비정규직 차별사건의 쟁점과 과제 - 노동위원회의 차별판단기준의 문제점을 중심으로 -

One year ago, the Act on Protection of Fixed-term and Part-time Employees(referred to as “the fixed-term employment act” below) was enacted in Republic of Korea, prohibiting undue discrimination against atypical workers. Fixed-term and part-time employees can seek a remedy against discrimination through the Labor Relations Commission(referred to as “the LRC” below). The LRC reported that 841 cases were filed in a year. But workers of only 46 workplaces instituted suits. There is only one case in which the National Labor Relations Commission found the claimant was treated less favorably. This study argues about why few atypical workers instituted suits and most of them failed in the process by the LRC. On the discrimination against atypical workers, the decisions of the LRC have a lot of problems. The LRC held that the complainant couldn’t seek a remedy for discrimination if she/he is substantially not a fixed-term employee despite a fixed-term contract. This means that signing the formal fixed-term contract leaves potential victim of discrimination out of the actual protection by the fixed-term employment act. In a sense, however, this is a extremely myopic approach. The LRC also held that the relevant comparer should be the worst regular workers group if there were two or more comparable groups. This approach is very problematic not only because it presupposes very discriminatory assumptions, but also it may allow, even encourage a wide range of employers’ persistent discriminatory practices that are invisible, yet real. Besides, the LRC held that even if she/he does same or similar work compared with other workers, additional job could justify the discrimination without asking whether it was essential or not. But this approach has some logical faults, which are not trivial at all, since it blocks the claimant by unnecessary and arbitrary double hurdles. So far as we know, we can safely say that the LRC’s approaches to illegal discrimination against atypical workers have been arbitrarily austere. According to the fixed-term employment act, the burden of proof shall be placed on employers. Regretably, however, during the inquiry and hearing, the LRC’s investigators and committee members of public interests have imposed the burden of proof not on employers but employees. So the claimant nearly withdraws a claim before the decision is made by the LRC. For the remedy against discrimination to be effective, it is urgent to establish the criteria on illegal discrimination which are faithful and responsive to the very spirit at the heart of the fixed-term employment act. Let me give an advice to the LRC: not only the ideal of neutrality and fairness, but also sensitivity to discrimination really matters!