I. Summary

A defeated candidate of a provincial school superintendant election held July 2nd (hereinafter referred to as “the Candidate”), and a representative of his election campaign staff visited Kangnam Labor Law Firm and requested confirmation of the existence of unpaid wages. The Candidate registered his candidacy for school superintendant of 000 province on May 14, 2010, hired 339 staff for his election campaign, which took place over 13 days (May 20 to June 1, 2010), but did not pay 247,485,920 won in wages. The Candidate wanted to pay the withheld wages with a portion of about 2 billion won from a National Election Commission subsidy, but as the Candidate was put under provisional attachment from debts related to this and a previous election campaign, which equaled three times more than the expected National Election Commission subsidy, he was at that point unable to pay the wages.
The major legal issues in this case of unpaid wages were 1) whether the Labor Standards Act applies to the election campaign workplace, and 2) whether election campaign staff in this case are considered employees under the Labor Standards Act. As election campaign staff are considered employees, unpaid wages for an election campaign period shall be reimbursed preferentially by the court’s distribution procedures according to Article 38 of the Labor Standards Act (Preferential Reimbursement for Wage Claims). This article stipulates that employee claims for wages during election campaigns “shall be paid before any other obligations, taxes, public levies or other claims secured by pledges or mortgages, on the total assets of an employer.”
The labor inspector in charge of this case delayed confirming the existence of unpaid wages because he was uncertain whether to regard election campaign staff as employees. However, this labor attorney verified that election campaign staff were not volunteers pursuing their political inclinations, but were employees who provided labor services in return for daily wages. In addition, the labor attorney quoted a judicial ruling related to election campaign staff and explained that in this case, the election campaign staff were employees who provided labor service for the purpose of earning money just like daily workers. Fortunately, the election campaign staff were able to receive a letter confirming the existence of unpaid wages from the Labor Office on July 30th and submitted to the court.
I would like to review the employee characteristics of election campaign staff below.

II. Actual Situation

1. From May 20 to June 1, 2010, 339 election campaign staff worked 13 days at the election office of the Candidate, who ran for provincial school superintendent of the fifth simultaneous local elections on June 2, 2010.
2. The election campaign staff were classified into campaign managers (37) and campaign staff (302). The campaign managers were hired and worked under the direction and supervision of the candidate, but the campaign staff were hired and worked under the direction and supervision of the campaign managers. The campaign staff were supposed to receive 70,000 won in daily wages as declared by the National Election Commission, and the campaign managers were supposed to receive 90,000 won, (an additional allowance of 20,000 won above the campaign staff).
3. As for working situation, the campaign managers were each assigned to a city, Gun (rural district), and Gu (city district) and engaged in campaigning under the direct orders of the candidate. The campaign staff were assigned to designated areas like a crowded street with a lot of traffic during rush hour, and engaged in campaigning, but during the rest of the day, they promoted the Candidate to their relatives and friends on the phone, under the direction and supervision of the campaign managers.

III. Review of Related Judicial Rulings on Election Campaign staff

1. Criteria for determining employee characteristics
Whether a person is considered an employee under the Labor Standards Act is decided by whether he/she has worked under the employer’s supervision. That is, judgment is made by considering whether a person is under the supervision and control of the employer, whether working hours and workplace is defined, whether a substitution can be made, who owns working tools, whether payment can be remuneration for work, etc. (Supreme Court ruling on Sep 11, 2008, 2008 da 27035)
Whether a person is considered an employee under the Labor Standards Act shall be decided by whether that person offers work to the employer as a subordinate of the employer in a business or workplace to earn wages in actual practice, regardless of whether the type of contract is an employment contract or service agreement under Civil Law. Whether a subordinate relationship with the employer exists or not shall be determined by collectively considering: 1) whether the rules of employment or service regulations apply to a person whose duties are decided by the employer, and has been supervised or directed during his/her work performance specifically and individually by the employer; 2) whether his/her working hours and workplaces were designated and restricted by the employer; 3) whether his/her position can be substituted by a third party hired by the person; 4) who owns the equipment, raw material or working tools; 5) whether payment is remuneration for work and whether basic wage or fixed wage is determined in advance; 6) whether work provision is continuous and only exclusive to the employer; 7) whether the person is registered as an employee by the Social Security Insurance Acts and other laws, and 8) economic and social conditions of both sides.

2. Whether the workplace for election campaigning is applicable as a workplace under the Labor Standards Act
(1) Election offices and election campaign staff for a lawmaker are respectively considered workplaces and employees under the Labor Standards Act (Supreme Court ruling on Oct 26, 2007, 2005 do 9528).
The scope of application in the Labor Standards Act (Article 11) regulates, “This Act shall apply to all businesses or workplaces in which five or more workers are ordinarily employed.” This workplace refers to designated workplaces or parts of a business implemented to do all kinds of continuous work as activities under a systematically organized body. The Labor Standards Act applies to this kind of workplace, even though it is a one-time business or operates only temporarily, without limitations to the type of business nor whether it is for profit or a non-profit organization. As article 2 of the Labor Standards Act does not stipulate the specific kinds of work an employee is engaged in, work for a political body belongs to a business, workplace, or a job, as defined by the Labor Standards Act.
The Candidate set up an election office to organize his campaign, hired people to be paid on a daily basis, had them participate in election campaigning under his command and supervision, and required their work for a period of time (13 days). In this case, this operation shall be considered as a workplace as stipulated by the Labor Standards Act (Article 11). Although the election campaign staff were designated for and registered with the National Election, if they had an agreement with the Candidate to be paid a daily wage and they provided contractual labor service under the Candidate’s direction and supervision, they are considered employees under the Labor Standards Act.

(2) Work for a political body is considered to be a business or workplace, or job to which the Labor Standards Act applies (Busan District Court ruling on Dec 3, 2009, 2009no3338).
Another candidate trying to be elected as a lawmaker hired 30 employees for his election campaign, but did not pa