Apply the Labor Standards Act to workplaces with fewer than 5 employees

▲ Kim Ki-duk, Representative of Saenal, Labor Law Office

1. ‘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’ (Maeil Labor News, January 10, 2022). The news was that the legislation to apply the Labor Standards Act to all workplaces with fewer than 5 workers was difficult to handle at this extraordinary session of the National Assembly. It seems to be true of the ‘labor-free election’. In terms of the number of pages, the workers vote would be enough to determine the success or failure, but it would be viewed as not nutritious enough to be ignored. If you can become a vote every day by meeting ‘Lee Dae-nam’ (a man in his 20s) and saying the policy for them, and by meeting ‘Lee Dae-nyeo’ (a woman in his 20s) and announcing a promise for them, it’s like this and that and that. Major presidential candidates from the ruling and opposition parties and their political parties are not interested in pushing for legislation to apply the Labor Standards Act to workplaces with fewer than five workers today. How many lawmakers belong to the Democratic Party of Korea and People’s Power to which Lee Jae-myung and Yoon Seok-yeol belong, and if they show interest, it is certain that the matter will be dealt with at this extraordinary session of the National Assembly right away. Even if you do not expect that far, the candidates of the ruling party who claim to be relatively pro-labor and the will of the ruling party occupy a majority of seats, so there is no danger of being stranded without passing the threshold of this extraordinary session. Not doing what you can do if you have the will shows that you have no will to do it. Today, their words for the workers show that they are only speaking for the sake of the vote without the will to act for the workers. After reading the article in Maeil Labor News, there was another news article.

2. It was an article interviewed with Democratic Party lawmaker Lee Su-jin of the National Assembly Environment and Labor Committee under the title, “Expand the employment law for workplaces with fewer than 5 employees, we will definitely do it.” In response to the ‘labor community and civil society urging the Justice Party lawmaker Kang Eun-mi to apply all labor laws to all workplaces’, Rep. Lee Su-jin said, “I agree with the direction, but it is right to expand it in stages.” “Discussing workplaces with fewer than 5 employees.” is a must, and will definitely do it,” he said.

Would anyone say that they do not agree with the direction of expanding and applying the Labor Standards Act to workplaces with fewer than 5 employees? No matter how much the people’s power is on the side of user capital, any lawmaker will not say that he does not agree with that direction. Even Yoon Seok-yeol, a presidential candidate for the People’s Power, who expressed negative opinions about the minimum wage system and the 52-hour week system, must say that he agrees with that direction. However, I will add that it should be done in consideration of the realities such as the company’s ability to pay. As for the direction, it can be said that even those who are for user capital agree freely. Only through concrete actions, not directions, can the will for workers be confirmed. So, I read the words of a member of the Democratic Party of Korea saying ‘I will definitely do it’ as saying that he has no will to deal with it in this extraordinary session. I am reading this as an excuse for not having the will to push for legislation to apply the Labor Standards Act to workplaces with fewer than 5 employees. “I will go someday, youth… .” Borrow even the damn youth and say, ‘Someday I’ll do the legislation… ‘ Am I supposed to sing a song of lamentation? It was an interview that left no trace of expectations. It was an interview with a member of the council who started with ‘Maybe’ in the title, and read as ‘Really’.

3. It’s not a great piece of legislation. I am not asking you to make laws that guarantee the freedoms and rights of new workers in this world. In retrospect, it is asking workers to apply what is guaranteed by workers’ rights. However, it is so difficult in this country, Korea.

The Labor Standards Act is a law for the state and workers to guarantee the minimum standards of working conditions. In order to protect workers who cannot set working conditions by negotiating on an equal footing through the conclusion of collective agreements through bargaining and struggle through the labor union, individually through the conclusion of a labor contract with the employer, the state sets the minimum standard to guarantee the rights of workers. This is for the Labor Standards Act. Therefore, labor laws such as the Labor Standards Act exist to protect workers who cannot be guaranteed the minimum standard of working conditions through the conclusion of an individual labor contract with the employer or through the conclusion of a collective agreement through the union. In short, the Labor Standards Act is a legal entity that should exist for workers in poor circumstances. There is no need to apply the Labor Standards Act, which is a lower minimum standard, if workers’ rights can be guaranteed superiorly through collective agreements concluded through unions at large workplaces such as large enterprises. Otherwise, the Labor Standards Act needs to be applied to ensure the minimum working conditions as a right for workers who cannot be guaranteed such rights because they are small and medium-sized enterprises (SMEs). The Labor Standards Act exists to protect poor workers who are not guaranteed the minimum working conditions. Considering the significance of the existence of this law, it is only natural that it should be applied first to workers in small and medium-sized enterprises and small businesses. So, if it was decided to apply in stages, it had to be applied sequentially, starting with the poor workers of small and medium-sized enterprises and small businesses. But not in this country. Rather, it was the opposite. The law has been applied step by step and preferentially to protect workers in superior circumstances, not for poor workers. Typically, this was the case in the enforcement of the revised Labor Standards Act regarding the legal 40-hour work week, the revised Labor Standards Act regarding the 52-hour workweek, and the Age Discrimination Prohibition and Employment Promotion of the Elderly Act regarding the extension of the retirement age (Elderly Employment Act). . And, regarding the application of the Labor Standards Act to workplaces with fewer than 5 employees in this country, they are saying that they will apply it in stages today, and that it will be applied someday.

4. Article 11 (1) of the Labor Standards Act stipulates that “This Act applies to businesses or workplaces employing five or more workers at all times,” and Paragraph 2 provides that “For businesses or workplaces employing four or fewer workers at all times, as prescribed by Presidential Decree, Some provisions of the law may be applied accordingly.” Accordingly, the Enforcement Regulations of the Labor Standards Act, which is the Presidential Decree, specifically stipulate the subject of application. In workplaces with fewer than 5 employees, △ Restriction on dismissal (Article 23 (1)) △ Request for remedy for unfair dismissal (Article 28) △ Working hours (Article 50) △ Extension Labor restrictions (Article 53) △ Substitute holidays (Article 55 (2)) △ Additional allowance for overtime/night/holiday work (Article 56) △ Annual paid leave (Article 60) △ Prohibition of workplace harassment (Article 76-2) is not applied. In fact, in workplaces with fewer than 5 workers, the employer can fire any number of workers without justifiable reasons, and can have them work overtime or overtime without a 52-hour week limit. It is good for the employer, but there is no worse law than this for the worker. In a word, the Labor Standards Act in this country is standing in denial of its existence to protect poor workers.

Nevertheless, the Labor Standards Act has been treated as a law for workers in this country. Fifty years ago, Jeon Tae-il, the martyr who burned himself, exclaimed, “Comply with the Labor Standards Act.” The martyrs were treated so great that they burned their bodies while shouting to protect the employers and the state power. But today, 50 years after the death of the martyrs, will they obey the Labor Standards Act and shout at the reality of the law in this country? I’m not sure that the martyrs will be like that today. I don’t believe you’ll be outraged at a law that doesn’t restrict employers’ dismissal, or a law that doesn’t restrict long working hours through overtime or overtime, and just shout out to obey those laws. Many of the workers at the Cheonggyecheon Pyeonghwa Market, whom the martyrs loved so much, are employed in small businesses with fewer than five workers. Even so, I believe that I am not a martyr who will ignore this and cry out for compliance with the Labor Standards Act. Rather, I believe that the Labor Standards Act would be angry at the fact that Jeon Tae-il did not exist for the worker he loved so much. And I believe that people who do not do it even though it can be enacted right away will be outraged at the words ‘I will definitely do it’. In this country, the Labor Standards Act should not be treated as a law to protect poor workers. We have to treat micro-workplace workers with fewer than 5 workers as a damn law that guarantees that employers can use them without dismissal restrictions and make them work long hours.

Representative of Saenal, Labor Law Office ([email protected])

Reference-www.labortoday.co.kr

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