초단시간근로를 둘러싼 쟁점에 관한 검토 - 퇴직급여에 관한 고용노동부 질의회시를 중심으로

The proportion of part-time employees in Korea’s workforce is steadily increasing every year, and the trend is toward regular part-time employment, rather than a temporary or non-regular short-term employment, due to changes both in the corporate management environment and in the value attached to work–family balance. However, the social insurance enrollment rate of part-time employees is still significantly lower than that of full-time employees. Furthermore, although part-time employees are afforded some legal protection, the legal system has remained fundamentally unchanged under the premise that part-time employment is a form of temporary and exceptional employment, resulting in a continuous gap in statutory working conditions between part-time employees and full-time employees. In particular, marginal part-time employees are often denied even the minimum social safety net simply because of their short working hours. At a time when it is necessary to actively improve the current laws and related systems to make part-time work a better experience, it is important to review the overall problems of the current protection system for part-time employees and find a way to reasonably bridge the gap in working conditions between full-time employees and part-time employees. In light of the above, this article presents an overview of the relevant domestic laws and regulations on marginal part-time employment; discusses theories and Constitutional Court decisions on the constitutionality of Article 4(1) of the Act on the Guarantee of Employees’ Retirement Benefits, which excludes marginal part-time employees from the retirement benefit system; and examines the feasibility of the Ministry of Employment and Labor’s responses on retirement benefits for marginal part-time employees. In particular, the main thrust of the Ministry of Employment and Labor’s responses on retirement benefits for marginal part-time employees is that even if an employee is a marginal part-time employee at the time of retirement, it should not be uniformly considered that the said marginal part-time employee is ineligible for retirement benefits. Rather, when counting back from the previous 4 weeks based on the date of retirement to see if the contractual work hours per week are 15 hours or more, if the sum of the 4 weeks with contractual work hours of 15 hours or more exceeds 52 weeks, the eligibility requirements for retirement benefits that the continuous service period must be at least one year should be considered met. This seems to be based on the fundamental premise of Article 4(1) of the Act on the Guarantee of Employees’ Retirement Benefits, which states that contractual work hours of less than 15 hours per week should not be included in the “continuous service period” when calculating retirement benefits, but the provisions of Article 4(1) do not strictly regulate whether a marginal part-time employment period should be excluded from the continuous service period or what criteria should be used specifically, so it is difficult to regard this as a legally valid conclusion. Rather, it would be appropriate to take the approach based on Article 18(1) of the Labor Standards Act, which stipulates that “[t]he terms and conditions of employment of part-time employees shall be determined on the basis of relative ratio computed in comparison to those work hours of full-time employees engaged in the same kind of work at the pertinent workplace.” This approach calculates the ratio of the fractional expression with the contractual work hours of the marginal part-time employees as the numerator and the contractual work hours of the full-time employees as the denominator, which is then multiplied by the period in which the contractual work hours per week is less than 15 hours and added to the continuous service period. In addition, the average wage may be unfairly underestimated for marginal part-time employees, but there are no appropriate measures exist to correct this under current law, including Article 2(1) of the Enforcement Decree of the Labor Standards Act. To fundamentally solve this problem, a legal basis should be clearly established to exclude the period after the change in status to marginal part-time employment from the period for calculating the average wage in such cases as those involving employees who have been working as full-time employees but whose status has changed to that of marginal part-time employees close to retirement. In addition, considering that under the current system that requires the average wage to be calculated based on the time of retirement, it is not easy to implement the principle of proportional protection under Article 18(1) of the Labor Standards Act, and that many legal issues are expected to emerge regarding the treatment of marginal part-time employees, while the statutes and judicial precedents do not seem to have adequately addressed these issues, more active discussions of the legal issues surrounding the treatment of marginal part-time employees are encouraged to follow suit.