개별적 노동분쟁 해결제도에 관한 일고찰

Abstract

Japan has been undergoing structural reform throughout its industry due to a long-term recession beginning in the 1990s, and the restructuring of companies and the flexibility of the labor market are rapidly progressing. As the employment type and consciousness of workers and the way that companies manage human resources have both been individualized and diversified, there have been significant changes in the quality and quantity of labor-related disputes. The number of occurrences of collective labor disputes has sharply decreased due to the stability of labor–management relations and the decrease in the labor union organization rate; this change can be seen in the content of collective labor disputes. For instance, since the late 1960s, as labor–management relations stabilized, applications for relief from unfair labor practices increased due to discrimination against minority labor unions. In recent years, however, there have been notable cases in which workers subject to dismissal or personnel relocation at workplaces without labor unions have joined a local union, which has in turn requested collective bargaining or applied for dispute settlement. By contrast, the number of individual labor-related disputes has shown a significant increase, and their contents have also become more diverse. Traditional labor dispute types, such as dismissal and unpaid wages, still account for a considerable portion of labor-related lawsuits and counseling. However, as the economic recession has deepened and the average age of workers has advanced, issues surrounding disadvantageous changes in working conditions have recently become noteworthy. As employment types have diversified, the number of companies introducing performance-based assessment in disputes, personnel, and treatment surrounding part-time and dispatched workers is increasing; thus, disputes over assessment and evaluations are also increasing. In addition, with many women participating in the labor market, labor disputes over various forms of workplace discrimination, including wage discrimination, promotion discrimination, workplace bullying, and sexual harassment against female workers, are also increasing. With the background of such changes in the circumstances of labor-related disputes and the advancement of judicial reforms, it has been strongly suggested that a more fundamental and comprehensive review of the dispute resolution system is needed at the labor law level. This discussion was first advanced in academia but has gradually spread into administrative and political circles. As a result, the Act on Promoting the Resolution of Individual Labor-Related Disputes was enacted in 2001 to allow labor administrative agencies to coordinate individual labor-related disputes. Furthermore, the Labor Tribunal Act was enacted to resolve individual rights disputes in 2004. The current status of labor-related disputes in Korea is very similar to that in Japan. In Korea, various systems have been established to resolve disputes between employers and workers over such subjects as working conditions. The typical examples are the Labor Relations Commission, the courts, the labor inspector, the Korea Legal Aid Corporation, the labor- management organizations, the organization of lawyers and labor attorneys, and the Chamber of Commerce & Industry. The cases handled by these institutions are also extensive, from simple counseling on labor issues to strikes. Among these labor service institutions, the Labor Relations Commission and the courts are the most prestigious, but they are limited in that they can only resolve disputes after they occur. The Labor Relations Commission may not be so welcoming from employers’ perspectives, given that the absolute majority of applicants are workers. In the case of the courts, the burden of the cost of lawsuits is incredibly high for workers. The labor inspector solves labor cases, such as unpaid wages, through administrative inspection, but it is essentially an inspection agency, making it functionally limited for dispute resolution. In particular, it is not expected that the employer involved in the dispute will actively use the labor inspector system to resolve it. While the Legal Aid Corporation or the Chamber of Commerce & Industry are also taking charge of labor cases, these are not institutions for professionally resolving labor issues or problems. Other labor management organizations or organizations of lawyers or labor attorneys are not public dispute resolution institutions, meaning that they have limited authority and functionality. Therefore, to compensate for such problems in Korea, legislative and institutional improvement is imperative for resolving individual labor-related disputes, as in Japan. An implication is presented as follows. First, it is necessary to enact an integrated law for resolving individual labor-related disputes, such as Japan’s Act on Promoting the Resolution of Individual Labor-Related Disputes. Then,  counseling and coordinating functions should be strengthened. A Korean-style Comprehensive Labor Service Center needs to be established in each local government and designed to play similar roles to Japan’s Labor Consultation Center. It would be desirable to prevent individual labor-related disputes in advance or to resolve them early through consultation agencies, rather than having post-resolution through the Labor Relations Commission or courts. As has already been confirmed in Japan, it is expected that most individual labor-related disputes can be resolved only by arranging and coordinating issues through sufficient consultation. Second, it is necessary to revive the mediation function by reorganizing the existing Labor Relations Commission system. Initially, such a function was present in the commission, but it was abolished because it was not compulsory, making it ineffective. However, as seen in Japan, individual labor-related disputes that have recently been diversified and complicated are overwhelmingly resolved by consultation and mediation. Therefore, the resurrection of the mediation function as a means of enhancing the effectiveness of resolving labor disputes needs to be reviewed based on past experiences.