현행 취업규칙 제도의 기능적 한계와 개선방안 - 주요 대법원판결의 흐름을 중심으로 -

Abstract

The practical status of the “rules of employment” within the workplace varies greatly. The functions and roles of the rules of employment can vary depending on how the rules of employment are interpreted according to collective agreements and, or labor contracts. As a result, various and extensive discussions on “rules of employment” are being developed, and many meaningful and important Supreme Court rulings have been accumulated. Key issues surrounding this topic include the relationship between the rules of employment and labor contracts, the method of obtaining the collective consent on the rules of employment, the validity of unfavorable changes to the rules of employment without consent, and the Supreme Court's change in its use of the theory of rationality based on social norms. These issues have been discussed as independent topics, but it is judged that there have not been sufficient attempts to identify the nature of the rules of employment and establish it systematically. There is also a practical need to clarify the functions and roles of the rules of employment. Many employers and workers may find the existing debates on the rules of employment overly conceptual. This study examines the existing discussions and issues related to the rules of employment, focusing on the Supreme Court rulings, and proposes measures to improve the direction of the system of mandating the rules of employment while addressing its functional limitations. Regarding the direction or purpose of mandating the rules of employment, the excessive emphasis on the principle of equality in decision-making between labor and management is deemed inappropriate. This is because, while there are similarities in the functions and purposes of collective agreements and the rules of employment, there are also differences. The rules of employment system is essentially a system designed to collectively regulate individual labor contract relationships and can be evaluated as being positioned in the middle ground between individual labor contracts and the collective agreement framework. From this point of view, this study proposed an improvement plan for the rules of employment.