연구논문 : 업무저성과자에 대한 통상해고의 정당성

하갑래 ( Gap Rae Ha ) 단국대학교 법학연구소 2015 법학논총 Vol.39 No.4

정년연장, 고령화 및 저성장으로 대변되는 노동환경의 변화는 업무저성과에 대한 관심을 증폭시키고 있다. 근기법은 업무저성과를 이유로 한 해고에 대해특별한 규정을 두고 있지 않다. 그러다 보니 업무저성과를 이유로 한 해고의 정당성은 해석론에 맡겨져 있다. 이 글은 근로관계종료에 대해 의사표시의 주체를 기준으로 자동소멸, 퇴직 그리고 해고로 유형화한다. 일반해고는 과거의 비위행위나 기업질서위반행위에 대한 제재인 징계해고와 근로계약의무를 이행하지 못한 채무불이행 상태로 인해 장래에도 근로관계를 계속 유지하는 것이 가능하지 않아 행하는 통상해고로 구분될 수 있다. 통상해고는 근로자의 귀책사유 즉 고의ㆍ과실이 전제되는 행태상사유 해고와 그렇지 않은 일신상사유 해고로 분류될 수 있다. 이 글은 후자를 대상으로 하여 판례를 분석하여 해고의 정당성에 관한 일반적인 기준을 제시함을 목적으로 한다. 이 글에서 제시하는 일반적 기준은 다음과 같다. 첫째, 업무저성과에 대한 관리는 단체협약, 취업규칙 등에 의해 미리 설계된 제도적 장치를 통해 이루어져야 한다. 둘째, 업무저성과의 판단을 위한 기준과 방법은 객관성, 명확성, 합리성, 공정성 등이 확보되도록 설계되어야 한다. 셋째, 업무저성과자에게는 관리대상자로 선정되기 전부터 지시ㆍ지도ㆍ경고 등의 조치가 주어져야 한다. 넷째, 관리대상자에 대해서는 교육, 연수 등 개선 기회가 부여되어야 한다. 다섯째, 개선기회를 제공하였음에도 저성과가 개선되지 않은 경우에는 인사이동을 통해 새로운 업무를 부여하여 해고를 회피하는 조치가 기업의 실정에 맞게 제공되어야 한다. 여섯째, 업무저성과를 이유로 한 해고를 할 수 밖에 없는 경우에도 다른 근로자와의 형평이 고려되어야 하며, 해고에 대한 법적 절차나 약정절차가 준수되어야 한다. Interest toward underperformers is arising due to recent changes in labor environment, represented by extended age of retirement, population aging and low growth rate. Since labor law does not contain any regulation on dismissal on the grounds of personal capability, determination of justification of the dismissal is relying on interpretations. This study aims to suggest general criteria through analyzing precedents related to dismissal on the grounds of personal capability. Such general criteria may act as a baseline data to build legal ground of regulation on dismissal on the grounds of personal capability. The generalcriteria suggested by this study are as following: First, management of underperformers shall be performed through institutional measures that is pre-designed by collective agreement and/or rule of employment. Second, criteria and means to determine underperformation shall be designed to fulfill conditions of objectivity, clarity, rationality, fairness. Third, before deciding as a object of management, measures as instructions, guidance, warning shall be given to the underperformer. Fourth, chance of restoration such as education, training shall be given to the managed underperformer. Fifth, if the worker failed to improve his/her performance after a chance of restoration, measures to avoid dismissal through available personnel transfer shall be provided. Sixth, in the cases that a dismissal is necessary on the grounds of personal capability, equity between workers shall be in consideration and legal/contractual procedures shall be abided by.

포괄임금제의 내용과 한계

하갑래(Ha Gap-Rae) 한국노동법학회 2009 노동법학 Vol.0 No.29

In Korea wages have been calculated as prescribed by the Labor Standards Act since 1953, according to which workers shall be paid basic wages set in proportion to the number of working hours and additional allowances for overtime, night and holiday work. However, as industrialization resulted in diversified types of employment, cases where the wage calculation method (wage payment method) is hard to apply began to occur. To address this problem, a practice has developed in which companies pay fixed wages, including additional pay for overtime, night and holiday work, even without setting basic wages, or pay basic wages along with a fixed amount of additional pay for extended work. Such a practice, called “inclusive wage system”, has been considered legitimate in more and more court rulings. Yet these rulings have fallen short of presenting a unified view on the concept, nature and effect of the inclusive wage system. Moreover, the scope of allowances included in inclusive wages is too broad. The inclusive wage system is not defined by law so should be relied on as a complementary method only when it is impossible to calculate wages in accordance with the Labor Standards Act. The revision of the Labor Standards Act in 1997 brought great flexibility to the working hour system. Therefore, any rigidity that might arise from the Labor Standards Act should be addressed through the flexible working hour system. The effect of the inclusive wage system should be recognized only when it is hard to apply the flexible working hour system in paying wages. In addition, the concept, nature and effect of the inclusive wage system should be prescribed by the Labor Standards Act so as to prevent its excessive use.

권리분쟁과 쟁의행위 정당성

하갑래(Ha, Gap-Rae) 한국비교노동법학회 2016 노동법논총 Vol.38 No.-

In 1997, trade union and labor relations adjustment act substituted the term “with respect to the terms and conditions of employment” - which had been an element for definition of the industrial disputes - with “with respect to the determination of terms and conditions of employment”. Afterwards, the opinion that rights dispute is excluded from the category of industrial dispute and so cannot be accepted as a legitimate industrial actions nor as a subject for collective bargaining has been commonly accepted. However, some opinion dissent the opinion. In addition, the criticism pointing out that there is a lack of full-scale academic discussion on the relationship between rights dispute and industrial actions is arising. Such controversy became fierce after the judgement of Seoul High Court on April 2015. The court accepted the opinion insisting that the legitimacy of industrial actions depends on the specifics of rights dispute. The court held that legitimacy of industrial actions for rights dispute may be approved, however the rights dispute shall be related to fulfillment and compliance of collective agreement in contrast to interpretation or application. Opinions supporting the judgement are arising. This study aims to draw a reasonable principle, especially on whether fulfillment and compliance of collective agreement in contrast to interpretation or application may be accepted as an object of industrial actions by analyzing opinions on legitimacy of industrial disputes related to rights dispute. This study analyzes legitimacy of industrial disputes related to rights dispute on two perspectives - ‘Considering industrial actions as a sole’ and ‘Considering the relativeness with collective bargaining and industrial disputes’ - and concludes that rights dispute cannot be accepted as an object of industrial actions. Furthermore, this study dissents the opinion that considers the specifics of rights dispute which accepts legitimacy of industrial actions related to fulfillment and compliance of collective agreement in contrast to interpretation or application.

개별적근로관계에서의 근로자의견 수렴제도에 관한 연구

하갑래(Ha, Gap-Rae) 한국비교노동법학회 2011 노동법논총 Vol.23 No.-

Individual Labor Relations Law provides various types of system to receive employee opinions. The law prescribes a majority trade union, majority employees, representatives of majority employees, and labor and management committee as parties to decide on employee opinions. It also stipulates written agreement, consent, and consultation as the way to provide opinions. Based on the observation that complicated systems confuse parties involved and drop trust on the contents of the system, this research detects issues on the overall system to receive employee opinions and suggests how to improve the system. The system in general is not unified and organized and in part is lacking in legal principles. Given that, this study presents as a solution that the labor and management committee system will be developed into the ‘labor and management agreement system’ to be equipped with unity and that individual issues will be addressed in the process of development. Since this approach has not been attempted, this research may risk not reflecting all the necessary elements for analysis or not resolving incongruity between analyzed elements. I hope that this study will be the basis for the follow-up research in future which will provide an analysis and an alternative solution of more complete level.

통상임금제도의 변화와 과제

하갑래(Ha, Gap-Rae) 한국노동법학회 2012 노동법학 Vol.0 No.44

Ordinary Wages System became specified in decrees of the Labor Standards Act in 1980s". Administrative guidelines set detailed standards of the system based on the decrees and case laws were established under the standards. However, case laws evolved to revise many parts of administrative guidelines and recent court decision stated that fixed benefits were included in the ordinary wage. Accordingly, gap between case laws and administrative guidelines are getting widened and companies are getting puzzled due to burden of costs and litigation. In order to clear the dust in this murky situation, legislative approach is required to make case laws in line with administrative guidelines. Followings are the legislative measures required. First, include all wage items except for statutory benefits into ordinary wage. If the scope of ‘cash’ included in the ordinary wage is enlarged reflecting changed case laws, the level of ordinary wage will approach the level of average wage. Second, specifiy wage items not included in ordinary wage in the law to prevent level of ordinary wage from continuously changing according to the case laws. Third, lower the mark-up rate of statutory benefits to reduce the burden of companies whose productivity is not changed. Reform of ordinary wage system is not easy to implement due to its various effects. However, determined legislative moves are badly required, given labor and management conflicts and social costs caused by loss of standards in the labor market happening in ineffectiveness of current administrative guidelines.

새 정년제도의 쟁점과 법리의 형성

하갑래(Ha, Gap-Rae) 한국노동법학회 2014 노동법학 Vol.0 No.49

The law on new mandatory retirement system was promulgated and is waiting to be enforced. This study aims to prepare legal principles compatible with the new retirement system. The study attempts to search for the legal principles befitting the characteristics of the new retirement system based on the analysis of the legal principles of the previous contracted retirement system. The new retirement system consists of the statutory retirement system, the wage system reorganization and support for them. Most legal principles of the contracted retirement system apply to the new retirement system but there are some issues to be examined. The issues in the statutory retirement system include the normative effect, the introduction or reduction of retirement age, and subordinate norms that can stipulate the retirement age. The concept, the effect, the form for stipulating the wage system, and the way to carry out an obligation need to be examined in relation to the wage system reorganization. The issues to go over in relation to the support include the subject, the contents, and the scope of support. This study analyzes the previous legal principles in terms of the above-mentioned issues and distinguishes the legal principles to be applied to the new retirement system and those not to be applied. In addition, this study, based on the overall structure and contents of the labor-related acts, proposes new legal principles that are necessary as ‘the extension of the legal retirement age to 60 or over’ becomes mandatory.

통상임금과 평균임금에 포함되는 임금의 판단 -가족수당, 근속수당, 승무수당, 식비, 상여금을 중심으로-

하갑래 ( Gap Rae Ha ) 단국대학교 법학연구소 2007 법학논총 Vol.31 No.1

This study looked at court rulings and administrative interpretations mainly concerning family allowances, seniority allowances, meal expenses, allowances for working days in transportation and bonuses to see how ordinary wages and average wages are defined and applied in them. As a result, it was found that some improvements can be made to the concepts of these two types of wages. First of all, in order to prevent any confusion that might arise from different definitions adopted by court rulings and administrative interpretations, the definition of ``ordinary wages`` should be prescribed by the Labor Standards Act. Second, the idea that ordinary wages shall be paid not to all workers but to workers who satisfy certain conditions should be clearly expressed in labor contract. Third, a particular amount of allowances paid to all workers should be considered ordinary wages in spite of their name. Fourth, the concept of ordinary wages needs to be further complemented to ensure that the amount of annual pay can be calculated based on ordinary wages. Meanwhile, the concept of average wages also needs more clarification. Benefits in kind should be seen as wages only when they are convertible into money. In addition, consideration should be given to making the base period for calculating average wages 12 months.

취업규칙 불이익변경에 있어 사회통념상 합리성

하갑래 ( Gap Rae Ha ) 단국대학교법학연구소 2009 법학논총 Vol.33 No.2

An obstacle to overcome for the rules of employment (ROE) to be accepted as having regulatory effect is employers` unilateral decision for their convenience sake. That is the ground for the Labor Standards Act(LSA) to ensure participation of workers in changing the ROE. Nevertheless, in order not to overuse `participation of workers` the LSA states that accordance of workers must be sought out in changing the ROE to disadvantage to employees, but only their opinions rather than the accordance be received in other cases. Within such legal framework, socially accepted rationale has been provided by court rulings as criteria to decide on the effects of the ROE. In applying the criteria, according to the case laws, the basis for the rulings is moving to `whether to accord or not` from `whether it is a disadvantageous change or not.` This shift has the great meaning in two ways. First, the scope of socially accepted rationale is being broadened so that the changes of the ROE will not become an obstacle to business management or labor management. This trend may result in weakening of ROE`s regulatory effect. Especially under this low unionization rate, losing the regulatory function of the ROE may cause the system of the labor laws regulating collectively individual labor and management relations to break down. For employers, it may be beneficial to them for the short term since they can expand their initiative in deciding labor conditions, but for the long term they may be excluded from the fact that they may introduce the new collective system to decide labor conditions such as the business management consultation committee of Germany. Second, the recent case laws note the socially accepted rationale enough to waive from the accordance of employees in deciding on the effects of the changed ROE. This may be interpreted as the signs of changes in two-fold system of assessing on `whether to change disadvantageously` and `whether to accord.` Given that employees naturally must decide on `disadvantageous change` and conflicts due to overlapped decision can be reduced, it is desirable that accordance of employees will be the basis to decide on the effects of changed ROE. Interpretation of laws has some limits in resolving the issues arising from the current legal system where the effects of changed ROE will be decided under the overlapped legal structure in accordance with the socially accepted rationale. Thus the legislation needs to be provided to complement the case laws. The criteria for the socially accepted rationale the case laws have accumulated needs to be reflected in the legislation through correcting limitations and problems.

연구논문 : 사무직 관련 근로자의 근로시간제도에 관한 연구

하갑래 ( Gap Rae Ha ) 단국대학교 법학연구소 2015 법학논총 Vol.39 No.1

This study aims to seek a measure that reinforces the flexibility of working hour, concentrating on white-collar employees. A synthetic and unified amendment on the flexible-working-hour-system for white-collar employees through legislation, referring to the White-Collar Exemptions of United States, is required as a long term plan. In addition to the legislative actions, modification of notification, administration guidance, decree and implementation of project- planning-typed discretional working hour system can be an alternative to the formal policies regarding the flexible working hour as a short term plan. In a material way, relaxing the standards determining the executive employees exclusive from the ‘working hour’, ‘holidays’, ‘rest break’ regulations, diversifying the work performances and the scope of the distributed working hour under the discretional working hour system, adopting project-planning-typed discretional working hour system of Japan in a modified form to meet the requirements and procedures of current discretional working hour system.

공공갈등관리에 대한 시스템적 접근

신은종 ( Eun Jong Shin ),하갑래 ( Gap Rae Ha ),김학린 ( Hak Lin Kim ) 단국대학교 분쟁해결연구소 2010 분쟁해결연구 Vol.8 No.1