hankyoreh

Feb. 10. (Shin So-young)

By Hwang Ye-rang　

“Hyundai Motor is waiting for the Supreme Court membership to change.”

Legal and labor experts who have watched Hyundai Motor’s response over the past year to a ruling on illegal temporary employment unanimously agreed that the company has adopted a strategy of buying time. While a February reverse and remand hearing ended up supporting the Supreme Court ruling last July ordering the company to hire all in-house subcontracting workers with more than two years of service, Hyundai Motor appealed once again. The company even went as far as to file a Constitutional petition with the Constitutional Court on Article 6, Item 6 of the former Act on the Protection, Etc. of Temporary Agency Workers, the “constructive employment” item that served as the basic for the ruling, after a court rejected an application to recommend it for an unconstitutionality review.

An official with Hyundai Motor said, “The company’s position is that it will continue to receive legal decisions to the end.”

Advising this course of action is the company’s legal representative, the law firm Kim and Chang. A Kim and Chang labor team including former Supreme Court Justice Son Ji-yeol is focusing its energies on the Constitutional appeal, and an advisory team has been established with university professors among its members.

An expert familiar with in-house subcontracting issues conceded, “The Supreme Court’s conclusion is unlikely to change,” but added, “Determining whether the constructive employment item is unconstitutional is a completely different legal issue from illegal temporary employment.”

The prospects for a Constitutional Court reversal do not appear favorable. While Hyundai has encouraged the holding of a public argument based on the determination that it is a case where minority opinions in the Constitutional Court are sharply divided, the issue was not included on the final list of cases for public argument for the second half of 2011, with only a handful of justice presenting the opinion that it should be handled in that way.

In reality, Hyundai Motor’s aims in filing the appeal lie elsewhere. Officials with the company have openly stated that because the illegal temporary employment ruling was made by a subdivision made up of only four justices, the conclusion is likely to be different if submitted for en banc discussions by all fourteen.

Regarding this logic, an attorney said, “Their expectation is that if the appeal is handled through an en banc hearing following the retirement of progressive-leaning justices like Chief Justice Lee Yong-hoon, Kim Ji-hyung, and Park Si-hwan, it may be overturned.”

But a senior Supreme Court official, noting that the Hyundai Motor case was discussed in a report during a plenary meeting of Supreme Court Justices, said, “It simply was not submitted for an en banc hearing because there was not much of difference of views among all the justices,” indicating a different situation from the one claimed by the company.

Additionally, the idea that those who work alongside regular employees and receive work orders from the contracting company are considered “illegal temporary workers” has been consistently upheld in recent court rulings. On July 8, the Supreme Court ruled that the Gwangju Regional Labor Office was “justified in its remedial measures ordering the direct employment of in-house subcontracting workers engaged in packaging duties at the Kumho Tire factory.”

Like Hyundai Motor, Kumho Tire has taken steps to avoid direct employment by filing a Constitutional appeal.

Please direct questions or comments to [englishhani@hani.co.kr]