외주용역업체 변경시 고용승계관행에 관한 비판적 고찰 : 서울행정법원 2013.8.27. 선고 2012구합41905 판결을 중심으로

Abstract

When outsourced service providers is changed, whether employees working for old service providers succeed to new service providers is a matter of great importance to workers. Depending on the nature of the contract, the service contract is valid only for the parties to the contract. Therefore, all rights under the service contract are attributable to the contractor and the outsourced service provider. In order for non-contractual workers to directly claim job succession to or claim for sneezing, there must be an employment succession practice between the service provider and the workers and the labor practice must be recognized as law. The target judgment was conceived in the “practice of succession of employment” to recognize employment succession among new and old service providers without contract. However, the decision on the subject is not logically accurate and is insufficient in relation to the existence of a labor practice and the effect of a labor practice. Rather, in this case, the new interpretation of legalization seems reasonable, not the concept of business transfer under the Commercial Act but the concept of a project transfer that can promote speciality under the Labor Act in order to protect workers.