경영상 해고ㆍ휴업에서 근로자참가 보장

Abstract

Employment relationships also presuppose the existence of companies, so dismissal and closure are inevitable in the event of a management crisis, but workers’ participation needs to be guaranteed to check their substantive legitimacy and find ways to overcome the management crisis through concessions between labor and management. Although the Labor Standards Act imposes a consultation obligation with workers’ representatives as a procedural requirement for management dismissal, workers’ participation is not guaranteed due to insufficient regulations such as the selection process and authority of workers’ representatives. On October 16, 2020, the Economic, Social and Labor Commission’s agreement on the representative system of workers made significant progress, but preparations are needed to compensate for conflicts of interests between workers’ representatives and workers subject to dismissal. The union’s participation in management layoffs is representative of the conclusion of employment stability agreements through collective bargaining. In the case of management dismissal, collective bargaining needs to be allowed without infringing on the essential contents of management rights through comparative sentences with management rights and labor rights 3. The dismissal of non-union members is unjustified due to the normative effect of the Employment Security Convention, but if they understand the normative effect literally, problems arise only when non-union members are fired first. To overcome conflicts of interest with non-union members and the interpretation ambiguity of employment security agreements, it is necessary to specify the content as much as possible and extend its effectiveness to non-union members as contracts for third parties. Unlike layoffs, employment relations continue to be unstable in closures, so there is a high need for workers to participate. Although the system does not guarantee the participation of workers who are disadvantaged by it, workers who are disadvantaged by the Labor Relations Commission’s approval of the suspension allowance can participate in the hearing process as stakeholders under the Administrative Procedures Act. Legislatively, it is desirable to guarantee participation through the worker representation system in approval of reduction or exemption of management leave and closure allowance. In order to overcome the management crisis, the labor union shall change the working conditions to disadvantageous conditions through collective agreements, such as waiving or returning wages, shortening working hours, and changing standards for payment of severance pay. This lowers the working conditions of workers, which does not conform to the organizational purpose of the labor union organized to maintain and improve working conditions. Temporary disadvantage changes are also possible if they are advantageous to workers from a long-term perspective, but their effectiveness will be denied if they are significantly unreasonable in terms of content and procedures.