비정규근로자에 대한 차별적 처우의 판단기준 — 비교대상기준의 선정원리를 중심으로 —

Abstract

It has been over 4 years since non-discrimination policy towards irregular employees and discrimination correction system came into effect (2007.7). Particularly, it has been only 2 years since the coverage of act gradually expanded to every business of more than five employees by character(public sector) and scale of business according to additional clauses. The effect of Irregular Employee Act('Irregular Employee Act' is used as a collective term to refer to Act on the Protection etc., of Fixed-term and Part-time Employees, Act on the Protection etc., of Dispatched Workers) on correction of discrimination and wage disparity is rather unclear at current state. However, irregular employees were offered no more than 54.8% of wage regular employees got in January 2010, which shows further widened gap compared to 62.6% in August 2005. Among discrimination correction cases that National Labor Relations Commission has ruled, 43 cases were dismissed from July 2007 to end of December of 2010. Lack of comparable employees was the major cause of such dismissal(16 cases). In this context, this paper examined the standing and the role of comparable employees in judgement of discrimination with an emphasis on selection criterion for comparable subjects. This paper also critically looks into rulings of courts and National Labor Relations Commission seeking alternative interpretation and suggests legislative improvement in case interpretation reaches limitation. Especially, non-discrimination provisions on dispatched workers seem to be ineffective in correction of discrimination due to the question of setting a subject of comparison. In regard to dispatched workers, possible amendments were suggested with reference to EU directives and legislations of other countries.