2020Nu42912 Revocation of the disposition of refusal to re-determine salary class

1. A;

2. B

[Defendant-Appellant] Defendant 1

The Head of Seoul Regional Employment and Labor Agency

Seoul Administrative Court Decision 2018Guhap89190 decided July 11, 2019

Seoul High Court Decision 2019Nu53411 Decided December 20, 2019

Supreme Court Decision 2020Du32012 Decided June 4, 2020

September 23, 2020

October 7, 2020

1. Revocation of a judgment of the first instance;

2. On July 6, 2018, the Defendant’s rejection disposition against the Plaintiffs regarding re-Definition of the salary grade is revoked.

3. All costs of the lawsuit are borne by the Defendant.

The text shall be as shown in the text.

1. The background of the disposition, 2. Whether the disposition of the instant case is legitimate

The court's reasoning on this part is that the corresponding part of the judgment of the court of first instance is the same, except for adding "each description of evidence No. 1 through No. 6" to "No. 2, No. 12, No. 2018, Jan. 2, 2018" to "No. 2, No. 2018, Jan. 22, 2018."

2. Determination as to whether the instant disposition is lawful

1) Relevant provisions and legal principles

A) As a matter of principle, the law is a norm which has the same binding force against many and unspecified persons, so that it can be objectively reasonable by clarifying the standard meaning of the law, and it should be ensured that the legal stability is not undermined by maintaining consistency as much as possible. On the other hand, since the law is established in consideration of a universal and typical matter, it is also required to interpret that the law can be the most reasonable solution to the specific matter when applying the law in a variety of cases that occur in society reality. In short, the goal of statutory interpretation is to faithfully interpret the language used in the law to the extent that it does not undermine legal stability. To this end, as a matter of principle, the legislative intent, purpose, legislative history, harmony with the entire legal order, and relationship with other statutes should be further adopted to the extent that it conforms to the above request for statutory interpretation (see, e.g., Supreme Court en banc Decision 2013Da33181, Jan. 17, 2013).

B) Article 47(1) of the State Public Officials Act provides that matters concerning the salary grade and promotion of public officials shall be prescribed by Presidential Decree. The Rules on the Remuneration of Public Officials (amended by Presidential Decree No. 23497, Jan. 6, 2012) based on delegation shall define the beginning salary grade of public officials in accordance with attached Table 15, and the Regulations on the Remuneration of Public Officials (amended by Presidential Decree No. 23497, Jan. 6, 2012) stipulate that the beginning salary grade of public officials shall be calculated by class pursuant to attached Table 1 through attached Table 16 of the beginning salary grade table of public officials (attached Table 15) and define the beginning salary grade by class, and further, [Attachment Table 16] provides that the career experience in the same field shall be 100% in the case of "private vocational counselor who has worked as full-time employees pursuant to Article 4-4(1) of the Employment Security Act, and that the same non-sector career shall be 80% in the case of full-time."

C) Article 4-4(1) and (2) of the Employment Security Act provides that an employment security office may place a job counselor who is not a public official in charge of job placement, vocational guidance, and provision of employment information (hereinafter referred to as “private job counselor”), and the standards for placement of private job counselors and other necessary matters shall be determined by Ordinance of the Ministry of Employment and Labor. Following such delegation, Article 1-2(1) and (2) of the Enforcement Rule of the Employment Security Act provides that when the Minister of Employment and Labor places a private job counselor, he/she shall take into account the population, number of workers, and number of business places in the region where the employment security office is located, and the qualifications, procedures for selection, and employment of

According to delegation, the Minister of Employment and Labor adopted a system of "work counselor for short-term hours" under the former Regulations on Job Advisors (wholly amended by Ordinance of the Ministry of Labor on January 20, 2010; hereinafter the same shall apply) to the duties, qualifications, selection procedures, employment, and other matters necessary for personnel management of private job counselors who are assigned to local labor offices under the former Regulations on Work Advisors. However, to lead the creation of part-time jobs in the public sector and to provide high-quality work to career-interrupted women who have a burden on childbirth and childcare, the former Regulations on Work Advisors for Short-time Hours (established by Ordinance of the Ministry of Labor on March 1, 2010; hereinafter the same shall apply) shall apply. Articles 2 and 3 of the former Regulations on Work Advisors shall be divided into "work counselor for short-time hours" and "work Counselor for part-time workers" as prescribed in Article 2 of the former Labor Standards Act, and the former Regulations on Work Advisor shall be applied except for those prescribed by the former Labor Standards Act.

On the other hand, after the disposition of this case was taken, the term "short-time job counselor" and "ordinary job counselor" mean a person employed for eight hours a day and forty hours a week among job counselors, and the term "short-time work counselor" defined as a person employed for five hours a day and twenty-five hours a week a week, among job counselors, in order to solve the problems that are operated as separate regulations, even though they perform the same duties as the same status, the former Regulations was repealed by the Ministry of Employment and Labor Directive 251 on October 11, 2018, and the former Regulations on the Operation of Employment and Labor Directive 267 on January 30, 2019.

D) Article 2 Subparag. 9 and Article 18 of the Labor Standards Act define that the contractual work hours per week are shorter than those of ordinary workers engaged in the same kind of work at the workplace. The working conditions of part-time workers shall be determined according to the ratio calculated on the basis of the working hours of ordinary workers engaged in the same kind of work at the workplace, and matters which form the basis for such determination and other necessary matters shall be prescribed by Presidential Decree, and Articles 55 and 60 shall not apply to workers whose contractual work hours per week are less than 15 hours on the average of four weeks (if they work for less than four weeks, the corresponding period).

(ii) the meaning of full-time work

Examining the contents, structure, etc. of the relevant provisions in light of the aforementioned legal principles, the term "standing" in the instant provision refers to a case where a worker worked on a daily basis as prescribed by the rules of employment, etc. of the relevant workplace and has worked on a regular basis for a certain period of time, and it shall not be deemed that the term "the so-called "the so-called "the so-called" working for eight hours a day and forty hours a week. The detailed reasons are as follows.

A) Since the Public Officials Remuneration Regulations do not specifically stipulate the meaning of "standing", the meaning of "standing" in the instant provision is to faithfully interpret the meaning of "standing" in principle, in light of the ordinary meaning of the terms, the legislative history and legislative intent of the instant provision, relationship with other statutes, etc.

B) Article 6(2)4 of the Enforcement Decree of the National Health Insurance Act provides that the term "standing worker or part-time worker whose contractual working hours are less than 60 hours" means a worker who has worked for a certain period of time on a day and who has worked for a certain period of time. In other words, the term "airworthiness" and "regular working hours" are not directly related to "minimum working hours". Article 9(1) of the Enforcement Decree of the National Health Insurance Act, upon delegation by Article 6(2)4 of the National Health Insurance Act, provides that "non-standing worker or part-time worker whose contractual working hours are less than 60 hours" is excluded from the National Health Insurance Act, and the term is premised on the distinction between "standing worker or part-time worker" and "regular working hours".

C) The former Employment Security Act is a subordinate provision of the Employment Security Act to determine matters necessary for the personnel management of private workers. It is not a provision that is established with the view to recognizing the work experience at the time of defining the beginning salary class when a private vocational counselor is employed as a public official. The former Regulations on Minimum-hour Work Counselor classify the private vocational counselor as the "part-time work counselor" and the "ordinary work worker" according to the classification of the part-time worker and the ordinary worker under the Labor Standards Act, but there is no difference in the qualifications, status, and duties between them, except that the daily work hours vary. The Labor Standards Act only allows them within a certain scope to regulate the work conditions of the "part-time worker" as the "part-time worker" and does not stipulate that the "part-time worker" does not fall under the "part-time work worker". Therefore, the former Regulations on the Part-time Work Finding does not include both the "part-time work worker" as the "part-time work worker" and the "part-time work counselor" as the "part-time worker" in the current Regulations on Work 3 Workers's.

D) In order to improve the criteria for recognition of similar work experience as amended by Presidential Decree No. 23497 on January 6, 2012, the Public Officials Remuneration Regulations added the phrase “one-time work experience in various service teams listed in the attached Table 16, attached Table 17, and attached Table 19, including the instant provision.” At the time, the reason for amendment was limited to only some of the work experience in the same field prior to the appointment of public officials. However, in order to actively attract outstanding work experience in the same field, 100% of the work experience in the private sector is recognized in order to rectify discrimination against the non-regular work experience in the non-regular work, and it was intended to reflect the same work experience as a full-time work experience in the same field as a part-time work experience in the public official in order to actively recognize the work experience of the non-regular work experience prior to the appointment of public officials in the attached Table 16, the amendment of the Public Officials Remuneration Regulations is not intended to limit the scope of remuneration to 20 years.”

E) Meanwhile, as the amendment of the Public Officials Remuneration Regulations in 2012 expanded the scope and ratio of similar career experience, it stated that "where public officials' salary management standards are applied to the same working hours as the regular employees of the relevant agency and work for the Full-titime" in order to explain the revised contents in the Public Officials Remuneration Planning Department of the Ministry of Public Administration and Security in May 2012, and "the public officials' salary management standards which are materials prepared and distributed in the Public Officials' Salary Management Department of the Ministry of Public Administration and Security," and "the main contents of the amendment" are "where the relevant agency is applied to the same working hours as the regular employees of the relevant agency and the Full-time" (Evidence 87 pages). Accordingly, in the detailed criteria for recognition of similar career experience established in the Ministry of Employment and Labor in the Ministry of Employment and Labor around October 2012, the concept of "standing" is applied to the same working hours as the regular employees of the relevant agency and work for Ful-titi" (Article 208).

3) Whether a full-time employment counselor is a full-time employee

As seen earlier, the former Regulations for Work Advisors are governed by the delegation of Article 4-4(2) of the Employment Security Act, as in the former Regulations for Work Advisors, so the former Regulations for Work Teachers are one of the "private employment counselors" under Article 4-4(1) of the Employment Security Act.

Article 28 of the former Part-time Work Counselors Regulations that apply to the plaintiffs during the period of their work as a "worker for Minimum-time Work" shall be from every week to every week, and the Saturday shall be from every week to every week (Paragraph 1), the hours shall be from 10:00 to 16:00, and the hours shall be from 10:00 to 16:00, and the hours shall be in accordance with the Labor Standards Act, and the hours shall be in accordance with the Labor Standards Act, to the extent separately designated during the working hours in consideration of the volume of their work.

In light of the contents of these regulations, the plaintiffs shall be deemed to have worked for 5 days a week, which is the ordinary working day of each government office, during the period of work as a "short-time work counselor", as they worked for 5 hours a day (except for break hours) on a daily basis. Accordingly, according to the provisions of this case, the plaintiffs' work experience as a "short-time work counselor" should be reflected in defining the beginning salary class of public officials.

Therefore, in the instant provision, the term "standing worker" means only 40 hours a week 5 days a week, and on the premise that the plaintiffs' work experience as a part-time job counselor does not fall under the plaintiffs' work experience, and thus, the instant disposition should be revoked as it is unlawful, under the premise that it does not fall under the work experience to define the beginning salary class.

3 Conclusion

Therefore, the plaintiffs' claims are justified, and the judgment of the court of first instance is unfair with different conclusions, so the appeal of the plaintiffs is accepted and the judgment of the court of first instance is revoked and the disposition of this case is revoked.

The presiding judge shall be appointed by a judge.

Judge Maximum Order

Judges Hong Man-man