공공기관 모-자회사 관계에서 모회사의 노조법상 사용자성 검토

After the government's announcement of the Guidelines for converting non-regular workers in the public sector into regular workers, indirectly-employed non-regular workers, who were originally affiliated with subcontractors, became not directly employed by their parent companies, but by subsidiaries which were hurriedly established only for the purpose. However, such subsidiaries are found not to be inherently different from previous subcontractors in terms of their independence from the parent company and the expertise of the subsidiaries themselves, resulting in the problem of ‘finding the real employer’ in indirect employment relationship. The government have tried to sove the problem by presenting a desirable subsidiary model, but it also poses the problem of ordering subsidiaries to simultaneously retain the contratictory features in their relationships with the parent companies. This article examined the legal problems found in the relationship between public institutions(which hold the position of parent companies) and their subsidiaries before and after the Guidelines, and claimed that the foundation for solving such problems lies in the recognition of employer status of parent companies. The principle of de facto control and joint employer are presented as primary legal basis for the purpose, and for the establishment of the collective bargaining structure between the parent companies and subsidiary unions. In light of such principle, the likelihood of the parent company being recognized as employer is much higher in the parent-subsidiary relationship than in the subcontractual relationship in terms of the degree of personal and structual integration, incorporation of subsidiaries into the parent companies’ business, independence of subsidiaries, and influence of parent companies in determining working conditoins of the employees of subsidiaries. If the parent company is recognized as such, it shall have an obligation of employer in collective bargaining jointly with the subsidiary, at least within the extent of its de facto control. The labor legal issues observed in the parent-subridiary relationship before and after the Guideline can be resolved initially through the establishment of the collective bargaining structure, which is the first step toward realizing the constitutional labor rights of subsidiary workers. It also conforms to the principle of labor law that those who gain profits from controlling the business should bear the corresponding responsibility.