비정규직 차별시정제도에서 ‘합리적 이유’ 요건의 판단과 개선

Abstract

The Fixed-Term Act and the Dispatch Act (hereinafter referred to as the “Non-regular Workers Act”) prohibit discriminatory treatment of fixed-term workers, part-time workers, and dispatched workers (hereinafter referred to as “non-regular workers”). Discriminatory treatment requires that there is no reasonable ground for unfavorable treatment of non-regular workers. The rationality requirement is the final step in determining whether there is discriminatory treatment at the normative level, and in practice, it is an area that can eliminate the unreasonable gap between regular and non-regular workers. This article is divided into judgment of rationality requirements and improvement of rationality requirements, and attempts legislative improvement along with theoretical considerations. Its main contents are as follows. Among the criteria for judging reasonable grounds, the adequacy test criterion is the most desirable in practice, and it can be seen that case law also recognizes its application. There are also certain limitations to the criteria for judging reasonable grounds presented by precedents. It is unclear which of the objective reasons for unfavorable treatment should be used to determine rationality, and the criteria for categorizing wage items that are the premise of determining rationality are not clear. Reviewing the major cases, it is difficult to say that the judgment on whether the degree of unfavorable treatment in the discrimination correction case is appropriate is being made properly. Japanese law is a useful reference when seeking to improve the system for the realization of equal treatment or appropriate treatment between regular and non-regular workers. In the definition of discriminatory treatment under the Non-regular Workers Act, it is necessary to stipulate the meaning of “if there is no reasonable reason” and specific criteria for judgment so that the same treatment or appropriate treatment can be realized in administrative and judicial remedies for discrimination against non-regular workers. In addition, it is necessary to prepare ground rules so that the Labor Relations Commission can order compensation at its discretion by determining the appropriate level of treatment and the amount of considerable damage. In this regard, this article also proposes ways to amend the Non-regular Workers Act.