A system to redress discrimination based on the laws on protection of non-regular workers will apply to workplaces with 100 to 299 employees from July 1, 2008. The following is a summarized translation of a report of the Ministry of Labor.
Concept of the discrimination redress system
The discrimination redress system was newly introduced under the Act on Protection of Fixed-term and Part-time Employees (hereinafter referred to as ‘fixed-term employees act’) and the Act on Protection of Dispatched Workers (hereinafter referred to as ‘dispatched workers act’).
The system prohibits employers from treating non-regular workers (a worker with a fixed-term contract, a part-time worker and a dispatched workers) disadvantageously compared to regular workers (a permanent worker, a full-time worker and a directly hired worker) over wage and other working conditions without a rational reason. The system also includes a redress procedure for discriminatory treatment involving the Labor Relations Commission.
The system does not compel an employer to equally treat regular and non-regular workers in terms of all conditions of work, but only bans a disadvantageous treatment with no rational reason. In other words, a differential treatment for non-regular workers is permitted when there is a rational reason such as differences in productivity and skills.
Redress procedure only applicable to discrimination after the enforcement of laws
A worker should request a redress of discriminatory treatment only for a treatment that happened after the enforcement of the laws for his workplace. The laws do not retroactively apply to discrimination that took place before the enforcement of the laws.
Enforcement schedule of the redress system
Business or workplaces with 300 workers or more/ the state or local government agencies (public sector): July 1,2007
Businesses or workplaces with 100 to 299 workers: July 1, 2008
Businesses or workplaces with less than 100 workers: July 1, 2009
Businesses or workplaces with less than 5 workers: Exempt
How to calculate the number of employees for the enforcement schedule
For the calculation of the number of employees for the above schedule, all workers that are directly hired by a company including regular, daily-hire, part-time, fixed-term, and foreign workers should be included but workers that are not directly hired by a company such as in-house subcontract workers and dispatched workers be excluded.
Discrimination redress system for fixed-term and part-time workers
Who can apply for redress of discrimination?
To apply for the redress, he/she should be (1) a worker under the labor standards act and (2) a fixed-term or a part-time worker.
Who is banned from making discriminatory treatment?
A person who is banned from giving discriminatory treatment is an employer.
Although the act uses the same term “employer”, a distinction should be made between an “employer” who should not give discriminatory treatment and an “employer” who is a party involved in the redress procedure and has a duty to comply with a redress order.
An employer in the first category means an “employer under the labor standards act”, that is, a business owner or a person responsible for management of a business or a person who works on behalf of a business owner with respect to matters relating to workers.
Therefore, those who should not give discriminatory treatment are not only a business owner who hired a fixed-term or part-time worker but also persons who were given responsibility and authority by a business owner to determine working conditions such as wage and hours of work or to command or supervise workers for the interest of a business owner. In addition to a business owner, a chief of a sale office, a branch chief, a factory chief and a person in charge of personnel management may fall under this category of employer.
An employer in the second category is restricted to a business owner or a legal person depending upon the nature of a company.
Wage and other working conditions for which discrimination is prohibited
The scope of ‘wage and other working conditions’ comprises (1) working conditions regulated by the Labor Standards Act and (2) working conditions determined by collective bargaining agreement, rules of employment, and labor contract. These include wage, working hours, holidays, leaves, safety and health, and industrial accident compensation. If a certain matter is not included in collective bargaining agreement, rules of employment, and labor contract as a working condition, it cannot be considered as ‘wage and other working conditions’ for which discrimination is prohibited. Consequently, application for discrimination redress cannot be made for such matter.
Comparison with regular workers
To determine whether a discrimination was made against a fixed-term or part-time workers, there should be regular workers available for comparison.
Workers to compare with a fixed-term worker are those who are engaged in the same or similar jobs under a labor contract without a fixed term in the business or workplace concerned. Workers to compare with a part-time worker are full-time workers that are engaged in the same or similar jobs in the business or workplace concerned.
Disadvantageous treatment
‘Disadvantageous treatment’ means that a fixed-term or part-time worker is getting unfavorable treatment in terms of wage and working conditions compared to regular workers.
In determining whether there was disadvantageous treatment, , it is a principle to judge on the basis of comparison of detailed items of wage and working conditions of regular workers with corresponding items of those for a fixed-term or part-time worker.
Rational reason
Disadvantageous treatment and discriminatory treatment are distinct. If an employer has a rational reason in treating a fixed-term or part-time worker in a disadvantageous manner compared to regular workers, such disadvantageous treatment is justified and does not constitute discriminatory treatment. In other words, discriminatory treatment is disadvantageous treatment without a rational reason.
Procedure of discrimination redress
Application for a redress of discriminatory treatment should be made within three months from the day when the discriminatory treatment occurred. When the three months elapse, a worker’s right to apply for redress expires and therefore application made after the three months is dismissed.
Investigation, inquiry, and the burden of proof
Upon receiving the redress application, the Regional Labor Relations Commission conducts necessary investigation and inquiry into related parties without delay.
As the burden of proof falls on employers with regard to disputes relating to discriminatory treatment, he/she should prove one the following points.
– A worker cannot apply for the redress as he is not a non-regular worker.
– There are no regular worker for comparison or selection of workers for comparison was wrong.
– There was no disadvantageous treatment.
– Disadvantageous treatment had a rational reason.
Mediation and Arbitration
The Regional Labor Relations Commission can commence mediation procedures at the request of both or either of the parties concerned or by virtue of its authority during the inquiry. If the related parties file for arbitration as a result of their agreement to follow an arbitration decision taken by the Labor Relations Commission, the Commission can conduct arbitration.
The medication or arbitration should be filed within 14 days of the date on which an application was made to redress discriminatory treatments.
The mediation or arbitration decision has the same effect as conciliation reached in the courts in accordance with the Civil Procedure Act.
Decision
The Labor Relations Commission, if it judges that the treatments in question are discriminatory after ending the investigation and inquiry, issues a redress order to the employer. If it judges that the treatments in questions are not discriminatory, it makes a decision to dismiss the application for a redress.
The contents of the mediation or arbitration or of the redress order may include ‘suspending discriminatory actions, improving working conditions, such as wages, and making adequate monetary compensation’.
Objection to redress order
If a party challenges a redress order or dismissal decision by the Regional Labor Relations Commission, the party may apply for review to the Central Labor Relations Commission within 10 days of receiving the notice of the redress order or dismissal decision.
If a party objects to a review decision made by the Central Labor Relations Commission, the party may bring an administrative lawsuit against the decision within 15 days of receiving the notice of the review decision.
Measures to enforce a redress order
The minister of labor can impose by a fine for negligence not exceeding 100 million won to a person who fails to comply with the final redress order confirmed without any justifiable reason.
The Minister of Labor also can require employers to submit a status report on compliance with the confirmed redress order. A fine for negligence not exceeding five million won is imposed upon a person who fails to comply with the demand of the Minister of Labor to submit a status report without any justifiable reason.