도급과 파견의 합리적 구별을 위한 노동정책적 과제

Abstract

In recent years, among the methods that companies use to leverage external labor, there have been two main approaches: “temporary placement of workers” and “in-house subcontracting.” Under the “Act on the Protection of Temporary Agency Workers” (hereinafter referred to as the “Act”), temporary agency workers are subject to considerable restrictions on the type of work that can be outsourced and the duration of the assignment. Inevitably, in-house subcontracting, which has relatively fewer constraints, is widely utilized in industrial settings. However, such in-house subcontracting arrangements resemble temporary placement of workers because subcontractors (partner companies) utilize their directly employed workers as support staff, enabling them to perform tasks assigned under subcontract agreements while coexisting in terms of time and location with the workers of the contractor (prime contractor) mainly within the contractor’s workplace. Hence, the practical issue of distinguishing between in-house subcontracting and temporary placement of workers has arisen in many cases. In the current situation, where numerous cases related to in-house subcontracting and temporary placement of workers are characterized by legal disputes, the need for a more concrete and distinct set of criteria to differentiate between the two approaches has been strongly emphasized. Recently, the Ministry of Employment and Labor in South Korea introduced the “Legislation on Temporary Agency Workers and Subcontracting Standards” as part of the “2023 Major Task Promotion Plan” to enhance the temporary agency worker system. Accordingly, this study examines the policy of distinguishing between subcontracting and temporary placement of workers in Japan, which has experienced similar legislation and related issues as Korea, and explores the implications for Korean labor policy. Unlike Korea, Japan does not solve the problem of disguised subcontracting or illegal dispatch through judicial judgment. Instead, the Ministry of Health, Labour and Welfare in Japan has developed noticesand guidelines to distinguish between subcontractors and temporary agency workers, and these are being adopted by labor and management stakeholders in the industrial field. In addition, the judiciary’s respect for the government’s administrative interpretation (administrative guidance) and the provision of industry-specific judgment criteria in response to changes in the labor environment are significant. Considering the abovementioned measures adopted in Japan, this study emphasizes the need to specifically explore the standard for distinguishing between in-house subcontracting and temporary placement of workers, based on the harmony of the current legal system concerning worker protection and the realistic request to increase the flexibility of the labor market.