CONTENTS
- 1. Non-Regular Workers | Responding to Dismissal and Unfair Treatment
- 2. Non-Regular Workers | Types and Characteristics of Non-Regular Workers
- - Use of Fixed-Term Workers
- - Use of Part-Time Workers
- - Use of Dispatched Workers
- 3. Non-Regular Workers | Restrictions on Dismissal of Workers
- 4. Non-Regular Workers | Prohibition of Discriminatory Treatment
- 5. Non-Regular Workers | Various Means of Remedy for Rights
- - Preparing Evidence from the Non-Regular Worker's Position
- - Points to Note from the Employer's Position
- 6. Non-Regular Workers | Employer Liability and Sanctions for Violations
1. Non-Regular Workers | Responding to Dismissal and Unfair Treatment
A non-regular worker is a worker who differs from a regular worker in working hours, contract period, type of employment, and other respects.
In Korea's labor market, there are various types of non-regular workers, including fixed-term, part-time, and dispatched workers.
Because there are many cases in which non-regular workers perform the same work as regular workers yet face discrimination in job security and treatment, laws such as the Labor Standards Act, the Act on the Protection of Fixed-term and Part-time Workers (hereinafter the 'Fixed-term Workers Act'), and the Act on the Protection of Dispatched Workers (hereinafter the 'Dispatch Act') have been established to protect them.
In practice, however, dismissals disguised as the expiration of the contract, unfair discrimination, and unpaid wages remain frequent for non-regular workers. Non-regular workers can respond to unfair situations only if they themselves are familiar with their contract terms and legal rights.
2. Non-Regular Workers | Types and Characteristics of Non-Regular Workers
A non-regular employment contract differs from regular employment in terms of contract period, working hours, and scope of work, but the status of being a worker itself is the same.
However, because non-regular workers are constantly exposed to job insecurity and the risk of discrimination, special legal protection is needed.
Fixed-term worker | -The employment contract period is fixed -Includes day laborers who enter into an employment contract on a daily basis and receive an hourly or daily wage -In principle, may not be employed for more than 2 years -If exceeded, deemed a worker on an open-ended contract |
Part-time worker | -Working hours are shorter than those of an ordinary worker -Overtime work may not exceed 12 hours per week -Additional wages are paid for overtime work |
Dispatched worker | -Employed by the dispatch business operator -Works under the direction and command of the actual using employer -Permitted occupations and permitted periods are restricted -A violation constitutes unlawful dispatch |
Worker in a special form of employment | -A worker with the characteristics of a self-employed person -Insurance solicitors, study-aid teachers, delivery drivers, golf course caddies, and the like |
Use of Fixed-Term Workers
The Fixed-term Workers Act applies to all workplaces that regularly employ 5 or more workers.
Under this Act, an employer may employ a fixed-term worker for a period not exceeding 2 years; however, in the following cases, an employer may employ a fixed-term worker for a period exceeding 2 years.
- Where a period is set as necessary for the completion of a project or a specific task
- Where a vacancy arises due to childcare leave or dispatch, to perform the work in place of the worker until the worker returns
- Where a period is set as necessary for the worker to complete studies or vocational training
- An employment contract concluded with an elderly person under the Act on Promotion of Employment for the Aged
- Where the use of specialized knowledge and skills is required
Use of Part-Time Workers
A part-time worker refers to a worker whose working hours are shorter than those of an ordinary worker, among non-regular workers.
A part-time worker, too, when required to work beyond the contractual working hours, may not work more than 12 hours per week.
In addition, at least 50% of ordinary wages must be added and paid for overtime work.
If an employer has a part-time worker perform overtime work in violation of the law, the employer may be subject to a fine of not more than 10 million won.
Use of Dispatched Workers
This is a structure in which a worker is employed by a dispatch company and works under the direction and orders of the using employer (the business that actually receives the labor).
Worker dispatch is, in principle, permitted only within the authorized job categories and period.
The using employer bears the obligations to take safety and health measures for the dispatched worker and not to discriminate in wages and working conditions.
The work for which worker dispatch is permitted is as follows, and one should note that there is work for which dispatch is absolutely prohibited.
[Work for Which Worker Dispatch Is Permitted]
- Specialists in computers, administration, management and finance, and patents
- Records keepers, librarians, translators, and interpreters
- Creative and performing artists, and specialists related to film, theater, and broadcasting
- Associate specialists in education other than regular education
- Collection and related clerical work, customer-related clerical work, and personal protection-related work
- Food preparation, travel guidance, gas station attendants, telemarketing workers, delivery and meter-reading workers, and the like
3. Non-Regular Workers | Restrictions on Dismissal of Workers
The Labor Standards Act applies equally even to non-regular workers.
An employer cannot dismiss a worker without justifiable reason, and the grounds for and timing of the dismissal must be notified in writing.
In particular, although a fixed-term worker's contract automatically terminates upon expiration of the contract period, under certain conditions a 'reasonable expectation of contract renewal' may be recognized.
Where renewal has been repeated, or where the dismissal is for a reason other than the expiration of the period, it may be subject to remedy for unfair dismissal.
A non-regular employment contract must be concluded in writing, and the employer must specify and deliver the working conditions in detail.
The employment contract must include the following matters.
4. Non-Regular Workers | Prohibition of Discriminatory Treatment
The fact that someone is a non-regular worker does not mean that, for the same work, the worker may be subject to discrimination without reasonable grounds compared with regular workers in wages (including bonuses), welfare benefits, education and training, and the like.
Article 8 of the Fixed-Term and Part-Time Workers Act provides that an employer shall not discriminate against fixed-term or part-time workers, and Article 21 of the Dispatch Workers Act likewise prohibits discrimination among workers performing identical or similar work.
In the event of discrimination, the affected worker may file a request for correction of discrimination with the Labor Relations Commission, and the employer must prove that the unfavorable treatment was not without justifiable reason.
In this case, the request for correction of discrimination must be filed within 6 months from the date on which the discrimination occurred.
In addition, an employer who subjects a worker to unfavorable treatment is liable to imprisonment for not more than 2 years or a fine of not more than 10 million won. Even if the person who commits the act is someone else, the employer may also be fined under the joint penalty provisions.
However, the following cases cannot be regarded as discriminatory treatment of non-regular workers.
- Wage differences arising from differences in job scope, work environment, and work intensity
- Payment of money or goods only to regular workers who hold job-related qualifications
- Cases where the period set by law is violated in the use of dispatched workers
- Cases of receiving dispatched workers from an unlicensed dispatch business operator
5. Non-Regular Workers | Various Means of Remedy for Rights
If a non-regular worker has suffered unfair dismissal or discrimination, they may respond through several procedures.
1. Ministry of Employment and Labor and the Labor Relations Commission
For failure to prepare an employment contract, unpaid wages, or unpaid severance pay, a complaint may be filed with the competent regional labor office to obtain a corrective order.
In addition, for discriminatory treatment, unfair dismissal, unfair transfer, and the like, an application for remedy may be filed with the Regional Labor Relations Commission.
The Labor Relations Commission may order reinstatement to the original position, payment of wages, and correction of discrimination, and where an employer fails to carry out a corrective order without justifiable reason, an administrative fine of up to 100 million won is imposed.
An employer may not dismiss a worker or subject them to unfavorable treatment merely on the ground that the worker has filed an application for correction of discriminatory treatment or has brought administrative litigation.
Investigation | Investigation into whether the employer's unfavorable treatment had reasonable grounds |
Examination | Examination of the investigation report and the parties' arguments, and holding of an examination and decision meeting |
Corrective order | Corrective order or decision of dismissal (if dissatisfied with the decision, reexamination by the National Labor Relations Commission or filing of administrative litigation) |
Confirmation | The confirmed order is carried out by the employer |
2. Civil litigation and criminal complaint
If you believe that a dismissal made under the pretext of contract expiration is unjust, you may pursue a lawsuit to confirm the nullity of the dismissal together with reinstatement to the original position and a wage claim.
Consolation money may also be claimed for the mental harm caused by the discrimination.
In addition, because the nonpayment of wages or severance pay is a violation of the Labor Standards Act, the employer may incur criminal liability.
Preparing Evidence from the Non-Regular Worker's Position
Non-regular workers should be sure to secure materials that can prove the contract period, the content of the work, the wage conditions, and the like.
To assert matters such as the expectation right to renewal and the correction of discriminatory treatment, comparative materials with regular workers (job specifications, wage statements, and differences in welfare benefits) should also be secured.
Points to Note from the Employer's Position
From the employer's perspective as well, to prevent disputes related to non-regular workers, a few rules should be observed.
- Thoroughly comply with the obligation to prepare a contract and deliver it in writing
- Clearly notify whether the contract will be renewed and the grounds for refusing renewal
- Eliminate unreasonable discrimination against regular workers performing identical or similar work
- When using dispatched workers, thoroughly manage the permitted occupations and periods
- Immediately carry out finalized decisions, such as corrective orders or direct employment orders from the Labor Relations Commission
6. Non-Regular Workers | Employer Liability and Sanctions for Violations
Non-regular workers are easily exposed to job insecurity and the risk of discrimination, but if one accurately understands the statutes and systems and prepares in practical terms, unfair treatment can be corrected.
One should carefully check the terms of the contract and, if they are unreasonable, immediately gather materials and learn how to protect one's rights through the Ministry of Employment and Labor, the Labor Relations Commission, and the court.
In particular, employers should pay even closer attention to the management of contracts and working conditions in order to prevent disputes and avoid legal liability.
If a non-regular worker is unfairly dismissed, the employer may not only face a burdensome lawsuit, such as one to confirm the invalidity of the dismissal, but may also become liable to pay an amount equivalent to wages for the dismissal period.
A violation of the prohibition on discriminatory treatment may also give rise not only to a corrective order from the Labor Relations Commission but also to civil liability for damages.
Non-regular workers are also under the basic protection of the Constitution and the Labor Standards Act.
However, if you are experiencing a legal dispute related to the treatment of non-regular workers, you may need the help of legal experts, such as a labor attorney or a labor law attorney.
This firm has labor law attorneys and labor attorneys work together to consider the matter jointly and provide an answer, so we suggest that you search for a nearby Daeryun branch office and seek a consultation.
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