ACT ON THE PROTECTION OF FIXED-TERM AND PART-TIME EMPLOYEES
Act No. 8074, Dec. 21, 2006
Amended by Act No. 8372, Apr. 11, 2007
Act No. 10339, jun. 4, 2010
Act No. 11273, Feb. 1, 2012
Act No. 11667, Mar. 22, 2013
Act No. 12469, Mar. 18, 2014
CHAPTER I GENERAL PROVISIONS
The purpose of this Act is to promote the sound development of the labor market by redressing undue discrimination against fixed-term and part-time workers and improving their working conditions.
Definitions of the terms used in this Act shall be as follows: <Amended by Act No. 8372, Apr. 11, 2007; Act No. 11667, Mar. 22, 2013>
| 1. | The term "fixed-term worker" means a worker who has signed an employment contract whose period is fixed (hereinafter referred to as "fixed-term employment contract"); |
| 3. | The term "discriminatory treatment" means unfavorable treatment in terms of any of the following items without any justifiable grounds. |
| (b) | Incentive pay on a regular basis such as regular bonuses and holiday bonuses; |
| (c) | Performance based bonuses; |
| (d) | Other matters concerning working conditions and welfares. |
| Article 3 (Scope of Application) |
| (1) | This Act shall apply to all business or workplaces ordinarily employing at least five workers: Provided, That this Act shall not apply to business or workplaces which employ only relatives living together with their employer, nor to servants hired for domestic work. |
| (2) | With respect to business or workplaces ordinarily employing not more than four workers, some of the provisions of this Act may apply, as prescribed by Presidential Decree. |
| (3) | With respect to State and local government agencies, this Act shall apply regardless of the number of workers they ordinarily employ. |
CHAPTER II FIXED-TERM WORKERS
| Article 4 (Employment of Fixed-Term Workers) |
| (1) | Any employer may hire a fixed-term worker for a period not exceeding two years (where his/her fixed-term employment contract is repetitively renewed, the total period of his/her continuous employment shall not exceed two years): Provided, That where a fixed-term worker falls under any of the following subparagraphs, any employer may hire such worker for more than two years: |
| 1. | Where the period required to complete a project or particular task is specified; |
| 2. | Where a fixed-term worker is needed to fill a vacancy arising from a worker's temporary suspension from duty or dispatch until the worker returns to work; |
| 3. | Where the period required for a worker to complete his/her schoolwork or vocational training is specified; |
| 5. | Where the job requires professional knowledge and skills or is offered as part of the Government's welfare or unemployment measures, as prescribed by Presidential Decree; |
| 6. | Where any reasonable ground exists equivalent to those mentioned in subparagraphs 1 through 5, as prescribed by Presidential Decree. |
| (2) | Where any employer hires a fixed-term worker for more than two years although those grounds under the proviso to paragraph (1) do not exist or cease to exist, such fixed-term worker shall be deemed a worker subject to non-fixed term employment contract. |
| Article 5 (Conversion to Workers on Non-Fixed Term Contract) |
If any employer intends to enter into a non-fixed term employment contract, he/she shall endeavor to preferentially hire fixed-term workers engaged in the same or similar kinds of work at the business or workplace concerned.
CHAPTER III PART-TIME WORKERS
| Article 6 (Restrictions on Overtime Work of Part-Time Workers) |
| (1) | If any employer intends to have a part-time worker provide his/her services in excess of the working hours prescribed in Article 2 of the Labor Standards Act, it shall obtain the consent of such worker. In such cases, the number of overtime hours shall not exceed 12 hours a week. <Amended by Act No. 8372, Apr. 11, 2007> |
| (2) | Any part-time worker may refuse to work overtime if the employer orders the overtime work without obtaining his/her consent under paragraph (1). |
| (3) | Any employer shall pay 50/100 or more of the average wage for overtime work under paragraph (1) in addition to ordinary wages. <Newly Inserted by Act No. 12469, Mar. 18, 2014> |
| Article 7 (Conversion, etc. to Full-Time Workers) |
| (1) | If any employer intends to hire a full-time worker, he/she shall endeavor to preferentially hire part-time workers engaged in the same or similar kinds of work at the business or workplace concerned. |
| (2) | If any worker applies for part-time work due to household duties, study or any other reason, the employer shall endeavor to convert such worker to a part-time worker. |
CHAPTER IV PROHIBITION AND CORRECTION OF DISCRIMINATORY TREATMENT
| Article 8 (Prohibition of Discriminatory Treatment) |
| (1) | No employer shall give discriminatory treatment to any fixed-term worker on the ground of his/her employment status compared with other workers engaged in the same or similar kinds of work on a non-fixed term employment contract at the business or workplace concerned. |
| (2) | No employer shall give discriminatory treatment to any part-time worker on the ground of his/her employment status compared with full-time workers engaged in the same or similar kinds of work at the business or workplace concerned. |
| Article 9 (Application for Correction of Discriminatory Treatment) |
| (1) | Any fixed-term or part-time worker who has received discriminatory treatment may file a request for its correction with the Labor Relations Commission under Article 1 of the Labor Relations Commission Act (hereinafter referred to as "Labor Relations Commission"): Provided, That this shall not apply where six months have passed since such discriminatory treatment occurred (in cases of continuous discriminatory treatment, since such treatment ended). <Amended by Act No. 11273, Feb. 1, 2012> |
| (2) | If a fixed-term or part-time worker files a request for correction under paragraph (1), he/she shall clearly state details of the relevant discriminatory treatment. |
| (3) | Necessary matters concerning the procedures for and methods of the filing of a request for correction prescribed in paragraphs (1) and (2) shall separately be determined by the National Labor Relations Commission under Article 2 (1) of the Labor Relations Commission Act (hereinafter referred to as the "National Labor Relations Commission"). |
| (4) | With regard to disputes arising in connection with Article 8 and paragraphs (1) through (3) of this Article, the burden of proof shall be upon employers. |
| Article 10 (Investigation, Inquiry, etc.) |
| (1) | Each Labor Relations Commission that has received a request for correction under Article 9 shall conduct, without delay, necessary investigations and inquiries into the parties concerned. |
| (2) | When any Labor Relations Commission conducts an inquiry pursuant to paragraph (1), it may have a witness attend the inquiry upon request of the parties concerned or ex officio, to ask necessary questions. |
| (3) | In conducting an inquiry pursuant to paragraphs (1) and (2), each Labor Relations Commission shall give sufficient opportunities for the parties concerned to present evidence and cross-examine witnesses. |
| (4) | Necessary matters concerning the methods and procedures for investigations and inquiries prescribed in paragraphs (1) through (3) shall be determined separately by the National Labor Relations Commission. |
| (5) | Any Labor Relations Commission may have expert members to conduct professional surveys or research on the business of correcting discrimination. In such cases, necessary matters concerning the number, qualification requirements, remunerations, etc. of such expert members shall be prescribed by Presidential Decree. |
| Article 11 (Mediation and Arbitration) |
| (1) | Any Labor Relations Commission may commence mediation procedures upon request of both or either of the parties concerned or ex officio, during the course of an inquiry under Article 10 and may conduct arbitration if the parties concerned agree to follow an arbitration award rendered by the Labor Relations Commission and file for arbitration with the Commission. |
| (2) | Each request for mediation or arbitration under paragraph (1) shall be filed within 14 days from the date of the request for correction of discriminatory treatment under Article 9: Provided, That any request for mediation or arbitration may be filed after such 14 days where the competent Labor Relations Commission approves such request. |
| (3) | Each Labor Relations Commission shall take time to hear the opinions of the parties concerned when conducting mediation or arbitration. |
| (4) | Each Labor Relations Commission shall present mediatory suggestions or render an arbitration award within 60 days from the date of the commencement of mediation procedures or from the receipt of a request for arbitration unless there is a compelling reason not to do so. |
| (5) | If both parties concerned accept mediatory suggestions, the competent Labor Relations Commission shall prepare a mediation protocol; and if it renders an arbitration award, it shall prepare a written arbitration award. |
| (6) | A mediation protocol shall be signed and sealed by the parties concerned and all members involved in the mediation, whereas a written arbitration award shall be signed and sealed by all members involved. |
| (7) | A mediation or arbitration award under paragraphs (5) and (6) shall have the same validity as a settlement in litigation under the Civil Procedure Act. |
| (8) | Matters concerning mediation and arbitration methods, preparation of mediation protocols or written arbitration award, etc. under paragraphs (1) through (7) shall be determined by the National Labor Relations Commission. |
| Article 12 (Corrective Orders, etc.) |
| (1) | Where any Labor Relations Commission determines that the treatment in question is discriminatory after completing an investigation and inquiry under Article 10, it shall issue a corrective order to the employer; and where it determines that the treatment in questions is not discriminatory, it shall make a decision to dismiss the request for correction. |
| (2) | Any determination, corrective order, or decision of dismissal under paragraph (1) shall be made in writing and addressed to the respective parties together with the detailed reasons therefor. In such cases, when issuing a corrective order, the Labor Relations Commission shall explicitly enter details of such corrective order, compliance period, etc. |
| Article 13 (Details of Mediation, Arbitration, or Corrective Order) |
| (1) | Details of mediation or arbitration under Article 11 or of a corrective order under Article 12 may include suspending discriminatory actions, improving working conditions (including an order to improve institutions such as employment regulation, collective agreement etc.), such as wages, and making adequate monetary compensation. <Amended by Act No. 12469, Mar. 18, 2014> |
| (2) | The monetary compensation under paragraph (1) shall be determined based on the amount of damages sustained by any fixed-term worker or any part-time workers as a result of discriminatory treatment: Provided, That the Labor Relations Commission may order monetary compensation within the scope not exceeding three times the amount of the damages in cases where clear willfulness is recognized in the discriminatory treatment by an employer or the discriminatory treatment occurs repeatedly. <Newly inserted by Act No. 12469, Mar. 18, 2014> |
| Article 14 (Confirmation of Corrective Order, etc.) |
| (1) | Any party who is dissatisfied with a corrective order or decision of dismissal rendered by any Regional Labor Relations Commission may request the National Labor Relations Commission to retry the case within 10 days after he/she is notified of such corrective order or decision of dismissal. |
| (2) | Any party who is dissatisfied with a decision on a retrial made by the National Labor Relations Commission pursuant to paragraph (1) may file an administrative lawsuit within 15 days after he/she is notified of such decision on retrial. |
| (3) | Where no request for retrial is made within the period prescribed in paragraph (1) or no administrative lawsuit is filed within the period prescribed in paragraph (2), the relevant corrective order, decision of dismissal, or decision on retrial shall become final and conclusive. |
| Article 15 (Request for Submission, etc. of Compliance Report on Corrective Order) |
| (1) | With regard to any confirmed corrective order, the Minister of Employment and Labor may require the relevant employer to submit a compliance report. <Amended by Act No. 10339, Jun. 4, 2010> |
| (2) | Any worker who has filed a request for correction may report his/her employer's failure to comply with a confirmed corrective order to the Minister of Employment and Labor.<Amended by Act No. 10339, Jun. 4, 2010> |
| Article 15-2 (Minister of Employment and Labor's Request for Correction, etc. of Discriminatory Treatment) |
| (1) | Where any employer gives discriminatory treatment in violation of Article 8, the Minister of Employment and Labor may request the correction thereof. |
| (2) | Where any employer fails to comply with a request for correction under paragraph (1), the Minister of Employment and Labor shall notify the Labor Relations Commission of the details of the discriminatory treatment at issue. In such cases, the Minister of Employment and Labor shall notify the relevant employer and worker of such fact. |
| (3) | Where the Labor Relations Commission is notified of such fact by the Minister of Employment and Labor in accordance with paragraph (2), it shall, without delay, examine whether the discriminatory treatment at issue was actually given. In such cases, the Labor Relations Commission shall provide the relevant employer and worker with an opportunity to present their opinions. |
| (4) | Articles 9 (4) and 11 through 15 shall apply mutatis mutandis to the Labor Relations Commission's examination under paragraph (3) and other correction procedures. In such cases, the "date of the request for correction of discriminatory treatment" shall be construed as the "date of the receipt of notification"; "decision of dismissal" as "decision of no discriminatory treatment"; "parties concerned" as "relevant employer or worker"; and "worker who has filed a request for correction" as "relevant worker". |
| (5) | Matters relating to the Labor Relations Commission's examination, etc. under paragraphs (3) and (4) shall be determined by the National Labor Relations Commission. |
[This Article Newly Inserted by Act No. 11273, Feb. 1, 2012]
| Article 15-3 (Extension of Confirmed Corrective Orders) |
| (1) | The Minister of Employment and Labor may investigate discriminatory treatment of fixed-term or part-time workers for the business or in the workplace of the employer who is in duty to perform the confirmed corrective order under Article 14 (including the cases applied mutatis mutandis under Article 15-2 (4)), other than the workers who are under the umbrella of the relevant corrective order, and request correction when discriminatory treatment is found. |
| (2) | Article 15-2 (2) through (5) shall apply mutatis mutandis to where any employer fails to respond to the request for correction under paragraph (1). |
[This Article Newly Inserted by Act No. 12469, Mar. 18, 2014]
CHAPTER V SUPPLEMENTARY PROVISIONS
| Article 16 (Prohibition of Unfavorable Treatment) |
No employer shall dismiss nor give any other unfavorable treatment to a fixed-term or part-time worker on the ground that he/she has conducted any of the following acts:
| 1. | Refusing the employer's request for overtime work pursuant to Article 6 (2); |
| 2. | Filing a request for correction of discriminatory treatment pursuant to Article 9, attending and making a statement at any Labor Relations Commission pursuant to Article 10, or filing any request for retrial, or bringing an administrative lawsuit pursuant to Article 14; |
| 3. | Reporting a failure to comply with a corrective order pursuant to Article 15 (2); |
| Article 17 (Written Statement of Working Conditions) |
When any employer enters into an employment contract with a fixed-term or part-time worker, it shall clearly state, in writing, each of the following matters: Provided, That subparagraph 6 shall apply only to part-time workers:
| 1. | Matters concerning the contract period; |
| 2. | Matters concerning working hours and rest hours; |
| 3. | Matters concerning components, methods of calculation, and payment of wages; |
| 4. | Matters concerning holidays and leave; |
| 5. | Matters concerning the place of work and duties to perform; |
| 6. | Work days and working hours for each work day. |
| Article 18 (Notification to Regulatory Authorities) |
Where any violation of this Act or an order issued under this Act occurs at business or workplace, any of its workers may notify the Minister of Employment and Labor or a labor inspector of such violation.<Amended by Act No. 10339, Jun. 4, 2010>
| Article 19 (Delegation of Authority) |
Part of the authority held by the Minister of Employment and Labor under this Act may be delegated to the head of a regional employment and labor office, as prescribed by Presidential Decree.<Amended by Act No. 10339, Jun. 4, 2010>
| Article 20 (Efforts by State, etc. to Promote Employment) |
The State and local governments shall endeavor to take necessary measures to promote the employment of fixed-term and part-time workers on a preferential basis, such as providing employment information, vocational guidance, job placement services, and workplace skill development services.
CHAPTER VI PENALTY PROVISIONS
| Article 21 (Penalty Provisions) |
Any person who gives unfavorable treatment to a worker in violation of Article 16 shall be punished by imprisonment with labor for not more than two years or by a fine not exceeding ten million won.
| Article 22 (Penalty Provisions) |
Any person who causes a part-time worker to work overtime in violation of Article 6 (1) shall be punished by a fine not exceeding ten million won.
| Article 23 (Joint Penalty Provisions) |
If an agent or employee of, or any other servant of an employer commits an offense cited in Articles 21 and 22 in connection with the business affairs of the employer, not only shall such offender be punished, but also the employer shall be punished by a fine prescribed in the relevant Article.
| Article 24 (Administrative Fines) |
| (1) | Any person who fails to comply with a corrective order confirmed final under Article 14 (including cases applied mutatis mutandis under Article 15-2 (4) and 15-3 (2)) without good cause shall be punished by an administrative fine not exceeding 100 million won. <Amended by Act No. 11273, Feb. 1, 2012; Act No. 12469, Mar. 18, 2014> |
| (2) | Any person who falls under any of the following subparagraphs shall be punished by an administrative fine not exceeding five million won: <Amended by Act No. 10339, Jun. 4, 2010; Act No. 11273, Feb. 1, 2012; Act No. 12469, Mar. 18, 2014> |
| 1. | Any person who fails to comply with a request of the Minister of Employment and Labor to submit a compliance report without good cause, in violation of Article 15 (1) (including cases applied mutatis mutandis under Article 15-2 (4) and Article 15-3 (2)); |
| 2. | Any person who fails to clearly state, in writing, working conditions in violation of Article 17. |
| (3) | Administrative fines under paragraphs (1) and (2) shall be imposed and collected by the Minister of Employment and Labor, as prescribed by Presidential Decree. <Amended by Act No. 10339, Jun. 4, 2010> |
| (4) | Any person who is not satisfied with the imposition of an administrative fine under paragraph (3) may raise an objection to the Minister of Employment and Labor within 30 days after he/she is notified of the said disposition. <Amended by Act No. 10339, Jun. 4, 2010> |
| (5) | When a person subject to an administrative fine under paragraph (3) raises an objection pursuant to paragraph (4), the Minister of Employment and Labor shall notify, without delay, the competent court thereof, and the competent court so notified shall submit the case to trial for an administrative fine in accordance with the Non-Contentious Case Procedure Act. <Amended by Act No. 10339, Jun. 4, 2010> |
| (6) | If neither an objection is filed nor the administrative fine paid within the period under paragraph (4), such administrative fine shall be collected in accordance with the precedents on dispositions of national taxes in default. |
ADDENDA
| (1) | (Enforcement Date) This Act shall enter into force on July 1, 2007: Provided, That the provisions of Article 10 (5) shall enter into force on January 1, 2007, and the enforcement dates of the provisions of Articles 8, 9, 10 (1) through (4), 11 through 15, subparagraphs 2 and 3 of Article 16, and Article 24 (1) and (2) 1 shall be, according to the types of business or workplace (referring to the business or workplace of an employer; hereinafter the same shall apply), as follows: |
| 1. | Business or workplaces ordinarily employing not less than 300 workers: July 1, 2007; |
| 3. | Business or workplaces ordinarily employing not less than 100 but less than 300 workers: July 1, 2008; |
| 4. | Business or workplaces ordinarily employing less than 100 workers: July 1, 2009. |
| (2) | (Applicability concerning Period of Employment Contract) The provisions of Article 4 shall apply with respect to the conclusion or renewal of an employment contract or the extension of an existing employment contract, which is made on or after the date this Act enters into force. |
ADDENDA <Act No. 8372, Apr. 11, 2007>
Article 1 (Enforcement Date)
This Act shall enter into force on the date of its promulgation. (Proviso Omitted.)
Articles 2 through 17 Omitted.
ADDENDA <Act No. 10339, Jun. 4, 2010>
Article 1 (Enforcement Date)
This Act shall enter into force one month after the date of its promulgation. (Proviso Omitted.)
Articles 2 through 5 Omitted.
ADDENDA <Act No. 11273, Feb. 1, 2012>
Article 1 (Enforcement Date)
This Act shall enter into force six months after the date of its promulgation.
Article 2 (Applicability concerning Applications for Correction of Discriminatory Treatment)
The amended provisions of Article 9 (1) shall apply beginning with the first application for correction of discriminatory treatment filed after the date this Act enters into force.
ADDENDUM <Act No. 11667, Mar. 22, 2013>
This Act shall enter into force six months after the date of its promulgation.
ADDENDA <Act No. 12469, Mar. 18, 2014>
Article 1 (Enforcement Date)
This Act shall enter into force six months after the date of its promulgation.
Article 2 (Applicability concerning Overtime Work)
The amended provisions of Article 6 (3) shall apply beginning with the first case of overtime work after this Act enters into force. Article 3 (Applicability concerning Order of Monetary Compensation)
The amended provisions of Article 13 (2) shall apply beginning with the first case of discriminatory treatment after this Act enters into force.