영국 노동관계법의 적용대상과 특수고용노동

심재진(Shim, Jaejin) 서강대학교 법학연구소 2015 법과기업연구 Vol.5 No.3

The personal scope of the UK labour law varies depending on which law it is concerned with. some employment rights apply to employees. Other employment rights apply to workers. Anti-discrimination law in employment has a similar personal scope as the law which applies to workers. Health and safety at work law has much broader coverage than any other law. This article discusses whether each of the UK labour law protects dependent self-employed workers and, if so, the extent to which it does. It examines five conceptions defining those who are entitled to employment-related rights, such as employee, workers, employed earner. Exploring statutory provisions and their interpretation on the personal scope of individual labour law, this article will seek to find some implications to how the personal scope of the Korean labour should be widened in order to protect self-employed worker. Hopefully distinctive features of the regulations on dependent self-employment will shed light on the reformation of the personal scope of the Korean labour law.

유럽연합의 단시간 근로자들에 대한 법적 보호

심재진(Jaejin Shim) 한국노동법학회 2010 노동법학 Vol.0 No.34

This article examines case law of the Court of Justice of the European Union (EU) on part-time work. In the EU, protection of part-time workers is concerned with two kinds of law. One is sex discrimination law as, under the EU sex discrimination law, female part-time workers can challenge their disadvantages by means of the prohibition of indirect sex discrimination. Since 1981 the Court has applied former Article 119 of the Treaty and provisions of Community Directives on equal treatment between men and women at work since many more women than men work part-time. The 26 judgments so far made by the Court in relation to part-time workers are considered. They deals with various areas of employment relationship such as pay, career advancement, conditions of dismissal, occupational pension schemes and statutory social security allowances. The other law as to part-time work is the Part-time Workers' Directive, which is designed to directly protect part-time workers. The judgments by the Court on the Directive are just 2. Although it should be considered that the Directive came into force much later than sex discrimination law, the number is still very small. After scrutinizing all the judgments by the Court on part-time work and comparing the two regimes of law, this article has found that the prohibition of indirect sex discrimination has been the main regulatory regime of law on part-time work in the EU. This results from the fact that in the absence of direct regulation on part-time work, the Court progressively broadened the scope of indirect sex discrimination law, the result of which was that almost all areas of employment, occupational pension schemes, social security benefits were covered by the law. Moreover once it turns out that a workplace rule has a disparate impact on one sex, the Court establishes the proportionality test in which, in order to defend that a workplace rule with a disparate impact is objectively justified, an employer is required to prove that the workplace corresponds to a legitimate aim and the means of achieving that aim are appropriate and necessary. On the other hand, the Part-time Workers' Directive, applying to employment relationship alone, is narrower than sex discrimination law in terms of their scope. Also it does not specify whether a workplace rule which is less favourable to part-time workers than to full-time workers has to go through the proportionality test in order that it is objectively justified. As a result there have been few cases which the Court has to deal with in relation to the Directive. This finding might have some implications for the plan to increase the ratio of permanent part-time workers and their protection in Korea. Firstly it might suggest that it is important to consider that part-time employment is a domain in which women, who have to do part-time work because of their main responsibility for child care, are often discriminated against. Secondly, the European experience might indicate that we need the proportionality test rather than the reasonableness test to properly protect part-time workers from being discriminated against. Thirdly, we might need a comprehensive legal measure covering areas such as career development and social security, thus making people free to choose part-time work without fearing that they might be disadvantaged in their long-term career and later life.

산업안전보건법의 실효성 증대를 위한 규율방향

심재진(Jaejin Shim) 서울대학교 노동법연구회 2015 노동법연구 Vol.0 No.39

영국과 호주의 산업안전보건규율방식은 실효성을 증대하기 위한 한국의 산업안전보건법 개선방향에 시사하는 바가 크다. 첫째로 보호대상의 측면에서는 산업안전보건법이 근로기준법과 동일하게 사용종속관계에 기초하여 보호대상을 설정할 필요가 없다는 점이다. 이것은 좁은 의미의 근로자에 한정할 필요가 없다는 것이고, 직접적인 고용관계를 맺고 있는 자에 한정할 필요가 없다는 것 모두를 포함한다. 영국과 호주는 사업수행에 영향을 받는 모든 노무제공자에게 산업안전보건법을 적용하고 있다. 이러한 보호대상의 확장은 산업안전보건법 제66조의2의 사망사고시의 가중처벌에도 적용되어야 한다. 둘째로 의무주체의 면에서는 현행 산업안전보건법상의 의무주체인 법인 등의 사업주를 직접적으로 처벌하는 것이 안전 · 보건에 관한 책임을 올바로 부과하는 것일 뿐만 아니라 실효성을 높인다는 것을 시사한다. 현행 산업안전보건법은 양벌규정의 이중적 기능을 인정하여, 행위자를 처벌하면서도 동시에 사업주를 처벌한다. 이러한 방식은 사업주인 기업에 대한 책임을 이차적으로 하여 상당히 완화할 뿐만 아니라 개인책임은 행위자에 국한하여 경영진에 대해 책임을 묻기가 어렵게 된다. 영국의 경우 법인을 처벌하는 것을 전제로 무제한의 벌금을 부과할 수 있을 뿐만 아니라 양형지침에서는 이 벌금액수가 기업에 징벌적이고 충분한 영향을 주도록 규정하고 있다. 또한 의무주체의 면에서 현장소장이나 산업안전보건관리책임자가 아닌 법인의 대표이사 등 임원에게 산업안전보건법 위반에 대한 책임을 묻는 것이 필요하다는 점을 시사한다. 왜냐하면 법인 등 사업주의 산업안전보건법 위반은 경영진의 경영행위에서 발생하기 때문이다. 이 경우에도 두 가지의 대안이 있을 수 있는데, 영국처럼 양벌규정으로 법인을 처벌함과 동시에 경영진을 처벌하는 것이다. 이 경우는 경영진이 동의, 묵인, 혹은 과실이 있는 경우로 제한된다. 다른 방안으로는 호주와 같이 경영진에게 ‘상당한 주의’를 하여야 할 적극적이고 능동적인 의무를 부과하여 처벌하는 방식이다. 이 방식은 경영진에게 안전과 보건에 관해서 적극적인 의무를 부과한다는 점에서 경영진에게 영국보다 더 효과적으로 책임을 부과할 수 있다. 마지막으로 의무내용의 측면에서는 구체적인 안전 · 보건조치의 규정과 함께 일반적이고 적극적인 의무규정을 병행하는 것이 더 실효적이라는 것을 시사한다. 열거적으로 제시된 안전 · 보건조치는 실제로 가능하고 필요한 안전 · 보건조치를 사업주들이 취하도록 하는데 걸림돌이 될 수 있다. 또한 일반적이고 적극적인 의무규정은 기업이 제도, 체계, 관행, 문화의 면에서 안전 · 보건에 관한 조치의무를 이행하도록 강제할 수 있다. How heath and safety at work is regulated in the UK and Austraia give some lessons to Korea, in which the effectiveness of Health and Safety at Work Act is seriously doubted given the much more higher rates of fatal accidents at work. Firstly, the case of the two countries implicates that the personal scope of the regulation of health and safety at work does not have to be confined to those who are employees directly employed by an employer. Health and safety at work law in Korea needs to protect both workers who are not employees and all persons at work regardless of who their employers are. Secondly, Korea needs to make an employer directly liable for his(her) violation of health and safety at work law. Both of the two countries directly punishes organisations for their organisational failures of complying with the law. As a result, for instance, an employer can be subject to unlimited fine when he(she) is in violation of the law. Current Korean law on health and safety at work only punishes an employer when his(her) agents fail to implement duties imposed by the law. Thirdly, Korean health and safety at work law needs to be reformed in order to impose upon, for instance, directors, a positive duty of improving health and safety conditions at work, the failure of which makes them criminally liable. Current Korean law on health and safety at work only punishes individuals who are in charge of control over health and safety at work. Fourthly, health and safety at work law needs to provde that an employer has a a general and conmprehensive duty which requires him(her) to make his(her) organisational system, culture and practice highly sensitive to health and safety isseus as well as not to be in violation of a specific provision on health and safety at work. Under the current equivalent Korean law, an employer does not have to consider such organisational issues because the law requires only specific precautionary actions to prevent accidents at work, which are provided for in the law.

한국과 영국의 연령차별금지법제의 비교

심재진(Jaejin Shim) 한국노동법학회 2010 노동법학 Vol.0 No.35

Statistics concerned shows that complaints about age discrimination made to the National Human Rights Commission of Korea since the enforcement of the Korea Age Discrimination in Employment Act (KADEA) in 2009 are mainly concerned with recruitment, the practice of which in companies of Korea has been to explicitly put age limit on applicants for jobs. The actual confinement of the law to this kind of age discrimination in relation to recruitment leads us to ask why other age-related discriminatory practices in companies of Korea have not been addressed despite their prevalence in the Korean workplace. By means of comparison between the Employment Equality (Age) Regulations (EEAR) 2006 of the UK and the KADEA, this article finds out three main features that probably give rise to the current state of the latter. The first is that whilst the proportionality test is used to objectively justify seemingly discriminatory treatment (in the case of direct discrimination) or a provision, criterion, practice putting persons of a particular at a particular disadvantage (in the case of indirect discrimination) in the EEAR 2006, the reasonableness test is provided for in the KADEA. The latter test is not as strict as the former test and accordingly directly or indirectly discriminatory practices are more likely to be justified. A redundancy case in which the Korean Supreme Court held that to use an age criterion to select those to be redundant was reasonable and accordingly justified shows that similar practices are to be justified under the KADEA. The second feature is concerned with indirect discrimination. In the UK, the provision of indirect discrimination is taken to require employers to objectively justify an age-related criterion, such as the length of service, as several cases shows although the EEAR 2006 weakens the prohibition of indirect age discrimination by exempting the criteria of length of service less than five years and allowing it to be used where it appears reasonable to employers that the way it is used fulfills a business need of their undertaking. However, to use the criteria of length of service is explicitly exempted under the provision of indirect discrimination of the KADEA. There has been no case in relation to indirect age discrimination. Thirdly, Korea's regulatory framework in which setting compulsory retirement age does not require any justification at all is contrasted with that of UK's default retirement age of 65 in which setting a retirement age under 65 must be objectively justified. Thus, the issue of compulsory retirement age is hardly within the scope of the KADEA. This is rather surprising given that, as the controversy on the default retirement age before the enactment of EEAR 2006 shows, one of the principal purposes of introducing age discrimination law is to raise, or remove, a retirement age, thus making people work longer. Just two years have passed since the enforcement of the KADEA. Despite this, this article concludes that it is doubtful that the KADEA, without its major defects above corrected by further amendment, will play an meaningful role as it was intented to. It is far from tackling discriminatory practices in relation to age, such as hidden age limit on recruitment, and economic dismissal on the grounds of age. In addition, it hardly regulates an retirement age in Korea which is rapidly nearing aged society from aging society.

사업장 중대안전사고의 규율

심재진(Shim Jaejin) 한국노동연구원 2015 노동정책연구 Vol.15 No.1

이 글은 빈번한 사업장의 중대안전사고에 대한 법제도적 해결책 중의 일부로서 법인의 대한 책임을 강화한 사례로 평가되는 영국의 2007년 법인과 실치사법을 제정 배경과 법 내용 그리고 적용 사례를 다룬다. 이 글은 2007년 법인과실치사법은 사업장 안전사고에 대해 산업안전보건법상으로 규율하는 것이 진정한 범죄로 인식되지 않는다는 ‘법문화’적 고려에서 탄생하였다고 본다. 법제정의 과정, 이 법의 관련 규율체계에서의 위치등을 고려하면 영국의 법인과실치사법이 가장 크게 시사하는 바는 기업들이 안전배려의무를 이행하지 않아 근로자들이나 일반 공중이 다치거나 사망했을 때 이를 ‘진정한 범죄’로 만들어야 한다는 점이다. 이와 달리 한국에서는 사업장의 중대안전사고가 발생할 경우 직접적으로 법인에 대한 책임을 물을 수 없다. 양벌규정에 의해 주된 행위자로서 개인에 대한 처벌과 병행하여 부수적으로 이루어질 뿐이다. 법인의 책임 내용도 안전사고를 야기한 조직문화에 대한 것이 아니고 산업안전규정을 준수하지 못한 것에 대한 책임일 뿐이다. 이런 점들 때문에 한국에서 중대안전사고에 대한 법인의 책임은 그 정도가 상당히 미약하고, 실제로 비난받아야 할 내용과 위반범죄가 일치하지 않는다. 이러한 문제점을 극복하기 위해서는 영국과 같이 법인에게 직접적으로 중대안전사고에 대해 책임을 지우는 방향으로 한국의 산안법과 관련 형법규정이 정비되고 개정되어야 한다고 본다. This study asks how serious accidents at work should be regulated in order to prevent them from taking place. This study explores the case of the Corporate Manslaughter and Corporate Homicide Act(CMCHA) 2007 of the UK in an effort to find an answer to the question. The CMCHA 2007 punishes organisations, including corporations, for their failure to discharge their duty of care for their employees, other persons working for them and persons affected by their activities. The Act is different from the Health and Safety at Work Act(HSWA) 1974 in that it directly punishes organisations for their organisational failures which give rise to dealths. It is also different from corporate manslaughter of the common law, which was abolished by the CMCHA 2007 in that it enables corporations punished without identifying, eg, a culpable director who is to be punished for manslaughter for the same deaths. It is concluded that The CMCHA 2007 was enacted to name their culpability for the deaths properly. In contrast to the two Acts of the UK, the Korean HSWA or the Criminal Act do not directly punish organisations for such organisational failures. As a result, punishment of organisations for serious accidents at work is not properly named, showing their organisational failures and accordingly very weak. very weak.

영국에서의 직장내 괴롭힘 규제

심재진(Jaejin Shim) 한국비교노동법학회 2012 노동법논총 Vol.25 No.-

The reason why harassment cases have all revolved around sex or race is because of the fact that until the Protection from Harassment Act 1997 there was no legislation in force specifically prohibiting harassment as such in the UK. However since 1975/76 there has been specific legislation in force prohibiting sexual and racial discrimination and cases of sexual or racial harassment have been dealt with by the courts on the basis that sexual or racial harassment is in fact sexual or racial discrimination. Therefore in such cases workers had to demonstrate that they had bee not only harassed but the reason they were so wass because of sex or race. The grounds because of which harassment have been prohibited extended to cover disability, sexual orientation, religion or belief and age. Moreover, the Equality Act 2010 provides that harassment at work has to be related to such grounds in order to constitute harassment under the Act. This amendment is expected to lessen the burden of proving the causation between harassment and those grounds. Time limits for bringing cases before an Employment Tribunal are tight and claims must be brought within 3 months of the date of the last incident complained of. Persons who have been harassed at work because of grounds other than those under the Equality Act are not completely helpless from a legal point of view.If someone is harassed at their place of work they could decide to sue their employer for damages using the Protection from Harassment Act 1997 rather than by going to an Employment Tribunal. In some circumstances this route could be simpler particularly if there could be technical arguments as to whether they were an employee or a self employed contractor. Those employment law technicalities would not be relevant in any legal claim under the act. All that would be relevant is the fact that the harassment occurred, the damage it caused and whether the employer was vicariously liable for permitting, or not preventing the Harassment. The Law relating to Vicarious Liability was clarified and extended by the House of Lords in the case of Lister v Hesley Hall Ltd and following this in the case of Majrowski v. Guy’s and St. Thomas’ NHS Trust the House of Lords held that an employer would be vicariously liable under the Protection from Harassment Act 1997 for damages arising from Harassment of an employee by other employees. The Time Limit for bringing a claim for damages under section 3 of The Protection from Harassment Act 1997. is 6 years which is far longer than the 3 month time time limit for bringing claims for Racial or Sexual Discrimination. Moreover, if workers have been subjected to such a degree of harassment that they have to leave their employment then they can claim compensation from an Employment Tribunal on the grounds that they have been the victim of ‘constructive dismissal’.

기간제법의 차별적 처우에서 ‘불리한 처우’와 ‘합리적인 이유’의 판단 — 대법원 2019. 9. 26. 선고 2016두47857 판결의 평석 —

심재진(Jaejin Shim) 한국비교노동법학회 2020 노동법논총 Vol.48 No.-

This article is aimed at reviewing a recent case of the Supreme Court. It looks at new principles of interpretation on Act on Employment Discrimination on the Grounds of Fixed-term Contract, etc.(AEDGFC) and evaluate them in terms of previous cases and academic commentaries on on the AEDGFC. Furthermore it analyses the established principle of interpretation on reasonablegrounds’ in the AEDGFC, the aabsence of which unfavorable treatment against fixed-term employees has to be unlawful discrimination under the AEDGFC. One of the new principles of interpretation on the AEDGFC is about how unfavorable treatment against fixed-term employees can be ascertained in the area of wages. The Supreme Court held that different types of wages such as basic salary various bonuses service tip must be categorized according to their nature where it is not suitable to compare each type of wages between fixed-term and permanent employees. It also held that whether reasonable grounds of unfavorable treatment against fixed-term employees exist must be decided according to each category of types of wages as a whole. On the one hand, these new principles of interpretation should be welcomed in that the methodology of finding unfavorable treatment against fixed-term employees are clearer. On the other hand, they may lead it more difficult that lower courts can decide that unfavorable treatment is not reasonable. There are two competing views on how reasonable grounds of unfavorable treatment should be established prohibition of arbitrary treatment principle and proportionality principle. The latter is stricter than the former and therefore harder than the former for an employer to prove that grounds of unfavorable treatment are reasonable. It seems that the principle of interpretation established on a previous case by the Supreme Court adopts the proportionality principle in a rather moderate sense. However it turned out that most courts including the Supreme Court in the current case have applied not this principle but the prohibition of arbitrary treatment principle to ascertaining reasonable grounds in their cases. Based on this finding it maintains that the nominal principle should be rigorously revived in order to make the AEDGFC more effective.

일반적 차별금지법으로서의 영국의 2010년 평등법 제정의 의미와 시사점

심재진(Shim, Jaejin) 강원대학교 비교법학연구소 2017 江原法學 Vol.50 No.-

이 글은 영국의 일반적 차별금지법으로서 2010년 평등법 제정 사례를 소개하고, 한국에서의 일반적 차별금지법 제정과 관련하여 시사점을 찾는다. 이를 위해 먼저 이 글은 우선 이 법 제정의 배경을 소개하고, 다음으로 2010년 평등법의 구체적 내용을 소개한다. 다음으로 한국의 일반적 차별금지법안과 제정논의를 간략히 검토한 후 영국과 한국의 사례를 비교한다. 영국의 2010년 평등법은 차별의 의미 등 각 차별금지법의 공통적인 사항을 통일적으로 규정하고 있다는 점에 일반적 차별금지법이지만, 단일의 평등법으로서 또한 공통적으로 규율되고 있지 않은 각 사유별 차별금지의 고유한 세부내용도 함께 포함되어 있어 개별적 차별금지법의 고유한 내용까지 포함한다. 2010년 평등법에서 금지되는 차별의 사유는 연령, 장애, 성전환, 혼인 및 동성결혼, 인종, 종교 또는 신념, 성별, 성적 지향, 임신과 모성로 9가지로 한정된다. 2010년 평등법은 사유별로 예외가 있지만 사회 전분야를 적용대상으로 한다. 2010년 평등법은 공공기관 등에게 적극적인 평등실현의무를 부과한다. 이 글은 영국과 한국의 비교를 통해 한국의 일반적 차별금지법안이나 학계의 논의에서 일반적 차별금지법이 기존의 차별금지법과의 관계의 면에서 통일성과 명확성을 확보하는 내용이 크게 부족하였음을 확인한다. 그리고 한국의 다수 법안들이 실효성 확보 차원에서 차별구제나 정부의 의무를 강화하는 내용은 영국의 2010년 평등법과 그 방향이 같은 것으로 확인하였다. 향후 차별금지법 제정 논의에서 적극적으로 참고해야 할 부분이다. This article looks at the case of enactment of the Equal Employment Act in 2010 as a general anti-discrimination law in the UK and looks for implications for the future enactment of an equivalent law in Korea. To this end, this article explains the background of the enactment of the law, and then introduces the specific content of the 2010 Equality Act. Next, we will briefly review several bills of general anti-discrimination laws proposed to the National Assembly and academic discussions on them in Korea. Finally this article compares both the cases of the UK and Korea. The 2010 Equality Act is a general anti-discrimination law that unifies the common elements of each anti-discrimination law, such as the meaning of discrimination. However, it is also an single Act, which consolidates all individual anti-discrimination laws on particular grounds previously enacted. The prohibited grounds of discrimination in the 2010 Equality Act are limited to age, disability, transsexuality, marriage and same-sex marriage, race, religion or belief, gender, sexual orientation, pregnancy and maternity. It applies to all areas of society, although there are exceptions depending on the grounds. by reason. Distinctively it imposes public authorities to positively realise equality in their activities. This article confirms that bills of general anti-discrimination law in Korea and academic discussions lacks in the aspects of enhancing harmonisation and clarity among current anti-discrimination laws, compared to the Equality Act 2010. Taking the experiences of the Equality Act case, moreover, the fact that the majority of the Korean bills of general anti-discrimination law strengthen its effectiveness in enhancing actual equality by imposing equality duty on public authorities proved to be desirable. In the future, these two lessons from the UK Equality Act should be actively referred to in discussions on the enactment of general anti-discrimination law.

영국노동법의 인적 적용범위와 플랫폼 노동

심재진(Shim, Jaejin) 한국노동법학회 2020 노동법학 Vol.0 No.73

This article looks at how platform work is regulated in the UK labour law. What it paid attention to is that the personal scope of UK labour law varies among individual statutes of labour law and even among sections of an individual statute. Overall, UK labour and social security law has 5 categories of protected working people including employee and worker, This article puts its focus on whether, and, if any, how those working through on-line platform are protected according to such categories. Recently UK courts had to deal with the issue whether or not those working through on-line platform, such as Uber drivers and food deliverers of Deliveroo, are protected under relevant labour law. They are hardly treated as employees mainly on the grounds that their arrangement with a platform supplier lacks mutual obligation, which is required in order for the arrangement to be a contract. However the courts upheld that protection of both minimum wage and working time apply to Uber drivers since they are workers. Although the court denied mutual obligation of their engagement in relation to periods between individual assignments, it acknowleged such requirement in relation to periods during which separate assignments are being performed. This article shows that the worker category makes those working through on-line platform more likely to be protected than the employer one. This is due to the fact that the former requires only personal performance of work and Not-being-self-employed. It does not does not require the control test, which is regarded to be an essential element of the latter. There may be some lessons from the regulation of platform work in the UK labour law. The concept of an employee under Korean labour law is very narrow although it applies to almost all individual employment law. UK labour law might suggest that the personal scope of labour law does not have to be the same across all individual employment law. Moreover it might suggest that the some tests for an employee, such as mutual obligation and control, has to be abandoned in order to protect those working through on-line platform.