[1] The meaning of “other agricultural and forestry businesses” under Article 63 subparag. 1 of the Labor Standards Act, and the standard for determining whether a business constitutes “other agricultural and forestry businesses” in a case where an employer runs the agricultural and forestry business as its main business and runs other business distinct from this business

[2] In a case where Party A, a local forestry cooperative established under the Forestry Cooperatives Act, entered into a private-use employment contract with Party A, and Party B, etc., engaged in restoration work for forest damaged areas, etc. at the construction site of Party A sought payment of Party A, the case holding that the lower court erred by misapprehending the legal doctrine on the ground that the business operated by Party A at the construction site cannot be deemed as falling under the “other agricultural and forestry business” under Article 63 subparag. 1 of the Labor Standards Act,

[1] Article 63 Subparag. 1 of the Labor Standards Act provides that the provisions on working hours, rests, and holidays prescribed in Chapters IV and V of the Labor Standards Act shall not apply to workers engaged in the cultivation and reclamation of land, the cultivation, cultivation, and gathering of plants, and other agricultural and forest projects. The purpose of the above provisions is to prepare cases where it is rather unreasonable to apply the provisions on working hours, rests, and holidays as stipulated in the Labor Standards Act due to the nature of the business or the peculiarity of the business. As such, the term “other agricultural and forest projects” in this context refers to the projects similar to the “business of cultivating, cultivating, cultivating, cultivating, and gathering land, and cultivating plants” in the same subparagraph and directly related thereto, which are primary industries. If an employer concurrently engages in agriculture and forestry as a main business, whether the place of the business is separated from the main business place, whether the direction and supervision of workers is separated from the main business, and how each business is operated, etc. shall be determined as to whether the business constitutes “other agricultural and forest business.”

[2] In a case where Eul et al., a local forestry cooperative established under the Forestry Cooperatives Act, entered into a private-use employment contract with Gap forestry cooperative, and engaged in restoration work for forest damaged areas, etc. at the construction site of Gap cooperative, sought payment of Gap cooperative, the case held that the court below erred by misapprehending the legal principles, in light of the fact that Eul et al., provided labor by Gap et al., and Eul et al., provide labor at the construction site other than the permanent forest management business site; the construction site is divided from the permanent forest business site; the construction site is ordinarily separated from Eul et al.; while Gap ordinarily posted workers at the construction site; while Gap ordinarily hired workers at the construction site and the permanent forest business site is separately managed with human resources invested at the construction site and the construction site, it is distinguishable from Gap cooperative's main business; and that the project falls under "other agricultural and forest business" provided by Article 63 subparagraph 1 of the Labor Standards Act.

[1] Article 63 subparagraph 1 of the Labor Standards Act / [2] Article 63 subparagraph 1 of the Labor Standards Act

Plaintiff 1 and eight others (Attorney Park Byung-won et al., Counsel for the plaintiff-appellant)

Busan Metropolitan City Forestry Cooperatives (Attorney Park Jong-sung, Counsel for the defendant-appellant)

Busan District Court Decision 2017Na51495 Decided May 23, 2018

The judgment below is reversed, and the case is remanded to Busan District Court.

The grounds of appeal are examined.

1. The lower court, on the following grounds, determined that the Defendant’s business that the Plaintiffs provided labor constitutes “other agricultural and forest businesses” under Article 63 subparag. 1 of the Labor Standards Act, and on this premise, the provisions of the Labor Standards Act on recess and holiday against the Plaintiffs do not apply.

In other words, the plaintiffs engaged in restoration works for forest damaged areas, valleys preservation projects, mountain trails maintenance projects, landslide prevention projects, etc. in the Defendant’s construction site, and these forms of work may be considerably different from those in general construction site. However, the participatory projects are designed to maintain, develop, or restore forest functions through restoration, preservation, maintenance, prevention of disasters, etc. of forests, and the substantial nature of the projects is close to “forest business” or “forest-related service business,” which is a subordinate classification of “forest” as a whole, and there is a difference between the construction projects for general profit-making purposes. ② If the users conduct multiple types of business, the number of workers in each type of business may be considered as priority in order to determine which category of business falls under the category of business. The majority near 70% among the Defendant’s full-time employees engaged in the “forest-related service business,” and even if they are included in the daily workers, the defendant’s projects should be considered as the main forest business.

2. A. Article 63 Subparag. 1 of the Labor Standards Act provides that the provisions on working hours, rests, and holidays prescribed in Chapters IV and V of the Labor Standards Act shall not apply to workers engaged in the cultivation, reclamation, planting, cultivation, and gathering of land, and other agricultural and forest businesses. The purport of the above provisions is in preparation for cases where it is rather unreasonable to apply the provisions on working hours, rests, and holidays prescribed in the Labor Standards Act due to the nature of the business or the peculiarity of the business. As such, “other agricultural and forest businesses” as referred to in the above refers to the agriculture, forestry, and businesses directly related thereto, which are similar to the “business of cultivating, cultivating, cultivating, or collecting land” as referred to in the said subparagraph. If an employer concurrently runs the agricultural and forestry business as a main business, if the location of the business is separated from the main business place, whether the direction and supervision of workers is separated from the main business, and whether each business is a “other agricultural and forest business” as referred to in the said subparagraph.

B. We examine the reasoning of the judgment below in light of the above legal principles. The plaintiffs can find that the contents of their labor provided by the plaintiffs are not significantly different from general construction workers. According to the records of this case, ① The plaintiffs provided their labor at a construction site other than the defendant's main construction site, which is not the defendant's main construction site, and the construction site is divided into forest management business and the construction site. ② The defendant ordinarily worked at a construction site, while the defendant employed the same worker at a construction site, in consideration of the influence of the weather, while the construction site and the forest management site are separately managed the human resources invested at a construction site and the construction site and the forest management site are separately managed. On the other hand, if the facts are found, it is difficult to view the business operated by the defendant at a construction site as the defendant's main construction site as the "other agricultural and forest business" as stipulated in Article 63 subparagraph 1 of the Labor Standards Act. The court below erred by misapprehending the legal principles on "other agricultural and forest business" as stipulated in Article 63 subparagraph 1 of the Labor Standards Act, which points this out.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jung-hwa (Presiding Justice)