원청사업주의 실질적 지배력 판단지표

The business network phenomenon in which the production and service organizations that were vertically integrated into a single company are divided into subcontracting relations is spreading. The labor-providing relationship is also changing from a two-sided labor-providing relationship to a multilateral labor-providing relationship. The Supreme Court recognized that the three constitutional labor rights are specific rights to be directly effective as legal norms, and from April 20, 2022, the ILO Convention 87 and 98 on freedom of unity became effective as treaties. The ILO Freedom of Association Committee recognizes the collective bargaining obligations of the prime-contractor with actual control. After The Korean National Labor Relations Commission(NLRC) recognized prime-contractor as an employer which is obligated to collectively negotiate under the Labor Union Act, The follow-up judgment of the NLRC, which recognizes the prime-contractor as the subject of unfair labor practices for refusing collective bargaining, continues to accumulate. Recently, as the administrative court accepted the ruling of NLRC in a lawsuit to cancel CJ Logistics' unfair labor practice relief, discussions on the collective bargaining obligations of prime-contractor with actual control have become active. The expansion of employer responsibility under the Labor Union Act of prime-contractor who has actual control is inevitable in interpretation and legislation. However, despite the need for employer responsibility under the Labor Union Act of the prime-contractor who has actual control, there are concerns that the criteria for determining control or influence, not labor contract relations, are unclear or too open to infringe on legal stability. This article is a theoretical basis for expanding the concept of the employer under the Labor Union Act, and studies based on the discussion structure of the legal principles proposed by the recent Supreme Court ruling to establish the criteria for judging the actual control of prime-contractor. I think that the key indicator in determining the actual control of the prime-contractor should be the element of ‘incorporation of business and workplace’. Actual control will be recognized as an element of “incorporation of business and workplace,”. The element of “command and supervision of work performance” will be meaningful as a criterion for determining whether or not to be dispatched illegally, but it will not be meaningful as a indicator for determining the actual control of the prime-contractor. If the “command and supervision of work performance” element, which is a key indicator of worker dispatch and determines the employment obligation of prime-contractor, is strictly applied, the concept of the employer under the Labor Union Act is limited to “labor contract relations” again.