[Plaintiffs, Appellees] As set forth in the attached list of plaintiffs. (Attorneys Kwon Young-guk and 1 other, Counsel for the Plaintiffs)
[Defendant, Appellant] Korea Hydro & Nuclear Power Co., Ltd. (Lee Jeong-han and 2 others, Attorneys at Law of Yulchon LLC (Bae, Kim & Lee LLC) [Taepyeongyang], Counsel for the Defendant)
[Judgment Below] Seoul High Court Decision 2012Na10302 decided January 25, 2013
[Order]
All appeals are dismissed. The costs of the appeal are to be borne by the Defendant.
[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, to the extent it supplements the grounds of appeal) are examined.
1. (a) Under Article 2, Subparagraph 1 of the Act on the Protection, etc. of Temporary Agency Workers (파견근로자보호 등에 관한 법률, hereinafter the "Dispatch Act"), "worker dispatch" means that a dispatching business owner, after employing a worker, has the worker 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, while maintaining the employment relationship with the worker.
Where an original employer has a certain worker perform work for a third party, whether such legal relationship constitutes worker dispatch subject to the application of the Dispatch Act as described above should not be determined by the name or form of the contract entered into by the parties, but rather in accordance with the substance of the employment relationship, based on such factors as: whether the third party directly or indirectly issues binding instructions concerning the performance of the work itself and otherwise exercises substantial direction and supervision over the worker in question; whether the worker in question can be deemed to have been substantially incorporated into the third party's business, such as by being organized into a single working group together with workers belonging to the third party and performing joint work directly with them; whether the original employer independently exercises the authority to make decisions regarding the selection of workers to be assigned to the work, the number of workers, education and training, working and rest hours, leave, and the monitoring of work attitude; whether the purpose of the contract is fixed as the performance of a concretely limited scope of work, whether the work assigned to the worker in question is distinguished from the work of workers belonging to the third party, and whether such work has professionalism or technicality; and whether the original employer possesses an independent business organization or equipment necessary to achieve the purpose of the contract (see Supreme Court Decision 2010Da93707 decided February 26, 2015, etc.).
(b) The former Dispatch Act (before its amendment by Act No. 8076 on December 21, 2006, the same applies hereinafter) contained a provision in the main text of Article 6(3) stating that "where a using business owner continuously uses a dispatched worker for more than 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 the "deemed direct employment provision"), thereby providing that, where a using business owner violated the restriction on the dispatch period, a direct employment relationship between the using business owner and the dispatched worker would be deemed to have been formed immediately.
However, the subsequently amended Dispatch Act, replacing the deemed direct employment provision, provides in Article 6-2(1) to the effect that "where a using business owner continuously uses a dispatched worker for more than two years, the using business owner shall directly employ the dispatched worker concerned" (hereinafter the "direct employment obligation provision"). Accordingly, under the amended Dispatch Act, a using business owner who has violated the restriction on the dispatch period bears an obligation to directly employ the dispatched worker pursuant to the direct employment obligation provision, and therefore, where the using business owner fails to perform the direct employment obligation, the dispatched worker has a private-law right to seek a judgment against the using business owner in lieu of a manifestation of intent to employ, and upon finalization of such judgment, a direct employment relationship is formed between the using business owner and the dispatched worker. In addition, the dispatched worker may, together with the foregoing, claim damages equivalent to wages for the period until the direct employment relationship is formed, on the ground of the using business owner's failure to perform the direct employment obligation.
(c) Both the deemed direct employment provision and the direct employment obligation provision are intended, separately from administrative supervision or punishment, to establish the legal relationship arising between the using business owner and the dispatched worker and the legal effects thereof in the private-law relationship between them as well, by deeming a direct employment relationship to have been formed or by imposing a direct employment obligation on the using business owner, with respect to conduct in which the using business owner continuously uses dispatched workers in violation of the restriction on the dispatch period, for the purpose of preventing the routine and prolonged use of worker dispatch while promoting the employment stability of dispatched workers (see Supreme Court en banc Decision 2007Du22320 decided September 18, 2008). The content of these provisions has no direct relation to the dispatching business owner, and the requirements for their application do not require identity of the dispatching business owner throughout the dispatch period. Therefore, it is reasonable to hold that, where a using business owner has, in violation of the restriction on the dispatch period, had the dispatched worker concerned continue to perform the work in question, the deemed direct employment provision or the direct employment obligation provision cannot be excluded from application solely on the ground that the dispatching business owner changed during the dispatch period, absent special circumstances.
2. The court below, upon comprehensive consideration of the evidence it adopted, found the facts as stated in its judgment, and then determined as follows: it was reasonable to view that the Plaintiffs were in a worker dispatch relationship in which they were employed by the service company and then dispatched to the Defendant's work site, receiving direct direction and supervision from the Defendant, in light of the following circumstances comprehensively considered: ① with respect to power generation technical support work stated in the service specifications, many of the tasks among the power generation assistance work, chemical sample collection, and substation assistance work require a certain level of skill and proficiency, such that the Plaintiffs concerned could not independently perform them without education or instruction from the Defendant's regular employees, and the Defendant provided education to the Plaintiffs regarding work performance through its regular employees; ② in the case of those performing assistance work in the Power Generation Operation Department under the day-shift system and the chemical sample collectors, the Plaintiffs concerned were assigned seats in the same office as the Defendant's regular employees, attended the same meetings, received necessary work instructions, and appear to have performed work in accordance with various instructions while working intermixed with the Defendant's regular employees; ③ in the case of power generation assistants and substation assistants operating under a three-shift system, attendance confirmation for the Plaintiffs concerned during night or holiday shifts was conducted not by the service company but by the Defendant's regular employees, the authority over shift assignment or its modification belonged not to the service company but to the Defendant, and matters concerning changes in work methods, such as the implementation of a rotation system between power generation assistants and those performing assistance work in the Power Generation Operation Department, and changes to the shift system for substation assistants, were also determined and implemented by the Defendant on its own initiative; ④ in the case of power generation assistants, chemical sample collectors, and substation assistants, the results of the Plaintiffs' work performance were confirmed by the Defendant's regular employees, who signed off in the approval column; ⑤ the Defendant provided most of the equipment and supplies necessary for the Plaintiffs' work performance, excluding work uniforms, safety shoes, safety helmets, etc.; ⑥ matters concerning the Plaintiffs' work attitude, such as extra work, substitute work, and leave, were also managed and controlled by the Defendant, and the service company merely received reports on extra work after the fact, without exercising any management or control over whether or when it was carried out; and ⑦ during their period of work, the Plaintiffs received instructions or supervision from the Defendant regarding their work, but received no instructions or supervision whatsoever from the service company.
Furthermore, the court below determined that, as long as the same using business owner used the dispatched workers for the period prescribed under the Dispatch Act, direct employment would be deemed to have occurred or a direct employment obligation would be recognized even if the dispatching business owner changed during that period, and accordingly held to the effect that: Plaintiff 1 was deemed to be an employee of the Defendant from the point at which two years elapsed after the former Dispatch Act took effect; Plaintiffs 2, 3, 4, 5, 7, and 8 were each deemed to be employees of the Defendant from the day following the expiration of two years from the date they were first dispatched to the power plant at issue; and, with respect to Plaintiff 6, the Defendant's direct employment obligation arose from the day following the expiration of two years from the date of first dispatch to the power plant at issue.
Examining the record in light of the legal principles set forth above, the above determination by the court below is justifiable, and there is no error therein, as alleged in the grounds of appeal, such as violating the rules of logic and experience so as to exceed the limits of the principle of free evaluation of evidence, or misapprehending the legal principles concerning the determination of the content of work in worker dispatch, the requirements for worker dispatch or its distinction from subcontracting, and the restriction on the dispatch period, or failing to conduct the deliberation required or to state the reasons therefor.
3. Therefore, all appeals are dismissed, and the costs of the appeal are to be borne by the losing party. This Judgment is rendered as set forth in the Order with the unanimous consent of the participating Justices.
[Attachment] List of Plaintiffs: Omitted
Justice Lee Ki-taek (Presiding Justice), Lee In-bok, Ko Young-han (Justice in Charge), Kim So-young