[Plaintiffs, Appellants] Plaintiff 1 and 1 other (Attorney Ko Jae-hwan, Counsel for Plaintiffs)
[Defendant, Appellee] Chairperson of the National Labor Relations Commission
[Intervenor for the Defendant] Hyundai Motor Company (Attorneys Ju Han-il and 4 others, Counsel for the Intervenor)
[Judgment Below] Seoul High Court Decision 2007Nu20418 rendered on February 12, 2008
[Order]
The part of the judgment below concerning Plaintiff 2 is reversed, and this part of the case is remanded to the Seoul High Court. Plaintiff 1's appeal is dismissed. The costs of Plaintiff 1's appeal, including those arising from the Defendant's intervenor's participation, shall be borne by said Plaintiff.
[Reasoning]
The grounds of appeal are examined.
1. Regarding the Establishment of an Implied Employment Contract Relationship
In order for a person employed by an original employer while working at a third party's place of business and engaging in the third party's business to be considered an employee of the third party, the following must be established: the original employer must lack independence as a business owner, or lack such independence to the extent that it can be equated with the third party's labor-dispatching agency, such that its existence is merely formal and nominal; the employee in question must be, as a matter of fact, in a subordinate relationship with the third party; the party actually paying wages must also be the third party; and the party to whom labor is provided must also be the third party, such that it can be evaluated that an implied employment contract relationship has been established between the employee in question and the third party (see Supreme Court Decision 2005Da75088, rendered July 10, 2008, etc.).
The court below found that the in-house subcontractors within the Ulsan plant of the Intervenor for the Defendant (hereinafter referred to as the "Intervenor"), with whom the Plaintiffs had entered into employment contracts, could not be found to have lost their independence as business owners to such an extent that their existence could be regarded as merely formal and nominal, and accordingly rejected the Plaintiffs' argument that an implied employment contract relationship had been established between the Plaintiffs and the Intervenor. Examining the facts found by the court below in light of the above legal principles, this determination by the court below can be accepted as justified, and there is no error of misapprehension of the legal principles concerning the establishment of an implied employment contract relationship, as alleged in the grounds of appeal.
2. Regarding the Establishment and Effects of a Worker Dispatch Relationship
A. Under Article 2, Subparagraph 1 of the former Act on the Protection, Etc. of Dispatched Workers (파견근로자보호 등에 관한 법률) (before amendment by Act No. 8076 on December 21, 2006, hereinafter the "Dispatched Workers Protection Act"), "worker dispatch" means "having a worker, after being employed by a dispatching business owner and while maintaining the employment relationship therewith, engage in work for a using business owner under the direction and supervision of the using business owner in accordance with the terms of a worker dispatch contract."
(1) According to the facts as found by the court below, the following circumstances can be ascertained.
① The Intervenor's automobile assembly and production work was mostly conducted through an automated flow method using conveyor belts, and the Plaintiffs, who were employees of the in-house subcontractors in this case that had entered into subcontracting agreements with the Intervenor, were engaged in the assembly process using conveyor belts.
② The Plaintiffs were placed intermingled with the Intervenor's regular employees on the left and right sides of the conveyor belt, and performed simple, repetitive tasks using the Intervenor's production-related facilities, parts, and consumables, in accordance with various work instruction sheets prepared and issued in advance by the Intervenor that directed employees on part identification methods and work procedures, among other matters. The unique technology or capital of the in-house subcontractors in this case was not invested in the work at all.
③ The Intervenor held general authority over the assignment and reassignment of work for the employees of the in-house subcontractors in this case, and, just as with its own directly employed workers, determined the amount of work, work methods, and work sequence that the Plaintiffs were to perform. The Intervenor gave specific work instructions to the Plaintiffs either directly or through on-site managers belonging to the in-house subcontractors in this case, and this same method of giving work instructions was employed even when errors in the Plaintiffs' work performance were discovered and correction was required. Considering the nature of the work performed by the Plaintiffs, even where the on-site managers of the in-house subcontractors exercised specific direction and supervision over the Plaintiffs, this was merely a transmission of matters determined by the principal contractor, or such direction and supervision was merely controlled by the principal contractor, etc.
④ The Intervenor determined, with respect to both the Plaintiffs and its directly employed workers, the start and end times of work, the granting of rest periods, decisions on overtime and night work, whether to operate a shift system, and the pace of work. Additionally, when vacancies arose among regular employees due to industrial accidents, leaves of absence, or other reasons, the Intervenor had employees of the in-house subcontractors fill such vacancies.
⑤ The Intervenor, through the in-house subcontractors in this case, ascertained and managed the attendance status, personnel status, and the like of the employees of the in-house subcontractors in this case, including the Plaintiffs.
(2) Examining these circumstances in light of the legal principles set forth above, it should be found that the Plaintiffs, after being employed by the in-house subcontractors in this case, were dispatched to the Intervenor's place of business and were in a worker dispatch relationship in which they received direct labor direction and supervision from the Intervenor.
Given this, the court below's determination—based solely on the circumstances set forth in its reasoning—that it was difficult to view the in-house subcontractors in this case as constituting worker dispatch, whereby they employed the Plaintiffs and had them engage in work for the Intervenor under the Intervenor's direction and supervision, contains an error of misapprehending the legal principles concerning worker dispatch relationships or of failing to exhaust its examination of the matter.
B. Meanwhile, the main text of Article 6, Paragraph 3 of the Dispatched Workers Protection Act provides: "Where a using business owner continuously uses a dispatched worker for a period exceeding two years, the using business owner shall be deemed to have employed the dispatched worker from the day following the date on which the two-year period expires" (hereinafter referred to as the "Deemed Direct Employment Provision").
This Deemed Direct Employment Provision carries the meaning that where "worker dispatch," as defined in Article 2, Subparagraph 1 of the Dispatched Workers Protection Act, exists and such worker dispatch continues for a period exceeding two years, a direct employment relationship is thereby established between the using business owner and the dispatched worker as a direct consequence of that fact. Accordingly, there is no basis, in light of the language of the provision or its legislative purpose, for narrowly construing this provision as applying only to cases of so-called "lawful worker dispatch" (see Supreme Court en banc Decision 2007Du22320, rendered September 18, 2008, etc.).
Nevertheless, contrary to the legal principles set forth above, the court below determined that the Deemed Direct Employment Provision did not apply, on the grounds that the direct production process work in automobile assembly and other manufacturing, in which the Plaintiffs, who were dispatched workers, were engaged, did not fall within the scope of work for which worker dispatch business is permitted under Article 5, Paragraph 1 of the Dispatched Workers Protection Act, and that the in-house subcontractors in this case had not obtained permission to operate a worker dispatch business, such that the worker dispatch in this case was unlawful, with the Intervenor being the using business owner. This judgment of the court below contains an error of misapprehending the legal principles concerning the scope of application of the Deemed Direct Employment Provision under Article 6, Paragraph 3 of the Dispatched Workers Protection Act.
C. Meanwhile, according to the facts found by the court below, Plaintiff 2, for whom a worker dispatch relationship with the Intervenor is recognized, continued to be used by the Intervenor even after two years had elapsed from his date of joining, March 13, 2002, and was subsequently dismissed by his in-house subcontractor on February 2, 2005. Accordingly, pursuant to the Deemed Direct Employment Provision, the Intervenor is deemed to have directly employed said Plaintiff from March 13, 2004. However, although a worker dispatch relationship with the Intervenor is likewise recognized for Plaintiff 1, he joined Jeonghwa Enterprise, one of the Intervenor's in-house subcontractors, on January 1, 2005, and was used by the Intervenor, but was dismissed from said Jeonghwa Enterprise on February 3, 2005, before two years had elapsed. Accordingly, there is no room for the Deemed Direct Employment Provision to apply to him.
Therefore, the court below's error—in misapprehending the establishment of a worker dispatch relationship and the scope of application of the Deemed Direct Employment Provision, and in holding that the Intervenor could not be regarded as the employer who is the subject of unfair dismissal and unfair labor practice in relation to the Plaintiffs, such that the retrial determination in this case was lawful—constitutes an error that affected the outcome of the judgment in the case of Plaintiff 2, but did not affect the outcome of the judgment in the case of Plaintiff 1, to whom the Deemed Direct Employment Provision cannot be applied.
Ultimately, Plaintiff 2's argument in the grounds of appeal regarding this point is well-founded, while Plaintiff 1's argument in the grounds of appeal is without merit.
3. Accordingly, the part of the judgment below concerning Plaintiff 2 is reversed and this case is remanded to the court below for further hearing and determination; Plaintiff 1's appeal is dismissed, and the costs of Plaintiff 1's appeal, including those arising from the Defendant's intervenor's participation, are to be borne by the losing party. This judgment is rendered as set forth in the Order, by the unanimous opinion of the participating Justices.
Presiding Justice Shin Young-cheol
Justice Park Si-hwan
Justice Cha Han-sung (Presiding Justice for Deliberation)