LABOUR LAWS/POLICY - SOUTH KOREA

FOREIGN WORKERS

ELIGIBLE PEOPLE
Pursuant to the Immigration Control Act, professional or skilled foreigners can be employed in Korea after being issued with the following types of visas:

1. professors(E-1),
2. teaching foreign languages(E-2),
3. research(E-3),
4. special technology instruction(E-4),
5. specialty occupations(E-5),
6. arts and entertainment(E-6),
7. and other particular occupations(E-7).

For IT workers in particular, the gold card system was introduced in November, 2000 and has been implemented since then. The gold card system is intended to relax requirements for the stay of IT workers in Korea by issuing multiple visas, extending maximum sojourn periods and permitting activities other than those permitted under their status of sojourn.

GENERAL PROCEDURE

The parties concerned sign an employment contract. A related minister makes a recommendation. The Minister of Justice issues a visa issuance certificate. The foreign worker enters Korea. Arts and entertainment (E-6) : A performance company requests a performance. The entertainment agent and the entertainer sign an employment contract. The agent asks the performance to be deliberated and recommended. The Korea Media Rating Board makes the deliberation and recommendation. The Minister of Justice issues a visa issuance certificate. The entertainer concerned enters Korea

When the Korea Media Rating Board recommends a performance by a foreign entertainer, the Performance Act should be applied. And only worker dispatch agents under the Act on Protection, etc. for Dispatched Workers can apply for the recommendation of a performance

Under the Act on Protection, etc. for Dispatched Workers, "arts and entertainment" are included in 26 occupations for which worker dispatch is permitted

WORKING STANDARDS AND WELFARE

The Labor Standards Act, which stipulates minimum working standards for workers, used to be applied to workplaces with five or more workers, but with the revision of the Enforcement Decree effective on February 24, 1998, the scope was expanded to cover all workplaces, which came into effect from January 1, l999.
However, some provisions(relating to employment contracts, restrictions on dismissal, working hours, leave, etc.) are not applied to workplaces with four workers or less given economic conditions and administrative capacity.

RESTRICTIONS ON DISMISSALS

Employers cannot dismiss employees without justifiable causes. If dismissed without justifiable causes, an employee can apply for redress to a Labor Relations Commission. Employers may be subject to punishment for any unjustifiable dismissal.

If an employer wants to dismiss his/her workers for managerial reasons, the employer should meet strict conditions and procedures. First of all, the employer should have urgent managerial reasons, make every effort to avoid such dismissal, select those to be dismissed by rational and fair standards, and sincerely consult with the trade union or workers' representatives in advance.

On the other hand, even when an employer dismisses his/her workers for justifiable reasons, the employer must notify the workers concerned of dismissal at least 30 days in advance. Otherwise, the employer should pay the workers 30 days or more of ordinary wages.

WAGE AND SEVERANCE PAY

In principle, workers shall be paid their full wages on a specific day each month. If a worker demands wages in an emergency situation, such as childbirth, sickness, accident, etc., the amounts of wages corresponding to the amount of work offered shall be paid even before payday.

If a worker has worked for more than one year in a workplace with 5 workers or more, the worker shall be given severance pay in the amount of at least 30-day average wages for each year of service. Severance pay, in principle, should be paid after retirement. However, should a worker request, he or she may receive, in advance, severance pay corresponding to their years of service to date.

An employer may take out retirement insurance to ensure that his/her workers can draw pensions form the insurance after their retirement. Daily construction workers could not receive statutory severance pay due to the unique nature of their employment such as frequent job transfer, difficult employment conditions, etc.

So, the government introduced the Mutual Retirement Aid System for Construction Workers with the enactment of the Act on the Employment Improvement, etc. of Construction Workers in January 1998. Under this system, construction workers are required to put one mutual retirement aid stamp for each of their working day on their welfare pocket books. If they collect more than 252 such stamps corresponding to one year of service, they will be given retirement pay after retirement.

Along with this, since July 1, 1998, the government has implemented the Wage Claim Guarantee System that guarantees to pay workers who retire from a bankrupt company part of their unpaid wages. Because it is difficult for workers to claim their unpaid wages in the event of corporate bankruptcy, the government, on behalf of employers, guarantees to pay workers overdue wages, shutdown allowances, unpaid wages of final three months and severance pay of final three years.

PROTECTION OF PART-TIME WORKERS

Part-time workers are defined as those whose prescribed weekly working hours are short compared with ordinary workers. Their working conditions are guaranteed proportionate to the working hours of ordinary workers.

LABOR INSPECTOR SYSTEM

The Labor Inspector System was established to ensure legal standards of working conditions and to enforce the labor standards law. Labor inspectors carry out various duties to protect workers' working conditions.

WORKING HOURS

It is stipulated in laws that working hours, excluding recess hours, shall not exceed 44 hours per week or 8 hours per day. In the case of overtime work agreed upon by the parties concerned, 50% of ordinary wages shall be paid additionally.

Standard Working Standard Working Extendable hours
Hours / Day Hours / Week
with the agreement of the parties concerned

Males 8hours 44hours 12 hours (a week)

Females 8hours 44hours 12 hours (a week)

Females within 8hours 44hours 2 hours (a day); 6 less than one year of hours (a week): 150 childbirth hours (a year)

Minors under 18 years 7hours 42hours 1 hour (a day); 6 hours (a Week)

Workers engaged in Hazardous jobs 6hours 34hours

(Source: Labor Standards Bureau, Ministry of Labor)

If the flexible working hour system is adopted, through either an employment rule or a written agreement with workers' representatives, working hours can be extended. For instance, during a certain two-week period, it is possible to extend the working hours of a specific week up to 48 hours without providing additional pay, as long as the weekly average of working hours is 44 hours. On a monthly basis, working hours of a specific week and a specific day can be extended up to 56 hours and 12 hours, respectively, under a written agreement between an employer and workers, as long as the weekly average does not exceed 44 hours.

HOLIDAYS & LEAVE

Weekly Holiday One paid holiday shall be granted to those who have worked for a week without an absence.
Monthly Paid Leave One-day paid leave shall be granted to those who have worked for a month without an absence.
Annual Paid Leave Ten-day paid leave shall be granted to those who have worked for a year without an absence. In case of 90% of attendance during an one-year period, 8-day paid leave shall be granted. (One-day annual leave is added for each of consecutive service years exceeding one year. If the number of leave days exceeds 20 days, the excess can be replaced with monetary compensations.)

The working hours, holidays and leave system explained above will be changed from July 1, 2004 as a result of the revision of the Labor Standard Act on September 15, 2003. This revision includes reduction in statutory working hours per week from 44 hours to 40 hours, abolition of monthly paid leave, menstruation leave without pay, etc.

MINIMUM WAGE SYSTEM

The Minimum Wage Act, which aims to stabilize the livelihood of low-income workers and narrow wage gap, has been in force since 1988. In 1988, the Minimum Wage System applied only to manufacturing enterprises with ten or more regular employees.
From 1989, the system began to cover manufacturing, construction, and mining enterprises with ten or more regular employees. Since 1990, the system has applied to all enterprises employing ten or more regular employees. The coverage of the Act was extended to workplaces with 5 employees or more in September 1999, and further extended to all workplaces on November 24, 2000.

The government sets and announces the minimum wage no later than August 5 of every year, and the minimum wage applies from September 1 of eachyear to August 31 of the following year. The minimum wage applicable from September 1, 2003 to August 31, 2004 is 2,510 won per hour (20,080 won for a standard 8-hour work day).
Workers under the age of 18 can receive 90%(hourly rate of 2,259 won) of the minimum wage for the first six months of their employment. Even workers under 18 become entitled to full minimum wage, if their employment period is more than 6 months.

REMEDY OF LATE PAYMENT OF WAGES

If a worker dies or retires, an employer shall pay the wages, compensations, and other money or valuables within 14 days after the cause for such payment has occurred; however, the period, underspecial circumstances, may be extended by the mutual agreement between the parties concerned (article 36 of the Labor Standards Act).
A person who has violated the said provisions shall be punished by imprisonment of up to three years or a fine up to 20 million won (article 112 of the Labor Standards Act).

REPORT FOR REMEDY OF RIGHTS

Outline

1. A worker submits a petition stipulating the name of the company, the employer's name, address, etc, and the amount of overdue payment to a labor inspector in the regional labor office responsible for the area where the company is located.


2. The labor inspector examines the facts and set a period during which the employer should pay the overdue wages or severance pay to the worker.


3. In case the employer does not pay overdue wages during the set period, he/she will be subject to criminal punishment for violation of the Labor Standards Act.


Means of reporting (choose one of the two)

Visit the labor office, receive counseling¡¡at the labor inspection division and fill the petition form and submit it. (In the process of counseling, labor inspectors can persuade the employer to pay wages and end the dispute immediately.)

Or visit the ministry web-site, fill the petition form and submit the electronic petition.

PROCEDURE

Receipt of petition registering the petition to the petition handling ledger Issuance of summons summoning the petitioner and the employer the petition is filed against on a date set within 10 days from the date the petition is received.

Fact-finding examining the workplace, identifying the reason for overdue wage, confirming the amount of the wage unpaid and adjusting the time to liquidate the overdue wage and other valuables Time for payment sending a public document ordering the employer to pay the confirmed wage or severance pay by the set date.

Payment of wages or severance pay Ending the case when the worker receives his/her wage In case the overdue wage or severance pay is not paid in case the employer does not pay the overdue wage or severance pay by the set date, he/she is prosecuted for violation of the Labor Standards Act and subject to criminal punishment (the labor inspector should send the person prosecuted for violation of the Labor Standards Act to the Prosecutor's Office within 60 days since he/she is booked).