비정규직 차별시정례에 나타난 판정근거에 대한 분석 - ‘중노위의 초심취소 또는 초심일부취소 사례’를 중심으로 - (Study on the reason for deciding to Correction of Discriminatory Treatment of non - regular workers - Based on ‘Initial Revocation or Partial Revocation Cases of NLRC’ -)

서지정보

· 발행기관 : 한국비교노동법학회
· 수록지 정보 : 노동법논총 / 37권 / 419 ~ 476페이지
· 저자명 : 권태령

초록

The system on the Correction of Discriminatory Treatment of Non-Regular Workers, which took effect on July of 2007, has not been vigorously active due to its low application numbers(around 100 per year). There can be various reasons as to why the application remains in such low numbers just as it was pointed out in numerous studies, but major problems are the lack of unity on the reason of decision between National and Regional Labor Relations Commission(from hereon NLRC and RLRC) and inconsistency on their contents of judgement. The inconsistency of contents of judgement can be drawn from the fact that the granting rate on the Correction of Discriminatory Treatment remains at 7% by RLRC, whereas the rate goes up to 42% when NLRC was the judge. Through this discrepancy alone, we can safely deduce the absence of a standing standard of reasons for decisions.
This study chose 11 cases which showed the clearest discrepancy between NLRC and RLRC among the cases brought to NLRC from 2007 to the present, and reviewed its validity. Especially, the review was focused on the following two parts: First, issue pertaining to the decision of sameㆍsimilar kind of work when it comes to selecting the comparable employees; and Second, rationality decisions toward Discriminatory treatment.
The criteria of deciding sameㆍsimilar kind of work for selection of comparable employees suggest that the work must not be different in its essence; such as the content, scale, rights and obligations, and means of performing the work. The minor difference in the content, means, rights and obligations are not considered as essential part of the decision. However, the reality clearly shows conflicting decisions between NLRC and RLRC despite these established common principle. The reasons behind these conflicts are difference in the contents of work(case 2), qualifications in recruiting(case 4), value of work(case 5), etc.
Inconsistency in deciding rationality toward disadvantageous treatments between NRLC and RLRC, or NRLC with other cases are shown in discrimination of wages to hiring retired personnel(case 1), discrepancy in judging non-payment of the wage-like items listed in monetary incomes(case 2, 3, 7, 8), and rationality of discriminating regular incentive payments(case 10).
This discrepancy between RLRC, NLRC, and the Court will only promote the ineffectiveness of the system on the Correction of Discriminatory Treatment by delaying a final judgement on the applications. The expectation of a vigorous system can be achieved with the establishment of an agreed criteria through accumulation of decisions and cases, as well as when reason of decision can be harmonized. Furthermore, the Labor Commissions and Courts responsible for the cases on the Correction of Discriminatory Treatments should take actions onto their hands and break the standing non-essential reasoning and make effective decisions to eradicate actual discriminations and to ultimately persue the original purpose of the system.

영어초록

The system on the Correction of Discriminatory Treatment of Non-Regular Workers, which took effect on July of 2007, has not been vigorously active due to its low application numbers(around 100 per year). There can be various reasons as to why the application remains in such low numbers just as it was pointed out in numerous studies, but major problems are the lack of unity on the reason of decision between National and Regional Labor Relations Commission(from hereon NLRC and RLRC) and inconsistency on their contents of judgement. The inconsistency of contents of judgement can be drawn from the fact that the granting rate on the Correction of Discriminatory Treatment remains at 7% by RLRC, whereas the rate goes up to 42% when NLRC was the judge. Through this discrepancy alone, we can safely deduce the absence of a standing standard of reasons for decisions.
This study chose 11 cases which showed the clearest discrepancy between NLRC and RLRC among the cases brought to NLRC from 2007 to the present, and reviewed its validity. Especially, the review was focused on the following two parts: First, issue pertaining to the decision of sameㆍsimilar kind of work when it comes to selecting the comparable employees; and Second, rationality decisions toward Discriminatory treatment.
The criteria of deciding sameㆍsimilar kind of work for selection of comparable employees suggest that the work must not be different in its essence; such as the content, scale, rights and obligations, and means of performing the work. The minor difference in the content, means, rights and obligations are not considered as essential part of the decision. However, the reality clearly shows conflicting decisions between NLRC and RLRC despite these established common principle. The reasons behind these conflicts are difference in the contents of work(case 2), qualifications in recruiting(case 4), value of work(case 5), etc.
Inconsistency in deciding rationality toward disadvantageous treatments between NRLC and RLRC, or NRLC with other cases are shown in discrimination of wages to hiring retired personnel(case 1), discrepancy in judging non-payment of the wage-like items listed in monetary incomes(case 2, 3, 7, 8), and rationality of discriminating regular incentive payments(case 10).
This discrepancy between RLRC, NLRC, and the Court will only promote the ineffectiveness of the system on the Correction of Discriminatory Treatment by delaying a final judgement on the applications. The expectation of a vigorous system can be achieved with the establishment of an agreed criteria through accumulation of decisions and cases, as well as when reason of decision can be harmonized. Furthermore, the Labor Commissions and Courts responsible for the cases on the Correction of Discriminatory Treatments should take actions onto their hands and break the standing non-essential reasoning and make effective decisions to eradicate actual discriminations and to ultimately persue the original purpose of the system.

참고자료

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