도산절차와 근로관계의 승계 ― 영국의 입법례와 시사점 ― (The British Legislative Example of the Transfer of Undertakings and Protection of Employment and Its Suggestions on Korea legislation)

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초록

There is much experience on the transfer of undertakings and protection of employment during insolvency proceedings in EU since 1970s, which resulted in the legislation of Council Directive 98/50/EC. The United Kingdom has been accepting EU legislation policy with legal interpretation and also set up the new legislation(TUPE Regulation 2006) to comply with EU Council Directive. This paper reviews EU Council Directive and British legislation mentioned above and proposes some suggestions to reform Korea legislation concerning the transfer of undertakings and protection of employment during insolvency proceedings.
Firstly, We can separate insolvency proceedings into 2 cases roughly and decide where the employment relation shall be transferred to transferee or not. According to the incidents of EU and the United Kingdom, We can build up such legislation as a transfer shall operate so as to terminate the contract of employment only when the transfer occurs during insolvency proceedings which have been opened in relation to the transferor with a view to the liquidation of the assets of the transferor and which are under the supervision of the court.
Secondly, the legislation example of a service provision change is very useful model to protect the employees from the transfer of undertakings. There are complicated problems to test whether a undertaking is assert reliant or labor intensive. The British legislation model of service provision change extends the rage of transfer of undertakings, which helps protecting the employees working in labor intensive fields and intermediate workplace from dismissal.
Thirdly, the British model keeps the unpredictable damage to the employees from occurring caused by variations of contracts through the measure of imposing the duty to provide employees with copies of the text of the agreement and such guidance as employees might reasonably require in order to understand it fully on employer. Korea Trade Union and Labor Relations Adjustment Act article29(1) covers the union leader's right to conclusion of collective agreement and the Supreme Court interprets this article as comprehensive right to conclusion of collective agreement without consent of union members. This judicial precedents are confronting much criticism that it puts too much restrictions on union members right to participate. We need to introduce the British legislation example to fortify employees' right to participate and to lessen unnecessary labor disputes following the transfer of undertakings.
Lastly, TUPE regulation 2006 covers duty to inform and consult employee representatives. The regulation enacts employers' duty to inform employee representatives the fact that the transfer is to take place, the date of the transfer, the reasons for it, the legal, economic and social implications of the transfer, the measures which employers envisage in connection with the transfer and so on. The employers also shall consult employee representatives about transfer. The court can order employers to pay appropriate compensation when employers fail to inform and consult. These measures provide employees with opportunity to copy with the transfer relevantly, which enable them to make proper decisions concerning the transfer. Korea Debtor Rehabilitation and Bankruptcy Act just covers duty of hearing from the labor union and employee representatives when the transfer of undertaking occurs and does not enact details of hearing, which could make this procedure ineffective. It is necessary to introduce this kind of article on the employers' duty to inform and to consult employee representatives.

영어초록

There is much experience on the transfer of undertakings and protection of employment during insolvency proceedings in EU since 1970s, which resulted in the legislation of Council Directive 98/50/EC. The United Kingdom has been accepting EU legislation policy with legal interpretation and also set up the new legislation(TUPE Regulation 2006) to comply with EU Council Directive. This paper reviews EU Council Directive and British legislation mentioned above and proposes some suggestions to reform Korea legislation concerning the transfer of undertakings and protection of employment during insolvency proceedings.
Firstly, We can separate insolvency proceedings into 2 cases roughly and decide where the employment relation shall be transferred to transferee or not. According to the incidents of EU and the United Kingdom, We can build up such legislation as a transfer shall operate so as to terminate the contract of employment only when the transfer occurs during insolvency proceedings which have been opened in relation to the transferor with a view to the liquidation of the assets of the transferor and which are under the supervision of the court.
Secondly, the legislation example of a service provision change is very useful model to protect the employees from the transfer of undertakings. There are complicated problems to test whether a undertaking is assert reliant or labor intensive. The British legislation model of service provision change extends the rage of transfer of undertakings, which helps protecting the employees working in labor intensive fields and intermediate workplace from dismissal.
Thirdly, the British model keeps the unpredictable damage to the employees from occurring caused by variations of contracts through the measure of imposing the duty to provide employees with copies of the text of the agreement and such guidance as employees might reasonably require in order to understand it fully on employer. Korea Trade Union and Labor Relations Adjustment Act article29(1) covers the union leader's right to conclusion of collective agreement and the Supreme Court interprets this article as comprehensive right to conclusion of collective agreement without consent of union members. This judicial precedents are confronting much criticism that it puts too much restrictions on union members right to participate. We need to introduce the British legislation example to fortify employees' right to participate and to lessen unnecessary labor disputes following the transfer of undertakings.
Lastly, TUPE regulation 2006 covers duty to inform and consult employee representatives. The regulation enacts employers' duty to inform employee representatives the fact that the transfer is to take place, the date of the transfer, the reasons for it, the legal, economic and social implications of the transfer, the measures which employers envisage in connection with the transfer and so on. The employers also shall consult employee representatives about transfer. The court can order employers to pay appropriate compensation when employers fail to inform and consult. These measures provide employees with opportunity to copy with the transfer relevantly, which enable them to make proper decisions concerning the transfer. Korea Debtor Rehabilitation and Bankruptcy Act just covers duty of hearing from the labor union and employee representatives when the transfer of undertaking occurs and does not enact details of hearing, which could make this procedure ineffective. It is necessary to introduce this kind of article on the employers' duty to inform and to consult employee representatives.

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