캐나다의 직업안전보건법상 작업거부권과 시사점

Abstract

In general, prior to fulfillment of obligations under an employment contract, workers must be able to protect their own lives and safety. Therefore, it should be possible to cease dangerous or unsafe work without penalty, and also be able to request removal of that which is dangerous or unsafe. If danger exists and is not removed, a worker must be able to refuse such work even if there is an order to return to work by the employer. These are inevitable of modern industrial society in order to guarantee such rights under legislation covering occupational safety and health. Active rights, such as the right to claim wages during the period of refusal to work, should be guaranteed by a country’s occupational health and safety legislation without relying on interpretation according to civil law. Occupational health and safety legislation should be designed in such a way that guarantees the active rights of workers who are in a subordinate position (because of their employment contract) so that they may escape from dangerous or unsafe work on their own in order to protect their own lives and safety. In Korea, Article 52 of the ‘Occupational Safety and Health Act’, revised in 2019, partially reflects this point. However, Article 52 indicates whether it is an active right to refuse work, how long such a right to cease or evacuate remains, what the meanings and criteria for judgment of ‘imminent danger’ are, and what the disadvantages (such as wage reduction and dismissal) to workers are. There are several issues in terms of workers' rights regarding what is a reasonable standard for freedom from disposition and whether the right to refuse work under this regulation applies only to the ‘employee’ under the ‘Labor Standards Act’. From a comparative perspective, this study critically examines Article 52 of Korea’s ‘Occupational Safety and Health Act’ by comparing it to the provisions on the right to refuse work as stipulated under the Canadian system (mainly by federal law and related case law), with the purpose of finding lessons to improve the Korean system.