[원고, 상고인] Plaintiff 1 and 1 other (Law Firm Yeoneun and 1 other, Counsel for the Plaintiffs)
[피고, 피상고인] Chairperson of the National Labor Relations Commission
[피고보조참가인, 피상고인] Dongnae-gu, Busan Metropolitan City
[원심판결] Daejeon High Court Decision 2016Nu10983 decided November 23, 2016
[Order]
The judgment below is reversed, and the case is remanded to the Daejeon High Court.
[Reasoning]
The grounds of appeal are examined.
1. As to the validity of the agreement in this case and whether it violates the principle of good faith
(1) Article 4, Paragraph 1, main clause, of the Act on the Protection, etc. of Fixed-Term and Part-Time Employees (기간제 및 단시간근로자 보호 등에 관한 법률, hereinafter the “Fixed-Term Employees Act”) provides that “an employer may employ a fixed-term employee for a period not exceeding two years (in cases of repeated renewal, etc. of fixed-term employment contracts, for a period not exceeding two years in total continuous employment),” while the proviso to Paragraph 1 provides exceptions under which an employer may employ a fixed-term employee for a period exceeding two years. Paragraph 2 provides that “where an employer employs a fixed-term employee for a period exceeding two years notwithstanding the absence or extinction of the grounds under the proviso to Paragraph 1, the fixed-term employee shall be deemed to be an employee who has entered into an employment contract without a fixed term.” The legislative purpose of these provisions is to secure the status of employees by preventing the abuse of fixed-term employment contracts (see Supreme Court Decision 2014Du45765 decided November 10, 2016), and therefore Article 4, Paragraph 2 of the Fixed-Term Employees Act must be regarded as a mandatory provision. Accordingly, even if the parties to an employment contract agree to exclude the application of Article 4, Paragraph 2 of the Fixed-Term Employees Act, such agreement has no legal effect.
Meanwhile, the principle of good faith (hereinafter the “principle of good faith”) refers to the abstract norm that a party to a legal relationship must not exercise a right or perform an obligation in a manner or with content that is inequitable or that betrays the other party’s trust, having regard to the other party’s interests. In order to deny the exercise of a right on the ground that it violates the principle of good faith, it must be shown that trust was extended to the other party, or that, objectively viewed, it would be legitimate for the other party to have such trust, and that exercising the right contrary to such trust would reach a degree that cannot be tolerated in light of the concept of justice. Where the content of a labor-management agreement, such as a collective agreement, is invalid because it violates a mandatory provision such as those of the Labor Standards Act, if an assertion of such invalidity were rejected on the ground that it constitutes an exercise of a right in violation of the principle of good faith, this would result in defeating the legislative purpose underlying the mandatory provision. Therefore, unless the case satisfies not only the general requirements for applying the principle of good faith but also falls within the exceptional category where there exist special circumstances justifying the application of the principle of good faith in priority over the mandatory provision, such an assertion cannot be deemed to violate the principle of good faith (see Supreme Court en banc Decision 2012Da89399 decided December 18, 2013).
(2) The court below did not accept the Plaintiffs’ assertion that “the Plaintiffs should be deemed employees who have entered into employment contracts without a fixed term pursuant to Article 4, Paragraph 2 of the Fixed-Term Employees Act,” on the grounds, as stated in its reasoning, that the agreement in this case entered into by the Intervenor, the Plaintiffs, and the labor union to which the Plaintiffs belong is valid, and that even if it were invalid, the Plaintiffs’ assertion of its invalidity would be impermissible as violating the principle of good faith.
(3) According to the reasoning of the judgment below and the record, the following facts may be known.
① Plaintiff 2 was hired on October 1, 2011 as a fixed-term nurse in the influenza vaccination program at ○○○ Public Health Center operated by the Intervenor, and worked until December 31, 2011, and then worked as a visiting nurse in the visiting health care program from January 1, 2012 to December 31, 2012. Plaintiff 1 was hired on January 1, 2012 as a fixed-term exercise prescription specialist in the health promotion program at ○○○ Public Health Center, and worked until May 31, 2012, and then worked as an exercise prescription specialist in the visiting health care program from June 1, 2012 to December 31, 2012.
② When the visiting health care program, which had been carried out as several individual projects, was integrated from January 1, 2013 into a single program called the Integrated Community Health Promotion Program, the Intervenor entered into fixed-term employment contracts (with a contract period from January 1, 2013 to December 31, 2013) with 14 persons, including the Plaintiffs, who had been engaged in the visiting health care program at ○○○ Public Health Center, and had them work as dedicated personnel for the visiting health care program under the 2013 Community Integrated Health Promotion Program.
③ Around December 2013, the Plaintiffs applied in response to the Intervenor’s public announcement for recruitment of fixed-term employees for the 2014 Community Integrated Health Promotion Program, and Plaintiff 2 was hired as a visiting nurse and Plaintiff 1 as a visiting exercise prescription specialist, and on January 3, 2014, each entered into an employment contract with the Intervenor with a contract period from January 1, 2014 to June 30, 2014.
④ As it was not clear, near the end of the above employment contract period, what the Plaintiffs’ total period of continuous employment was under Article 4 of the Fixed-Term Employees Act, the Intervenor, the Plaintiffs, and the Korean Confederation of Trade Unions-affiliated union to which the Plaintiffs belonged entered into the agreement in this case on June 30, 2014, the content of which was that “the period of the Plaintiffs’ employment prior to January 1, 2013 shall be recognized as discontinued, and the Plaintiffs’ contract period shall be extended until December 31, 2014.”
⑤ On November 26, 2014, the Intervenor notified the Plaintiffs that their employment contract period would expire as of December 31, 2014.
(4) Examining these facts in light of the legal principles set forth above, the agreement in this case, which provides for excluding the Plaintiffs’ working period prior to January 1, 2013—among the periods during which the Plaintiffs entered into fixed-term employment contracts and provided labor to the Intervenor—from the total period of continuous employment under Article 4 of the Fixed-Term Employees Act, must be deemed invalid as it violates Article 4, Paragraph 2 of the Fixed-Term Employees Act, which is a mandatory provision. Furthermore, examining the various circumstances that can be known from the record, including the circumstances surrounding the conclusion of the fixed-term employment contracts between the Plaintiffs and the Intervenor and the process leading up to the agreement in this case, it is difficult to find that the Plaintiffs’ assertion—contrary to the content of the agreement in this case—that they should be deemed employees who have entered into employment contracts without a fixed term pursuant to Article 4, Paragraph 2 of the Fixed-Term Employees Act, reaches a degree that cannot be tolerated in light of the concept of justice, or that there exist special circumstances warranting the application of the principle of good faith in priority, such that the assertion would violate the principle of good faith.
(5) Nevertheless, the court below determined, contrary to the foregoing, that the agreement in this case is valid, and that even if it were invalid, the Plaintiffs’ assertion that they should be deemed employees without a fixed term would be impermissible as violating the principle of good faith. This determination by the court below erred by misapprehending the legal principles concerning the validity of an agreement that violates a mandatory provision and concerning the principle of good faith, thereby affecting the judgment.
2. Conclusion
Accordingly, without examining the remaining grounds of appeal, the judgment below is reversed, and the case is remanded to the court below for further hearing and determination, in accordance with the unanimous opinion of the Justices participating in the decision, as set forth in the Order.
Justice Min You-sook (Presiding Justice), Kim Chang-seok, Cho Hee-dae (Justice in charge), Kim Jae-hyeong