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The Issues & the Forecast thereto on the System of Correcting Discrimination against Irregular Employees

  • DONG-A LAW REVIEW
  • 2014, (64), pp.1-32
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

Cho Sang Kyun 1

1전남대학교

Accredited

ABSTRACT

This research briefly reviews the issues and the operational problems concerning the current system to correct discrimination against irregular employees. It then forecasts the potential consequences from the features newly introduced to the Act on the Protection, Etc. of Fixed-Term and Part-Time Employees and the Act on the Protection Etc. of Dispatched Workers in terms of the policy behind the correction system and the practicability of the same. The results of my research are as follows. First, the current Acts do not treat the job security for irregular employees and the prohibition of discrimination against dispatched workers with the same attitude or degree. As for the job security issue, there is a strong protection that converts termed employment into permanent employment by the requirement of fixed terms. However, as for the probation of discrimination, one can even doubt the effect of the current system due to the problems stemming from the limits on application right and the rigid standard on the determination of discrimination. Further, it is doubtful that the proposed extension of the effects of orders of correction, introduced to resolve these questions, would work as expected, due to the same problems as identified above. Second, the current system simply prohibits discrimination against irregular employees, yet fails to guarantee ultimately equal treatment. This problem becomes obvious when we consider such facts that the regular employees with the lowest labor conditions are the ones compared with irregular employees when there are multiple groups of employees to be compared and that the system uses rational ground as the standard of review in determining discriminatory treatments. Of course, if we require equal treatment, it may be criticized for being the same result as under the equal treatment doctrine in the labor standard act. However, despite such criticism, it would be still desirable to expand the interpretation or to designate the comparison group chosen by the applicant, without having to apply the equal treatment doctrine. Third, it is doubtful that these newly introduced features would work to eliminate the discriminatory practice. The current situation has many different problems, such as the decrease in the number of applications, and the increasing gap in real salaries, therefore one cannot expect the new features, being conservative and passive in nature, will eliminate all these problems at once. Specifically, the contemplated effects of the “expansion of orders of correction” will be limited, because it is a mere addition to the existing “the system on notification and direction of correction.” Finally, we cannot agree with the argument that organizations like employer employee associations shall be permitted to devise a solution at work places. This is because only regular employees participate in such associations, and therefore they cannot adequately represent the interests of irregular employees. As such, in order to implement a system that effectively eliminates discrimination against such workers, a new set of regulations and systems must be introduced, and the government shall continuously and rigorously supervise the labor conditions.

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