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

[2] Where a direct employment relationship is established between a user company and 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 employment relationship should be deemed as having no fixed term (affirmative in principle)

[3] Whether working conditions of a temporary agency worker deemed directly employed by the user company pursuant to the main sentence of Article 6 (3) of the former Act on the Protection, etc. of Temporary Agency Workers are the same as working conditions stipulated in the rules of employment, etc. applicable to workers performing the same or similar kind of duties as the temporary

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

[1] [3] Supreme Court Decision 2013Da74592 Decided January 14, 2016 (Gong2016Sang, 271) / [1] Supreme Court en banc Decision 2010Da93707 Decided February 26, 2015 (Gong2015Sang, 515) Decided February 26, 2015 (Gong2013Da14965 Decided November 26, 2015) / [2] Supreme Court Decision 2007Du22320 Decided September 18, 2008 (Gong208Ha, 1463)

Plaintiff 1 and one other (Law Firm Inn, Attorneys Kwon Du-pop et al., Counsel for the plaintiff-appellant)

Pacific Hotel Co., Ltd. (Attorney Han-soo et al., Counsel for defendant-appellant)

Pool Company

Seoul High Court Decision 2010Na32278 decided January 13, 2012

All appeals are dismissed. The costs of appeal are assessed against each party.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

A. As to the first ground for appeal

According to Article 2 subparagraph 1 of the Act on the Protection, etc. of Temporary Agency Workers (hereinafter “Temporary Agency Act”), 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 agency contract while maintaining the employment relationship.

In a case where the Plaintiff’s employer requires a certain employee to perform duties for a third party, whether the legal relationship constitutes a temporary placement of workers subject to the Dispatch Act does not go against the name or form of a contract attached by the relevant party, but rather, whether the third party directly or indirectly gives binding instructions on the performance of such duties, such as giving a binding order to the relevant worker, directly or indirectly, to the relevant worker, or whether the relevant worker is actually incorporated into a third party’s business, such as the selection of workers to be placed in the work, or the number of workers, education and training, working hours, leave, inspection of work attitude, etc., whether the contract purpose is independently exercised the authority to determine the number of workers to be placed in the work, or the number of workers, education and training, working hours, leave, etc., which are to be placed in the work, the specific scope of the contract purpose is determined separately from the work performed by the relevant employee of the third party, whether such work is specialized and technical, and whether the Plaintiff’s employer has an independent company or facility necessary to achieve the purpose of the contract (see, e.g.

The lower court acknowledged the facts as indicated in its reasoning based on the adopted evidence, and determined that the Plaintiffs were in the temporary agency worker status on the ground that the Intervenor’s employee, including the Plaintiffs, engaged in cleaning, etc. at the hotel of this case under the Defendant’s direct direction and order, although the work contract was concluded formally between the Defendant’s Intervenor who employed the Plaintiffs and the Defendant who operated the hotel of this case, but in substance, the Intervenor was in the temporary agency worker status.

In light of the above legal principles and records, the above determination by the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the interpretation of contract.

B. Regarding ground of appeal No. 2

Article 6(3) of the former Dispatch Act (amended by Act No. 8076 of Dec. 21, 2006) 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.” (hereinafter “direct employment deeming provision”). This means that where a temporary agency worker exists and the temporary agency worker continues to be more than two years, a direct employment relationship between the user company and the temporary agency worker is established. In such case, the employment relationship shall be deemed to have no fixed period, barring any special circumstances (see Supreme Court en banc Decision 2007Du22320, Sept. 18, 2008).

In addition, Article 1 of the 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, and Article 21 of the Dispatch Act provides that the temporary agency workers shall not receive discriminatory treatment compared to those of the same kind of workers performing the same or similar duties within the business of the user company. In addition, treating the temporary agency workers who form 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 temporary agency workers if the user company should directly employ the relevant temporary agency worker for more than two years.

In light of the above legal principles and records, the court below is just in rejecting the defendant's assertion that there are special circumstances to consider the working conditions of the plaintiffs to be the same as those of the plaintiffs while performing duties the same as or similar to those of the plaintiffs, which are applied to other workers who do not set working periods, and there is no error of law by misunderstanding the legal principles as to the effect of applying the provision on deeming direct employment, as otherwise alleged in the grounds of appeal.

C. Regarding ground of appeal No. 3

For the reasons indicated in its reasoning, the lower court rejected the Defendant’s assertion on the further interim income deduction on the part, on the grounds that it is impossible to specify the amount of deduction reflecting intermediate income after December 1, 2008 and Plaintiff 2’s interim income after January 1, 2009.

In light of the relevant legal principles and records, this measure of the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, there is no violation of law by omitting judgment and affecting the conclusion of

2. Regarding the plaintiffs' grounds of appeal

The lower court determined that the Defendant’s claim for wages occurred before October 24, 2006 and 3 years from the date of filing the instant lawsuit had already expired, and rejected the Plaintiffs’ assertion that the Defendant’s defense for the completion of extinctive prescription constitutes an abuse of rights against the principle of good faith or is in violation of the principle of good faith.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine on the abuse of extinctive prescription, contrary to what is alleged in the grounds of appeal.

The Supreme Court precedents cited in the grounds of appeal are different cases and are inappropriate to be invoked in this case.

3. Conclusion

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

Justices Kim So-young (Presiding Justice)