비정규직 차별시정에서의 신청인 적격성과 비교대상 근로자 = Complaining Party and Comparator in Employment Discrimination Based on Irregular Work

다국어 초록 (Multilingual Abstract)

The Korean law about the protection of irregular workers, such as fixed-term employees and part-timers, prohibits discrimination against them by their employers in relation to remuneration and other terms and conditions of employment. According to the law, employers may not pay unequal wages to irregular employees who perform as same or similar works as regular employees do. Irregular employees who believe they receive a lower wage than paid to regular employees doing similar works in the same business or establishment may file a charge of discrimination with the Labor Relations Commission.
This paper aims to review the cases ruled on by National Labor Relations Commission(NLRC) regarding complaining party and his or her comparator. A charge may be dismissed if there are evidences that the complainant is not a irregular employee or he or she has not been doing the same or similar works as his or her comparator at the time of the alleged discrimination.
Until recently, the NLRC has decided that where a fixed-term contract of employment is renewed repeatedly for a long period of time, its contractor is actually a regular employee despite the fixed-term expressed in the contract. But this position is not right because the NLRC wrongly applies the legal theory for protection of fixed-term contractors against unreasonable discharge in order to turn down applications for correcting unlawful discrimination. the NLRC properly changed its previous opinion in a ruling issued in May, 2009.
The important comparison in determining whether the similar work requirement is met is the comparison of the jobs, not the people performing the jobs. The critical question at this point is whether essential functions of the jobs are equal. A difference between the comparators could qualify as a defense to a compensation disparity. According to the rule formed by NLRC, the comparators should do their similar works at the same time. Thus, an unlawful discrimination can't be established if a regular employee is replaced with a lower paid irregular employee. This rule needs to be reconsidered for moving toward admitting a predecessor as a appropriate comparator.

목차 (Table of Contents)

• Ⅰ. 서론
• Ⅱ. 신청인 적격성
• Ⅲ. 비교대상 근로자
• Ⅳ. 결론
• 〈Abstract〉