Whether the working conditions of the 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 the working conditions prescribed by the rules of employment, etc. applicable to the temporary agency worker among the employees of the user

Article 1 of the former Act on the Protection, etc. of Temporary Agency Workers (amended by Act No. 8076 of Dec. 21, 2006; hereinafter the same “former Dispatch Act”) provides that the legislative purpose is to contribute to the stabilization of employment and welfare of temporary agency workers by establishing the standards for the working conditions, etc. of temporary agency workers. Thus, the improvement of the working conditions of temporary agency workers is also very important. Article 21 of the former Dispatch Act provides that temporary agency workers shall not receive discriminatory treatment compared to those of the same worker who are performing the same kind of duties within the business territory of the user company. In addition, treating the temporary agency workers who form a direct employment relationship with the user company is consistent with the concept of fairness. Article 6-2(3)1 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 same Act provides that, if the user company continues to use the temporary agency workers for more than two years, it should be applied to the same working conditions.

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

Plaintiff 1 and two others (Law Firm Han, Attorneys Du-pop et al., Counsel for the plaintiff-appellant)

South Sea Chemical Co., Ltd. (Law Firm Sang-ok, Attorneys Gyeong-Gyeong et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2012Na101475 decided September 6, 2013

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

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. (1) Under Article 2 subparagraph 1 of the former Act on the Protection, etc. of Temporary Agency Workers (amended by Act No. 8076 of Dec. 21, 2006, hereinafter “former Dispatch Act”), a worker dispatch means that a temporary work agency employs a worker and under the direction and order of the user company in accordance with the terms of the worker dispatch contract while maintaining the employment relationship.

In a case where the plaintiff's employer requires a certain worker to perform the work for a third party, whether the legal relationship constitutes a temporary placement of workers subject to the former Dispatch Act does not go against the name or form of a contract attached by the party, but rather, whether the third party directly or indirectly orders the worker to perform the work itself, such as giving binding instructions on the work performance itself, or whether the worker is actually incorporated into the third party's business, such as the labor group composed of the worker belonging to the third party and the direct joint work, etc.; whether the plaintiff's employer independently exercises the authority to determine the number of workers to be placed in the work or the number of workers, education and training, work hours, leave, inspection of work attitude, etc.; whether the purpose of the contract is to determine the specific scope of the work performed by the worker concerned is distinct from the work performed by the third party; whether such work is professional and technical; and whether the plaintiff's employer has independent business organization or facilities necessary to achieve the purpose of the contract.

Meanwhile, Article 6(3) of the 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 second-year period expires” (hereinafter “direct employment deeming provision”). Such direct employment deeming provision does not apply only to lawful temporary agency workers (see, e.g., Supreme Court en banc Decision 2007Du22320, Sept. 18, 2008; Supreme Court Decision 2010Da93707, Feb. 26, 2015).

(2) After compiling the adopted evidence, the lower court determined that the contract between the Defendant and the non-party company constitutes a temporary placement contract in substance and was in a worker dispatch relationship under direct command and supervision of the Defendant after being employed by the non-party company and being dispatched to the work site of the non-party company. Thus, even if the contract constitutes an illegal temporary placement, the main sentence of Article 6(3) of the former Dispatch Act applies to the case where the contract constitutes an illegal temporary placement, and thus, the Plaintiff 1 and the non-party 2 were from July 1, 2000 at the expiration of two years after the enforcement of each former Dispatch Act, and the Plaintiff 3 deemed the employment from January 17, 2002, after the second anniversary of the date of the dispatch to the Defendant.

(3) Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the starting point of deeming direct employment by contract succession or temporary agency worker, or incomplete deliberation.

B. (1) The provision on deeming direct employment under the main sentence of Article 6(3) of the former Dispatch Act provides for the legal relationship between a user company and a temporary agency worker in order to prevent commercialization and long-termization of temporary agency workers by deeming the establishment of a direct employment relationship in the judicial relationship between a user company and a temporary agency worker separate from administrative supervision or punishment on the continuous use of a temporary agency worker in violation of the restriction on the period of secondment, and to promote employment stability of temporary agency workers (see Supreme Court en banc Decision 2007Du22320, Sept. 18, 2008). The content of the provision on deeming direct employment is not directly related to a temporary work agency and does not require the identity of a temporary work agency during the period of secondment. Thus, if a user company allows the relevant temporary agency worker to continue to engage in the relevant work in violation of the restriction on the period of secondment, it is reasonable to deem that the provision on deeming direct employment cannot be excluded solely on the ground that the temporary work agency is changed during the period of secondment (see Supreme Court Decision 2014Da16363, Nov. 26, 2015, 2015).

(2) On the grounds indicated in its reasoning, the lower court rejected the Defendant’s assertion that: (a) the Plaintiffs, the temporary work agency, were changed after the date of deeming direct employment pursuant to the main sentence of Article 6(3) of the former Dispatch Act; (b) concluded a new employment contract with the changed temporary work agency; (c) the Plaintiffs, who were the temporary work agency, should be deemed to have explicitly expressed their dissenting opinions refusing to apply the principle of direct employment based on such circumstances, even if they were to have concluded a new employment contract with the changed temporary work agency; (d) from July 1, 2000, when the two years have elapsed since the enforcement of each former Dispatch Act by Plaintiffs 1 and 2, and from January 17, 2002, immediately after the second anniversary of the date

(3) Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the contract owner's order.

2. Regarding ground of appeal No. 2

A. Article 1 of the former Dispatch Act provides that the legislative purpose of the Act on the Protection, etc. of Temporary Agency Workers is to contribute to the stability of employment and welfare of temporary agency workers by establishing standards for working conditions of temporary agency workers. Thus, the improvement of the working conditions of temporary agency workers may not be deemed important. Article 21 of the former Dispatch Act provides that the temporary agency workers shall not receive discriminatory treatment compared to the same kind of workers performing the same kind of or similar duties within the employer's own business, and that treating the temporary agency workers who form a direct employment relationship with the user company equally with the user company is consistent with the concept of fairness. 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 provides that if the user company directly employs the relevant temporary agency workers for more than two years, it is reasonable to directly determine the working conditions of the temporary agency workers to be applied to the same or similar work conditions as those of the user company.

B. After compiling the adopted evidence, the lower court acknowledged the facts as indicated in its reasoning. The lower court determined that the Plaintiffs’ working conditions applicable to the Plaintiffs should be the part applicable to Grade 4 on-site drivers (professionals) among the collective agreements concluded between the Defendant’s employment rules and the labor union consisting of the Defendant’s employees and the Defendant’s employees, on the ground that they are engaged in the same or similar work as class 4 on-site drivers

C. Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on working conditions

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 Jo Hee-de (Presiding Justice)