일용근로자의 노동법상 쟁점과 해석론

This article examines the interpretation of employment law issues regarding the use of day laborers, strictly defined as individuals employed on a day-to-day basis. A central problem unifying these issues is the discrepancy between the formal agreements expressed in day labor contracts and the actual practices of employing day laborers. While “day labor” implies employment with a single-day duration, the reality often reflects an intent to engage such employees for extended periods, resembling arrangements for regular employees. This misalignment between contractual terms and practical applications generally remains unproblematic in the absence of legal disputes. However, when conflicts arise, challenges emerge in defining the legal nature of the employment relationship. Particularly complex are situations involving intermediaries, often referred to as “oyaji”, who facilitate employment between employers and day laborers. These cases raise intricate questions about the legal status of the “oyaji” and the identification of the true employer. To address these challenges, this article advocates for the application of the “Principle of Primacy of Facts”. Determining the employer of a day laborer should prioritize the substantive nature of the labor provided over formal contractual designations. Similarly, eligibility for benefits contingent upon continuous employment should hinge on whether the employee’s actual usage aligns with regular employment rather than sporadic day labor. For dismissal regulations, if an employee formally categorized as a casual laborer is effectively employed for a fixed duration based on contract terms or oral agreements, they should be classified as a fixed-term employee rather than a casual laborer.