특수형태근로종사자의 노동3권 ― 어느 편에 설 것인가? ―

Since the late 20th century, the vertical disintegration of corporations and outsourcing have led to the ‘fissured workplace,’ resulting in the need for new interpretive frameworks in the realm of collective labour law, such as who will engage in collective bargaining with whom and to whom collective agreements will be binding. In this context, the Supreme Court declared in the decision of 2016Du32992 on September 3, 2020, that workers’ rights such as the right to organize, collective bargaining, and strike are subjective and so can be directly effective as legal norms solely under the provisions of the Constitution, even in the absence of legislation. Additionally, on April 20, 2021, the government ratified ILO Conventions No. 87 and 98. Therefore, the judiciary should apply these conventions as legal norms in its rulings. Therefore, in regulating collective labor relations with dependent contractors in the future, it is necessary to consider the changed normative environment, which includes the Supreme Court's ruling recognizing the subjective nature of workers’ rights and the government's ratification of the ILO fundamental conventions. So, the courts must discover laws that align to guarantee workers’ rights by taking the constitutional provisions and the provisions of the ILO fundamental conventions as direct legal sources. Meanwhile, the government has a legal obligation to respect the purpose of workers’ rights under the Constitution in enforcing laws. Improving the law to ensure maximum protection of workers’ rights under the Constitution is a task for the legislative branch.