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노동조합법상 근로자를 판단하는 판례의 기준

Title
노동조합법상 근로자를 판단하는 판례의 기준
Other Titles
New case law for determining an employee under the Trade Union Act
Author
강성태
Keywords
노동조합법상 근로자; 학습지교사 판결; 방송연기자 판결; 매점운영자 판결; 카마스터 판결; 경제적・조직적 종속관계; 노동3권의 보호 필요성; an employee under the Trade Union Act; Workbook tutors case; Television actors case; Railway food stall operators case; Car masters case; Economic and organizational dependency; necessity of guaranteeing the basic labor rights
Issue Date
2019-12
Publisher
한국노동법학회
Citation
노동법학, No. 72, Page. 81-114
Abstract
Since 2018, very important achievement has been made in the field of case law concerning with the scope of employees under the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”). This paper aims to introduce and review a legal meaning of four Supreme Court decisions after June, 2018; Workbook tutors case, Supreme Court Decision 2014Du12598, 12604, June 15, 2018; Television Actors case, Supreme Court Decision 2015Du38092, Oct. 12, 2018; Railway food stall operators case, Supreme Court Decision 2016Du41361, Feb. 13, 2019; Car masters case, Supreme Court en banc Decision 2019Du33712, Jun. 13, 2019. Subparagraph 1 of Article 2 of the Trade Union Act defines an “employee” as “any person who lives on wages, a salary, or any other income equivalent thereto, regardless of the person's occupation”. In four cases above, Supreme Court introduced a new test as followings when we should decide whether a worker may be deemed an “employee” as prescribed by the Trade Union Act: (i) whether a worker’s source of income is mainly dependent on a specific employer; (ii) whether an employer unilaterally decides the terms of a contract, including wage, that it concludes with a worker who provides the necessary labor; (iii) whether a worker gains market access by way of providing the essential labor to perform an employer’s business; (iv) whether the legal relationship between a worker and an employer is of a substantially continuous and exclusive nature; (v) whether there exists a certain degree of supervisory/managerial relationship between an employer and a worker; and (vi) whether income, such as wage or salary, that a worker receives from his/her employer is a consideration for provision of labor. The new test constructed by four Supreme Court decisions also have emphasized the importance of the perspective of the need to guarantee the freedom of association as followings; the purpose of the Trade Union Act is to improve working conditions and enhancing an employee’s economic and social status through guaranteeing an employee’s basic labor rights, which are a right to organize, a right to bargaining collectively and a right to strike, as prescribed by the Constitution. In view of the Trade Union Act’s legislative purpose and definition of worker, whether a person may be deemed an “employee” under the same Act should be determined from the perspective of the need to guarantee these labor rights. In workbook tutors case, the Supreme Court also added an explanation of economic and organizational dependency of workers concerned. These four decisions has made so dramatic reform in determining an employee of the Trade Union Act that many dependent self-employed workers would be recognized as employees under the Trade Union Act
URI
https://www.kci.go.kr/kciportal/ci/sereArticleSearch/ciSereArtiView.kci?sereArticleSearchBean.artiId=ART002531249https://repository.hanyang.ac.kr/handle/20.500.11754/158121
ISSN
1229-2141
Appears in Collections:
SCHOOL OF LAW[S](법학전문대학원) > Hanyang University Law School(법학전문대학원) > Articles
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