현행법상 파견근로자 보호에 관한 법적 쟁점과 개선방안

Although temporary agency workers account for a lot of the work force, the attention and protection needed to provide them has been taken lightly compared to other temporary workers such as non-regular workers or part-time workers even though their occupational conditions are inadequate. Currently, the International Labor Standards, EU Temporary Agency Worker Guidelines, and regulations in Germany, Franch, Japan, etc. have various provisions that allow for the adequate protection of temporary agency workers. In Korea, despite the fact that the applicable scope for the Act on the Protection of Temporary Agency Workers of Korea(the “Act”), the standard for categorizing temporary agency workers and subcontractors, rectification of discrimination all need review and revision, the clash between labor flexibility and labor protection is making it difficult for the government to decide on its stance on this issue. In this thesis, (i) we analyze the legal realities of the temporary agency workers that account for a lot of the temporary work force, (ii) review through some legal frameworks in other countries, and (iii) seek to find improvement methods to protect the temporary agency workers by reviewing statute bills proposed by the National Assembly and case law. Under the current legal framework, many disputes have arisen due to the fact that the standard for distinguishing temporary has not been clear making it difficult to determine disguised outsourcing or illegal temporary agency workers. In relation to this issue, disguised outsourcing has been a frequent issue at the courts recently and starting with the Hyundai Motors case in February 25, 2015 and Namhae Chemicals case, KTX femal attendants case afterwards, the judgement have provided a fairly simple standard in distinguishing temporary agency and subcontracting. Nonetheless, because the KT&G case, Posco case, Hyundai/KIA case, and Samsung Electronics case have rendered different judgments, it is evident that distinguishing temporary agency and subcontracting are not only differently, but also they have only raised legal instability. As we there is no specific regulation on the standard for determining temporary agency and subcontracting, it would be to the benefit of the workers to legalize such depending on case law. If we review the bills that have been proposed by the National Assembly, the upside is that because the bill enlarges that scope of temporary agency work, it minimizes the difficulty of distinguishing the two. Furthermore, the need to legalize the standard for distinguishing the two is necessary to prevent disguised outsourcing, this can be done by referencing case law and enumerating the distinguishing marks of subcontracting and thereby itemizing what is not distinguished as subcontracting as temporary agency work. There is also a lot of discussion regarding expanding the scope of work for temporary agency. However, if we expand the scope of work for temporary agency, then it will replace the current regular works and will have an adverse effect on workers’ stability and the working conditions. Also, as fundamental industries have a close relationship with manufacturing, if we allow temporary agency workers into fundamental industries, it will clash with the current statutes that prohibit temporary agency workers into manufacturing factories. For example, if we allow temporary agency workers in fundamental industries while prohibiting them from conveyer belt work in factories, that will be a contradiction in itself. Moreover, we need to question whether allowing elderly temporary agency workers would actually assist in increasing the employment rate of the elderly. Also, replacing the employment obligation regulation to an employment constructive regulation, and amending levying fine to criminal punishment can help protect temporary agency workers and prevent further illegal temporary agency works. In that regard, it is also worth reviewing the rest period adopted in France. The application for rectifying discrimination against temporary agency workers also requires a lot of improvement. ① The greatest issue is standing, as in the application can be made by the labor union. The reason the current application system is not vigorously used is because most workers are afraid of being in a disadvantageous position and being vulnerable personally, or they don’t have the information, capability or the time to put in an effort to make the application. In this regard, we may grant the labor union the right to apply under strict requirements, grant the right to apply to members of the union, and right to give power of attorney to apply to non-union workers. In the event the workplace doesn’t have a labor union, we may grant the representative of the workers the right to apply with power of attorney or let the workers jointly apply for rectifying discrimination. ② While such laws against discrimination apply to any workplace with one (1) or more workers according to the Non-Regular Workers Act, it doesn’t apply to workplaces with four (4) workers or under according to the Act. Considering that most small enterprises hire temporary agency workers, excluding these type of workplaces from the anti-discrimination institution makes the working condition more inadequate. As the Act iself has been passed for the purpose of protecting temporary agency workers in consideration of their working condition compared to regular workers, it is paramount that such anti-discrimination institutions be applied to workplaces even with four (4) workers or less. ③ In the case of Article 21 of the Act, if the faults are attributable to the workplace owner as well as the temporary agency owner, we need to amend the statute to include the workplace owner to be jointly liable. On the other hand, the court would do much good if they can utilize the punitive damages system to any intentional or repetitive discrimination.