Abstrak
This article aims to analyze the current situation concerning legal regulations prohibitingunreasonable disparities in terms and conditions of employment (i.e. treatment) betweenregular and non-regular employees. Article 20 of the Labor Contracts Act (LCA) has beenthe key to those issues. The article prohibits unreasonable treatment of fixed-term employees,taking into account three factors (content of duties, the extent of changes in the job contentand work locations, and other circumstances). However, there are multiple points for debateregarding its interpretation, and judicial precedents have also been divided. Administrativedraft guidelines were issued in 2016 to clarify the interpretation, and in June 2018 the SupremeCourt issued its first judgment related to Article 20 of the LCA. In the same month, Article20 of the LCA and Article 8 of the Part-time Workers Act (PWA) were integrated into Article8 of the newly amended Part-time and Fixed-term Workers Act (PFWA). As a result, theframework for identifying unreasonableness based on the nature and purpose of each aspectof treatment has been established, but questions remain as to how to certify the nature andpurpose particularly of treatment with mixed nature. In this regard, the court decisions on thesubstantial unreasonableness will be structurally unpredictable. Judgement of whether thedifference in treatment corresponds to the difference of job will be also difficult in the majorityof actual cases which involve differences in capabilities and experiences among employees.Actually, the labor and management of each workplace could most properly carry out theassessment of what is reasonable or unreasonable within the workplace. There is a need forlegal interpretations that contribute to fundamental remedies, such as encouraging non-regularemployees participation in fixing their own working conditions. |
