브라질에서의 간접고용에 관한 법적 규제 및 시사점 (A Review on the Regulation of Indirect Employment in Brazil)

서지정보

· 발행기관 : 한국노동법학회
· 수록지 정보 : 노동법학 / 59호 / 27 ~ 78페이지
· 저자명 : 노호창

초록

Indirect employment must be regulated strictly, because indirect employment causes destruction of human dignity and exploitation of workers. Basically, the supply of worker is prohibited by the Employment Security Act. But a worker dispatch is permitted under strict conditions by the Act of the Protection, etc. of Temporary Agency Workers. Nevertheless, many companies tend to avoid the regulation of the act and reduce costs by using the form of subcontract. Therefore, in Korea, in order to regulate the indirect employment like that, finding subordinate factors such as directive or command became very important issue.
Unlike Korea, in Brazil, the problem of indirect employment is still regulated basically by the Súmula(precedent of the Superior Labor Court), not by act. In Brazil, indirect employment or outsourcing is called as terceirização. Anyway, just like in Korea, terceirização(indirect employment) is also recognized as one of the ways for exploitation of workers in Brazil. Especially, the Superior Labor Court has showed the negative view in 1986, through the Súmula no. 256, by declaring prohibition of terceirização except for temporary work and serveillance service etc.
The Súmula no. 331 of 1993 presented modified jurisprudence by reflecting the change in the labor market since 1990. The Súmula drew the line between lawful and unlawful terceirização by prohibiting outsourcing in core activities and permitting outsourcing in ancillary activities, with a few exceptions aforementioned. If terceirização exists in the area of core activities, it is considered as the direct employment between an user company and dispatched workers.
However, until now, we have no legal definition to tell the ‘core activity’ from the ‘ancillary activity’. The problem of distinguishing between them is still up to Labor Court. Currently, there are some people who think that the fundamental solution of regulating outsourcing is the regulation by act. Several bills have been submitted to the Federal Parliament. However, considering the conflicts between labor and business communities, it is not easy to anticipate what will happen.
By reviewing the brazilian case, I think that the way of considering basic character of company’s activities is very effective in regulating indirect employment, because it is impossible that there is no directive or command of an user company in core activities under the relation of indirect employment.

영어초록

Indirect employment must be regulated strictly, because indirect employment causes destruction of human dignity and exploitation of workers. Basically, the supply of worker is prohibited by the Employment Security Act. But a worker dispatch is permitted under strict conditions by the Act of the Protection, etc. of Temporary Agency Workers. Nevertheless, many companies tend to avoid the regulation of the act and reduce costs by using the form of subcontract. Therefore, in Korea, in order to regulate the indirect employment like that, finding subordinate factors such as directive or command became very important issue.
Unlike Korea, in Brazil, the problem of indirect employment is still regulated basically by the Súmula(precedent of the Superior Labor Court), not by act. In Brazil, indirect employment or outsourcing is called as terceirização. Anyway, just like in Korea, terceirização(indirect employment) is also recognized as one of the ways for exploitation of workers in Brazil. Especially, the Superior Labor Court has showed the negative view in 1986, through the Súmula no. 256, by declaring prohibition of terceirização except for temporary work and serveillance service etc.
The Súmula no. 331 of 1993 presented modified jurisprudence by reflecting the change in the labor market since 1990. The Súmula drew the line between lawful and unlawful terceirização by prohibiting outsourcing in core activities and permitting outsourcing in ancillary activities, with a few exceptions aforementioned. If terceirização exists in the area of core activities, it is considered as the direct employment between an user company and dispatched workers.
However, until now, we have no legal definition to tell the ‘core activity’ from the ‘ancillary activity’. The problem of distinguishing between them is still up to Labor Court. Currently, there are some people who think that the fundamental solution of regulating outsourcing is the regulation by act. Several bills have been submitted to the Federal Parliament. However, considering the conflicts between labor and business communities, it is not easy to anticipate what will happen.
By reviewing the brazilian case, I think that the way of considering basic character of company’s activities is very effective in regulating indirect employment, because it is impossible that there is no directive or command of an user company in core activities under the relation of indirect employment.

참고자료

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