한국 기업의 고용기회균등 측정방법의 탐색적 고찰 : 미국 고용균등위원회를 중심으로

김정진 한국경영컨설팅학회 2017 경영컨설팅연구 Vol.17 No.1

본 연구는 경영학적 관점에서 고용 생산성을 높이고 기업의 채용과정에 고용균등원칙을 실현하기 위한 기존의 국내 연구 및 측정 방법론이 국제기준과 비교하여 볼 때 그 실효성이 매우 미흡하다는 문제인식에서 출발하였다. 국내 고용기회균등에 관한 연구는 선진 사회에 근거해서 사상적 수준에서 그 당위성만 강조되었을 뿐 실증연구로 이루어진 바가 거의 없는 실정이다. 반면 미국을 비롯한 해외 사례에서는 고용기회균등에 관한 이론적 연구뿐만 아니라 이러한 개념을 측정하는 방법론(차이법, 전인법, 효과비율, 2단계 표준편차).과 그 타당성에 관한 다양한 연구가 많이 진행되었다. 이러한 관점에서 본 연구는 고용기회균등 측정방법을 초점으로 삼아 미국 등 해외 사례를 살펴보고 다양한 고용기회균등 측정방법을 탐색적으로 국내 사례에 적용, 시뮬레이션을 시도하였다. 비록 고용기회균등을 제고하는 이슈가 측정 방법에 한정되는 것은 아니지만 정확한 측정방법에 관해 논의할 필요가 있다. 미국 사례를 적용하는 방식뿐만 아니라 한국적인 상황에서 다각적인 조사와 현실을 이해하려고 분석하려는 시도에서 국내 데이터를 시뮬레이션하고 시사점을 얻고자 하였다. 이를 위해 미국을 중심으로 고용기회균등개념과 이를 실행하기 위한 기구인 고용균등위원회의 기능과 활동에 관해 살펴보고. 국내의 고용기회균등을 위한 사례와 제도 등에 관해서 고찰하였다. 미국 연방고용균등위원회 사례에서는 특정 보호집단을 정의하고, 고용기회균등을 측정하는 방법을 상세하게 기술하였다. 본 연구는 시뮬레이션 분석결과를 통해 한국 기업의 맥락에서 측정방법을 적용해보고 의미를 현실적으로 논의하고자 하였다. 이러한 논의를 통해 정부 및 공공기관 채용과정에서 고용기회균등 원칙을 확대 적용하기 위한 방안을 실질적으로 모색하는데 기여를 하고자 하였다. 다만 본 연구에서 소개된 미국의 고용기회균등의 측정개념과 방법론들이 아직까지는 매우 개념적이고 이론적인 수준에서 제안된 것이며, 추후 다양한 해외 사례를 국내에 적용하는 경우 계량적 측정방법의 타당성을 검토하는 더 많은 연구들이 필요할 것이다. From the perspective of business management, this study starts with the recognition of a problem that compared to the international standard, the existing research and methodology of equal employment opportunity in the process of recruiting in Korea, is unsatisfactory in terms of its effectiveness. Additionally, Researches on equal employment opportunity in Korea merely focus on its justification based on advanced societies from the perspective of ideology and futhermore, there are few empirical studies in order to increase the productivity of employment and to implement the principle of equal employment opportunity. On the contrary, in foreign countries including the United States, there are plenty of researches not only on the theory of equal employment opportunity, but also on the methodology and its justification. Thus, this study aims to investigate the quantitative methodology of measuring the concept of equal employment opportunity in the process of recruitment in the United States, and its application in order to draw implications for Korean companies. In this regard, this paper examined the principle of equal employment opportunity in the United States and the functions & activities of the U.S. Equal Employment Opportunity Commission (EEOC) for its implementation. In particular, a specific protective group was defined based on the EEOC cases. Also Korean cases and systems for equal employment opportunity were also investigated. The method for measuring the status of equal employment opportunity was simulated using enough data and results were obtained. This analysis was conducted to make a practical contribution to the extensive application of measures to conform to the principle of equal employment opportunity. However, the concept and methodology of equal employment opportunity are suggested at the very conceptual and theoretical levels, therefore, further researches will need to examine the justification of the quantitative methodology in order to apply various foreign cases to the Korean situations. The results of this study can be summarized as follows. First, this study suggests that an equal employment opportunity index, which serves as the standard of equal employment opportunity, be set and introduced. Whether a specific group (for example, youth or women) in a company is equally employed and how equal the employment opportunity is should be measured through this index. Equal employment opportunity refers to the status of a proportion of the total employable population being applied in a particular group (Slevin, 1973). If the number of employees in a particular group is substantially below or above the employable population in consideration of the total population ratio, it is hard to say that the equal employment opportunity is implemented. In other words, it will be used as an index for the analysis of the actual employment status of employable population in companies and the average gap between the availability of population in a particular group and the actual employed population. Second, while the inequality index presents the gap between the employable population and the actual employed population regardless of job categories, an index that demonstrates the difference of actual employed population relative to the population in consideration of job categories is needed. In the United States, the difference of actual employed population is calculated relative to the total population composition ratio in each job category of a company (U.S Bureau of the Census, 2015). Third, unlike the previous two indices, a diversity index shows how many different groups the employees in each job category are from (U.S. Equal Employment Opportunity Commission, 2015). The diversity index is high if the employment is not concentrated in a particular category but evenly spread among categories. On the other hand, it is low if the employment is concentrated in a particular category (Blau & Schoenherr, 1971). That is, in case that the employment concentration level is high, the diversity index becomes low. Fourth, this paper suggests that the specific areas of discrimination in domestic companies (wage, promotion, pregnancy etc.) be divided based on the accumulated data on equal employment opportunity, and a systematic database for employment data including the types of discrimination be built. The measurement of the employment status in companies can be used as a useful management tool to clearly understand the pattern of workforce and to determine barriers against the equal employment opportunity in the relevant companies. Additionally, the measurement of equal employment opportunity may be developed into a useful tool to undertake a comprehensive review of the utilization of workforce by checking organizational units with the substantially concentrated employment. Fifth, a measure to establish and operate of a centralized independent organization can be considered for the eradiation of discriminatory employment in Korean companies. This independent organization, with the authority to implement and enforce employment non-discrimination laws, can facilitate the process of implementation of the principle of equal employment opportunity and more promptly check the compliance of discrimination-related laws and regulations. With the establishment and operation of this single responsible organization, the discrimination in the process of employment may be prevented, and specific discriminatory practices, which need to be settled by legal means, if necessary, may be identified more readily.

일본의 동일노동 동일임금의 실현을 위한 비정규직법 개정 논의와 시사점

김진영 한국비교노동법학회 2017 노동법논총 Vol.41 No.-

Since long ago, discussions have continued to correct the discrimination according to the form of employment, non-regular employment in South Korea and Japan. In addition, at the center of the discussions, there was the principle of “equal pay for equal (value) work” that if one does the same work (labor with the same value), one should get the same pay (equal treatment). The principle played an important role in systematizing the system for the prohibition of sexual discrimination in employment in South Korea and Japan, but it was not acknowledged as the ground for the regulation of discrimination according to the form of employment. However, the increase of non-regular employment causes various social problems such as low birth rate and aging phenomenon as well as the increase of the population of poverty or the increase of social security costs. Like this, South Korea and Japan sought a solution for a legislative policy to correct the gap in the treatment of non-regular employees with a similar historical background and have shown different aspects in the process of developing legislation. To compare legislation in the two countries, briefly, concerning labor conditions, Japan regulates the treatment of non-regular workers by equal treatment and balanced treatment (prohibition of unreasonable labor condition) as compared to regular workers and judges the irrationality of discrimination, considering the contents of job, the range of placement change and other circumstances. On the other hand, South Korea does not have a regulation on the equal treatment of regular and non-regular workers and just prohibits disadvantageous treatment without a reasonable cause, concerning the gap in labor conditions, etc. (balanced treatment) The reasonable cause is not specified in the law, concretely, but it depends on interpretation. Since in South Korea, discriminatory treatment is judged, according to whether there is “rationality” or not, the judgment of rationality is the core of this system, and preparing unified standards is an important challenge. In this sense, the contents of the guidelines for equal pay for equal work in Japan or the outline of the bill, which promote the clarification of the judgment of irrationality, can be referred in judging discrimination remedy. In the meantime, in South Korea, discussions continue, concerning the equal treatment of regular workers and non-regular workers. Concretely, it is left to an interpretation, whether the form of employment should be included in “social status” in the regulations on equal treatment (Article 6) of the Labor Standards Act, or whether the cases in which there are no “reasonable causes” in the fixed-term and part-time employee protection act can be subject to equal treatment. In addition, how to resolve the gap in the treatment between regular workers and non-regular workers, which depends on interpretation like this, comes to the fore as a task, legislatively, so it is judged that precedents in Japan can be referred for South Korea’s legislative policies.

특집 II | 주변부의 노동 : 여성 노동의 간접차별을 통한 동일가치노동 동일임금 원칙의 재해석 -2011년 콜텍 사건 등 제반 사례연구-

김현경 ( Hyun Kyung Kim ),원경주 ( Kyoung Ju Won ),이경아 ( Kyung A Lee ),한효명 ( Hyo Myung Han ) 서울대학교 공익인권법센터 2011 공익과 인권 Vol.9 No.-

여성노동자는 ``남녀고용평등과 일·가정 양립 지원에 관한 법률``(이하 ``고평법`` 이라 한다) 상의 동일가치노동 동일임금지급 원칙에 기해, 임금차별시정을 위한 구체적 청구권을 가지고 있으며 임금차액지급청구소송을 통해 이 권리를 실현할 수 있다. 그러나 이러한 임금차액지급청구소송을 통해 동일가치노동 동일임금원칙이 실제 구현된 사례는 1989년 동 원칙이 도입된 이후 2011년8월 현재에 이르기까지 건에 미치지 못하며, 그나마도 동일한 직무를 담당하는 작업장 내의 직접차별 사건에 한정되고 있다. 이 논문에서는 이러한 현실에 대한 문제의식을 바탕으로 동일가치노동에 관한 판례들을 비판적으로 분석함으로써 고평법상의 차별시정제도 활용을 위한 해결책을 모색해 보았다. 판례의 해석 경향을 살펴보면, 고평법에 규정된 성별을 이유로 한 직접차별/간접차별 금지조항 (제2조 제7조)과 동일가치노동 동일임금 원칙(제8조)은 형식적으로 분리되어 적용된다. 그러나 고용의 전 과정을 볼 때 실상 많은 경우 성차별은 모집·채용 차별에서 시작되어 배치, 승진, 해고 등으로 연쇄적 차 별효과를 발생시키며, 이렇게 누적된 차별은 임금차별과도 불가분적 관계를 갖게 된다. 따라서 동일가치노동 동일임금 원칙이 실질적으로 기능하기 위해서는 노동의 동일가치성을 판단하기 위한 기준들을 선정하고 고려하는 과정에서 간접차별 개념이 고려되어야 한다. 나아가, 성차별과 고용형태상 차별이 중첩되는 경우``기간제 및 단시간근로자 보호 등에 관한 법률``의 차별적 처우 금지 조항과 고평법의 차별금지 조항 등이 경합하지만, 여성노동 문제의 특 수성, 적용 범위 등을 고려할 때 그러한 중첩적 차별의 경우에도 고평법의 독자적 의미는 간과될 수 없으며, 오히려 고평법의 실효성을 제고하기 위한 입법적 개선이 요청된다. Female workers have the substantial right to claim for restoration of the state it was originally supposed to be, based on the principle of equal pay for work of equal value stipulated in "the Act on Equal Employment and Support for Work-Family Reconciliation" (hereinafter "the Act on Equal Employment"). This specific right can be realized via filing a lawsuit against an employer, demanding compensation for wage difference. In reality, however, despite the introduction of the principle to the Act in 1989, only less than 20 cases have embodied the principle until August 2011. Moreover, these cases dealt with only the direct discrimination in one workplace in which all employee carried out an identical job. Taking into account this problematic situation, this study sought for remedies through critical analysis on the relevant cases in order to utilize measures for the correction or prevention of discrimination addressed in "the Act on Equal Employment". According to the interpretation stated in the cases, Article 2 and 7 of "the Act on Equal Employment" which prohibit both direct and indirect discrimination on the basis of gender are applied perfunctorily and their implementation is separated from that of Article 8 which stipulates the principle of equal pay for work of equal value. When it comes to the whole process of recruitment, however, gender-based discrimination in many cases is found from the early stage of recruitment process and has chain-reaction effects on the subsequent stages of deployment, promotion, and discharge, creating accumulative discrimination which is indivisible with wage discrimination in the end. Therefore, in order to realize the principle of equal pay for work of equal value, the concept of indirect discrimination should be taken into account when determining criteria to evaluate whether the work at issue has equivalent value with others. Meanwhile in the case of discrimination based on both gender and type of employment, provisions prohibiting discriminative treatment in "the Act on the Protection, etc. of Fixed-Term and Part-Time Employees" are competing with those in "the Act on Equal Employment", Despite such competition, considering the particularity, scope and other related characteristics of female labor issue, distinguished implications contained in "the Act on Equal Employment" cannot be overlooked. Preferably, legislative measures are needed in order to enhance effectiveness of "the Act on Equal Employment"

적극적 우대조치의 합헌성에 대한 연구 - 여성을 위한 적극적 평등조치로서 여성채용목표제와 양성평등채용목표제에 관한 판단을 중심으로

차수봉(Cha Su Bong) 세계헌법학회 한국학회 2007 世界憲法硏究 Vol.13 No.2

  In modern countries, the equality means the "substantial equality" which pursue "economical quality" and "consequential equality". Attains like this substantial equality as one of the means for a thing which being presented "the affirmative action" is. This policy is based on a thinking which is needed a compensation for the social and economical weak in order to a achievement of the "substantial equality".<BR>  In the U.S., a theory which make amends to a minority human species and women for the past discrimination is gathered strength and it is a "preferential treatment". Like this preference appeared many forms of quota systems in various fields, and they are calld to "affirmative action". It have been used for a accomplishment of substantial equality as a powerful mathod in the U.S.. Affirmative action is performed by not the special ability or grades of a person, but the objective thing like human species or a sex. And it needs a sacrifice of the some guys, so there is an argument as a "Reverse discrimination".<BR>  Our Constitutional Court indicates three points as a feature of the affirmative action. First, it gives a benefit as a not a one man, but a member of group, second, it pursues the equality of result, not the equality of a point, third, it must a temporary managemant which is ended when attain its object. From in this, the third feature is also an essential condition of the affirmative action. Because the affirmative action during excessive period, it can make a reverse discrimination to contrary people, and it is an unconstitutional phenomenon as a viewpoint of equality.<BR>  The quota system is in link of the affirmative action, "a legal and political management for removing to the discrimination about women, and a preferential treatment until attaining a purpose rate". Specially the woman employment quota system is "a preferential employment system until attaining a legal purpose rate". The quota system is in link of the affirmative action, there is a problem about an equality like a part of affirmative action.<BR>  The 3rd clause 2nd item 2nd composition of The Germany Fundamental Law has a meaning which is giving a "duty" to a country. It means that a country must act for a substantial equality between men and women, and remove a existing discrimination. Consequently, the quota system has a constitutional basis about an equality.<BR>  In the American judicial precedent regarding as the affirmative action, specially about an employment or an evaluation of women is "Johnson judgement". In this case, The Supreme Court implied indirectly about constitutional condition of the affirmative action : 1) for a slowly increasing of a rate of minority human species and women, 2) not radical, and adaptability, 3) case by case.<BR>  It becomes many arguments over the woman employment quota system from our country constitution, like it refers from before, not only it becomes the help in substantial equal realization of the women but also a possibility becoming the reverse discrimination to the males. to substantial equal realization of the women becomes the help, but is because is the possibility of bringing the problem of reverse discrimination in the males. our country has carried out the woman employment quota system since 1996 in various fields including members of the National Assembly, local assembly men, public service personnel, and so on. Our country switchovered early the woman employment quota system to the employment system for gender equality, and has made a application of the system from 2003 to 2007.<BR>  The convert to the employment system for gender equality has made a significant contribution to calming their nerves, who understood that the system was reverse discriminational system. And it gets a foothold in a system balancing male and female taking part in. Like it refers from before, an essential condition of

헌법의 평등이념 구현 수단으로서 남녀고용평등법의 가치와 입법평가

최경호(Choi, Kyungho) 강원대학교 비교법학연구소 2021 江原法學 Vol.62 No.-

It is meaningful to check how the Equal Employment Act is understood and applied more than 30 years after the Equal Employment Act was enacted. In particular, Article 7, 8, 9, 10, and 11 of the same Act, which deals with equal opportunity guarantees and treatment of men and women in employment. Regarding Article 7(recruitment), 8(wages), 9(money other than wages), 10(education, placement and promotion), and 11(retirement age, retirement, and dismissal) of the same Act, the last revision was made on December 21, 2007. As for the Equal Employment Act, academic discussions have so far been theoretically reviewed or approached in a comparative manner around specific issues. And research based on specific data on the effectiveness of the Equal Employment Act has been insufficient. This legislative evaluation is conducted on whether equal opportunity guarantees in recruitment. It covers the issues on employment, wages, financial supply other than wages, education, placement and promotion, retirement, and dismissal It is important to evaluate not only the impact of legislation on the economy but also on society and the environment for the socially disadvantaged. It is not easy to assess quantitatively, but it is important to ensure transparency by the way of possible multiple checks and an objective data-based legislative assessment The research began with the collection and analysis of data on gender equality and discriminatory factors in male and female employment before the Enforcement of the Act on Gender Equality in 1987. And this research collected data on the status of male and female employment and the process of de-discrimination for about 23 years after the enforcement of the Act. In addition, due to the lack of prior research on specific recognition surveys on Articles 7, 8, 9, 10, and 11 of the Equal Employment Act, which deals with “equal opportunity guarantees and treatment of men and women in employment”, this research tried to collect the data.

남녀고용평등법상 동일가치노동 동일임금 원칙의 해석 및 개선방향

강선희 한국노동법학회 2022 노동법학 Vol.- No.83

The Equal Employment Opportunity and Work-Family Balance Assistance Act(hereinafter referred to as the ‘Employment Equality Act’) was legislated as the name of ‘Sexual Equality Employment Act’ in 1987 and came into force in 1988, and the law was enacted for the purpose of contributing to the improvement of the status of working women and promotion of their welfare by securing equal opportunity and treatment between men and women in any employment in conformity with the ideal of equality in the Constitution, protecting the maternity and developing their vocational ability. ‘The principle of equal pay for the work of equal value’(Equal Employment Act §8 ① “The employer shall provide equal pay for equal-value work within the identical business.”), which was not included in the original Act, was specified at the time of the amendment in 1989. Since then, the main skeleton of the law clause has remained until now without any changes, and then the provision has been in place for 33 years. This paper critically examines the criteria for judging the principle of equal pay for equal-value work, which has thus been established and accumulated through the implementation of the law for 30 years or so, and explores one direction of interpretation. Prior to this, this paper reviews the background of the creation of the principle of equal pay for equal-value work, international standards and legislative practices of individual countries (USA, Canada, UK, Germany), the legislative formulation of the principle of equal pay for equal-value work under national law, and the relationship between the principle of equality and Article 8 of the Equal Employment Act.

평등과 노동권에 근거한 (영미)고용차별법의 가치론적 이해

심재진(沈載珍) 서울대학교 노동법연구회 2009 노동법연구 Vol.0 No.26

This article explores the relationship between anti-discrimination rights in employment and equality, on the one hand, and the right to work, on the other hand, in an attempt to achieve a full understanding of this relationship, in terms of two different dimensions: the analytic, the moral. Firstly, the article aims to examine analytically the relationship between anti-discrimination rights in employment and the two values. Secondly, the article considers whether such a relationship is morally desirable. In the explanation of anti-discrimination rights in employment with reference to equality, this article argues that it is undeniable that the current prohibition of both direct and indirect discrimination are based on equality. When it comes to specific protections for women and for people with disabilities, this article argues, equality does not explain why they are designed to protect only such groups. In the justification of anti-discrimination rights in employment, the current anti-discrimination rights based on equality produce morally undesirable results. Because of the possibility that equally bad treatment may take place under equality-based anti-discrimination rights, the prohibition of direct discrimination may not necessarily lead to improving the quality of the working life of people. Moreover, the current prohibition of direct discrimination on several grounds rules out protection for people who suffer arbitrary discrimination on other grounds. As to the current prohibition of indirect discrimination, this article shows that it may, under certain circumstances, deter the adoption of positive measures with disparate impacts in favour of disadvantaged groups. What is more, the prohibition of indirect discrimination excludes equally disadvantaged members of advantaged groups from its protection. In the possible explanation of anti-discrimination rights in employment with reference to the right to work, the article argues, the right to work would transform the prohibition of direct discrimination, thus overcoming the shortcomings of the current anti-discrimination rights based on equality. The prohibited grounds of discrimination would be extended inexhaustively under the right to work approach. In addition, equally bad treatment is recognised as morally bad in the logic of the right to work approach. In relation to the prohibition of indirect discrimination, the article argues, the direct protection of workers from the disadvantages caused by workplace rules would be consistent with the right to work approach. The direct regulation of workplace rules would solve the justifiability issues of the prohibition of indirect discrimination by protecting all workers from the adverseness of workplace rules, regardless of whether they belong to a particular group. Overall this article firstly concludes that the right to work approach to anti-discrimination in employment, as an alternative to the equality approach, would explain anti-discrimination rights in employment more clearly and consistently. Secondly, it shows that, with reservations in relation to some parts of the prohibition of indirect discrimination, the right to work approach would transform the prohibition of direct and indirect discrimination in a more justifiable way than the equality approach, as the former would solve the justifiability issues caused by the latter.

사용자 지시권의 내재적 한계와 제한의 결정원리

방준식(Bang Joon-Sik) 한국노동법학회 2007 노동법학 Vol.0 No.24

In employment relations, the employer's directions should be based on employment contracts. Even though employment contracts are valid between the employee and the employer, the directions have a legal limit. Employer's directions should be regulated by general legal principles, such as fairness and good faith. Thus, I intend to explore the legal base, internal restrictions and legal principles in relation to the employer's directions in this dissertation. Employer's directions cannot be directly inferred from employment relations nor from social positions, but rather are based on employment contract as contract rights. As the employee and the employer make the contract, the employer could have the authority to direct the employee's work and the employee should have the obligation to follow the directions. Consequently, the employer's directions can unilaterally determine the contractual contents of an employee's duty to work at one's own discretion as a part of the responsibilities of the employee. Because it is a discretionary power against the employee in employment relations, the employers' directions need essentially to be limited on justice. Above all, the employer's directions could be limited to equality in power to specify the terms of the employment contract, the employees' self-determination and equal treatments in employment conditions. Furthermore, it should be under the control of constitutional rights, legislations, collective agreement, workplace rules, employment contracts and industrial practices. One needs to consider three stages when looking at the limit of the employer's directions. First, it explores the mind of both parties by the interpretation of the employment contract. If the implicit and explicit agreements can be certified, the employer's directions should be excluded in employment relations. Second, it compares the employer's interest with the employee's interest on the contents of employer's directions. If employer's directions have the potential to violate the objective and common interest of the employee, the directions should be legally denied. Third, the principle of fairness and good faith can be applied in exercising the directions. It needs to compare the management necessities of the company from the position of the employer with the employee's disadvantages in the workplace and also the personal losses of their family life as specific as possible.

정규직 전환시 비정규직 근무기간 불인정의 정당성

심재진(Shim, Jae Jin) 서강대학교 법학연구소 2017 법과기업연구 Vol.7 No.2

이 글은 비정규직 근로자의 정규직 전환과정에서 발생한 분쟁사례를 검토한다. 이 사례에서는 정규직 전환된 근로자의 초임호봉을 정하는데 있어서 비정규직 근무기간을 경력으로 인정하는 회사규정을 적용하지 않고 비정규직으로 일했을 때의 급여에 맞추어 호봉을 산정한 것에 대해 다툼이 있다. 이 사례에서의 법적 쟁점은 이러한 호봉산정이 근로기준법상 균등처우조항에 위반되는지와 취업규칙의 불이익 변경 조항에 위반되는지 이다. 대상사건은 기간제법 등의 법적 효과에 의해서가 아닌 비정규직의 정규직 전환은 근로조건에 관한 노동법적 규율체계에 대단히 난감한 상황을 창출함을 보여주고 있다. 이 글은 이 문제에 대한 법원의 판단이 ‘배제’와 ‘회피’로 귀결된다고 주장한다. 대법원과 원심법원 모두 공통적으로 일반직의 호봉산정에 있어서 비정규직 근무기간을 인정하다는 취업규칙 조항의 적용대상에서 원고들과 같은 근로자집단을 배제한다. 그 결과로 법원의 판단에 따르면 원고들과 같은 근로자집단은 자신들의 호봉산정의 방식을 기존과 다르게 변경할 때 마치 존재하지 않은 것처럼 취급을 받게 된다고 이 글은 지적한다. 다음으로 법원은 고용형태가 근로기준법 균등처우조항의 차별금지사유인 ‘사회적 신분’에 해당하는 지에 대해 노골적으로 판단을 회피한다. 또한 법원이 제시한 비교대상자 선정법리는 불충분할 뿐만 아니라 유사한 다른 차별금지법을 전혀 고려하지 않아 부적절하다고 주장한다. 이 글은 입법론과는 별개로 해석론상 고용형태가 사회적 신분의 의미에 포함되어야 한다고 제시한다. This article looks at a case in which it is disputed whether unfavourable treatment against a worker whose employment status is changed from fixed-term worker to a worker with indefinite term is legitimate. This article aims at the extent current labour law protects such a worker from unfavourable treatment in comparison with a worker with indefinite term. A study of this sort matters particularly when the newly elected government recently announced a plan to covert non-standard workers to standard worker in public sector. The first legal mater disputed in the case is whether changes of relevant work rules according to which wages of converted workers has to be determined in consideration of their longevity of non-standard employment are legitimate. According to employment law, changes of work rules are not valid if they are unfavourable against relevant workers and are agreed on collectively by such workers. By deciding that such rules do not apply to the converted workers in the case, the court excludes employment protection as if the workers did not exist. The second legal matter dealt with in the case is whether the denial of the changed work rule in is in breach of the equal treatment clause of the Labor Standard Act. The equal treatment clause provides that an employer must not discriminate against their workers on the grounds of sex, nationality, religion and social status. The fact that wages of the workers converted to standard employment were significantly lower as the employer did not consider the period during which they had been employed as non-standard workers was certainly an unfavourable treatment. However it was not uncertain that the ground of ‘social status’ includes employment type such as that of the workers in the case. Suprisingly the Supreme Court avoided the matter. Instead they decided that the employer’s treatment was not in breach of the equal treatment clause on the grounds that other standard workers were not comparators of the converted workers due to their difference of the process they acquired their standard employment status. The explanation of the Court on comparators were inadequate given that comparators were determined only by similarity of work regardless of the differences of the employment process under the Fixed-term Workers Protection Act.

영국 동일임금법에 관한 연구 -판례의 태도를 중심으로-

김희성 한국경영법률학회 2009 經營法律 Vol.19 No.2

Section 1(1) EPA 1970 implies an equality clause into all contracts of employment which do not already contain one. An equality clause, according to section 1(2) EPA 1970, is a provision relating to the terms, not just pay, of a contract under which a woman is employed. The clause has effect where a woman is: (1) employed on like work with a man in the same employment; (2) employed on work rated as equivalent with that of a man in the same employment; (3) employed on work which, not being work in (1) or (2), is, in terms of the demands made upon her, of equal value to that of a man in the same employment. The comparator needs to be selected by the complaint and be in the same employment as the claimant. This does not mean that the claimant can just choose an artificial or arbitrary group, in principle the comparison should be between the advantaged and the disadvantaged group. Section 1(3) EPA 1970 provides a 'material factor' or 'material difference' defence to an equal pay claim. This defence will an employer if they are able to show that the difference in pay is genuinely due to a material factor which is not the difference of sex. In cases involving like work or work rated as equivalent, the factor 'must' be a material difference between the woman's case and the amn's. However, in equal value claims the material factor 'may' be such a material difference.