사내하도급 삼부작 판결의 의의

Abstract

The phenomenon, “indirect employment” or “on-site subcontracting” that is not described in legally, has increased rapidly in recent years. The aim of this paper is to review the legal meanings of recent cases related to on-site subcontracting in the Supreme Court; “The Hyundai Mipo dockyard Inc. case (Mipo case)”, “The Yescos Inc. case(Yescos case)” and “The Hyundai heavy Industries Inc. case(Heavy Indsitries case). On the one hand, these cases have several common denominator including to start at indirect employment relationship base, on the other hand, each one of these has distinct legal characteristics. For these reasons, I examined these cases commonly and relatively, and named these three decisions as “on-site subcontracting trilogy”. AT the first case(Mipo case), the Supreme Court reconfirmed its position of “implied employment relationship principle” for the employment status of workers of on-site subcontracting company. The court have held that on-site subcontracting worker could be an employee of using company, regardless of formal contract, if the reality of hiring employer would be that of paper company and using company would have control over on-site subcontracting worker's services. The court represented the opinion of legal effect that the on-site subcontracting could be considered to temporary agency work in the “the temporary agency workers (protection) act(TAWA)” in the Yescos case. The main purpose of this case is to bring a on-site subcontracting over to temporary agency, but more important thing is that it found some solutions over the illegal temporary agency work. For this, the court took a theoretical approach to TAWA, particularly about the section 6, providing the obligation of employment for employer on using company. Finally, in the Heavy Industries case, the court dealt with the concept of employer on indirect employment concerning with collective bargaining. The court ruling in this case took a stance that it was up to “who is the substantial counterpart related to collective bargaining? ”, that had been discussed from a different point of view on the judical precedents. The court also held that it is possible to be reiteration of employer in on-site subcontracting, then the order for unfair labor practice in the circumstances could be contained some wide variety with felicity.