단체교섭의 상대방으로서 노동조합법상 사용자 개념 검토— 노동조합법상 근로자 개념의 대응개념으로서 노동조합법상 사용자 —

Abstract

Workers under the Labor Union Act are not limited to workers under the Labor Standards Act. Nevertheless, if the other party to collective bargaining is limited to the employer who is the other party to the labor contractual relationship, there will be a case where there is no other party to collective bargaining and the exercise of the three basic labor rights even though the union is established as a worker under the Trade Union Act. It is reasonable to understand employer as those who are in an adversarial relationship with workers under the Labor Union Act for the purpose of substantive guarantees of the three basic labor rights. Among the three basic labor rights, the right to collective bargaining is a fundamental right that requires the parties to negotiate on an equal footing on working conditions and labor provision conditions and conclude a collective agreement. Therefore, as the other party to collective bargaining, an employer under the Trade Union Act is considered to be an employer with substantial control and influence over the working conditions of workers under the Trade Union Act. On the other hand, unlike collective bargaining, which is related to the determination of specific working conditions, an employer under the Trade Union Act may be recognized as an employer when it comes to controlling or intervening in unfair labor practices, even if the employer does not have actual control or influence over working conditions, but merely has abstract control or influence over the trade union or the company to which the employee belongs. The JEI Corporation’s Teachers case is significant not only in terms of guaranteeing the right to organize, as it suggests that the concept of worker under the Trade Union Act should not be limited to the concept of worker under the Labor Standards Act. This case is significant in that it lays out the essential premise that the concept of three basic labor rights, including the right to organize, must be determined from the perspective of the need to guarantee them. After all, the expansion of the concept of the employer as a counterparty to collective bargaining is intertwined with the actual guarantee of the three basic labor rights for special form workers. Therefore, apart from the employer in the unfair labor practice of controlling and intervening, the employer under the Trade Union Act should be interpreted as an employer who exercises actual control or influence over the working conditions of the special form workers, at least as a counterparty to collective bargaining.