休業手當의 支給要件에 대한 小考

This study has reviewed concepts of “causes attributable to the employer” and “unavoidable reasons”, which are the requirements for the payment of shutdown allowances set forth in Article 46 of the Labor Standards Act, in reference to authentic cases of force majeure. In accordance with Article 46 of the Labor Standards Act, if a worker is given shutdown allowances he/she shall be in shutdown. However, an employer does not always owe the duty of paying shutdown allowances for all kinds of shutdown. That is, shutdown itself is not merely the requirement for paying shutdown allowances. It is depends on by what reasons the shutdown is caused. With regard the payment of shutdown allowances, the causes of shutdown can be divided into reasons attributable of the employer and unavoidable reasons. According to how to understand the relation between these reasons, the shutdown allowances equivalent to 70 percent of average wages may be fully paid or cut down. Or, the employer may be released from the obligation of paying the shutdown allowances. However, the Labor Standards Act does not clarify the meanings of these requirements. In addition, the content is abstract so that it should be actualized by theories, precedents and administrative interpretation. According to how to understand each concept and extent, it may be correspond with the purpose of this system which aims to secure a risk of a worker's loss of wages and to eliminate an employer’s burden for paying wages during shutdown periods. However, to date any theory to clarify its meaning and extent has not yet been established and it is thought that the Ministry of Labor has expressed different views on similar cases. If the concept of the cause attributable to the employer is understood as “all cases where an employer, who is an operator of a company, shall not claim force majeure”, an employer should not bear the obligation to pay shutdown allowances when the cause of the shutdown is force majeure, as it does not conform to a “cause attributable to the employer”. In this case, whether to pay shutdown allowances is wholly depending on the employer’s own discretion. However, the employer is allowed to be released from the obligation to pay shutdown allowances by claiming force majeure despite no cause attributable to a worker, it is contradictory that the requirement of the shutdown allowances system designed to protect workers does not protect the workers. If Article 46 of the Labor Standard Act is understood as a special regulation of Article 538 of the Civil Act, an “unavoidable reason” should not be understood as one of causes attributable to the employer but be regarded different from these. Accordingly, if shutdown is caused by force majeure, the reduction or exemption of shutdown allowances should be approved by the labor relations commission. In other words, even in case of shutdown due to force majeure, if the worker is ready to offer labor, this should be included in the extent of the payment of shutdown allowances. The employer’s obligation to pay shutdown allowances should be exempted only when it is judged that paying shutdown allowances which are equivalent to 70 percent of the average wages is unreasonable to the employer. Recently, companies are actively using shutdown and other measures as part of efforts to avoid dismissal, with regard to dismissal for managerial reasons. Considering this, it is irrational to treat the shutdown without pay. It is because that the purpose of dismissal for managerial reasons is workers’ stable employment. Urgent managerial necessity which is the requirement of dismissal for managerial reasons should be in principle included in the extent of causes attributable to the employer. Only when it is judged that paying shutdown allowances which are more than 70 percent of the average wages is unreasonable, the labor relations commission should approve the payment of shutdown allowances which are less than the standard or the exemption of the payment obligation. Even when cutting down the shutdown allowances, the amount of the shutdown allowances should be more than a certain level unless the cause of the shutdown is force majeure such as natural calamities, realizing the basic purpose of the Labor Standard Act that is securing and improving the fundamental living standards of workers.