[Plaintiffs, Appellants and Appellees]
[Defendant, Appellee and Appellant] Korea Broadcasting Corporation, Litigation Counsel: Attorney Choi Hyu-seop
[Judgment Below] Seoul High Court Judgment 1991.5.17., 90Na38155
[Order]
The part of the judgment below concerning the loss by Plaintiffs 1 through 150 is reversed, and this part of the case is remanded to the Seoul High Court.
The Defendant's appeal is dismissed, and the costs of this part of the appeal shall be borne by the Defendant.
[Reasoning]
The grounds of appeal are examined.
As to the Defendant's grounds of appeal
According to the reasoning of the judgment below, the court below found the following facts: entrusted collectors in charge of the Defendant Corporation's business of registering television receivers and collecting viewing fees enter into an entrustment contract only after responding to the Defendant Corporation's recruitment announcement, passing the prescribed examination, submitting the same documents as those required of public officials, and being found free of disqualifying grounds equivalent to those applicable to public officials under the Defendant Corporation's personnel regulations; no term is fixed for the contract period; remuneration consists of fees unilaterally determined and paid by the Defendant Corporation; the collectors must not, in performing their duties, engage in any conduct that damages the dignity of the Defendant Corporation, and must comply with the Korea Broadcasting Corporation Act (한국방송공사법), its Enforcement Decree, the Viewing Fee Collection Business Handling Regulations (hereinafter the "Collection Regulations"), and other business directives of the Defendant Corporation; they must not engage in any wrongful conduct in connection with the entrusted business or re-entrust it to another person; and they must clearly hand over and take over the entrusted business so as to clarify the scope of responsibility, among other matters to be observed; and that the Defendant Corporation may unilaterally terminate the contract where such matters to be observed are not complied with, or where there are certain grounds such as markedly poor performance in registration discovery, etc.
The court below also found that entrusted collectors of the Defendant Corporation receive prescribed training from the Defendant Corporation necessary for performing their duties, work at branch offices where collection zones are assigned in accordance with the Defendant Corporation's assignment and transfer orders, and must obey general service discipline and personnel orders, thereby being subject to a mandatory retirement age; that, under the specific direction and supervision of the branch office manager, who is a managerial employee of the Defendant Corporation, they report each day at a fixed time to a separate collector's office set up within the branch office, affix their seal to the attendance book kept there, perform duties within their assigned collection zone, then return to the branch office to remit the collected viewing fees to the cashier, and may only leave work after preparing and submitting the prescribed activity reports and tally sheets and obtaining the branch office manager's approval; that they have even performed day and night duty shifts about one to three times a month in accordance with the branch office manager's instructions; and that all equipment, prescribed document forms, and other office supplies necessary for performing such duties were provided by and used from the Defendant Corporation.
The court below further found that entrusted collectors of the Defendant Corporation regularly (on the 20th of each month in Seoul, and on the 15th in the provinces) received from the Defendant Corporation, in the name of fees, payment as consideration for the provision of labor; that the Defendant Corporation prepared and maintained personnel record cards for the entrusted collectors as well, managing their personnel affairs, and rewarded collectors with long service or excellent performance, while paying compensation in the nature of consolation money in the event of an accident during the performance of duties, whereas it imposed sanctions such as termination of entrustment or standby orders, or required the submission of written statements of reflection, on collectors with poor collection performance or unsatisfactory work attitude; that, because of this, it was in fact very difficult for collectors to hold concurrent positions or side jobs; and that, while the Defendant Corporation treated contract-based collectors, whom it employs as its employees, differently from entrusted collectors—paying a fixed basic salary plus an efficiency-based allowance corresponding to work performance, withholding earned income tax, granting workplace medical insurance benefits, and establishing a retirement allowance system under the aforementioned Collection Regulations—the content of the duties and the process of performing such duties for contract-based collectors were entirely identical to those for entrusted collectors.
Having found the foregoing facts, the court below determined that, even though entrusted collectors were engaged in the form of an entrustment contract and processed viewing fee collection duties from a somewhat free position, since the circumstances of contract formation and the actual state of the process of providing labor were the same as for contract-based collectors whom the Defendant Corporation recognizes as its employees, it is reasonable to view entrusted collectors as, in substance, employees who provide subordinate labor to the Defendant Corporation as well. Upon examination of the record, the fact-finding of the court below can be affirmed as legitimate, and there is no illegality therein in violation of the rules of evidence.
Moreover, according to the facts found by the court below, entrusted collectors, too, from the time of contract formation until reaching retirement age, regarded the Defendant Corporation as their workplace and devoted themselves solely to their duties as collectors; and even if they were in a somewhat free position in the course of processing their duties, this was limited to matters such as the method and order of household visits to owners of television receivers, and the fact that independence in business processing is recognized within this scope is due to the particular nature of the duties in charge, and this alone cannot be said to mean that they were free from the direction, supervision, and control of the employer (see this Court's Decision 1988.11.8., 87Daka683). Furthermore, even if entrusted collectors received, without a basic salary or fixed wage, only an amount calculated as a certain percentage of the viewing fees collected, in the name of fees, insofar as it is clear that this was paid as consideration for the entirety of their labor, its character as wages (a kind of performance-based pay or efficiency-based pay) is not thereby denied. Accordingly, the judgment of the court below, which held that entrusted collectors, like contract-based collectors, fall under employees in a substantively subordinate employment relationship with the Defendant Corporation, is also justified.
The precedents cited in the argument (this Court's Decisions 1978.7.25., 78Da510; 1989.1.31., 88Daka6266) concern cases with facts different from the present case and thus cannot serve as appropriate precedent. Accordingly, this ground of appeal is without merit.
As to the grounds of appeal by Plaintiffs 1 through 150
According to the reasoning of the judgment below, the court below found as follows: the Defendant Corporation excludes viewing fee collectors from its regular staff and regulates them separately under the Collection Regulations; viewing fee collectors work at branch offices with designated collection zones in accordance with the Defendant Corporation's assignment and transfer orders, and act solely as viewing fee collectors until retirement without being able to be transferred to regular staff positions under the Defendant Corporation's personnel regulations; although they are subject to regulation of attendance and departure and receive instructions from the branch office manager, in actuality they report to a collector's office partitioned within each branch office and affix their seal to a separate attendance book kept there, and in performing duties such as collection through household visits to owners of television receivers, they can carry out the collection business according to their own choices without receiving individual instructions from the Defendant Corporation or the branch office manager each time; and that when the Defendant Corporation's regular employees formed the Defendant Corporation's labor union on May 20, 1988 and concluded a collective agreement with the Defendant Corporation on September 14 of the same year, viewing fee collectors were excluded from union membership, and accordingly, viewing fee collectors established a separate field-work labor union on December 10 of the same year, apart from the aforementioned labor union.
Synthesizing these points, the court below determined that, even though viewing fee collectors work at the same locations as the Defendant Corporation's regular employees, the form of labor provision and working conditions of viewing fee collectors are markedly different from those of regular employees when compared, and that labor management of collectors is clearly distinguished from the main sector consisting of the performance of broadcasting duties, which constitutes the Defendant Corporation's business purpose; and that, in such a case, in interpreting and applying Article 28, Paragraph 2 of the Labor Standards Act (근로기준법), which provides for the principle prohibiting discriminatory retirement allowances, the Defendant Corporation's regular employees and viewing fee collectors should be regarded as providing labor in separate, independent businesses rather than in one and the same business; and accordingly, even if the Defendant Corporation established different retirement allowance systems as between its regular employees and contract-based collectors, this does not violate the provision of the Labor Standards Act establishing the principle prohibiting discriminatory retirement allowances "within one business," and therefore, the retirement allowance provisions under the Collection Regulations applicable to contract-based collectors, as indicated in the judgment, should apply to the plaintiffs who retired as viewing fee collectors.
However, the legislative purpose of Article 28, Paragraph 2 of the same Act is to prohibit discrimination through the establishment of different retirement allowance systems by job category (e.g., clerical and production positions), by rank (e.g., senior and junior positions), or by line of business (e.g., manufacturing and service business) within one business, and to require the application of a single retirement allowance system. Accordingly, the term "business" as used therein means, absent special circumstances, the business entity itself that constitutes a unity of management, and thus a corporate organization that constitutes a unity of management and is operated organically must be understood as one business. Therefore, the duties in charge of the Defendant Corporation's viewing fee collectors must be regarded, for purposes of the application of Article 28, Paragraph 2 of the same Act, as merely a part of one business, namely, the single corporate entity that is the Defendant Corporation.
If so, the judgment below cannot be said to be free of the illegality of misapprehending the legal principles concerning Article 28, Paragraph 2 of the Labor Standards Act, and the argument pointing this out is well-founded.
Therefore, the part of the judgment below concerning the loss by Plaintiffs 1 through 150 is reversed, and this part of the case is remanded to the court below; the Defendant's appeal is dismissed, and the costs of this part of the appeal shall be borne by the Defendant. It is so decided as stated in the Order by the unanimous opinion of the Justices participating.