근로기준법상 균등처우조항과 무기계약직 근로자 ― 서울고등법원 2016. 8. 31. 선고 2016나2030683 판결 ―

This article is a review of a decision of Seoul High Court(SHC 2016Na2030683), in which National Road Keepers(heareafter NRKs) seek damages arising from contravention of the equal treatment clause of the Labor Standards Act(LSA)(s.6). In this case, they maintain that they are treated less favorably than their chosen comparators, namely Civil Servants doing natonal-road-keeping(hereafter CSNRKs). The High Court upheld the decision of the court of the first instance, in which the NRKs’ claim for damages was rejected on the grounds that the CSNRKs are not proper comparators to the NRKs. The NRKs are Workers of Indefinite Contract(hereafter WICs). The WICs have brought a lot of claims similar to the NRKs’. They have no choice but to rely on the equal treatment clause(s.6) of the LSA, as there are no other statutes in which their discrimination claims are able to be brought about. They are differ from part-time or fixed-term workers, whose claims for discrimination are relyed on the statute regarding non-standard workers although it is often claimed that they are less favourably treated than standard workers. The article firstly is aimed at analysing cases on the equal treatment clause with a view to find proper stages to reach a conclusion on whether there is contravention of the clause. Secondly the article suggests that there should be 4 stages of construction in order to consider a case on the equal treatment clause. The stages are a) discrimination grounds b) comparators c) unfavourable treatment d) reasonableness. In this regard, the article maintains that the court’s decisions have not made a clear distinction between stages of construction. Thirdly, the article explores how to make an proper construction of each stage in turn. In regard to the first stage of construction, the article argues that the statues of the WICs is a kind of ‘social status’, which is one of the discrimination grounds in the equal treatment clause with sex, nationality and religion. On the second stage of construction, it argues that the comparators do equal work to that of the WICs, excluding any consideration on, for instance, the difference of recruitment process. Thirdly, it maintains that reasonableness in the fourth stage is constructed on the basis of the proportionality test. Finally it concludes that this case deserves reconsideration in the Supreme Court on the basis of the 4 stages of construction.