노동위원회 신뢰제고와 활성화를 위한 제언

노병호(Roh Byoung ho) 충북대학교 법학연구소 2016 法學硏究 Vol.27 No.2

Since the establishment of the Labor Relations Commission, its function has been expanded due to the increase in labor disputes caused by the complicated relations between labor and capital and labor market. Thus, expectations for the Labor Relations Commission as a dispute resolution organization for quick and fair resolution of labor disputes are growing and there are more and more requirements but both labor and management do not recognize the Labor Relations Commission as an trustworthy or fair organization with expertise in resolving labor disputes in terms of conciliation and adjudication at a satisfactory level. The reliability problem for the Labor Relations Commission results in the institutional problem and problem of expertise of chairperson, members of standing committee, Commissioner and commissioners and investigators who are members of the Labor Relations Commission and the fixedness of conciliation and adjudication. Under the current system where the Labor Relations Commission is an administrative committee belonging to the Ministry of Employment and Labor and thus, the Ministry of Employment and Labor has personnel matters and budgeting rights, the Labor Relations Commission is considered not to be free from the administration, causing distrust. To solve this problem, the Labor Relations Commission should be a commission directly responsible to the President or if maintaining the current system, independence of the Labor Relations Commission should be ensured in the personnel matters and budgeting. A person with more than 5 years of experience in the relations between labor and capital should be appointed as the chairperson of the local Labor Relations Commission and those with law career or majors of labor law should be appointed as members of member of a standing committee to enhance professionalism and the number should be increased significantly and ambiguity of each role should be resolved. Also, qualifications should be strengthened to ensure professionalism in appointment of Labor Relations Commission members and Expertise in Labor Relations Act and experience in the workplace should be emphasized for adjudication members and conciliation members, respectively and the fairness of appointment procedures should be ensured. An investigator rotationally works in the Ministry of Employment and Labor and Labor Relations Commission according to the rotation transfer of civil servants and Ministry of Employment and Labor job rotation should be abolished or limited to ensure the continuity of responsible job in order to enhance the expertise of investigators. In addition, neutrality should be ensured in the selection of members in the event processing process and configuration of the adjudication commission and conciliation commission and fairness should be sought in adjudication procedures and conciliation procedures. Furthermore, it is important to deal with labor disputes quickly in the Labor Relations Commission and to do this, a smooth resolution by reconciliation is desirable in terms of the nature of the relations between labor and capital. Reconciliation recommendation meeting and reconciliation system before adjudication test-operated in Chungbuk Labor Relations Commission satisfy this condition. We think that this needs to be institutionalized. To activate the Labor Relations Commission, it is necessary to expand its function in order to respond to the demands of resolving labor disputes quickly and fairly. One of measures meeting these requirements is to allow the Labor Relations Commission to handle overdue wage remedy cases.

자치단체 예술단원의 법적 지위

노병호(Roh, Byoung-Ho),안성부(Ahn,Sung-Bu) 동아대학교 법학연구소 2013 東亞法學 Vol.- No.61

2010년 10월, 중앙노동위원회 이하 “중노위”라 한다 가 대구광역시립예술단에서 해촉된 단원들이 신청한 부당해고 구제신청 사건에 대해 부당해고에 해당한다는 결정을 하였다. 중노위의 결정은 노동약자인 근로자 보호에 부합한다는 의견과 공립예술단의 현실을 고려하지 않은 결정이라는 의견의 찬반양론으로 대립하여 큰 파장이 일었다. 당시 중노위의 부당해고결정은 2007년 7월 「기간제 및 단시간근로자보호 등에 관한 법률」(이하 ‘기간제법’이라 한다) 시행이후 지방자치단체 예술단원에 대해 기간제법을 적용하여 부당해고를 인정한 첫 번째 사례다. 이후 자치단체 예술단 관련 규정이 기간제법에 부합되게 개정되고 소속 예술단원들에 대한 신분상의 안정을 가져올 것이라는 기대를 갖게 했다. 그러나 이후에도 대부분의 자치단체는 관련조례 및 규정의 개정을 꺼렸다. 이는 예술단원을 계약직 공무원과 유사한 신분으로 보고 예술단원에 대해서는 기간제법이 적용되지 않고 해당 조례 등이 우선하여 적용된다고 이해하고 있기 때문으로 보인다. 이러한 이유 때문에 대부분의 자치단체 예술단원은 여전히 기간제법의 보호를 받지 못하고 기간제법에 위반되는 조례 등의 적용을 받고 있는 실정이다. 이러한 문제점에 대한 인식을 가지고 본고에서는, 첫째, 대구광역시 시립예술단 부당해고 구제신청사건에 대하여 당사자들간의 주장과 노동위원회의 판결요지에 대해 중점을 두고 주요 쟁점에 대한 검토를 하였다. 둘째, 자치단체에 의해 설립되고 운영되고 있는 예술단원들의 법적지위가 무엇인지, 즉, 일종의 계약직공무원인지 여부, 유기 및 무기계약직 근로자 여부 및 기간제법 적용 예외에 해당하는지 여부 등에 대해 분석하였다. 마지막으로, 부산광역시를 포함한 10개 광역자치단체 예술단 관련 조례, 규칙, 규정의 비교분석을 통해 기간제법 적용에 따른 문제점을 검토하고 그에 따른 해결책으로 입법론을 제시하였다. In October 2010, the National Labor Relations Commission(NLRC) decided the case of Daegu metropolitan art troupe members to be a unfair dismissal, the case was that some staffs of Daegu metropolitan art troupe had been fired. Since the decision was made, reactions were highly anticipated from people who agreed with and disagreed with NLRC’s decision, saying that the decision was made to protect the ‘workers right’and on the other hand, they were saying that they had insufficient understanding of the reality that public art troupe was facing to. The unfair dismissal decision of NLRC at the time was the first case that “fixed-term and part-time workers Protection Act” (the fixed-term workers Protection Act) was applied to the artists working for the local government as a member of art troupe since the fixed-term workers Protection Act was enforced in July 2007. After that time, it has been expected that the regulations of local governments would be revised in accordance with the provisions in the fixed-term workers Protection Act and the legal status of the art section memvers become disambiguated. However, most of the local governments were reluctant to amend the provisions of the Ordinance because they regarded the art section memvers as a kind of contingent public employees, therefore, they thought their regulations should be applied in preference to the fixed-term workers Protection Act. For this reason, most of art section workers of the local governments still do not receive the protection of the law and are subject to the regulations that are in violation of the law. With awareness of these problems, in this study, First, I analyzed each on several key issues of the filing case for unfair dismissal remedy of the art troupe of Daegu metropolitan city focusing on the claims between the parties and the decision points of the labor relations committee. Second, I lokked through what is the legal status of the members of local governments’art sections established and operated by the ordinances of local governments, that is, Whether they are a kind of contingent public employees, the fixed-term wokers, the workers without fixed-term employment contract, or the exception of the application of fixed-term workers Protection Act. Finally, Through a comparative analysis on ordinances, rules, and regulations which are related to the art sections of 10 local governments including Busan metropolitan city, I drew some points in question from the regulations and accordingly presented some suggestions for revisal legislation of the regulations.

쟁의행위금지가처분의 특수성과 법적 판단

노병호(ROH, Byoung Ho),김태현(KIM, Tae Hyun) 강원대학교 비교법학연구소 2016 江原法學 Vol.47 No.-

노동관계, 특히 쟁의 당시의 노사관계는 급박한 경우가 많으므로 노동쟁의에 대한 제한을 가함에 있어서는 시의성과 적시성을 고려해야 한다. 특히 표현행위에 관하여는 더욱 신중해야 한다. 합리적인 제약이 따르지 않는 쟁의행위금지가처분이 있을 때 근로자는 회복하기 곤란한 손해를 입을 가능성이 높으므로 쟁의행위금지가처분의 남용은 언제나 경계되어야 한다. 따라서 법원이 쟁의행위금지가처분을 판단함에 있어서는 그 요건 판단에 있어 노동가처분 소송의 특수성을 고려한 엄격하고 충분한 심리를 다할 것이 특별히 요구되고, 제한이 필요한 범위 내에서만 가처분명령이 발령되는 것이 바람직하다. 근본적으로는 노동가처분의 특성이 반영되는 별도 입법이 필요하다. 노동조합법상에 노동가처분에 관한 심리기준, 심리진행 방향, 기일진행방법, 판단기간, 판단기준, 가처분신청 남용 시 제재방안 등을 규정한 노동가처분 특례조항을 신설함으로써 법원의 타당한 판단을 일률적으로 이끌어내려는 시도가 필요하다. 또한 쟁의행위의 정당성 판단은 신속한 결정이 요구되어 절차의 특성상 신속한 심리로 종결이 되는 가처분절차를 통해서는 제대로 판단하기가 어려운 경우가 많은데 근로자들의 쟁의행위를 광범위하게 금지하게 되는 경우 그 파급효과는 심대하다고 할 수 있어 사용자 측의 가처분신청 남발로 인한 악용의 소지도 있는 것이 사실이다. 그러므로 사용자의 포괄적인 쟁의행위금지가처분신청에 대하여는 가급적 법원이 심리를 통하여 구체적인 행위를 금지하는 가처분으로 신청취지를 변경하도록 유도하거나 민사집행법 제305조 제1항에 따라 직권으로 금지가 필요한 한도 내에서 가처분명령을 발하는 것이 바람직하다. 쟁의행위금지가처분에 부가되는 간접강제 결정에 관하여는 논란이 있으나, 노동가처분의 실효성 확보방안의 최소한으로서 간접강제 제도는 유지할 필요성이 있다. 다만 간접강제 배상금 액수 산정에 관하여 노동삼권이 실질적으로 보장될 수 있도록 법원에 적절한 정도의 가이드라인을 설정해주는 것이 필요하다. 쟁의행위금지가처분 결정 시 가처분으로써 금지하는 행위들이 그 자체로 법적 책임이 따를 수 있는 것이어서 일단 채무자에게 금지가처분을 명함으로써 채권자 신청의 목적이 달성될 것으로 보이고, 만약 채무자가 위 가처분을 위반할 경우 채권자는 별도의 신청으로 다시 간접강제를 구할 수 있는 경우라면, 간접강제 신청을 굳이 인용할 필요는 없을 것이다. For the reason that labor-management relations, especially during labor disputes, are exposed to urgency, any cause for constraint on labor disputes should be approached with a consideration on timeliness. This manner applies more if the case regards constraints on acts of expression during a labor dispute. Injunction for the prohibition of labor dispute can lead to irrecoverable damages on the part of the employees if they are not reasonably contained, therefore the abuse of the injunction for the prohibition of labor dispute should always be vigilantly guarded. Thus, the court, on the matter of granting the injunction for the prohibition of labor dispute, is required to examine the case strictly and sufficiently with consideration on the distinct characteristics of labor injunction petitions when deliberating the legal requirements and should grant such an injunction only under the necessary circumstances. From a fundamental perspective, a separate legislation should be passed to accommodate the distinct characteristics of such labor injunction petitions. It is necessary to attempt to prompt a uniform series of just decisions from the court by incorporating special labor inunction articles regarding examination standards, hearing processes, length of deliberation, standard of deliberation, restrictions on abuse of petition for injunction, etc. In that the legitimacy examination of a labor dispute requires a speedy decision, oftentimes these decisions are hurried and not thoroughly examined during the labor injunction process. However, if these injunctions are granted extensively without restraint, the aftereffects can be damaging and opened to abuse of petitions for injunction by the management. Therefore, even if the management petitions for a comprehensive injunction for the prohibition of labor dispute, the court should curtail such attempts by leading the complainant to change the scope of the injunction to a more specific act of labor dispute or grant injunctions on a necessity basis by exercising the court’s authority according to Article 305(1) of the Civil Execution Act of Korea. While there is still controversy over the use of indirect enforcement added over the injunction for the prohibition of labor dispute, we agree that indirect enforcement is still necessary as a means to secure the effectiveness of the labor injunction in question. Nonetheless, we should be able to provide a guideline that the court can utilize when ordering the amount of compensation in relation to the indirect enforcement so as to ensure that no labor rights protected by the Constitution are jeopardized. If the injunction for the prohibition of a labor dispute accomplishes the relief sought by the petitioner (management) in an by itself and the petitioner can seek a separate indirect enforcement if the injunction is violated, then the court should refrain from granting the petition for indirect enforcement from the start.

노동위원회에 의한 부당해고 등 구제에 관한 고찰

노병호(Roh, byoung-ho) 한국비교노동법학회 2015 노동법논총 Vol.34 No.-

현행 실업급여 제도에 대한 재검토

노병호(Roh, Byoung-Ho),엄주천(Eom, Ju-Cheon) 원광대학교 법학연구소 2012 圓光法學 Vol.28 No.1

The unemployment benefit system proved effective in South Korea during the 1997 financial crisis and the global financial crisis, triggered by the bankruptcy of Lehman Brothers in 2008, as it proved income support for people who lost their job. The unemployment benefit system has been refined to serve an important role in preventing unemployment and accelerating reemployment, in addition to the core objective of providing income for unemployed people. Despite the effective role of the unemployment benefit system, it is necessary to assess the system as a key element of social safety net as originally intended and its effects on reemployment of people receiving unemployment benefit. The system still has downside as a social safety net given that approximately 5 million laborers are uninsured for the benefit and that people who are voluntarily unemployed due to irresistible reasons such as illness are not entitled to the benefit. In addition, people who are not eligible for the benefit include those who failed to find a new job after receiving the benefit, young people seeking a job, those aged 65 or older who want a job, those who have an irregular employment status, those who want to return to the job market after resigning from the previous job voluntarily and those who run a self-employed business. Thus the exclusion of many groups makes it hard to see the unemployment benefit system as an instrument of social protection. The level of unemployment benefit also stir debates. It is therefore needed to investigate the benefit level and effects of the system on reemployment of the unemployed. The job market was hit hard by the financial crisis in 1997 and 2008. The economic crisis that began to loom in the European region in 2011 also pose a potential threat to job security. Although the job market is highly vulnerable to economic slowdown, the unemployment benefit is the only social security available for Korean people. To expand the system as a complete social safety net, the introduction of unemployment allowance seems necessary. This study suggests the direction of the unemployment benefit system that can fulfill the all objectives; stabilize living situation of the unemployed, redistribute wealth and promote reemployment.

시용근로관계에 대한 연구

노병호(Roh Byoung-Ho) 강원대학교 비교법학연구소 2011 江原法學 Vol.33 No.-

As economic size expands and competition between companies becomes severe, companies want to employ regular workers after identifying quality of labor enough rather than to employ them from the beginning as a regular worker. Especially, our country has a very stiff employment structure. Therefore, once labor relation is formed, dismissal is difficult. Under this structure, Employer is careful in employing workers. As a solution to cope with such a situation, trial employment system is widely used. It could be natural for employer to thoroughly identify eligibility for job, personality, capacity of worker etc. when he recruits. But it is impossible to identify eligibility for job, personality, capacity of worker etc. by a few interviewers within limited time in entrance examination, interview etc. So employer deploys workers on- the- job site during a certain period to identify factors required for employment. But for workers, they can not be employed as regular workers during the employment season when employment time is concentrated. As a result, they, as an trial worker, stay in a unstable position, in some cases, if they have not been employed as a regular worker after the period of trial employment, they have to take risk to lose employment opportunity for other company. Thus there are conflicts of interests of employer and worker in the trial employment system. Therefore, it is necessary to reasonably control mutual understanding. But though our labor law system does not have regulation ruling such a period of trial employment, trial employment system is used in the actual practice. There are some studies and precedents for trial employment system but there is confusion caused by conceptual confusion and mixed use with the period of trial employment in practical affairs and precedents. Reasonable regulating measures are necessary to solve such a dispute as a transitional employment form together with employment nomination or period of trial employment etc. This study tried to investigate overall trial employment system after exploring legal character together with arrangement of concept of trial employment system.

국가기술자격법 변천에 따른 시사점

노병호(Roh, Byoung-ho),최수홍(Choi, Su-hong) 한국비교노동법학회 2014 노동법논총 Vol.31 No.-

Since 1960, formulated a national economic development plan, South Korea has made substantial progress in industrialization, and for this reason, it was necessary to ensure early skilled technicians. With reference to the national qualification system technology Germany, and Japan, the government at the time, introduced a national technical qualification system to another ministry. As a result, it became the basis for the economic growth of Japan’s current so as to supply in a timely manner trained technician needed for industrialization. Established the “National technical qualification Law” in 1973, it is integrated into the system of a single national technical qualification is run each ministries another, by improving continuously thereafter, the government, the national technical qualification system of today positioned. In parallel with the establishment of “national technical qualification process”, looking at the national technology qualification system, it can be big, it is divided into consignment expander role and worth additional private qualification introductory period, integrated operation machine, and national certification. As a system Koreans 4 million people a year are staring, and improve proficiency and skill development of workers, national technical qualifications, plays a role as an important infrastructure of human resources of the country. In the future, as can be performed continuously these roles, it must be operated systematically, “National Technical qualification process”.

체불임금 구제방안에 대한 재검토

노병호(Roh, Byoung-Ho),신현구(Shin, Hyun-Gu) 동아대학교 법학연구소 2011 東亞法學 Vol.- No.53

우리나라의 대부분의 노동자는 노동력을 제공한 대가인 월급, 즉 근로기준법에서 말하는 임금으로 생활한다. 이와 같이 임금은 근로자가 생존을 확보하기 위한 유일한 수단이다. 따라서 임금문제는 노동운동에 있어서도 가장 큰 관심사일 뿐만 아니라, 근로자의 최저한의 근로조건을 규율하는 근로기준법에 있어서도 필수적인 보호대상이 된다. 그러나 근로자의 생존기반인 임금을 보호하기 위한 장치들을 두고 있지만, 매년 체불임금에 대한 신고건수는 증가하고 있으며, 명절이나 연말연시가 되면 정부는 체불임금 문제에 대해서 강력한 대처와 체불임금문제의 조속한 해결을 위한 근로자의 지원책을 발표하고 있으나, 경제사정의 악화 또는 악덕 사업주에 의한 임금체불은 줄지 않고 있는 것이 현실이다. 근로자 또한 체불임금 해결을 위한 법적제도에 대한 무지와 경제적 어려움으로 인하여 보호를 받지 못하는 것도 엄연히 존재하는 사실이다. 따라서 본 논문은 체불임금에 대한 현재의 구제제도 및 노동관서에 접수된 체불임금의 처리 현황을 살펴보고, 체불임금제도의 처리제도의 문제점과 개선방안 및 현행의 노동위원회 제도를 통해서 체불임금의 신속하고 효율적인 처리방안 및 기타 제도를 통한 구제방안에 대해서 살펴보고자 한다. 이를 위해 우선 체불임금의 현황 및 현행의 구제제도에 대해서 살펴보고, 이러한 구제제도의 문제점과 개선방안에 대해서 차례로 검토해 봄으로써 합리적인 체불임금의 해결방안을 모색하였다. Almost workers in Korea live on their salary for their labor, in other words, wage according to the Labor Standards Act. Wage is worker’s only way to secure its survival. Therefore, wage is the vital target of the Labor Standards Act which regulates minimum working conditions as well as the biggest matter of concern in labor movements. Even if there are strategies to protect wage, base of worker’s survival, report of overdue wage is increasing every year, and the government announces aid programs to deal with wage unpaid strongly and to solve it as soon as possible every holidays, but overdue wage due to deterioration of economy and vicious enterprisers does not decrease. Furthermore, workers oneself are not protected owing to ignorance of legal measures and economic pain. Accordingly, the study aims to investigate the current relif policies for overdue wage and the status of handling wage unpaid reported at labor authorities and to examine swift and effective remedies and help program through other policies. To achieve this, the status of wage unpaid and the current relief policies are searched, then problems and reformation of the relief policies are looked into in order to seek reasonable solution of overdue wage.

경영상 이유에 의한 해고에 대한 소고

노병호(Roh Byoung Ho) 한국비교노동법학회 2009 노동법논총 Vol.16 No.-

Dismissal for management reasons means dismissal of a worker by an employer for managerial reasons shall be based on urgent managerial needs. Dismissal for managerial reasons are different from general dismissal for workers responsibility or disciplinary dismissal. As the dismissal based on urgent managerial needs Which is inevitable or employer responsibility occurred on a massive scale in a dull season that menace to employment security and will have a big impact on our society. So that should be regulated more strictly than other dismissal. Labor standards act §24 regulate on necessary conditions of dismissal for managerial reasons. The contents are as follows. ① Dismissal of a worker by an employer for managerial reasons shall be based on urgent managerial needs. ② An employer shall make every effort to avoid dismissal of workers. ③ An employer shall select workers to be dismissed by establishing rational and fair criteria for dismissal. ④ With regard to the possible methods for avoiding dismissal and the criteria for dismissal, an employer shall give a notice to a trade union or to a person representing the majority of all workers and have a good faith consultation. If the necessary conditions could not be possessed, the dismissal, as have no justifiable reasons, will crease to be valid. However, if one of this necessary conditions could not be possessed. As a dismissal for managerial reasons, it is become an issue that this case dismissal could not come into effect. Although we consider an institutional purpose of dismissal for managerial reasons and this dismissal is not occurred by workers responsibility and our social supporting system for dismissal workers is frail, necessary conditions of dismissal for managerial reasons are filled reasonably.

중국의 노동계약법에 대한 고찰

노병호(Roh, Byoung-ho) 충북대학교 법학연구소 2012 法學硏究 Vol.23 No.1

The Labor Contract Law was legislated to supplement the limitation that the existing labor law has and solve the social imbalance and inequality caused by the enforcement of whole contract of employment and accomplish the society in harmony after reform & open policy in China. The Labor Contract Law uses the name called Contract law, but it does not belong to the civil law and has the position as the special law against the labor law that regulates even the group labor relations as well as individual labor relations in the system of labor relations law. The Labor Contract Law is the law that clarifies the rights and duties between the parties of labor relations by protecting the laborers and aims 3 objectives such as protecting the rights & interests of laborers, establishment of stable labor-management relations and regulation of new type of employment for the intent of protecting the legal rights of laborers as the method that respects the spontaneous intention of the parties and secures the equity between labor-management. The main contents of the Labor Contract Law are as follows. ① There are many regulations for stable employment relations. In order to solve job insecurity generated from short-term employment that appears as the result of enforcement of whole contract of employment, it is willing to stabilize the employment by restriction of the number of employment contract, conversion into the contract of employment whose time limit is not specified when renewing the contract of the person in 10 years of continuous service, obligation of concluding the employment contract whose time limit is not specified when renewing the contact after the employment contract that has 2 times of continuous time limit, consolidation of concluding employment contract in writing and restriction of the shortest period of work, dispatch & labor, etc. ② One of the biggest characteristic of the Labor Contract Law is the extension of applying the economic compensation. The Labor Contract Law set the payment of the economic compensation as mandatory even in case the employment is terminated at the time of expiration of employment contract, not like the labor law. It is adopted to suppress the practice of short-term employment by the employers, but it can be also regarded as a kind of new establishment of retirement allowance system. ③ The Labor Contract Law extended the protection range of the laborers comparing with the labor law. The Labor Contract Law sets the laborers as the objects of legal protection who could not receive the legal protection because they did not conclude the contract of employment even while they were under the actual labor relations. ④ Comparing with that the regulations of employment rules of labor law were only the declaration due to lack of concreteness & clarity, the Labor Contract Law regulated the reflection of opinions of laborers and legislated the employment rules by concretizing the related regulations more regarding establishment, entry items & procedure. ⑤ The Labor Contract Law forces the parties to conclude the contract of employment in writing in the Article No. 10. It prescribes that the case the contract of employment is concluded in writing yet as well though the employment relations is concluded before this law is enforced should be concluded in writing within 1 month before the enforcement date. In case it is not concluded in writing after concluding the employment relations are concluded, it also prescribes that the employers should pay 2 times of wage each month when the contract is not concluded after the employment relations are established and in case the written contract is not concluded when even 1 year passes after the employment relations are established, it shall be regarded as that the employment contract whose time limit is not specified. ⑥ The Labor Contract Law recommends to conclude the type of group contract as the basic employment condition, not individual co