LABOR LAW GUIDE

Chapter 2 Employment Relations

Section 1 The Labor Standards Act

1. Purpose of the Labor Standards Act(LSA)

According to Article 32 of the Constitution, the standards for working conditions shall be determined by the LSA in ways so as to guarantee human dignity. This is the main goal of the LSA. Accordingly, the purpose of the LSA is to set standards for the conditions of employment in accordance with the Korean Constitution, thereby securing and improving the living standards of workers and developing a well-balanced economy.


2. Characteristics of the LSA

The LSA not only stipulates regulations on public law that deal with labor management and opinion, but also specifies regulations on private law that requires compensation for damages resulting from an employer's violation of the LSA which causes the worker to terminate his/her labor contract.


3. Basic Principles of the LSA

(1) Prohibition of lowering working conditions
The conditions of employment provided herein cannot be lowered, thus the parties of employment shall not depress working conditions under the pretext of complying with the LSA(Article 2 of the LSA).

(2) Labor and management's equal decision power
The conditions of employment shall be determined through a mutual agreement between employers and their workers on an equal footing(Article4 of the LSA).

(3) Thorough fulfillment of working conditions
Both employers and workers shall comply with the Collective Agreement, the Rules of Employment, and the terms of the labor contract, and both parties are obliged to do so in good faith(Article 5 of the LSA).

(4) Equal treatment
An employer shall not discriminate against any worker on the basis of gender, nor display discriminatory treatment in the conditions of employment on account of nationality, religion, or social status(Article 6 of the LSA).
1) Unequal treatment on account of gender
Discriminative treatment between men and women refers to discrimination simply based on gender without justifiable reason.33)
① Unequal pay for equal work
The principle of equal treatment is not violated in cases where unequal treatment is affected by work, efficiency, technology, etc. and where it is accounted for by different working conditions, job type, or job characteristics.
② Discrimination due to retirement age
Discrimination against any employee, due to their reaching retirement age, violates Article 6 of the LSA.
③ Retirement on account of marriage
The employer is not allowed to discriminate any female worker due to her marital status.
2)Nationality
The purpose of preventing unequal treatment on account of nationality is to protect dual nationality holders and foreign nationals from possible discrimination. In Article 6 of the LSA, an employer shall not take discriminatory action in relation to the working conditions on the grounds of nationality. The Labor Standards Act is applicable to foreign migrant employees, unless there are special reasons otherwise.34)
3) Religion
It is considered a violation of the law if an employee is actively discriminated against on account of his/her religious beliefs or passively discriminated against on account of his/her lack of religious affiliation. With the exception of purpose-based companies, it is not deemed a violation if the employee is dismissed due to any behavior that disagrees with the religious or political purpose of his/her company.
4) Social status
The employer shall prohibit unequal treatment or unfair working conditions on account of social class or status.

(5)Prohibition against age discrimination
Employers shall not discriminate against an employee based on age, without a justifiable reason, for each of the following: recruitment and employment; provision of wages and valuables aside from wages, and benefits packages; education and training; disposition, changes of position, and promotion; and retirement and dismissal. If application of a standard aside from age, without justifiable reason, leads to a result particularly unfavorable to a certain age group, this shall be considered age discrimination. This act shall apply to any workplace where an employer intends to hire, or has hired, one employee or more, and so this act covers all legally employable age levels.

(6) Prohibition of forced labor
An employer shall not force a worker to work against his/her own free will through the use of violence, threats, confinement or by any other means that unjustly restrict mental or physical freedom(Article 7 of the LSA).

(7) Prohibition of violence
Accidents or any other mishaps caused by the worker shall not be a legitimate reason for physical or verbal abuse(Article 8 of the LSA).

(8) Elimination of intermediary exploitation
No one shall intervene in the employment of another person for the purpose of making a profit, nor shall anyone gain benefit as an intermediary unless otherwise provided by law(Article 9 of the LSA). ‘Gaining benefit as an intermediary’ is any act to introduce or intervene in the employment of another person for the purpose of making a profit, or to influence establishment or renewal of an employment contract, and includes receiving money in return for introducing the employment opportunity to a person looking for employment. This does not require a direct act of introducing or intervening in gaining or renewing employment. 35)

(9) Guarantee of exercising civil rights
An employer shall not reject a request from a worker to grant the time necessary to exercise his/her right to suffrage or other civil rights, or to perform official duties during his/her working hours; however, the time requested may be changed, unless such alteration impedes the exercise of those rights or the performance of those civil duties(Article 10 of the LSA). When an employee leaves his/her workplace during working hours to exercise civil rights or perform civil duties, he/she shall be paid for the hours spent for that purpose(e.g. reserve forces training, civil defense drills or training, voting, etc.).
33) Supreme Court ruling of August 23, 1996, 94nu13589 【Unfair Dismissal】.
34) Supreme Court ruling on Aug. 26, 1997, 97Da18875
35) Supreme Court ruling of September 25, 2008, 2006do7660 【Violation of the LSA】

For further questions, please
call (+82) 2-539-0098 or email bongsoo@k-labor.com

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