비정규직 차별시정제도의 ‘비교대상근로자’에 관한 비교법적 고찰

Abstract

Nonstandard workers account for 42.4% of Korea’s labor force yet they suffer from poor labor conditions such as low job security, wage gap of as much as 51% compared to regular workers, overtime work, exclusion from company benefits etc. Such problem is common around the world, albeit with slight differences. To solve this problems, each country has passed various legislations regarding discrimination between regular and nonstandard workers. As a result, each country’s law has evolved the concept of “comparable employee” which serves as a standard for determining discrimination on nonstandard workers. Adopting such concept to our legal system will not only help solve the current issue of nonstandard workers but also allow us to cope with future discrimination against nonstandard workers that will arise as a result of changing labor environment. Therefore, this paper will first review in detail laws in each country regarding anti-discrimination against nonstandard workers and how “comparable employee” is determined and then will review its implications, such as the possibility of adopting similar concept in Korea. First, the recognition of the “comparable employee”of short term employees shoud be expanded based on collective agreement, domestic law, or general practice and at the least, should be expanded to corresponding regular workers based on collective agreement or in the respective industry. In case of dispatched workers, several countries have the principle of comparison to hypothetical comparable workers. Therefore, if there is no employee in the user enterprise with same or similar task, discriminatory treatment should be judged based on the applicable working conditions had the user enterprise employed the workers by themselves. Hopefully through such legislative amendment and adoption of related guidelines, the problems arising from the double-structure of the labor market, such as the discrimination based on employment status, could be improved.