근로관계의 분열과 복수 사용자 —파견근로관계와 그 시사점—

Under the Labor Standards Act in Korea, the employers of temporary agency workers are both the temporary work agency and the user company. These entities share the functions of an employer. The worker enters into an employment contract with the temporary work agency. Then, through a legal contract on temporary placement of workers, part of the temporary work agency’s authority to control the worker is transferred to the user company, and the worker becomes subordinate to the user company. Therefore, the user company forms an employment relationship with the worker in terms of the scope of the employer rights that it has recieved. The temporary work agency and the user company are joint employers of the worker; however, they bear responsibility under the Labor Standards Act only within their functional domains. On the other hand, when applying the Labor Union Act, the temporary work agency and the user company must be considered as a single employer. This is because in order to improve the working conditions of temporary agency workers, the employment contract and the contract on temporary placement of workers must be adjusted at the same time. The working conditions of workers determined by each business owner are closely interconnected, and the process of collective bargaining involves coordinating all working conditions as a whole. Moreover, the concluded collective agreement must directly amend all relevent contents of contract. However, each joint employer can distribute their respective obligations in implementing the collective agreement, etc., and exercise their rights of indemnity against each other if necessary. Temporary placement of workers involves the lawful integration of workers into a third party's workplace to provide labor. Therefore, the analysis applied in temporary placement of workers can be extended to similar forms of labor provision, especially under the application of the Labor Union Act. Anyone who integrate workers into their workplace, excercise control over them, and utilize their labor should be considered as employer under the Labor Union Act.