근로기준법상 근로자 동의의 기능과 한계 — 규제 완화의 요건 혹은 해석의 기준 —

We have the requirement of employee’s consent at various areas of Labor standars Act (LSA). LSA prescribes that terms and conditions of employment shall be freely established on the basis of equality, as agreed between workers and their employer. At the same time, it suggests minimum standards for the employees, which consequently limits free intention of contract parties. Manadatory rules that restrict freedom of contract in labor relations are grounded by some reasons : (economic) inequality between employer and employee; protection of social value such as health and safety; unintentional influence to other employees such as race to the bottom. LSA sometimes suggests exception from mandatory rules via employee’s consent, through regulation itself and case law. We need to confirm the objects that can be exempted, and then also need to analyze the difference between individual and collective agreement. The function of individual employee’s consent is restricted, because before the consent of the employee, you need to confirm the area which this derogation is permitted according to the main purpose of the clause. And after that, the free choice of derogation should not disturb other employees’ rights, nor influence them in the course of making decisions about derogation at the same time. We have to be prudent in permitting derogaton by individual employee’s consent, when there are no additional requirements or collective procedure.