단체교섭에 있어서 원청의 사용자성에 관한 연구(Ⅱ) — CJ대한통운 2심판결(서울고등법원 2024. 1. 24. 선고 2023누34646 판결)을 중심으로 —

Abstract

Legal disputes on whether to recognize the primary contractor as the employer of a subcontractor’s labor union are ongoing, and many discussions on this topic are taking place. Although division of labor for production through subcontracting is widely and universally used in industrial activities, no law governing collective labor-management relations between the primary contractor and the subcontractor’s labor union exists. In this backdrop, the Korean courts’ tendency to hastily determine the relations at issue is problematic, having negative ripple effects on the industry and stakeholders of industrial activities. In this study, focusing on the recent judgment made for the second instance of CJ logistics 2nd Trial Court Judgment, issues surrounding the recognition of the primary contractor's status as a party to collective bargaining with the subcontractor’s labor union are examined. The ruling entailed many errors in its methodology used for legal interpretation and citation of the rulings made in the precedents. Therefore, such errors led to unfair conclusions. First, the court abused ‘de facto control’ to achieve the purpose of improving the working conditions of subcontracted workers without clearly defining it in legalese. Second, the court ignored the general principles of legal text interpretation, which is beyond the authority of judges in law formation. Third, ignoring the provisions governing collective bargaining and collective agreement in the Constitution and the system of the Union Act, the ruling drew an unfair conclusion that the right to collective bargaining per se does exist. Lastly, while regarding the employers as simply someone in a position that infringe upon the three labor rights, the ruling overlooked the fact that they are engaged in establishing labor contract relationships and improving working conditions. In short, even though the specific content and scope of the primary contract employer’s obligation to engage in collective bargaining are yet to be clearly defined in the law, the ruling arbitrarily expanded what such obligation entails. This is raises concerns as the ruling’s interpretation may infringe upon the constitutional rights of other stakeholders and cause disputes in collective labor-management relations.