[1] The meaning of the main text of Article 6(3) of the former Act on the Protection, etc. of Temporary Agency Workers concerning the deeming of Direct Employment, and in such a case, whether the labor relation should be deemed as having no fixed term (affirmative in principle

[2] Where a user is deemed to have directly employed a temporary agency worker pursuant to the main sentence of Article 6(3) of the former Act on the Protection, etc. of Temporary Agency Workers, whether the working conditions of the temporary agency worker are the same as the working conditions applied to the worker performing the same or similar kind of work

[1] Article 6 (3) of the former Act on the Protection, etc. of Temporary Agency Workers (amended by Act No. 8076 of Dec. 21, 2006) / [2] Articles 1, 6 (3), and 21 of the former Act on the Protection, etc. of Temporary Agency Workers (amended by Act No. 8076 of Dec. 21, 2006), Article 6-2 (3) 1 of the Act on the Protection, etc. of Temporary Agency Workers

Plaintiff 1 and 11 others (Law Firm Fair, Attorney Kim Sung-chul, Counsel for the plaintiff-appellant)

The Chairman of the National Labor Relations Commission

Korean Racing Association (Law Firm, Kim & Lee LLC, Attorneys Lee Jae-hwan et al., Counsel for defendant-appellant)

Seoul High Court Decision 2011Nu34391 decided April 5, 2012

All appeals are dismissed. The costs of appeal are assessed against the defendant supplementary intervenor.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Article 6(3) of the former Act on the Protection, etc. of Temporary Agency Workers (amended by Act No. 8076, Dec. 21, 2006; hereinafter “former Dispatch Act”) provides that “If a user company continues to use a temporary agency worker for more than two years, it shall be deemed that the temporary agency worker is employed from the day following the expiration of the two-year period if the user company continues to use the temporary agency worker for more than two years” (hereinafter “direct employment provision”). This means that a direct employment relationship exists between the user company and the temporary agency worker immediately if the temporary agency worker continues to be more than two years. In such case, the employment relationship is deemed to have no fixed period, barring special circumstances (see Supreme Court en banc Decision 2007Du22320, Sept. 18, 2008, etc.).

In addition, Article 1 of the former Dispatch Act provides that the legislative purpose of the Act is to contribute to the employment stability and welfare promotion of temporary agency workers by establishing the standards for working conditions, etc. of temporary agency workers. Thus, the working conditions of temporary agency workers may not be deemed to be important. Article 21 of the former Dispatch Act provides that the temporary agency workers shall not receive discriminatory treatment compared with those of the same kind workers performing the same or similar duties within the business of the user company. In addition, treating the temporary agency workers formed a direct employment relationship with the user company equally with the user company in the same or similar duties of the user company is consistent with the concept of fairness. Article 6-2(3)1 of the amended Dispatch Act provides that it is reasonable to consider the working conditions of the user company to be applied to the case where the user company should directly employ the relevant temporary agency workers for more than two years.

In light of the above legal principles and records, the court below's decision that the working conditions prescribed in the rules of employment applicable to the worker should also be applied to the temporary agency worker when the worker is deemed to be employed in accordance with the provision on deeming direct employment pursuant to the same purport is just and acceptable. In so doing, contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles on working conditions due to the application of the provision on deeming direct employment.

2. As to the grounds of appeal Nos. 2 through 4

According to the reasoning of the judgment below and the reasoning of the judgment of the court of first instance, which partially accepted by the court below, the court below acknowledged the facts as stated in its reasoning, and judged that although the plaintiffs could not be deemed to have performed the same duties as the employees of the defendant's assistant intervenor, most of such duties are deemed to have been performed at least similar duties to the employees of the defendant's assistant intervenor, in light of the fact that most of such duties overlap with the employees of the defendant's assistant intervenor, and therefore, the working conditions applicable to the employees of the defendant's assistant intervenor apply to the plaintiffs. Furthermore, the court below determined that the defendant's assistant intervenor did not pay the plaintiffs the personnel appointment order (hereinafter "the personnel appointment order of this case") as of February 24, 2010 for the plaintiffs, on the grounds of the circumstances in its reasoning, the court below determined that the instant personnel appointment of this case

Examining the reasoning of the lower judgment in light of the record, the lower court’s aforementioned determination is acceptable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the rationality of working

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)