A Study on the Right to Collective Bargaining for Indirect Employment Workers in the Context of the Korean Constitutionalism

The basic system of labor law, which has traditionally been formed around direct employment, is being called for a major transformation due to the impact of rapid social changes, such as the advent of the information society. Above all, South Korea's labor legislation and labor case law are excessively inclined toward the modern civil law system based on individualism, and the paradigm of traditional collective labor relations law needs to be innovated in accordance with the pluralistic nature of the Korean Constitution, which calls for democratization in all areas of life, including politics, economy, society, and culture. The economic constitution of the current constitution, which is led by the economic democratization clause, is establishing a pluralistic democratic welfare state economic order, and the fundamental labor rights such as the right to work and the three labor rights form the central axis of this economic order. In order for these labor rights to effectively embody human dignity and substantive equality, it is necessary to guarantee labor relations in which workers with weak social bargaining power, who need protection, are recognized as having equal social bargaining power with employers in various forms of indirect employment, such as special types of employment or temporary labor, rather than direct employment based on typical employment contracts, in order to democratize the economy through harmony between economic entities. Against the background of the pluralistic democratic welfare state economic order of the Korean Constitution, this article attempts to provide an alternative interpretation of the basic nature and structure of the right to collective bargaining, with a particular focus on the qualifications and scope of workers who can exercise this right, and the corresponding scope of employers who are obliged to accept the bargaining demand of this expanded scope of workers. Two main arguments will be at the heart of this attempt at clarification. Firstly, it is argued that all workers who are 'vulnerable' or 'in need of social protection' in industrial relations will be able to secure the status of eligible party of collective bargaining rights. Secondly, it is also argued that even in the absence of specific individual legislation, the holder of collective bargaining rights can demand that the employer, who has a substantial and specific relationship of domination and decision, which is recognised by the Constitution itself as a need for social protection, respond to collective bargaining, and the employer is obliged to respond within the conditions and scope of such substantiality and specificity.