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The concept of discrimination in labor law must be clear. The gap must be resolved conceptually. In addition, the gap between benefit treatment and disadvantage treatment should be assessed differently under labor law. Today, the issue of discrimination against non-regular workers is closely related to the complexity of wages. It should be clear. The system of accounting for work should be single. There are only calculations proportional to working hours and working periods, depending on the type of employment, and the system should not be essentially different. Furthermore, as far as payment of bonuses is made, it is necessary to clarify the purpose of the payment and to establish detailed criteria for judging whether it is reasonable. The need to bridge the working conditions gap for subcontracting relationships should be positive. The problem is methodology. First, the subcontracting needs to be categorized to clarify the subject of labor law regulation. In short, as an in-house subcontractor, if the subcontractor is assigned to a subcontracting company, it can be conceptualized as a production community. At this time, it may be possible to derive the duty of the original subcontracting company for the protection of labor law for subcontracted workers. For example, there is a need to find a system of worker representation that includes disclosure of wage information and subcontracted workers. In addition, it is necessary to improve the system to improve the effectiveness of discrimination or to close the gap. It is not possible from the outset to ask for ongoing workers in labor contracts to seek legal remedies for discrimination. Prevention of self-discrimination within the workplace is more important than legal discrimination remedies outside the workplace. Confirmation of the existence of discrimination can also be done more accurately through autonomous assessment in the workplace.

The concept of subordinate labor relationship has played a role of distinguishing one guoup of employees who are protected by the labor laws with the others who are not. Only the employees under subordinate labor relationship are covered by the labor laws. Because, in Korea, there is no statute defining the concept and standard of subordinate labor relationship, the cases rended by the Supreme Court of Koreait has relied on interpreting it. The Court, however, is divided as to the concept and standard of subordinate labor relationship. Previously, the Court had adopted the rule applicable to the employees covered by the Labor Standard Act and applied this rule to the employees under other laws on the position that one same rule appies to all the laws. Consequently, many employees covered by labor laws other than the Labor Standard Act were excluded from the coverage by the labor laws. Currently, the Court has begun to change its position and adopted new concept and standard of subordinate labor relationship. The Court criticized the traditional subordinate labor relationship because it cannot protect the employees who are not covered by the Labor Stansdard Act. The court suggested the new rule applicable to the employees under the Labor Union Act, which covers the broader scope of workers and of which the purpose is different from the Labor Standard Act, Under the new rule, many employees, who are excluded from the coverage of the Labor Standard Act because they are lack of subordinate labor relationship, have begun to be recognized as employees under the Labor Union Act. The new rule plays a great role for including the formerly unprotected emplyees into pretected ones by the labor laws. But, the Court adopted the different rules on subordinate labor relationship between the Labor Standard Act an the Labor Union Act. In this paper, I suggested that there is only one standard on the subordinate labor relationship, which is applicable to all the labor laws.

Wage-related lawsuits are underway in various areas, and it is likely that more will soon be filed. This is a welcome phenomenon as it supports the accumulation of judicial precedents on the nature of welfare points as wages, thereby increasing their applicability in the workplace. However, such cases can also deteriorate into controversy over whether all benefits and valuables provided by employers are wages or not, which can eventually increase the likelihood of increased legal expenses and increased conflict between labor and management. Therefore, the recent en banc judgment on welfare points has significant implications. Thus far, wage-related lawsuits have taken a dualistic approach. First, it must be determined whether welfare points are “consideration for the provision of work” that depends on a direct or intimate connection to work itself. Second, this consideration for the provision of work must be affirmed through judgements that typically involve the terms “regular and continuous” and “the existence of an obligation to pay.” The Supreme Court’s recent judgement takes a fundamental approach by determining whether welfare points are wages using the concept of “consideration for the provision of work.” In this approach, welfare points are or are not classified as wages based on (1) whether welfare points comply with the meaning and purpose of welfare points as selective welfare, (2) the current principles of wage payment and payment methods, and (3) the legal principles of wage payment and protection. This Supreme Court ruling is significant because it sets future standards for the interpretation and judgements of cases addressing the nature of welfare points as wages; this ruling is the most recent en banc judgement since former rulings by the Supreme Court’s subdivision on the cases of special performance bonuses and of a public institution’s management performance bonuses. In other words, this verdict stipulates that, when judging whether certain valuables were provided as consideration for work, the existence of an obligation to provide these valuables must be deemed directly or closely related to the provision of work. This verdict is meaningful because it attempts to clearly define the standards for judging whether welfare points should be considered a wage, thereby clearing up confusion in related cases.

Obwohl ein Arbeitsverhältnis durch einen Vertrag begründet wird, werden die allgemeinen Arbeitsbedingungen durch die Arbeitsordnung(Chwieop Gyuchig) bestimmt. Also sind die Gestaltungsfaktoren des Arbeitsverhältnisses der Arbeitsvertrag, die Arbeitsordnung, gesetzliche Vorschriften und der Tarifvertrag. Arbeitsverträge, die gegen Arbeitsordnungen verstoßen, sind nichtig, soweit sie Regelungen zuungunsten der Arbeitnehmer enthalten(§ 97 des Arbeitsstandardsgesetzes: ASG). Die Änderung der Arbeitsordnung zuungunsten der Arbeitnehmer muss von der Gewerkschaft bewilligt werden, wenn mindestens 50% der Arbeitnehmer des Betriebes in der Gewerkschaft organisiert sind. Ist eine solche Gewerkschaft nicht vorhanden, sind die mindestens 50% der Arbeitnehmer der Belegschaft für die Änderung der Arbeitsordnung zu zustimmen(§ 94 Abs. 1 Satz 2 ASG). Der Oberste Gerichthof hat im Urteil vom 14. November 2019 entschieden, dass die für den Arbeitnehmer günstigere Regelung eines Arbeitsvertrages anzuwenden und die ungünstigere Arbeitsordnung verdrängt ist. Gegen dieser Rechtsprechung wird der Vorwurf erhoben, dass das Ergebnis des Urteils mit dem Zweck des § 94 Abs. 1 Satz 2 ASG in Widerspruch stehen, das unter den Voraussetzungen von kollektiven Zustimmungen die Änderung der Arbeitsordnung zuungunsten der Arbeitnehmer ermöglicht. Demgegenüber gibt es in der Literatur auch die Zumstimmung für die Rechtsprechung. Die Zustimmung für die Rechtsprechung geht dahin, dass eine für den Arbeitnehmer günstigere Regelung eines Arbeitsvertrages im Vergleich mit Arbeitsbedingungen der Arbeitsordnung durch den Umkehrschluss von § 97 ASG wirksam ist. Als Ergebnis dieser Untersuchung kann festgehalten werden, dass der Urteil des Obetsten Gerichthofs vom 14. November 2019 überzeugend ist, weil der Umkehrschluss von § 97 ASG möglich ist. Außerdem kann die Anwendbarkeit des § 97 ASG durch die kollektiven Zustimmungen für die Änderung von Arbeitordnung zuungunsten der Arbeitnhmer nicht verdrängt werden.

The worker dispatch in China took place with having been begun the reform and opening. The original Temporary Agency Work system in China is following ｢Labor Contract Law｣ that was enforced from 2008. This is the first national legislation pertinent to the worker dispatch in China. At the 30th conference for the Standing Committee of the 11th National People's Congress on December 28, 2012 after the enforcement of ｢Labor Contract Law｣, the revised bill for ｢Labor Contract Law｣ was passed, thereby having taken effect from July 1, 2013. Seeing the legal regulations and the revision process concretely regarding the permissible range of worker dispatch, the allowable range given the initial legislation was stipulated to be a division with less than 6 months for a term of existence in the range of “temporaryity, subsidiarity, substitutivity.” By the way, the ambiguity of the permitted limit to worker dispatch following the legislation led to a sharp increase in the worker dispatch. A law-making organ recognized that the ambiguity of the permitted limit to worker dispatch is one of a cause, thereby having come to make legal revisions. The revised law, which was enforced from July 1, 2013, rigidly conceded the permitted limit to worker dispatch just within the range of “temporaryity, subsidiarity, substitutivity,” thereby having reduced the scope of the worker dispatch. ｢Provisional Regulations for the Dispatch of Workers｣ quantified a company's dispatched workers. However, a demerit in which the permissible range of “temporaryity, subsidiarity, substitutivity” for the worker dispatch exists itself makes employee dispatchers and employment users inflict a loss on a legal right of dispatched workers because of disguising the worker dispatch with a method such as labor outsourcing, a personnel agent or out-tasking, thereby causing a bigger social issue. Also, the use of substitutivity task is leading to applying the worker dispatch in the long term. Seeing the regulations of ｢Act on the Protection, Etc. of Temporary Agency Workers｣ in south Korea, the range of worker dispatch is limited to 26 target businesses and is available for the dispatch period up to 2 years. Given continuing to use a dispatched worker with exceeding 2 years in violation of this, it led to being defined as the employment of a dispatched worker from the next day of being expired 2 years. The definite industry regulations of worker dispatch drew the clear line in using dispatched workers. In addition, South Korea has even specific occupational classification rules in accordance with this. This application scope on worker dispatch in South Korea is regarded as a good legislation case pertinent to the permissible range of worker dispatch in China.

According to Korean law, foreign workers have to remain tied to the employer's workplace throughout the country's stay. But such a policy thoroughly blocks workplace changes due to the voluntary wishes of workers and has many side effects. This is because these policies completely ignore human nature in pursuit of economic interests. Rather, these policies only provide a justification for foreigners who leave the workplace to rationalize their actions. Under this consciousness of the problem, this study critically reviewed the additional system of employment and seasonal work system under the Immigration Control Act as a system for utilizing foreign workers in the agricultural sector. In conclusion, it was suggested that the additional system of employment in the crop cultivation industry where there is a high possibility of intermediary exploitation should be officially abolished, and in relation to the seasonal work system, it is urgent to prepare legal protection regulations reflecting the characteristics of seasonal work. Furthermore, it suggested that, in the field of at least agriculture and fisheries, the restrictions on working hours were not properly regulated, so that the restriction on the specific workplace should no longer be a condition of the employment permit, and the workplace change within a single industry where the work permit was granted should be allowed in principle.

Telework has drawn attentions as an “option for new labor method using ICT” for longtime. Japanese Association of Telework consisting of researchers from various sectors for studying telework which had been difficult for recognition in the existing fields was established in June 1999. For last 20 years, the technologies have been greatly enhanced and ICT is indispensible from the contemporary era. According to the enhancement in the technologies, humankind in the 21st Century have new tools such as smart-phone as well as computer and people in the streets hold phone on their hands and present various contents on screen freely and work with their notebook computer in cafe and was it possible to imagine these scene in the contemporary society 20 years ago? It might be the scenes of the “society wherever people work depending on their situations” and “wherever workers can choose freely for their workplace” which have been pursued by many telework researchers. Telework is already available in the perspective of technical environment and the technologies have pervaded sufficiently in the society. However, the people in society have no sufficient consciousness of the ‘freedom of work place’ and even there are not sufficient organization cultures, laws, and systems for supporting it. This article, firstly, studies about the changes in telework and its definition and categorization. Next, merits and demerits of telework are studied. And then, focusing on the recent telework guidelines, the methods for introducing telework are reviewed. It is expected that this article will be helpful to introduce strategically telework available for work in place where it is an office due to the current Covid 19 outbreak.

Sickness is a serious social danger that impacts the livelihoods of individuals, including with the ability to earn an income as well as depriving families of stable lives and causing pain in the body. To prevent this, the ILO provided specific criteria for the sickness benefit system in the conventions and recommendation. Most OECD countries have adopted the sickness benefit schemes, but our society is not yet introducing it. As a model, the main contents of the sickness benefit system in France and Sweden are as follows. In France, health insurance is responsible for sickness benefits. As a qualification, it confirms the contributions to health insurance along with the length of employment. It has special exceptions for long-term illnesses and admits overlapping benefits with other social security benefits. Furthermore, the company dispends the employee supplementary benefits to take care of income other than sickness benefits. In Sweden, the sickness benefit is paid according to the degree of loss of labor capacity and not unemployment. Parental-leave benefit is added to the sickness benefit for childcare. A dedicated manager exists to assist ill employees, and the company helps them quickly by giving them the sickness pay which saves on finances prior to the social insurance’s sickness benefit. In comparison, the legislation bills proposed in the past have been to establish a paid sick leave in the Labor Standards Act or to create ickness benefit in the employment insurance. However, the former has the disadvantage that it does not cope with long-term disease; the latter does not include the self-employed. Therefore, this paper proposes health insurance as the sickness benefit system to cover all people and suggests that anyone who contributes to health insurance is paid by the sickness benefit not according to the length of employment such as the employment insurance. The benefits duration is 6 months and can be received up to 1 year. Benefits are 50% of ordinary wages, but increase with the number of dependents.

We have the requirement of employee’s consent at various areas of Labor standars Act (LSA). LSA prescribes that terms and conditions of employment shall be freely established on the basis of equality, as agreed between workers and their employer. At the same time, it suggests minimum standards for the employees, which consequently limits free intention of contract parties. Manadatory rules that restrict freedom of contract in labor relations are grounded by some reasons : (economic) inequality between employer and employee; protection of social value such as health and safety; unintentional influence to other employees such as race to the bottom. LSA sometimes suggests exception from mandatory rules via employee’s consent, through regulation itself and case law. We need to confirm the objects that can be exempted, and then also need to analyze the difference between individual and collective agreement. The function of individual employee’s consent is restricted, because before the consent of the employee, you need to confirm the area which this derogation is permitted according to the main purpose of the clause. And after that, the free choice of derogation should not disturb other employees’ rights, nor influence them in the course of making decisions about derogation at the same time. We have to be prudent in permitting derogaton by individual employee’s consent, when there are no additional requirements or collective procedure.

If one person provides independent or factory services to another entity but actually performs non-independent tasks in the employment relationship, there is bogus self employment as a result of establishing a basic contract. To determine whether it is self-employed or not, is a typical characteristic of entrepreneurial behaviour is to provide services according to one's name and bill, and to make independent decisions. Additionally are the following signs important. - Purchasing and selling prices, commodity-related - Personnel question (job, dismissal) - terms of purchase and sale - Free design of activities and working hours - Capital and Self-Working Equipment Use - Self-Customer Acceptance - Advertising measures and independent activities in the business world A verification of bogus self-employment can be carried out by the German Pension Insurance Association, Clearingstelle, any labour court or Health Insurance as social insurance companies. If a self-employed person ar considered fake or bogus by definition of the law, the statutory pension scheme in Germany can demand that fake freelancer will be incorporated into the social insurance sector excluding industrial insurance scheme. The ‘Dano’ case goes right to the heart of the debate on social tourism. Are economically inactive EU-citizens, residing in a Member State of which they are not a national, entitled to social assistance which is granted to nationals of that host Member State? Dano and her son, both Romanian nationals, resided in Germany living with Ms Dano’s Sister who provided for them. Dano claimed unemployment benefits but this was refused. She argued that the principle of nondiscrimination in Article 18 TFEU precluded Germany’s domestic legislation excluding foreign nationals claiming social assistance where they enter the country to obtain such assistance or where the right of residence arises merely as a jobseeker. CJEU judged that Directive 2004/38/EC does not oblige Member States to provide for such assistance, but Art. 18 TFEU, Regulation 883/2004 on the coordination of social security and the Charter of Fundamental Rights might do so in the end. As such the EU Citizenship Directive makes it quite clear that economically inactive persons with insufficient resources of their own cannot claim benefits, at least during the first five years of their stay in another Member State. The CJEU ultimately ruled that Member States are not required to grant this type of social benefit to economically inactive Union citizens.

The Korean Supreme Court ruled that if the labor conditions stipulated by the labor contract is more favorable than the labor conditions stipulated by the Rules of employment, the labor contract should be applied. The ruling was based on the interpretation by argument from the contrary of Article 97 of the Labor Standards Law in Korea, which stipulated “If a labor contract includes employment conditions which are below the standards stipulated in the rules of employment, such nonconformity shall be null and void. In this case, the invalidated provisions shall be governed by the standards provided for in the rules of employment.”, and the the legal character of the Rules of employment. However, such a interpretation is incorrect. The reason is as follows. First, the interpretation by argument from the contrary of the law must be validated through systematic interpretation and logical analysis and so on. Second, Article 94 of the Korean Labor Standards Act stipulates that collective agreement must be obtained in order to disadvantageously change the Rules of employmen. Third, collective agreement under Article 94 of the Labor Standards Act is consistent with the principle of “Determination of Working Conditions” which stipulated by the Article 4 of the Labor Standards Act. Therefore, the interpretation by argument from the contrary of Article 97 of the Labor Standards Law must not be applied directly to the revised rules of employment with the collective agreement of the group. The Rules of employment that have been amended with the collective agreement of worker representatives should be viewed as having the effect of changing the labor contracts of individual workers.

This article is aimed at reviewing a recent case of the Supreme Court. It looks at new principles of interpretation on Act on Employment Discrimination on the Grounds of Fixed-term Contract, etc.(AEDGFC) and evaluate them in terms of previous cases and academic commentaries on on the AEDGFC. Furthermore it analyses the established principle of interpretation on reasonablegrounds’ in the AEDGFC, the aabsence of which unfavorable treatment against fixed-term employees has to be unlawful discrimination under the AEDGFC. One of the new principles of interpretation on the AEDGFC is about how unfavorable treatment against fixed-term employees can be ascertained in the area of wages. The Supreme Court held that different types of wages such as basic salary various bonuses service tip must be categorized according to their nature where it is not suitable to compare each type of wages between fixed-term and permanent employees. It also held that whether reasonable grounds of unfavorable treatment against fixed-term employees exist must be decided according to each category of types of wages as a whole. On the one hand, these new principles of interpretation should be welcomed in that the methodology of finding unfavorable treatment against fixed-term employees are clearer. On the other hand, they may lead it more difficult that lower courts can decide that unfavorable treatment is not reasonable. There are two competing views on how reasonable grounds of unfavorable treatment should be established prohibition of arbitrary treatment principle and proportionality principle. The latter is stricter than the former and therefore harder than the former for an employer to prove that grounds of unfavorable treatment are reasonable. It seems that the principle of interpretation established on a previous case by the Supreme Court adopts the proportionality principle in a rather moderate sense. However it turned out that most courts including the Supreme Court in the current case have applied not this principle but the prohibition of arbitrary treatment principle to ascertaining reasonable grounds in their cases. Based on this finding it maintains that the nominal principle should be rigorously revived in order to make the AEDGFC more effective.

By recognizing the need to improve the working conditions of in-house subcontract workers substantially, since 2011, the Korean government has enacted and operated “Guideline for protecting in-house subcontract workers’ working conditions,” instead of discussing the distinction between in-house subcontracting and dispatch. This guideline seeks to protect and improve working conditions for in-house subcontract workers. Also, for the sake of proper operation, the guideline plays a specific role in forming a social order for the protection of in-house subcontract workers by promoting protection and improvement of the working conditions of the in-house subcontracting workers, and by providing criteria and direction for the original contractor and subcontractor’s compliance and efforts. On the other hand, on January 15, 2019, the “Occupational Safety and Health Act,” which prevents industrial accidents and regulates matters related to workers’ safety and health, was thoroughly revised and implemented. It is worth noting that many of the significant revisions included matters related to in-house subcontracting. Therefore, this study objectively analyzed and reviewed the main contents of the revised Occupational Safety and Health Act, and then examined whether the guideline for protecting in-house subcontract workers should reflect the contents of the reinforced industrial accident prevention measures for contractors. Until the legislative reorganization concerning in-house subcontracting is done, discussions will need to concentrate on in terms of enhancing the effectiveness of the guideline for protecting in-house subcontracting workers.