근로기준법상 ‘직장 내 괴롭힘 금지’ 규정의 선원법에의 수용과 관련한 문제

Abstract

Article 76-2 of the Labor Standards Act prohibits workplace harassment by employers, etc., and Article 76-3 of the same law stipulates the obligation of employers, etc. to take actions in case of workplace harassment. However, Article 5 of the Seafarers’ Act does not apply Articles 76-2 and 76-3 of the Labor Standards Act to the seafarers’ labor relations. Considering the specificity of the seafarers’ labor relation, it is necessary to establish regulations on the prohibition of harassment in the workplace in the Seafarers’ Act. However, there are some problems in applying the provisions on the prohibition of workplace harassment under the Labor Standards Act to seafarer labor relations. First, the concept and requirements of Article 76-2 of the Labor Standards Act on the prohibition of workplace harassment are too broad and unclear, which may cause confusion and difficulties in practical application. Second, the Seafarers’ Act grants the captain the right to command and take disciplinary action against crew in order to maintain order on-board the vessel and ensure safety on board, and a seafarer is obliged to obey the captain’s command and exercise of control unless there is a justifiable reason. Furthermore, in order to maintain the existence of the labor contract relationship, there may be cases in which a worker experiences mental suffering related to his/her work. However, considering the characteristics of on-board ship labor circumstances that require the use of limited human and material resources to promote safe navigation, unrestricted introduction of Article 76-2 of the Labor Standards Act may lead to friction or contradiction of the exercise of the captain’s authority under the Seafarers’ Act. Finally, Article 76-3 of the Labor Standards Act requires the employer to take necessary measures, such as changing the workplace and ordering paid leave to the relevant person, in the event of workplace harassment. However, the employer’s duty to take measures stipulated by way of example in the above article is not suitable for direct application to seafarers’ labor relations. Rather, focusing on proactive measures such as strengthening communication between crew members and conducting education may be more effective in eliminating on-board bullying.