개정 노조법 제2조 제2호 시행의 쟁점과 과제 ― 실질적 지배력의 판단기준과 창구단일화 절차의 적용 문제를 중심으로 ―

초록

The recent amendment to Article 2 of the Trade Union and Labor Relations Adjustment Act (“TULRAA”) expands the definition of “employer” to reflect the reality of multi-layered labor structures. By codifying the principle that “responsibility lies where substantial power exists.” the amendment imposes collective bargaining obligations on principal contractors who exercise substantial and specific control (“SSC”) over subcontracted workers' conditions, even in the absence of direct employment agreements. This paper critically examines the interpretation of SSC and the applicability of the “single bargaining window” procedure. It argues that existing judicial criteria are often circular or conflated with indicators of illegal dispatch. To address this, the paper proposes three distinct criteria for determining employer status: (1) structural control over the determination of working conditions (e.g., determination of the labor cost budget), (2) organizational incorporation or systemic control through business processes (e.g., supply chain management systems), and (3) substantial status as a bargaining party capable of practically resolving disputes. Furthermore, the paper addresses the procedural controversy regarding the “single bargaining unit rule” It supports the “No Necessity of the procedure” arguing that requiring subcontracted unions to unify bargaining channels with the principal’s regular employees or other subcontractors is logically inconsistent and infringes upon the constitutional right to collective bargaining. The paper concludes that establishing a new bargaining order requires recognizing the principal contractor as a “partial employer” within the scope of their control, thereby ensuring practical relief and substantive bargaining rights for subcontracted workers.

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