[Defendant] Defendant
[Appellant] Prosecutor
[Judgment Below] Busan District Court Decision 97No3251 dated February 26, 1999
[Order]
The judgment below is reversed, and the case is remanded to the Panel Division of the Busan District Court, Main Court.
[Reasoning] The grounds of appeal are examined.
According to the reasoning of the judgment below, with respect to the facts charged in this case that the Defendant violated the duty to settle wages under Article 30 of the former Labor Standards Act (Labor Standards Act, before amendment by Act No. 5245 of December 31, 1996; hereinafter the "Labor Standards Act") against Non-Indicted 1 and 64 others, the court below, comprehensively considering the evidence it cited, found as follows: the Defendant, who operates a moving service company, employs three resident staff members, namely, site manager Non-Indicted 2, accounting staff Non-Indicted 3, and driver Non-Indicted 4, and owns one 5-ton box truck for transporting household goods and one 1-ton truck for carrying equipment necessary for moving work. When the Defendant receives a request for moving services, he determines the volume of the household goods through telephone consultation or on-site inspection, then hires the necessary field workers on a daily wage basis, forming teams of five persons each, and dispatches them to the site. The field workers are contacted by telephone or pager whenever there is work available and are thereby engaged in field work, and their wages are paid by deducting necessary expenses from the day's earnings and then apportioning the remainder among them in a fixed ratio. Among the field workers, there are so-called "regular laborers" who frequently work for the said company, and others who do not; however, the regular laborers have no obligation to report to the office every day, there is no attendance register, and it is merely that, because they have frequently worked for the said company, they are given priority in being assigned to work when work is available, while any shortfall in manpower is filled as needed by contacting other workers from elsewhere; meanwhile, when there is no work at the said company, the regular laborers also work for other moving companies. Furthermore, during the approximately one-week relocation work for the library of Dong-A University, the site manager Non-Indicted 2 asked the aforementioned regular laborer Non-Indicted 1 to mobilize 64 university students at a daily wage of 40,000 won to carry out the work.
Based on these findings, the court below held that it could not be said that the university students, who temporarily assisted with the library relocation work in return for a daily wage, provided labor to the Defendant in a subordinate relationship, and likewise, the other field workers, including the said Non-Indicted 1, referred to as "regular laborers," had no exclusive relationship with the Defendant, were not bound by fixed working hours, were not subject to any sanction for failing to report for work, and neither party contemplated a right or obligation regarding the opportunity to work vis-à-vis the other; in light of these circumstances, it is difficult to recognize a relationship of subordinate labor between them and the Defendant, and therefore none of them can be considered "workers" as defined in Article 14 of the Labor Standards Act. The court below further found that there was no evidence to recognize any other person, apart from the three resident staff members including the site manager, as a regularly employed worker of the said company, and accordingly held that it could not be found that the Defendant employed five or more regular workers in operating the said company, and on this basis rendered a verdict of not guilty.
However, even according to the reasoning of the judgment below, the so-called regular laborers reported to the office not in order to fulfill an obligation to provide labor owed to the Defendant, but rather to seek work, and it was only when work was available and they were hired on a daily wage basis that they actually performed the moving work for that day. Therefore, the circumstances cited by the court below as grounds for denying the existence of a subordinate labor relationship between the regular laborers and the Defendant—namely, that they were free to choose whether or not to report to the office, and that they also worked for other moving companies—merely reflect circumstances existing before the employment contract, which gives rise to the obligation to provide labor by the regular laborers, was formed, or circumstances arising when they were not employed; such circumstances cannot serve as a basis for determining the existence of the relationship of subordination that is at issue between parties where labor is actually being provided and received. Rather, such regular laborers are to be regarded as daily workers, and the university students who performed the aforementioned library relocation work for the purpose of earning a daily wage are likewise to be regarded as such; all of them thus fall under the category of "workers" under the Labor Standards Act.
Furthermore, the phrase "a business or workplace that ordinarily employs five or more workers" under Article 10, Paragraph 1 of the Labor Standards Act, which determines the scope of application of the said Act, does not mean "a business or workplace in which the number of workers ordinarily on duty is five or more," but rather means "a business or workplace in which the number of workers employed ordinarily amounts to five or more." In this context, the term "ordinarily" means "in its normal state"; even if the number of workers sometimes falls below five, if, objectively judged according to social norms, the number of workers is in its normal state five or more, this requirement is satisfied. Furthermore, the term "workers" here should be interpreted to include not only workers who continuously work at the relevant workplace but also daily workers employed as needed from time to time (see Supreme Court Decision 87Do153, delivered April 14, 1987; Supreme Court Decision 87Daka831, delivered July 21, 1987; Supreme Court Decision 93Da42238, delivered March 14, 1995, etc.).
Now, according to the record, during January 1996, the Defendant carried out moving work, including the aforementioned library relocation work (the work dates being January 22 through January 26 and January 29), on a total of 16 days—January 6, January 7, January 9, January 14 through January 18, and January 22 through January 31—for a total of 20 occasions (with two occasions each on January 17 and January 22). Among these, with the exception of the work on January 6 and January 31 and the library relocation work, the Defendant used at least two or more daily workers, including the so-called regular laborers, for the remaining occasions of work. Unless the frequency of work during January 1996 was exceptionally high, then in light of the number of occasions and days of work as described above, the number of daily workers used during the work, and the fact that, given the nature of the moving business, the moving work itself is not necessarily performed every day, there is ample room to find that, at the time the workers at issue in this case left their employment, the Defendant was operating the moving business while ordinarily employing five or more workers, comprising the three resident staff members plus two or more daily workers engaged in on-site moving work.
Nevertheless, the court below excluded the regular laborers who were used for moving work on a daily wage basis and concluded that, apart from the three resident staff members, there were no other regularly employed workers as stated in its ruling, thereby determining that the said company could not be a business or workplace to which the Labor Standards Act applies. In doing so, the court below misapprehended the legal principles concerning "a business or workplace ordinarily employing five or more workers" under Article 10, Paragraph 1 of the Labor Standards Act, or failed to exhaust its examination on this point, and this constitutes an illegality. The argument in the grounds of appeal pointing this out is with merit.
Therefore, the judgment below is reversed, and the case is remanded to the court below for further hearing and determination. This judgment is rendered as stated in the Order by the unanimous opinion of the participating Justices.
Presiding Justice Shin Seong-taek, Justice Ji Chang-gwon, Justice Seo Seong, Justice Yoo Ji-dam (Reporting Justice)