MOEL Interpretation

Non-Regular Workers Act

Discrimination Correction System – Discrimination Correction System for Dispatched Workers, Working Conditions


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8.The recently published 「Guide to Correcting Discrimination Against Non-regular Workers」 states regarding dispatched workers’ wages that “If dispatched workers are treated unfavorably in terms of wages, the responsibility for wage payment lies with the dispatching agency, and therefore, an application for correction of discriminatory wages can be filed against the dispatching agency. In this case, if the wages paid to the dispatched worker by the dispatching agency are lower than those paid to ‘workers performing the same or similar work directly employed by the user enterprise (comparison workers),’ a discrimination issue may arise.” (p.46) * If dispatched workers perform the same or similar work as fixed-term workers, to what extent should the company pay wages compared to directly employed fixed-term workers in order not to be considered discriminatory treatment? * Regarding “other working conditions,” it is noted that “due to the special nature of employment relationships in dispatched work, where the employment relationship and the user’s command and control relationship are separated, the scope of the prohibition on discriminatory treatment differs from that for fixed-term or part-time workers, so conditions not related to labor provision or integration into the workplace cannot be regarded as ‘other working conditions’ and thus do not fall within the scope of prohibited discriminatory treatment.” (p.44) In this context, condolence and congratulatory money appears to fall into the category of conditions not related to labor provision or workplace integration. Is it acceptable not to pay condolence and congratulatory money to dispatched workers performing the same or similar work as fixed-term workers who are directly employed?
7.Dispatched workers are utilized in clerical assistant and secretary positions, and among them, high-performing workers are hired as fixed-term employees. Thus, clerical assistant and secretary positions have a mix of dispatched workers and fixed-term employees. According to our company’s regulations, there is no difference in welfare benefits between regular employees and fixed-term employees; however, there are many differences between fixed-term employees and dispatched workers in welfare benefits. Specifically, dispatched workers receive the same benefits as fixed-term employees only regarding condominium use, but are not eligible for loan programs using the company welfare fund, child education support, language training support, well-being card provision, inpatient medical expenses, health checkup support, and are paid only a portion of the condolence money given to fixed-term employees. With the implementation of the Non-regular Workers Protection Act on July 1, 2007, does the difference in welfare benefits between dispatched workers and fixed-term employees constitute discrimination as defined in Article 21(1) of the 「Act on the Protection of Dispatched Workers」?
6.Under Article 21(1) of the 「Act on the Protection of Dispatched Workers」 (hereinafter “Dispatch Act”), which took effect on July 1, 2007, “The dispatching agency and the user enterprise shall not discriminate against dispatched workers in comparison with workers performing the same or similar work in the user enterprise due to the status of being dispatched workers.” ‘Discriminatory treatment’ is defined under Article 2(7) of the same Act as ‘unreasonably disadvantageous treatment in wages and other working conditions without reasonable grounds.’ * In this regard, ○○ Hospital is a public medical institution directly managed by Seoul Metropolitan Government, where regular employees (nurse assistants) hired by Seoul Metropolitan Government and subject to public official salary regulations (with responsibilities according to duties and differentiated pay based on rank and career) and dispatched workers from a contracted service company (with no responsibilities and receiving fixed pay from the dispatch agency) work together in the same workplace. * The question is whether the difference in wage standards between the two, simply because they work in the same workplace, constitutes discriminatory treatment in wages under Article 2(7) of the Dispatch Act. The term ‘wage’ as a subject of discriminatory treatment refers to discrimination under comparable conditions where qualifications, career, and wage systems are similar and can be easily compared between parties. In our hospital’s case, although both work at the same place, differences in wage systems and other conditions exist, making comparison difficult; thus, it is considered inappropriate to apply the prohibition of discriminatory treatment under the Dispatch Act.
5.An encouragement payment for productivity improvement is planned to be paid based on labor-management agreement. Is it a violation of the anti-discrimination provisions if encouragement money is not paid to dispatched workers? Also, if performance bonuses and settlement lump-sum payments are decided as a result of wage negotiations with the labor union, must these payments also be made to dispatched workers? (However, there are no regulations on the payment of encouragement money, performance bonuses, or settlement lump sums, nor are they stipulated in the collective agreement, and non-regular workers are excluded from the union coverage in the collective agreement.)
4.Whether the fine of up to 100 million KRW imposed for non-compliance with finalized corrective orders under the 「Act on the Protection of Fixed-term and Part-time Workers」 and the 「Act on the Protection of Dispatched Workers」 is applied per individual worker, and what the relevant statutory provision is.
3.① Whether a dispatching company can deduct fees from the wages of dispatched workers; ② Regarding the prohibition of discrimination against dispatched workers, whether only the total amount of wages must be equal or whether all wage components must be the same; ③ Whether the wages of regular employees and dispatched workers must be the same, or whether the regular employees’ wages and the dispatch fee paid to the dispatching company must be the same.
2.① In cases where dispatched workers receive lower wages than workers performing the same tasks within the user company’s workplace, is the dispatching company fully responsible for the discriminatory treatment? ② If the wages of workers performing the same tasks within the user company’s workplace are increased, must the dispatched workers also receive a wage increase at the same level? ③ If the user company refuses to renew or re-contract for wage increases, does responsibility for discriminatory treatment still lie with the dispatching company, and what is the resolution method?
1.When a dispatched worker receives discriminatory treatment in wages compared to the comparison workers within the user company’s workplace due to the superior position of the user company, should the subject receiving the discrimination correction order be the user company rather than the dispatching company?
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