< This Week's Issues >
1. The Supreme Court Issued Its First Ruling Recognizing the Worker Status of Replacement Driver under the Trade Union Act.
(1) Case Background
(2) Key Issues of the Case and Lower Court Rulings
(3) Supreme Court Ruling and Future Outlook
2. Supreme Court Recognizes the Need for Remedy for a Standby Order Issued Before Maternity Leave
(1) Case Background
(2) Key Issues of the Case and Lower Court Rulings
(3) Supreme Court Ruling
3. 8 out of 10 Platform and Specially Employed Workers Say "No Access to Industrial Accident Compensation"
- Continuing Work with Crutches to Make Ends Meet: Ongoing Gaps in Coverage for Industrial Accident and Employment Insurance
4. Preventing Industrial Accidents through 'Color’
- Korea Occupational Safety and Health Agency Signs Agreement for "Color Design Development" to Enhance Recognition of Safety Information Such as Workplace Safety Signs
< Detailed News >
1. The Supreme Court Issued Its First Ruling Recognizing the Worker Status of Replacement Driver under the Trade Union Act. (Supreme Court 2020 Da 267491)
(1) Case Background
Company A has been recruiting Replacement Driver in the Busan area since May 2014, operating the replacement driver service business under a partnership contract with other companies like Company C. They jointly used a smartphone application to share customer requests for replacement driver services (calls) and assign driver.
Mr. B entered into a partnership contract with Company A in October 2017 and was working as a replacement driver. Mr. D, who signed a partnership contract with Company C, formed the "Busan Replacement driver Service Industry Union" in December 2018 and demanded collective bargaining with companies such as Company A and Company C, but the companies did not respond.
Meanwhile, Company A filed a lawsuit against Mr. B, arguing that "Mr. B, a replacement driver, is not a worker under the Trade Union Act" and sought a declaratory judgment confirming the absence of worker status.
(2) Key Issues of the Case and Lower Court Rulings
The main issues in this case were whether replacement driver qualify as workers under the Trade Union Act. The court focused on two key points:
① Whether replacement driver, who are assigned calls from other companies through a union of replacement driver service providers, could be recognized as having a subordinate relationship with a specific business operator.
② How to assess the replacement driver’s apparent choice or refusal regarding whether to perform a service.
Both the first and second lower courts ruled against the plaintiff, siding with the replacement driver. The courts based their judgment on factors such as the structure of payment for replacement driver services, the fact that Replacement Driver could only access the market through the replacement driver service companies, and the actual direction and supervision exercised by the plaintiffs over the defendants. These factors led the courts to conclude that replacement driver had an economic and organizational dependence on the companies.
(3) Supreme Court Ruling and Future Outlook
The Supreme Court upheld the lower court’s decision. It ruled that "Mr. B, as a replacement driver, relied on income earned by fulfilling calls assigned by Company A and its partner companies. According to the partnership contract, the company unilaterally decided fees, program usage costs, the rules to follow when performing services, and required training, indicating the existence of a certain level of direction and supervision."
Recently, the courts have shown a tendency to expand the recognition of worker status for platform workers, such as replacement driver. delivery workers, who were recognized as workers under the Trade Union Act in the second instance court, are awaiting a Supreme Court ruling, and there is considerable attention on how this ruling might influence ongoing disputes between Kakao Mobility and labor unions, particularly regarding fare and assignment policies, where they have yet to reach an agreement in collective bargaining.
2. Supreme Court Recognizes the Need for Remedy for a Standby Order Issued Before Maternity Leave (Supreme Court 2024 Du 40493)
(1) Case Background
Labor Union A reassigned Mr. B, who was serving as the head of the general affairs department, to the position of team leader of the civil complaints and guidance team (a demotion) on March 8, 2021. On March 12, 2021, Mr. B applied for a one-year maternity leave (April 15, 2021 – April 14, 2022). Meanwhile, on April 1, Labor Union A issued a standby order to Mr. B, placing him in a standby status until April 14, just before his maternity leave began.
On May 27 of the same year, Mr. B filed a petition for relief with the Labor Relations Commission against both the personnel reassignment and the standby order. When the National Labor Relations Commission (NLRC) ruled in favor of Mr. B’s petition for relief during its re-examination, Labor Union A filed a lawsuit against the chair of the NLRC, seeking to overturn the re-examination ruling.
(2) Key Issues of the Case and Lower Court Rulings
The first instance court dismissed the claims of Labor Union A, ruling that there was no illegality in the re-examination ruling by the National Labor Relations Commission (NLRB), which found no unlawful (or unjust) personnel orders or standby orders.
In the second instance court, the key issue was whether there was a right to seek redress when the standby order had expired. The second trial court ruled that since the standby order itself had already expired on April 15, 2021, when the maternity leave began, there was no need for remedy when the petition for relief was filed with the local labor commission.
(3) Supreme Court Ruling
The Supreme Court, differing from the ruling of the High Court, sent the case back to the lower court. The Supreme Court stated, “Even if a standby order becomes invalid in the future, if there are legal disadvantages stipulated in employment rules, such as restrictions on promotions or salary increases due to the standby order, there is a right to seek redress for that invalid standby order in order to eliminate such legal disadvantages.”
The Supreme Court noted, “The plaintiff's employment rules stipulate that the period of the standby order will not be included in the period required for promotion, and that only the basic salary will be paid to those under standby orders.” It concluded that “Mr. B appears to have suffered disadvantages, such as restrictions on promotions and reductions in salary due to the standby order.”
3. 8 out of 10 Platform and Specially Employed Workers Say "No Access to Industrial Accident Compensation" (Source: Maeil Labor News)
- A survey by the Service Industry Federation revealed that 82.1% of 747 platform and specially employed workers did not apply for industrial accident compensation after experiencing work-related accidents or suspected occupational diseases in the past three years.
- The reasons (multiple responses allowed) were: not knowing if they were eligible (42.7%) and the process being too complicated (41%).
- Additionally, 9 out of 10 workers did not apply for unemployment benefits even after experiencing job loss.
- Regarding improvements to the system, the most needed changes were identified as requiring employers to fully cover industrial accident insurance premiums (53.9%) and recognizing partial unemployment under employment insurance (67.1%).
4. Preventing Industrial Accidents through 'Color’
- On October 7, the Korea Occupational Safety and Health Agency, the Korea Color Universal Design Association, and Samhwa Paint Industry Co., Ltd. signed an MOU for the "Development of Industrial Safety Color Universal Design."
- The goal is to develop color designs that enable accurate recognition of safety signs and other safety information used in the workplace to prevent accidents and fatalities.
- The initiative will be supported for small-scale workplaces where foreign workers and others are employed, as a pilot program.
- Design samples and related resources will be made available through the agency’s website.
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