전출과 근로자파견

Abstract

This study examines the legal characteristics of employee secondments, including the relationship between the seconded employee, the employer, and the host company. This study also covers the distinction between secondments and worker-dispatch arrangements. “Secondment” refers to an assignment between affiliated companies, or companies and their outside partners. This kind of exchange of manpower not only contributes to reducing costs and enhancing efficiency, but also contributes to the stabilization of employment in that an employer will have less concern regarding its current hiring capacity, and potential excess-workforces problems. In this regard, secondment is an important tool for businesses, which influences the structure of the labor market.<BR> This study interprets the legal characteristics of secondment as a partial employment relationship (similar to a dual-employment relationship) and examines the distribution of rights and duties toward an employee between the employer and host company, by focusing on the duty to pay wages and the right to enforce disciplinary actions. As there can be various controversies over the working conditions of seconded employees and the continuity of the employment relationship after being seconded, it is necessary to clarify objective standards and establish legal principles for secondments, as opposed to leaving it purely to the parties freedom of contract. This is a task that needs to be handled through employment and labor law.<BR> Some argue that the Dispatched Worker Protection Act (the “DWA”) should be applied to secondments, because they resemble worker-dispatch arrangements in structure. However, the purpose of the DWA is to promote the appropriate management of worker-dispatch activities that are carried out as a “business,” and to protect dispatched workers, who often work under relatively poor conditions and have an unstable employment status. As shown through a comparative study of German and Japanese research, the element of worker-dispatch arrangements requiring that they be “carried out as a business,” generally refers to the presence of a profit-seeking motive, or refers to cases where dispatching workers is the main purpose of the business. Therefore, such legislative purposes of the DWA need to be considered thoroughly before the DWA is applied to secondments.