유럽연합의 단시간 근로자들에 대한 법적 보호 (Protection of Part-time Workers in the EU)

서지정보

· 발행기관 : 한국노동법학회
· 수록지 정보 : 노동법학 / 34호 / 291 ~ 349페이지
· 저자명 : 심재진

초록

This article examines case law of the Court of Justice of the European Union (EU) on part-time work. In the EU, protection of part-time workers is concerned with two kinds of law. One is sex discrimination law as, under the EU sex discrimination law, female part-time workers can challenge their disadvantages by means of the prohibition of indirect sex discrimination. Since 1981 the Court has applied former Article 119 of the Treaty and provisions of Community Directives on equal treatment between men and women at work since many more women than men work part-time. The 26 judgments so far made by the Court in relation to part-time workers are considered. They deals with various areas of employment relationship such as pay, career advancement, conditions of dismissal, occupational pension schemes and statutory social security allowances. The other law as to part-time work is the Part-time Workers' Directive, which is designed to directly protect part-time workers. The judgments by the Court on the Directive are just 2. Although it should be considered that the Directive came into force much later than sex discrimination law, the number is still very small.
After scrutinizing all the judgments by the Court on part-time work and comparing the two regimes of law, this article has found that the prohibition of indirect sex discrimination has been the main regulatory regime of law on part-time work in the EU. This results from the fact that in the absence of direct regulation on part-time work, the Court progressively broadened the scope of indirect sex discrimination law, the result of which was that almost all areas of employment, occupational pension schemes, social security benefits were covered by the law. Moreover once it turns out that a workplace rule has a disparate impact on one sex, the Court establishes the proportionality test in which, in order to defend that a workplace rule with a disparate impact is objectively justified, an employer is required to prove that the workplace corresponds to a legitimate aim and the means of achieving that aim are appropriate and necessary. On the other hand, the Part-time Workers' Directive, applying to employment relationship alone, is narrower than sex discrimination law in terms of their scope. Also it does not specify whether a workplace rule which is less favourable to part-time workers than to full-time workers has to go through the proportionality test in order that it is objectively justified. As a result there have been few cases which the Court has to deal with in relation to the Directive.
This finding might have some implications for the plan to increase the ratio of permanent part-time workers and their protection in Korea. Firstly it might suggest that it is important to consider that part-time employment is a domain in which women, who have to do part-time work because of their main responsibility for child care, are often discriminated against. Secondly, the European experience might indicate that we need the proportionality test rather than the reasonableness test to properly protect part-time workers from being discriminated against. Thirdly, we might need a comprehensive legal measure covering areas such as career development and social security, thus making people free to choose part-time work without fearing that they might be disadvantaged in their long-term career and later life.

영어초록

This article examines case law of the Court of Justice of the European Union (EU) on part-time work. In the EU, protection of part-time workers is concerned with two kinds of law. One is sex discrimination law as, under the EU sex discrimination law, female part-time workers can challenge their disadvantages by means of the prohibition of indirect sex discrimination. Since 1981 the Court has applied former Article 119 of the Treaty and provisions of Community Directives on equal treatment between men and women at work since many more women than men work part-time. The 26 judgments so far made by the Court in relation to part-time workers are considered. They deals with various areas of employment relationship such as pay, career advancement, conditions of dismissal, occupational pension schemes and statutory social security allowances. The other law as to part-time work is the Part-time Workers' Directive, which is designed to directly protect part-time workers. The judgments by the Court on the Directive are just 2. Although it should be considered that the Directive came into force much later than sex discrimination law, the number is still very small.
After scrutinizing all the judgments by the Court on part-time work and comparing the two regimes of law, this article has found that the prohibition of indirect sex discrimination has been the main regulatory regime of law on part-time work in the EU. This results from the fact that in the absence of direct regulation on part-time work, the Court progressively broadened the scope of indirect sex discrimination law, the result of which was that almost all areas of employment, occupational pension schemes, social security benefits were covered by the law. Moreover once it turns out that a workplace rule has a disparate impact on one sex, the Court establishes the proportionality test in which, in order to defend that a workplace rule with a disparate impact is objectively justified, an employer is required to prove that the workplace corresponds to a legitimate aim and the means of achieving that aim are appropriate and necessary. On the other hand, the Part-time Workers' Directive, applying to employment relationship alone, is narrower than sex discrimination law in terms of their scope. Also it does not specify whether a workplace rule which is less favourable to part-time workers than to full-time workers has to go through the proportionality test in order that it is objectively justified. As a result there have been few cases which the Court has to deal with in relation to the Directive.
This finding might have some implications for the plan to increase the ratio of permanent part-time workers and their protection in Korea. Firstly it might suggest that it is important to consider that part-time employment is a domain in which women, who have to do part-time work because of their main responsibility for child care, are often discriminated against. Secondly, the European experience might indicate that we need the proportionality test rather than the reasonableness test to properly protect part-time workers from being discriminated against. Thirdly, we might need a comprehensive legal measure covering areas such as career development and social security, thus making people free to choose part-time work without fearing that they might be disadvantaged in their long-term career and later life.

참고자료

· 없음