Ⅰ. The Discrimination Correction System for Irregular Employees

1. Concept

The discrimination correction system is based on guidelines newly introduced in the Short-term Employee Act and the Employee Dispatch Act. It is designed to prohibit disadvantageous treatment(without justification) regarding wages and other working conditions of non-regular employees(short-term, part-time, or dispatched employees) in comparison with target employees(term-less contract employees, ordinary employees, or directly hired employees). Discriminative treatment can be rectified through the remedy process of the Labor Relations Commission.
The discrimination correction system for non-regular employees does not mean that the employer shall keep all working conditions of non-regular employees the same as working conditions for regular employees. However, the employer is prohibited from disadvantageous treatment without justification. That is, the employer is allowed to discriminate if there is a justifiable reason based on productivity, job skills, etc.

2. The discrimination correction system for short-term and part-time employees

(1) Those eligible for correction of discrimination
Those who can be protected from an employer’s discriminative treatment shall be employees according to the Labor Standards Act and also be a short-term or part-time employee.

(2) Requests for correction of discrimination
If a fixed-term or part-time employee has received discriminatory treatment, he/she may file a request for correction with the Labor Relations Commission, within six months after such discriminatory treatment occurred or since such treatment ended in cases of continuous discriminatory treatment(Article 9 of the Short-term Employee Act). The period of time which shall be examined to determine if the employee is considered short-term or part-time is not when the application for correction of discrimination is made but the time the employer allegedly engaged in the discriminative behavior.

(3) The scope of wages and other working conditions in prohibiting discrimination (Article 2 of the Short-term Employee Act)
① Wages pursuant to subparagraph 5 of Article 2(1) of the Labor Standards Act
② Regular bonus, etc. and bonuses paid regularly
③ Incentives according to business performance and
④ Other matters concerning working conditions and benefits, etc.
The scope of wages and other working conditions deals with working conditions regulated in the Labor Standards Act and working conditions stipulated in the collective agreement, rules of employment and/or labor contract. Therefore, the scope includes not only wages but also working hours, holidays, leave, safety, health, and industrial accident compensation.

(4) Target employees for comparison
The judgment of discrimination for short-term and part-time employees shall require the existence of target employees for comparison. Target employees not only play a role as providing comparison criteria to estimate disadvantageous treatment, but also as the basis and criteria for the Discrimination Correction Committee to determine parameters of the correction order. In comparison to short-term employees, target employees shall be term-less contract employees engaged in the same or similar jobs in the business or workplace(Article 8(1) of the Short-term Employee Act). In comparison to part-time employees, the target employees shall be ordinary employees who were engaged in the same or similar jobs in the business or workplace(Article 8(2) of the Short-term Employee Act).
same or similar job means jobs that are similar in classification, duties, and specification. That is, they will be considered synthetically based on the possibility of substitution within each group of employees.

[Related ruling ]
A target comparison employee to evaluate whether there has been discriminatory treatment regarding a fixed-term employee refers to other workers engaged in the same or similar kinds of work under a non-fixed-term labor contract in the business or workplace concerned. Whether the work of the target employee selected for comparison is the same or similar kinds of work is not determined by the work stipulated in the rules of employment or the employment contract, but shall be determined by the work that the fixed-term employee actually performs. Even though the work of the target comparison employee and of the fixed-term employee in question does not match and is different in scope, responsibility and authority, if the primary duties are not essentially different, it is deemed that they are engaged in the same or similar work.
(5) Disadvantageous treatment

Disadvantageous treatment means that short-term and part-time employees receive poorer treatment in wages or other working conditions in comparison to target employees. In judging whether or not there is disadvantageous treatment, it is a principle that detailed items relating to wages and working conditions paid to short-term and part-time employees shall be compared with detailed items paid to target employees.
As disputes occur, comparable wages and working hours shall be categorized and compared as follows: ① In cases where some aspect of wages and working conditions are better for target employees but other aspects are lower; and ② in cases where short-term and part-time employees are treated disadvantageously in comparison with target employees on particular wages and working conditions; and ③ in cases where the employer provides other purpose-based wages and working conditions. In this case, payment in accordance with actual provision of labor service(overtime, nighttime, holiday work allowances, etc.) shall be exempted from the scope of comparison.
In cases where it is hard or impossible to compare detailed items or categories because of the inclusive wage system or annual salary system, the wages and working conditions of target employees shall be compared and estimated overall.
As part-time employee wages are based on hourly wages, calculating ordinary employee wages into hourly wages is necessary to confirm whether or not there is disadvantageous treatment. In this case, the comparison basis shall be hourly wages calculated from ordinary wages per contractual working hour.

(6) Justifiable reasons

1) Concept of justifiable reason
If there is a justifiable reason that the employer treats short-term and part-time employees disadvantageously in comparison to target employees, disadvantageous treatment will not be considered discriminatory. Here, without justifiable reason means that there is no reason to treat fixed-term employees differently, or that even though such a reason exists, the method or degree is not accepted as appropriate. Whether there is justifiable reason for discrimination shall be determined upon considering collectively the type and scope of the work, responsibility and other working conditions of the fixed-term employees.

2) Short-term employees and employment period
When the employer applies wages and other working conditions in proportion to the employment period for short-term employees and this resulted in disadvantageous treatment, it can be accepted as justifiable.

3) Part-time employees and principle of protection by time proportion
Working conditions of part-time employees shall be determined on the basis of a relative ratio computed by comparing the work hours of part-time employees with those of full-time employees engaged in the same kind of work at the pertinent workplace, which is an application of the proportional time principle(Article 18(1) of the Labor Standards Act). Accordingly, it is justifiable to apply wages and divisible working conditions in proportion to time.

4) Disadvantageous treatment in accordance with short-term employment
The difference in wage and working conditions in accordance with characteristics of short-term employment, such as employment type(e.g., short-term employee), can be regarded as justifiable. It will also be considered as justifiable when the employer excludes short-term employees from wages and working conditions paid based on long-term employment and/or continuous service, such as long-term service allowance and compensational special bonuses for those retiring after long-term employment.

5) Disadvantageous treatment due to employment conditions and criteria
If an employer discriminates against an employee justifiably on account of different employment factors(such as career, qualifications, etc.), the disadvantageous treatment can be justifiable when such factors determine wages, etc.

6) Disadvantageous treatment based on employment methods and procedures
Even though employment methods and procedures(open employment/closed employment, written tests/interviews, etc.) are different, if short-term and part-time employees provide labor service under the same conditions as target employees, then disadvantageous treatment is not justifiable solely because of different employment methods and procedures. However, if the employer applies employment methods and procedures differently in order to reflect different work performance ability, it can be utilized as indirect evidence to confirm differences in work performance ability.

7) Difference in job scope
As job scope is directly related to quality and quantity of work and becomes an important factor in determining wages, target employees shall be selected carefully in consideration of differences in job scope. Disadvantageous treatment in wages and working conditions due to differences in job scope can be regarded as justifiable.

8) Difference in authority and responsibilities related to job
It can be justifiable to discriminate based on wages in accordance with the level of authority and responsibility. If the employer pays allowances(position allowance, title allowance, etc.) corresponding to the level of authority and responsibility, even though the level of authority and responsibility were not reflected in determining wages, it can be justifiable to exclude such allowances for short-term and part-time employees who do not have such authority and responsibilities.

9) Low labor productivity
If the reason short-term and part-time employees’ labor productivity is low is because of a lack of previous experience and/or prejudice and not the result of their service, then discriminatory practices are not justifiable. However, it is justifiable if the employer discriminates on wages according to a wage system based on low labor productivity in comparison with target employees.

10) Disadvantageous treatment in accordance with decision factors for wages and working conditions
It can be regarded as justifiable when the employer considers relevant factors(duties, abilities, skills, technology, qualifications, career, educational background, service years, responsibilities, achievements, performance, etc.) of labor service in determining wages and pays different wages in accordance with such differences.

11) Legal allowances
Legal allowances, which are allowances to be paid by law, are additional allowances(Article 56 of the LSA) for overtime, nighttime and holiday work, annual paid leave allowance, etc.(Article 60(5) of the LSA).

3. The discrimination correction system for a dispatched employee

(1) Characteristics

Both using and sending employers are prohibited from discriminative behavior under the Employee Dispatch Act. Even though the discrimination correction system for dispatched employees is regulated identically to the discrimination prohibition for short-term and part-time employees, the system is different in content and interpretation because of the characteristics of dispatch employment.
In terms of both legislative consideration of the discrimination prohibition system in the Employee Dispatch Act and the special characteristics of dispatch employment, the scope of prohibition shall be limited to wages and other working conditions established in accordance with the dispatched employees’ labor provisions and entry to the workplace.
The using and sending employer are both considered parties responsible for avoiding discriminative behaviors and, therefore, will share the responsibility of implementing any correction orders, including fines levied for failure to implement correction orders.

(2) Applying for correction of discrimination

1) The dispatched employee as an applicant for discrimination correction
The term dispatched employee means a person who is subject to employee dispatch as a person employed by a sending employer(Article 2(5) of the Employee Dispatch Act). Regardless of the form of contract, if the employee is a dispatched employee in reality, then he/she can be apply for correction of discrimination.

2) Illegally dispatched employee and applying for correction of discrimination
Under the Employee Dispatch Act, an illegal dispatch occurs when the employer: ①violates the permitted jobs of a dispatched employee; ② violates the length of dispatch period, or ③ operates a non-licensed dispatch business.

(3) Subjects prohibiting discriminative treatment: sending employer and using employer
The Employee Dispatch Act(Article 21(1)) states that Neither sending nor using employers shall treat a dispatched employee in a discriminatory manner on account of them being a dispatched employee. Accordingly, the persons responsible for prohibiting discriminative behavior are the sending employer and the using employer. In addition, they will become the employers concerned for correcting discrimination. According to Article 34 of the Employee Dispatch Act, the sending employer is responsible for wages, annual paid leave, etc. as per the Labor Standards Act, while the using employer is responsible for working hours and recess, use of leave, etc.

(4) The scope of prohibited discriminative treatment
In regards to discriminative treatment, the dispatched employees’ wages and other working conditions are analyzed differently from that of short-term and part-time employees because the dispatched employee has particular characteristics of employment. Working conditions established in relation to the dispatched employee’s labor provision and entry to the using employer’s workplace shall not be discriminatory, and the sending employer and a using employer shall not discriminate against the dispatched employee by treating them less favorably than employees the using employer hired directly. However, such things like family allowance paid to directly-hired employees are not related to working conditions established by labor provisions and entry to workplace. Accordingly, differences in such things are not prohibited.

(5) Target employees for comparison
The dispatched employee’s target employees for estimating discrimination shall be employees engaged in the same or similar jobs in a using employer’s workplace(Article 21(1) of the Dispatch Employee Act).

(6) Disadvantageous treatment and justifiable reasons

1) Basic principle
Whether there is disadvantageous treatment or not and whether such treatment is justifiable or not shall be estimated by considering the dispatch employment characteristics. Even though there is disadvantageous treatment, it can be justifiable if the reason(such as exclusion of promotion opportunities) is attributable to the type of dispatch employment.

2) Wages of a dispatched employee
If a dispatched employee is subject to disadvantageous treatment in regard to wages, as the responsible person for the payment of wages is the sending employer, the dispatched employee can apply for a correction against the sending employer. In this case, when the amount that a dispatched employee received from the sending employer is less than the amount paid to the target employee in comparison engaged in the same or similar job, it is discrimination.

3) Other working conditions of a dispatched employee
Other working conditions of a dispatched employee shall include items related to working conditions in accordance with labor provision of a dispatched employee and entry to a using employer’s workplace.

4. Discrimination correcting procedures

In cases where a short-term employee, part-time employee, or dispatched employee is subject to discriminative treatment, the employee can apply for correction with the Labor Relations Commission within six months from the date the discriminative treatment occurred(or the last day for continuing discriminative treatment)(Article 9(1) of the Short-term Employee Act, Article 21(2) of the Employee Dispatch Act).
In regards to the penal provision, it shall not apply to the discriminative behavior itself. If the employer does not implement a correction order after the Labor Relations Commission has found discriminative treatment, the Minister of Employment and Labor can level a fine of up to 100 million won against the employer. The Minister can also order the employer to submit the status of implementation of the correction order. If the employer has not obeyed the order without justifiable reason, he/she can be fined up to 5 million won.