CONTENTS
- 1. The Occupational Safety and Health Act | The Employer's Duty to Be Familiar With the Occupational Safety and Health Act
- 2. The Occupational Safety and Health Act | Key Concepts and Employer Risks Under the Act
- - The Safety and Health Management System, the Employer's Substantive Duty
- - Duties of the Safety and Health Manager
- 3. The Occupational Safety and Health Act | Measures to Prevent Hazards and Risks, and Disadvantages of Violation
- - Recognition of and Response to Occupational Disease
- - Duty to Manage Hazardous and Dangerous Machinery and Substances
- 4. The Occupational Safety and Health Act | Management of the Contracting and Prime-Subcontractor Structure
- - Construction Sites, and the Obligations of the Ordering Party and the Contractor
- 5. The Occupational Safety and Health Act | Industrial Accident Prevention for Special Forms of Employment
- - New Provisions for the Protection of Delivery Workers
- - Codification of Safety and Health Responsibility in the Franchise Business Structure
- 6. The Occupational Safety and Health Act | Punishment for Violation and Corporate Response
- - Sentencing Guidelines for Criminal Punishment of Violations of the Occupational Safety and Health Act
- 7. The Occupational Safety and Health Act | The Importance of Retaining an Attorney in Responding
1. The Occupational Safety and Health Act | The Employer's Duty to Be Familiar With the Occupational Safety and Health Act
The Occupational Safety and Health Act is a representative worker protection statute enacted to protect the lives and bodies of workers at industrial sites.
This Act is a protective device for workers and at the same time functions as a standard that creates direct and indirect legal liability for employers, including safety and health management obligations and, when an industrial accident occurs, criminal punishment, penalty surcharges, and administrative disposition.
After its enactment, the Act has undergone several amendments, and the safety and health standards have been strengthened in line with changes in industrial structure. Recently, it has become closely connected with the Serious Accidents Punishment Act, and the employer's safety and health obligations have become even stricter.
Its scope of application includes workplaces of all industries and sizes, as well as contracting sites with a prime contractor and subcontractor structure.
An employer can prevent unnecessary administrative sanctions and criminal punishment only by accurately understanding the statutes related to the Occupational Safety and Health Act and strengthening the internal safety and health management system.
2. The Occupational Safety and Health Act | Key Concepts and Employer Risks Under the Act
Under the statute, an ‘occupational accident’ refers to any accident in which a worker suffers an injury, disease, disability, or death in connection with work.
If this concept is recognized, the employer may bear civil liability for damages in addition to the payment of insurance benefits under the Industrial Accident Compensation Insurance Act.
In addition, a disability refers to a state in which physical or mental working capacity has been reduced even after an injury or disease has healed, and a claim for damages against the employer becomes possible even after industrial accident insurance has been paid.
The Safety and Health Management System, the Employer's Substantive Duty
The Occupational Safety and Health Act requires all employers to establish a safety and health management system.
The core elements are designating a safety and health manager, conducting risk assessments, carrying out regular inspections and improvement measures, and providing safety and health education for workers.
When workers become aware of a dangerous situation during work, they may immediately notify the manager and request correction.
If such a report and request for correction are ignored, in the event of an accident this leads directly to the employer's negligence and may result in criminal liability.
In addition, even if a worker has suspended work on their own initiative on the grounds of a risk of an industrial accident, the employer must not dismiss the worker or impose unfavorable treatment.
Duties of the Safety and Health Manager
The employer must enable the manager who actually oversees the workplace to comprehensively manage matters such as establishing the workplace's industrial accident prevention plan, preparing and amending the safety and health management regulations and providing education, inspecting and improving work environment measurement, conducting workers' health examinations, and investigating the causes of industrial accidents and establishing measures to prevent recurrence.
[Practical Risk Management Points]
- Conducting regular and ad hoc safety education and keeping records
- Keeping risk assessment materials for each task up to date
- Maintaining the contact network for the safety and health manager and supervisors
- Operating a prompt reporting system when an accident occurs
3. The Occupational Safety and Health Act | Measures to Prevent Hazards and Risks, and Disadvantages of Violation
Employers have a duty to manage hazardous and risky factors such as machinery, equipment, and chemical substances.
- Regular inspection of machinery and equipment and installation of protective devices
- Conducting risk assessments and posting safety and health signs
- Installing ventilation systems to prevent health impairment, and preventing corrosion and leaks
- Providing and educating on the MSDS (material safety data sheet) when handling chemical substances
- Providing protective gear and operating rest facilities during work in high or cold temperatures and during heat waves or cold waves
Failure to conduct a risk assessment, failure to post warning signs, and failure to install protective devices are subject to immediate corrective orders, and non-compliance is followed by a work suspension order, an administrative fine, and criminal punishment.
Recognition of and Response to Occupational Disease
Not only occupational accidents but also work-related diseases may be recognized as industrial accidents.
These include mental illness caused by long hours of repetitive work, exposure to noise and dust, and verbal abuse from customers.
Employers must prevent the occurrence of disease through work environment measurement, regular health examinations, and the removal of hazardous factors or the provision of alternative work, and if they neglect this, it is difficult to avoid civil and criminal liability.
- Replacing or minimizing hazardous substances
- Conducting regular health examinations and maintaining records
- Follow-up management of workers with abnormal findings (treatment, reassignment)
- Operating a system for handling mental health grievances
Duty to Manage Hazardous and Dangerous Machinery and Substances
Under the Occupational Safety and Health Act, hazardous machinery must be managed through safety certification, voluntary safety confirmation reporting, and safety inspection.
For chemical substances, preparing and keeping the MSDS, educating workers, and observing exposure limits are required.
In particular, since the removal and dismantling of asbestos and similar work can result in a custodial sentence such as imprisonment for up to three years, in addition to administrative fines and criminal fines, if the related standards are violated, thorough management is required.
In addition, the employer must prevent health impairment through workers' health examinations and follow-up measures, and by observing the working-hour limits for hazardous work.
- Conducting regular and special health examinations and managing their history
- Duty to reassign or treat workers when abnormal findings are discovered
- Thoroughly observing the weekly and daily limits on working hours for hazardous work
- Confirming substantive safety measures even when high-risk work is outsourced
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4. The Occupational Safety and Health Act | Management of the Contracting and Prime-Subcontractor Structure
In the prime-subcontractor structure, the prime contractor also has safety and health obligations toward the subcontractor's workers.
If a serious accident occurs during contracted work, the prime contractor may be directly liable, and because illegal re-subcontracting is a matter that violates not only the Occupational Safety and Health Act but also multiple statutes such as the Framework Act on the Construction Industry and the Monopoly Regulation and Fair Trade Act, it may constitute grounds for criminal punishment and administrative disposition such as a business suspension and a penalty surcharge of hundreds of millions of won.
- Preparing and reviewing the safety plan and work instructions in advance when concluding a contract
- Stationing an on-site safety officer at all times
- Confirming the effectiveness of safety education for subcontractor workers
- Tightening the prime contractor's approval procedure for dangerous work
Construction Sites, and the Obligations of the Ordering Party and the Contractor
The construction work ordering party must also take safety measures from the planning and design stage of the construction.
Changing the construction method or shortening the construction period without justifiable reason is a cause that raises the risk of accidents.
If the collapse of temporary structures or falling accidents recur at the site, even the ordering party may bear legal liability.
[Key compliance items]
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The Supreme Court ruled that construction project owners are also responsible for industrial accident deaths.
Read together the reasons for determining guilt or innocence in the case of the Serious Accident Punishment Act
Company H imposed a fine of 260 million won for the deaths of five primary and subcontracted workers
5. The Occupational Safety and Health Act | Industrial Accident Prevention for Special Forms of Employment
The Occupational Safety and Health Act also provides for measures to prevent industrial accidents arising among workers in special forms of employment (such as insurance solicitors and courier drivers), delivery workers, and at franchise headquarters.
It must be kept in mind that, regardless of the form of the contract, the substantive scope of responsibility of those who are provided with labor (employers, platforms, franchise headquarters, and similar) has been greatly expanded.
Even without a traditional employment contract, a person who is subordinate to a single business and provides labor and receives remuneration should in effect be protected from industrial accidents in a manner comparable to a worker.
Companies and platforms that are provided with services must carry out safety measures, health measures, and statutory safety education.
New Provisions for the Protection of Delivery Workers
In addition, separate provisions for the protection of delivery workers have been newly established in response to the rapid growth of the delivery market.
Because delivery workers are easily exposed to various safety risks such as two-wheeled vehicle traffic accidents, death from overwork, and heat waves and cold waves, platform businesses must not evade responsibility merely on the ground that they are intermediaries, and must take all substantive safety measures.
If a platform business violates this and fails to take all safety measures, the platform business may be subject to an administrative fine of up to 10 million won.
Codification of Safety and Health Responsibility in the Franchise Business Structure
A franchise headquarters of a certain size or larger must establish and implement an industrial accident prevention program for the franchisee and its workers when supplying equipment, machinery, raw materials, products, and similar items to the franchisee.
An on-site safety management manual, information on risk factors, and safety rules for machinery and equipment must be sufficiently provided, and the safety and health program requires education at least once a year.
If a franchise headquarters violates this and an industrial accident occurs, the franchise headquarters may also be held responsible and subject to an administrative fine of up to 50 million won.
6. The Occupational Safety and Health Act | Punishment for Violation and Corporate Response
When an industrial accident occurs due to a violation of the Occupational Safety and Health Act, the employer may suffer direct and indirect losses such as a penalty surcharge, business suspension, restriction on participation in public projects, and criminal punishment.
Sentencing Guidelines for Criminal Punishment of Violations of the Occupational Safety and Health Act
Category | Mitigated | Basic | Aggravated |
Contractor's violation of safety and health measure obligations | ~ 6 months | 4 to 10 months | 8 months to 1 year 6 months |
Employer's violation of safety and health measure obligations | 4 to 8 months | 6 months to 1 year 6 months | 1 year to 2 years 6 months |
Violation of safety and health measure obligations resulting in death | 6 months to 1 year 6 months | 1 year to 2 years 6 months | 2 to 5 years |
If a safety manager, employer, or similar person is indicted for a violation of the Occupational Safety and Health Act and becomes subject to criminal punishment, a sentence according to the above sentencing guidelines is anticipated.
A response plan can be prepared by reviewing the following mitigating and aggravating factors.
[Mitigating factors]
- Correction of the violation
- Insurance enrollment : enrollment in industrial accident compensation insurance and similar insurance
- Mitigating circumstances in how the accident occurred : the victim entered a dangerous place on their own, or the victim violated their own duty of self-protection
- Mental weakness of the offender
- Settlement and the victim's wish for no punishment
- Remorse and recovery of damages : including substantive recovery of damages and a criminal deposit
[Aggravating factors]
- A serious degree of violation of safety and health measure obligations : violation of a safety obligation directly linked to large-scale loss of life
- Repeated occurrence of similar accidents
- Occurrence of multiple victims
- Repeat offense of the same kind
- Failure to provide rescue measures
- Concealment of evidence after the offense
7. The Occupational Safety and Health Act | The Importance of Retaining an Attorney in Responding
Supporting evidence | Example of employer measures and response |
Safety and health management system -Letter of appointment of the safety and health manager -Organizational chart and similar | Strengthen the authority of the safety and health manager, and conduct regular inspections and internal audits |
Risk assessment materials -Risk assessment table for each process -Details of improvement measures | Make prior assessment mandatory before introducing a new process, and implement improvement measures immediately after assessment |
Worker safety education -Education plan and manual | Keep evidence after conducting regular and ad hoc safety education, and operate a management ledger for those who have not completed it |
Work environment inspection -Safety inspection checklist -On-site photos, videos, and similar | Grant on-site managers immediate corrective authority, and periodically commission inspections by external experts |
Protective gear and safety devices -Protective gear distribution ledger -Records of replacing aged equipment | Computerize the management of distribution and replacement history, and establish a system for immediate replacement when items are damaged |
Accident response -Accident report, on-site photos -CCTV footage | Issue a work suspension order immediately when an accident occurs, and after forming a task force, investigate the cause and prevent recurrence |
Management of hazardous and dangerous substances -Details of MSDS kept on hand -Log of hazardous substance handling | Update the MSDS when substances change, and provide repeated education for all handlers |
Health management records -Workers' health examination records -Details of follow-up management for those with abnormalities | Reassign immediately when a health abnormality is found, and track and manage through periodic re-examination |
Prime-subcontractor management -Contract agreement -Safety agreement -Minutes of council meetings | Hold regular joint safety inspections by the prime contractor and subcontractor, and make education completion mandatory for subcontractors |
Internal audit and consulting -Consulting reports such as external advice | Introduce a regular internal audit system, and establish an improvement plan immediately when a violation is detected |
For violations of the Occupational Safety and Health Act, advance prevention based on sufficient safety and health measures taken before an occurrence is the key.
You should grant the safety and health manager substantive authority and autonomy so that management responsibility is concentrated rather than dispersed, and you should document thorough evidence regarding any industrial accident that might occur.
Prioritizing immediate reporting, work suspension, and worker protection measures when an accident occurs is also necessary.
However, if you are indicted as a result of an on-site investigation or an external audit, or if legal response is needed, you should retain an attorney who has handled matters such as industrial safety and serious accidents immediately.
Please consider arranging a 🔗legal consultation booking with our firm, which can establish a strategy by building a collaborative system with serious accident attorneys, labor attorneys, and, where necessary, evidence investigation experts, and can provide advice on a regular basis.
Daeryun will promptly prepare a response scenario suited to the client company.
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