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비정규직 차별이론과 실무
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비정규직 차별이론과 실무

  • 김난희
  • |
  • 충남대학교출판문화원
  • |
  • 2019-08-30 출간
  • |
  • 417페이지
  • |
  • 188 X 257mm
  • |
  • ISBN 9791165030001
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목차

제1장
고용상 차별금지제도 일반론
제1절 「헌법」의 평등권 ························· 23
1. 평등원칙 ·······························23
2. 평등권의 구조 ····························24
3. 평등권의 이중적 성격 ························25
제2절 차별의 개념과 형태 ······················· 27
1. 차별의 개념적 표지 ·························27
(1) 상대적 평등에 근거한 차별 ·······················27
(2) 합리적 근거 없는 차별 ··························28
(3) 비교대상의 본질적 동일성 ·······················29
(4) 사실적 차별 ·······························30
(5) 자유와 권리에 대한 제한으로서의 차별 ·················30
2. 차별의 형태 ·····························31
(1) 직접차별 ································32
(2) 간접차별 ································32
제3절 고용상 차별금지제도 ······················ 34
1. 「근로기준법」의 균등대우원칙 ····················35
(1) 균등대우원칙의 개념 ··························35
(2) 비교대상근로자의 선정 ·························36
(3) 차별금지 영역에 따른 차별판단 ·····················38
(4) 사용자의 일반적 균등대우원칙 준수 의무 ················45
(5) 사법적 구제절차 ·····························46
(6) 위반의 효과 ·······························50
2. 남녀고용평등법의 남녀고용차별금지제도 ··············51
(1) 의의 및 이행의무자 ···························51
(2) 직접차별과 간접차별의 개념 ·······················52
(3) 차별금지 영역 ······························53
(4) 동일가치노동 동일임금원칙 ·······················58
(5) 위반의 효과 및 권리구제절차 ······················67
3. 장애인 차별금지제도 ·························67
(1) 장애 및 차별의 개념 ···························68
(2) 차별금지 영역 및 정당한 편의제공 ····················70
(3) 권리구제절차 ······························71
(4) 주장ㆍ입증책임의 전환 ··························75
(5) 위반의 효과 ·······························75
4. 연령 차별금지제도 ··························75
(1) 직접차별 및 간접차별의 개념 ······················76
(2) 차별금지 영역 ······························7
(3) 권리구제절차 ······························78
(4) 위반의 효과 ·······························80
5. 기타 노동관계법에서의 고용상 차별금지제도 ············81
6. 「국가인권위원회법」의 차별금지제도 ················84
(1) 개요 ···································84
(2) 차별금지 사유 및 영역 ··························85
(3) 권리구제절차 ······························85
(4) 결정의 효력 ·······························86
7. 소결 ·································87
3. 고용과 직업에 있어서 균등대우지침 ················13
(1) 제정배경 ································13
(2) 정의 및 차별금지 영역 ·························13
4. 파트타임근로에 관한 지침 ·····················14
(1) 제정배경 ································14
(2) 정의 및 적용 ······························15
(3) 차별금지원칙 ······························16
(4) 파트타임근로의 기회부여 및 전환 ···················16
5. 기간제근로에 관한 지침 ······················17
(1) 제정배경 ································17
(2) 정의 및 적용범위 ····························18
(3) 차별금지원칙 ······························18
(4) 정보와 고용기회 제공 ·························19
6. 파견근로에 관한 지침 ························120
(1) 제정배경 ································120
(2) 균등대우원칙 ······························120
제4절 프랑스 ····························· 12
1. 서설 ································12
2. 남녀의 임금평등에 관한 법 ·····················123
(1) 제정배경 ································123
(2) 동일가치노동 동일임금의 원칙 ·····················124
3. 「차별금지법」 ····························125
(1) 제정배경 ································125
(2) 차별 및 괴롭힘 금지원칙 ························125
4. 파트타임근로자에 대한 차별금지 ··················126
(1) 제정배경 ································126
(2) 정의 및 비교대상근로자 ························127
(3) 동등대우원칙 ······························127
(4) 임금의 비례보호원칙 ··························128

제2장
국제기구 및 외국의 비정규직 차별금지법제
제1절 서설 ······························· 93
제2절 국제노동기구(ILO) ······················· 95
1. 개요 ·································95
(1) ILO의 의의 ·······························95
(2) ILO의 협약 ·······························97
2. 동일가치노동 동일보수에 관한 협약 ·················98
(1) 개요 ···································98
(2) 차별적 처우로서 ‘보수’의 정의 ······················98
(3) 동일가치노동의 정의 ··························9
(4) 직무평가 방법 및 동일임금의 실현 ····················9
3. 고용 및 직업상 차별대우에 관한 협약 ················10
4. 파트타임근로에 관한 협약 ·····················101
(1) 개요 ··································101
(2) 파트타임근로자의 정의 ·························102
(3) 협약의 적용범위 ····························103
(4) 파트타임근로에 대한 균등대우 ·····················103
(5) 파트타임근로의 용이화 ·························104
(6) 풀타임근로 형태로의 전환 ·······················105
5. 비정규직에 대한 간접적 규율 협약 ·················105
제3절 유럽연합(EU) ·························· 107
1. 개요 ································107
(1) EU 노동법 ·······························107
(2) EU 노동법의 법원 ···························108
2. 통합 남녀평등대우 지침 ······················10
(1) 제정배경 ································10
(2) 동일노동 또는 동일가치노동 ······················12
5. 기간제근로자에 대한 차별금지 ···················128
(1) 제정배경 ································128
(2) 기간제 고용제한 및 비교대상근로자 ··················129
(3) 동등대우원칙 ······························129
(4) 동일노동 동일임금원칙 ·························130
6. 파견근로자에 대한 차별금지 ····················131
(1) 의의 ··································131
(2) 균등대우원칙 ······························131
7. 구제절차 ······························132
(1) 차별구제절차 ······························132
(2) 차별취급의 입증책임 ··························13
제5절 독일 ······························ 134
1. 서설 ································134
2. 「일반평등법」의 차별금지원칙 ···················135
(1) 제정배경 ································135
(2) 정의 및 적용범위 ····························135
(3) 격차금지 법리 및 동일노동 동일임금원칙 ················136
3. 「임금공개법」의 동일노동 동일임금원칙 ··············137
(1) 제정배경 ································137
(2) 인적 적용대상 ·····························138
(3) 동일노동 내지 동일가치노동의 원칙 ··················139
(4) 차별금지원칙 ······························139
(5) 정보청구권 및 사업장 임금공개 ····················140
4. 파트타임 및 기간제근로자 차별금지 ················142
(1) 제정배경 ································142
(2) 파트타임근로자 차별금지 ························142
(3) 기간제근로자 차별금지 ·························145
5. 파견근로자 차별금지 ························147
(1) 제정배경 ································147
(2) 비교대상근로자 ····························148
(3) 균등대우원칙 ······························148
6. 비정규직 차별의 합리적 이유에 관한 판단법리 ···········149
(1) 평등대우원칙 ······························149
(2) 차별의 평가표지 ····························149
(3) 임금지급체계의 동일적용 원칙 ·····················150
7. 구제절차 ······························150
(1) 차별금지 위반의 효과 ·························150
(2) 차별시정 구제절차 ···························150
제6절 영국 ······························ 152
1. 서설 ································152
2. 「평등법」의 차별금지원칙 ·····················153
(1) 제정배경 ································153
(2) 차별금지원칙 ······························154
(3) 동일노동 동일임금원칙 ·························156
3. 「파트타임근로자 규칙」의 차별금지 ·················157
(1) 제정배경 ································157
(2) 정의 및 비교대상자 ···························158
(3) 동일 또는 유사한 업무 ·························159
(4) 불이익한 처우 ·····························160
4. 「기간제근로자 규칙」의 차별금지 ··················161
(1) 제정배경 ································161
(2) 정의 및 비교대상근로자 ························162
(3) 불이익한 처우 금지 ···························162
5. 「파견근로자 규칙」의 균등대우 ···················163
(1) 제정배경 ································163
(2) 자격요건 기간 및 비교대상근로자 ···················163
(3) 균등대우원칙 ······························163
6. 차별판단에 대한 법리 ························164
7. 근로시간단축 청구권 ························165
8. 구제절차 ······························16
(1) 고용심판소를 통한 구제절차 ······················16
(2) 알선조정중재국(ACAS) ·························167
제7절 미국 ······························ 168
1. 서설 ································168
2. 민권법 제7편 ····························169
(1) 제정배경 ································169
(2) 고용상 차별금지원칙 ··························170
(3) 진정직업적격 ······························170
3. 동일임금법 ·····························171
(1) 서설 ··································171
(2) 동일노동 동일임금의 원칙 ·······················171
4. 구제절차 ······························172
(1) 고용기회평등위원회 및 사법적 구제절차 ················172
(2) 구제내용 ································173
제8절 일본 ······························ 174
1. 서설 ································174
2. 「노동기준법」의 균등대우원칙 ···················175
3. 동일노동 동일임금원칙 ·······················176
4. 파트타임 노동법의 균등ㆍ균형대우원칙 ···············178
(1) 제정배경 ································178
(2) 정의 및 비교대상근로자 ························178
(3) 차별적 취급 금지의 균등대우원칙 ···················179
(4) 불합리한 근로조건 금지의 균형대우원칙 ················179
(5) 사용자의 설명의무 및 사내 분쟁해결 ··················181
5. 「노동계약법」 기간제근로자의 균형대우원칙 ············181
(1) 제정배경 ································181
(2) 불합리한 근로조건 금지 ························182
6. 노동자파견법의 균형대우원칙 ···················182
(1) 의의 ··································182
(2) 균형대우원칙 ······························183
7. 합리성 판단법리 ··························183
8. 비정규직에 대한 「동일노동 동일임금의 지침(案)」 ··········184
(1) 서설 ··································184
(2) 기본급 ·································185
(3) 수당 ··································187
(4) 복리후생 ································189
(5) 기타 ··································190
9. 구제절차 ······························190
제9절 특징 및 시사점 ························· 192
1. 국제노동기구(ILO) ·························192
2. 유럽연합(EU) ····························193
3. 프랑스 ·······························195
4. 독일 ································196
(1) 독일의 차별금지법제의 특징 및 시사점 ·················196
(2) 「임금공개법」의 한계와 시사점 ·····················197
5. 영국 ································198
6. 미국 ································19
7. 일본 ································20
(1) 비정규직 차별금지법제의 특징 및 시사점 ················20
(2) 비정규직에 대한 「동일노동 동일임금 지침(案)」의 한계 및 시사점 ···201

제3장
비정규직 근로자에 대한 차별금지제도
제1절 연혁 ······························ 205
1. 개요 ································205
2. 입법배경 ······························206
3. 주요 제ㆍ개정 내용 ·························208
(1) 207년 차별금지 및 차별시정제도 시행 ·················208
(2) 2012년 1차 개정 ·····························209
(3) 2013년 2차 개정 ·····························210
(4) 2014년 3차 개정 ·····························210
(5) 2018년 4차 개정 ·····························212
제2절 적용범위와 차별금지 준수의무자 ··············· 213
1. 적용범위 ······························213
(1) 상시 근로자 5명 이상의 사업 또는 사업장 ···············214
(2) 국가 및 지방자치단체의 기관 ······················217
(3) 적용제외 ································217
2. 차별금지 준수의무자 ························218
(1) 사용자 ·································219
(2) 파견사업주와 사용사업주 ························20
제3절 비정규직 차별 판단기준 ···················· 23
1. 비정규직 차별 판단구조 ······················23
제4절 비정규직 근로자 ························ 25
1. 근로자의 개념 ···························26
2. 기간제근로자 ····························27
(1) 무기계약직으로 의제된 근로자 ·····················28
(2) 갱신기대권이 인정되는 기간제근로자 ·················29
(3) 시용ㆍ수습근로자 ····························230
(4) 인턴근로자 ·······························231
(5) 현장실습생 ·······························232
3. 단시간근로자 ····························232
(1) 동종의 업무 ······························232
(2) 소정근로시간의 차이 ··························23
4. 파견근로자 ·····························234
(1) 불법파견(위장도급)근로자 ·······················235
5. 비정규직 공무원 ··························238
제5절 차별금지 영역 ························· 240
1. 임금 ································241
2. 정기상여금 ·····························241
3. 경영성과금 ·····························242
4. 근로조건 및 복리후생 등에 관한 사항 ················243
(1) 개념 ··································243
(2) 판단기준 ································24
5. 차별금지 영역 쟁점사례 ······················245
(1) 방학기간을 제외한 근로계약기간 ····················245
(2) 맞춤형 복지제도 ····························246
(3) 해고 등 징계양정 ····························247
(4) 출퇴근 등록방법 ····························247
(5) 사내근로복지기금에 의한 복지제도 ···················248
(6) 교육기회 ································250
(7) 전적위로금 ·······························250
(8) 현금출납수당 ······························251
(9) 명예퇴직금 등 ·····························252
(10) 법률위반 사항 ·····························252
제6절 비교대상근로자 ························ 25
1. 비교대상근로자 선정 ························25
(1) 기간제근로자의 비교대상근로자 ····················256
(2) 단시간근로자의 비교대상근로자 ····················256
(3) 파견근로자의 비교대상근로자 ·····················257
2. 비교대상근로자 판단기준 ······················257
(1) 당해 사업 또는 사업장 (장소적 동일성) ·················257
(2) 동종 또는 유사한 업무 ·························261
(3) 비교대상근로자 존재시점(시간적 동시성) ················27
3. 비교대상근로자가 다수인 경우 ···················282
4. 비교대상근로자의 선택ㆍ추가 가능성 ················283
5. 소결 ································284
제7절 불리한 처우의 존재 ······················ 286
1. 불리한 처우의 의미 ·························286
2. 불리한 처우의 판단방법 ······················287
(1) 항목별 비교방법 ····························287
(2) 범주화 비교방법 ····························28
(3) 총액(종합) 비교방법 ··························290
3. 불리한 처우의 존재시점 ······················291
4. 소결 ································293
제8절 합리적 이유의 판단 ······················ 294
1. 합리적 이유의 존부 ·························295
(1) 의의 ··································295
(2) 합리적 이유의 심사척도 ························295
2. 합리적 이유의 유형에 따른 판단기준 ················302
(1) 의의 ··································302
(2) 채용요건 및 채용방법ㆍ절차 ·······················303
(3) 업무의 범위ㆍ권한ㆍ책임 ·························304
(4) 고용의 특성 및 근속기간의 차이 ····················305
(5) 사용의 목적 ······························305
(6) 업무의 실적과 성과 ···························307
(7) 노동시장의 수급상황 및 시장가치 ···················307
(8) 근로계약ㆍ취업규칙ㆍ단체협약에 근거한 비조합원에 대한 불리한 처우 ··308
3. 급부 유형별 사례 ··························313
(1) 임금 ··································313
(2) 상여금 ·································319
(3) 경영성과금 ·······························32
(4) 근로조건에 관한 사항 ·························323
(5) 복리후생에 관한 사항 ·························324
4. 소결 ································328

제4장
비정규직 근로자에 대한 차별시정제도
제1절 노동위원회 차별시정절차 ··················· 33
1. 차별시정신청 ····························33
(1) 당사자 적격 ······························34
(2) 제척기간 ································34
(3) 시정신청 절차ㆍ방법 ··························36
(4) 차별시정의 주장ㆍ입증책임 ·······················37
2. 노동위원회의 조사 ㆍ 심문 ·····················341
(1) 노동위원회 조사 ····························341
(2) 노동위원회 심문회의 ··························343
(3) 노동위원회 조사ㆍ심사 범위 ·······················345
3. 조정ㆍ중재 ·····························346
(1) 조정ㆍ중재의 절차 ···························347
(2) 조정ㆍ중재의 효력 ···························348
(3) 조정ㆍ중재 담당기구의 문제 ·······················348
4. 판정 ································349
(1) 시정명령 및 기각결정 ·························349
(2) 각하결정 ································350
5. 조정ㆍ중재 또는 시정명령의 내용 ····················351
(1) 노동위원회 시정명령의 범위 ······················351
(2) 근로조건의 개선 ····························353
(3) 배액금전배상 제도 ···························35
6. 시정명령의 불복절차 및 확정 ····················365
7. 시정명령 이행상황 제출요구 ····················367
제2절 고용노동부 장관의 차별적 처우 시정요구 ··········· 369
1. 감독기관에 대한 통고 ························369
2. 고용노동부 장관의 시정요구 ····················370
(1) 서설 ··································371
(2) 시정요구 및 노동위원회 통보 ······················371
(3) 노동위원회 통보기간 ··························372
3. 확정된 시정명령의 효력확대 ····················373
(1) 효력확대제도의 특징 ··························374
(2) 합리적 운영을 위한 전제조건 ······················375
4. 해고 등 불리한 처우의 금지 ·····················375
제3절 민사소송을 통한 구제절차 ··················· 37
1. 불법행위에 기한 손해배상청구권 ··················37
2. 손해배상의 범위 ··························378
제4절 차별시정의 구제이익 및 소의 이익의 문제 ·········· 379
1. 서설 ································379
2. 개념 ································379
3. 판단시점 ······························380
4. 근로관계가 종료된 경우 ······················380
5. 소송 중에 합의금을 지급한 경우 ··················383
6. 소송 중에 실제 발생한 손해액을 지급한 경우 ············383
7. 소결 ································384
제5절 차별시정제도 개선방안 ···················· 385
1. 서설 ································385
2. 차별시정을 위한 제도적 개선방안 ·················386
(1) 차별 개념의 명확화 ···························386
(2) 차별시정 당사자 확대 ·························38
(3) 차별적 처우의 비교대상근로자 확대 ··················392
(4) 합리적 이유의 인정범위 축소 ······················394
(5) 확정된 시정명령의 효력확대 제도개선 ·················395
(6) 조정ㆍ중재 전담기구 신설 ························395
3. 차별예방을 위한 제도적 개선방안 ·················396
(1) 동일노동 동일보수체계 구축 ······················396
(2) 사내 자율적 분쟁해결 시스템 구축 ···················398
(3) 근로감독의 강화를 위한 행정지침 마련 ·················39
(4) 일자리 정보제공 등 사용자의 의무규정 신설 ··············40
(5) 비정규직 사용 부담금제 도입 ······················401
판례?경정례 찾아보기 ·························403
찾아보기 ·······························411
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