원청은 하청노동조합의 단체교섭의 상대방으로서 사용자인가? - 택배노동조합사건에 대한 중앙노동위원회 판정 중노위 2021.6.2. 중앙2021부노14을 중심으로 -

In a case whereby the deliverymen’s labor union (“subcontractor”) demanded collective bargaining against the company (“contractor”), the National Labor Relations Commission (NLRC) cited “de facto governing” as a ground for judging the contractor an employer and thus a legitimate party in collective bargaining. This decision had significant repercussions because it raised a controversial issue: whether the legal principles behind the 2010 ruling of the Supreme Court, which expanded the notion of an employer for certain affairs (e.g., governing, intervention) among various forms of unfair labor practices, may be further expanded to judging the status of a contractor as an employer and a legitimate party in collective bargaining. According to the NLRC, in a case where a labor union consisting of subcontractors who lack either an explicit or an implicit labor contract with the contractor requests collective bargaining against the contractor, the contractor may be deemed an employer who is burdened with an obligation for collective bargaining, citing “de facto governing” as a legal ground. I argue that the contractor is not an employer or a legitimate party in collective bargaining against the subcontractors’ labor union, and this argument applies to the problems and criticisms surrounding the abovementioned NLRC case. First, identifying a legitimate party for collective bargaining means identifying a party that can collectively form or revise provisions of a labor contract through collective bargaining within a framework of collective autonomy. In comparison, identifying an “employer” in unfair labor practices―that is, a follower of a rule that bans unfair labor practices―means identifying a party that breached the rule of ensuring three basic labor rights or a fair labor–management relationship. An employer, according to the Trade Union And Labor Relations Adjustment Act, is a legitimate party in collective bargaining in principle, and they should be distinguished from an employer according to regulations on unfair labor practices. The abovementioned NLRC case fails to make this distinction, deeming an employer in collective bargaining and an employer in unfair labor practices the same. Another problem is that in identifying an employer as a legitimate party in collective bargaining, the NLRC expanded the notion of “de facto governing”―a legal ground for the H Heavy Industries case ruling―which saw the employers as inflictors of unfair labor practices, such as governing/intervention. Flawed logic is found in that the NLRC regarded the contractor as an employer and thus a legitimate party in collective bargaining despite the absence of a contractual relationship with the subcontractor, which is needed to be seen as an employer in collective bargaining. Furthermore, it is problematic that the NLRC only quoted a court ruling Supreme Court 2010. 3. 25. 2007du8881 that admitted the status of a contractor as an employer regarding unfair labor practices of governing/intervention while overlooking court rulings Supreme Court 2008.9.11. 2006da40935 and others that denied the status of a contractor as a legitimate party in collective bargaining when it recognized the contractor as a legitimate party in collective bargaining without making a distinction between an employer as a legitimate party in collective bargaining and an employer as an inflictor of an unfair labor practice. To establish grounds for such a decision, it is necessary to introduce Supreme Court rulings that have denied the status of a contractor as a legitimate party in collective bargaining and analyze them critically. Lacking such effort, the NLRC decision is an a priori judgment that exposes a bias stemming from distorted information. Lastly, the NLRC decision was made on the basis of “de facto governing,” and as such, it suffers from all the legal problems of that theory.