개정 노동조합 및 노동관계조정법 제2조와 제3조의 평가 및 과제

The amendment to the Trade Union Act, which amended only the definitional provisions, creates a legal systemic problem of inconsistency with the provisions of the Memorandum of the Trade Union Act. Changing only the concepts of employer and labor dispute in the definition of Article 2, which corresponds to the general provisions of the Trade Union Act, does not automatically change the various provisions in the Memorandum of the Trade Union Act. The revised law does not amend the relevant statutory provisions, which means that until the law is amended, legal instability is inherent in the current legal system. Regarding the expansion of the scope of employers, the revision of the definition of "those who are in a position to control and decide in a substantial and concrete manner" cannot fully fulfill the function of providing standards and predictability of the law and is useless as a definition, so it is proposed to return to the existing law or, if that is not possible, to revise the law, such as including a component label that specifies the concept of substantial control in the regulations or delegating it to the Enforcement Decree. In addition, regarding the bargaining agenda, it is necessary to amend the revised regulations to clarify that the bargaining obligation for core working conditions such as wages and personnel should be attributed to the subcontractor as the employer, and the bargaining obligation of the prime contractor should be limited to the areas under the prime contractor's management and supervision due to the nature of the contractor-subcontractor relationship, such as working hours, safety and health, and workplace benefits. With regard to the initiation of the bargaining window unification process and determination of bargaining units, the revised Labor Law is not ready at all, causing confusion in interpretation and application, and it is necessary to supplement or amend the Labor Law to clarify the legal basis for the bargaining process and method. If the “substantial and specific control and decision-making position” of the principal employer over the subcontracted workers is recognized, confusion may arise regarding the interpretation of “persons not related to the business” in Article 43 of the Labor Union Act. Therefore, supplementary legislation to Article 43(2) of the Labor-Management Relations Act is necessary to eliminate confusion in interpretation, i.e., the legality of substitute work, and confusion in application, i.e., criminal penalties. The amendment's exemption for “damages incurred by the employer in order to defend the interests of the trade union or workers against illegal acts” may be contrary to the principle of the rule of law, which strictly prohibits self-help remedies. In addition, the concept of defense or rights protection is abstract, and other legal disputes related to it are highly likely to arise. Considering these points, we believe that the provision on counterclaims such as user torts is highly problematic, including unconstitutionality. Through a detailed analysis of the concept of the revised definition, it is recommended to revise the definition if it is flawed, and to closely examine the various laws and regulations of the Memorandum of Understanding that are directly related to the revision of the definition, and to supplement or modify them if there are any, in order to prevent the destruction and disruption of the ecosystem of labor relations.