I. Concept of the Discrimination Correction System

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 wage and other working conditions for non-regular employees (short-term, part-time, or dispatched employees) in comparison to 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 prohibition 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 of 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.

II. The Discrimination Correction System for Short-term and Part-time Employees

1. Applicant for correction of discrimination
The applicant for discrimination correction who can be protected from an employer's discriminative treatment shall be an employee of the Labor Standards Act and shall also be a short-term employee or part-time employee.

2. Request for correction of discriminatory treatment
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. In this case, they shall apply within six months since 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 when an employee is considered short-term or part-time is not the time of filing an application for discrimination correction but the time the employer allegedly engaged in the discriminative behavior.
3. The scope of ‘wage and other working conditions’ in prohibiting discrimination (Article 2 of the Short-term Employee Act)
① Wage 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 “wage and other working conditions” deals with working conditions regulated in the Labor Standards Act and working conditions stipulated in the collective bargaining agreement, rules of employment and/or labor contract. Therefore, the scope includes not only wage 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. The target employees not only play a role as comparison criteria to estimate disadvantageous treatment, but also play a role as the basis and criteria for the Discrimination Correction Committee to determine parameters of the correction order. In comparison with short-term employees, the 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).
“The 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 Supreme Court ruling on Oct. 25, 2012, 2011doo7045 [Correction of Discrimination].
]
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 wage or other working conditions when compared to target employees. In judging whether or not there is disadvantageous treatment, it is a principle that detailed items relating to wage 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 wage and working hours shall be categorized and compared as follows: ① In cases where some aspect of wage 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 wage and working conditions; and (3) in cases where the employer provides other purpose-based wage and working conditions. In this case, payment in accordance with actual provision of labor service (overtime, nighttime, holiday work allowances, etc.) shall be excluded 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 wage and working conditions of target employees shall be compared and estimated overall.
As the wage of part-time employees is based on hourly wage, it is necessary to calculate the wage of regular employees into hourly wage to confirm whether or not there is disadvantageous treatment. In this case, the comparison basis shall be hourly wage calculated from ordinary wage per contractual working hour.

6. Justifiable reasons for discriminatory treatment
(1) Concept of justifiable reason
If there is a justifiable reason that the employer treats short-term and part-time employees disadvantageously in comparison with target employees, disadvantageous treatment will not be considered discriminatory. Here, “without justifiable reason” means that there is no fair 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. Supreme Court ruling on Oct. 25, 2012, 2011doo7045 [Correction of Discrimination].


(2) Short-term employees and employment period
When the employer applies wage and other working conditions in proportion to the employment period for short-term employees and this results 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 wage 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 wage 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, qualification, etc.), the disadvantageous treatment can be justifiable when such factors determine wage, 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 with 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 wage, target employees shall be selected carefully in consideration of differences in job scope. Disadvantageous treatment in wage and working conditions due to differences in job scope can be regarded as justifiable.

(8) Difference in authority and responsibility related to job
It can be justifiable to discriminate based on wage 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 wage, it can be justifiable to exclude such allowances for short-term and part-time employees who do not have such authority and responsibility.

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

(10) Disadvantageous treatment in accordance with decision factors for wage 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 wage and pays discriminative wage 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).

III. 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 prohibition against discrimination 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 to prohibit discriminative behaviors and, therefore, will share the responsibility of implementing any correction orders, including fines levied for failure to implement correction orders.
2. Applicant for discrimination correction
(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 an applicant for discrimination correction.
(2) The illegally dispatched employee as an applicant for discrimination correction
Under the Employee Dispatch Act, an illegal dispatch occurs when the employer: a) violates the permitted jobs of a dispatched employee; b) violates the length of dispatch period, or 3) operates a non-licensed dispatch business.

3. Subjects to prohibit discriminative treatment: sending employer and using employer
The Employee Dispatch Act (Article 21(1)) states that “Sending employers and using employers shall not treat dispatched employees in a discriminatory manner on account of them being dispatched employees.” Accordingly, the persons responsible for prohibiting discriminative behavior are the sending employer and the using employer. In addition, they will become the employer concerned for correcting discrimination. According to Article 34 of the Employee Dispatch Act, a sending employer is responsible for wage, annual paid leave, etc. as per the Labor Standards Act, while a using employer is responsible for working hours and recess, use of leave, etc.

4. The scope of prohibition against 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 him/her less favorably than employees the using employer has 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 the workplace. Accordingly, such things are not prohibited.

5. Target employees in 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 is attributable to the type of dispatch employment (e.g., exclusion of promotion opportunity).

(2) Wage of a dispatched employee
If a dispatched employee is subject to disadvantageous treatment in regard to wage, as the responsible person for the payment of wage is the sending employer, the dispatched employee can apply for 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 employee (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.”

IV. Discrimination Correction 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).
The penal provision shall not be applied for the discriminative behavior itself. If the employer does not implement the 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. Also, the Minister can order the employer to submit the status of implementation of the correction order. If the employer does not follow the order without justifiable reason, he/she can be fined up to 5 million won.