다층적 고용구조에서의 노동조합법상 사용자 — 단체교섭 의무를 중심으로 —

The article examines the question of who should be considered the legal employer in triangular employment relationships under the Trade Union Act in Korea. In an economy where employment relationships are increasingly complex and technology is rapidly advancing, it is necessary to recognize those who are behind the employer but have control over the worker as employers. An employer's control is defined as the degree of economic and organizational dependence on the worker, and the ability to determine or influence the terms and conditions of employment, even though not specifically directing or supervising them, for his or her own benefit. Such control can be exercised by the worker's employer, labor contractor, or even de facto if the user firm in triangular employment relationships has a substantial influence over the worker. Therefore, anyone would be considered employers under the Trade Union Act, if it share or codetermine those matters governing worker’s essential terms and conditions of employment. This means that the employer is the one who bears the obligation to collectively bargain, especially multiemployer bargaining. And an unfair labor practice is committed, if he breaches this duty. The collective bargaining is a way to achieve the constitutional goal of improving the working conditions of workers. Allowing multiemployer bargaining between workers and those who control them is consistent with justice and equity because it reflects today's labor realities and allows collective bargaining as an opportunity to improve the working conditions of workers who need substantial protection.