Recognition as workers – battlefield that breaks down the boundaries for labor, safety, and health
Hyunchul Ryou, Director of KILSH
Traditional labor legislation and emergence of non-standard contracted employees
Labor legislation and policies,
including the Labor Standards Act, which has been targeted only at typical
labor contract relations, have been subject to much criticism. The emergence of
people who are called ‘non-standard contracted employees’ clearly revealed the
boundaries of the Labor Standards Act. The non-standard contracted employees
appeared since the 1997 financial crisis. While maximizing the anxiety of the
national economic crisis, the government implemented labor flexibility policies
such as the legalization of lay-offs, and the introduction of dispatched labor,
which resulted in cracks in traditional employment relations and increase of a
special form of ‘self-employed’. For example, a construction company dismissed
heavy truck drivers they were hiring, and suggested that the workers should
purchase a truck to sign a one-on-one contract with the company and be paid
commissions if they wanted to continue working. Cargo truck drivers and courier
drivers went through a similar process and changed their position in the labor
market from employed workers to self-employed contractors. As shown,
non-standard contracted employees in Korea have been expanded to insurance
planners, door-to-door sales agents, workbook tutors, and professional designated
drivers*.
Gray Zone Made from Concealment of Workers’ status
Professor Oh-sung Kwon, Professor of Law at Sungshin Women’s
University, stated d that this process has been successful for companies to
evade the labor law through sophisticated manipulation of the concept of
workers, and the cost has been passed on to society through this manipulation
which the company should have paid in the first place. In particular, companies
succeeded in concealing workers as non-workers, making them misclassified as
self-employed, and were deprived of the labor law protection they deserved**. Jong-cheol Lee, a courier worker and a
cartoonist at the same time, said in his book 『Kkadaegi』 (2019, Bori Publishing Co.), “I am an
individual business owner not having autonomy of a business owner, and a worker
not having worker’s rights. Through this, he pointed out the gray area of
labor rights. Even if they do the same thing with colleague workers, only one
paper document put them in the gray area. So, in fact, it is forced to take
your own responsibility to take care of everything related to work, but it is
packaged as your own choice. In return, the rights of workers granted under the
Labor Standards Act are lost.
This is also true for platform labor. The process of producing
goods and services and the associated labor are diversifying. Society is
calling this the so-called fourth industrial revolution, innovation. In the
meantime, companies and employers are creating creative and weird employment
contract relationships only in terms of avoidance of liability. In this
respect, it is not much different from the problems of non-standard contracted
employees. In terms of place, platform labor is not based on the co-working
space in the form of factories that emerged after industrialization, and takes
place at the point where demand for labor (or service) occurs. In addition,
platform labor is also characterized as very short-term works that are
subdivided into small tasks. Within this, traditional labor-management relations
collapse, and the boundary between workers and employers, and the boundary
between houses and workplaces become ambiguous. As a result, it becomes
difficult to organize and systematically manage the health risk. Platform labor
may be new in that methods of production and consumption are changed, and
mediation between employment and labor is changed according to technological
development. However, in terms of the employer’s strategy to avoid social
responsibility for workers and to utilize unstable labor, it has not been new
since the emergence of non-standard contracted employees.
From the aspect of safety and health, treatment for health
problems such as injuries and diseases as a result of exposure to hazards are
no different for non-standard contracted employees or platform workers. The
problem should foucus on the ways to manage the health hazards
encountered in such workers and essential personnels who are
responsible for preventing accidents and diseases, and to handle the
social costs of treatment, compensation, rehabilitation and livelihood that
follow health problems. It is also necessary to pay attention to the social
determinants of health, beyond the workplace hazards themselves. If basic
income cannot be maintained stably through work, an individual must increase
working time or work speed and take risks, and it is difficult to manage health
risks arising from dreadful work. However, those who make a profit in the
process hide without sharing any responsibilities.
The battlefield of recognition as workers
There has been intense fighting for ‘getting recognition as workers’. With regard to the non-standard contracted employees, the government took a very passive attitude of half-incorporation into the industrial accident insurance system. Under the Industrial Accident Compensation Act of 2008, non-standard contracted employees were appeared in the law for the first time by defining as “a person in a profession prescribed by Presidential Decree” among those who provide labor similarly to employed workers regardless of the type of contract, but not covered by “Labor Standard Act”, and therefore it is necessary to protect them from work related accidents. The title of non-standard contracted employees is very limited to those who have a specific job listed in the 「Enforcement Decree of the Workers’ Compensation Insurance Act」 among those who meet the requirement of providing labor at all times and living with pay and not hiring others in providing labor***.
At first, non-standard contracted employees included insurance planners, recruiters, concrete mixer truck drivers, workbook tutors, golf course caddies in 2008. Currently, the coverage has expanded to courier, loan collector, credit card recruiters, professional designated drivers, door-to-door salesperson, door-to-door product inspector, home appliance installation repairman, container driver and part of truck driver. The estimated population of this ‘non-standard contracted employees’ is very wide by definition, and various estimates are made from 500,000 to 2.3 million. In 2018, it was estimated to be about 1.66 million****. In the case of platform workers, it is very difficult to estimate the size, but it was estimated a minimum of 470,000 to a maximum of 540,000 with a randomized sampling method*****. Nevertheless, the Labor Standards Act has kept many workers from being called “workers” because they still stick to outdated concept of “workers” in the existing laws.
‘Exclude’ the exclusion
If you don’t get your name right, you are also excluded from your rights. Even though the workers are clearly workers, they are discriminated if they work for a small-sized workplace. Not only this apply to the Labor Standards Act, but also to the Occupational Safety and Health Act and the Industrial Accident Compensation Insurance Act. The scope of the application of these laws is ‘different’ with various explanations such as the special case of industry for employment industry, the protection of small businesses (employers), essential public employment, non-standard contracted employees, and the scope of hazardous work. It creates ‘discrimination’ in safety and health issues. Exceptions in the application of the standards that employers have to obey eventually result in inequality. The lower the level of legally guaranteed rights, the higher the risk workers are exposed to. Discrimination and exclusion will inevitably occur if we do not attempt to interpret the changing relationship between employers and workers and include it through law. We have to deal with exceptions that are not subject to law without a reasonable reason or explanation.
Exceptions should only be admitted when it is unavoidable, and it is necessary to look at who benefits from the exceptions. In order to ensure that workers can lead their lives through work, the ‘right’ to be safe and healthy should be guaranteed first. If we keep lacking efforts to actively interpret new employment relationships or to encompass within the legal system, the blind spot of rights will continue to widen. We have to exclude exclusions to provide a safe and healthy workplace for all workers.
* Heung-jun Jung, The current status and status of non-standard contracted employees, 2019
**Oh-Sung Kwon, Opportunities and Challenges to Launch Platform Union, 2020
*** Eun-Jung Park, Legal Protection of Special Employment Workers, 2019
****Heung-Jun Jeong and Hee-Jun Jang, Basic study for estimating the scale of non-standard contracted employees. The Korea Labor Institute. 2018