제정취지에 비추어 본 비정규직법의 평가와 개선과제 (Evaluation and Improvement Issue of Temporary Worker Protection Law in Respect of Legislative Intent)

서지정보

· 발행기관 : 한국노동법학회
· 수록지 정보 : 노동법학 / 46호 / 255 ~ 295페이지
· 저자명 : 조성혜

초록

Temporary Employment is becoming increasingly ordinary in Korean economy, especially after the foreign exchange crisis 1997. Temporary work or temporary employment refers to a situation where the employee is expected to leave the company within a certain period of time.
Employers hire temporary employees to meet business demands and yet to avoid the cost of hiring a regular employees. Business purposes include: seasonal customer demand, flush of orders, employees on sick or maternity leave, and short-term, clearly defined work. Many employers utilize yet the temporary employment as a means of evading their statutory obligations and also to save money by denying the employee the opportunity of pension and also other benefits.
Temporary employees are hired directly by the company with fixed term contract or they are obtained from a temporary work agency.
A fixed term contract is exactly what the name suggests. It is a contract which runs from one specified date to another specified date. The fixed term can also be not a specified date or dates, but can be specified as the completion of a specific project, the actual date of completion being uncertain. The danger in fixed term contracts is that the employee does not know whether the contract is renewed or not.
In case of the temporary work agency the employees remain in the agency, not the employee of the company where they are working. Companies, in need of short-term workers, contract with the temporary work agency to send temporary workers to work at their companies. The problem of this so-called triangular employment relationships the liabilities of the employers between the employer(provider) and user are unclear, so that the employee can not be sufficiently protected.
In Korea there are two Acts to protect the temporary employees: Temporary Work Agency Employee Protection Act(1998) and Fixed Term Employee Protection Act(2006).
Temporary Work Agency Employee Protection Act regulates the relationship of the employer, the user and the worker. The Act lays down obligations and responsibilities of the provider enterprise and user enterprise. And it sets limits on the performance of work or services which can be performed by the temporary work agency employees.
In many businesses, in which employment through temporary work agency is not allowed, employers outsource their work through in-house subcontracting. The employee of the sub-contractor makes a contract with the sub-contractor, but he works in the workplace under the direction of the contractor. Such form of performance looks like sub-contracting in appearance, but is in reality employee leasing through temporary work agency, which is regarded as illegal by Supreme Court. The court held that the employees had been directly employed by the contractor without intervention of the subcontractor when the latter is not substantial in reality.
Fixed Term Employee Protection Act provides that the limit of fixed term contract is 2 years: after 2 years term the contract is regarded as entered into indefinite period of time. To avoid this regulation most employer make a contract with the employees less than 2 years, after that they opt not to renew the contract. As a result most employee lose their job within 2 years instead of changing to the permanent position. Upon the second date being realized, the contract (and thus the employment relationship) is terminated and the employee joins the ranks of the unemployed.
The problem of temporary employees protection law is that the provision of the protection is too rigid to be adapted to business reality: the restriction of the performance of work or services by temporary work agency employment causes the expedient triangular relationship, which is regarded as illegal by Supreme Court. The provision of the changeover from the fixed term contract to permanent employment relationship of Fixed Term Employee Protection Act gave rise to the unemployment of many fixed term employees.
In this respect the legal protection of the temporary employees should adapt to existing reality, in so far as some deregulation is favorable to the employees.

영어초록

Temporary Employment is becoming increasingly ordinary in Korean economy, especially after the foreign exchange crisis 1997. Temporary work or temporary employment refers to a situation where the employee is expected to leave the company within a certain period of time.
Employers hire temporary employees to meet business demands and yet to avoid the cost of hiring a regular employees. Business purposes include: seasonal customer demand, flush of orders, employees on sick or maternity leave, and short-term, clearly defined work. Many employers utilize yet the temporary employment as a means of evading their statutory obligations and also to save money by denying the employee the opportunity of pension and also other benefits.
Temporary employees are hired directly by the company with fixed term contract or they are obtained from a temporary work agency.
A fixed term contract is exactly what the name suggests. It is a contract which runs from one specified date to another specified date. The fixed term can also be not a specified date or dates, but can be specified as the completion of a specific project, the actual date of completion being uncertain. The danger in fixed term contracts is that the employee does not know whether the contract is renewed or not.
In case of the temporary work agency the employees remain in the agency, not the employee of the company where they are working. Companies, in need of short-term workers, contract with the temporary work agency to send temporary workers to work at their companies. The problem of this so-called triangular employment relationships the liabilities of the employers between the employer(provider) and user are unclear, so that the employee can not be sufficiently protected.
In Korea there are two Acts to protect the temporary employees: Temporary Work Agency Employee Protection Act(1998) and Fixed Term Employee Protection Act(2006).
Temporary Work Agency Employee Protection Act regulates the relationship of the employer, the user and the worker. The Act lays down obligations and responsibilities of the provider enterprise and user enterprise. And it sets limits on the performance of work or services which can be performed by the temporary work agency employees.
In many businesses, in which employment through temporary work agency is not allowed, employers outsource their work through in-house subcontracting. The employee of the sub-contractor makes a contract with the sub-contractor, but he works in the workplace under the direction of the contractor. Such form of performance looks like sub-contracting in appearance, but is in reality employee leasing through temporary work agency, which is regarded as illegal by Supreme Court. The court held that the employees had been directly employed by the contractor without intervention of the subcontractor when the latter is not substantial in reality.
Fixed Term Employee Protection Act provides that the limit of fixed term contract is 2 years: after 2 years term the contract is regarded as entered into indefinite period of time. To avoid this regulation most employer make a contract with the employees less than 2 years, after that they opt not to renew the contract. As a result most employee lose their job within 2 years instead of changing to the permanent position. Upon the second date being realized, the contract (and thus the employment relationship) is terminated and the employee joins the ranks of the unemployed.
The problem of temporary employees protection law is that the provision of the protection is too rigid to be adapted to business reality: the restriction of the performance of work or services by temporary work agency employment causes the expedient triangular relationship, which is regarded as illegal by Supreme Court. The provision of the changeover from the fixed term contract to permanent employment relationship of Fixed Term Employee Protection Act gave rise to the unemployment of many fixed term employees.
In this respect the legal protection of the temporary employees should adapt to existing reality, in so far as some deregulation is favorable to the employees.

참고자료

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