정규직 전환시 비정규직 근무기간 불인정의 정당성: 취업규칙 법리와 근로기준법 균등처우조항의 적용 -대상판결: 대법원 2015.10.29. 선고 2013다1051판결

This article looks at a case in which it is disputed whether unfavourable treatment against a worker whose employment status is changed from fixed-term worker to a worker with indefinite term is legitimate. This article aims at the extent current labour law protects such a worker from unfavourable treatment in comparison with a worker with indefinite term. A study of this sort matters particularly when the newly elected government recently announced a plan to covert non-standard workers to standard worker in public sector. The first legal mater disputed in the case is whether changes of relevant work rules according to which wages of converted workers has to be determined in consideration of their longevity of non-standard employment are legitimate. According to employment law, changes of work rules are not valid if they are unfavourable against relevant workers and are agreed on collectively by such workers. By deciding that such rules do not apply to the converted workers in the case, the court excludes employment protection as if the workers did not exist. The second legal matter dealt with in the case is whether the denial of the changed work rule in is in breach of the equal treatment clause of the Labor Standard Act. The equal treatment clause provides that an employer must not discriminate against their workers on the grounds of sex, nationality, religion and social status. The fact that wages of the workers converted to standard employment were significantly lower as the employer did not consider the period during which they had been employed as non-standard workers was certainly an unfavourable treatment. However it was not uncertain that the ground of ‘social status’ includes employment type such as that of the workers in the case. Suprisingly the Supreme Court avoided the matter. Instead they decided that the employer’s treatment was not in breach of the equal treatment clause on the grounds that other standard workers were not comparators of the converted workers due to their difference of the process they acquired their standard employment status. The explanation of the Court on comparators were inadequate given that comparators were determined only by similarity of work regardless of the differences of the employment process under the Fixed-term Workers Protection Act.