就業規則制度의 比較法的 一考察

A Comparative Analysis on the System of Works Rules

The works rules, with the purpose of making a certain regulation dealing with uniform and systemic working conditions with employees promptly and equally, are collective working rules, in which government delegated her power for making and changing such rules to employers, with having legal binding. The roles of works rules are predictability for reducing conflicts through making clear rights and obligation between employer and employee, and policy for appropriately achieving business works. Moreover, works rules prevent employers from doing arbitrary interpretations, and play a role as social norms or functions to guarantee justifiable procedures dealing with critical issues to employees such as disciplinary measures and dismissal. Accordingly, if collective working structures should not be changed, works rules’ function as collective working rules would not be changed in the future in that the structure of working conditions will be decided collectively. The decreasing trend of joining rate of labor union is coming all around the world, and thus the frequency of collective agreement also is decreasing continuously. It means growing influence of works rules. The nations operating the system of works rules according to decree-law are Korea, Japan, France, China, India, Indonesia, Thailand, Vietnam, Poland, Czech, Bangladesh, Sri Lanka, Mongolia, etc., and, on the other hand, the nations operating the system according to custom of labor relations are Sweden, UK, US, etc. Meanwhile, ‘Betriebsvereinbarung’ in Germany and workplace agreement in Italy are likely similar to works rules. In other words, presumably no country does not admit works rules or its relevant rules like employee’s code. Especially, in Korea, real practice in labor relations depends on the content of works rules. Therefore, it, in labor management, is important how to apply and operate the provisions of works rules. In reality, numerous labor disputes have been occurred in terms of interpretation or application of works rules. The major three problems in Korea are as follows. First, as nature of works rules, what is the legal ground that works rules, made unilaterally by employers without the equal treatment between labor and management, can have binding power against employees regarding working conditions. Second, in ‘Disadvantageous Change’ of works rules under the firm case-based theory of rationality, there is the decree-law requiring ‘consent’ from employees group. However, even if employers violate the rule, the works rules could be valid based alternatively on its rationality as a consent. The very thing can be a matter. Finally, under the flexible labor market, works rules as a collective working rule cannot actively cope with the current trend getting more individual and diversified in terms of contract of employment. In order to resolve the three problems, this thesis suggested the ‘social autonomy theory’ as an alternative of existing theories, and for strong persuasion, argued real each issue and tried to prove its validity and receptiveness. As for the unilateralism of employer to make and change works rules, this thesis also indicated not only current control from decree-law, governmental agency, and labor union, but also direct control methods from the ‘Joint Labor-Management Conference’, in terms of law-making policy. The actual interest of this study is, as an alternative to limit the rationality theory’s intervention into works rules, to guarantee the justification in procedure through operating by the joint labor-management conference. Lastly, the system of works rules under the labor standards act has played an important role in labor-management relations. As growing flexibility of labor fast, however, it is alleged both to introduce new legal systems such as labor contract theory and Notice of Change or Termination, and to reform the current system like ‘Betriebsrat’. Hopefully, this thesis will give a