# 작품 소개

개정판에서는 기존의 노동법제에 대한 내용에 대한 소개에 더하여, 복수 노조허용에 따른 교섭창구단일화, 비정규직에 대한 차별시정, 정년연장에 따른 임금체계의 개편 등에 관한 법제의 내용을 새롭게 추가하였다. 또한 통상임금의 법적 개념 및 산정방법을 비롯하여, 파견과 도급(사내하도급)의 구별기준 등과 같이 최근에 나온 중요한 판례도 빠짐없이 소개하고 있다.

## 소장 |
29,000스콘 |

개정판에서는 기존의 노동법제에 대한 내용에 대한 소개에 더하여, 복수 노조허용에 따른 교섭창구단일화, 비정규직에 대한 차별시정, 정년연장에 따른 임금체계의 개편 등에 관한 법제의 내용을 새롭게 추가하였다. 또한 통상임금의 법적 개념 및 산정방법을 비롯하여, 파견과 도급(사내하도급)의 구별기준 등과 같이 최근에 나온 중요한 판례도 빠짐없이 소개하고 있다.

**제1편 노동법으로의 초대**

**제1장 모집 및 채용**

I. 노동법의 개념 ············································································ 29

1. 시민법과 노동법 ● 31

2. 헌법과 노동법 ● 32

II. 노동법의 구성 및 특수성 ························································ 47

1. 노동법의 구성 ● 47

2. 노동법의 특수성 ● 48

III. 노동법의 발전과 전개 ···························································· 49

1. 각 국의 노동법 ● 49

2. 우리나라 노동법 ● 51

IV. 공공부문의 노동법 ································································· 52

1. 개요 ● 52

2. 공무원에 대한 노동3권의 제한 ● 53

3. 교원 ● 54

4. 주요방위업체에 종사하는 근로자 ● 55

5. 헌법 제37조 제2항에 의한 노동3권의 제한 ● 56

6. 비상사태 등에 의한 제한 ● 57

V. 노동법의 법원 ·········································································· 57

**제2장 노동법의 주체**

I. 근로자 ························································································ 60

1. 근로기준법상의 근로자 ● 60

2. 노동조합법상의 근로자 ● 62

3. 기타법상의 근로자 ● 63

II. 사용자 ···················································································· 63

1. 근로기준법상의 사용자 ● 63

2. 노동조합법상의 사용자 ● 64

III. 노동조합 ················································································ 65

1. 노동조합의 종류 ● 65

2. 노동조합의 개념 및 요건 ● 68

**제3장 근로조건의 결정 시스템**

I. 근로계약 ···················································································· 75

II. 취업규칙 ··················································································· 76

III. 단체협약 ················································································· 76

IV. 노사관행 ·················································································· 77

**제2편 기업과의 만남**

**제1장 모집 및 채용**

I. 모집 및 채용의 자유 ·································································· 81

1. 의의 ● 81

2. 모집 및 채용의 자유와 그 제한 ● 82

II. 채용내정 ·················································································· 85

1. 의의 ● 85

2. 법적 성질 ● 85

3. 근로계약의 성립시기 ● 86

4. 채용내정과 근로관계 ● 87

노동법의 세계

III. 시 용 ························································································ 88

1. 의의 ● 88

2. 법적성질 ● 88

3. 시용기간 및 그 연장 ● 89

4. 시용과 근로관계 ● 89

IV. 근로조건의 명시 ······································································ 91

1. 개념 ● 91

2. 명시의 시기 ● 91

3. 명시의 내용 ● 92

4. 명시의 방법 ● 93

5. 명시위반의 효과 ● 93

**제2장 근로계약의 기본원리**

I. 근로계약상의 근로자 및 사용자의 권리 및 의무 ······················ 95

1. 근로자의 의무 ● 96

2. 사용자의 의무 ● 99

II. 근로계약기간의 설정 ····························································· 102

1. 법규정 ● 102

2. 원칙적 근로계약기간 ● 103

3. 예외적 근로계약기간 ● 103

III. 근로계약체결에 대한 근로기준법상의 규제 ························ 104

1. 위약예정금지 ● 104

2. 전차금상쇄의 금지 ● 106

3. 강제저축의 금지 ● 108

4. 신원보증계약 ● 109

**제3장 평등원칙**

I. 근로기준법상의 균등(평등)대우 ·············································· 111

1. 의의 ● 111

2. 차별대우의 사유 ● 112

3. 근로조건에 대한 차별적 대우 ● 114

II. 남녀고용평등법상의 평등대우 ·············································· 115

1. 의의 ● 115

2. ‘동일가치노동에 대한 동일임금지급’의 원칙 ● 116

3. 모집과 채용상의 성차별금지 ● 117

4. 교육·배치 및 승진에 있어서 차별금지 ● 118

5. 정년·퇴직 및 해고에 있어서의 차별금지 ● 118

6. 위반의 효과 ● 118

**제4장 취업규칙**

I. 의의 ························································································· 121

1. 개념 ● 121

2. 취업규칙의 법적 성질 ● 122

II. 취업규칙의 작성 ····································································· 125

1. 취업규칙의 작성의무 ● 125

2. 취업규칙의 기재사항 ● 129

III. 취업규칙의 변경 ··································································· 130

1. 의의 및 법규정 ● 130

2. 불이익하지 아니한 취업규칙의 변경 ● 130

3. 불이익한 취업규칙의 변경 ● 131

IV. 취업규칙의 신고·심사 및 주지의무 ······································· 139

1. 신고의무 ● 139

2. 법령·단체협약 위반의 금지 ● 139

3. 주지의무 ● 140

V. 취업규칙과 법령 등과의 관계 ················································ 140

1. 법령 및 단체협약과의 관계 ● 140

2. 근로계약과의 관계 ● 141

**제5장 비정규직고용 및 외국인고용**

I. 비정규직 근로자 ······································································ 143

1. 비정규직 근로자의 개념 ● 143

2. 비정규직 근로자의 증가원인 ● 145

노동법의 세계

3. 비정규직근로자의 보호규정 ● 145

II. 외국인 근로자 ········································································ 158

1. 외국인근로자들의 유입배경 ● 158

2. 외국인근로자들의 취업경로 ● 158

3. 고용허가제 ● 160

**제3편 단체와의 만남**

**제1장 노동조합**

I. 노동조합의 설립요건 ······························································· 168

1. 실질적 요건 ● 168

2. 노동조합의 설립신고 및 심사제도 ● 175

II. 노동조합의 성립 및 법적 효과 ··············································· 178

1. 노동조합의 성립시기 ● 178

2. 노동조합의 성립의 법적 효과 ● 179

III. 노동조합의 운영 ··································································· 181

1. 의의 ● 181

2. 조합원의 지위의 취득 및 상실 ● 181

3. 유니언숍(union shop) ● 182

4. 노동조합의 규약 ● 186

5. 노동조합의 기관 ● 187

6. 노동조합의 재정 ● 190

7. 노동조합의 내부통제권 ● 192

IV. 노동조합의 활동 ···································································· 197

1. 의의 ● 197

2. 정당한 노조활동 ● 197

3. 편의제공 ● 204

V. 노동조합의 해산과 조직변경 ················································· 209

1. 의의 ● 209

2. 노동조합의 해산 ● 209

3. 노동조합의 조직변경 ● 211

4. 노조의 합병 및 분할로 인한 소멸 ● 211

**제2장 단체교섭**

I. 단체교섭의 의의 ····································································· 215

1. 단체교섭의 개념 및 기능 ● 215

2. 단체교섭의 법적 보호 ● 216

II. 단체교섭의 주체 ····································································· 218

1. 개념 ● 218

2. 단체교섭의 당사자 ● 218

3. 단체교섭의 담당자 ● 226

III. 단체교섭의 대상 ··································································· 230

1. 개념 및 한계 ● 230

2. 교섭사항의 일반적 기준 ● 231

IV. 단체교섭대상의 내용 ···························································· 232

1. 근로조건 관련 사항 ● 232

2. 집단적 노사관계의 운영에 관한 사항 ● 236

V. 단체교섭의 방식과 절차 ························································· 236

1. 성실교섭의무 ● 236

2. 단체교섭의 방식 ● 239

3. 단체교섭의 절차 ● 241

**제3장 단체협약**

I. 총 설 ························································································ 243

1. 단체협약의 의의 ● 243

2. 단체협약의 기능 ● 243

3. 단체협약의 법적 성질 ● 244

II. 단체협약의 성립 ····································································· 245

1. 단체협약의 당사자 ● 245

2. 단체협약의 형식 ● 246

노동법의 세계

III. 단체협약의 신고 ··································································· 247

IV. 단체협약의 내용과 효력 ······················································· 248

1. 단체협약의 규범적 내용과 효력 ● 248

2. 단체협약의 채무적 내용과 효력 ● 250

3. 단체협약의 조직적 내용과 효력 ● 253

4. 단체협약위반의 효과 ● 253

V. 단체협약의 적용범위 ····························································· 254

1. 의의 ● 254

2. 단체협약의 인적 적용범위 ● 255

3. 단체협약의 장소적 적용 범위 ● 257

VI. 단체협약의 종료 ··································································· 259

1. 의의 ● 259

2. 단체협약의 유효기간 ● 259

3. 자동연장협정과 자동갱신협정 ● 260

4. 단체협약의 취소 및 해지 ● 261

5. 단체협약 당사자의 변경 ● 262

6. 단체협약 종료 후의 근로관계 ● 263

**제4편 근로조건의 여러 가지 형태**

**제1장 임 금**

I. 개 념 ························································································ 267

1. 임금의 의의 ● 267

2. 임금의 개념 ● 267

3. 평균임금과 통상임금 ● 271

II. 임금액의 보호 ········································································ 280

1. 서설 ● 280

2. 최저임금제도 ● 280

3. 근로기준법상 도급근로자의 임금보호 ● 285

III. 임금의 지급방법과 비상시지급 ············································ 287

1. 임금지급의 원칙 ● 287

2. 임금의 비상시 지급 ● 291

IV. 임금채권의 보호 ···································································· 293

1. 임금채권의 우선변제 ● 293

2. 도급사업의 임금채권 보호 ● 296

3. 기타의 임금채권 보호규정 ● 297

V. 휴업수당 ················································································· 298

1. 의의 ● 298

2. 법적 성질 ● 298

3. 휴업수당의 지급요건 ● 299

4. 휴업수당의 지급 ● 300

5. 쟁의행위와 휴업수당 ● 301

6. 기타의 관련문제 ● 303

**제2장 근로시간**

I. 총 설 ························································································ 305

1. 개요 ● 305

2. 근로시간의 개념 ● 306

3. 근로시간의 산정 ● 307

II. 시간외근로 ············································································· 308

1. 연장근로의 의의 및 입법취지 ● 308

2. 합의에 의한 연장근로 ● 308

3. 연장근로의 인가와 제한 ● 312

III. 가산임금 ··············································································· 314

1. 의의 ● 314

2. 가산임금의 지급사유 ● 315

3. 야간근로에 대한 지급 ● 315

4. 휴일근로에 대한 지급 ● 316

IV. 근로시간의 유연화 ································································ 317

1. 탄력적 근로시간제 ● 317

2. 선택적 근로시간제 ● 320

V. 유해·위험작업에 있어서의 기준근로시간 ······························ 324

1. 의의 ● 324

2. 내용 ● 324

VI. 근로시간 계산의 특례 ··························································· 326

1. 개념 ● 326

2. 인정근로시간제 ● 326

3. 재량근로시간제 ● 328

VII. 근로시간 및 휴게의 특례 ···················································· 330

1. 의의 ● 330

2. 요건 ● 330

3. 인정효과 ● 331

VIII. 특수근로자에 대한 적용제외 ············································· 332

1. 의의 ● 332

2. 적용범위 ● 332

3. 적용대상 ● 333

**제3장 휴게·휴일·휴가**

I. 총 설 ························································································ 335

II. 휴게시간 ················································································· 336

1. 의의 ● 336

2. 내용 ● 336

3. 자유이용의 원칙 ● 337

4. 적용 제외 ● 338

III. 휴일 ······················································································· 339

1. 의의 ● 339

2. 주휴제의 원칙 ● 339

3. 휴일근로수당 ● 340

4. 적용제외 ● 340

IV. 휴가 ······················································································· 340

1. 총설 ● 340

2. 연차유급휴가 ● 341

3. 연차유급휴가의 대체 ● 346

**제4장 여성과 연소자**

I. 총 설 ························································································ 349

II. 여성과 연소자에 대한 공통된 보호 ········································ 350

1. 탄력적 근로시간제도의 금지 ● 350

2. 야간·휴일근로의 금지 ● 351

3. 유해·위험사업에의 사용금지 ● 353

4. 갱내근로의 금지 ● 354

III. 연소근로자에 대한 특별보호 ················································ 355

1. 총설 ● 355

2. 최저취업연령의 제한 ● 356

3. 연소자증명서의 비치 ● 356

4. 미성년자의 근로계약과 임금청구 ● 357

5. 연소자의 근로시간의 특례 ● 360

IV. 여성근로자에 대한 특별보호 ················································ 361

1. 생리휴가 ● 361

2. 산전·산후 휴가 ● 364

3. 유급육아시간 ● 368

4. 연장근로의 제한 ● 371

**제5장 안전과 보건**

I. 총 설 ························································································ 375

II. 안전·보건관리체계 ································································· 376

1. 안전보건관리책임자 ● 376

2. 관리감독자 ● 376

3. 안전관리자 ● 376

4. 보건관리자 ● 377

5. 산업보건의 ● 377

6. 안전보건관리 총괄책임자 ● 377

7. 산업안전보건위원회 ● 378

8. 명예산업안전감독관 ● 378

III. 안전보건관리규정의 작성 및 준수 ······································· 379

1. 안전보건관리규정의 작성 ● 379

2. 안전보건관리규정의 준수 및 효력 ● 379

IV. 유해·위험예방조치 ································································ 380

1. 사업주의 의무 ● 380

2. 근로자의 의무 ● 382

V. 근로자의 보건관리 ································································· 383

1. 서설 ● 383

2. 작업환경의 측정 ● 383

3. 건강진단 ● 384

4. 건강관리수첩의 교부 ● 384

5. 역학조사 ● 384

6. 취업제한에 의한 건강보호 ● 385

VI. 안전·보건상의 의무·교육과 감독·명령 ································· 385

1. 사업주의 안전교육의무 ● 385

2. 사업주의 위험방지의무 ● 386

3. 사후적 구제조치 ● 386

4. 불이익처우 금지 ● 387

**제6장 산업재해보상**

I. 총 설 ························································································ 389

1. 산업재해보상의 의의 ● 389

2. 산업재해보상의 체계 ● 390

3. 적용범위 ● 391

II 업무상 재해 ············································································ 392

1. 법규정 ● 392

2. 업무상 재해의 개념 ● 393

3. 업무상 재해의 인정기준 ● 396

III 산업재해보상의 종류와 내용 ················································ 401

1. 서설 ● 401

2. 요양보상 및 요양급여 ● 401

3. 휴업보상·휴업급여 ● 402

4. 장해보상·장해급여 ● 403

5. 유족보상·유족급여 ● 405

6. 장의비 ● 406

IV 재해보상청구권·재해급여수급권의 보호 ····························· 407

1. 양도·압류 등의 금지 ● 407

2. 소멸시효 ● 407

V. 도급사업과 특수형태근로종사자에 대한 예외 ······················ 408

1. 근로기준법상의 예외 ● 408

2. 산재보상법상의 예외 ● 408

VI. 산업재해보상에 대한 이의신청 ············································ 409

1. 노동법상의 구제제도 ● 409

2. 민법상의 손해배상 ● 411

VII. 재해보상과 손해배상 ·························································· 411

1. 병존주의와 이중보상의 금지 ● 411

2. 사용자의 고의·과실에 의한 재해 ● 412

3. 제삼자의 고의·과실에 의한 재해 ● 413

**제7장 인사이동**

I. 인사이동의 의의 ······································································ 415

1. 인사이동의 개념 ● 415

2. 근로기준법상의 “전직”과의 관계 ● 415

II. 인사권의 법적 근거 ································································ 416

1. 직무내용의 변경 ● 417

2. 직무장소의 변경 ● 417

III. 기업내 인사이동 ··································································· 417

IV. 기업간의 인사이동 ································································ 418

1. 전출 ● 418

2. 전적 ● 419

V. 인사권의 제한 ········································································· 421

**제5편 분쟁과의 만남**

**제1장 해고를 둘러 싼 분쟁**

I. 해고의 자유 ············································································· 425

1. 민법상의 해고의 자유 ● 425

2. 노동법상의 해고제한 ● 427

II. 부당해고의 법적 효과 ···························································· 438

1. 실질적 요건이 결여된 경우 ● 438

2. 절차적 요건이 결여된 경우 ● 438

III. 부당해고의 구제 ··································································· 440

1. 관련규정 ● 440

2. 부당해고의 구제 ● 440

**제2장 기업질서와 징계**

I. 복무규율의 내용 ······································································ 447

II. 징계처분의 종류와 절차 ························································ 448

1. 징계처분의 종류 ● 448

2. 징계처분의 절차 ● 449

III. 징계권의 근거 ······································································ 450

1. 의의 ● 450

2. 학설 ● 450

IV. 징계사유 ················································································ 451

1. 복무규율 위반 ● 451

2. 업무명령 위반 ● 452

3. 업무방해 ● 452

4. 근로자의 기업 외 활동의 비행 ● 452

5. 경력사칭 ● 453

**제3장 쟁의행위**

I. 쟁의행위의 개념과 의의 ·························································· 455

1. 단체행동과 쟁의행위 ● 455

2. 유사개념의 구별 ● 456

II. 쟁의행위의 유형 ····································································· 457

1. 파업 ● 457

2. 태업 ● 458

3. 직장점거 ● 458

4. 준법투쟁 ● 461

5. 그 밖의 쟁의행위의 유형 ● 463

6. 필수유지업무제도 ● 465

III. 쟁의행위의 정당성 ································································ 467

1. 총설 ● 467

2. 정당한 쟁의행위와 민·형사 면책 ● 468

3. 쟁의행위의 정당성 요건 ● 469

4. 정당한 쟁의행위의 민·형사상 면책 ● 472

5. 정당성을 상실한 쟁의행위의 민사책임 ● 474

6. 정당성을 상실한 쟁의행위와 형사책임 ● 475

7. 정당성을 상실한 쟁의행위와 징계책임 ● 476

IV. 직장폐쇄 ················································································ 478

1. 총설 ● 478

2. 직장폐쇄의 의의 ● 478

3. 인정근거 및 절차요건 ● 479

4. 직장폐쇄의 정당성 ● 480

5. 직장폐쇄의 효과 ● 482

V. 쟁의행위의 제한·금지 ···························································· 483

1. 총설 ● 483

2. 헌법에 의한 제한·금지 ● 483

3. 노동조합법에 의한 제한·금지 ● 484

VI. 쟁의행위와 근로관계 ···························································· 488

1. 총설 ● 488

2. 쟁의행위와 근로관계의 존속여부 ● 489

3. 쟁의행위와 임금 ● 489

4. 쟁의행위와 기타 근로관계 ● 493

5. 쟁의행위 종료 후의 근로관계 ● 494

VII. 쟁의행위와 제3자 ································································ 495

1. 총설 ● 495

2. 정당한 쟁의행위와 제3자 손해 ● 495

3. 정당성 없는 쟁의행위와 제3자 손해 ● 497

4. 공익사업 ● 498

**제4장 부당노동행위**

I. 총 설 ························································································ 501

1. 법규정 및 의의 ● 501

2. 부당노동행위제도의 특성 ● 503

II. 부당노동행위의 종류 ····························································· 504

1. 불이익취급 ● 504

2. 황견계약(비열계약) ● 508

3. 단체교섭거부 ● 512

4. 지배개입 및 경비원조 ● 515

III. 부당노동행위의 구제절차 ···················································· 518

1. 의의 및 특색 ● 518

2. 노동위원회에 의한 행정적 구제 ● 520

3. 부당노동행위의 사법구제 ● 524

4. 행정구제와 사법구제의 관계 ● 525

**제5장 노사분쟁의 해결수단**

I. 노동위원회의 종류·구성 및 권한 ············································ 529

1. 노동위원회의 종류 ● 529

2. 노동위원회의 구성 ● 530

3. 노동위원회의 권한 ● 532

II. 노동쟁의의 조정 ····································································· 535

1. 총설 ● 535

2. 노동조합법에 의한 조정 ● 535

III. 노동쟁의의 조정절차 ···························································· 537

1. 조정 ● 537

2. 공익사업의 특별조정절차 ● 540

3. 중재 ● 541

4. 긴급조정 ● 545

IV. 노동위원회의 회의 ································································ 546

1. 회의의 구성 ● 546

2. 회의의 진행 ● 548

**제6편 회사와의 결별**

**제1장 근로관계의 종료**

I. 해고 ························································································· 553

II. 사직 및 합의 해약 ··································································· 554

1. 사직 ● 554

2. 합의해약 ● 556

III. 근로계약 기간의 만료 및 정년제 ·········································· 559

1. 근로계약 기간의 만료 ● 559

2. 정년제 ● 559

IV. 당사자의 소멸 ······································································· 561

**제2장 고용보험**

I. 고용보험제도의 의의 ······························································· 563

II. 고용보험의 적용범위 ····························································· 564

1. 적용범위의 일반원칙 ● 564

2, 적용의 예외 ● 564

III. 고용보험제도의 내용 ···························································· 565

1. 고용안정사업 ● 566

2. 직업능력개발사업 ● 571

3. 모성보호사업 ● 573

4. 실업급여 ● 573

IV. 고용보험의 비용부담 ···························································· 576

**제3장 재취업과 은퇴**

I. 고령자의 재취업 ····································································· 579

II. 은 퇴 ······················································································· 580

**찾아보기**

I. 사항 색인 ················································································ 581

II. 판례 색인 ················································································ 590

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