「고평법」과「 비정규직법」 상의 임금차별 판단구조 비교 - 법원 및 노동위원회 판정사례를 통해 본 두 법의 판단구조 비교 - (A Study on decision structure of wage discrimination on Act of The Protection of Non-regular Workers and Act on Equal Employment and Support for Work-Family Reconciliation)

서지정보

· 발행기관 : 노동법이론실무학회
· 수록지 정보 : 노동법포럼 / 7호 / 89 ~ 136페이지
· 저자명 : 김철희

초록

Five years have passed since the discrimination correction system of non-regular workers on Act of The Protection of Non-regular Workers(below APNW) was adapted until today. However, a lot of non-regular worker who have been discriminated don’t use the discrimination correction system of non-regular workers.
Meanwhile, twenty-four years have passed since Act on Equal Employment and Support for Work-Family Reconciliation(below AEE) in order to prohibit wage discrimination was legislated. there are just two cases that Supreme Court decision.
There are, maybe a lot of other causes on this phenomenon, but most of all the salient cause of this current is that workers that have to defense violation to his/her rights to equality are disappointed for long time.
Firstly this study try to review several adjudication on discrimination correction of non-regular workers by Discrimination Commission in NLRC, some court judgements of equal employment which appeal to a growing in recent times, and noticeable analogous cases in Japan. Then, this study examine comparatively the judgement structure of wage discrimination on protection of non-regular and that of equal employment between man and woman as main issue. Finally, this study try to consider the discrimition occurred by various reasons tightly associated together, for example,the situation is causative of employment type and gender of worker. namely, “complex Discrimination of employment type and discrimination on gender both have the schemes to analysis whether discrimination exists. AEE has the principal to judge sex discrimination exists “The equal wage for the work of equal value” and the criteria of APNW to investigate discrimination on employment type is the principal of “the same or similar work”.
According to AEE, for determining the value of work both the comparisons, ‘Job Analysis’ of both should be done. and quality of labor value should be ensured in this process. however, this process have the limits which a valuer's subjective assessment is bound to.
Meanwhile, because companies in Korea generally have ‘Job descriptions“ that describe the work be performed by workers of the aspects of quality only, principal of “the same or similar work” that should consider the quantitative aspects and qualitative aspects of work at the same time required by APNW does not comply with.
Therefore, according to the criteria based on APNW, the new job analysis should be carried out in every law suit.
APNW has enacted “wages and other working conditions, etc., without a rational reason for adverse treatment,” as bannable “discriminatory treatment”. Therefore, the area that be judged whether unfavorable treatment exist is “wages” and “other working conditions, etc.,”. Being raised in a recent issue is about the range of “other working conditions etc”'.
Many scholars, judges and practitioners have claimed that the range of “other working conditions, etc.,” should be interpreted broadly'. Nevertheless, the NLRC has a very limited interpretation that the range of that similar to the range of most wage.
Differentiated concept of rationality in the end that discrimination within a reasonable range and relatively accepted, it will not be allowed to go beyond the

concept of discrimination is the same concept of 'compensation' when the sway of the setting, the appropriate amount of compensation for a range of fact that define criteria are Certain level of determination in some recent statements (for example, 80-85%) of the compensation is reasonable enough to have ruled.
However, the statement of an absolute prohibition of discrimination, and this ruling in the case of Korea, is inappropriate.
Non-regular workers, while today's increasing a lot of women are employed as irregular, displaying the variety of symptoms depending on the cause that discrimination occurred "compound discrimination" is the realization of the problem.
Discrimination in the application of complex criteria, such as the application of discriminatory treatment, but in reality, many problems exist, the most important issue is that the responsible agencies are separate. The problem of discrimination by the National Human Rights Commission, discrimination is irregular and Labor Committee,in charge of the worker who was discriminated against because of complex multiple agency applications must be received at the same time there are difficulties.

영어초록

Five years have passed since the discrimination correction system of non-regular workers on Act of The Protection of Non-regular Workers(below APNW) was adapted until today. However, a lot of non-regular worker who have been discriminated don’t use the discrimination correction system of non-regular workers.
Meanwhile, twenty-four years have passed since Act on Equal Employment and Support for Work-Family Reconciliation(below AEE) in order to prohibit wage discrimination was legislated. there are just two cases that Supreme Court decision.
There are, maybe a lot of other causes on this phenomenon, but most of all the salient cause of this current is that workers that have to defense violation to his/her rights to equality are disappointed for long time.
Firstly this study try to review several adjudication on discrimination correction of non-regular workers by Discrimination Commission in NLRC, some court judgements of equal employment which appeal to a growing in recent times, and noticeable analogous cases in Japan. Then, this study examine comparatively the judgement structure of wage discrimination on protection of non-regular and that of equal employment between man and woman as main issue. Finally, this study try to consider the discrimition occurred by various reasons tightly associated together, for example,the situation is causative of employment type and gender of worker. namely, “complex Discrimination of employment type and discrimination on gender both have the schemes to analysis whether discrimination exists. AEE has the principal to judge sex discrimination exists “The equal wage for the work of equal value” and the criteria of APNW to investigate discrimination on employment type is the principal of “the same or similar work”.
According to AEE, for determining the value of work both the comparisons, ‘Job Analysis’ of both should be done. and quality of labor value should be ensured in this process. however, this process have the limits which a valuer's subjective assessment is bound to.
Meanwhile, because companies in Korea generally have ‘Job descriptions“ that describe the work be performed by workers of the aspects of quality only, principal of “the same or similar work” that should consider the quantitative aspects and qualitative aspects of work at the same time required by APNW does not comply with.
Therefore, according to the criteria based on APNW, the new job analysis should be carried out in every law suit.
APNW has enacted “wages and other working conditions, etc., without a rational reason for adverse treatment,” as bannable “discriminatory treatment”. Therefore, the area that be judged whether unfavorable treatment exist is “wages” and “other working conditions, etc.,”. Being raised in a recent issue is about the range of “other working conditions etc”'.
Many scholars, judges and practitioners have claimed that the range of “other working conditions, etc.,” should be interpreted broadly'. Nevertheless, the NLRC has a very limited interpretation that the range of that similar to the range of most wage.
Differentiated concept of rationality in the end that discrimination within a reasonable range and relatively accepted, it will not be allowed to go beyond the

concept of discrimination is the same concept of 'compensation' when the sway of the setting, the appropriate amount of compensation for a range of fact that define criteria are Certain level of determination in some recent statements (for example, 80-85%) of the compensation is reasonable enough to have ruled.
However, the statement of an absolute prohibition of discrimination, and this ruling in the case of Korea, is inappropriate.
Non-regular workers, while today's increasing a lot of women are employed as irregular, displaying the variety of symptoms depending on the cause that discrimination occurred "compound discrimination" is the realization of the problem.
Discrimination in the application of complex criteria, such as the application of discriminatory treatment, but in reality, many problems exist, the most important issue is that the responsible agencies are separate. The problem of discrimination by the National Human Rights Commission, discrimination is irregular and Labor Committee,in charge of the worker who was discriminated against because of complex multiple agency applications must be received at the same time there are difficulties.

참고자료

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