Workers who in reality take orders from a company but are contracted as freelancers—so-called "freelancers in name only"—will now be presumed to be "workers," making it easier to seek remedies in civil disputes such as claims for severance pay and confirmation of the invalidity of dismissals or discipline. Cases reported to the labor office that have been closed without even starting on the grounds that the person is not a worker are also expected to disappear.
The Ministry of Employment and Labor (MOEL) said on the 20th that it will push a package of legislation to protect labor outside formal rights, including a "worker presumption system" and the enactment of the "basic law on the rights of working people."
◇ In civil suits, the burden to prove "worker status" shifts from worker to employer
Under the worker presumption system, in cases where a worker reports an employer and whether the person falls under a worker under the Labor Standards Act becomes an issue, once the premise that the person "provides labor directly for another" is confirmed, the person is presumed to be a "worker." Instead, if the employer proves that the person is "not a worker," worker status can be denied.
Until now, workers had to prove their own worker status directly. But because workers have limited access to labor-related information and materials held by employers, proof has been difficult, and if worker status is not recognized, they could not even properly contest the disputed matter.
Going forward, such worker presumptions will be allowed in civil cases involving claims for wages, severance pay, and allowances; confirmation of the invalidity of dismissals and discipline; and damages for breach of contract. The Labor Standards Act, the Minimum Wage Act, the Retirement Benefit Guarantee Act, the Act on the Protection, etc. of Fixed-term and Part-time Employees, and the Act on the Protection, etc. of Dispatched Workers are covered.
This is expected to make it easier to seek remedies for broadcast writers, outsourced production PDs, and call center workers known as "freelancers in name only." For example, in the past the ministry concluded in the case of weathercaster the late Oh Yoanna that "there was harassment," but also that "because Oh is not recognized as a worker under the Labor Standards Act, it is impossible to punish MBC officials under the workplace harassment provisions of the Labor Standards Act." On this, a ministry official said, "If a civil suit were filed and MBC failed to sufficiently prove that Oh was not a worker, the court would presume Oh to be a worker."
Application of the worker presumption system is limited to civil cases. Instead, for complaints and criminal reports to the labor office, the government plans to increase the likelihood of determining worker status by strengthening the power to demand submission of materials. It will establish a legal basis for inspectors to demand materials such as contracts and clock-in/clock-out information held by the labor recipient, and impose fines of up to 5 million won for refusal.
A ministry official said, "We can resolve the problem of cases being closed without even starting due to difficulty proving worker status in reports to the labor office," and "During investigations, it will become possible to judge the worker-status issue without resorting to searches and seizures."
◇ Ban on "harassment and unfavorable treatment" for delivery riders and webtoon artists as well
The ministry will also push to enact the "basic law on the rights of working people." It codifies the guarantee of basic rights for those not defined as "workers" under the current Labor Standards Act, such as specially employed workers, platform workers, and freelancers.
The basic law sets out ▲ equal treatment ▲ the prohibition and prevention of sexual harassment and harassment ▲ basic human rights such as safety and health protection ▲ transparent and fair contract formation ▲ restrictions on changes to or termination of contracts without reasonable cause ▲ economic rights such as payment of compensation ▲ and social security rights such as social insurance.
It also specifies various obligations, including that business operators must not take disadvantageous measures against workers for exercising these rights and prohibiting unilateral contract termination or changes. The business operators covered by the law include "platform operators."
When disputes arise over economic rights between working people and business operators, the Labor Relations Commission will serve a mediation role. The government will also establish the "working people's rights support foundation," which can provide legal assistance when working people suffer sexual harassment or harassment. The government plans to pursue legislation to coincide with Labor Day on May 1.