아웃소싱과 고용승계에 관한 유럽공동체의 법과 판례

Abstract

It is a difficult issue whether or not employment relationships are automatically transferred in a case where a transaction between both subcontractors doesn't involve any transfer of tangible or intangible assets like in a transfer of undertaking from one subcontractor to another. In Korea, this issue has been usually dealt with based on the commercial law approach. This approach is more likely to produce a conclusion that there is not a transfer of a business in the change of employers where a contract performed by a subcontractor is terminated and entered into with new one, which is contrary to the employment protection objectives of the Labor Standard Law. In the case of a undertaking based essentially on manpower such as cleaning or security, the labor law approach focused on the 'same or similar activities' should be taken for the employees to be protected where the undertaking in which they have worked is transferred. Therefore, the court has to inquire into the motive of the transferee in declining to take on the employees, and to scrutinize with particular care a transaction deliberately structured with a view to avoiding the principle of unjustifiable dismissal prohibition altogether. In this context, EU directive, case law and regulations of UK have many implications. In especial, additional category of a 'service provision change' in TUPE extends the scope of the directive and introduces greater certainty into the law ensuring employment protection.