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- 주제어 : 근로관계 대가 (검색결과 1 건)
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임금의 개념과 제도상 문제점에 관한 연구 : 근로기준법과 최저임금법을 중심으로
김상률 경북대학교 법학전문대학원 2011 국내박사
The issues involving the wages have always resulted in conflicts between the workers and employers since the workers want to be paid more while the employers want to pay less. For the worker, the wages is not only the essential means of living but also the basis for the self-realization through the social and cultural activities. The wage therefore is the most important element of conditions of the employment, and the protection of the right with regard to the wage is the essence among Acts related to the labor. In Korea, Labor Standards Act provides the basic concept of wages in its Article 2 (1) - 5 for the protection of workers. The wages in the Article means wages, in its salaries, and any other money and valuable goods an employer pays to a worker for his/her work, regardless of how such payments are termed. Based on this definition, the wages are again divided into the average wages(Labor Standard Act §2 (1) - 6) and the ordinary wages(Enforcement Decree of the Labor Standard Act §6(1)). The average wages are the basis of computing the retirement pay or the allowance during business suspension which are usually connected to the livelihood, and the ordinary wages are that of calculating allowances for the advance notice of discharge or the extended working hours. One controversial issue is with regard to interpreting Article 2 (1) - 5 which provides wages as “any other money and valuable goods an employer pays to a worker for his/her work.” The ambiguity of the provision causes the conflict between workers and employers as well as inconsistencies of the court decisions and the administrative interpretations. Taken social and legal viewpoints, the court decisions, academic theories, and foreign legislations into consideration, the concept of wages or the duty to pay wages should be set up not based on the practical provision of the labor but based on the basic relationship between a worker and an employer including the practical labor provision. That is to say, the concept shall be extended because employers bind workers under their business, which means that the employers shall pay for the established relationship between two in addition to the hours for which employees work for them. Accordingly, the definition of the wages in §2(1) - 5 of Labor Standards Act shall be changed from “any other money and valuable goods an employer pays to a worker for his/her work” into “any other money and valuable goods an employer pays to a worker for their relationship.” This enlarged concept will include all money and valuable goods arising from the working relationship other than cost-compensatory pay and pays which cannot be wages in nature. In addition, the ordinary wages which have been provided in the Enforcement Decree shall be provided in the Act. The ordinary wages include the regular pays and irregular ones. However, it is necessary to be enacted in the Act for protecting workers if a payment is regular, uniform and fixed. The suggestion for the enactment in the Act is as follows; “(1) The ordinary wages means hourly wages, daily wages, weekly wages, monthly wages, yearly wages, or contract wages which are determined to be paid periodically or fixedly(including fixed conditional pays and periodic bonuses) to a worker for his/her prescribed work or whole work by a year, regardless of how such payments are termed. The preceding does not include money and valuables which shall not be wages in nature and fluctuant wages which are paid in proportion to a worker’s achievement. (2) The specific standard for the computation of the ordinary pursuant to paragraph (1) shall be prescribed by the Presidential Decree.” It is expected that the employers would bear high labor costs if the regular and fixed pays are included in the ordinary wages. In order to minimize this side-effect, the supplement policies such as not paying for weekly day-off, adjusting the extra charge, or encouraging annual paid vacation are need to set up. The best way to resolve the controversies involving the concept of wages and the revision with regard to the ordinary wages is the overall amendment of Labor Standards Act. It is however thought that the overall amendment is not easy to be accomplished soon because workers and employers’ interest is being opposed sharply. The introduction of the report obligation system of the labor contract and the payroll book is a good alternative for protecting the weak and the vulnerable, and preventing the conflict between labor and management until amendment of the Act. In conclusion, the reestablishment of the concept of the wages, the revise of the ordinary wages, and the introduction of supplement policies to deal with related issues will result in the fair and resonable wages for what workers do for the employers, leading the just society in accordance with the constitutional value we seek.
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