도급사업에서 새로운 용역업체의 기존 용역업체 근로자들에 대한 고용승계의무의 의미와 한계 — 대법원 2021.4.29., 선고 2016두57045 판결과 관련하여 —

Abstract

Who is an employee in labor law? This is an ongoing question from the past to the present, and will continue into the future. The Constitution stipulates an employee, but it does not stipulate the employee concept, so its interpretation is inevitably subject to the annexed laws. Annaxed laws include the Labor Standards Act and the Trade Union Act. In addition, these laws set the concept of employees differently according to the purpose of their regulation. Accordingly, to interpret the concept of employee has no choice but to depend on the judgment of the court. Regarding the determination of employee concept, the court expands the scope by citing the ‘necessity to guarantee three labor rights’ as well as ‘economic dependency’. Recently, the court recognized employment succession on the grounds that there can an expectation that the contract for work is repeated and can be renewed between employees. This court ruling has the meaning of supplementing the inadequacies of the law, but it runs counter to the separation of the three powers. Therefore, it is necessary to exercise caution in making case law through the courts. Nonetheless, the court recently recognized employment succession on the grounds that the service contract could be expected to be repeated over and over again and renewed with the employees. One question is whether the agreement on employment succession is the same as the right to expect renewal in a fixed-term employment contract because the service work must continue between the new service company and the subcontract company even though the employees have signed a labor contract with the former service company. Since the existing service company entered into a labor contract with the workers to perform the service work, the employer of the workers performing the service work becomes the former service company. Due to the specificity of the service business, the court judges that even if the service company is changed, the employment must be succeeded, and the reason is that the new service company has agreed to the employment succession. However, it is not reasonable for workers to take over employment even though they have not signed a labor contract with a new service company. The agreement between the subcontract company and the new service company to take over the employment of workers belonging to the former service company is the ‘Contract in Favour of Third Person’. This is because the purpose of a new service company to succeed the employment of former employees is to require experienced workers. This is because it is more efficient for a new service company to utilize the employees of an former service company with a lot of experience in performing service work. The other party that workers belonging to the existing service company can insist on renewing the labor contract is the subcontractor or the existing service company. In order to guarantee the employment of the employees of the existing service company, after acknowledging the contractor as an employer, it is reasonable to claim employment succession on the grounds that the new service company has agreed to the employment succession of the employees of the former service company. Therefore, the High Court's ruling is more persuasive, which judged that the agreement between the contractor and the new service company on the employment succession of the employees of the former service company as the ‘Contract in Favour of Third Person’ due to the specificity of the service work.