다원적(多元的) 노사관계에서 단체교섭과 근로자파견

Abstract

This article examines an issue of the collective bargaining obligations of prime contractors in pluralistic industrial relations, which is currently a hotly debated topic in academia, as well as in the courts and the National Assembly. The conclusions of this article are as follows. First, if we pay attention to the phrase “in order to improve working conditions” in Article 33(1) of the Constitution of the Republic of Korea(hereafter ‘the Constitution’), collective bargaining to enhance working conditions has a normative meaning that ‘workers collectively form their working conditions’ on an equal footing with employers through a trade union. We can derive the concept of a functional employer from this provision, according to which an employer as a party of collective bargaining is, in principle, the employer who has the legal right to dispose of working conditions. Second, in the case of temporary agency work, according to the interpretation of Article 33(1) of the Constitution, subparagraph 1 of Article 2 of the Act on the Protection, etc. of Temporary Agency Workers(hereafter ‘the Temporary Agency Workers Act’) and Article 657 of the Civil Code, an employer who has the substantive right to dispose of all working conditions or specific working conditions such as working hours, recess, holidays, etc. must bear the obligation to bargain collectively in good faith with the trade union organised by or joined by the temporary agency workers on such working conditions. It is particularly important to note that there must be a contract, statutory provision or established labour practice that enables the principal employer to impose or determine certain working conditions unilaterally, regardless of the wishes of the employer with whom it has a contractual relationship. Third, based on temporary agency work, it is possible to derive a criterion that can also be applied to other pluralistic industrial relations, namely “an employer who has the right to dispose of all of working conditions or an employer who has the ‘substantive’ right to dispose of certain working conditions”. It is reasonable to assume that only employers who meet this criterion in a pluralistic industrial relations are employers within the meaning of Articles 29(1) and 81(1)3 of the Trade Union and Labor Relations Adjustment Act(hereafter ‘the Trade Union Act’). In relation to the right of substantive disposal, it is particularly important that there must be a contract, statutory provision or a established labor practice that enables the principal employer to achieve or determine certain working conditions unilaterally, irrespective of the intent of the employer with whom the employee has a employment relationship. Finally, based on the above interpretation, this article proposes an amendment to the Trade Union Act to make ‘substantive employer’, ‘joint collective bargaining’ and ‘joint collective agreement’ the core concepts.