근로조건 결정규범의 승계와 근로관계 계속의 법리

Most of the discussions related to the labor law issues arising from the transfer of business process have been focused on whether the status of the laborer as a party to the labor contract can be transferred to the transferee of the business. At present, when the business transfer is established, the labor relationship is regarded as 'comprehensive succession' from the transferor to the transferee, and this is called the 'legal principles of labor relations succession'. In this regard, however, there has been no active discussion on whether the working conditions can be succeeded in the process of transfer of business in rules for determining working conditions including collective agreements, rules of employment. In this study, the collective agreement, the continuance and the effect of the employment rules were set as the subject of the first discussion in the process of business transfer. First, in relation to collective agreements, consideration is given to the meaning and function of collective agreements in today's industrial relations, and that transfer of business can’t be a direct basis for deteriorating working conditions or restricting legitimate trade union activities respectively, it is suggested that collective agreements are inherited in the process of transfer of business and that the enforceable and complementary effects are recognized. However, the obligatory part of the collective agreement should be examined differently from the normative part, since it includes the contents of the union's manage- ment and the working place order. In the case of transferring a business acquired by a transferee to a previously operated business without operating it independently, and if a uniform succession of the obligatory part is enforced, there are lots of possibilities to occur confusion and conflict in the relationship with existing unions and workers organized in the transferee's workplace. Therefore, it should be considered that the obligatory part can remain in effect only to the extent that it does not conflict with the existing union activities and workplace order. It is reasonable to assume that the rules of employment are to be inherited as such during the business transfer process and that the assignee of the business should obtain the consent of the group of workers if the contents of the former employment rules change unfavorably to the employee. However, it is reasonable to adopt the dichotomy method which accepts succession on condition that the equality of the workplace order is maintained before and after the transfer of the business. On the other hand, even if the existing rules for determining working conditions, such as collective agreements, are inherited in the process of business transfer as mentioned above, this leaves room for further examination. In most of the business transfer process, it is common that the succession of labor relations is achieved by the way in which the workers leave the workplace of the transferor and then join the workplace of the transferee. However, working conditions such as Annual Paid Leave and Retirement Allowances are calculated on the basis of the years of service of the laborer, considering the succession form of such labor relations, the period when the laborer provided to the transferor can’t be succeeded to the transferee. Therefore, the possibility of succession must be examined, and in this study, the affirmative principle is called ‘the principles of continuous employment’. At present, the precedents and the majority of the doctrines are based on the principle that years of continuous service are included in the overall succession of transfer of business. However, since the duration of work is only a factual factor for estimating the level of a particular working condition, it is not appropriate to include it in the concept of a working condition. As mentioned above, when transferring a business, it should be said that years of continuous service of an employee is not itself succeeded to the assignee because rules for determining working condition that stipulates each working condition, should be succeeded. However, it can’t help but admit that it is insufficient in terms of laborer protection. Therefore, in this study, it was hypo- thesized that workers had the expectation that they could claim the level of specific working conditions according to their service years, and that this expectation of the relationship with the transferee was transferred to the transferee. In addition, the reason which the expectation should be succeeded was suggested.