| kwwa |
2002-10-28 15:20:20, 조회 : 407 |
A Study of Systems for the Settlement of Sex-discriminatory Employment Disputes / by Elim Kim /Women's Studies Forum. Vol.9 / December 1993
* This paper is the condensation of the 1993 Research Report 200- by KWDI research team Kim Elim, park Kyun-mee.
Kim Elim(Senior Researcher, KWDI)
I. INTRODUCTION
1. Purpose and Background of the Study
Legal guarantees assuring equal rights before law for every individual and quality between men and women have been in effect in the Constitution of Korea ever since 1948.
As is stipulated in the Constitution, those concepts concerning equal rights of both sexes are more distinctly materialized in the Labor Standard Act enacted in 1953. As its basic principles, in particular, and employer shall not discriminate against employees by sex(Article 5). This principle is by putting an emphasis on the enforcement of punishing clauses for offenders as well as nullifying the act committed by them as illegal.
However, Article 5 of the Labor Standard Act had virtually remained a dead letter until one of the female telephone operators in service of the Korea Telecom raised her grievances on January 1983 over unfair treatment in terms of retirement. The KT set an age limit 12 years below that of male workers, so she filed a suit to the court asserting that the KT committed an illegal act against both the constitution and Article 5 of the Labor Standard Act by treating the sexes unequally.
In fact, this labor dispute was regarded as the first incident to erupt in connection with unfair sexual treatment in the field of employment since the enactment of the Labor Standard Act about 30 years ago. It is a widely known truth that not an employer has been punished over the violation of the Act for the past 30 years. During this time women workers have suffered from unequal treatment in labor terms and conditions such as hiring, wages, disposition, education and training, promotion, retirement age, resignations, lay-off and other various courses of employment. There has been an extreme lack of administrative monitoring of the position of women workers from the concerned government authorities and also no lawful accusations, no practical applications of laws to protect women from unjust treatment and so on.
After this incident, women came to realize the importance of a labor conflict resolution system along with a legal system guaranteeing the rights of a life worthy of human beings, employment and equality. This became the issue of women's labor movement to be solved since the later part of the 1980s. The result of these women's great endeavors was well reflected in the establishment of section 4, Article 32, a provision stipulating prohibition of discrimination against women in recruitment, wages and labor conditions for the purpose of securing equal rights between the sexes more concretely in the revision of the Constitution of the 6th Republic of Korea. The equal Employment Opportunity Act(EEOA) was also enacted in December, 1987 and the supplementation and revision of the above Act followed in April, 1989.
Five years have passed since the enforcement of the Act. As a consequence, conflicts with regard to employment disputes happen more frequently spurred by the enhanced consciousness of women workers toward keeping their rights and sexual equality in social activities.
However, because of managerial inefficiency to enforce make these laws for the resolution of disputes related to sexual equality in employment, and because of ignorance of related laws concerning women workers, the Employment Problems Mediation Committee established as an administrative body to resolve labor disputes on sexual unequality almost remains stagnated. Legal stipulation and its operation has revealed only many of problems for realizing equality between men and women.
Therefore, the research aims to achieve the following ; to expedite the active use of a dispute resolution system and to find out a more effective system of realizing equal opportunity and treatment of workers in general.
The purpose of this study is contained in the following objects and basic substances ;
a. Identification of conditions of present systems concerning employment dispute in relation to sex discrimination in order to effectuate the rights of women workers an to find favorable remedies, together with an effective process of approach supported by the through understanding of what sort of lawful systems are available.
b. Analysis of the cases of the practical use of systems by women workers after the enactment of the Equal Employment Opportunity Act
c. Analysis of the realities of disputes by administrative and judicial systems after receiving applications for the solution of sex discriminatory conflict
d. Grasping the problems of operation and utilization of the present system
e. Analysis of the related systems of advanced foreign countries
f. Suggestions of directions for the improvement of systems so as to guarantee more assuredly the realization of sexual equality in employment.
2. Definition of Terms and Scope of the Study
The term ‘employment disputes based upon sexual discrimination’in the research is defined as one of conflicts between labor and management derived from discriminatory treatment for the reason of sex. ‘Settle ment system of the sex-discriminatory employment disputes’ is defined as both administrative organs and judicial organs solely engaged in dealing with sex discrimination problems among the present administrative and judicial systems of the resolution of disputes in charge of dealing with the disputes over the violation of rights. The labor unions and the Complaint Settlement Committee in charge of autonomous settlement of disputes and relief function of rights were included in the category of settlement systems.
This study was focused mainly on the sex-discrimination issues related to discriminatory or disadvantageous treatment of women compared to men for reasons such as marriage, pregnancy, child-bearing or merely being women. Disputes over application of the regulations such as menstruation leave, maternity leave, childcare leave, and maternity protection was excluded from this study as they are planned to be undertaken on some other occasion under a different category.
3. Method of Study
The research includes the following :
(1) Analysis of related legal documents home and abroad
(2) Collection and analysis of the cases and case studies related to the practical use of the resolution system of disputes during the period between April 1988 and December 1992
(3) Interviews with standing committee members in the service of the Local Employment Problems Mediation Committee and Labor Inspectors in charge of tasks related to women and youth of the Local Labor Office in six major cities such as Seoul, Pusan, Inchon, Taegu, Kwangju, Taejon.
II. PRESENT CONDITIONS AND PROBLEMS OF THE SYSTEMS IN KOREA
1. Overview
EEOA contains special administrative procedures for the resolution of disputes aiming at creating autonomous resolution of disputes when they occur between employer and women workers according to the rules and regulation stipulated therein. In fact, Chapter 4 of the EEOA stipulates the three following stages for the settlement of disputes linked with sexual discrimination :
(1) Autonomous resolution between concerned parties by means of bodies(the Complaint Settlement Committee) (2) Advice, guidance and recommendations by the Local Labor Office through (3) Mediation taken by Employment Problems Mediation Committee.
However, these procedures are not necessarily enforced. Women workers to condemn their employers be provided with administrative guidance through Labor Inspector, prosecution or through legal action according to the procedures of civil or penal codes instituting lawsuits to the courts and can also lodge a complaint with a labor committee in order to be cleared of any unlawful dismissal from their job.
As is shown in the above, the resolution system of employment disputes based upon sex-discrimination in our country can be characterized as follows :
(1) Based upon the autonomous settlement of the disputes, the systems of the various administrative bodies and judicial resolution of the disputes work together.
(2) Labor disputes are usually resolved by the ordinary judicial organs because of no labor court set up exclusively for this purpose.
(3) It is obligatory for employers to bear the burden of proof in setting a dispute in relation to EEOA.
(4) Public officials and school teachers are disposed of according to other separate resolution systems.
2. Basic Structure of Systems and Their Realities of Operation
A. Operational Realities and Structures of the Systems for Autonomous Resolution of Disputes within Business Enterprises(industries)
Present autonomous systems for the resolution of disputes include the following :
(1) Resolution of grievances by Employer and the Complaint Settlement Committee based upon the EEOA (2) Disposal of complaints performed by the Complaint Settlement Committee according to the Management and Labor Council Law (3) Collective bargaining labor-management contracts between employer and workers.
B. Operational Realities and Structures of the Systems for Administrative Settlement of Disputes
The relevant systems include the following :
First, as the relief systems of rights at the regional labor authorities, there are :
(1) Counselling of civil service (2) Investigation and disposal of the appeal by labor inspector according to the Labor Standards Act (3) The support for the settlement of disputes by the local labor authorities according to the EEOA. Second, investigations and mediation by the Employment Problems Mediation Committee. Third, order to change and supplement labor-management contracts of the administrative bodies. Fourth, disposal of the unfair lay-offs by the labor committee.
C. Operational Realities and Structure of the Systems for Judicial Settlement of Disputes
As the judicial systems, there are :
(1) criminal lawsuit to punish the person committed sex-discrimination (2) civil suit against the violation against equal rights (3) administrative litigation for the reason of the insubordination of the verdict of the Central Labor Committee
3. Analysis of Cases with Practical Application of the Systems
A. Objects of Analysis
In order to examine the application of the present system of settlement of disputes to actual cases, the research collected and analyzed cases occurring during the period since the enforcement of EEOA from April 1, 1988 to December 1992.
Accordingly, those cases which ended merely with an inquiry and counselling by the consulting centers were excluded. Data collection for the cases was made through personal interviews with those organs such as Local labor Offices, Employment Problems Mediation Committee, Korea Women's Association for Democracy and Sisterhood, Korea National Council of Women together with collection of all possible materials as reference documents including newspapers, letters concerning resolution of complaints by Local Labor Offices, final decisions made by the Labor Committee, verdicts of law courts, various documents used in making lawsuit petitions, indictments, and accusations by women workers.
Thirty-two cases were collected in this study and categorically classified. Four cases were of sex-discrimination from employment opportunity, two cases concerning education training, job disposition, or promotion, four cases of wage matters, sixteen cases of lower age limit for women, lay-off, dismissal and forced retirement for reason of marriage, and six cases were of lowering labor conditions because of marriage.
B. Cases Classified by Practical Use of the Systems
1) Administrative and Judicial Disposal Done by Local Labor Offices
As was shown in the Collection of data for case studies, petitions sent to the Ministry of Labor and Local Labor Offices represented a total of 21 cases. Fifteen of these cases met with administrative disposal by Local Labor Offices and 3 cases dealt with judicial disposal while 2 cases still remained pending.
From the viewpoint of administrative disposal, 7 cases were settled between employer and women workers by accepting notice of correction issued by the Local Labor Offices, 4 cases inquired of the Employment Problems Mediation Committee for intervention, 2 cases were put to administrative guidance in order to urge execution of a relief order carried out by the Labor Committee and 2 cases of petition were renounced totally or partially.
Regarding judicial disposal, 2 cases were taken as non-response from employers to the directives made for correction from the Local Labor Offices, 1 case was dealt with as employer's default against Labor Committee's relief order, 3 cases were sent off to the Public Prosecutions Administration under an accusation made by Local Labor Offices.
Cases of organizations offending regulations and rules and becoming objects of prosecution amounted to 7 cases in universities, 4 related to government financial institutions and 2 cases in banks, one in a press agency and 7 cases in other industries.
2) Mediation Carried out by the Employment Problems Mediation Committee
It was proved that in only 2 cases disputes had been settled amicably between two parties in accordance with the draft plans prepared by the Mediation committee under the request of Chief of the Local Labor Offices. The 2 cases were incidents regarding the lay-off of women workers after marriage in Taejon and Inchon cities and taken care of by each Local Employment Problems Mediation Committee respectively. These two women workers returned to their workplaces 16 days after lay-off since their applications came to the consideration of the Mediation Committee for the solution of unfair treatment.
3) Administrative Relief Carried out by the Labor Committee
Occasions of women workers lodging complaints with Local Labor Committees about unfair treatment such as dismissal, lay-off or transfer because of marriage or pregnancy amounted to 7 cases.
One case out of 7 regarding appeals made by women workers was rejected by the Local Labor Committee for consideration. The rest were resolved by the Committee with the decision that unfair acts of dismissal were committed by employers based upon sex-discrimination. These women returned to their former positions.
All the verdicts confirmed by the Local Labor Committee came up to the Central Labor Committee due to the dissatisfied employers' formal applications for the renewal of examination of the cases. The above one case rejected for the consideration by the Local Labor Committee was to tread the same course.
However, none of the cases reverted to the former state against the decision made by Local Labor Committee and only one case was still under examination. Two cases made futile administrative lawsuits to the court by dissatisfied employers who took an action by dint of objection to the Central Labor Committee's decision.
It took two or three months for the final decision to be made from an application of unfair dismissal to Local Labor Committee.
4) Directives to Change Collective Contracts by the Administrative Authorities
There was one case in which the government administrative authorities ordered of the collective agreements issued through the consent of the labor committee to be changed or supplemented in order to satisfy the request of victims of sex-discrimination. These changes or supplements would also apply to the conditions of labor-management contracts which were considered to hold some regulations prohibiting sexual equality.
5) Public Prosecutions Administration and Criminal Court
There were 3 cases in which employers were accused by women workers who claimed they were being treated unfairly due to sexual bias. These cases were taken to the Public Prosecutions Administration and punished by the court.
Two out of the above three cases were given a Summary Court verdict to make payment of one million won as the penalty against their misconduct in dealing with sexual equality stipulated in law. The other case involved an occasion in which an employer was forced to make payment of 3 million won as a penalty charge by verdict of a criminal court after having been indicted by collective accusation raised by about 30 women workers holding grievances over unlawful treatment by the employer on terms of age limit.
6) Civil Action
The number of cases of women workers desiring to solve employment disputes based upon sexual discrimination through civil procedure amounted to five.
Three of these cases involving the regulation of identical wages for identical labor (Article 6-2 EEOA) were about women workers who claimed the payment of the differential between the wages of men and women.
The other two cases were ones claiming approval of the nullification of dismissal suits filed by women workers who had been dismissed when they played leading roles in protesting unfair treatment in wages and promotion problems between two sexes in a group.
None of the 5 cases of accusations by women workers in common-law actions ended in favour of the complainants except one case regarding a suit for the approval of the nullification for dismissal. The rest were turned down at the first trial and through second trial in succession in the courts respectively.
III. DIRECTION OF REORGANIZATION AND PROPOSALS FOR THE PRESENT SYSTEM IN KOREA
1. Fundamental Direction Towards the Reorganization
A. Reinforcement of Autonomous Settlement Systems of Employment Disputes and Probing into Active Participation of Labor Unions.
In the case of sex-discriminatory problems happening in the workplace, it is regarded most desirable for women workers to solve problems between employers and workers collectively through autonomous ways if possible without allowing third party intervention. Then they can have their sexual equality problems settled successfully in their workplace.
One of the reasons for the above explanation is that present administrative or judicial system for dispute settlement has many problems in its own operational system. The settlement of disputes carried out by the administrative or judicial office, women's circles, mass media or other organs is considered very weak in its effect because their assistance is quite limited in nature and is transient and superficial in solving roots of problems.
Along with the possibility of many disadvantages to women workers such as job dispostion, transfer, promotion, task distribution from the employer, furthermore the occasion will occur of being reprimanded by fellow workers for reasons exploding problems of the workplace and difficulty of job adaptability.
Although these reasons can be attributed to a lack of the sense of equality between men and women from both employer and fellow workers, the more import and substantial problems regarding sex-discrimination might be understood in the subordinate relationship of the user of labor and then through the distribution of power between employer and women workers.
Therefore, it is recommended that the problems be solved by searching out ways for improvement through negotiation with employers, by forming firm unified collective action and by sharing sympathy for the problems of women workers. The problem of sex-discrimination should be solved by the strong support of labor unions which are regarded as independent systematic organizations existing for the benefit of workers and by the support of women worker's sororities organized in order to avoid the solutions of the problem by dint of person to person negotiation measures.
Discrimination problems are easily doomed to end in partial or temporary solutions instead of substantial solutions of a permanent nature as long as women are trying to depend upon external help without creating solidarity among themselves with lack of independent capacity. This tendency is apt to give rise to splits within the internal organizational system and forcing women workers to discontinue their job life caused by losing amicable human relationships in the workplace.
However, the rate of entry into the membership of labor unions by women workers is still considered low ; also, many workplaces still have not formed labor unions. Moreover, it is hardly possible to say that even in the existing labor unions they are dedicating themselves to settle the sex-discrimination for women workers by strong leadership. There has not been sexual equality achieved even through the labor union itself to adequately deal with the matter as a first priority item.
With this background, it is inevitable that these women workers who claim to have been mistreated by sexual discrimination will resort to external help for the solution as they are in danger of facing disadvantages in the workplace or to be isolated from both employer and worker.
Accordingly, it is important to expand the number of women cadre members to as many as possible to take part in the decision-making process in order to put the important issue of sex-discrimination between men and women into the collective bargaining of labor unions and other activities.
However, it is undesirable to force the problem by using legal systems. Instead, they must try to probe the counter measures more actively with regard to women workers' problems in the labor unions, and to increase the opportunity of women's participation in the activities of labor unions since they have the right to constitute part of the internal organization or forms of the system itself without the intervention of employers and government. They should be considered an independent body of solidarity for the improvement of labor conditions for workers.
It is viewed to be necessary only to encourage the supplementary systems as an inducement for women and their employers to take part actively in the solution of women workers' problems and sex-discrimination.
B. Intensification of Fundamental Elements in the Dispute Resolution Systems
1) Strengthening of Specialization and Fairness
Legal meaning of the request to the administrative or judicial organs for the solution of women workers' problems is to seek the judgment of those officials given the legal authority for these solutions. If we view officials in this light, their sense of value and their level of understanding are considered a significant influence on the direction of solving disputes. As appeared in the research report on the workers' attitude by the Center of Human Right for workers, most workers have high distrust of officials in their fairness and special knowledge regarding the settlement of employment disputes.
In order to solve such problems, measures are suggested as follows ; (1) enforcement of educational training for the officials (2) active participation of representatives from both management and labor in the process of resolving labor disputes.
In detail, first, educational training for special knowledge regarding labor problems should be expanded aggressively in law school, the institute of judicial training, and the educational facilities for government officials. It is considered very important that labor law should be taken up as a compulsory subject in the employment examination of the government officials. In particular, it is extremely important to educate those officials in charge of law training related to women's labor problems.
Secondly, it is difficult for officials to give professional judgements on various practical occasions, such as conflicts between management and labor, personnel management, group bargaining and agreement, in spite of the knowledge of labor problems they may have. In order to supplement this knowledge, well-experienced representatives of both sides should participate actively in the process of probing and making judgement.
It is due to these necessities that no professional judges take part in the process of judgement with the representives from both management and labor at labor courts in England, Sweden and Germany.
2) Enforcement of Speed, Simplicity and Economical Efficiency
Workers have no other means to live on except their own working power even in poor financial conditions. Due to a lack of professional knowledge relating to laws, they are also quite restricted from utilizing the dispute resolution system. They are subordinate to the directions of their employers.
It is inconvenient for the workers to use various dispute organs, such as Labor Committee, Ministry of Labor, Public Prosecutions Organization and Law Court, because the hours of these organizations overlap the workers' hours. Also, some facilities like Employment Arbitration Committee are established only in the large cities.
Therefore, the procedure should be done rapidly under the employer's responsibility by brief investigation of the evidences of disputes and should allow workers to utilize even public holidays or night time for this purpose. The lawsuit should be fixed at a low cost and also be carried out in a convenient way without hiring an attorney.
C. Establishment of Exclusive Systems for Resolution of Women Labor Disputes
It is necessary to set up administrative and judicial systems which could manage exclusively the women worker's disputes in this society. There are no exclusive systems established for women workers' problems and sexual discrimination except the Employment Arbitration Committee in an administrative organization and the complaints management center as an autonomous conflict resolution system.
We find that the problems of women workers have not been handled as an important matter, but as a secondary matter in the Public Prosecutions Administration Law Court, Labor Committee, Ministry of Labor. As a result, it is impossible to find such problems as the regular items in the various sorts of statistics or even in the regular achievement reports issued by concerned authorities.
These officials, namely, Labor Inspector and Industrial Counsellor from Ministry of Labor and professional staff from Employment Problems Mediation Committee have told that it is hard to manage exclusively such problems due to the burdens of their main work.
2. Suggestions and Directions for Reorganization of the Autonomous Dispute Resolution System
A. The Establishment of a Committee to Realize Sexual Equality(tentatively named) in the Industries
1) Reasons and Background for the Establishment
According to the Equal Employment Opportunity Act, the complaints management center as an autonomous conflict resolution system is totally dependent upon a business owner's discretion for its establishment as well as for its management. Also, in case of an owner's refusal of implementation, it remains out of sanctions by the law.
Although the establishment of the Committee members by the Labor Management Council Law is compulsory, it is restrictive and nominal on many occasions. It is impossible to expect a favorable dispute resolution, since representatives from the women workers are not guaranteed participation and the number of the Committee members is not same between labor and management.
It is most desirable and effective to resolve problems through group bargaining and agreement, though the labor union doesn't deal actively with such problems as inequality in sex.
2) Purpose and Plans of Establishment
This study hereby suggests to constitute a committee to Realize Sexual Equality, as a tentative name, with the same number of the representatives from labor and management and that this committee be established on a permanent basis in the industries.
The committee should constitute representatives from the labor union and the owner, and include a majority number of women representatives elected by workers in the industries where a labor union is not organized. This Committee must hold a regular meeting at least once a quarter in order to survey sexual equality independently and make plans for effective realization. This also must be included in the group agreement in the industries where labor union is already organized. If the labor union is not organized, it must be put in the employment regulations.
All the complaints caused by sexual discrimination such as inequality in promotion, retirement, etc. as well as unfair treatment for reason of pregnancy and delivery of women workers should be dealt with by this Committee in order to respond quickly to them.
B. Preparation for Independent Check-up and Report System for Sexual Equality
1) Background of Arranging the System
Article 20 of the Equal Employment Opportunity Act reads “For the enforcement of this Act, Minister of Labor shall be authorized to force and owner to report the matter necessary and provide to coordinate, guide and advice.”
According to the Labor Standard Act labor inspectors are given authority and the obligation to check that the Act is enforced in the workplaces.
Due to drastic shortage of inspectors, workplaces containing less than 300 workers are almost not reached by administrative supervision. It is distinctly impossible to seek supervision for the solution of sexual discrimination, because one supervisor has to control more than 200 industries and has little understanding of such problems.
Therefore, it is necessary to find out effective measure for supplementing the deficiency of labor administration and realizing the sexual equality in dependently.
2) Purpose and Plans of the System
To supplement effectively administrative supervision according to observance of the EEOA and to increase the interest and understanding of the Act between labor and management, the system of independent checking and reporting as used in Japan and France are recommended fully for Korea.
Distributing an Independent Check List to Realize Sexual Equality (tentatively named) arranged by Ministry of Labor to be sent every industry, would demand that employers examine the situation of sexual equality quarterly or every year and prepare reports on the disposal of complaints and on plans for sexual equality. It is considered necessary that the Local Labor Offices who will obtain these reports will provide proper administrative guidance for the Labor Inspector in charge. By establishing this system, the Article 20 of Equal Employment Opportunity Act will be actualized.
3. Suggestions and Directions for Reorganization of the Administrative Dispute Settlement System
A. Enlargement and Reorganization of the Employment Problems Mediation Committee
1) Background of Reorganization
The present system of administrative dispute settlement by mediation is not for realization of proper equal rights of workers, but for settlement of the dispute with some degree of compromise and yield from both sides. So it is regarded as not desirable in the settlement of sex-discriminatory disputes involving the violation of equal rights without intensive governmental intervention.
It is inconvenient that workers should have to submit complaints through the head of the Local Labor Offices and that the Committee is located only in Seoul and other large cities under government's direct control. It is also troublesome that full-time professional staff of the Committee have no legal authority needed for their work of inquiry.
Therefore, measures are needed for more active administration dispute resolution. In particular, we need to administrative dispute settlement system to supplement the current judicial system. Without the Labor Court we could have a more economical and simpler system in this country.
2) Direction of Reorganization
a) Reorganization toward a Quasi-Judicial Organization(Way 1)
The establishment of a Committee to Realize Sexual Equality(tentatively named) in every local labor offices is suggested for the effective reorganization of the current Employment Problems Mediation Committee.
When the labor union and women workers make an application for the sex-discriminatory problems to the Committee, the staffs of this committee would examine the documents and the workers' concerns in the workplace, and let the Committee organized by the employers, workers and the public give a decision according to the report. This research suggests that the Committee should be reorganized to have legal authority for directive orders of correction or reinstatement in case of sexual discrimination.
So, it would not be necessary to follow the current system of administrative dispute settlement by mediation if such an independent process of resolving disputes could be established as well as systematic help arranged by local labor offices. Moreover, if this described committee could be set up, such process of mediation will be of no use.
This plan of reorganization towards the quasi-judicial system is already favored and proposed by many concerned officials.
b) Supplementary Plan for the Present System(Way 2)
These plans of reorganization have the following problems ; Firstly, if opposes to the final decision by Committee to Realize Sexual Equality, those concerned persons must go to the higher court for their administrative litigation as a second step.
Secondly, if labor court is to be established for the solution of labor disputes, the quasi-judicial system in the administrative organization is not necessary.
Together with these questions, there are some cases possible which are regarded very hard in drawing out judgement on sexual discrimination, and in which women workers themselves want to be in the service of industries by amicable solutions without creating emotional confrontation between labor and management through mediation of disputes.
And the occasion may occur in which measures of mediation of disputes are considered necessary in practice. It is known that administrative measures for mediation of disputes are carried out as a first step in such nations as the U.S.A., England, and Canada.
It fact, there are many weak points to supplement in the current system. So this researcher hereby suggests that concerned persons should be allowed to use this system directly in case of inability of autonomous conflict resolution, and that full-time staffs should be given to the suborganization and given authority for efficient conduct. Also, the Committee must be set up in every Local Labor Office.
Although only two cases have been solved until now, it is desirable and recommendable to use more positively this system taking advantage of simple procedures of only 16 days, duration and of workers' own fine adaptability to their workplace without emotional confrontation between management and labor.
B. Expansion of the Women and Children Section into Women's Labor Bureau in the Ministry of Labor
1) Background of Expansion
The women and Children Section under the control of Labor Standard Bureau, at the present, receives operational direction of the director of Labor Standard Bureau and works with operational cooperation of the Women Counsellor.
The Labor Standard Bureau consists of the Labor Standard Section, the Wage and Welfare Section and the Women and Children Section. According to rules on the organization of the Ministry of Labor, the Women and Children Section shall take charge of the following matters ; improvement of working conditions, protection and guidance of working women and children ; survey of actual conditions, matters concerning status improvement and welfare promotion of working women and children. It is also responsible for establishment and operational direction of the Working Children's Hall(Article 14, section 5).
In taking charge of works related to the observance of the Labor Standard law, some functions of the Labor Standard Section inevitably overlap with those of the Women and Children Section.
As the public official in the general or special service, the Women Counsellor shall assist the Vice-Minister of Labor in the following matters : special protection for working women and children, cultural and educational guidance for working women, guidance and enlightenment of workers' family planning projects, and matters concerning promotion of workers' cultural activities(Article 9). The Women Counsellor is under control of Vice-Minister and of no suborganizations.
Considering the present situation, the operation and status of the Women Counsellor are equivocal and the Women and Children Section is not in general control over women's labor problems.
2) Purpose and Plan of Expansion
In order to conduct women's labor problems efficiently and systematically according to long and short-term plans, and to place political emphasis on the administration related to women's labor problems, it is quite desirable to promote the Women and Children's Section into a Women's Labor Bureau in the Ministry of Labor.
Women's Labor Bureau in the Ministry of Labor should plan in long and short-term for sexual equality, welfare system and improvement of working conditions for women workers, and it should establish closer cooperation with other sections in the Ministry of Labor so as to carry out plans efficiently and systematically. The Bureau should also establish the chain of command as the superior office of the Women's Labor Section in Local Labor Offices.
C. Establishment of a Women's Section in the Regional Labor Office
At present, there is no independent post in charge of operation of women's and juvenile affairs, and no inspector engaged in such an operation in the regional labor offices. Instead, according to the organization arranged by Ministry of Labor, only one out of 13 paragraphs provided for partial charge of ‘labor inspection section’ in regional labor office, and listed as operation, such as special protection for women and juvenile workers, equal employment for women, promoting women's status, and improvement of sexual discrimination. (Article 31, section 3)
Generally speaking, labor inspectors belong to ‘Industrial Safety Division’, ‘Accident Compensation Division’, ‘Employment Management Division’, respectively, and usually take charge of more than 200 industries under their control. They perform labor inspection, provide relief of private(individual) rights relevant to working conditions and oversee collective labor affairs connected with relationship between management and workers. One inspector attached to ‘Labor Standard Division’ carries out the operation in a technical nature in addition to the regular fixed operations according to written directions from ‘Women and Minors Division’.
Under these circumstances, it is hardly possible to expect smooth performance in inspection and encouragement related to women's labor in connection with such fields as prevention and protection of sexual discriminations, relief of rights in sexual disputes, and observation of regulations set up for maternity protection.
In order to promote more effective consultations on the complaints lodged by women workers in such fields of activities as supporting dispute of settlement, relief of women's rights, administrative guidance, working out statistical review, supervision on observation of the current Laws conducted by industries in relation to the matter of equal employment for both sexes with finding realities, and provisions stipulated for the protection of women and equality for men and women in Paragraph 5, Article 5 in Labor Standard Act respectively, the need of the establishment of a Women's Section in the local labor offices is highly recommendable.
The Women's section of local labor offices as described in the above, is to receive operational directives from the Women's Bureau, Ministry of Labor and will carry out the operation of an independent system for the solution of disputes as depicted in the former proposal on the directions of reorganization. This can be done by giving out a check-list arranged by the Section and letting the employers present the reports related to the matters of practising equality between men and women and its practical plans.
Also, the Women's Section will include in its operational activities such matters as checking out the necessity of establishing a practical committee for equality between men and women and will urge the set-up of this sort of committee. It will supervise implementation for administrative guidance along with all regular operational activities stated in the previous section.
D. Placement of Labor Inspector Exclusive in Charge of Women's Problems
No labor inspector on women's affairs was found in the Ministry of Labor and local labor offices. The work of labor inspector will include such activities as finding out wage situations, working hours, cases of dismissal, working conditions, industrial damages, collective bargaining, labor disputes and so forth, by the allocation of industries as a jurisdiction to be controlled.
Considering these realities, it is quite necessary to create an administrative system for women workers to provide more active supervision and guidance in relation to the problems of sexual discrimination in women's labor.
Accordingly, the establishment of a women's section in the regional labor offices is quite necessary with an appointment lf labor inspector in exclusive charge of women workers. Even though it is impossible to establish a women's section at the moment, the necessity of swift appointment of a labor inspector is extremely important.
Also, regular education programs for laws related to women workers and for the question of women workers must be worked out for labor inspectors as measures to promote operational activities.
E. Expansion of Women Labor Inspectors
Currently, the number of women labor inspectors is only 34 out of a total of 450 labor inspectors constituting 7.6% in ratio. Consequently, owing to the scant number of women labor inspectors, most operations concerning women's complaints have to be carried out by male inspectors. This indicates the impossibility for favorable solutions for the problems of women workers who occupy half the number of the total working class, since male inspectors are not suitable to understand women's problems throughly.
Therfore, in order to improve present realities and have the women's problems viewed, consulted and solved in terms of congenial sexes, large scale expansion of women supervisors should be created in the local labor offices.
4. Directions and Proposals for the System of Judicial Disposal of Labor Dispute
A. Establishment of Labor Court
The request for an establishment of a labor court to handle labor problems exclusively as a special court has been an age-old one. It has been expected that it is difficult to cause making relief in rights disputes and to carry out solution of problems suitably to meet the realization of worker's right by the usual operation of the existing judicial system.
The request for the establishment of a labor court comes out of the consciousness of inability of both current court and labor committees in making the suitable solutions for various disputes regarding workers' rights.
Precisely, first, because of time, money and the requirement of professional knowledge of law which usually occurs in trying to use the conventional court system for the solution of private workers' rights, the worker is forced to withdraw his complaint or develop the case into a collective dispute against his personal will.
Under these circumstances, the necessity for establishing a special labor court is strongly recommended as a tool for the handy and proper solution of workers' rights problems.
Secondly, collective disputes in defense of workers' right also involve costly expenditures and they require professional knowledge of laws. Relying on the conventional civil court for the dispute is prone to be changed by social situations and by the countermeasures raised by the other partner. This also requires establishment of a special labor court even for the means of avoiding settling current disputes by force.
Thirdly, we see in the occasion of current disputes, if cases involving disputes for rights are handed by coordination, arbitration and intercession, the litigants fear conceding their lawful rights during the procedure for reaching a settlement. It is suggested that since the procedures for settlement applied to the dispute for rights and dispute for benefits should be placed exclusively on labor committee while the dispute for rights must be worked out through the channel of a special labor court.
For this purpose, Korea General Federation of Labor Unions made a petition as to the direction of establishing a labor court to the National Assembly on July 1988, as well as a recommendation for the establishment of a labor court to the Chief Justice of the Supreme Court on July 24, 1991.
The petition in relation to the necessity of the establishment of a labor court and basic direction of legislation of law of labor court made by KGFLU was responded to favorably with the creation of mutually understandable area.
The proposals will be presented in this research with regard to the establishment and structure of labor court, and plans for its processes will be the same in prospectus and substances made by KGFLU in its petitions.
To sum up, by creating a labor court through legislation, the dispute for rights in workplace should be disposed of fairly and swiftly, and the kind of court brought about in two levels, local and appellate, will provide a structure to proceed to the judgement of the Supreme Court for final appeal.
The structure of the court would include representatives from the sides of management and labor who are well informed on the actual situation of working place as well as some specialists and professional judges.It is desirable that the expenditure of litigation should be arranged at low cost when needed for a concerned party and a proxy or attorney be entrusted with the law suit through the assistance of representatives from both sides of labor and management or labor organization itself. The term required for the final decision should also be shortened to that of a conventional civil trial. Also, there should be simplification of proving witnesses and enforcement of activation of circular court so that a trial could be performed even on such days as holidays or during evenings.
B. Establishment of Division in Labor Court Exclusive for Women Workers
Because of an inability to understand the substance and gravity of the problem of sexual discrimination that now exists widely in society, within judicial circles as well as in labor circles, women workers' problems are prone to be ignored. It is difficult to probe these substantial matters during the course of judicial judgement as they are entangled with other labor problems or apt to destroy the hopeful expectations towards the realization of women workers' rights according to as establishment of criteria from labor court discussions.
The importance of setting up an exclusive trial department for women's problems including sexual discrimination in the labor court is proposed in order to solve the disputes properly in consideration of specific character existing in the sexual discrimination, and the necessity for professional knowledge for women's problems.
The establishment of an exclusive trial department for women workers' problems in the ordinary court is regarded as also necessary, even though it is not possible to see the advent of labor court.
In this occasion, the system which allows women representatives to be participating in trials from the workers' side must be materialized in the creation of an exclusive trial department for women's problems.
REFERENCES
The Court Administrative Office(1992), Judicial Law Yearbook 1991
Center of Human Rights for Workers(1992), Report on Workers' Right, Seoul : Yeoksabipyung-sa.
Chung, In-soo and Chung, Byung-sok(1992), Study on Improvement Plan for System of Labor Inspector, Seoul : Korea Labor Education Institute.
Kim, Elim(1989), “A Study on Sex Equality in Employment Act,” Labor Law Studies, Vol 2, Seoul : Korea Labor Law Academic Society.
---(1991), Interpretation of Sex Equality in Employment Act, Seoul, Ministry of Labor
---(1991), “Problem of Equal Pay for Equal Work,” Substances and Tasks in Equal Pay Equal Work(collection from discussions), Seoul : Korean National Council of Women.
Kim, Kyoung-bae(1992), Labor Law, Seoul : Parkyoung-sa.
Kim, Jung-ban(1992), “Character and Task of Head of Trade Union,” Analysis on Labor Trend(3rd quarter), Seoul : Korea Labor Research Institute.
Kim, Tae-ki(1992), Study on Improvement Plan for System of Labor Committee, Seoul : Korea Labor Education Institute.
Kim, So-young(1991), “Unequal Employment of the Customary Practice in Korea,” Equal Opportunity for Employment and its Results, The Korea Legal Aid Center for Family Relations.
Koo, Soo-hwae(1992), Interesting Criminal Code, Seoul : I1jokak.
Korea Federation of Employers(1993), Labor Economy Yearbook 1992.
Korea National Council of Women(1990), Case Studies of Sexual Discrimination at Work.
Korea Women's Association for Democracy and Sisterhood(1991, 1992), Clerical Women at Work, vol. 5, vol. 8.
Korean Women's Development Institute(1988), A Study on the Retirement of Female workers.
---(1991), A Study on Laws Related to Women's Welfare.
---(1991), Case Studies on Discrimination against Female Workers.
Lee, Jae-sang(1991), Law of Criminal Litigation, Seoul : Parkyoung-sa.
Lee, Sang-kyu(1988), New Legal Litigation Law, Seoul : Pobmoon-sa.
Lim Jong-ryul(1985), Labor Dispute Disposal System in West Germany.
---(1988), “Improvement of Labor Dispute Disposal System,” contemporary Management and Labor (August 1988).
Ministry of Justice(1989), Law and Living, vol. 1, Seoul : Ministry of Justice.
Ministry of Labor(1992), White Paper on Labor, Seoul : Ministry of Labor.
---(1988), Women and Employment, Seoul : Ministry of Labor.
Park, Sook-ja(1992), “Campaign of Labor Union for Sexual Equality in Labor Market-from View of Actual Status for Women's Employment”(collection of discussion for women's policy 1992), Seoul : Korea Federation of Labor Unions.
Shin, Yong-ja(1991), Operation and Present Situation on Equal Employment in Advanced Nations in the World, Seoul : BPW Korea Club.
Song, Sang-hyun(1990), Civil Litigation Law, Seoul : Parkyoungsa.
Yoon, Hoo-jung and Shin, In-ryung(1992),Perspectives of Feminism on Law, Seoul : Ewha Womans University.
Yoon, song-chon(1987), “Administrative Relief and Punishment Against Illegal Labor Act,” Labor Law Studies, vol. 1., Seoul : Korea Labor Law Academic Society
---(1989), “Activation of Systematic coordination for Dispute”(collection of discussion), Seoul : KWDI
| | |