정도 차별에 관한 판례 법리의 문제점과 정도 차별의 인정방식 ― 기간제근로자에 대한 차별적 처우를 중심으로 ―

Abstract

Where it is deemed necessary to treat fixed-term workers differently from the workers subject to comparison, the method and degree of different treatment to the extent that they are not appropriate are called ‘degree discrimination’. The Korean Supreme court’s precedent in terms of degree discrimination has problems. First, the precedent makes it difficult to judge what extent fixed-term workers are treated differently and to present the single conclusion for different problematic situations by applying the single judgment criterion about the extent that the fixed-term workers and full-time workers are treated differently and the need that they are treated differently. Second, the precedent easily justifies the wage gap between fixed-term and full-time workers in consideration of their employment patterns, the actual purpose of the benefits, and the authority and responsibility of their work. The precedent on the case of degree discrimination should be restructured by dividing it into the judgment criteria for the method and degree of treatment and the judgment criteria for the necessity of treatment. According to this, the court should consider the actual purpose of the benefits, the content and scope of the work, the intensity and quantity of labor, the quality of wages and other working conditions. However the court should only consider the content and scope of work, the intensity and quantity of labor which are related to the value of the work in determining the appropriateness of the method and degree of treatment. In order to relieve degree discrimination, objective evaluation data on the job value of fixed-term workers and full-timer workers subject to comparison should be presented. However even without the data, the court and the labor relations board may order a certain percentage of the wages received by full-time workers to the fixed-term workers based on the difference in wages between those workers by applying the relevant provisions on the Act on the Prohibition of Discrimination against the Disabilities.