노동위원회 사례별 주요쟁점 검토

Recently, in regards to many issues arising from enforcement of new legal systems for relief order, Labor Relations Commission should actively assert itself in preparation activities by proposing specific and rational standards to minimize confusion in the field and for smooth establishment of the new system. This research is centered on analyzing and reviewing areas pointed out as working-level problems of the Labor Relations Commission. As mentioned above, details of the main issues according to recent, new legal principles can be summarized as following. First, regarding separation of negotiation unit of the labor union, decision to separate negotiation unit according to agreement between the parties can become a problem. Scope of the labor law does not accept exception for negotiation unit unless decision to separate was made by the Labor Relations Commission so separation of negotiation is under the exclusive jurisdiction of the Labor Relations Commission. Therefore, even though agreement is reached between the negotiating parties regarding negotiation unit, negotiation unit cannot be separated without decision of the Labor Relations Commission and it is reasonable to interpret “one business or business location” in its entirety as one negotiation unit. Second, in 2-year use exception clause, occupational group listed by rational reason seem fairly extensive but in reality, exception is applied only for limited reason or occupational group and such problem cannot be overlooked. Thus,exception applying to general workers is limited to when period required to complete project is set, when vacancy results from leave of absence or dispatch,when period required for finishing academics or job training is set, or in the case of senior worker. Also, it is difficult to determine whether limiting or allowing extensive use of the exception clause is advantageous or disadvantageous for the workers. Even though, workers are said to secure permanent employment after 2-year contract period, if the user terminates the worker before the worker exceeds the usage period to avoid such condition, it may be more advantageous to use the exception to continue temporary employment for more than 2 years. Meanwhile, if exception is allowed, fixed period contract can be continuously renewed leading to unstable employment status of the worker and such problem cannot be overlooked. Third, regarding monetary compensation system, in the case Labor Relations Commission orders reinstatement to the original job instead of monetary compensation order by Labor Relations Commission authority even though the worker has no intentions to return to the original job, monetary compensation order application right of only the worker is accepted based on the counterevidence that monetary compensation is realized under the prerequisite of user’s non-acceptance of job reinstatement can be contrary to the purpose of the existing law. Regarding calculation of monetary compensation amount, Labor Relations Commission understands “amount greater than wages” as “amount corresponding to wages” in most decisions. Monetary compensation amount calculation method reflecting injustice of termination, certified labor attorney cost, ex gratia payment, job-seeking preparation fund, etc. is needed. The fact that countries like France and Germany provides amount corresponding to 6 month pay for job-seeking preparation fund should not be ignored.