[1] Whether Article 4(2) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers is a mandatory provision (affirmative), and whether the agreement is effective where the parties to a labor contract agree to exclude the above provision (negative)

[2] The meaning of the principle of trust and good faith and requirements for denying exercise of rights on grounds of violation of the principle of trust and good faith

[1] Article 4(2) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers / [2] Article 4(2) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers and Article 4(2) of the Administrative

[1] Supreme Court Decision 2014Du45765 Decided November 10, 2016 (Gong2016Ha, 1930) / [2] Supreme Court en banc Decision 2012Da89399 Decided December 18, 2013 (Gong2014Sang, 236)

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

The Chairman of the National Labor Relations Commission

Busan Metropolitan City Dong-gu

Daejeon High Court Decision 2016Nu10983 decided November 23, 2016

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. As to the validity of the instant agreement and the violation of the principle of good faith

(1) Article 4(1) main text of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “fixed-term Act”) provides that “An employer may employ a fixed-term worker within a period not exceeding two years (in cases of repeated renewal of a fixed-term employment contract, the total period of continuous employment shall not exceed two years).” Meanwhile, the proviso to paragraph (1) provides that “If a fixed-term worker is employed in excess of two years despite the absence or extinguishment of the grounds under the proviso to paragraph (1), the fixed-term worker shall be deemed an employee who has entered into an employment contract without a fixed period of time.” The legislative purport of the aforementioned provision is to guarantee workers’ status by preventing abuse of a fixed-term employment contract (see Supreme Court Decision 2014Du45765, Nov. 10, 2016). Therefore, Article 4(2) of the Fixed-term and Part-Time Workers Act does not recognize that the parties to an employment contract have agreed to exclude the fixed-term employment contract from the Act.

Meanwhile, the principle of trust and good faith (hereinafter “the principle of trust and good faith”) refers to an abstract norm that a party to a legal relationship should not exercise a right or perform an obligation in a manner that violates the principle of trust and good faith by taking into account the other party’s interest. In order to deny the exercise of the right on the ground that it violates the principle of trust and good faith, it should have been given to the other party or objectively deemed that the other party has good faith. The exercise of the right against the other party’s trust and good faith should reach an extent that is not acceptable in light of the concept of justice. In a case where the contents of a labor-management agreement, such as a collective agreement, are null and void on the ground that it is an exercise of a right contrary to the principle of trust and good faith, barring special circumstances acceptable to preferentially apply the principle of trust and good faith, such assertion does not violate the principle of trust and good faith (see, e.g., Supreme Court en banc Decision 2012Da83939, Dec. 18, 2013).

(2) The court below rejected the plaintiffs' assertion that "the plaintiffs should be regarded as an employee who has entered into an employment contract without a fixed period of time pursuant to Article 4 (2) of the Fixed-term Act, on the grounds the plaintiffs' assertion that the agreement in this case was valid, and even if it is invalid, the plaintiffs' assertion that the agreement in this case should be invalid is not permissible since it violated the good faith principle."

(3) According to the reasoning of the lower judgment and the record, the following facts are revealed.

① On October 1, 201, Plaintiff 2 was employed as a fixed-term nurse in the field of the ○○○ Public Health Center operated by the Intervenor, and served until December 31, 201, as a visiting nurse in the field of the visiting health management services, from January 1, 2012 to December 31, 2012. Plaintiff 1 was employed in the ○○ Public Health Center as a fixed-term radioactive worker in the field of the health management services, and was employed until May 31, 2012, and was on duty as the visiting nurse in the field of the visiting health management services. Plaintiff 2 was on duty as the visiting nurse in the field of the health management services, from January 1, 2012 to December 31, 2012.

② Since January 1, 2013, an integrated health promotion project called an integrated health promotion project as of January 1, 2013, the Intervenor entered into an employment contract with 14 persons who were engaged in visiting health care centers (from January 1, 2013 to December 31, 2013) with 14 persons who were engaged in visiting health care projects at ○○○ Public Health Center, including the Plaintiffs, and had them take exclusive charge of visiting health care projects at local communities in 2013.

③ Around December 2013, the Plaintiffs applied for the public notice of recruitment of fixed-term workers for the National Health Promotion Project for Local Community Integration performed by the Intervenor, and Plaintiff 2 was employed as visiting nurse, Plaintiff 1 as visiting nurse, and each labor contract was concluded between the Intervenor and the Intervenor from January 1, 2014 to June 30, 2014.

④ Until around the end of the term of the above employment contract, the Intervenor, and the National Democratic Union Trade Union, to which the Plaintiffs and the Plaintiffs belong, agreed on June 30, 2014, that “the period of the Plaintiffs’ continuous employment has been terminated before January 1, 2013,” and that “the extension of the term of the Plaintiffs’ continuous employment by December 31, 2014.”

⑤ On November 26, 2014, the Intervenor notified the Plaintiffs of the termination of the term of employment contract as of December 31, 2014.

(4) Examining these facts in light of the legal principles as seen earlier, the instant agreement is deemed null and void as it excludes the Plaintiffs from the total period of continuous work as defined in Article 4(2) of the Fixed-term Workers Act during which they concluded a fixed-term employment contract and provided labor to intervenors on January 1, 2013. In addition, examining various circumstances revealed through the records, including the process of concluding a fixed-term employment contract between the Plaintiffs and intervenors and the process up to the agreement in this case, it is difficult to view that the Plaintiffs’ assertion that the Plaintiffs should be deemed an employee who entered into an employment contract without a fixed period of time pursuant to Article 4(2) of the Fixed-term Workers Act, contrary to the concept of justice, falls under the extent that it is not acceptable in light of the concept of justice, or that there is any special circumstance that is contrary to the good faith principle by preferentially applying the good faith principle.

(5) Nevertheless, the lower court determined otherwise that the agreement in this case is valid, and that the assertion that the Plaintiffs are deemed to be an employee with no fixed period of time even if it is null and void is not permissible as it violates the good faith principle. In so determining, the lower court erred and adversely affected the conclusion of the judgment by misapprehending the legal doctrine on the validity of agreement

2. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices

Justices Min You-sook (Presiding Justice)