I. Definition of irregular employee

【Question】How would you describe the concept and type of regular and contract-based or term-based employees?

【Answer】According to the Term of Contract, Article 23 of the Labor Standards Act, it is regulated as "the term of a labor contract shall not exceed one year, except in cases where there is no fixed term or where there is otherwise a fixed term as necessary for the completion of a certain project". It does not mean that this article defines the employee as a regular or irregular employee, or contract or term employee in accordance with term of contract. However, we can define a 'short-term employee as the employee whose term of contract is less than one year, and we can also define the 'part-time employee' as the employee whose contractual work hours per week are shorter than those of a full-time employee engaged in the same kind of work at the workplace concerned. We generally call the short-term employee and/or part-time employee as an irregular employee, but this comparison is not regulated by the law. (Dec. 24, 2004, Kungi-1650)


II. Short-term Employee

1. Justification for changing the regular employment contract to a short-term contract

[Question] The employee who is working as a bus driver for a bus company has been urged to sign an employment contract, which contains the following content:
- The company has asked the employee to sign an one-year, short-term contract, as he has been serving as an employee who does not have a fixed contract period. Does he have to accept the company's proposal?

[Answer] Determining a non-fixed period contract or a fixed-period contract shall be freely decided by and between the employee and the employer. Provided, that in case where a fixed-period contract was made in the beginning, but it has been renewed several times, the contract may be changed to a non-fixed period contract. In this case, the employer cannot dismiss the employee without a justifiable cause. (Jun 16, 2000, Kungi-68207-1844)

2. In cases where the contract has been renewed, when does the
contract expire?

Although the employee was hired for a fixed period, if his contract has been renewed repeatedly for a long period and so the contract duration turns standard and typical, the contract is changed to the same as the non-fixed period contract. However, unless such a case is generally accepted like the above, the fixed period contract will be automatically terminated at the time of its expiration. (Judicial ruling, June 11, 1995, 95 da9280)


III. Dispatched employee

1. Interpretation of Regulation of Hired Status Article 6-(6) of the Worker Dispatch Act

[Question] In cases where the employer terminates an employment contract of a dispatched employee after using him for two years and then, after the passing of an interval of time (e.g., 10 days or one month), the employer updates the dispatch employment contract of the terminated employee and places him in the same or similar job. Then, how little time can pass (from the expiration of the previous contract to the new contract) before the status of employment be regarded as that of continuous employment?

[Answer] The interpretation of Article 6-(6) of the Worker Dispatch Act shall be interpreted according to the intent and purpose of the law. The purpose of the Dispatch Act, including the『Regulation of Hired Status,』is to establish the criteria concerning working conditions of dispatched employees and to contribute to their job security and welfare. In the case where the employer has utilized the same dispatched employee for more than two years, he shall be responsible for the employee not as the using employer of a dispatched employee, but as an employer under the Labor Standards Act.
Accordingly, if the employer used the same dispatched employee again with some internal time-off period after using him for two years, it is deemed that the using employer cannot use the same employee as a dispatched employee, but has to hire him as an employee regulated under the Labor Standards Act. (Nov. 22, '99, Kungi 68207-683)

2. Discrimination of working days for the dispatched employee

[Question] Since Korea we implemented the 5-day workweek system to all regular employees in the company, can we apply a 6-day workweek to dispatched employees only?

[Answer] Article 21 (Equal treatment) of the Worker Dispatch Act stipulates"A sending employer and an using employer shall not treat a dispatched worker in a discriminatory manner in comparison with a worker who performs the same work in the business." The employer cannot discriminate against a dispatched employee unfairly unless there is reasonable cause to discriminate against the dispatched employee. (Sep. 16, '98, Kokwan 68460-838)

3. Application of the Article『Directly Hired Status』

[Question]When an employer uses the same dispatched employee for more than two years, the dispatched employee shall be deemed a regular employee, if the dispatch employment contract of two years has expired and the employer make a new contract with him after the employee takes one-month leave, is he considered to be hired as a regular employee?

[Answer] Article 6 (3) of the Worker Dispatch Act is designed to consider the dispatched employee as a directly hired employee in the case where the using employer used the dispatched employee for more than two years in order to promote the dispatched employee's direct employment and to control the increase of dispatched employees. Accordingly, as your company has used the dispatched employee for more than two years and hired him as a temporary employee for one month to avoid employing him as a regular employee, if your company uses him again as a dispatched employee, the employee shall be treated as hired status in your company. (Aug. 7, '98, Kokwan 68400-626)

4. Is it possible for the using employer to replace the current dispatched employee with another one after the expiration of the dispatch period?

[Question] Where the using employer has terminated the dispatch contract with a dispatched employee, called "A", after using him for two years, and then uses another dispatched employee, called "B",from the same sending employer, then in this case, does the using employer have to hire the newly dispatched employee as a regular employee?

[Answer] The purpose of Article 6-(3) of Worker Dispatch Act is to treat the dispatched employee as a regularly hired employee when the using employee continues to use the dispatched employee for more than two years, which is designed to promote the employment of the dispatched employee as a regular employee and prevent the increase of indiscreet dispatched employees. Accordingly, using a dispatched employee for more than two years under the above referenced Article means that the utilizing employee uses the same dispatched employee for more than two years.
Based upon the above understanding, if the using employer has replaced the dispatched employee with an interval period of less than two years, the using employer does not have a legal obligation to hire the dispatched employee. However, it is desired that the using employer should supplement the position with a regular employee as the using employer needs to use the dispatched employee in the same position for long-term period. (June 9, '98, Kokwan 68460-407)

5. Change of a sending employer and calculation of dispatch period

[Question] If the sending employer has been replaced, but the using employer has used the same dispatched employee, what is the starting date to calculate the dispatch contract period? The date of the previous dispatch contract period under the original sending employer or