취업규칙 불이익변경에 있어 사회통념상 합리성

Abstract

An obstacle to overcome for the rules of employment (ROE) to be accepted as having regulatory effect is employers’ unilateral decision for their convenience sake. That is the ground for the Labor Standards Act(LSA) to ensure participation of workers in changing the ROE. Nevertheless, in order not to overuse ‘participation of workers’ the LSA states that accordance of workers must be sought out in changing the ROE to disadvantage to employees, but only their opinions rather than the accordance be received in other cases. Within such legal framework, socially accepted rationale has been provided by court rulings as criteria to decide on the effects of the ROE. In applying the criteria, according to the case laws, the basis for the rulings is moving to ‘whether to accord or not’ from ‘whether it is a disadvantageous change or not.’ This shift has the great meaning in two ways. First, the scope of socially accepted rationale is being broadened so that the changes of the ROE will not become an obstacle to business management or labor management. This trend may result in weakening of ROE’s regulatory effect. Especially under this low unionization rate, losing the regulatory function of the ROE may cause the system of the labor laws regulating collectively individual labor and management relations to break down. For employers, it may be beneficial to them for the short term since they can expand their initiative in deciding labor conditions, but for the long term they may be excluded from the fact that they may introduce the new collective system to decide labor conditions such as the business management consultation committee of Germany. Second, the recent case laws note the socially accepted rationale enough to waive from the accordance of employees in deciding on the effects of the changed ROE. This may be interpreted as the signs of changes in two-fold system of assessing on ‘whether to change disadvantageously’ and ‘whether to accord.’ Given that employees naturally must decide on ‘disadvantageous change’ and conflicts due to overlapped decision can be reduced, it is desirable that accordance of employees will be the basis to decide on the effects of changed ROE. Interpretation of laws has some limits in resolving the issues arising from the current legal system where the effects of changed ROE will be decided under the overlapped legal structure in accordance with the socially accepted rationale. Thus the legislation needs to be provided to complement the case laws. The criteria for the socially accepted rationale the case laws have accumulated needs to be reflected in the legislation through correcting limitations and problems.