하청업체 노동조합의 단체교섭 상대방으로서의 원청사업주의 사용자성 —제조업에서의 최근 하급심판결과 중앙노동위원회 판정을 중심으로—

Recently, the Busan High Court ruled in the Hyundai Heavy Industries case and the National Labor Relations Commission(NLRC) ruled in the Hyundai Steel case. Both cases are cases in which labor unions of in-house subcontractors demanded collective bargaining from users of the contractor. The court denied the status of the original company's users as the counterparty to collective bargaining. However, the NLRC acknowledged that the users of the original company were the counterparties to collective bargaining. The NLRC determined that the contractor has substantial control power, and that the contractor and the in-house subcontractor determine the working conditions of workers belonging to the in-house subcontracting company together. However, there is a problem that the theory of substantial control power cannot be a clear criterion for judgment because the concept is too ambiguous. The theory of substantial control power cannot function properly as a criterion for determining the user's status as a counterparty to collective bargaining, and there is a concern that it seriously damages legal stability. In fact, in the case of Hyundai Steel, the NLRC misjudged the theory of substantial control power due to misunderstanding of the manufacturing process and the ‘MES’ system. We tried to create a standard of judgment that best fits the inter- pretation of the Korean Trade Union and Labor Relations Adjustment Act(TULRA) on whether it is an employer as a collective bargaining counterpart and minimizes errors in interpretation. The most basic principle is that it should basically be a party to a labor contract. In addition, we proposed four criteria : to be an employer as an agreement subject on working conditions, to be an employer who is obligated to pay wages, salaries, and equivalent money, to be a user who fulfills his(her) obligations under the Labor Relations Act, and to be a user who directs and manages work.