One stranded of the ‘Labor Standards Act without Discrimination’

▲ File photo Reporter Jeong Ki-hoon

The amendment bill to the Labor Standards Act to eliminate discrimination in workplaces with fewer than five employees eventually failed to cross the threshold of the extraordinary National Assembly and was in danger of being stranded. There are many voices calling for an urgent amendment to the law to protect 3.56 million workers who are in the blind spot of the Labor Standards Act.

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100,000 people participated in the petition for public consent, but…

Article 11 (1) of the Labor Standards Act stipulates that “This Act shall apply to businesses or workplaces employing five or more workers at all times.” Article 11 (2) stipulates that “partial provisions of the Act may be applied to businesses or workplaces that employ four or fewer workers at all times, as prescribed by Presidential Decree.” Accordingly, in workplaces with fewer than 5 employees, △Restriction on dismissal (Article 23, Paragraph 1) △ Application for remedy for unfair dismissal (Article 28) △ Working hours (Article 50) △ Restriction on overtime work (Article 53) △ Substitute holiday (Article 55 (2)) △ Additional allowances for overtime, night and holiday work (Article 56) △ Annual paid leave (Article 60) △ Prohibition of workplace harassment (Article 76-2) do not apply.

In 2008, the National Human Rights Commission of Korea recommended that the application of the Labor Standards Act be expanded, saying, “There is no reasonable reason to exclude the main provisions of the Labor Standards Act only for workplaces with fewer than five employees.” The Employment and Labor Administrative Reform Committee under the Ministry of Employment and Labor also issued a recommendation in 2018 to “expand the application of the Labor Standards Act to workplaces with fewer than five employees,” but nothing has changed.

To commemorate the 50th anniversary of the self-immolation of Jeon Tae-il, the Confederation of Trade Unions and the Justice Party started a movement to agree to the legislation in August 2020. 100,000 people participated in the National Assembly petition for consent to amend Article 11(1) of the Labor Standards Act to “This Act shall apply to all businesses or workplaces”. The petition, which met the requirements for establishment, was referred to the Environment and Labor Committee of the National Assembly, but was left unattended for over a year. Rep. Kang Eun-mi of the Justice Party and Rep. Lee Su-jin and Yoon Jun-byeong of the Democratic Party also proposed amendments to the Labor Standards Act, but they were rarely discussed.

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The issue of discrimination in workplaces with fewer than five employees began to become a public debate again in June of last year when the enactment of the Public Holiday Act (the Public Holiday Act) passed the National Assembly. If a public holiday falls on a Saturday, Sunday, or other public holiday, the Public Holiday Act, which requires designation as a substitute holiday, does not apply to workplaces with fewer than five employees. This is because Article 4 of the Public Holidays Act stipulates that “the application of substitute holidays shall be in accordance with the provisions of related laws such as the Labor Standards Act”. In August, the Union for Finding Rights filed a constitutional complaint, saying, “It is unconstitutional that businesses with fewer than 5 employees are not entitled to alternative holidays under Article 4 of the Public Holiday Act.”

In September, 81 labor, civil and social groups, including the KCTU and the Solidarity for Participation, launched the ‘Joint Action to Abolish Discrimination with Less than 5 Employees’ to make the ‘Labor Standards Act for All Workers’. The joint action announced in November that after an open inquiry to 16 members of the National Assembly’s Labor and Labor Committee, 10 people except for 6 members of the People’s Power supported the revision of Article 11 of the Labor Standards Act. In addition, Rep. Lim Im-ja, secretary of the People’s Power of the National Assembly’s Labor and Relations Committee, announced at a discussion at the Korean Federation of Trade Unions that he would push for a revision of the law to fully apply the Labor Standards Act, and the related discussion seemed to heat up.

However, the discussion on the revision of the Labor Standards Act was pushed aside at the 8 meetings of the Labor and Labor Relations Commission that were held from the 1st of last month to the 4th of this month. On the 9th of last month, the Second Lieutenant held a legislative public hearing on the amendment of the Labor Standards Act, and only read through the six amendments proposed at the meeting on the 16th of the same month. Considering the schedule of the National Assembly plenary session scheduled for the 11th, it is unlikely that the amendment to the Labor Standards Act will be processed within this extraordinary session of the National Assembly. There is no schedule for the Employment and Labor Bill Examination Subcommittee, so there is not enough time physically to go through the ‘Bill Subcommittee-Standing Committee Plenary Meeting-Legal Judiciary Committee’ procedure before the plenary session.

The government is also lukewarm about the revision of the Labor Standards Act. At a press conference on the 6th, Minister of Employment and Labor Ahn Gyeong-deok said, “There are so many things to think about, so I hope that the Economic, Social and Labor Committee can form a consensus with labor, management and experts to discuss it.”

Kwak Yi-kyung, head of the U.S. Organizational Strategy and Organization of the KCTU, pointed out in a phone call with Maeil Labor News on the 9th, “The National Assembly and the government are showing an attitude that they will not be held responsible for each other because of the old-fashioned reason that there is a lack of gathering opinions or social consensus.”

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