[1] The standard for determining whether the Plaintiff employee is “temporary placement of workers” subject to the Act on the Protection, etc. of Temporary Agency Workers in case where the Plaintiff employee allows the employee to perform duties for a third party

[2] In a case where Gap corporation established by dividing the Korea Electric Power Corporation from the Korea Electric Power Corporation entrusted the radiation protection area, etc., which is a business under the jurisdiction of the radiation safety team of a nuclear power plant, and Eul et al., et al., employed by a service company, requested Gap to verify the status of worker Eul, the case affirming the judgment below which held that Gap et al. and Eul et al. do not constitute a temporary placement relationship, since it is difficult to view that service companies Eul et al. employed by Eul et al. had Eul et al. engaged in labor for Gap et al. under the direction and order of Gap

[1] Under Article 2 subparagraph 1 of the Act on the Protection, etc. of Dispatched Workers (hereinafter “Dispatch Act”), temporary placement of workers means that a temporary work agency employs workers and has them engage in work for a user company under the direction and order of the user company in accordance with the terms and conditions of the temporary placement contract while maintaining the employment relationship. In a case where a user company allows a certain employee to perform the work for a third party, whether the legal relation is a temporary placement of workers subject to the Dispatch Act does not go to the name or form of the contract attached by the party, but rather, whether a third party is actually incorporated into a third party’s business, such as directly or indirectly giving binding instructions on the performance of the work, such as selection of workers who are to be placed in the work for the third party, or number of workers, training and training, work hours, leave, inspection of attitude, etc., whether the purpose of the contract is independently and specifically determined to determine whether the purpose of the contract is to perform the work for the third party’s own independent and technical purpose and to achieve expertise and purpose of the contract in question.

[2] In a case where Gap corporation established by division from the Korea Electric Power Corporation entrusted the radiation protection area, etc., which is the business under the jurisdiction of the nuclear power plant, and Eul et al., et al., employed by the service company for access to the radiation control area and work management, sought confirmation of the status of workers Eul et al. against the service company, the case affirming the judgment below holding that the service company Gap et al. independently employed the service company's work order and its purpose cannot be seen as being sufficiently incorporated into Gap's work since the service company's work is determined as specific scope of work, Eul et al., Gap et al., the service company's work and work assigned to Gap et al., can not be seen as having been actually incorporated into Gap's work, since it is difficult to view Eul et al.'s service company's selection of workers who will put into work, education and training, work hours, leave, inspection of work attitude, etc., Gap et al., and there is no reasonable evidence to acknowledge Gap's work order and order.

[1] Article 2 subparagraph 1 of the Protection, etc. of Dispatched Workers Act / [2] Article 2 subparagraph 1 of the Protection, etc. of Dispatched Workers Act

[1] Supreme Court Decision 2010Da106436 Decided February 26, 2015 (Gong2015Sang, 515)

Plaintiff 1 and ten others (Attorney Shin Young-hun et al., Counsel for the plaintiff-appellant)

Korea hydroelectric Power and Nuclear Co., Ltd. (LLC, Kim & Lee LLC, Attorneys Lee Jae-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2016Na11051 decided April 7, 2017

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. A. According to Article 2 subparag. 1 of the Act on the Protection, etc. of Temporary Agency Workers (hereinafter “Dispatch Act”), temporary placement of workers means that a temporary work agency employs workers and has them engage in work for a user company under the direction and order of the user company in accordance with the terms of the contract on temporary placement of workers while maintaining the employment relationship. In a case where a user company allows a certain employee to perform the work for a third party, whether the legal relationship is a temporary placement of workers subject to the Dispatch Act does not go against the name or form of the contract attached by the party, but rather, whether a third party directly or indirectly instructs the relevant worker to perform the work itself, such as direct and indirect binding instructions, and whether the relevant worker is actually incorporated into a third party’s business, such as selection of workers and number of workers to be invested in the work, training, working hours, leave, attitude of work, etc., whether the purpose of determining the right to independently exercise the contract’s authority to perform the work is determined separately from the relevant employee’s work’s work and technical nature.

B. The lower court acknowledged the facts in full view of the adopted evidence, and determined that the Plaintiffs and the Defendant did not constitute a worker dispatch relationship, since it is difficult to view that service companies that employed the Plaintiffs had the Plaintiffs engage in work for the Defendant under the direction and order of the Defendant, on the following grounds.

1) The Korea Electric Power Corporation and the Defendant established on April 2, 2001 (hereinafter “Defendant”) established without distinguishing the Korea Electric Power Corporation and the Defendant from the Korea Electric Power Corporation (hereinafter “Korea Electric Power Corporation”) have operated the radiation protection sector (radiation control area, work control, salt and washing), radioactive waste disposal sector (radioactive waste disposal), health and physical aspects (radiation reading and employees’ dose control, radiation dose measurement and measurement equipment), and quality control sector on commission to the service company. The Plaintiffs were employed by the service company for the performance of the duties of access to radiation control and work, and only those who have passed the performance evaluation of prior work ability, with experience in the field of radiation control for at least three years, or with experience in the field of radiation protection for at least one year in the field of radiation protection since 197.

Since the duties of the Health and Physical Assistance Institute, who is a worker belonging to the defendant, are overall monitoring and management of all radiation control areas (radiation control areas, waste buildings, nuclear reactor maintenance offices, etc.), the duties of the workers belonging to the service company and the duties of the workers belonging to the defendant are distinguished.

2) In light of the fact that the employees belonging to the service company including the Plaintiffs and the health and physical personnel belonging to the Defendant were not organized under one group, it is difficult to view that the Plaintiffs were actually incorporated into the Defendant’s business.

3) In light of the fact that both the Plaintiffs’ work schedule and work hours are set directly by service companies, and that employees of service companies, such as the Plaintiffs, are employed by the service companies themselves in preparation for the absence of work due to other reasons such as leave, etc., and that there is no case where the employees employed by the Defendant are replaced by the Plaintiffs, the service companies are conducting education and training for their employees, including the Plaintiffs, and that they are directly managing the work attitude for their employees, it is reasonable to view that the service companies employed by the Plaintiffs are independently exercising their authority to decide on the number of workers to be employed in the work, or the number of workers, education and training, working hours, leave, inspection of work attitude, etc.

4) There is no evidence to acknowledge that the Defendant issued a considerable direction and order to the Plaintiffs, such as giving binding instructions on the performance of duties itself.

5) The plaintiffs' service firms seems to have independent business organizations or facilities necessary to achieve the purpose of the contract.

C. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the criteria for judgment on temporary placement of workers, or by exceeding the bounds of the principle of free evaluation of evidence against logical

2. 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 Noh Tae-tae (Presiding Justice)