근로기준법상 ‘사회적 신분’의 의미와 무기계약직에 대한 차별의 문제

As we can infer from the negative connotations such as ‘pseudo-full-time worker or ‘quasi-full-time worker’ given to workers deemed permanent contract workers(“unlimited contract workers”) due to the application of the Act on the Protection Etc. of Fixed-Term and Part-Time Workers (the “Act”) by the labor unions and social workers alike, unlimited contract workers are discriminated from full-time workers in every aspect including, but not limited to, wages, promotions, welfare, etc. These issues are especially prevalent among temporary workers in the public sector and financial sectors, such as bank tellers. Even if unlimited contract workers do the same work as full-time workers, while fixed-term workers can fall back on the Act for any remedy to discrimination, unlimited contract workers fall outside of the scope of the prohibition against discrimination clause provided by the Act and are at a blind spot where discrimination against working conditions and welfare cannot be rectified. In order to address this problems, some have gone as far as to classify ‘unlimited contract worker’ status or ‘full-time worker’ status as part of the “social status” prescribed in Article 6 of the Labor Standards Act of Korea, providing an apparatus to argue “equal pay for equal work,” nonetheless, such argument was only in the minor opinion as the majority of the academia construed that worker status based on employment contracts did not constitute “social status” in Article 6 of the Labor Standards Act. A recent lower court decision shed new light on this topic by stating that full-time worker, unlimited contract worker and any type of employment constitutes the “social status” part of Article 6 of the Labor Standards Act despite the popular opinion regarding this matter. This particular court decision is exposed to criticism from a legal standpoint at is contradicts the precedent set by the Supreme Court;(i) wrongfully classifying type of employment as “social status” considering the social construct of “social status”, (ii) violates the principle of autonomous agreement, (iii) contradicts with the employer’s freedom to set different rules of employment for different types of employment, and (iv) different types of employment are not subject to the measure of equality. On the other hand, the court decision does goes out of its way to curb the abuse of using temporary workers in today’s reality with a high social cost of employment and is the first to provide a legal principle to protect unlimited contract workers’ status. Despite the lower court’s good intentions, the application of such in today’s reality where “equal pay for equal work” is not upheld is questionable, not to mention that the expansion of “equal pay for equal work” in other types of employment may trigger the wage system to be distorted into working as a performance-based annual salary system, which in turn may lengthen the working time of the employees and bring about a decline in the welfare of the employees. On the contrary, the Supreme Court still holds that different types of employments are not subject to equal treatment, therefore even if the employer sets a different track for these employees, no such discrimination would arise from such an action. In my opinion, the Supreme Court errs in that different types of employment are not subject to the same equal status as each other. But this opinion comes with a caveat that even if the lower court decision is correct in assessing that type of employment constitutes “social status” in Article 6 of the Labor Standards Act, equal status as an employee does not necessarily mean that each employee provide the same standard of work. It is important to take into consideration the skill (license, educational degree, ability to carry out a job through experience and the objective standard of skill), responsibility (characteristic, range and complication inherent in the work and the employer’s dependency on the work), educational status, work experience, years of service, etc., therefore even if the Supreme Court may have provided some technical error, it did arrive at the correct conclusion. Lastly, although the unlimited contract workers asked for the indirect application of the Constitutional principle of equality to correct the discrimination between against full-time workers, the court decisions here never went so far as to make such a deliberation, and hopefully this will be remedied soon in the future.