[Plaintiff, Appellee]
[Defendant, Appellant] Namhae Chemical Corporation (Attorney-at-law Law Firm Sangnok, in charge of the case, Min Kyung-han and 2 others)
[Judgment Below] Seoul High Court Decision 2012Na101475 decided September 6, 2013
[Order]
All appeals are dismissed. The costs of appeal are borne by the Defendant.
[Reasoning] The grounds of appeal are examined.
1. As to Ground of Appeal No. 1
A. (1) Under Article 2, Item 1 of the former Act on the Protection, Etc. of Dispatched Workers (before amendment by Act No. 8076 of December 21, 2006; hereinafter “the former Dispatched Workers Act”), “worker dispatch” means having a worker, whom a dispatching business owner has employed and continues to employ, engage in work for a user business owner under the direction and supervision of the user business owner in accordance with the terms of a worker dispatch contract.
Whether a legal relationship in which an original employer causes a certain worker to perform work for a third party constitutes worker dispatch subject to the former Dispatched Workers Act as described above should not be determined by the name or form of the contract entered into by the parties, but should be determined based on the substance of the employment relationship, considering factors such as: whether the third party directly or indirectly issues binding instructions to the worker concerning the performance of the work itself, thereby exercising substantial direction and supervision; whether the worker concerned can be seen as having been substantively incorporated into the third party’s business, such as by being organized together with the third party’s own employees into a single work unit and performing joint work directly with them; whether the original employer independently exercises authority over matters such as the selection of workers to be assigned to the work, the number of workers, education and training, working and rest hours, leave, and monitoring of work attitude; whether the purpose of the contract is fixed as the performance of work with a specifically limited scope, whether the work assigned to the worker concerned is distinguishable from the work of the third party’s own employees, and whether such work involves specialized expertise or technical skill; and whether the original employer possesses an independent business organization or facilities necessary to achieve the purpose of the contract.
Meanwhile, the main text of Article 6(3) of the former Dispatched Workers Act provides: “Where a user business owner continuously uses a dispatched worker for more than two years, the user business owner shall be deemed to have employed the dispatched worker as of the day following the expiration of the two-year period” (hereinafter “the deemed direct employment provision”). This deemed direct employment provision is not limited in application solely to lawful worker dispatch (see Supreme Court en banc Decision 2007Du22320 decided September 18, 2008; Supreme Court Decision 2010Da93707 decided February 26, 2015, etc.).
(2) The court below, having comprehensively considered the evidence it adopted, found the facts as indicated in its reasoning, and then, based on a comprehensive consideration of various circumstances including the content of the subcontract agreements entered into between Daeryuk Enterprise Co., Ltd. or Namwoo Jinheung Co., Ltd. (collectively, “the non-party companies”) and the Defendant, and the process by which the Plaintiffs performed their work, determined that the subcontract agreements entered into between the Defendant and the non-party companies were, in substance, worker dispatch contracts, and that the Plaintiffs were in a worker dispatch relationship in which they were employed by the non-party companies and then dispatched to the Defendant’s worksite, where they received direct direction and supervision from the Defendant. The court below determined that, even if such worker dispatch constituted unlawful dispatch, the main text of Article 6(3) of the former Dispatched Workers Act nonetheless applies, and accordingly, Plaintiff 1 and Plaintiff 2 are each deemed to have been employed from July 1, 2000, the point at which two years had elapsed since the enforcement of the former Dispatched Workers Act, and Plaintiff 3 is deemed to have been employed from January 17, 2002, the day following the expiration of two years from the date of dispatch to the Defendant, thereby acquiring the status of the Defendant’s employees.
(3) Examining the reasoning of the judgment below in light of the legal principles set forth above and the record, the judgment below is justifiable, and there is no error of law, as alleged in the grounds of appeal, involving misapprehension of the legal principles concerning the proviso of Article 6(3) of the former Dispatched Workers Act, contract succession, or the starting point for deemed direct employment of dispatched workers, or incomplete deliberation.
B. (1) The deemed direct employment provision under the main text of Article 6(3) of the former Dispatched Workers Act is intended, separately from administrative supervision or sanctions against a user business owner’s act of continuously using dispatched workers in violation of the restriction on the dispatch period, to establish the legal relationship and its legal effects arising between the user business owner and the dispatched worker by deeming a direct employment relationship to have been formed even in the private-law relationship between the user business owner and the dispatched worker, thereby preventing the routine and prolonged use of worker dispatch and promoting the employment stability of dispatched workers (see Supreme Court en banc Decision 2007Du22320 decided September 18, 2008). Since the content of the deemed direct employment provision has no direct connection with the dispatching business owner, and the provision does not require, as a condition for its application, that the dispatching business owner remain the same throughout the dispatch period, it is reasonable to hold that, where a user business owner has caused a dispatched worker to continue performing the relevant work in violation of the restriction on the dispatch period, the application of the deemed direct employment provision may not be excluded solely on the ground that the dispatching business owner changed during the dispatch period, absent special circumstances (see Supreme Court Decision 2013Da14965 decided November 26, 2015).
(2) The court below, for the reasons stated in its judgment, determined that, even though the dispatching business owner, namely the non-party company, changed after the point at which direct employment was deemed to have occurred under the main text of Article 6(3) of the former Dispatched Workers Act, and even though the Plaintiffs, as dispatched workers, entered into new employment contracts with the changed dispatching business owner, this did not affect the validity of the deemed employment of Plaintiff 1 and Plaintiff 2 from July 1, 2000, the point at which two years had elapsed since the enforcement of the former Dispatched Workers Act, and of Plaintiff 3 from January 17, 2002, the day following the expiration of two years from the date of dispatch to the Defendant. On this basis, the court below rejected the Defendant’s argument that such circumstances should be regarded as an explicit expression of a contrary intent refusing the application of the deemed direct employment provision.
(3) Examining the reasoning of the judgment below in light of the legal principles set forth above and the record, the judgment below is justifiable, and there is no error of law, as alleged in the grounds of appeal, involving misapprehension of the legal principles concerning the criteria for determining a worker dispatch relationship or the ordering party’s right of direction under a subcontract agreement.
2. As to Ground of Appeal No. 2
A. Article 1 of the former Dispatched Workers Act states that its legislative purpose is to contribute to the employment stability and welfare improvement of dispatched workers by establishing standards concerning the working conditions, etc. of dispatched workers; accordingly, the improvement of dispatched workers’ working conditions may be regarded as being no less important than their employment stability. Furthermore, Article 21 of the former Dispatched Workers Act provides that a dispatched worker shall not be subjected to discriminatory treatment as compared with a worker of the same kind performing the same work within the user business owner’s business, and it may also be said to accord with the concept of fairness to treat a dispatched worker who has come to form a direct employment relationship with the user business owner equally with the user business owner’s employees performing the same or similar work. In addition, Article 6-2(3)(1) of the Act on the Protection, Etc. of Dispatched Workers, as amended by Act No. 8076 of December 21, 2006, provides that, with respect to the working conditions applicable where a user business owner is required to directly employ a dispatched worker as a result of continuously using the dispatched worker for more than two years, such conditions shall be governed by “the working conditions set forth in the rules of employment, etc. applicable to the user business owner’s employees performing the same or similar work as the dispatched worker concerned, if any such employees exist.” This provision appears merely to reaffirm, for clarity, the working conditions that should, as a matter of interpretation, apply to all dispatched workers who come to form a direct employment relationship with the user business owner, and it is difficult to view it as newly establishing working conditions at a level higher than those previously existing. Considering all of the foregoing comprehensively, it is reasonable to hold that the working conditions of a dispatched worker who is deemed to have been directly employed by the user business owner pursuant to the deemed direct employment provision are the same as the working conditions set forth in the rules of employment, etc. applicable to the user business owner’s employees performing the same or similar work as the dispatched worker concerned, if any such employees exist.
B. The court below, having comprehensively considered the evidence it adopted, found the facts as indicated in its reasoning, and determined that the Plaintiffs performed the same or similar work as Grade 4 on-site operators (specialized skilled workers) among the Defendant’s employees, and accordingly determined that the working conditions applicable to the Plaintiffs should be those applicable to Grade 4 on-site operators (specialized skilled workers) under the Defendant’s rules of employment and the collective bargaining agreement concluded between the Defendant and the labor union composed of the Defendant’s employees.
C. Examining the reasoning of the judgment below in light of the legal principles set forth above and the record, the judgment below is justifiable, and there is no error of law, as alleged in the grounds of appeal, involving misapprehension of the legal principles concerning the working conditions of dispatched workers or incomplete deliberation concerning the standard for calculating wages.
3. Conclusion
Therefore, all appeals are dismissed, and the costs of appeal are borne by the losing party. This decision is rendered as set forth in the Order by the unanimous opinion of the Justices participating in the judgment.
Justice Cho Hee-dae (Presiding Justice), Lee Sang-hoon (Justice in Charge), Kim Chang-seok, Park Sang-ok