Earticle

일본의 노동법 규범 시스템상 노동조건은 노동입법 → 단체협약 → 취업 규칙 → 근로계약이라는 규범의 계층 구조로 결정되고, 후순위에 의한 근로 조건 기준은 이전 순위 그것을 하회할 수 없는 구조로 설명된다. 문제는 단체협약 체결율이 저조하여, 사용자의 일방적인 단독결정에 따라 근로조건이 결정될 수 있는 취업규칙으로 근로조건 기준이 설정되는 효과가 문제될 수 있다. 노동법 본연의 목적으로 노사의 단체협상을 통해 단체협약 체결이 바람 직하나, 현실의 괴리는 너무 커 노사관계법 기능과 역할에 큰 문제가 노출 되고 있다. 이러한 측면에서 프랑스의 사례는 도움을 준다. 프랑스도 노동 조합 조직률은 우리와 유사한 수준에 불과하지만, 노동협약을 통한 규범체 계를 활성화하기 위한 노력을 지속적으로 추진해왔으며, 특히 2016년 8월에 “노동, 사회적 대화의 현대화 및 직업행정의 안전화에 관한 2016년 8월 8일 법률, 제2016-1088호”는 노동법전의 광범위한 영역에 대해 한층 더 근본적 개혁을 가져오는 재구축을 실현한 바 있어, 이 내용을 소개하면서 우리의 노동법의 규제력의 정체상황을 타개하기 위한 시사점을 찾고자 한다.

고용상의 차별 문제는 국적, 신앙, 사회적 신분, 성별에 따른 불이익 처우 금지와 더불어 장애인이나 고령노동자에 대한 동등대우와도 관련이 있다. 본고는 고용상 차별의 영역 가운데 성과 관련한 법적 문제를 검토하기 위해 현황과 과제를 제시하였다. 기본적으로 고용에 있어 성차별금지법의 실체법 부분은 점점 진전이 되고 있는 것으로 보여지지만, 일본 헌법을 정 점으로 한 전체 법체계와 조화되지 않는 판례가 유지되고 있는 해석론상의 문제가 나타나는 점은 검토가 필요하다. 동시에 간접차별의 금지 등 입법론 상 새로운 발전의 여지가 있는 부분도 함께 고려되어야 할 사항이다. 다른 한편 고용상 성차별금지법의 실현에 있어서, 즉 절차, 증명문제, 그 리고 구제 등에 대한 전반적인 논의가 불충분한 상태이다. 이러한 두 가지 문제에 대해 기본적 의미를 확인하면서 앞으로 개선되어야 할 측면에서 과 제를 밝히고자 한다.

Contract work is to outsource work. Contract work increases the risk of industrial accidents. The contractor shall bear more obligations and liability for industrial safety. It is not only workers ‘and workers’ responsibility for industrial safety in the labor contract. The industrial safety and health law system is different from the contract law. Industrial safety is an orderly standard and a public law. It does not matter who the parties to the labor contract are. Anyone who works in the workplace must be safe. Everyone who works should be assured of their safety. The contractor must make efforts to achieve this goal. A person should be able to control and prevent industrial accidents. The person must bear the powers and responsibilities of the analyst. Reducing costs is not the only benefit of outsourcing. In particular, the cost of industrial safety should not be reduced through outsourcing. Contracts increase the risk of industrial accidents. If so, the cost of the project should be as high as that. Outsourcing hazardous work itself can not be prohibited. It is important to let professional companies perform dangerous tasks. Rather than prohibiting outsourcing, at least as far as industrial safety is concerned, outsourcing should be a factor in increasing costs. Whether or not outsourcing is beneficial to business profit is a matter that should be reasonably judged by the user of the original office. The gap between theory and practice should be narrowed. The ambiguity of the concept should also be solved. If the concept is unclear, the system can not take effect. The duties and responsibilities of workers on industrial accidents are also important. Because it is the subject to be protected from industrial accidents, but it is the subject of prevention use. Mutual cooperation between the original company and the subcontractor workers is important. If we do not cooperate with each other, an accident can not occur. Carelessness of workers can harm fellow workers. Employers as well as employers should actively take measures to prevent industrial accidents. It is also necessary to have a sense of fellowship between the original and subcontracted workers. Organic cooperation is difficult if fellow consciousness is deficient. It should not be forgotten that not only labor and management but also subcontractors, contractors, and both workers and subcontractors are members of a community. We can prevent the outsourcing of risk by allowing respect, control and cooperation in equal partnership.

The accident such as the birth of children, who have congenital heart defects occurring in toxic substance of establishment, shows a serious deficiency in the current Industrial accident compensation insurance act. The current act is applied exclusively to only workers who are alive and so have the capacity of enjoyment of rights, so that the children born to be ill because of the harmful environment, where their mothers worked, can not receive the benefits of the industrial accident insurance. The workers who are mothers of the children suffered in the congenital heart defects claimed the compensation of the industrial accident insurance to the Korea workers’ compensation and welfare service, and the service agency rejected the claims because the children were not the workers when the industrial accident occurred in their mothers. The administrative court annulled the decision of the service agency because the children were workers in their mothers’ wombs as the one entity and if the claims of the mothers of children were not received, the mothers’ rights to equality in the Constitutional law would be violated. The high court, however, reversed the judgement of the administrative court because the current industrial accident insurance law definitively regulates that the beneficiary is the worker alive, and there are no comparison target so that the violation of rights to equality in the Constitutional law was not admitted. Thus, the best solution to this conundrum is to amend the Industrial accident compensation insurance act to recover the blind spot. There are three legislation bills, one of which was discarded. They can be very useful references to direction of development in the industrial accident insurance law, and Lee Jung-Mi bill are specially notable. That bill admits the fetus’ capacity of enjoyment of rights and recognize the children as workers legislatively. In addition, the industrial accident insurance is the subsequent remedial measures, so that there have to be the far-reaching reform to improve the maternity protection in the labour and social security acts.

Das Tarifeinheitgesetz wurde am 22. Mai 2015 im Bundestag verabschiedet und ist am 10. Juli 2015 in Kraft getreten. Das Tarifeinehtisgesetz regelt Konflikte im Zusammenhang mit der Geltung mehrerer Tarifverträge in einem Betrieb. Nach amtlicher Begründung ist der Zweck des Tarifeinheitsgesetz der Schutz der Funktionsfähigkeit der Tarifautonomie. Sein Kernstück ist der neue § 4a TVG, der den Grundsatz der Tarifeinheit festschreibt. Unter dem Begriff Tarifeinheit wird der Rechtsgrundsatz verstanden, dass in einem Betrieb nur ein Tarifvertrag anzuwenden ist. Das Tarifeinheitsgesetz wird sowohl von Spartengewerkschaften, als auch aus der Rechtswissenschaft kritisiert. Unmittelbar nach Inkrafttreten dieses Gesetzes haben sechs kleine Gewerkschaften Verfassungsbeschwerde erhoben. Das Verfassungsgericht erklärt das Tarifeinheitgesetz für mit Art. 9 GG überwiegend vereinbar. Zum besseren Schutz der benachteiligten Berufsgruppen hat der Gesetzgeber allerdings teilweise noch bis Ende 2018 nachzubessern. Bis dahin bleibt das Gesetz mit bestimmten Vorgaben weiterhin anwendbar. In einer abweichenden Meinung vertreten hingegen zwei Richter eine strengere Auffassung. Danach bestehen kein Grund dafür, das Gesetz vorübergehend weiterhin für anwendbar zu erklären. Der Verfasser vertritt die Ansicht, dass die Vereinheitlichung der Schalter für kollektivverhandlung nach dem koreanischen Gewerkschafts- und Schlichtungsgesetz verfassungswidrig ist. Nämlich ist schon fraglich, ob das Tarifvertragsgesetz geeignet sind, die Vereinheitlichung der Schalter für kollektivverhandlung geeignet sicn, das Zeil der Verstärkung von Solidarität zu erreichen. Im Gegenteil kann die heftige Konkurrenz unter Gewerkschaften die Zersplitterung und die Durchlöcherung der gesamte Gewerkschaften bringen. Darüber hinaus ist die Vereinheitlichung der Schalter für kollektivverhandlung verfassungswidrig wegen des Eingriffs in die Tafirautonomie und der Verletzung des Rechts zu Kollektivverhandlung von Minderheitsgewerkschaft.

The criteria that distinguish dispatch from subcontracts have been made by case law. Most judgments distinguish dispatch from subcontracting on five criteria. However, the recent Gwangju High Court ruling is based on whether a subcontractor's worker has been transferred to the workplace of the original contractors and whether he has provided labor based on his command. This article critically reviewed it. Integration is not an independent distinctionscriteria, but merely the result of the directive exercise. Even if the integration is the criteria for dispatching and subcontracting, it should be regarded as being incorporated into the labor organization, not transferring it to the workplace. As a result, it is crucial whether the directionsright are exercised by the original contractors. However, it is necessary to distinguish between the directive for the subcontracting purpose and the labor law directive. If the original contractor completes the work specification and the subcontractor completes the work standards and the worker works as it is, the contract contents and actual work are consistent with each other. It should be seen that the legal relationship as contracted is done. The German Federal Labor Court takes this position. However, the judgment of our country affirms the dispatching relationship as it is determined that the contents of the work and the method of work are determined by the original contractors and accordingly, when the workers are working, the direction of the original contractors is given. In this case, the judiciary actually ignored the contracts of the parties and enforced the legal form. The enforcement of such a form of law should not be unreasonably recognized. The judiciary should not pursue legislation

We have anti discrimination regulations about atypical workers compared with regular workers in Korea. With this, recent cases by regional courts showed that the position of atypical workers could be regarded as a social status which should not be the reason to discriminate employees. In Japan, prohibition of the unreasonable differences in the working conditions is a principle of narrowing the gaps between regular workers and atypical workers. When it comes to the standards about unreasonable differences, job content, the scope within which the job content and assigned position can be changed, and any other factors should be considered. This approach was recently more concretely reflected to the new legislation of so called “various working style” law. Supreme court of Japan also showed two new cases about making standards of unreasonable differences in working conditions, which emphasized that every single working condition should be compared and examined respectively. Compared with Korean system, Japanese has more flexible way in that atypical workers in Japan do not have to find precise comparable regular employee to prove their disadvantage. But it also has difficulty in that it contains too much discretion about judging what the unreasonable differences are.

‘The Global Compact for safe, orderly and regular migration’(GCM) is one of the way the international community responds to the new and important phenomenon of large-scale international migration. Just as the existing international human rights treaties, the degree of international consensus is weak and takes too much time to establish a new treaty. However, the problem is too important and urgent to leave it to each other's good intentions, so it is necessary for the UN states to take joint action through mutual agreements. But, these agreements, formed with participation by nearly all countries on Earth, may continue to have an impact in the future. It may be true, but if the efforts to conclude an agreement are made to advance the agreement, it could develop into a new treaty or a new law. The main point is that in the mass migration era, the international community is trying to raise the level of regulation for migration in five ways. As the report by Peter Sutherland, former representative to the United Nations pointed out, ( i ) managing crisis-related movements and protecting migrants at risk; ( ii ) building opportunities for labour and skills mobility; ( iii ) ensuring orderly migration, including return; ( iv ) fostering migrants’ inclusion and development; and ( v ) strengthening migration governance capacities. The Global Compact for Migration(GCM) scheduled for the end of this year will be concluded with these key foci. In order to do this, the UN states needs to engage in further negotiations between the states, such as assistance to large numbers of countries that receive refugees, and a plan to raise funds to support international immigrants. Meanwhile, in the course of the establishment of Global Compact for Migration, the guarantee of labor rights of migrant workers is accepted as a reasonable premise. The direction and contents of the guarantees of human rights based on the abolition of forced labor, the prohibition of child labor, and protection of vulnerable migrant workers varied slightly from international documents, but they were confirmed in the previous international discussions. We have outlined the trends of international discussion following the massive outbreak of immigrants and refugees in the region. The U.N. agencies and countries around the world are feeling the seriousness of the problem and are trying to establish new governance, such as GCM. It started a joint effort to correct inequality between the countries and within the country, to create conditions for ‘Decent Work’, and to create a sustainable global village. Though the comprehensive agreement on migrants and refugees to be enacted by 2018 by specifying the New York Declaration in September 2016, the issue of global interest is how effective it is and how it will be prepared for action.