독일 ‘육류산업 근로자 권리의 보장에 관한 법률’상 직접고용원칙의 합헌성에 관한 고찰

In Germany, the legislature has enacted provisions in Article 6a(2) of the Act on the Protection of the Rights of Employees in the Meat Industry (GSA Fleisch; hereinafter the “Protection Act”). The aforementioned provisions mandate that an employer in key sectors of the meat industry must employ only those individuals with whom he has an employment relationship within his establishment (hereinafter “the Direct Employment Orders”). This article dwells on the constitutionality of the Direct Employment Orders. It also considers the constitutionality of the restriction on the use of temporary agency work. The Direct Employment Orders, as set forth by the German legislature in the Protection Act, impose restrictions on the freedom to exercise a profession comparable to restrictions on the freedom to choose a profession, in particular for subcontractors specialising in key sectors of the meat industry. Nevertheless, the restrictions are constitutional as they are necessary for the achievement of public interest of superior importance, namely the protection of workers under Occupational health and safety laws and the restoration of the disrupted labor market order in key sectors of the meat industry, and they are necessary to eliminate a serious existing risk to that public interest, which is demonstrable or highly probable, and are therefore consistent with the proportionality principle. In the proportionality test, respect for the legislator’s evaluative prerogative plays a very important role in the test of suitability and necessity. If the relevant labour market is severely disturbed, there are noticeable occupational safety and health hazards, and the ‘extraordinary circumstances’ that the majority of workers in the sector are working under grossly inadequate working conditions to the extent of being ‘exploitative and morbid’ are established by a survey conducted by the government or a public institution, then the legislation of doctrine of the direct employment orders can be considered in Korea, and such legislation is actively required by the legalism of working conditions under Article 32(3) of the Constitution of the Republic of Korea. In this case, elaborate legislation, including the establishment of appropriate exemptions and sufficient transitional provisions, is of paramount importance. In particular, it is necessary to elaborate legislation that limits the scope of regulation to the necessary scope rather than setting a comprehensive scope. This is also necessary in order to prepare for the necessity test and balancing test under the proportionality principle.