파견근로자에 대한 차별시정

Abstract

This research reviews the correcting discrimination for temporary agency workers, with the presumption that there is a need for a full scale discussion on the possible independent corrective measures for the discrimination against temporary agency workers. To achieve this goal, this paper identifies several issues surrounding the corrective measures provided under the Act on the Protection of Temporary Agency Workers (the ‘Act’) and reviews possible alternatives. Under the Act, it can hardly be denied that the introduction of the corrective measures is not solely intended to protect the human rights of temporary agency workers. However, it does not necessarily mean that we need to interpret such corrective measures to promote the temp agency practice, an irregular type of employment relationship, or to continue to allow such practice. Such an interpretation would put the cart before the horse. Accordingly, the secondary employer will be permitted to enjoy only the benefits stemming from employing the temp agency workers, even when it means he will be burdened in costs. This should be the biggest goal behind the Act. First, therefore, the Labor Relations Commission shall determine, independently from other institutions, the status of the applicant as a prerequisite, even when it appears that the applicant seems to be an independent contractor. Second, when it determines the issue of possible discrimination against temp workers, there is no need to determine whether the working conditions are those formed through direct employment relationship or the ones formed through the incorporation into the secondary employer’s job site. Further this should not be a factor in determining whether the discriminative practice is reasonable. Third, the discrimination against collective bargaining agreements shall not be allowed due to the nature of the corrective measures as an enforcement measure. Finally, in order to secure the practical effect of the measures, primary employers and secondary employers shall be both subject to the orders of correction without separating their responsible areas.