근로자를 판단하는 새로운 태도 — 판례가 근로기준법상 근로자를 판단하는 방법의 개선 —

Abstract

This article aims to review the test for determining who is an employee under the Labor Standards Act(hereinafter referred as ‘LSA’) in courts. Over the past 30 years, employee issues have been focused on the misclassification issue. Special forms of worker similar to wage employees(‘tukgo’) have been the main labour issue. Many academic and practical proposals have been put forth in order to cover dependent self-employed under labor law. Meaningful progress has been made in case law, but little in the field of legislation. In order to make a decision whether a worker is an employee or an independent contractor under the LSA, courts have used the multi-factorial “using and subordination” test, which focuses on whether the worker is personally or economically dependent on the employer or not. The supreme court has changed its test for determining who is an employee under the LSA on December 7, 2006(hereinafter referred as ‘2006 new test’). The Court applied ‘reasonable control test’ so that some of ‘tukgo’, for example the lecturers in private academic institutes, can be protected by the LSA. This article highlights on appling method of factors in 2006 new test and propose three points as followings; First, the way of asking a question shall be changed. For example, in 2006 new test, courts has asked “Did an employer determine the contents, time & place, and way or course of work ?”In order to figure out exactly an legal identity of the worker, they should rearrange the way of question like “Did a worker determine the contents, time & place, and way or course of work ?”or “Who determined the contents, time & place, and way or course of work ?” Second, having two jobs at the same time is a kind of trend in modern world of work. Courts, therefore, should approve a coexistence of an employee and an independent contractor within a single working contract. Third, In making a decision whether a worker is an employee or an independent contractor under the LSA, a source of control is not matter. An employer’ right of control concerning about working could come out from a reality as well as contract or field manual. The most important thing is whether an employer have controlled the contents, time & place, or method of working. The control of working can be possible through a contract, field manual or whatever.