[Plaintiffs, Appellants] Plaintiff 1 and 1 other (Attorneys Cha Hyun-il and 2 others, Counsel for the plaintiffs)
[Defendant, Appellee] Head of Seoul Regional Employment and Labor Office
[Judgment Below] Seoul High Court Decision 2019Nu53411 dated December 20, 2019
[Order]
The judgment below is reversed, and the case is remanded to the Seoul High Court.
[Reasoning]
The grounds of appeal are examined.
1. Outline of the Case and Issues
A. According to the reasoning of the judgment below, the following facts can be ascertained.
(1) Plaintiff 1 has a work history of serving as a "part-time job counselor" working 25 hours per week at the ○○ Regional Employment and Labor Office from March 28, 2011 to January 28, 2018, and Plaintiff 2 has a work history of serving as a "part-time job counselor" working 25 hours per week at the ○○△△ Branch Office of the ○○ Regional Employment and Labor Office from March 29, 2010 to January 22, 2018.
(2) Plaintiff 1 was appointed as a time-selective civil servant (Assistant Job Counselor) at the ○○ Regional Employment and Labor Office on January 29, 2018, and Plaintiff 2 was appointed on the same date as a time-selective civil servant (Assistant Administrative Officer) at the ○○□□ Branch Office of the ○○ Regional Employment and Labor Office, and both have been working since then.
(3) On May 11, 2018, the Defendant held a step-level career evaluation committee for newly appointed time-selective civil servants and determined the plaintiffs' initial step level as Step 4, without reflecting the plaintiffs' prior work experience as "part-time job counselors" in the step-level determination.
(4) On June 26, 2018, the plaintiffs requested the Defendant to redetermine their initial step level by aggregating their "part-time job counselor" work experience. In response, on July 6, 2018, the Defendant notified the plaintiffs of a decision refusing to redetermine the step level (hereinafter "the disposition in this case"), on the ground that "full-time service" (*sangeun*) as defined in Item 2.(b).7) of [Attached Table 16] "Career Conversion Rate Table for General Service Civil Servants, etc." under Article 8(2) of the Public Officials Remuneration Regulation (공무원보수규정) (hereinafter "the provision in this case") means only "a form of full-time work performed 5 days a week, 40 hours a week," and that the plaintiffs' "part-time job counselor" experience did not constitute "full-time service" (*sangeun*).
(5) The plaintiffs filed a petition for administrative appeal (petition for review of disciplinary or personnel action) on July 18, 2018, but the Civil Service Appeals Commission of the Ministry of Personnel Management dismissed the plaintiffs' petition on September 18, 2018.
B. The issue in this case is whether the plaintiffs' work experience as "part-time job counselors" constitutes "full-time service" (*sangeun*) as defined in the provision in this case.
2. Relevant Provisions and Legal Principles
A. Law is, in principle, a universally valid social norm that has the same binding force on an unspecified number of people. Therefore, in interpreting the law, one must clarify the standard meaning of the law so that it has objective validity, and must maintain consistency that is acceptable to as many people as possible so as not to undermine legal stability. On the other hand, since statutes are inevitably drafted with universal and typical cases in mind, when applying the statute to the various cases that arise in social reality, an interpretation is also required that produces the most reasonable solution suited to the specific case. In short, the goal of statutory interpretation must be, within the scope that does not undermine legal stability, to find concrete validity. To that end, while adhering in principle to an interpretation faithful to the ordinary meaning of the language used in the statute to the extent possible, one must additionally employ systematic and logical interpretation methods that take into account the legislative purpose and intent, the legislative history, harmony with the legal order as a whole, and the relationship with other statutes, in order to arrive at a reasonable interpretation that meets the above requirements of statutory interpretation (see Supreme Court en banc Decision 2011Da83431 delivered on January 17, 2013).
B. (1) Article 47(1) of the State Public Officials Act (국가공무원법) provides that matters concerning the step levels and step advancement of civil servants shall be determined by Presidential Decree. The Public Officials Remuneration Regulation (as amended by Presidential Decree No. 23497, January 6, 2012), enacted pursuant to that delegation, provides in the first sentence of Article 8(2) that the initial step level of a civil servant shall be determined in accordance with [Attached Table 15]; [Attached Table 15] "Table of Initial Step Levels for Civil Servants," Item 1, provides that the initial step level shall be determined by calculating career experience by rank in accordance with [Attached Table 16]; and the provision in this case [Item 2.(b).7)] of [Attached Table 16] "Career Conversion Rate Table for General Service Civil Servants, etc." provides that, in the case of "career experience as a private job counselor who worked on a full-time basis (*sangeun*) pursuant to Article 4-4(1) of the Employment Security Act (직업안정법)," career experience in the same field shall be recognized at 100%, and career experience in a different field shall be recognized at 80%, but does not specifically define the meaning of "full-time service" (*sangeun*).
(2) Article 4-4(1) and (2) of the Employment Security Act provides that the Minister of Employment and Labor may assign job counselors who are not civil servants (hereinafter "private job counselors") to employment security agencies to handle duties such as job placement, career guidance, and provision of employment information, and that the criteria for assigning private job counselors and other necessary matters shall be determined by Ordinance of the Ministry of Employment and Labor. Article 1-2(1) and (2) of the Enforcement Rule of the Employment Security Act, enacted pursuant to that delegation, provides that when the Minister of Employment and Labor assigns private job counselors, the Minister shall consider the population, number of workers, and number of workplaces in the area where the employment security agency is located, and that matters necessary for the qualifications, selection procedures, employment, and other personnel management of private job counselors shall be determined by the Minister of Employment and Labor.
Pursuant to that delegation, the Minister of Employment and Labor regulated matters necessary for the duties, qualifications, selection procedures, employment, and other personnel management of private job counselors assigned to regional labor offices under the former "Job Counselor Regulation" (구 「직업상담원규정」) (partially amended by Ministry of Labor Directive No. 729, January 20, 2010; hereinafter the same). However, in order to lead the creation of part-time jobs in the public sector and to provide quality part-time jobs to career-interrupted women burdened with childbirth and childcare, among others, the "Part-Time Job Counselor Regulation" (구 「단시간근로 직업상담원규정」) (enacted as Ministry of Labor Directive No. 733, March 1, 2010; hereinafter the same) was enacted to introduce the "part-time job counselor" system. Articles 2 and 3 of the former Part-Time Job Counselor Regulation divided job counselors who are not civil servants into "part-time job counselors" and "regular job counselors," and provided that a "part-time job counselor" means a worker who is not a civil servant and is a part-time worker under Article 2 of the Labor Standards Act (근로기준법), and that, except as otherwise provided by other statutes or regulations, the former Part-Time Job Counselor Regulation shall apply to such counselors, while a "regular job counselor" means a job counselor under Article 2 of the former Job Counselor Regulation, to whom the former Job Counselor Regulation shall apply.
Meanwhile, after the disposition in this case, in order to resolve the problem that "part-time job counselors" and "regular job counselors" held the same status and performed the same duties despite being governed by separate regulations, the former Part-Time Job Counselor Regulation was abolished by Ministry of Employment and Labor Directive No. 251 on October 11, 2018, and the former Job Counselor Regulation was wholly amended by Ministry of Employment and Labor Directive No. 267 on January 30, 2019 to integrate and regulate both types of counselors, becoming the current "Job Counselor Operation Regulation" (현행 「직업상담원 운영규정」). Article 2 of the current Job Counselor Operation Regulation defines a "regular job counselor" as a job counselor among job counselors who is employed with prescribed working hours of 8 hours per day and 40 hours per week, and a "part-time job counselor" as a job counselor among job counselors who is employed with prescribed working hours of 5 hours per day and 25 hours per week.
(3) Article 2(9) and Article 18 of the Labor Standards Act define a "part-time worker" as a worker whose prescribed weekly working hours are shorter than the prescribed weekly working hours of a regular worker engaged in the same type of work at the same workplace, and provide that the working conditions of a part-time worker shall be determined in proportion to the working hours of a regular worker engaged in the same type of work at the same workplace, that matters serving as the standard for such determination and other necessary matters shall be prescribed by Presidential Decree, and that Article 55 (guarantee of paid holidays) and Article 60 (guarantee of annual paid leave) shall not apply to workers whose average prescribed weekly working hours over four weeks (or the relevant period, if working for less than four weeks) are less than 15 hours.
C. In light of the legal principles set forth above and upon examining the content and structure of the relevant provisions, "full-time service" (*sangeun*) in the provision in this case should be understood to mean a case where a person reports for work every working day and works a fixed number of hours regularly, as determined by the rules of employment, etc. of the relevant workplace, and it should not be interpreted to mean only so-called "full-time" work of 8 hours per day and 40 hours per week. The specific reasons are as follows.
(1) Since the Public Officials Remuneration Regulation does not specifically define the meaning of "full-time service" (*sangeun*), the meaning of "full-time service" (*sangeun*) in the provision in this case must be derived through a reasonable interpretation that, in principle, adheres faithfully to the ordinary meaning of the term "full-time service" (*sangeun*), while taking into account the enactment and amendment history and legislative purpose of the provision in this case, and its relationship with other statutes and regulations.
(2) The dictionary meaning of the term "full-time service" (*sangeun*) is "reporting to work at a fixed time every day and working for a fixed period of time, or such work." That is, the concept is centered on "constancy" and "regularity," and is not directly related to a "minimum working hours" requirement of at least a certain number of hours per day. Article 9, Item 1 of the Enforcement Decree of the National Health Insurance Act (국민건강보험법), enacted pursuant to the delegation under Article 6(2)(4) of the National Health Insurance Act, provides that persons excluded from workplace-based subscribers of national health insurance include "non-full-time workers or part-time workers whose prescribed monthly working hours are less than 60 hours," which also presupposes that "whether a person is a full-time worker" and "prescribed working hours" are separate criteria.
(3) The former Part-Time Job Counselor Regulation is a subordinate regulation under the Employment Security Act, established solely to determine matters necessary for the personnel management of private job counselors, and was not established with consideration for the recognition of career experience when determining the initial step level upon appointment of a private job counselor as a civil servant. The former Part-Time Job Counselor Regulation followed the distinction between part-time workers and regular workers under the Labor Standards Act as it is, and divided private job counselors into "part-time job counselors" and "regular job counselors," but apart from the difference in daily working hours, there was no difference between the two in terms of qualifications, status, or duties. The Labor Standards Act merely allows, within a certain scope, room for regulating the working conditions of "part-time workers" differently from those of regular workers by workplace, and does not provide that a "part-time worker" does not constitute a "full-time worker" (*sangeun geullojeu*). Therefore, the distinction made between the two by the former Part-Time Job Counselor Regulation was merely intended to regulate the working conditions, such as holidays and leave, of "part-time job counselors" differently from those of "regular job counselors," and does not appear to have been intended to exclude the career experience of "part-time job counselors" from recognition as career experience when determining the initial step level of civil servants. Although the current Job Counselor Operation Regulation defines "part-time job counselor" somewhat more specifically as "a job counselor among job counselors who is employed with prescribed working hours of 5 hours per day and 25 hours per week," for the same reasons, the mere fact that a person falls under the "part-time job counselor" defined in the Job Counselor Operation Regulation cannot be deemed to have the effect of excluding that person from "a private job counselor who worked on a full-time basis (*sangeun*)" as defined in the provision in this case.
(4) When the Public Officials Remuneration Regulation was amended by Presidential Decree No. 23497 on January 6, 2012, in order to "improve the criteria for recognizing similar career experience," the phrase "who worked on a full-time basis (*sangeun*)" was added in several places in [Attached Table 16], [Attached Table 17], and [Attached Table 19], including the provision in this case. The reason for the amendment stated by the government at the time was that, whereas previously only some career experience among similar careers was recognized in a limited manner for non-regular employment experience prior to appointment as a civil servant, in order to actively attract excellent human resources from the private sector into public service, up to 100% of private-sector career experience in the same field would be recognized, and, in order to remedy discrimination against non-regular workers, "similar career experience of non-regular workers who worked on a full-time basis (*sangeun*)," in addition to that of regular workers, would be recognized and reflected in the determination and redetermination of step levels. As such, the reason for adding the phrase "who worked on a full-time basis (*sangeun*)" to the provision in this case was to actively recognize non-regular work experience prior to appointment as a civil servant in determining the civil servant's step level, not to limit the scope of recognition through the phrase "who worked on a full-time basis (*sangeun*)." Therefore, any attempt to strictly interpret the meaning of "full-time service" (*sangeun*) in [Attached Table 16], etc. of the Public Officials Remuneration Regulation so as to limit the scope of recognition is fundamentally contrary to the purpose of the 2012 amendment to the Public Officials Remuneration Regulation, and, absent special circumstances such as the drafter of the Enforcement Decree explicitly changing policy and amending the Public Officials Remuneration Regulation to a different effect, such an attempt cannot, in principle, be permitted.
(5) Meanwhile, according to the reasoning of the judgment below, it can be seen that, as the scope and rate of recognition of similar career experience for step-level purposes were expanded by the 2012 amendment to the Public Officials Remuneration Regulation, and in order to explain the amended content of the Ministry of Public Administration and Security's "Criteria for Handling Civil Servant Salary Affairs" that was likewise amended, materials titled "Major Amendments to the 'Criteria for Handling Civil Servant Salary Affairs'" prepared and distributed around May 2012 by the Performance Compensation Planning Division of the Personnel Management Office of the Ministry of Public Administration and Security described "full-time service" (*sangeun*) as "a case where a person is subject to the same working hours as a regular employee of the relevant institution and works full-time" (Exhibit A No. 8, p.7), and accordingly, the "Detailed Criteria for Recognition of Step Level for Similar Career Experience" prepared around October 2012 by the Operation Support Division of the Ministry of Employment and Labor described the concept of "full-time service" (*sangeun*) as "being subject to the same working hours as a regular employee of the relevant institution, receiving regular compensation not less than the minimum wage under the Labor Standards Act, and working full-time" (Exhibit B No. 9, p.8). However, this description is nothing more than an independent interpretive opinion on the concept of "full-time service" (*sangeun*) presented by some related departments without any basis in statute or regulation, and moreover, is contrary to the purpose of the 2012 amendment to the Public Officials Remuneration Regulation as examined above, and therefore cannot be accepted.
3. Determination as to This Case
A. As set forth above, since the former Part-Time Job Counselor Regulation, like the former Job Counselor Regulation, was established pursuant to the delegation under Article 4-4(2) of the Employment Security Act, a "part-time job counselor" as defined in the former Part-Time Job Counselor Regulation is one type of "private job counselor" under Article 4-4(1) of the Employment Security Act.
Article 28 of the former Part-Time Job Counselor Regulation, which applied to the plaintiffs during their period of career experience as "part-time job counselors," provided that working days shall be from Monday to Friday each week, and every Saturday shall be an unpaid non-working day (paragraph 1); working hours shall be from 10:00 to 16:00 (paragraph 2); and rest periods shall be governed by the Labor Standards Act, but shall be within a range separately designated during working hours in consideration of workload.
In light of the content of these provisions and the facts set forth above, since the plaintiffs, during their period of career experience as "part-time job counselors," worked regularly 5 hours a day (excluding rest periods) for 5 days a week, which is the ordinary number of working days for government offices, they should be deemed to have worked on a "full-time" (*sangeun*) basis, and therefore, pursuant to the provision in this case, the plaintiffs' career experience as "part-time job counselors" must be reflected in the determination of their initial step level as civil servants.
B. Nevertheless, the court below, based solely on the circumstances set forth in its reasoning, determined, on the premise that "full-time service" (*sangeun*) in the provision in this case means only "a form of full-time work performed 5 days a week, 40 hours a week," that the plaintiffs' career experience as "part-time job counselors" does not constitute "full-time service" (*sangeun*) and therefore does not constitute career experience to be reflected in the determination of the initial step level. This determination by the court below contains an error in misunderstanding the legal principles concerning the meaning of "full-time service" (*sangeun*) in the provision in this case, which affected the judgment.
4. Conclusion
Therefore, the judgment below is reversed, and the case is remanded to the court below for further hearing and determination. This Decision is rendered by the unanimous opinion of the Justices involved, as set forth in the Order.
Justice Park Jeong-hwa (Presiding Justice), Kwon Soon-il (Justice in charge), Lee Ki-taek, Kim Seon-su