원청회사의 하청노동조합에 대한 단체교섭 및 쟁의행위의 상대방으로서 사용자 여부와 대체근로 - 대상판결 : 대구지방법원 2021.8.11. 선고 2020노820 판결; 부산고등법원 2018. 11. 14. 선고 2018나53149 판결 -

Case 2 once again confirms that a user as a person directly concerned with the collective bargaining within a collective bargaining order called “collective autonomy” requires a certain labor contract relationship, so it must be determined whether a user is a person directly concerned with the collective bargaining or a main actor of unfair labor practice. Case 1 ruled that, in a relationship with its delivery workers who belong to local home-delievery agency called Jipbaejeom, home-delivery company which is the original contractor, corresponds to a “user” in Labor Union Act Article 43 Paragraph 1, a regulation that restricts substitute work in the case of a dispute act based on real dominance theory. The original contractor (i.e., the home delivery company) is interpreted to be a user as a counterpart of the dispute act of the subcontract labor union as well as a user who can form or change the working conditions through collective agreement as a person directly concerned with the collective bargaining. Then, the aforementioned argument that the original contractor is not a user as a counterpart of the collective bargaining of the subcontract labor union can be effectually applied to the problem and criticism of Case 1. Furthermore, in verifying the user as a counterpart of the dispute act (i.e., a person concerned with the collective bargaining), there is a serious problem of expanding and applying the real dominance theory; this was the basis of the argument in the H. Heavy Industries & Construction Holdings Co., Ltd. judgment (the Supreme Court 2010. 3. 25. Sentence 2007Du8881 Ruling), which refers to the user characteristic of being a main actor of unfair labor practice, including domination and interference. As pointed out above, it must be determined whether a user is a person directly concerned with collective bargaining or a main actor of unfair labor practice; then, a user as a person directly concerned with collective bargaining (or a counterpart of the dispute act) within the collective bargaining order of collective autonomy must possess a certain labor contract relationship. A logical vulnerability is found here: the original contractor, which is not in such a relationship, is nonetheless recognized as a user of collective bargaining (or a counterpart of the dispute act). Because the original contractor is not a user as a counterpart of the dispute act of the subcontract labor union, that is, a user where the restriction of substitute work is applied, there is no need to interpret the meaning of “those irrelevant to the current business” in Labor Union Act Article 43 Paragraph 1 as in Case 1. Surely, it is lawful for the home delivery company to use directly employed delivery drivers from other regions as a substitute workforce for home delivery work in regions where the dispute act occurred.