「근로기준법」상 서면합의서의 효력에 관한 소고

March 2015 currently, 18years have been passed since the enforcement of the written collegiate system of labor representative for flexible schedule introduced by the Labor Standards Act was established on Dec. 31, 1996. The reasons why the written collegiate system of labor representative was newly established even though there were already the collective agreement system and the work rules system was the legislative intent to promote the flexible schedule. Now it may be necessary to check how much such legislative intent has been operated well in the real world. In those days, several studies having been conducted intermittently pointed mainly out the lack of election procedures enough for securement of the democratic legitimacy of the labor representative and took a theoretical approach on the effect of written agreement compared to the collective agreement system and the work rules system. With regard to the democratic election procedure of labor representative, there was pre-announcement of legislation in 2013 intending the position of laborer committee member on the act for laborer’s participation and cooperation promotion holding the position of labor representative on the Labor Standards Act concurrently. However it was not accomplished by the management’s logic that such would go against the policy of deregulation. Until those regulations are laid out, it will be necessary to have a position to interpret so as to apply the democratic procedures to the determination on the working conditions provided in the Labor Standards Act based on equality. On the other hand, if the written agreement is concluded by a union representative obtaining a majority vote, the effect can be deemed equivalent to the collective agreement. But at a workplace where a bargaining representative union is not exist, if a labor representative obtaining a majority vote signs a written agreement (this, “Narrow Written Agreement”), there is discussion of the recognition degree of the effect. This study reveals the fact theoretically that to acknowledge its own normative effect coincides with the legal point. That is to say, it recognizes the enforcing effect of written agreement.