노동조합 및 노동관계조정법상 원청의 사용자성 - 단체교섭 의무 인정 여부를 중심으로 (부산고등법원 2018. 11. 14. 선고 2018나53149 판결)

Abstract

Previously, the courts premised on the employer as the party to the labor contract under the Trade Union And Labor Relations Adjustment Act. However, along with the increase in indirect employment, forward-looking lower court rulings appeared in line with the reality of increasing collective bargaining and collective action against prime contractors. The Supreme Court also adopted the theory of substantial control in the Hyundai Heavy Industries case (Supreme Court ruling on March 25, 2010, 2007DU8881) and acknowledged the prime contractor's unfair labor practices (domination and intervention), thereby expanding the concept of employer under the Trade Union And Labor Relations Adjustment Act. The 2010 Supreme Court ruling (Hyundai Heavy Industries case) has since provided a legal basis for guaranteeing the three labor rights of indirectly employed workers in various disputes. Recently, the Supreme Court has further expanded the guarantee of the three labor rights through a ruling on the concept of workers under the Labor Union Act (tutoring teacher case) and a ruling recognizing the contractor’s duty to accept the exercise of collective action rights by workers belonging to the contractor in in-house subcontracting (Korea Water Resources Corporation case). The Supreme Court ruling (Samsung Electronics Service case) recognizing the unfair labor practice of the prime contractor by directly citing the Hyundai Heavy Industries case was recently pronounced. By the way, in relation to the collective bargaining obligation of the prime contractor, the lower court of the judgment subject to comment was judged according to a precedent based on the previous theory of the parties to the labor contract. The lower court's ruling held that the prime contractor's collective bargaining obligation was denied because it did not have an implied labor contractual relationship with the subcontractor's workers. On the other hand, the Labor Relations Commission recently ruled in the CJ Logistics case that the prime contractor, the courier company, is an employer who bears the collective bargaining obligation, based on the partial and overlapping user concept. There is a heated debate between academia and practice on this issue. The case subject to comment was appealed in 2018 and is currently pending appeal. In this case, it is expected that the Supreme Court will directly judge whether it is possible to expand the employer to the prime contractor as the counterparty of collective bargaining. The issue of whether or not the prime contractor recognizes the collective bargaining obligation is related to practical and theoretically important legal issues, such as the collective bargaining process and method, such as the unification of bargaining channels, the validity of collective agreements, and the prohibition of substitute work in case of industrial action. Therefore, a comprehensive review of this is required. We look at legal disputes and related cases regarding whether or not the prime minister recognizes the collective bargaining obligation and the criteria for judgment, and present opinions on the direction of solving the case subject to comment.