원청사업주의 단체교섭의무와 실질적 지배력 판단기준 및 교섭사항

Indirect employment has been prevalent in the workplace for a long time. Labor law scholars have continued to argue that third parties (primary contractors, etc.) who actually control and determine working conditions of indirectly employed workers should assume employer responsibility under the Labor Union Act in order to improve the labor conditions of indirectly employed workers. In 2010, the Supreme Court ruled third parties(primary contractors) with actual control as employers under the Labor Union Act and also ruled unfair labor practices through control or intervention(Hyundai Heavy Industries case). Meanwhile, there was a recent case where the National Labor Relations Commission and the court recognized third parties(primary contractors, etc.) with actual control as employers under the Labor Union Act in an unfair labor practice case of refusal to collective bargaining(in 2021-2024, a representative case is the CJ Express case). And the Supreme Court's full bench is currently reviewing an unfair labor practice case of refusal to collective bargaining(another Hyundai Heavy Industries case). While anticipating a Supreme Court's full bench ruling that recognizes employer responsibility under the Labor Union Act for third parties who actually control and determine the labor conditions of indirectly employed workers, this article focuses on two issues. First, through recent cases where a third party(primary contractors, etc.) with actual control was recognized as an employer under the Labor Union Act, this is a review of the specific criteria for determining actual control in relation to collective bargaining matters when indirectly employed workers and the third party engage in collective bargaining. Second, through the interpretation of the Constitution and the Labor Union Act, this is a review of what the objects of collective bargaining is subject to collective bargaining obligations by the third party with actual control, how the objects of collective bargaining should be distributed between the third party(primary contractors, etc.) with actual control and the direct employer, and whether collective bargaining can be conducted independently.