Section 2: Individual Labor Relations
Chapter 11: Discrimination Correction for Non-Regular Employees
5. Reasonable Reasons
5.3 Rejection of Reasons for Non-Payment of Long Service Allowance in the Case of Repeated Renewal of Fixed-term Employment Contracts
| Seoul Administrative Court Decision on January 22, 2010, Case 2009guHap28155 | |||||
| * Plaintiff: Partnership J
* Defendant: Chairman of the National Labor Relations Commission * Defendant's Assistant Participant: Employee ○○○ 1. Facts a. ○○ Metropolitan City holds the authority to designate and change bus routes. It assigns medium sized bus routes to outer areas with fewer passengers and better driving conditions (lower congestion) and designates large bus routes in inner city areas with higher passenger volume and more vehicles, resulting in higher congestion. As of December 2008, the plaintiff operates 96 large buses on 8 routes and 40 medium sized buses on 7 routes, as allocated by ○○ Metropolitan City. b. Since the introduction of the unprofitable medium sized bus routes in 1998, the ○○ City Bus Transport Association has been annually drafting wage payment regulations for medium sized bus drivers. This is done after wage agreements applicable to large bus drivers are concluded with the ○○ Regional Bus Labor Union of the Automobile Workers' Union Federation. The wage increase rate specified in the wage agreements is used to create the wage payment regulations for medium sized bus drivers, which are then distributed to ten companies through the ○○ City Bus Company Representatives' Meeting. Each company signs individual employment contracts with medium sized bus drivers, applying the regulations uniformly. The participant joined the plaintiff company on August 23,2005, entered into fixed term employment contracts on an annual basis, and has renewed them each year. Since November 11, 2007, the participant has been driving route 77 in Jinwol, operating a medium sized bus. c. The wage system of the plaintiff company is based on a daily wage (ordinary hourly wage 8 hours number of working days). For large bus drivers, the work schedule is a 9 hour two shift system with a full month consisting of 22 days (20 days in February). For medium sized bus drivers, it is an 18.5 hour alternate day system (including a 2hour meal break), with a full month consisting of 12 days. d. There are differences in bonuses, accident free allowances, and continuous service allowances between large bus drivers and medium sized bus drivers. Additionally, there are differences between large and medium sized buses in terms of vehicle length, passenger capacity, total weight, operation time, interval between buses, and number of passengers transported. e. The accident rate per bus for the plaintiff company shows that in 2007, the rate for large buses was 57.7 %, whereas for medium sized buses, it was 45.9 %. In 2008 (as of November), the rate for large buses was 66.3 %, while for medium sized buses, it was 15.8 %. 2. Court Judgment a. According to Article 8 of the Fixed term Employment Act, an employer must not treat fixed term employees unfavorably compared to employees with indefinite term employment contracts who are engaged in the same or similar work at the same business or workplace, solely because they are fixed term employees. The determination of whether the work qualifies as "the same or similar work" should be made by comprehensively considering the main nature and content of the work, the degree of authority and responsibility in the performance process, and the working conditions. Even if the tasks performed by regular employees and fixed term employees do not completely match, if there is no substantial difference in the core elements such as the main content of the work and the working conditions, both should be considered as being engaged in the same or similar work. In this case, there is no substantial difference in the main task of "driving a bus" between the medium sized bus drivers and the large bus drivers of the plaintiff company. Although there are differences in specific work details and working conditions such as the routes of service, these differences are sufficient to be considered when determining whether there is a reasonable cause for unfavorable treatment. Therefore, the operation of medium sized buses and large buses should ultimately be regarded as the same or similar work. b. Large buses, compared to medium sized buses, have a larger passenger capacity, longer vehicle length, and greater total weight. They operate on inner city routes with higher traffic demand and more complex traffic conditions. Generally, they have longer operation hours, shorter intervals between dispatches, and carry approximately twice as many passengers on average, thus requiring greater labor intensity. Large buses are more exposed to the risk of accidents due to the nature of their routes, and their accident rate per bus is significantly higher. Consequently, driving large buses requires higher technical handling skills and intense concentration, along with a greater psychological burden due to the responsibility for more passengers. Because of these differences in labor intensity, medium sized bus drivers work full day shifts on alternate days, whereas large bus drivers work in two shifts per day. Considering all these factors, the plaintiff company's differentiation in ordinary hourly wages, bonuses, and accident free allowances between medium sized and large bus drivers is deemed to be reasonable discrimination. However, regarding the continuous service allowance, while the plaintiff company pays a fixed monthly amount to large bus drivers, it did not pay any continuous service allowance to the fixed term employees such as the plaintiff. Although the continuous service allowance is meant for employees with more than one year of service, considering that the fixed term employees, including the plaintiff, have continuously renewed their contracts without any special circumstances, it is difficult to justify the complete non payment of the allowance based solely on their status as fixed term employees. The company could have varied the amount based on differences in working conditions, but the complete lack of payment constitutes discrimination without a reasonable cause. |
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