 3개 공구, 2인 1조 및 1인 1조 혼영운영으로 변경된 방식을 지역본부별 1개 지사(강원: 충주/ 충청: 진천/ 전북: 보령/ 전남: 담양/ 경북: 영주/ 경남: 산청)에서 시범운영하기로 하고, 위 2인 1조 팀과 1인 1조 팀이 수행할 세부적 업무내용을 기재한 문서이다. 25 2012. 6. 알람순찰운영 확대방안(갑 제8호증의 2) 위 시범운영 후 변경된 방식(3개 공구, 2인 1조 및 1인 1조 혼영운영)을 2012. 6. 18.부터 2012. 10. 15.까지 외주화가 이루어진 45개 지사 중 29개 지사(외주사업주의 경력이 6개월 미만인 10개 지사, 안전순찰원의 사망자 발생이 적은 5개 지사, 안전순찰원 중 50% 이상이 1년 미만의 근무경력인 1개 지사, 합계 16개 지사는 제외됨)에서 확대 실시하도록 하는 내용의 문서이다. 26 2012. 6. 22. 알람순찰 운영방안 시행(갑 제8호증의 4) 피고의 지사가 위 알람순찰운영 확대방안(갑 제8호증의 2)을 시행하기 위하여 관할 노선을 3개의 공구로 재편성하고, 위 2인 1조팀과 1인 1조팀이 수행할 세부적 업무내용 및 교통사고처리 절차를 기재하여 해당 외주사업주에게 보낸 문서이다. 27 2012. 11. 야생동물 사체처리 기준(갑 제8호증의 5) 야생동물사고 사체의 도로변 장기간 방치사례가 뉴스로 보도되자, 사체수거, 임시보관, 폐기물 위탁의 단계별 업무기준을 구체적으로 기재하면서, 첨부된 양식에 따라 처리 결과를 정기 보고하도록 지시하는 내용의 문서이다. 28 2012. 11. 야생동물 사체처리, 구조, 관련법 교육자료(갑 제8호증의 6) 피고의 지사가 위 야생동물 사체처리 기준(갑 제8호증 5)을 시행하기 위하여 야생동물 사체 및 부상동물 처리 요령, 관내 야생동물 구조·치료기관 현황, 관련법의 내용과 함께 야생동물 인수·인계서, 부상동물 구조·치료 대장 등의 양식을 첨부하여 해당 외주사업주에게 보낸 문서이다. 29 2013. 1. 부상 야생동물 구조체계 구축(갑 제36호증의 10) 30 2013. 1. 외주 안전순찰원 관리강화 방안(갑 제5호증) ○ 안전순찰원의 사고방지를 위하여 아래와 같은 예방대책을 기재한 문서이다. 부문 추진내용 시행시기 시행부서 근무환경(제도)개선 근무교대방식 변경 2013년 2분기 교통처 ‘졸음 기상 콜’ 서비스 시행(본사 콜센터에서 심야 취약시간대인 1:00~3:00 안전순찰원 대상 콜 서비스 시행) 총무처(교통처) 졸음운전방지 스마트폰 앱 활용 즉시 즉시 졸음예방물품 활용 복장 및 장구 개선(안전조끼 LED 장착 등) 2013년 2분기 교통처 순찰차량 안전성 향상 안전순찰차 차량 안전장치(차선이탈경보장치, 앞차추돌경보장치, 블랙박스, 안전띠 미착용 경고장치 등) 장착 즉시 지사 안전순찰차 ‘주간 전조등 켜기’ 시행 현장관리 강화 본사, 지역본부, 지사 차원에서 안전관리 및 근무상태, 안전장구 착용상태 등을 점검·지도 실시 연중 교통처(본부, 지사) 운전정밀검사(교통사고의 인적요인 중 운전행동으로 나타날 수 있는 성격 및 생리적 행동 특징을 과학적으로 측정하여 개인별 결함사항을 검출하는 검사이다) 실시 즉시(2년 1회) 교통처(지사) 교통상황실에서 관내 작업현장의 개인안전장구 착용실태에 관한 수시 모니터링 실시 연중 지역본부 피고가 야간 교대근무 시 안전순찰원 음주측정 실시 연중 지사 교통안전 의식함양 특별교통안전교육 정례화 매년 4분기 교통처(지역본부) 안전순찰원 이러닝 중급 과정 신설 연중 인력개발원(교통처) 안전관리 요령 등 동영상 제작 2013년 1분기 교통처(총무처) 안전순찰원 근무수칙 십계명 제작 즉시 교통처 안전관리 경진대회 개최 2013년 2분기 교통처 31 2013. 1. 미군차량 교통사고 발생 시 신속처리 방안 시달(갑 제8호증의 10) 주한미군 차량이 고속도로상에서 교통사고를 당하거나 고장을 일으킨 경우 신속처리를 위한 행동요령을 기재한 문서이다. 특히 안전순찰원이 위 문서에 첨부된 협약서를 안전순찰 업무용 스마트폰에 저장하도록 지시하고 있다. 32 2013. 1. 지사 간 교차점검 시행(갑 제8호증의 11) ○ 피고의 각 지사에 대하여 이 사건 안전순찰원의 야간 근무실태를 교차점검(월 2회)하도록 지시하는 내용의 문서이다. ○ 특히 안전순찰 운행횟수 조정을 검토하도록 하는 내용이 기재되어 있는바, 이에 의하면 피고의 각 지사는 용역계약 체결 후에도 안전순찰 운행횟수에 대한 결정권을 가지고 있는 사실을 인정할 수 있다. 33 2013. 1. 안전순찰 강화 통보(갑 제8호증의 19) 피고의 지사가 외주사업주에게 보낸 문서로 하계휴가철 교통관리 및 집중호우로 인한 고속도로 시설물 피해 예방을 위한 안전순찰 강화의 방법이 기재되어 있다. 34 2013. 1. 안전순찰 근무조정을 통한 자체사고 예방 및 노선 순찰강화(갑 제99호증의 3) 최근 급증한 외주 안전순찰원의 사망사고를 예방하고, 신속한 사고처리 및 2차 사고에 대한 대응기능 강화방안이 기재되어 있다. ○ 근무형태 변경 및 순찰강화: 교대순서를 ‘초→중→말번’으로 변경하여 충분한 휴식시간 확보, 사망사고 발생빈도 높은 근무시간대 순찰회수 증대(4회) ○ 취약시간대 순찰공백 최소화 방안: 근무교대 및 점심·저녁 시간대 순찰차량이 관리노선 중간지점에 1대 이상 상시 유지 ○ 적정 순찰간격 유지를 위한 공구별 표준 순찰시간 편성 운영 35 2013. 9. 안전순찰 인력의 구조물안전점검 세부 시행방안 알림(갑 제34호증의 9) ○ 안전순찰원의 업무량이 비교적 적은 지사(강릉, 보은, 부여, 진안, 담양, 구례, 상주, 영천, 성주, 산청)에 대해서 초번 3회차 순찰을 대신하여 교량과 터널의 안전상태를 점검하도록 하는 내용의 문서이다. ○ 교량과 터널의 상태별로 중점검사항을 기재하고 있다.

(v)education and training;

The Defendant produced teaching materials for the education of the safety patrol duties and provided them to the foreign employer, and provided them with basic education for the newly employed safety patrol officers at their own expense. The Defendant provided online education for the safety patrol officers of this case, and directly conducted collective education on a regular or occasional basis, and the foreign employer of this case reported the details of education for the safety patrol officers belonging to the Defendant.

The safety patrol officer of this case participated in various training planned and implemented by the Defendant (such as mother training to establish the traffic accident response system, maternity training in preparation for emergency situations prior to the operation of the sideway system, tunnel fire training, training to select an outstanding Korean agency for disaster response safety, training to establish an effective response system to minimize damage caused by storm and flood, accident processing practice by type of accident, etc.).

6) Prizes, etc.

The defendant headquarters and branch offices have given a prize or an official commendation to the safety patrol officer under the pretext of the selection of superior patrol officer, the selection of chief patrol officer (the total of the safety patrol officer of this case and the defendant's field employees), and the external safety patrol officer of this case.

Around March 2010, the Defendant published a book of “the replacement of an expressway” by collecting a book of the safety patrolman belonging to the Defendant, and published a book of some of the instant safety patrolman. Around March 2010, the Defendant indicated the post of the relevant safety patrolman as the regional headquarters and branch offices of the Defendant.

F. The external employer of this case was not permitted by the Minister of Employment and Labor for temporary work agency business.

[Reasons for Recognition] A’s proof 2-1, 4, 5, 7 through 10, 13, 14, 16 through 25, 33 through 36, 48, 52, 63 through 65, 76, 78, 79, 81, 90-3, 4, 8 through 16, 92, 93-6, 94 through 152, 15 through 160, 168, 169, 2-1 through 7, 17, 29, 31, 39 (including each number), 33-12 through 30, 59-13, 30 of the testimony of Nonparty 5-3, 15 through 160, 168, 169, 2, 33-12 through 59, 30 of the whole testimony of Nonparty 5-1’s testimony

3. Determination on the claim for “an expression of intent of employment” (excluding the Plaintiffs indicated in the list of plaintiffs employed by the defendant 2)

A. The parties' assertion

1) The plaintiffs

A) The instant service contract constitutes “worker Dispatch Contract” under Article 2 subparag. 1 (amended by Act No. 11668, Mar. 22, 2013) of the former Dispatch Act (amended by Act No. 1168, Mar. 22, 2013; the said Act also referred to as “the Dispatch Act”). The Defendant was provided with the worker dispatch service of the Plaintiffs (excluding the Plaintiffs indicated in [Attachment 2]’s list at the time of excluding the Plaintiffs indicated in [Attachment 2’s list] without the permission of the Minister of Employment and Labor. Therefore, the Defendant is obliged to dispatch the Plaintiffs under Article 6-2(1)4 of the former Dispatch Act or Article 2(1)12 of the former Dispatch Act (amended by Act No. 11279, Feb. 1, 2012; hereinafter “former Dispatch Act”) and Article 6-2(1)12 of the former Dispatch Act (amended by Act No. 1217, Feb. 1, 2012).

B) Even if the Plaintiffs indicated in the Plaintiff’s Schedule cut off in the attached employment relationship No. 5 (excluding the Plaintiffs indicated in the Plaintiff’s List of Plaintiffs employed by Defendant No. 2; hereinafter the same shall apply in paragraph (3)) discontinued the employment relationship with the business owner of the instant case after the Defendant’s direct employment obligation, the Defendant still bears the duty of direct employment under the former Dispatch Act or the Dispatch Act

2) Defendant

A) The Plaintiffs worked under the direction and supervision of the business owner of the instant outsourcing, and the Defendant, the contractor of the instant service contract, did not have been directed and ordered in the position of the employer. Therefore, the instant service contract does not constitute a contract on temporary placement of workers under the Dispatch Act, and does not constitute a “user company” under the Dispatch Act or the Plaintiffs’ temporary agency worker.

B) Considering the contents of Article 2(1) of the Dispatch Act, the temporary placement relationship is recognized only when the temporary agency worker maintains a labor relationship with the temporary agency worker. Therefore, the Plaintiffs who retired from the instant external agency company or the Plaintiffs dismissed from the instant external agency company did not meet the premise for the temporary placement relationship, and thus, the Defendant does not bear the obligation to directly employ them.

B. Whether the instant service contract constitutes “worker Dispatch Contract” under Article 2 subparag. 1 of the Dispatch Act

1) Relevant legal principles

“The legal relationship between the original employer and a certain employee is not attributable to the name or form of a contract to which the Act on Dispatching Workers applies, but rather to the name or form of a contract attached by the party.” “The legal relationship between the original employer and a certain employee shall be determined according to the substance of the relevant employment relationship based on the elements, such as (i) whether the relevant employee is practically incorporated into a third party’s business, such as direct and direct work, and (ii) whether the relevant employee is incorporated into a group of work with one employee belonging to a third party; (iii) whether the employer independently exercises the power to select the workers to be invested in the work; or (iv) whether the purpose of the contract is determined in detail as the performance of limited work; (iii) whether the relevant employee’s work is distinct from that of the third party; and (v) whether the Plaintiff employee has an independent company or facility necessary to achieve the purpose of the contract (see, e.g., Supreme Court Decision 2016Da6364, Feb.

2) Determination

In full view of the aforementioned facts and the evidence admitted earlier, the instant service contract constitutes a “contract on temporary placement of workers as stipulated by Article 2 subparag. 1 of the Dispatch Act, which provides the Defendant with an employment relationship and has the Defendant work in accordance with the Defendant’s direction and order,” and it is reasonable to view the Plaintiffs as the “temporary worker” under the Dispatch Act and the “user company” under the Act on the Dispatch of Workers who provide labor in accordance with the above temporary placement contract.

A) The fact that the Defendant directed and ordered a considerable amount of time

(1) (1) Considering that the wide range of national expressways are connected to a single network, the number of expressway users, the impact of the expressway on the people’s living or the economy, and the details of business is directly connected to the safety or the life of the users, the term “the maintenance, management, and patrol of the national expressway” inevitably entails urgency and swiftness. In addition, it is necessary to separate several branch offices from the expressway connected to one another, and to manage the affairs assigned to workers in various fields in one way, and to perform the affairs assigned to the workers in one way, it seems that the Plaintiffs and the employees belonging to the Defendant have been in importance of mutual organic reports, instructions, and cooperation. Therefore, it seems that it was difficult to efficiently handle the above affairs without the premise of the Defendant’s command and order. In particular, the same is true in that the Defendant artificially transferred the affairs directly handled by the Defendant, while engaging in a long organization and function for a long time.

② The terms and conditions of the instant service agreement concluded with the Defendant, “the content of the instant service agreement,” or “the content that the Defendant educated for the establishment of the business body of the instant outsourcing owner.” The instant outsourcing owner drafted employment rules in accordance with the form provided by the Defendant, or drafted a labor contract and various labor-related documents. Through such a method, the Defendant: (a) provided a foundation for the instant safety patrol officer employed by multiple outsourcing owners on a uniform and uniform basis; (b) even according to the labor contract concluded by the instant safety patrol officer with the instant outsourcing owner, the instant safety patrol officer should comply with the Defendant’s service policy; and (c) provided that the Defendant filed a lawsuit against the Defendant, he/she should retire from the instant external guard.

In addition, through the service contract of this case, the outsourcing company of this case granted the defendant a reasonable discretion and duty control over the defendant.

(2) ① According to the special terms and conditions of the instant service contract determined by the Defendant’s will, the number of employees in charge of the standard manuals, and the form of work, the instant outsourcing employer organized the Plaintiffs’ work; ② the instant outsourcing employer had obtained approval or consultation from the Defendant when the instant outsourcing employer operates a key or flexible work system or alternative work suspension; ③ the Plaintiffs’ work type (hereinafter “4th class unit”) was changed according to the Defendant’s policy; ③ the Defendant extended the notice patrol to strengthen vulnerable time patrol; and ④ the Defendant changed the work form of the Plaintiffs’ work while the Defendant extended the notice patrol to strengthen vulnerable time patrol; ④ the Defendant designated the waiting place of the Plaintiffs.

(3) ① The instant service contract included the Defendant’s granting “the authority to directly direct and supervise the instant work performance”. Accordingly, the Defendant’s work process was specifically supplemented through occasional and regular education and distribution of various educational materials; ② the Defendant’s work site and work contents were verified through the vehicle location verification system; and the Defendant’s work site was controlled; and the Defendant provided “the Defendant’s work site employees in the situation room actively conduct patrol and instruct the Plaintiffs according to the circumstances” through “the operation plan for the safety patrol for the strengthening of vulnerable time patrol”; ③ the Defendant’s branch office under the instant service contract (the terms of the instant special service contract referred to as “the person who directly directs and supervises the work performance;” the Defendant’s work site employees’ work performance instructions to the Plaintiffs; ④ the Defendant’s work performance instructions to the Defendant from around January 1, 2013; and ⑤ the Plaintiffs’ work performance instructions to improve the safety inspection order; and ④ the Defendant’s work performance instructions to the Defendant’s work site manager; and ⑤ the Defendant’s work performance instructions to the Defendant’s work site manager.

(4) ① The external business owner of this case could not confirm the process of performing the plaintiffs’ specific duties, even if the order was given to the plaintiffs, most of the defendant's work instructions were delivered to the plaintiffs. ② The defendant prepared various guidelines and notified them in the order of "Local Headquarters ? branch ?", and the external business owner of this case was either posted them to the office or directly transmitted or trained them to the plaintiffs. ③ The external business owner of this case was educated against the plaintiffs for 1 to 2 hours, but the external business owner of this case was merely educated about 20 minutes during the initial/second shift period, but the external business owner of this case was merely transmitting the contents of the direction to the plaintiffs. ④ As seen earlier, the defendant exercised considerable influence on the decision of the plaintiffs' working hours, work mode, work method, etc. ⑤ Through management evaluation of the external business owner of this case, the defendant controlled the contents of the direction to the plaintiffs of the external business owner of this case.

B) The fact that the plaintiffs were actually incorporated into the defendant Corporation

(1) The Plaintiffs received the previous duties of the Defendant’s on-site safety patrolman as they were, and performed the maintenance and management of an expressway in the same or similar manner as those of them. (2) As the safety patrol officer of the Defendant’s on-site employees assigned to another branch was assigned to the Defendant’s on-site safety patrol officer and did not work under the same Article, the Plaintiffs were not assigned to the Defendant’s on-site safety patrol officer, but the Plaintiffs were not assigned to work in the same workplace with the Defendant’s on-site employees while maintaining an organic reporting or cooperation system with the employees of the on-site employees belonging to the Defendant, and ③ taking into account the organizational and functional aspects for the management and maintenance of the national expressway as seen earlier, the Plaintiffs and the on-site safety patrol officer or the employees of the on-site safety patrol officer of the Defendant can be deemed one working group.

(2) ① The work types of the Plaintiffs and the employees employed by the Defendant, ② the Plaintiffs jointly with the employees employed by the Defendant to conduct the traffic safety campaigns and the joint control of limited vehicles, etc., together with various mother training and job training; ③ the Defendant has carried out the answer to the purport that the Plaintiffs are the Defendant’s workers; ④ in the case where a large-scale accident occurred and a large-scale accident occurred, the Plaintiffs were performing their duties together with the employees employed by the Defendant. In light of the fact that the Plaintiffs jointly worked with the employees employed by the Defendant.

(3) The Plaintiffs: (a) worn an employee uniform as the employee employed by the Defendant; (b) used the name of the Defendant’s relevant branch office and the street; (c) operated the safety patrol vehicle stating the Defendant’s logo, etc.; and (d) was selected at the Defendant’s head office or branch office as the outstanding patrol

C) That there was a limit to “the instant outsourcing business owner’s independent exercise of the power to independently determine working conditions, etc.”

(1) As seen earlier, the Defendant could have set a certain extent of the Plaintiffs’ qualifications, work mode, work hours, replacement of the Plaintiffs, etc.; ② the Defendant calculated the contract number in the calculation sheet, and ② the Defendant examined whether the instant outsourcing employer paid the pertinent adequate wages compared to the aforementioned design; ③ the Plaintiffs worked on an unpaid holiday; ③ the instant outsourcing employer was difficult to grant the Plaintiffs a recess or designate a resting place; and this appears to have been due to the Defendant’s failure to take into account the number of employees when calculating the number of employees in the instant service contract; and the Defendant could have considerable influence on the selection of workers and the determination of the number of employees or replacement, work or rest hours, the level of wages, etc.; and on the contrary, it appears that there was a limit for the instant outsourcing employer to establish independent standards.

(2) As seen earlier, the Defendant was considerably involved in the Plaintiffs’ education and training, and the foreign business owner of the instant case did not independently provide education.

(3) The standard manual provides that "all kinds of reasons for the probation, such as the worker's attitude and the worker's probation, shall be recorded and managed in writing in accordance with the bylaws of the outing business owner of this case. The defendant set the service price based on the above situation, etc., so the defendant could have identified the plaintiffs' probation, and the defendant should maintain the number of inputs determined by the defendant. In light of the fact that the discretion of the outing business owner of this case on the withdrawal, retirement, or the use of leave was limited, it seems that the defendant was aware of the status of the plaintiffs' probation through the outing business owner of this case.

(d)in the case of a specific nature and expertise of the work;

(1) The Plaintiffs performed their duties in the same manner as the on-site safety patrolman belonging to the Defendant, and as such, in that they maintained an organic relationship with the employees in the on-site security room belonging to the Defendant and carried out “maintenance and management of the Highway”, it is difficult to clearly distinguish the Plaintiffs’ duties and the Defendant’s on-site safety patrolman, except under

(2) As seen earlier (the Standard Manual lists the Plaintiffs’ work “other matters directed by the Defendant Corporation” as the Plaintiffs’ work), the instant service contract stipulates that the Plaintiffs’ work may be specifically determined in accordance with the Defendant’s instruction. The Defendant specified the Plaintiffs’ work through the aforementioned various guide documents. Accordingly, the Plaintiffs, other than the duties related to the maintenance and patrol of the expressway, also carried out an intangible work, such as “traffic safety campaigns, joint control of restricted vehicles, control and publicity of safety belts, control and publicity of safety belts not being able to use the rest area,” and “the survey on major transportation items of large cargo.”

(3) The instant work is simple and repetitive, which does not require professional or skilled skills. Furthermore, unlike the contract for the purpose of completing work, the Plaintiffs’ labor was provided at regular times at the Defendant workplace. Unlike the general contract, the instant service payment was not determined based on the entire work or work stage, and was determined according to the rate of contract fixed based on the number of working hours or inputs of the Plaintiffs.

E) It is difficult to view that the outsourcing company of this case has an independent corporate organization and equipment.

(1) The outsourcing company of this case was equipped with some facilities or an enterprise form. However, considering the following factors: (i) the outsourcing company of this case was not fully equipped with the corporate organization or facilities necessary to achieve the purpose of the contract at the time of the conclusion of the instant service contract; (ii) the external company of this case was wholly employed by the head of the office, office, and safety patrol officer in accordance with the Defendant’s policy; (iii) the Defendant provided the office space and necessary office space; (iv) the main equipment necessary to directly implement the instant service contract, including the safety patrol vehicle, were supplied free of charge; (v) most of the external company of this case were originally employed by the Defendant; and (v) the method of calculating the service price of this case and the relationship between the external company of this case and the Defendant, it is difficult to view the external company of this case as having been equipped with an independent corporate organization or facilities; and (v) it appears that the external company of this case had been considerably dependent on the Defendant

(2) In light of ① simple and repetitive nature of the instant work, ② the method of managing the Plaintiffs, ③ the establishment of the instant external business entity using the Defendant’s education form, and the training of the safety patrol agent employed by the instant external business entity was also entrusted to the Defendant, and ④ the cost of the instant external business entity establishing the external business entity, etc., it is deemed that the instant external business entity did not have invested the unique skills or special capital, in view of the fact that the instant external business entity was actually entrusted to the Defendant.

C. The defendant's direct employment obligation occurs

1) Relevant legal principles

Article 6-2(1)4 of the former Dispatch Act (Enforcement Date, July 1, 2007) provides that “If a user company continues to use a temporary agency worker more than two years after having conducted the temporary agency worker business without the permission of the Minister of Employment and Labor, the relevant temporary agency worker must be directly employed.” Furthermore, Article 6-2(1)5 of the amended Dispatch Act (Enforcement Date, August 2, 2012) provides that “If a user company is provided with services for temporary agency worker dispatch without the permission of the Minister of Employment and Labor, the user company must directly employ the temporary agency worker” and Article 6-2(1)1 of the Dispatch Act provides that “if a user company uses a temporary agency worker in relation to any work that does not fall under the temporary agency worker dispatch, the temporary agency worker shall be directly employed.”

Therefore, under the former Dispatch Act or the amended Dispatch Act, a user company in violation of the above provision bears the duty to directly employ temporary agency workers pursuant to the provision on direct employment obligation. A temporary agency worker has a judicial right to seek a judgment against a user company in lieu of his/her expression of intent of employment if the user company fails to perform the duty of direct employment, and the judgment becomes final and conclusive, a direct employment relationship exists between the user company and the temporary agency worker. In addition, the application of the provision on direct employment cannot be excluded solely on the ground that the temporary agency company has been changed during the period of secondment (see Supreme Court Decision 2013Da14965, Nov. 26, 2015)

Before the enforcement of the amended Dispatch Act, Article 6-2(1) of the former Dispatch Act provides that “If a user company continues to use a temporary agency worker for more than two years, the relevant temporary agency worker must be directly employed” as well as “illegal temporary agency worker” applies (see Supreme Court en banc Decision 2007Du22320, Sept. 18, 2008; Supreme Court Decision 2008Du4367, Jul. 22, 2010).

2) In the case of the remaining plaintiffs except for the plaintiffs whose employment relationship was severedd

(A)the occurrence of a direct employment obligation of the user owner;

Article 6-2(1)1 and 5 of the Dispatch Act provides that “If a user company uses a temporary agency worker with respect to services for temporary agency workers without permission or services for temporary agency workers under the Dispatch Act, it shall be obligated to employ the relevant temporary agency worker regardless of the period during which it is provided.” The Addenda does not provide for matters other than the enforcement date. In full view of the aforementioned legal principles and the provisions of the Dispatch Act, a user company is against Article 6-2(1) of the former Dispatch Act, Article 6-2(1)1 and 5 of the Dispatch Act, and Article 6-2(1)1 and 5 of the Dispatch Act, it is reasonable for the user company to directly provide the temporary agency worker services for more than two years prior to the enforcement date of the Dispatch Act (the date of August 2, 2012), as to the temporary agency workers who are not permitted after the enforcement date of the Dispatch Act (the date of the amended Dispatch Act) or as to the temporary agency workers who are provided with services related to temporary agency services after the enforcement date of the Dispatch Act.

B) In the instant case:

① The instant service contract constitutes a contract on temporary placement of workers. The fact that the instant outsourcing company did not obtain permission from the Minister of Employment and Labor for temporary placement business; ② the fact that the said Plaintiffs employed the instant outsourcing company after the enforcement date of the former Dispatch Act and provided the Defendant with temporary placement services is as seen earlier. Moreover, the safety patrol officer’s duties do not seem to fall under the temporary placement of workers as stipulated in Article 5(1)15 of the Dispatch Act.

On the other hand, the above plaintiffs were dispatched to the defendant's workplace from the date of entry to the time of the closing of argument in this case and provided labor as a safety patrol officer, in full view of the following facts: there is no dispute between the parties, or considering the whole purport of the arguments in Gap's evidence No. 63 through 65, 86, 166,

Therefore, pursuant to Article 6-2 (1) of the former Dispatch Act and Article 6-2 (1) 1 or 5 of the Dispatch Act, as stated in the attached Table 4, the defendant bears the direct employment obligation for the remaining plaintiffs on August 2, 2012 as of August 2, 2012, when two years have elapsed from the date of entry for the plaintiffs who provided temporary agency services for more than two years as of August 2, 2012, and 2. The defendant bears the direct employment obligation for the rest of the plaintiffs on August 2, 2012 or on

3) The case where the employment relationship with the foreign employer of this case is severed

A) Relevant legal principles

The former Dispatch Act or the Dispatch Act imposes a direct employment obligation on a user company, separate from administrative supervision or punishment, to promote the employment stability of temporary agency workers by preventing commercialization and long-termization of temporary agency workers, for a user company to continue to use temporary agency workers or receive illegal temporary agency workers for a violation of the restriction on the period of secondment. This establishes the legal relationship between the user company and the temporary agency worker and the legal effect therefrom, which is not directly related to the temporary agency agency (see Supreme Court Decision 2013Da14965, Nov. 26, 2015). Within this limit, the temporary agency company is merely a third party. In addition, the temporary agency company and the user company do not affect a separate legal relationship between either of the user company and the temporary agency company.

Article 6-2(2) of the Dispatch Act only stipulates in exceptional cases where a user company is exempted from the direct employment obligation of the user company, “the relevant temporary agency worker clearly expresses his/her dissenting opinion or has justifiable grounds prescribed by Presidential Decree,” and as long as it does not fall under such provision, the user company is obligated to directly employ the temporary agency worker. In addition, in light of the legislative intent and language of the Dispatch Act that imposes the duty to directly employ the temporary agency worker, it is difficult to readily conclude that the temporary agency worker explicitly expressed his/her dissenting opinion.”

B) In the instant case:

(1) Comprehensively taking account of the evidence adopted earlier and the written evidence No. 74, the Plaintiffs indicated in the Plaintiff’s Schedule, which was cut down in the attached employment relationship No. 5, continued to provide the Defendant with temporary agency service from the date on which they were employed by the Defendant to the date on which the Defendant’s direct employment obligation arises, and the said Plaintiffs are found to have voluntarily withdrawn or been dismissed from the instant external agency on the pertinent date, as indicated in the “time of short-term occurrence” and “the cause of termination of employment relationship” column.

In light of the above legal principles, the Defendant was obligated to directly employ the above Plaintiffs on the date two years have elapsed from the date of death, or on August 2, 2012, or on the date of entry after August 2, 2012, and thereafter, the grounds for suspending the provision of labor by the above Plaintiffs arose between the business owner of the instant case and the business owner of the instant outsourcing, and such circumstance does not affect the legal relations between the above Plaintiffs and the Defendant or the Defendant’s direct employment obligation.

(2) In addition, the plaintiffs, who were dismissed from the external management entity of this case, were merely those who were unable to provide temporary agency services regardless of their own intent due to the defendant's breach of direct employment duty. ② Voluntary withdrawal of the external management entity of this case, the plaintiffs, other than the plaintiffs 48, 53, 54, 59, and 354, filed the lawsuit in this case, and expressed their intention to resign after clearly expressing their intention to conclude employment relations with the defendant, and their intention to express to the external management entity of this case is merely that they expressed. ③ All of the plaintiffs 48, 53, 54, 59, and 354 filed the lawsuit in this case with the external management entity of this case within 3 months after the termination of their employment relationship with the external management entity of this case. ④ According to the contents of employment contract, the safety management entity of this case, in order to patrol the defendant, there is no clear evidence to acknowledge the above external management entity's intention or employment relationship between the defendant and the external management entity of this case.

4) Sub-committee

Therefore, the defendant is obligated to express his/her intent of employment to the plaintiffs. However, since the labor relationship between the plaintiffs and the defendant is established on the date of the final judgment ordering the defendant to express his/her intent of employment, the plaintiffs' assertion that the defendant's declaration of consent is to be made retroactively on each corresponding day specified in the "request Date" of the attached Table 4 of the occurrence of employment obligation or that the contract

4. Occurrence of liability for damages;

(a) Liability for damages before a direct employment obligation occurs;

1) The parties' assertion

A) The plaintiffs

(1) Pursuant to Article 21(1) of the Dispatch Act, a temporary work agency and a user company are obligated to prevent discrimination against temporary agency workers in overlapping. Therefore, if a discrimination occurs without reasonable grounds against the working conditions of the temporary agency worker and the user company, the user company shall be liable for damages against the temporary agency worker.

(2) The Plaintiffs, as temporary agency workers, performed the same or similar tasks as the Defendant’s on-site safety patrolman, who is the user company, and without reasonable grounds, there was discrimination between the Plaintiffs’ wages and the Defendant’s on-site safety patrolman’s wages, and thus, the Defendant, the user company, is liable to compensate the Plaintiffs for damages arising from the breach of the duty of prohibition of discrimination. The scope of compensation for damages is equivalent to the difference calculated by subtracting the Plaintiffs’ wages received from the wages

B) Defendant

For the following reasons, the plaintiffs' assertion is without merit.

(1) The provisions on the prohibition of discrimination under the Dispatch Act stipulate the correction procedures of the Labor Relations Commission as a remedy for discriminatory treatment, and do not directly confer judicial rights or obligations on individual parties. Accordingly, even if the Defendant breached the obligation of prohibition of discrimination, the Defendant is not liable for damages.

(2) The proviso of Article 34(1) of the Dispatch Act defines a temporary work agency as a “user” with regard to wages as distinguishing the areas where a temporary work agency and a user company assume the responsibility of employer. As such, the Defendant is not liable for damages with respect to wage discrimination.

(3) Considering the difference between the Plaintiffs and the Defendant’s on-site safety patrol officers in the employment method or procedure, work experience, degree of skilled experience, details, scope, and responsibility of the work, there was a reasonable ground for the difference between the Plaintiffs and the Defendant’ on-site safety patrol officers.

2) Determination

A) As to the corrective procedure of the Labor Relations Commission

(1) Article 21(2) of the Dispatch Act provides that “If a temporary agency worker has received discriminatory treatment from a temporary work agency and a user company, the temporary agency worker may file an application for correction thereof with the Labor Relations Commission.” This is a procedure for prompt remedy of the worker who has received discriminatory treatment, and the Labor Relations Commission’s corrective order pursuant to the above procedure is a procedure for prompt remedy of the worker who has received discriminatory treatment, and the employer is merely obliged to perform the duty under public law and does not create or modify the legal relationship between the worker and the employer. Therefore, it cannot be said that the above provision does not exclude the remedy procedure against the temporary agency worker through judicial procedures with respect to the temporary agency worker or that the temporary agency worker does not have the right

(2) Rather, it is reasonable to view that Article 21(1) of the Dispatch Act constitutes a mandatory provision, in light of the purport or nature of Article 21(1) of the Dispatch Act and Article 21(1) of the Dispatch Act, in order to specifically realize the constitutional norm, such as human dignity and value, equal rights, and to prevent such discrimination. ② Legislative intent of the Dispatch Act to strengthen the protection of temporary agency workers and prevent the use of temporary agency workers for the purpose of saving personnel expenses, and to prevent reckless temporary agency workers from spreading; ③ a corrective order may be issued as if the temporary agency workers were prior to the act of prohibiting discrimination; and the fact that an administrative fine may be imposed if the temporary agency workers were not complied with (Article 46(2) of the Dispatch Act). In light of the aforementioned purport or nature of Article 21(1) of the Dispatch Act and the above provision, it is reasonable to deem that the temporary agency workers were paid wages less than those of the employer on the ground that the temporary agency workers were dispatched with the same value without reasonable grounds. In particular, it is reasonable to view of the difference between the temporary workers’ duty of temporary agency workers and the Act.

B) In a case where a wage discrimination occurs, whether “user company” is liable for damages

(1) Relevant legal principles

As alleged by the Defendant, Article 34(1) of the Dispatch Act only imposes an employer’s obligation on the user company regarding working hours, holidays, recesss, etc. under the Labor Standards Act, and does not regard the user company as an employer in the application of the Labor Standards Act in relation to wages. However, considering the following, it is reasonable to deem that Article 21(1) of the Dispatch Act also grants both the user company and the user company “the obligation to prevent discrimination in working conditions of temporary agency workers, including wages, or to rectify or resolve any discrimination caused by temporary agency workers.” Therefore, barring any special circumstance, such as the occurrence of discrimination even if the user company took necessary measures to prevent discrimination, the user company is liable for damages due to the breach of the duty of prohibition of discrimination.

(A) Unlike Article 34(1) of the Dispatch Act, Article 21(1) of the Dispatch Act provides that a user company and a temporary work agency shall be subject to the duty not to discriminate against the user company and the temporary work agency, but does not distinguish the area.

Article 34(1) of the Dispatch Act is understood as a provision to clarify the employer's responsibility in relation to the application of the specific working conditions provisions under the Labor Standards Act to a user company and a temporary work agency in order to prevent the user's responsibility as an employer for the relevant worker in the course of providing labor due to the overlapped contractual relationship, etc. regarding the temporary agency worker. On the other hand, Article 21(1) of the Dispatch Act appears to be a provision prepared to prevent and remedy the actual disadvantage of the temporary agency worker who has received discriminatory treatment than regular workers of the user company, and it is not deemed that the legislative purport of the above two provisions is the same.

(B) The treatment for temporary agency workers is bound to be directly affected by the content of the contract on temporary agency workers concluded between the user company and the user company. In particular, as the user company has a substantial effect on the determination of the amount of personnel expenses for temporary agency workers, including the remuneration for temporary agency workers, in light of the user company’s relationship with the user company or the economic status of the user company, etc., even if the user company has the direct payment obligation for temporary agency workers, there are many fundamental causes of discrimination between the user company and the user company.

Ultimately, considering that the understanding or cooperation of the user company is essential in order to prevent such discrimination or to correct and resolve such discrimination, the effectiveness of the above provision cannot be guaranteed unless the user company bears the duty of prohibiting discrimination against all working conditions, including wages. It is understood that the above provision concurrently provides for the user company and the user company.

(C) To ensure that a temporary work agency complies with Article 21(1) of the Dispatch Act, a user company is obligated to provide a temporary work agency with “information on the wage and wage items of the user company engaged in the same or similar kind of work as the temporary agency worker” (Article 20(2) of the Dispatch Act and Article 4-2(1)2 of the Enforcement Decree of the Dispatch Act). If a temporary work agency and a user company violate the Labor Standards Act by concluding a temporary agency contract containing a violation of the Labor Standards Act and allowing a temporary agency worker to work under such contract, both employers shall be deemed an employer under Article 15 of the Labor Standards Act and the relevant penal provision shall apply (Article 34(4) of the Dispatch Act). If a temporary work agency fails to pay wages to a temporary agency worker, a user company is jointly and severally liable with a temporary work agency if certain circumstances exist (Article 34(2) of the Dispatch Act).

In certain cases, the Dispatch Act imposes on the user company the obligation to pay wages for temporary agency workers or the responsibility therefor.

(D) The legislative purport of Article 21 of the Dispatch Act is to consider that “The discrimination against temporary agency workers is raised as the user company uses temporary agency workers to reduce personnel expenses, and it is also necessary to enhance the protection of temporary agency workers and prevent the proliferation of temporary agency workers indisrushly by restricting the use of temporary agency workers to reduce personnel expenses.”

(2) In the instant case:

As seen earlier, the Plaintiffs continued to perform the same or similar duties as the Defendant’s on-site safety patrol officer from the time of commencement of dispatch work to the date of occurrence of the Defendant’s direct employment obligation. Therefore, the Defendant, the user company, bears the duty to ensure that the Plaintiffs, who are dispatched workers, receive wages without discrimination with the Defendant’s on-site safety patrol officer. However, as seen earlier, the Plaintiffs received wages lower than the Defendant’s on-site safety patrol officer, barring any special circumstance, the Defendant’s act constitutes a tort by violating the duty of prohibition of discrimination.

In addition, the circumstances acknowledged earlier, i.e., the service price of this case was determined in accordance with the method of calculating the service rate (i.e., the contract price determined in consideration of labor cost, welfare cost, statutory cost, general management cost, profit, etc.) designed by the Defendant, and most of the service price was led by the Defendant, such as labor cost for temporary agency workers. ② The outsourcing employer of this case determined the wages of the temporary agency workers based on the Defendant’s unit wage cost design and paid the wages to the Defendant, and reported the details of the payment for each item of wages to the Defendant. Based on this, the Defendant controlled the payment level of the wages to the external employer of this case. ③ The Defendant controlled the payment level of the wages to the Plaintiffs of the external employer of this case through corrective measures or sanctions, and ④ The relationship between the external employer of this case and the Defendant, the implementation relationship of the service contract of this case, and the economic ability and status of the external employer of this case, it is reasonable to deem that the Defendant had any substantial reason attributable to the Defendant to exercise the labor ratio or specific influence on most part of the temporary worker.

C) Whether there are reasonable grounds for wage discrimination

(1) Relevant legal principles

With respect to “discriminatory treatment” prohibited under Article 21(1) of the former Dispatch Act, Article 2 subparag. 7 of the former Dispatch Act defines “the unfavorable treatment in terms of wages, other working conditions, etc.” as “the case where there is no justifiable reason”. The term “in the absence of any justifiable reason” refers to the case where the need to otherwise treat temporary agency workers is not recognized or the method, degree, etc. is inappropriate even in the absence of a need to otherwise treat them. Furthermore, whether reasonable grounds exist shall be determined by comprehensively taking into account the details of the unfavorable treatment in question in individual cases, the form and scope of employment of temporary agency workers, the contents, scope, authority, and responsibility of duties, wage, and other working conditions, etc. based on the circumstances based on which the employer is considered as the ground for unfavorable treatment in individual cases (see, e.g., Supreme Court Decision 2011Du5

However, if there are reasonable grounds for discrimination, solely on the fact that wages, etc. were less reasonable, tort is not established. However, the burden of proving that there was “reasonable grounds” exists a discrimination in terms of working conditions, such as wages, shall be deemed to exist to the defendant, who is the one-time user company (Article 21(3) of the Dispatch Act, Article 9(4) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (the burden of proof in related

(2) In the instant case:

For the following reasons, it cannot be deemed that there was a reasonable ground for determining the amount of wages of the plaintiffs and the safety patrol officers belonging to the defendant (the same shall apply even if the plaintiff bears the burden of proof).

(A) If the Defendant’s on-site safety patrolman exceeded the Plaintiffs in terms of the value of labor, such as the ability, responsibility, and performance, the treatment difference cannot be deemed unreasonable, even if there is any difference in the working value. However, the difference in the employment form of “on-site work” does not directly lead to the difference in the working value, and the Defendant’s submission of evidence alone does not necessarily lead to the difference in the working value, but it is difficult to recognize the difference. Rather, as seen below, the Plaintiffs are compared to the wage level of the Defendant’s on-site safety patrolman newly employed in relation to compensation for damages prior to the Defendant’s direct employment obligation, and ② considering the fact that both workers and the Plaintiffs performed simple and repetitive duties, it is difficult to deem that there was an essential difference in the working value of the Defendant’s on-site

(B) If the employment condition or standard serves as an element to determine wages, it cannot be readily concluded that there is discrimination in terms of treatment to the extent that it is unreasonable. However, there is no relation to the current performance of duties, and as a result, there is no reasonable ground for discrimination solely on the ground that the employment condition or standard differs in the value of the work provided by the defendant and the plaintiffs. In particular, according to the aforementioned adopted evidence, the aforementioned reasons cannot be deemed as grounds for rationalizing discrimination, even if the circumstances acknowledged as follows: (i) the instant outsourcing company selected the instant safety patrolman based on the same basis as the defendant; (ii) the strengthening of the qualification standards in around 2012; and (iii) the Defendant continuously provided education or prepared measures to strengthen the management of the Plaintiffs’ ability.

(C) The Plaintiffs were transferred to and performed the duties of maintaining and managing an expressway that had been assigned to the safety patrol staff belonging to the Defendant. The Defendant prepared the traffic safety business regulations and the traffic safety management work guidelines, and prepared the work process manuals accordingly, and had the Plaintiffs and the Defendant’ on-site safety patrol staff in the same manner assigned to the Plaintiffs and the Defendant on-site safety patrol staff, such as safety patrol, traffic accident management and safety management, duties related to borne by the Defendant, vehicle control, etc., and there was no significant difference in the working place. Thus, the Defendant appears to have no substantial difference in the scope of duties, authority, and responsibility of both workers (the Defendant asserted that “the on-site safety patrol staff belonging to the Defendant, unlike the Plaintiffs, was in charge of the duties of imposing and collecting the burden of the polluter, but it is insufficient to recognize it only with the evidence No. 114 and 115, and further, even if the on-site patrol staff belonging to the Defendant, as argued by the Defendant, did not seem to have a meaningful meaning to rationalize wage discrimination)

(b) Liability for damages after a direct employment obligation occurs;

1) Relevant legal principles

A) In the event that a user company fails to perform the obligation of direct employment, the user company shall be liable for damages equivalent to wages arising from nonperformance of the said obligation until a direct employment relationship is established (Supreme Court Decision 2013Da14965 Decided November 26, 2015). Not only in the case of lawful temporary placement of workers but also in the case of illegal temporary placement of workers is as seen earlier.

As seen earlier, except in exceptional cases, such as explicitly expressing the opposite intention of the temporary agency worker, the user company is obligated to directly employ “from that time” as well as the user company bears the duty of direct employment. It does not necessarily mean that the temporary agency worker is obliged to express his/her intent to establish an employment relationship with the temporary agency worker or is liable to compensate for any damage caused by the nonperformance of the above duty.

B) Damages suffered by a temporary agency worker due to his/her breach of direct employment obligation should be deemed as “the difference between the wages that the temporary agency worker would have received if the user company fulfilled the obligation of direct employment and the wages that the temporary agency worker would have received”.

Article 6-2(3) of the Dispatch Act provides that where a user company should directly hire temporary agency workers, "working conditions prescribed by the rules of employment applicable to the relevant temporary agency worker if a worker performs the same or similar kind of duties as that of the relevant temporary agency worker among the workers employed by the user company" shall be applied. Thus, the damage to the temporary agency worker shall be determined according

2) In the instant case:

A) As seen earlier, the Defendant failed to perform the obligation to directly employ the Plaintiffs from the pertinent date indicated in the “the date of occurrence of the obligation to directly employ” of the attached Table 4. As such, the Defendant is liable for damages arising from nonperformance of the obligation to directly employ. It is reasonable to view the Plaintiffs’ damages as “the amount equivalent to the difference between the wages the Plaintiffs would have received if the Defendant had performed the obligation to directly employ and the wages the Plaintiffs received from the external employer test of the instant case.”

B) As seen earlier, the Plaintiffs continued to perform the same or similar tasks with the Defendant’s on-site safety patrol officers, even before March 2013 (or around April 2013) from the date on which the Defendant’s direct employment obligation occurred (or around April 2013). Therefore, when calculating the “wages that the Plaintiffs would have received if the Defendant had performed the direct employment obligation,” the Plaintiffs should take into account working conditions prescribed by the rules of employment applied to the Defendant’s on-site safety patrol officers, which are comparable workers.

In light of the purport of the argument in Gap evidence No. 82, there is no dispute between the parties, or comprehensively considering the purport of the argument, the defendant: ① to apply uniform standards after classifying "worker who has concluded a fixed-term employment contract and is in charge of regular and continuous work" as field workers, the defendant prepared and implemented the "Rules on On-Site Employee Management" which stipulates matters concerning employment, personnel management, including wages, working conditions, welfare, etc. applicable to them on June 25, 2007 (Enforcement Date July 1, 2007); ② under the Rules on On-Site Employee Management, the safety inspectors, including safety inspectors who performed the same or similar work as the plaintiffs, were classified as "on-site workers" as "on-site workers; ③ after all of the safety inspectors were removed, the defendant appears to have changed the name of the "on-site drivers, maintenance workers at-site workers, road maintenance workers, traffic guidance workers, and the name of the "on-site workers" to "on-site workers at the same level" as "on-site workers at the same level."

According to the above facts, it is reasonable for the Plaintiffs to determine damages or the amount thereof according to the working conditions prescribed by the Regulations on the Management of On-Site Employees, which applied to them, around March 1, 2013 (or around April 2013) where they worked together with the on-site safety patrol officers belonging to the Defendant. In addition, in full view of the following: (a) the purport of the Defendant’s classification of various kinds of occupation, including safety patrol officers, as “on-site workers”; (b) the similarity of employment types of occupation, which are classified as “on-site workers”; (c) the similarity of employment types of occupation, which are classified as “on-site workers” with the Defendant; and (d) the similarity of their work environment, wage level or system; and (e) the Defendant’s degree and system of wages for workers at the on-site or on-site workers from January 1, 2014 to the on-site safety patrol officers; and (e) the Defendant’s establishment rules, barring any special circumstances, should be determined as the Plaintiffs or on-site workers.

C) Therefore, the Defendant is obligated to compensate the Plaintiffs for damages equivalent to the difference calculated by subtracting the wages received from the wages of the Defendant’s on-site safety patrol officers or the employees of the working-level employees calculated in accordance with the instant regulations from the date of occurrence of the direct employment obligation to the Plaintiffs until June 2015 (the point at which the Plaintiffs seek).

5. Scope of liability for damages

A. Items of losses of the plaintiffs' assertion

1) Where there is no dispute between the parties, or in full view of the purport of the argument in the statement in Gap evidence No. 82, the wages of the safety patrolman on the job under the defendant's jurisdiction consisting of "(i) basic pay, (ii) bonus, (iii) risk allowances (special environment work, license allowances), family allowances, (v) overtime, night, and holiday work allowances, and (vi) annual allowances, and welfare expenses are composed of "traffic support expenses, (viii) elderly-friendly expenses, (viii) childbirth subsidies, (i) childbirth subsidies, (iii) middle and high-income school expenses, (iv) health examination expenses, commemorative expenses, (ii) welfare points, and (iii) regular allowances, to the extent that the plaintiffs seek)."

2) In the case prior to the occurrence of the direct employment obligation, the Plaintiffs seek for the difference between the wages paid to the Defendant’s on-site safety patrolman and the wages paid to the Plaintiffs, namely, “the difference between the wages paid to the Defendant’s on-site safety patrolman and the wages paid to the Plaintiffs,” namely, ① basic pay, bonus allowance, transportation expenses, ④ welfare expenses, ⑤ the number of hours applied to the Defendant’s on-site safety patrolman, ⑤ the difference between the overtime allowance calculation method applied to the Plaintiffs, and the number of overtime allowances applied to the Plaintiffs.”

3) In the case following the occurrence of the direct employment obligation, ① the difference between the sum of the basic salary, bonus, risk allowance (special environmental work), and traffic subsidy of the Defendant and the Plaintiffs’ “basic salary, bonus, risk allowance (on-site allowance), traffic expenses, and meal expenses” (hereinafter “base wage”); ② the difference between the welfare expenses and the Plaintiffs’ welfare expenses paid to the Defendant’s on-site safety patrol staff; ③ the difference between the calculated hours applied to the Defendant’s on-site safety patrol staff and the Plaintiffs’ overtime allowance due to the difference in the calculation method of the hours applied to the Defendant’s on-site safety patrol staff; ④ the difference between the overtime allowance and the Plaintiffs’ overtime allowance not paid for holiday work even though the Defendant provided labor on the agreed-paid holiday.”

4) The lower court determined the wage details and the issues of each item paid to the Defendant’s on-site safety patrol officers, including before and after the occurrence of the direct employment obligation, based on the determination, and determined, within the scope of the wage items and the claim amount specifically sought by the Plaintiffs through “application for modification of the purport and cause of the claim made on February 25, 2016.”

B. Determination on the claim for “the difference between basic pay and welfare expenses”

1) Standard wages and welfare expenses paid by the Defendant to the on-site safety patrolmen belonging to the Defendant

In the absence of dispute between the parties or in full view of the overall purport of the arguments in the statements in Gap evidence Nos. 67, 82, 151, 161 through 167, Eul evidence No. 9, 111, and 113, the defendant may recognize the fact that the defendant paid the standard wages and welfare expenses to the on-site safety patrol officers belonging to the defendant as follows:

(A) the basic level;

The Defendant applied a single wage system to the safety patrolmen on the job site belonging to the Defendant during the period from January 2, 201 to December 201, and introduced a salary system that connects the number of years of continuous service from January 201. At the same time, the Defendant granted one salary class at the time of entry, and added one salary class per year for a period not exceeding three years, and six months for a remaining period of less than one year, and six months for a period of less than six months, respectively. The period required for a regular salary class was set at one year, and the regular salary class was set at the first day of each month. From January 2010 to July 2015, the basic salary class for each salary class, such as the safety patrolmen on the job site belonging to the Defendant, is written in the column for “basic salary class” in the attached Table 6.

(B) bonus allowances;

From 2010 to 2015, the Defendant paid bonus allowances according to the following rates based on the basic salary to the on-site safety patrol officers. The safety patrol officers belonging to the Defendant have been fixed at 200% of the monthly basic salary in terms of bonus self-performance pay out of bonus allowances, and the remainder was received as institutional performance pay. The institutional performance pay was determined according to the payment rate set by the Public Agency Operation Committee.

460% 460% 480% 480% 420% 435% 440% in 2014, 2013, 2012, 2011, 2010

C) Risk allowances;

The details of risk allowances paid by the defendant to the safety patrol officer at the site belonging to the defendant are as follows: Provided, That from July 1, 2012, the defendant paid the license allowances to the safety patrol officer at the site belonging to the defendant.

The holder of 00,00 won per class (type 4) safety patrol officer, road manager, driver, and maintenance worker who are on-site workers of 100,000 won per month for the rate of the payment of the table classification and the amount of the non-high risk allowance of 0,000 won in the main sentence: The equipment subject to * : Tracker, loger, Bosch Rexroth, and Terera

D) Family allowances;

Payment rate and amount of non-high-income family allowances included in the main sentence - Payment from three children among those who support at least three children under 20 years of age in accordance with the standard of regular employees of 50,000 won per month, - Payment shall be made only to the spouse and lineal descendants suffering from serious diseases;

(e)transport support expenses, elderly filial duty expenses, childbirth grants, middle and high school expenses, health examination expenses;

1. The payment criteria for the classification of tickets contained in the main sentence of this Article: 1. The 250,000 won per month of traffic subsidies: 10,000 won in the year 201: 200,000 won in the year 2012: 2.50,000 won per annum 1,00,000 won per annum 1,000,000 won in the year of May 8, each year; 3. The payment shall be made in accordance with the regular personnel standards for the childbirth subsidy; 2. The payment shall be made in accordance with the regular personnel standards for the childbirth subsidy; 1,00,000 won at the time of giving birth; 1,50,000 won at the time of giving birth to the third child: 4. The payment shall be made in accordance with the standard for the regular personnel of middle and high school funds; the full amount of 0,000 won in the school expenses to be paid from 200,0000 won per year.

F) Welfare points (based on 2013, which the Plaintiff seeks)

A dependent 15,000 won 15,000 won 15,000 / 165,000 / 165,000 /80 / 165,000 /80 /80,000 / 8,000 to 10 years / from 3 to 4 years from 5 to 7 years from 8 years from 8 to 11 years from 10 years from 8 to 11 of 11; 15,000 / 165,000 / 165,000 / 180,000 / 80,000 / 1,000 / 80,000 / 80,000

(g) monuments expenses;

The criteria for the payment of Table Items included in the main sentence shall be the same as 70,000 won staff members per annum of the non-highest and old souvenirs expenses, anniversary of the creation of a new monument, anniversary of the Workers' Day.

(h) a good attendance allowance;

Around January 2015, the defendant paid KRW 500,000 to the working-level workers belonging to the defendant as a full-time allowance.

2) Determination on issues

A) Whether there exists reasonable grounds for discrimination in individual wage items prior to the occurrence of the obligation to directly employ employees

(1) Relevant legal principles

Article 2 Subparag. 7 of the former Dispatch Act only provides for “wages, other working conditions, etc.” with regard to discriminatory treatment prohibited under Article 2 Subparag. 7, but, upon amendment by Act No. 11668, Mar. 22, 2013, it stipulated that “the bonus, regular bonus, remuneration for life-saving bonus, etc. regularly paid, such as wages, regular bonus, performance bonus, performance bonus, and other matters concerning working conditions, welfare, etc.” This is merely verifying the purport and meaning of the previous provision for the protection of temporary agency workers, and does not seem to have newly established a non-discrimination area.

However, since benefits related to long-term service are aimed at inducing long-term service workers or giving preferential treatment to long-term service workers, it is reasonable to view that treating them differently from temporary agency workers premised on short-term employment has reasonable grounds (Supreme Court Decision 2012Du2207 Decided September 24, 2014).

(2) In the instant case:

(A) The defendant asserts that "the payment of bonus, in particular, the institution evaluation salary is based on the performance of the safety patrol officers assigned to the defendant and is for inducing long-term service, so it is reasonable to place a difference in the payment before the defendant's direct employment obligation occurs."

Considering the facts found above, i.e., ① it is difficult to see that there was an essential difference in the scope of duties, authority, and responsibility of the safety patrol staff belonging to the Defendant, there is no evidence to see that there was a difference in the labor value provided by both workers, ② it is reasonable to deem that the Plaintiffs’ work performed had influenced the Defendant’s management performance, it is difficult to deem that discrimination against the Plaintiffs’ payment of institutional performance is reasonable solely on the ground that the Plaintiffs were temporary agency workers. In addition, such bonus or institutional evaluation wage is difficult to be deemed to have led the Defendant’

(B) The Defendant asserts that “Welfare expenses, etc. are designed to induce the long-term service of the on-site safety patrolman belonging to the Defendant, and thus, it does not apply to the Plaintiffs premised on short-term work, so there is a reasonable ground even if there is any difference in welfare expenses, etc.

Generally, living assistance, welfare-related benefits, and reimbursement for actual expenses are paid regardless of the worker’s ability to perform his/her duties, or the quality or quantity of his/her work. Therefore, it is difficult to view that there exists a reasonable ground to deem that there exists a reasonable ground. Risk allowances, family allowances, and various welfare benefits that the Defendant paid to the on-site safety patrol officer belonging to the Defendant as benefits for compensating for actual expenses, living assistance, or welfare benefits, and it is difficult to readily conclude that they are directly leading to long-term service, and therefore, it is difficult to deem that there is a reasonable ground to discriminate against the payment or amount.

B) In the case of the Plaintiffs whose employment relationship with the foreign company of this case was severed

① The Plaintiffs listed in the Plaintiff List, which was cut off the employment relationship, employed by the business owner of the instant case from the relevant date specified in the “date of occurrence of the employment obligation” of the attached Table 5, provided the Defendant with temporary agency work. However, “the time of occurrence of the proviso” was terminated due to the reasons indicated in the “reasons for occurrence of the proviso” on each corresponding date, and ② the date when the Defendant’s direct employment obligation occurred on each corresponding date specified in the “date of occurrence of the employment obligation” of the attached Table.

According to the above facts, in the case of the plaintiffs who were dismissed (or refused to renew a harsh contract) from the foreign company of this case, or retired from the personal situation, it is reasonable to view that the defendant would have suffered damages due to the wind failure to perform the duty of direct employment even though he could have been paid the wages even after the employment relationship was terminated on the date of occurrence of the obligation of direct employment. As seen earlier, as long as the legal relationship (employment relationship) with the foreign company of this case with the above plaintiffs is not directly related to the above plaintiffs' legal relationship (employment relationship) with the defendant, the defendant is liable to compensate the above plaintiffs for damages due to the failure to perform the duty of direct employment even during the period of termination of employment relationship

However, the Plaintiffs, who retired from employment due to personal circumstances, did not claim damages for the period from the date of retirement of the foreign educational institution of this case to the date of service of the copy of the complaint of this case, and the Plaintiffs, whose employment relationship was severed, do not claim damages for the period after the termination of employment relationship, as such, are not separately determined.

3) Determination on the claim for difference, such as basic pay and standard wage

A) Details of the plaintiffs' salary calculation

Based on the above recognition facts and the established rules of this case, according to the plaintiffs' request, ① based on salary grade 1 for the period prior to the defendant's direct employment obligation; ② from that time for the period after the occurrence of the direct employment obligation, salary grade 1 to 3 shall be granted from that time for the period after the occurrence of the direct employment obligation; and ④ calculated by adding salary grade 1 every year for continuous service, the details of the calculation of salary class of the plaintiffs are as shown in attached Table 7.

B) Before a direct employment obligation arises;

(1) A basic salary shall be calculated on the basis of the salary class, and (2) a bonus allowance shall be calculated on the basis of the payment rate compared to the annual basic salary (an amount equivalent to a bonus allowance shall be calculated on the basis of 1/12 of the total bonus allowance per year); (3) a traffic subsidy shall be calculated on the basis of the 100,000 won per year in 20,000, 200,000 won in 20,000 won in 201 and 250,000 won in each month in 2012.

(2) The plaintiffs' basic salary is as stated in the "basic salary of an enterprise in foreign service" list for calculation of the difference of basic salary in attached Table 11-1 through 11-397, and 2. The "nives allowance" is as stated in the "blive bonus of an enterprise in foreign service" list for calculation of the difference of bonus allowance in attached Form 12-1 through 12-397, and 3. The "transport expense" is as stated in the "blive bonus of an enterprise in foreign service" list for calculation of the difference of bonus allowance in attached Table 12-1 through 12-397. There is no dispute between the parties.

(3) Therefore, the Defendant is obligated to pay the Plaintiffs the amount indicated in the column, including the money indicated in the column of “unfavorable treatment content” on the calculation sheet of the difference in [Attachment 11, 12, 13 (Each number omitted), which is the difference in basic pay, bonus allowance, and transportation cost, to the Plaintiffs.

C) After the occurrence of a direct employment obligation

(1) The basic salary shall be calculated based on the salary class; (2) bonus allowances shall be calculated based on the payment rate compared to the annual basic salary (the amount equivalent to the bonus allowance shall be calculated based on the total amount of bonus allowances per year); (3) Risk Allowances (special environmental work shall be calculated based on the monthly 100,000 won; and traffic support expenses shall be calculated based on the 200,000 won per month in 2011; and from 250,000 per month in 20,000,000 per month in 20. Based on this, the basic salary under the salary class per year shall be as indicated in the “total” column of the base salary table in attached Table 6. Based on this, the specific standard wage applicable to each of the Plaintiffs is as indicated in the “base wage calculation column” column in the respective base wage calculation table.

(2) There is no dispute between the parties regarding the facts, such as the “basic wage”, “ bonuses”, “risk allowances”, “transport expenses”, and “food service expenses” indicated in the table for calculation of the difference of base wages in attached Table 17-1 through 17-397.

(3) Therefore, the Defendant is obligated to pay the Plaintiffs the amount indicated in the column “total” column of the calculation sheet of the difference of base wages (base wages - payment of outsourcing company wages) and damages for delay thereof, which is the sum of the money stated in the calculation sheet of the difference of base wages in attached Forms 17-1 through 17-397.

4) Determination on the claim for difference of welfare expenses

The details of the possession of heavy equipment licenses by each plaintiff, the details of family relations, and the details of the disbursement of school expenses are as shown in the relevant table in attached Tables 8 through 10, respectively, and the difference between the "risk allowances (license allowances), family allowances, elderly-friendly expenses, health examination expenses, welfare points, souvenirs, commemorative expenses, childbirth grants, childbirth grants, middle and high-income school expenses, week 21" by each plaintiff shall be as listed in attached Tables 14-1 through 14-3 for the period prior to the occurrence of the direct employment obligation, and the difference between the annual welfare expenses in attached Tables 20-1 through 20-6 for the period after the occurrence of the direct employment obligation.

Therefore, the defendant is obligated to pay each of the money stated in the "total amount of payment" of the above table to the plaintiffs and the damages for delay.

C. Determination on the difference between overtime work allowance and holiday work allowance

1) Calculation of the standard rate of wages;

In order to calculate damages equivalent to the difference between the Plaintiffs’ overtime work allowance and holiday work allowance, the hourly ordinary wage (hereinafter referred to as “standard hourly wage”) shall be calculated.

A) In light of the absence of dispute between the parties or the overall purport of the pleadings in the statement No. 102 of the evidence No. 102, the Defendant’s on-site safety patrolman may be recognized as having received statutory allowances with only the basic salary before July 31, 201 as ordinary wages.

Before the judgment of this case becomes final and conclusive, the Plaintiffs cannot claim wages or allowances based on the premise that they are the employees belonging to the Defendant. In other words, the Plaintiffs are entitled to seek damages equivalent to the difference in wages based on the wage discrimination with the safety patrol officer belonging to the Defendant, or their wage conditions, and may not demand any level exceeding their working conditions or wages. Accordingly, prior to July 31, 201, only the “basic wage” shall be calculated as the standard hourly wage.

B) Since August 1, 2011, there is no dispute between the parties as to the facts that the “basic wage, bonus allowance, risk allowance (special environmental work),” “basic wage, bonus allowance, self-performance rate (200% of the basic monthly wage per year),” and “traffic subsidy” constitute ordinary wage as it is paid periodically, periodically, and uniformly (the Plaintiff’s assertion is nonexistent, and the remaining wage is not determined separately for ordinary wage). Accordingly, after August 1, 201, the calculation of the base wage shall be made by dividing the sum of the “basic wage, bonus allowance, risk allowance (200% of the basic monthly wage per year), and traffic subsidy” by 209 hours, which are the monthly contractual work hours of the Defendant’s on-site patrol staff.

C) Ultimately, the standard wage rate is as indicated in the “base wage rate” column of the attached Table 6 (in other attached papers, it shall be calculated based on the “base wage rate” of the above base wage table).

2) Determination as to the claim for the difference in overtime work allowances (by June 30, 201)

According to the facts and evidence admitted earlier, Article 31(1) of the Rules of this case provides that “The fixed working hours of an employee on the site of the school work shall be 40 hours a week,” and Article 52(2) of the Rules of this case provides that “if an employee on the site of the school work worked in excess of 40 hours a week, work shall be deemed to be overtime work.” ② Accordingly, the Defendant’s on-site safety patrolman worked for “8 hours a day, 40 hours a week,” depending on the form of work “4(3) hours a week,” and ③ according to the Defendant’s design, such as the Defendant’s wage or work organization, the Plaintiffs received three trillion workers from June 2007 to June 30, 201 as “3 hours a day, 12 hours a week, 48 hours a week,” and accordingly, the Plaintiffs provided 48 hours a week, but did not exceed the number of hours a week an average of 44 hours a week overtime work.

As above, as long as the Defendant and the business owner of the out-of-the-spot in this case dealt with the working hours that serve as the basis for calculating overtime allowances without any reasonable reason, the Plaintiffs suffered losses not receiving overtime allowances corresponding to 17.3 hours per month when compared to the safety patrol officers belonging to the Defendant.

Therefore, from around 2010 to June 201, which the Plaintiffs sought, calculated the difference in overtime allowance in accordance with the formula of “standard rate x 17.3 hours/months x the number of overtime months”, the sum is as indicated in the “total” column of the difference in overtime allowance (before the occurrence of the employment obligation) and the attached Table 18 (after the occurrence of the employment obligation). Therefore, the Defendant is liable to pay the said amount and damages for delay to the Plaintiffs.

3) Determination on the difference in holiday work allowances

There is no dispute between the parties, or in full view of the purport of the entire arguments as to the statements in Gap evidence No. 82 and No. 166, the rule of this case provides for paid holidays granted to field employees as follows, and ② It can be acknowledged that the outing company of this case granted the plaintiffs paid holidays less than paid holidays as prescribed by the rule of this case.

(1) Public holidays prescribed in the provisions concerning public holidays of public offices shall be classified as follows; 2. Workers' Day: 4. Other public holidays prescribed in subparagraph 1 of paragraph (1) shall be limited to those who have shown perfect attendance of the contractual working days of public holidays of one week; 3. The first five-day public holidays and the second five-day public holidays under Article 2 (Public Holidays). In cases of the second five-day public holidays and the second five-day public holidays, the second five-day public holidays and the second five-day public holidays and the second five-day public holidays and the second five-day public holidays under the provisions concerning public holidays of public offices, the second five-day public holidays and the second five-day public holidays and the second five-day public holidays and the second five-day public holidays and the second five-day public holidays and the second five-day public holidays and the second five-day public holidays and the second five-day public holidays and the second five-day public holidays and the second five-day public holidays and the second five-day public holidays and the second five-day public holidays and six-day.

According to the above facts and the evidence adopted earlier, the number of days worked on the above agreed pay holiday work as stated in the table of the difference between the holiday work allowances (before the occurrence of the employment obligation) and the “days” of the respective holiday work allowance table (after the occurrence of the employment obligation) set forth in the annexed Table 16-1 through 16-397, and the “day” set forth in the annexed Table 19-1 through 19-397, and the Plaintiffs’ holiday work allowance paid to the employer of the instant case can be recognized as having the same facts as the indicated in the “paid work payment column.” The holiday work allowance calculated by multiplying the above agreed pay by the daily rate set forth in the annexed Table as stated in the above.

Therefore, due to the Defendant’s breach of duty of prohibition of discrimination or breach of direct employment duty, the Plaintiffs suffered losses as indicated in the “Difference of holiday allowances” column in the above Table, which is equivalent to the difference between the wage paid for holiday work and holiday work allowances paid to the Nonparty, as the Defendant’s on-site worker safety patrolman, and the Defendant is obligated to pay the Plaintiffs the sum of the above difference and the damages for delay (the Defendant is not liable to compensate for damages as he did not follow the paid holiday in the Defendant’s design). However, as seen earlier, the Defendant, who is the user company, bears the duty of prohibition of discrimination, etc. in principle, concurrently with the external employer of this case. In addition, the Defendant, as seen earlier, bears the duty of calculating the service price of this case and the degree of involvement of the Defendant, ③ the Defendant actually controlled and supervised the external employer of this case; ④ The Defendant’s execution of labor expenses for temporary agency workers, including the Plaintiffs, and ④ The Defendant’s remaining number of employees and the number of employees in the aforementioned case were not considered as the Defendant’s aforementioned.

D. Sub-committee

Therefore, the defendant is obligated to pay to the plaintiffs the amount of compensation for damages calculated at each rate of 5% per annum as stipulated in the Civil Act from July 22, 2015 to June 24, 2016, which is the date of the decision of the court of this case, and 20% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the following day to the date of full payment, as the plaintiffs seek against each of the relevant money listed in the “amount of compensation for damages” in the attached Table 3 list, which is the sum of the amounts recognized as above.

6. Conclusion

Therefore, the plaintiffs' claim of this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as there is no reason. Since the judgment of the court of first instance is partially unfair in conclusion, it is decided to revise the judgment of the court of first instance, including the plaintiffs' claim extended or added in the trial. It is so decided as per Disposition.

Judges Kim Kim (Presiding Justice)

Note 1) Underline to the part to be emphasized below.

Note 2) It seems that an out-of-the-spot company given points to the Defendant according to the number of employees of the safety patrol staff (see Article 3 subparag. 3 of the Rules on the Management of On-Site Employees of the Defendant).

Note 3) The general terms of the service contract do not exist, and the concept exists only in the special conditions of the instant service contract.

Note 4) The general terms of the service contract do not exist, and the concept exists only in the special conditions of the instant service contract.

5) The Defendant may take measures for caution or warning, if the external business owner of the instant case violates the standard manuals or fails to comply with the Defendant’s corrective measures (Article 15(2) of the terms of a service contract), and may terminate the service contract of the instant case where the warning measures are accumulated at least three times or where the degree of violation of the standard manuals is significant (Article 16 of the terms of a service contract).

Note 6) contain no standard manual prior to the amendment.

Note 7) Although an employment contract with different content was written, it is only part (No. 4).

Note 8) In the standard manual, the provision that “the instant out-of-the-state business owner shall select the qualification criteria for employment prescribed by the Defendant’s Rules on the Management of Employees in Field, and shall immediately notify the Defendant in writing of the name, address, age, career, etc. of the safety patrol officer to the Defendant Corporation (Article 2- Section 5-1-A-4 of the Standard Manual).” As seen earlier, around 2012, the instant out-of-the-state business owner changed the qualification criteria for the instant safe patrol officer from “at least one year of driving experience” to “at least three years of driving experience” (Article 22-2).

Note 9) The evidence No. 18 alone lacks to reverse the recognition.

The Defendant alleged to the effect that “the education of the Defendant was conducted by the business owner of the instant case at the request of the business owner of the instant case, and thus, the business owner of the instant case was the subject of education.” However, it cannot be deemed that all education of the Defendant was conducted at the request of the business owner of the instant case. Furthermore, even if so, the education of the safety patrolr of the instant case seems to have been mainly in charge of the Defendant.

11) The definitions of terms used in this Act are as follows: 1. The term "temporary placement of workers" means that a temporary work agency employs a worker and has him/her engage in work for a user company under the direction and order of the user company in accordance with the terms of the temporary placement contract, while maintaining the employment relationship after the temporary work agency employs the worker.

(12) Article 6-2 (Obligation to Employ) (1) Where a user company falls under any of the following subparagraphs, he/she shall directly employ the relevant temporary agency worker. 4. Where the temporary agency worker is provided continuously for more than two years in violation of the provisions of Article 7 (3), a person who intends to engage in temporary agency business shall obtain permission from the Minister of Labor as prescribed by the Ordinance of the Ministry of Labor. The same shall also apply to the case where the important matters prescribed by the Ordinance of the Ministry of Labor from among the permitted matters.

(13) Where a user company falls under any of the following subparagraphs, he/she shall directly employ the relevant temporary agency worker. 5. Where he/she receives temporary agency services in violation of Article 7(3), a person who intends to engage in temporary agency business shall obtain permission from the Minister of Employment and Labor, as prescribed by Ordinance of the Ministry of Employment and Labor. The same shall also apply to the modification of important matters prescribed by Ordinance of the Ministry of Employment and Labor, among the permitted matters.

14) In fact, the Defendant’s opinion was presented that “as a result of the diagnosis service on the actual status of the operation of the outsourcing patrol contract conducted by the Defendant on June 2012, the Defendant is holding an illegal dispatch.”

(15) Article 5 (Duties, etc. subject to Dispatch of Workers) (1) Temporary work agencies shall be subject to those prescribed by Presidential Decree, which are deemed appropriate in consideration of expertise, technology, experience, the nature of work, etc., except for the direct production process of manufacturing

(16) Article 21 (Prohibition, Correction, etc. of Discriminatory Treatment) (1) A temporary work agency and a user company shall not discriminate against a temporary agency worker on the ground that the temporary agency worker is a temporary agency worker against workers performing the same or similar kind of duties within the user company's business. (2) If the temporary agency worker has received discriminatory treatment, the temporary agency worker may apply for correction thereof to the Labor Relations Commission.

(2) In applying Articles 43 and 68 through 92 of the Labor Standards Act, a user company shall be deemed an employer under Article 2 of the same Act for the purposes of applying the provisions of Articles 15 through 36, 39, 41 through 48, 56, 60, 64, 66 through 68, and 78 through 92 of the same Act, and a user company shall be deemed an employer for the purposes of Articles 50 through 55, 58, 59, 62, 63, and 69 through 75 of the same Act. In such cases, in applying the provisions of Articles 50 through 55, 58, 59, 62, and 69 through 75 of the same Act, a user company shall be deemed an employer.

Note 18) The Defendant asserts that “There exists a reasonable ground for wage discrimination in respect of individual wage items to be considered in the front and rear,” and this is separately examined in Paragraph 5 (Scope of Liability for Damages).

19) Although it is not appropriate to classify workers’ allowances as welfare expenses, they are classified as welfare expenses items according to the intent of the Parties. The workers’ allowances have been paid after 2015.

Since fixed allowances (20) were paid only after the Defendant’s direct employment obligation, it is not a matter of liability for damages due to the Defendant’s breach of duty of prohibition of discrimination.

Note 21) As seen earlier, the wage standard in 2015, which was subsequent to the Defendant’s direct employment obligation

Note 22) For ○ 1 year: 365 days = 52.14 weeks: 52.14 weeks ¡¿ 4 hours extended per week = 208.57 hours per week = 208.57 hours and 12 months = 17.3 hours