알면 보이는 노란봉투법 실무

제1장 총 론
7
1. 개 요·········································································· 17
가. 개 념···································································· 17
나. 개정 내용······························································· 17
2. 개정 연혁····································································· 19
가. 최초 발의······························································· 19
나. 국회 본회의 통과 및 폐기 반복···························20
다. 개정 및 시행 예정················································ 20
3. 개정 배경····································································· 22
가. 발단이 된 주요 사례············································· 22
나. 주요 사례의 특징·················································· 25
4. 입법 취지····································································· 27
가. 법률안···································································· 27
나. 고용노동부 해석지침············································· 29
5. 적용 시기····································································· 30
가. 원 칙···································································· 30
나. 예 외···································································· 30
8 알면 보이는 노란봉투법 실무

제2장 개정내용별 쟁점ㆍ효과ㆍ대응
제1절 사용자 범위 확대
35
1. 개정내용······································································· 35
가. 신구 법조문 비교················································ 35
나. 법조문 분설··························································· 36
2. 사용자 확대 판단기준················································· 43
가. 법률(노란봉투법)···················································· 43
나. 판례 및 판정(노란봉투법 시행 이전)···················43
다. 고용노동부 해석지침············································· 59
3. 교섭의제별 사용자 확대 인정 범위(예시)··················74
가. 임금ㆍ수당····························································· 74
나. 근로시간································································· 76
다. 노동안전································································· 78
라. 작업방식································································· 81
마. 작업환경································································· 82
바. 복리후생································································· 83
4. 교섭창구단일화 절차 적용·········································· 85
가. 적용 여부······························································· 85
나. 적용 방법······························································· 91
9
5. 파급효과····································································· 114
가. 노조법상 사용자 전면 확대································114
나. 대체근로 금지의 사용자······································ 115
다. 불법파견 확대 가능성········································· 119
라. 사용자 확대 유형 정리······································· 120
6. 대응방안····································································· 124
가. 도급실태조사························································ 124
나. 도급계약서 점검·················································· 125
다. 사내 고충ㆍ갈등관리 강화·································· 126
라. 유의사항······························································· 126
제2절 노동쟁의 범위 확대
128
1. 개정내용····································································· 128
가. 신구 법조문 비교················································ 128
나. 법조문 분설··························································· 129
2. 근로자의 지위···························································· 130
가. 문언상 의미························································· 130
나. 법체계적 접근······················································ 130
다. 노사관계 성질상 한계········································· 131
3. 근로조건에 영향을 미치는 사업경영상의 결정········132
가. 문언상의 의미······················································ 132
나. 노동쟁의 해당 여부 판단원칙·····························134
다. 노동쟁의 해당 여부 판단기준·····························137
라. 검토의견······························································· 142
10 알면 보이는 노란봉투법 실무
4. 사용자의 명백한 단체협약 위반·······························143
가. 노동쟁의 대상에 단체협약 위반이 포함된 의미 143
나. 사용자의 '명백한' 단체협약 위반의 의미··········144
다. 노동위원회 지원·················································· 146
라. 검토의견······························································· 147
5. 파급효과····································································· 148
가. 단체교섭 대상 및 쟁의행위 목적 확대··············148
나. 노동쟁의 해당 여부에 관한 법적 분쟁 증가·····148
6. 대응방안····································································· 150
가. 충분한 사전 법리 검토······································· 150
나. 단체협약 문구 수정············································· 150
다. 단체협약 해석 사건 신청요건 완화····················151
제3절 손해배상청구 면제ㆍ제한
152
1. 개정내용····································································· 152
가. 손해배상청구 제한··············································· 152
나. 손해배상책임 면제··············································· 153
다. 손해배상책임 비율 산정······································ 155
라. 손해배상액 감면·················································· 156
마. 신원보증인 면책·················································· 157
바. 손해배상청구 목적 제한······································ 158
사. 사용자의 손해배상책임 면제······························ 159
2. 파급효과····································································· 161
가. 노동조합의 적극적 활동 증가·····························161
나. 사용자의 손해배상청구를 예정한 대응력 약화··162
11
다. 법원의 판결 소요기간 증가································162
3. 대응방안····································································· 163
가. 충분한 사전 법리 검토······································· 163
나. 법정사항 사전 조사············································· 164
제4절 노동조합 소극적 요건 일부 삭제
167
1. 개정내용····································································· 167
가. 신구 법조문 비교················································ 167
나. 확대해석 주의······················································ 168
다. 노동조합 소극적 요건에 대한 판단····················169
2. 파급효과····································································· 170
3. 대응방안····································································· 171
가. 노동조합 자주성 침해 여부 모니터링················171
나. 유의사항······························································· 171

제3장 구제절차
제1절 부당노동행위
175
1. 부당노동행위 구제제도의 의의 및 종류···················175
가. 의 의·································································· 175
나. 부당노동행위 구제제도의 종류···························175
다. 부당노동행위 구제제도 비교······························ 178
12 알면 보이는 노란봉투법 실무
2. 노동위원회의 부당노동행위 구제제도······················179
가. 행정적 구제제도의 특색······································ 179
나. 노동위원회 부당노동행위 구제신청의 요건·······182
다. 구제신청 절차······················································ 196
3. 부당노동행위 구제명령에 대한 긴급이행명령··········220
가. 의 의·································································· 220
나. 긴급이행명령의 요건··········································· 220
다. 긴급이행명령의 절차··········································· 221
제2절 노동쟁의 조정
223
1. 노동쟁의 조정 제도의 개요······································ 223
가. 노동쟁의 조정의 개념········································· 223
나. 조정의 기본 원칙················································ 226
다. 조정의 종류························································· 227
2. 노동위원회 조정 절차··············································· 230
가. 조정의 개요························································· 230
나. 조정 신청····························································· 230
다. 조정 기간····························································· 230
라. 조정위원회 구성·················································· 232
마. 조정위원회 회의·················································· 233
바. 사전 예방 및 사후 조정서비스···························235
제3절 교섭창구단일화 절차 관련 시정신청
237
1. 개 요········································································ 237
2. 교섭요구 사실의 공고에 대한 시정신청···················240
13
가. 신청접수 및 통지················································ 240
나. 사건 조사····························································· 242
다. 결정 및 통지······················································· 247
3. 교섭요구노조 확정공고에 대한 시정신청·················253
가. 신청접수 및 통지················································ 253
나. 사건조사······························································· 255
다. 결정 및 통지······················································· 261
제4절 교섭단위 분리?통합 결정 신청
267
1. 개 요········································································ 267
2. 신청 접수 및 통지···················································· 270
가. 사건 신청····························································· 270
나. 사건접수 통지 및 의견제출 요구·······················272
다. 처리기간······························································· 274
3. 사건 조사··································································· 274
가. 의 의·································································· 274
나. 조사항목······························································· 275
다. 조사내용······························································· 277
라. 조사보고서 작성·················································· 278
마. 조사보고서 작성 요령········································· 279
4. 결정 및 통지····························································· 281
가. 교섭단위 분리 결정············································· 281
나. 결정 절차····························································· 283
다. 결정 유형····························································· 284
라. 결정서 작성························································· 284
14 알면 보이는 노란봉투법 실무
마. 결정서 작성 요령················································ 285
바. 결정서 통지 및 사건 종결·································· 288
제5절 단체협약 해석 또는 이행방법에 관한 견해제시 요청
289
1. 개 요········································································ 289
2. 요청 방법··································································· 290
3. 요청 사건 처리·························································· 290
4. 효 력········································································ 291
5. 재심 신청··································································· 292

제4장 부 록
1. 노란봉투법 관련 고용노동부 자료····························294
2. 근로자파견의 판단기준에 관한 지침························386
3. 노란봉투법 관련 사건 서식······································ 400

■ 참 고 문 헌
417

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