차별시정제도에 관한 판례 평석 — 대상판례: 대법원 2016. 12. 1. 선고 2014두43288 판결 —

Abstract

The System of Correcting Discrimination aims to protect irregular employees such as fixed-term, part-time, and temporary agency from unfair discrimination, the following arguments can be drawn on the Precedent. First, when it comes to regulatory benefit, strict limitation appears not appropriate as it applies the logic of requisition of relief on the Labor Standard Act. On the other hand, the Precedent which recognized requisition of relief in accordance with monetary award seems reasonable. Furthermore, concerning the existence of worker for comparison, a prohibition of discrimination to irregular employees encompasses the principle of the same salary for same work, the belief on a ban of labour exploitation, therefore, expanding the interpretation of sameness and likeness, and simultaneity is not required. This supports the Precedent's logic, which concedes temporary workers and regular workers can be a target of comparison because both hold a common fundamental factor, driving lecture. Finally, for the purpose of Act on the Protection, etc. of fixed-term and part-time employees, the target of a prohibition on discriminative treatment has to be broadly recognized, and in contrast, reasonable grounds should be limitedly interpreted since it against mandatory provisions. Despite the Case led discriminative treatments as a result of a collective agreement and its application between regular workers and temporary workers, this clearly conflicts with a mandatory provision on the law in force. Consequently, the Precedent’s assertion, which does not allow it as a reasonable ground for discriminative treatment, appears valid.