Home | Databases | WorldLII | Search | Feedback Laws of the Republic of Korea

ENFORCEMENT DECREE OF THE ACT ON THE PROTECTION, ETC., OF DISPATCHED WORKERS

ENFORCEMENT DECREE OF THE ACT ON THE PROTECTION, ETC., OF DISPATCHED WORKERS

Presidential Decree No. 15828, July 1, 1998

Amended by Presidential Decree No. 20094, Jun. 18, 2007 Article 1 (Purpose)

The purpose of this Decree is to stipulate matters delegated by the Act on the Protection, etc., of Dispatched Workers and those necessary for the enforcement thereof.

Article 2 (Jobs Permitted or Prohibited for Worker Dispatch) (1) "The jobs prescribed by the Presidential Decreeß×in Article 5 (1) of the Act on the Protection, etc., of Dispatched Workers (hereinafter referred to as the ßÖActß×) refer to those described in the annexed Table 1.

(2) "The jobs prescribed by the Presidential Decreeß×in subparagraph 5 of Article 5 (3) of the Act refer to those falling under any of the following subparagraphs:

1. The dusty work as prescribed in subparagraph 3 of Article 2 of the Act on the Prevention of Pneumoconiosis and Protection, etc., of Pneumoconiosis Workers;

2. The work that is subject to the issuance of health management pocketbooks as prescribed in Article 44 of the Occupational Safety and Health Act;

3. The work of medical persons as prescribed in Article 2 of the Medical Service Act, and the work of assistant nurses as prescribed in Article 80 of the same Act;

4. The work of medical technicians as prescribed in Article 3 of the Medical Technicians, etc., Act;

5. The driving work in a passenger vehicle transport business as prescribed in subparagraph 3 of Article 2 of the Act on Passenger Vehicle Transport Business; and

6. The driving work in a freight vehicle transport business as prescribed in subparagraph 3 of Article 2 of the Act on Freight Vehicle Transport Business.

- 2 -

Article 2-2 (Exception to Obligation of Employment) "Cases where there is a justifiable reason prescribed by the Presidential Decree" refer to those falling under any of the following subparagraphs :

1. Cases falling under any of the subparagraphs of Article 4 of the Enforcement Decree of the Wage Claim Guarantee Act; and

2. Cases where it is impossible to continue business due to natural disasters, armed conflicts or other inevitable reasons.

Article 3 (Detailed Criteria for Permission)

The criteria for the assets, facilities, etc., of a worker dispatch undertaking under Article 9 (2) of the Act shall be as follows:

1. The undertaking shall be a business or a workplace with five or more employees (excluding dispatched workers), and have joined employment insurance, national pension insurance, industrial accident compensation insurance and national health insurance;

2. The undertaking shall have capital (asset valuation in case of an individual) of more than 100 million won ; and

3. The undertaking shall have an officeßÓs exclusive area of larger than 66m2.

Article 4 (Restrictions on Use of Dispatched Worker) For two years after dismissing a worker for a managerial reason under Article 24 of the Labor Standards Act, a dispatched worker shall not be hired for the purpose of performing the concerned job pursuant to Article 16 (2) of the Act : Provided that if a trade union with a majority of workers (or a person who represents a majority of workers if such a union does not exist) exists within the concerned business or workplace, the period may be shortened to 6 months with the consent of the trade union.

Article 4-2 (Scope of Information and Method of Provision of Information)

(1) The information a using employer shall provide to the sending employer pursuant to Article 20 (2) refers to - 3 -

information described in any of the following subparagraphs with regard to workers performing work which is the same as or similar to that of the dispatched worker in the business of the using employer:

1. Whether there are such workers or not and the number of workers;

2. Wage and wage components;

3. Matters concerning the starting and closing time of work and rest time;

4. Matters concerning holidays and leave;

5. Matters concerning overtime, night and holiday work;

6. Matters concerning health and safety;

7. Matters concerning the use of welfare facilities; and

8. Matters concerning other working conditions subject to discriminatory treatment under subparagraph 7 of Article 2 of the Act but not included in the provisions of subparagraphs 2 through 7.

(2) A using employer shall provide the sending employer with information prescribed in any of the subparagraphs of paragraph (1) in writing.

Article 5 (Using Employer's Liability)

The "causes attributable to the using employer as prescribed by the Presidential Decree" in the former part of Article 34 (2) of the Act shall refer to causes falling under any of the following subparagraphs:

1. In case where a using employer breaches a contract on worker dispatch without a justifiable reason; and

2. In case where a using employer fails to pay for worker dispatch, which is stipulated in the contract on worker dispatch, without a justifiable reason.

Article 6 (Delegation of Authority)

The Minister of Labor, in accordance with Article 41 of the Act, shall delegate authority described in any of the following subparagraphs to the head of a regional labor office:

1. Permission of a worker dispatch undertaking, permission for changes thereto, receipt of a report on changes thereto and permission for the renewal thereof under Article 7 (1) and (2) and Article 10 (2) of the Act;

2. Receipt of a report on the discontinuation of a - 4 -

worker dispatch undertaking under Article 11 (1) of the Act;

3. Cancellation of the permission of a worker dispatch undertaking and suspension of business under Article 12 of the Act;

4. Receipt of a business report under Article 18 of the Act;

5. Shutdown action, etc., under Article 19 of the Act; 5-2. Demand for the submission of a status report on a confirmed redress order under Article 15 (1) of the Act on the Protection, etc., of Fixed-term and Part-time Employees applying mutatis mutandis pursuant to

Article 21 (3) of the Act and receipt of a report of non-compliance with a confirmed redress order under paragraph (2) of the same Act;

6. Guidance and advice under Article 36 of the Act;

7. Improvement order under Article 37 of the Act;

8. Report order and visit, inspection, and questioning under Article 38 of the Act;

9. Request for materials under Article 39 of the Act; and

10. Imposition and collection of a fine for negligence under Article 46 of the Act.

Article 7 (Procedures for Imposition and Collection of Fine for Negligence)

(1) When imposing a fine for negligence under Article 46 (5) of the Act, the act of violation shall first be investigated and confirmed and then the person subject to the fine for negligence shall be notified in writing of the offense, the amount of the fine for negligence, etc., and that he/she should pay the fine for negligence.

(2) If the Minister of Labor intends to impose a fine for negligence pursuant to paragraph (1), he/she shall set a period of at least 10 days and give the person subject to the fine for negligence to state opinions verbally or in writing during that period. In this case, if no opinion is stated until the end of the set period, it shall be considered that he/she has no opinion to state.

(3) The Minister of Labor shall take into account the motives and consequences of the act of violation in determining the amount of fine for negligence and the criteria for the imposition of a fine for negligence are shown in the annexed Table 2.

- 5 -

(4) The procedures for the collection of a fine for negligence shall be prescribed by the Ordinance of the Ministry of Labor. Addenda Article 1 (Enforcement Date)

This Decree shall enter into force on July 1, 2007 : Provided that enforcement dates for the revised provisions of Article 4-2 and Table 2 (limited to subparagraphs 1 and 3) are prescribed in the following subparagraphs according to the size of a business or workplace (referring to the business or workplace of a using employer; hereinafter the same shall apply.):

1. Businesses or workplaces with 300 workers or more : July 1, 2007;

2. The state or local government agencies; among agencies designated as public enterprises, quasi-government agencies or other public agencies pursuant to Article 5 of the Act on the Operation of Public Agencies, those that meet the conditions for government-affiliated institutions under Article 3 of the Framework Act on the Management of Government-affiliated Institutions repealed pursuant to Article 2 of the Addenda of the Act on the Operation of Public Agencies amended by Act no. 8258 or those that meet the conditions for government-invested institutions under Article 2 of the Framework Act on the Management of Government-invested institutions; local public enterprises and local public corporations under Articles 49 and 76 of the Local Public Enterprises Act; government-invested research institutions and societies under Article 2 of the Act on the Establishment, Operation and Fosterage of Government-invested Research Institutions, etc., and Article 2 of the Act on the Establishment, Operation and Fosterage of Government-invested Research Institutions in Scientific and Technological Areas; and university hospitals under the Act on the Establishment of National and University Hospitals : July 1, 2007

3. Businesses or workplaces with 100~299 workers : July 1, 2008

4. Businesses or workplaces with less than 100 workers : July 1, 2009

Article 2 (Transitional Measures Concerning Jobs Permitted for Worker Dispatch)

(1) Workers dispatched to do the jobs permitted for worker dispatch pursuant to the previous provisions of Table 1 during - 6 -

the enforcement of this Decree shall be regarded as being dispatched to do the jobs permitted for worker dispatch pursuant to the revised provisions of Table 1.

(2) The jobs permitted for worker dispatch pursuant to the revised provisions of Table 1 during the enforcement of this Act shall be regarded as being included in the jobs to which new codes are assigned in the list of comparison between the old and new Korean Standard Classification of Occupations (Public announcement no. 2000-2 by the National Statistical Office). - 7 -

[Annex 1]

Jobs Positive for Worker Dispatch

Korean Stndard

Classification

of Occupations

Jobs Positive for Worker Dispatch Remarks

213 computing professionals

241 business professionals

243 archivists and related information

professionals

excludes the job of

librarians(24321).

2444 philologists, translaters and interpreters

31141

telegraph and telephone communications

engineering technicians

limited to assistants for

examining reception in the

area where it is poor

3118 draughtspersons

3121 computer assistants

31317 image equipment operators limited to assistants 31325 radio and television broadcasting

equipment operators

limited to assistants

33409 other teaching associate professionals

3431 administrative secretaries and related

associate professionals

347

artistic, entertainment and sports associate

professionals

411 secretaries and keyboard operating clerks

excludes data entry operators

(4113) and calculating machine

operators(4114)

414 library, mail and related clerks

4215 debt collectors and related workers

4223 telephone switchboard operators

excludes where it is

considered the core service

in the concerned business

5113 travel guides

5122 cooks

excludes those cooks in tourism

and hotels as stipulated in

Article 3 of the Tourism

Promotion Act

5131 child-care workers

51321 institution-based nursing aids excludes assistant nurses 5133 home-based personal care workers

52204 petrol pump attendants

832 motor vehicle drivers

excludes the jobs stipulated

in subparagraphs 5 and 6 of

Article 2 (2)

91132 telephone salespersons

91321 charworkers

91521 doorkeepers

- 8 -

[Annex 2]

Imposition Criteria

for Fine for Negligence by Type of Violation

(unit : 10,000 won)

Violation Provisions Concerned

Am ount of Fine

for

Negligence

1. failure to report, or report of false inform ation under Article 11 (1) of

the Act

subparagraph 1 of

Article 46 (1)

200

2. failure to file a report, or filing of a false report, under Article 18 or

Article 38 (1) of the Act

subparagraph 2 of

Article 46 (1)

300

3. violation of provisions of Article 27, Article 29, or Article 33 of the

Act

subparagraph 3 of

Article 46 (1)

200

4. failure to send concerned health exam ination results violating the

provisions of paragraph (3) or (5)

of Article 35 of the Act

subparagraph 4 of

Article 46 (1)

200

5. violation of im provem ent order of Article 37 of the Act

subparagraph 5 of

Article 46 (1)

300

6. rejection and interference or evasion of insp ection w ithout justifiable

reasons as prescribed by paragraph

(2) of Article 38 of the Act

subparagraph 6 of

Article 46 (1)

300