[Plaintiffs, Appellants] Korea Learning-Materials Industry Labor Union (전국학습지산업노동조합) and 8 others (Counsel: Law Firm Yeoneun, Attorneys Cho Hyeon-ju and 12 others)
[Defendant, Appellee] Chairman of the National Labor Relations Commission
[Intervenor for the Defendant] Jaeneung Education Co., Ltd. (Counsel: Law Firm CS, Attorney Kim Cheol-yeong)
[Judgment Below] Seoul High Court Decision 2012Nu37274, 37281 decided August 20, 2014
[Order]
The part of the judgment below concerning Plaintiff 5, Plaintiff 6, Plaintiff 7, Plaintiff 8, Plaintiff 9, and Plaintiff Korea Learning-Materials Industry Labor Union's claim for revocation of the retrial decision on unfair labor practices dated July 19, 2011 is reversed, and this part of the case is remanded to the Seoul High Court. The appeals of Plaintiff 2, Plaintiff 3, and Plaintiff 4, and the remaining appeals of Plaintiff 5, Plaintiff 6, Plaintiff 7, Plaintiff 8, Plaintiff 9, and Plaintiff Korea Learning-Materials Industry Labor Union are all dismissed. The costs of appeal arising from the appeals of Plaintiff 2, Plaintiff 3, and Plaintiff 4, including those arising from the intervention, shall be borne by said Plaintiffs.
[Reasoning] The grounds of appeal (including the supplementary brief on grounds of appeal submitted after the expiration of the period for submitting the grounds of appeal brief, to the extent it supplements the grounds of appeal) are examined as follows.
1. Principal Course of the Case and Issues
A. Principal Course of the Case
The Intervenor for the Defendant (hereinafter "Intervenor"), which is engaged in the business of developing and providing educational learning materials, entered into entrustment business contracts with the remaining Plaintiffs (hereinafter "Plaintiff Learning-Materials Teachers"), who are members of Plaintiff Korea Learning-Materials Industry Labor Union (hereinafter "Plaintiff Union") and work as learning-materials teachers, the contracts being for the management, recruitment, and instruction of learning-materials subscribers, and subsequently terminated these contracts.
The Plaintiffs applied to the Seoul Regional Labor Relations Commission for a remedial order on the ground that the Intervenor's termination of the entrustment business contracts constituted unfair dismissal and unfair labor practices, but the application was dismissed on the ground that the Plaintiffs lacked standing as parties because they were not workers or a labor union. Thereafter, the National Labor Relations Commission also dismissed the Plaintiffs' application for retrial.
B. Issues
The issues in this case are: ① whether Plaintiff Learning-Materials Teachers constitute workers under the Labor Standards Act (근로기준법) (Ground of Appeal No. 1); ② whether Plaintiff Learning-Materials Teachers constitute workers under the Trade Union and Labor Relations Adjustment Act (노동조합 및 노동관계조정법, hereinafter "Trade Union Act") and whether Plaintiff Union constitutes a labor union under the Trade Union Act, and if Plaintiff Learning-Materials Teachers constitute workers under the Trade Union Act, whether the Intervenor's termination of the entrustment business contracts constitutes an unfair labor practice under Article 81, Subparagraphs 1 and 4 of the Trade Union Act (Ground of Appeal No. 2).
2. As to Ground of Appeal No. 1
Article 2(1) of the Labor Standards Act provides in Subparagraph 1 that "worker" means a person who provides labor to a business or workplace for the purpose of earning wages, regardless of the type of occupation, and in Subparagraph 5 that "wages" means all money and valuables paid by an employer to a worker as remuneration for work, regardless of the name given to such payment, such as wages, salary, etc.
Whether a person constitutes a worker under the Labor Standards Act must be determined not by the form of the contract—whether it is an employment contract or a service contract—but by whether the person providing labor actually provided labor to the employer in a subordinate relationship for the purpose of earning wages in a business or workplace. Whether such a subordinate relationship exists must be determined by comprehensively considering various economic and social conditions, including: whether the employer determines the content of the work and whether the person is subject to the application of work rules or service (personnel) regulations; whether the employer exercises substantial direction and supervision in the course of performing the work; whether the employer designates working hours and place of work and whether the person providing labor is bound thereby; whether the person providing labor can independently conduct business on his or her own account, such as by owning equipment, raw materials, or work tools, or by hiring a third party to perform the work on his or her behalf; whether the person bears the risk of profit creation and loss through the provision of labor; the existence and degree of continuity of the labor-providing relationship and exclusivity to the employer; matters concerning remuneration, such as whether the remuneration is in the nature of consideration for the labor itself, whether a basic or fixed wage is set, and whether labor income tax is withheld; and whether the person is recognized as having the status of a worker under statutes concerning the social security system. However, since matters such as whether a basic or fixed wage is set, whether labor income tax is withheld, and whether the person is recognized as a worker under the social security system are largely subject to arbitrary determination by the employer using its superior economic position, worker status should not be readily denied solely because such factors are not recognized (see Supreme Court Decision 2004Da29736 decided December 7, 2006).
Examining the record in accordance with the above legal principles, the court below's determination that Plaintiff Learning-Materials Teachers do not constitute workers under the Labor Standards Act, for the reasons stated in its judgment, is justified. There is no error in the judgment below in misunderstanding the legal principles concerning workers under the Labor Standards Act or in exceeding the limits of the principle of free evaluation of evidence by violating the rules of logic and experience.
3. As to Ground of Appeal No. 2
A. Whether Plaintiffs Constitute Workers and a Labor Union under the Trade Union Act
(1) Article 2 of the Trade Union Act provides in Subparagraph 1 that "worker" means a person who lives on wages, salary, or other equivalent income, regardless of the type of occupation, and in the main text of Subparagraph 4 that "labor union" means an organization or federation of organizations formed by workers on their own initiative, for the purpose of maintaining and improving working conditions and enhancing the economic and social status of workers, with workers as the main constituent members.
A worker under the Trade Union Act refers to a person who engages in labor under a relationship of use and subordination with another person and lives on wages or other income received in return therefor. Specifically, whether a person constitutes a worker under the Trade Union Act must be determined by comprehensively considering: whether the income of the person providing labor mainly depends on a specific business operator; whether the specific business operator receiving the labor unilaterally determines the content of the contract concluded with the person providing labor, including remuneration; whether the person providing labor gains access to the market through the specific business operator's business by providing labor essential to the performance of that business; whether the legal relationship between the person providing labor and the specific business operator is continuous and exclusive to a considerable degree; the degree to which a relationship of direction and supervision exists between the employer and the person providing labor; and whether the wages, salary, or other income received by the person providing labor from the specific business operator is in the nature of consideration for the labor provided (see Supreme Court Decision 90Nu1731 decided May 25, 1993; Supreme Court Decision 2005Da20910 decided May 11, 2006).
Unlike the Labor Standards Act, which was enacted to regulate individual labor relations, the Trade Union Act was enacted for the purpose of maintaining and improving working conditions and enhancing the economic and social status of workers through the guarantee of workers' three labor rights under the Constitution. Considering the legislative purpose of the Trade Union Act and its provisions defining "worker," whether a person constitutes a worker under the Trade Union Act must be determined from the perspective of whether there is a need to guarantee the three labor rights in light of the substance of the labor-providing relationship, and is not necessarily limited to workers under the Labor Standards Act (see Supreme Court Decision 2007Du4483 decided March 24, 2011; Supreme Court Decision 2011Da78804 decided February 13, 2014; Supreme Court en banc Decision 2007Du4995 decided June 26, 2015).
(2) Examining the following circumstances, which can be known from the reasoning of the judgment below and the record, in accordance with the above legal principles, it is reasonable to view that Plaintiff Learning-Materials Teachers constitute workers under the Trade Union Act.
① In light of the content of the work, the time required for preparation and performance of the work, etc., it appears realistically difficult for Plaintiff Learning-Materials Teachers to hold concurrent employment, and it appears that the commissions received from the Intervenor were the main source of income for Plaintiff Learning-Materials Teachers.
② Since the Intervenor entered into entrustment business contracts in a standardized form prepared in advance with an indefinite number of learning-materials teachers, it can be seen that the major terms of the entrustment business contracts, including remuneration, were unilaterally determined by the Intervenor.
③ The labor provided by Plaintiff Learning-Materials Teachers was essential to the Intervenor's performance of its learning-materials-related business, and Plaintiff Learning-Materials Teachers gained access to the market for learning-materials development and management/instruction of learning-materials subscribers through the Intervenor's business.
④ Plaintiff Learning-Materials Teachers generally entered into entrustment business contracts with the Intervenor on a one-year basis and continued to automatically renew the contract term, so the entrustment business contractual relationship was continuous and appears to have been exclusive to the Intervenor to a considerable degree.
⑤ The Intervenor conducted on-the-job practical training for new learning-materials teachers, and, through branch managers and unit organization heads, assigned new learning-materials teachers to specific unit organizations and then assigned member subscribers to manage. Although distinguished from the work rules applicable to regular employees, work-processing guidelines, etc., applicable to Plaintiff Learning-Materials Teachers existed, and the Intervenor produced and distributed teaching materials to Plaintiff Learning-Materials Teachers and issued standard essential work instructions. The learning-materials teachers submitted data confirming the member list and membership fee payment status to the branch chief at the end of each month, regularly logged into the Intervenor's website to enter members' progress status, diagnostic evaluation results, and membership fee collection status, and took a writing test approximately once every two to three months. In addition, the Intervenor maintained member management cards and management status records, occasionally gave certain instructions to Plaintiff Learning-Materials Teachers, and, about three times a week in the morning, held morning assemblies presided over by the branch chief and ability-improvement courses in which Plaintiff Learning-Materials Teachers participated. In light of these circumstances, it can be seen that Plaintiff Learning-Materials Teachers, although not to the extent of constituting workers under the Labor Standards Act, were subject to a certain degree of direction and supervision by the Intervenor.
⑥ Plaintiff Learning-Materials Teachers received commissions from the Intervenor as consideration for the labor they provided, such as management and instruction of learning-materials subscribers, retention of existing subscribers, and recruitment of subscribers.
⑦ Even though Plaintiff Learning-Materials Teachers may not be recognized as workers under the Labor Standards Act, considering the provisions defining "worker" under the Trade Union Act, which are not premised on affiliation with a specific business operator and are drafted so as to include persons providing labor under "contract types other than employment," and considering the legislative purpose of the Trade Union Act, which is to protect workers by securing equal bargaining power, there is a need to recognize Plaintiff Learning-Materials Teachers, who provide labor essential to the Intervenor's business and thereby form an economic and organizational relationship of subordination to the Intervenor, as workers under the Trade Union Act. Furthermore, guaranteeing the three labor rights, including the right to collectively bargain with the Intervenor, the specific business operator receiving the labor, on an equal footing with respect to labor-providing conditions and the like, in certain cases through collective solidarity, to Plaintiff Learning-Materials Teachers, who provide labor to the Intervenor from a position of economic weakness, conforms to the purpose of Article 33 of the Constitution.
(3) Plaintiff Union is an organization formed by learning-materials teachers, who are workers under the Trade Union Act, acting as the main constituent members on their own initiative in solidarity, for the purpose of maintaining and improving working conditions and enhancing the economic and social status of learning-materials teachers, and thus constitutes a labor union under the main text of Article 2, Subparagraph 4 of the Trade Union Act.
B. Whether Unfair Labor Practices Are Established with Respect to Plaintiff 5, Plaintiff 6, Plaintiff 7, Plaintiff 8, Plaintiff 9, and Plaintiff Union (Concerning the Retrial Decision of the Defendant Dated July 19, 2011)
Article 81, Subparagraph 1 of the Trade Union Act defines as an unfair labor practice of an employer the act of subjecting a worker to disadvantageous treatment on the ground of the worker's joining or organizing a labor union, or other legitimate acts for the business of a labor union, and Subparagraph 4 of the same Article defines as an unfair labor practice an employer's act of dominating or interfering with a labor union.
According to the reasoning of the judgment below and the record, it can be seen that the Intervenor terminated the entrustment business contracts with Plaintiff 5, Plaintiff 6, Plaintiff 7, Plaintiff 8, and Plaintiff 9 on the ground that they had expressed their intent to continue to maintain their membership status in Plaintiff Union while supporting Plaintiff Union with operating expenses.
As seen above, since Plaintiff 5, Plaintiff 6, Plaintiff 7, Plaintiff 8, and Plaintiff 9 constitute workers under the Trade Union Act, the Intervenor's termination of the entrustment business contracts with said Plaintiffs on the above-mentioned ground must be regarded as constituting an act defined under Article 81, Subparagraph 1 or 4 of the Trade Union Act, that is, an act of causing disadvantage on the ground of joining Plaintiff Union or an act of dominating or interfering with Plaintiff Union.
Nevertheless, the court below, relying solely on the circumstances stated in its judgment, concluded that Plaintiff 5, Plaintiff 6, Plaintiff 7, Plaintiff 8, and Plaintiff 9 do not constitute workers under the Trade Union Act and that Plaintiff Union is not a labor union under the Trade Union Act, and thereby determined that said Plaintiffs and Plaintiff Union lacked standing as parties to apply for remedy for unfair labor practices. This determination of the court below contains an error that misunderstands the legal principles concerning workers and labor unions under the Trade Union Act, or that exceeds the limits of the principle of free evaluation of evidence by violating the rules of logic and experience, thereby affecting the judgment.
C. Whether Unfair Labor Practices Are Established with Respect to Plaintiff 2, Plaintiff 3, Plaintiff 4, and Plaintiff Union (Concerning the Retrial Decision of the Defendant Dated May 12, 2011)
(1) Whether an employer's act constitutes an unfair labor practice as defined under the Trade Union Act must be determined comprehensively by examining and reviewing, in their entirety, all circumstances from which the existence of the employer's intent to commit an unfair labor practice can be inferred, and the burden of proving an unfair labor practice lies with the worker or labor union asserting it. Therefore, if, even after conducting the necessary examination, it remains unclear whether the employer had the intent to commit an unfair labor practice such that its existence cannot be determined, the risk or disadvantage resulting therefrom must be borne by the worker or labor union asserting it. In this connection, where an employer has taken a disciplinary action, dismissal, or other disadvantageous measure against a worker, but examination reveals that there was a legitimate ground for taking such measure, it cannot be readily concluded that the employer's disadvantageous measure was taken due to an intent to commit an unfair labor practice (see Supreme Court Decision 2005Du4120 decided November 15, 2007).
(2) The court below denied Plaintiff 2, Plaintiff 3, Plaintiff 4, and Plaintiff Union standing as parties to apply for remedy for unfair labor practices for the same reasons as applied to the remaining Plaintiffs, and did not separately determine whether unfair labor practices were established with respect to them.
As seen above, since Plaintiff 2, Plaintiff 3, and Plaintiff 4 constitute workers under the Trade Union Act, and Plaintiff Union also constitutes a labor union under the Trade Union Act, said Plaintiffs have standing as parties to apply for remedy for unfair labor practices. However, examining the following circumstances, which can be known from the reasoning of the judgment below and the record, in accordance with the legal principles set forth above, it cannot be concluded that the Intervenor's termination of the entrustment business contracts with Plaintiff 2, Plaintiff 3, and Plaintiff 4 was made due to the Intervenor's intent to commit an unfair labor practice, and thus it is difficult to view it as falling under Article 81, Subparagraph 1 or 4 of the Trade Union Act.
① After the third collective bargaining agreement was concluded between the Intervenor and Plaintiff Union, said Plaintiffs, asserting that the said collective bargaining agreement unjustly reduced the commissions to be received by the learning-materials teachers and demanding that the agreement be nullified and renegotiated, participated in an illegal sit-in, occupied the company's private land, damaged company property, or participated in acts of violence against executives and employees.
② Said Plaintiffs received final and conclusive guilty judgments for the above acts on charges including joint bodily injury, joint trespass on a structure, and violation of the Act on Assembly and Demonstration.
③ The Intervenor terminated the entrustment business contracts with said Plaintiffs not on the ground that said Plaintiffs maintained their membership status in Plaintiff Union, but on the ground that they committed the above-mentioned unlawful acts for which guilty judgments became final and conclusive.
(3) Accordingly, although the judgment below, in determining that Plaintiff 2, Plaintiff 3, and Plaintiff 4 do not constitute workers under the Trade Union Act and that Plaintiff Union does not constitute a labor union under the Trade Union Act, contains an error such as misunderstanding the legal principles concerning workers and labor unions under the Trade Union Act, the conclusion of the court below rejecting the related claims of said Plaintiffs and Plaintiff Union is justified, insofar as the Intervenor's termination of the entrustment business contracts with Plaintiff 2, Plaintiff 3, and Plaintiff 4 cannot be regarded as constituting an unfair labor practice. Therefore, this error of the court below did not affect the outcome of the judgment, and this ground of appeal is not accepted.
4. Conclusion
Accordingly, the part of the judgment below concerning the claim of Plaintiff 5, Plaintiff 6, Plaintiff 7, Plaintiff 8, Plaintiff 9, and Plaintiff Union for revocation of the retrial decision on unfair labor practices dated July 19, 2011 is reversed, and this part of the case is remanded to the court below for further examination and determination; the appeals of Plaintiff 2, Plaintiff 3, and Plaintiff 4, and the remaining appeals of Plaintiff 5, Plaintiff 6, Plaintiff 7, Plaintiff 8, Plaintiff 9, and Plaintiff Union are without merit and are all dismissed; and the costs of appeal arising from the appeals of Plaintiff 2, Plaintiff 3, and Plaintiff 4 shall be borne by the losing parties. It is so decided by the unanimous opinion of the Justices participating in the decision, as set forth in the Order.
Justice Min Yu-suk (Presiding Justice), Justice Kim Chang-seok, Justice Cho Hee-dae (Justice in charge), Justice Kim Jae-hyung