다면적 근로관계의 판단 기준

Before the enactment of the Act on Protections for Temporary Agency Workers (APTAW) in 1998, triangular employment relationships were prohibited in principle in the South Korea. The only exception was in the case where trade unions provided their members to user- enterprises. Since 1998, however, temporary agency work has been legitimated under certain conditions by APTAW. Temporary agency work is allowed in the case of 197 different job categories, including work requiring expert knowledge, technology and experience, for a maximum of two years. Otherwise, temporary agency work is allowed only where a temporary need for workers arises due to pregnancy, disease or injury of employees for a maximum of six months. Under the APTAW, a temporary employment agency is party to the employment contract with a worker and takes legal responsibility for workers’ entitlements such as wages and social insurances. At the same time, the APTAW states that a user-enterprises takes legal responsibility for workers’ rights such as working hours, holidays and occupational health and safety. However, under the guise of ‘subcontracting’, illegal temporary agency work is prevalent in all industries for several decades. By using a contractual form of subcontracting, user-enterprises use the excuse that they are not legal employers and thus do not hold themselves responsible for workers who in fact are working for them. Although a temporary employment agency or a subcontractor is an employer in the first place, a user-enterprise should be responsible for the rights of a worker who provides labour under the control of a user-enterprise. Therefore, debate in Korea has centred on the question of who is responsible for a worker’s rights if a temporary agency worker has been provided illegally. Under the APTAW, a temporary agency worker should be employed directly by a user enterprise, where the worker has worked longer than two years. This article analyzes what criteria should be developed for establishing a triangular employment relationshp with a view to realizing the employer liability as above mentioned. The joint guidelines of the Ministry of Labour & Employment and the Prosecution focus on whether an user-enterprise solely direct or control provider's employees or not. In comparison with that, The Supreme Court ruled that in-company subcontracting fell into illegal agency work at the Hyundai Motors, by analyzing the nature of jobs done by subcontracted workers in relation with jobs done by employees of the user-company. Reviewing the judicial precedents, this article develops criteria and factors for establishing a triangular employment relationship with the case of subcontracting at the Samsung Electronics Service. This case study suggests the context and degree of relation between work by agency workers and the business of an user-employer should be focused, in addition to employers' control criterion.