사내하도급에 있어서 원청의 사용자성 - 현대중공업 부당노동행위 사건을 중심으로 -

There has been a significant increase in subcontracting arrangements where employees of a provider enterprise perform work together within the same work places with employees of a third party to whom their employer provides labour or services. The subcontractors are usually smaller enterprisers with no economic entities. Triangular employment relationships occur in subcontracting arrangements. In such relationships, the workers' situation may be particularly precarious because it is not obvious who is in fact the employer responsible for unfair labor practice. The user enterprises often enter into a contract with subcontractors for the performance of work relating to their own activity with a view to evade legal obligations as regards the exercise of collective rights. Therefore, according to situations, a doctrine that the employer responsible for unfair labor practice should be limited just to the provider enterprises that hire workers may be inappropriate. A balanced and constructive approach to the question is required. In many cases the user enterprises as concealed employers practically determine the terms and conditions of employment of the subcontractors' workers. They interfere even with the subcontractors' workers to organize and manage the trade union. Therefore it's necessary to treat the user enterprise that benefits directly from the labour or services of the worker and actually dominate or influence conditions of employments as a party of unfair labor practice. The identity of employer in triangular employment relationships should be determined so that workers in such a relationship can enjoy the same level of protection traditionally provided by the law for workers in a bilateral employment relationships. In this point of a view, it's very important what decision the Supreme Court will make on Hyundai Heavy Industries Co. case under dispute.