현행 ‘근로자파견 판단기준 지침’의 개선방안 연구 ―자동차 산업의 불법파견 판결 적용 사례를 중심으로―

Abstract

Even after the enforcement of the Act on the Protection of Temporary Agency Workers (hereafter “Temporary Agency Workers Act”) and the revision of the Ministry of Employment and Labor’s relevant guidelines, disputes surrounding the illegal dispatch of workers have not decreased significantly, indicating the need for improving the guidelines for determining the legality of dispatch of workers. To this end, changes made in the guidelines for determining what illegal dispatch is and the criteria currently in use were reviewed, and the shortcomings and ways to improve the current practice were examined. Above all, when determining whether a particular employment constitutes illegal dispatch of workers, one needs to consider the peculiarity of each industry and type of work involved in the contract for work at issue, which has not received enough consideration. In the case of the automobile industry, due to the complicated nature of transactions between companies which are often multi-layered and multifaceted, applying the current, relatively uniform criteria to determine the legality of workers’ dispatch has been likely to bring about unreasonable results. Therefore, it is necessary to consider the characteristics of each industry and type of business involved in the contract for work being reviewed when establishing and applying the criteria to determine illegal dispatch of workers. In addition, when applying the guidelines, measures to enable differential application of specific criteria depending on the characteristics or nature of each contract for work need to be devised. While the initial discussion about illegal dispatch of workers was focused on uniformly applying the legal standards without distinguishing industries from one another (Stage 1), the recent discussion revolves around raising the awareness about differential application of the criteria by industry or type of work (Stage 2). Furthermore, in the case of industries, where separate processes are closely intricated, each contract for work’s characteristics or the nature of contract directives need to be considered (Stage 3). Through these stages, legal disputes revolving around illegal dispatch of workers are more likely to be resolved, and the guidelines for determining unlawful dispatch of temporary agency workers are expected to function properly as a preventive measure.