프랑스의 업무시간 외 연결차단권의 내용과 국내의 입법 논의

Advances in information and communication technology (ICT) have greatly improved efficiency in industrial settings, but have increasingly made it difficult to distinguish between working and leisure time by narrowing the distance between employers and employees. It has been demonstrated in many reports that the constant standby mode, to which workers are exposed even during non-working hours, prevents them from enjoying their leisure time and tires out their body and mind. Being disconnected from working outside of office hours is therefore essential not only for protecting the privacy of workers, but also important for them to relax and fully recharge for work. However, the temptation of connection is too sweet to be left to workplace practices or culture. It is therefore necessary to safeguard the ‘right to disconnect’ from digital devices by regulations. Labour regulations can be divided into statutory laws and collective agreements between employees and employers. Conclusively, it is considered appropriate to establish the legal framework for the right to disconnect outside office hours and pay for the work done during these hours and to set concrete hours and pay in collective agreements customized to the given workplace conditions. A notable example of such legislation has been set by France. Even prior to the enactment of the so-called ‘El Khomri’ law in 2016, which stipulates the right to disconnect from digital devices, the French Supreme Court had recognized the right to disconnect during non-working hours based on the right to rest and leisure guaranteed by the labour law. However, such rulings mostly concerned the immunity from responsibility of workers who refused to connect, without giving any instructional details. Going a step further, the 2016 law stipulates that employers and employees negotiate details regarding the right to disconnect in collective bargaining or company’s council ‘with the aim of ensuring observance of rest time and leave and personal and family life’ of workers. Some insist that the duration of disconnection should be identical to the minimum duration of rest time between working days shifts, i.e., 11 hours, as provided for by the labour law, whereas the details of the disconnected hours and pay for the work done during that time generally depend on employment agreements. Pursuant to the ‘El Khomri’ law, companies with over 50 employees are obliged to draw up a collective bargaining that guarantees their employees the right to disconnect. In comparison, companies with at least 11 and less than 50 employees should so decide by a charter signed by the company’s council. If an employer violates the right to disconnect, he or she should pay compensation and credit the corresponding time off to the employee involved. The French labour law defines the ‘time put on perpetual standby outside office hours even if without receiving any direct working order from the company’ as ‘constraint time’ and provides for the duty of rewarding the employer for such constraint time by paying or crediting time off. However, there are no criminal penalties comparable to these compensation measures, even if the employer violates the right to disconnect. The implications of the French legislation for us can be examined under two aspects: purpose and methodology. From the viewpoint of purpose, the right to disconnect is associated with the right to rest; that its, it is granted to employees with the aim of providing them with enough time for undisturbed rest and leisure. The current legislative debate in Korea tends to approach it from the perspective of work–family balance rather than the right to rest and leisure. Whereas work–family balance is important as well, the right to rest and leisure will have to be brought to the foreground from the perspective of viewing workers as human beings in the first place. From the methodological viewpoint, the French labour law leaves the decision about the details of disconnection from work to collective bargaining or individual employment agreements. It stands to reason to allow employers and employees to negotiate the terms for the right to disconnect, given the vast variety of working types and environments differing from one workplace to another, rather than defining them uniformly in legal provisions. However, considering that Korean employees are less likely to negotiate on an equal footing with employers compared with their French counterparts, there is a need to set a minimum level by law.