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2002-10-28 15:22:19, 조회 : 395 |
Child Care Leave Systems : Setting A Research and Policy Agenda / by Elim Kim
/ KWDI Research Reports /Women's Studies Forum, Vol.10 /December 1994
* This Paper is the condensation of the '93 Research Report 200-9 by the
KWDI research team Chang Sung-ja, Kim Elim, Choe Yeon-hee, and Chang
Young-a.
Kim Elim(Senior Researcher, KWDI)
I. BACKGROUND AND PURPOSE
Generally speaking, the Child Care Leave System (hereinafter referred as
the System) is a temporary leave of absence from a place of employment for
the care of a child, without change in status or rank.
The significance and the necessity of this System may be seen from
various perspectives. From the employee's point of view, it is a workers's
welfare system which can facilitate a healthier balance between work and
family life. In particular, the System can enhance equal opportunity in
employment for women, who by tradition assumed the full responsibility for
childrearing, as it guarantees that their jobs will be maintained even
after marriage or childbirth. From the employer's standpoint, the System is
useful in that it obviates the need for competent female employees to
resign and fosters greater dedication to their work duties. For the
government, it helps to prevent a potential shortfall in manpower resulting
from the trend of women forgoing children because of childrearing
pressures. It also ensures a healthy and sound labor force for the next
generation, reared by the mothers themselves. Finally, from the child's
point of view, his/her own mother rather than by a child care facility or
the like. Additionally, the System helps to relieve the problems in
creating and managing child care centers arising from the shortage of
space, facilities and staffs.
However, long-term leaves of employees can create another type of
problem, that of finding temporary substitutes for the employees.
Otherwise, other employees in the same work place may have to assume the
extra work load. Though the burden may be certain age group can give rise
to the problem of employers shunning the hiring of female workers or
otherwise adversely affecting them. The problem is exacerbated when the
issue of pay during a long leave of absence is involved. Taking these
points into consideration, many international organizations and advanced
countries have been exerting efforts to resolve this problem, and adopting
relevant legislation to that end.
In the Republic of Korea, the Child Care Leave System was introduced in
1987 through the Equal Employment Opportunity Act with the aim of
protecting workers as mothers and enhancing the quality of both work and
family life. Together with the management of child care facilities, the
Child Care Leave System helps married women to retain their jobs. However,
the System in Korea is not without substantial problems, and though it has
been over five years since it has been implemented, its record is far from
satisfactory. What is worse, the inclusion of a long-term child care leave
provision under the women's protection clauses of the Labor Standards Act
has actually fostered discrimination among employers, who avoid hiring
female workers likely to take child care leave.
In connection with the subject at hand, this study aims to : 1)analyze
the positions of international organizations like the UN, ILO and the EC
and models of similar Systems in other countries; and 2) present the System
in the Korean context and find ways of improvement applicable to Korean
society.
II. PRESENT SITUATION OF THE CHILD CARE LEAVE SYSTEM IN KOREA
1. The System Based on the Equal Employment Opportunity Act
A. Background and Basic Laws Relevant to the Child Care Leave System
The System in the private sector is based on Article 11 of the Equal
Employment Opportunity Act(hereafter referred to as the Act). Since its
passage on December 4, 1987, the Act has served as a unique legal basis for
the Child Care Leave System, obliging employers to accept a request for
leave under any circumstance when a female worker who has a child under one
year old is required to take care of the child. The system was bolstered on
April 1, 1988. the mechanism to guarantee its efficiency was
institutionalized after the Equal Employment Opportunity Act on April 1,
1989.
The newly-revised Act regulates that an employer who rejects the female
worker's request for her child care leave shall be punished for penalizing
the female worker. In addition, the period of leave shall be counted as
part of the total length of employment, so that the System prevents
disadvantages against the female worker in matters of retirement pay and
promotion.
The Enforcement Regulation of the Equal Employment Opportunity Act was
enacted on July 7, 1988 and revised on December 113, 1989(Article 9-2),
with its Enforcement Ordinance enacted on September 9, 1988, and revised on
March 24, 1990(Article 2). The System is stipulated in detail in the
Regulation updated on April 1, 1992(Article 11 of the Regulation of the
Ministry of Labor).
Social and political support for the child care problem built up to the
critical mass necessary to pass legislation in the 1980s as women began to
recognize the importance of their own human rights, such as the right to
equal opportunity in employment, the right to work for any desired length
of time, and right to merely survive, for that matter. Moreover, expanded
educational opportunities for women allowed greater numbers of women to
enter into the work force. The reduction of household chores as well as a
lower birthrate also contributed to the rise of women working after
marriage. In tune with this trend, women began to stand up against the
injustice of premature retirement and marriage resignation, and demanded a
concrete legal system guaranteeing equal employment for men and women. The
demand for legislative support for child care, which had been the primary
barrier for hiring women workers, became the rallying point of the feminist
movement.
Consequently in the early 1980s, the government changed its policy on
women's issues and tried to abolish sexual discrimination in the work field
in order to develop and utilize a female workforce to facilitate economic
development. These movements materialized into the following : first, the
Equal Employment Opportunity Act, incorporating the Child Care Leave System
and the installation and management of child care centers like nursery
schools in the workplace, was enacted. Second, the clause on nursery
schools was reincorporated in the Enforcement Ordinance of the Child
Welfare Act on September 1989, restoring its legal basis which had been
eliminated in February 1982. Henceforth, the amendment to the Enforcement
Regulation of the Child Welfare Act provides for the installation and
management of child care facilities at home as will as in the workplace.
Furthermore, the Child Care Act was enacted in January 1991 in order to
solve related problems more systematically.
However, in actuality the Equal Employment Opportunity Act is quite
different from the UN Agreement on the Equality of the Sexes and other acts
of Western nations which thoroughly eliminate all forms of sexual
discriminations. The Equal Employment Opportunity Act in itself bans sexual
discrimination in the hiring of a female worker, and even threatens
punishment against an employer guilty of violation. However, the Equal
Employment Opportunity Act centers on the female worker's welfare with the
assumption that child care is her sole responsibility. Consequently, it is
merely a legal device to enable women to fulfill her responsibilities at
home and at work. "Besides guaranteeing equal opportunity and treatment
between men and women according to the equality Act aims to improve the
welfare of the female worker and promote her status by protection maternity
and developing her career"(Article 1). The Equal Employment Opportunity
Act's principle regulation protected, she herself should be able to develop
her potential to the fullest in an environment free of sexual
discrimination, based on the reasoning that a "female worker cannot only
contribute to the nation's economic and social development but also play
the important role of rearing the next generation"(Article 2). Chapter 2 of
the Equal Employment Opportunity Act contains provisions on discrimination
in the employment and the treatment of women, and Chapter 3 prescribes a
system and facilities exclusively for the welfare of female workers(Article
5), job security for women (Article 9) and professional training for
women(Article 10).
The Equal Employment Opportunity Act is quite similar to the Japanese
'Women Workers Welfare Act.' In addition, it also reflects the current
situation in Korea where female workers remain under the dual burden of
housework and employment. With such a purport and background, the Equal
Employment Opportunity Act paved the way for child care leave for female
employees only and guaranteed maternity protection. In other words, the Act
aims to protect motherhood but in Article 2-2 it stipulates that it is
non-discriminatory by gender, as is Article 4 of the UN Agreement of the
Equality of the Sexes. In Chapter 3, however, child care leave and
facilities are defined as a support means solely for women, specifying that
pregnancy, childbirth, childrearing, etc. are applicable to woman only.
This is very different from the provisions in other international
agreements of this nature, which are based on the establishment of the
right to worked for man and woman as well as a supporting measure to
enhance family life in general.
B. Those Eligible under the Equal Employment Opportunity Act
The Equal Employment Opportunity Act applies to all establishments with
more than five employees(Article 3). It also applies to local employees of
foreign companies in Korea(Law No.811-26735, December 4, 1978). However,
the Equal Employment Opportunity Act does not apply to companies employing
only family members, female workers hiring a housemaid, or civil servants.
In actuality, the Equal Employment Opportunity Act applies to those
female workers - not male workers - who have children under one year
old(Article 11 ①). Eligible under the Equal Employment Opportunity Act are
all female employees who have children regardless of their marital status
and the length of service at their workplace.
Article 11 ① fails to define "child," whether as the worker's biological
child, and describes child care leave as a leave of absence to "rear the
child." The Regulation of the Equal Employment Opportunity Act, however,
defines "child" as any infant either delivered or adopted by the female
worker, including any children out of wedlock(Article 11 ① 2).
C. Length and Form of Child Care Leave
Article 11 ② of the Equal Employment Opportunity Act sets "the length of
leave as one year, including the paid maternity leave before and after
childbirth (60 days) stipulated in Article 60." Article 9 ② of the
Enforcement Ordinance of the Equal Employment Opportunity Act qualifies the
period by stating that "the last day of the leave should not fall past the
first birthday of the child." Thus. no matter when the leave started, it
must end when the child turns one year old.
Article 11 ② of the Directions on Equal Employment Opportunity reads :
"child care leave should not be limited to the period of the maternity
leave and does not have to be necessarily when the child is under one year
old." In other word, according to this provision, the employer should grant
the leave in full at any time it is requested. The length of the leave can
neither be shortened by the employer nor supplemented with vacation leave
by the employee. According to an administrative interpretation, the
employee cannot take the leave before childbirth(NO. 01254 -16806, February
15, 1990).
In our country, child care leave means taking time off work to solely
concentrate on child rearing. Other forms of child care leave seen in other
countries like reduced work schedules, part-time work, and modified work
hours are not available.
D. Conditions and Procedure for Requesting Child Care Leave
In order to ask for child care leave, the female worker must present the
request to the employer(Enforcement Ordinance Article 9-2 ①. The request
should explicitly indicate the length of the leave, starting with the first
day to the last(Article 9-2 ②).
E. Guaranteed employment during Child Care Leave
The Equal Employment Opportunity Act prescribes that the period of the
leave be counted as part of the total period of employment(Article 11 ②)
to minimize inequitable treatment in terms of promotion, and of the
calculation of retirement pay and annual vacations. The Equal Employment
Opportunity Act reads:"unfair treatment by the employer because of child
care leave is not permitted." Violators are to be fined no more than 2.5
million won.
Directions on Equal Employment Opportunity define unfair treatment by the
employer due to child care leave as follows(Article 11 ③) : 1) refusing to
accept the worker after her leave or unreasonably changing the work place
after the leave; and 2) deducting the leave period from the total period of
employment which serves as the basis for promotion, retirement pay and
annual vacations(Article 11 ③).
However, the Directions also read : "not including the leave period in
the total period of employment does not necessarily mean unfair
treatment"(Article 11 ③ 2).
According to administrative interpretations, calculation of annual
holidays for female workers who take child care leave is based on the total
length of employment with the company, excluding the leave period, and
attendance rate. In the case of perfect attendance, 10 days are allowed for
annual vacations and 8 days for those in the upper 90 percent attendance
rate(No. 01254-7827, May 31, 1991).
F. Guaranteed Wages during Child Care Leave
The Equal Employment Opportunity Act itself does not clearly define the
issue of wages for the 10 months of child care leave apart from two months
of paid maternity leave. Accordingly, this can be interpreted to mean that
the employer may consider the remainder as unpaid leave. However, this
being the worst case, full or partial salary is possible in accordance with
the Regulation of Employment by a collective agreement. With regard to this
matter, the Directions read : the employer has no legal obligation to pay
the female worker her salary during the child care leave provided this is
not stipulated in the rules of the company, in which case, the owner must
pay full or part of her salary(Article 11 ④).
G. Measures to Guarantee Efficient Implementation of the Child Care Leave
System
In order to guarantee efficient implementation of the System, the Equal
Employment Opportunity Act prescribes punishment for those employers who
have violated the Provision, Article 11 ③. Thus, an employer who does not
accept the request of a female worker for child care leave or imposes an
unjust treatment for this reason is subject to punishment and a maximum
fine of 2.5 million won(Article 23 ②). This punitive measure, based on a
dual punishment rule, applies to not only the business proprietors but also
to corporate bodies and other employers. In addition, in case there is a
dispute between employer and female employee due to this matter, the
employer has the obligation to resolve the matter by providing a speedy
special administrative process in order to reach a prompt solution.
H. Present Situation Surrounding the System and Its Implementation
According to a survey carried out by 37 regional labor departments under
the Ministry of Labor on 520 companies with 300 employees or more, 317
companies or 61%of them were already implementing the child care leave
system. Among the companies surveyed, those with the highest rate of
implementation were companies in the banking and financial sectors. 60.1%
of companies in the manufacturing sector were implementing the System. In
the field of social services or private services, 57% of the companies were
implementing the System, the lowest rate. Unfortunately, though the System
exists in the companies, only 88 companies of the surveyed
establishments(27.1%) have utilized the System at least once in the past
five years, and 5,208(or 84.1%) of the 6,189 cases were from the financial
sector. Moreover, 28 companies(or 8.8%) voluntarily paid 20% to 100% of the
basic salary during the leave period.
From this survey, the Ministry of Labor concluded that though the
implementation of the Child Care Leave System is improving, it falls short
of full enforcement. Companies not implementing the System account for 39%
according to the Ministry, and the situation is even worse in places with
few female workers. The percentage of women in need of the System in the
age group from 25 to 29 is rather small, making up a mere 18.5% of total
female workers. For this reason, the absolute necessity for the System is
not keenly felt and many women tend to avoid claiming this basic right for
fear of dismissal, discrimination or other forms of reprisal. Meanwhile,
the employer shirks the System because of the burden of finding a
substitute for the person on leave, business setbacks due to the absence of
the worked, pre-existing prejudice against women, etc. A survey carried out
by the Korean Women's Development Institute on 249 women in companies with
more than five employees revealed that only 16.1% of them female workers in
companies with more than 300employees, 31.6% in companies with 50 to 299
employees and only 5.6% in companies with 5 to 49 employees made use of the
System, respectively.
III. THE SYSTEM BASED ON THE LAW ON CIVIL SERVANTS IN EDUCATION
The basis for child care leave for civil servants is found in the
Educational Civil Servants Act. This Act does not provide for child care
leave but grants long term leave due to pregnancy and childbirth (twice
during the period of employment within a three-year period). This leave is
used usually as child care leave.
The Education Civil Servants Act revised on November 23, 1981, stipulates
that if a woman teacher requests a leave for the reason of pregnancy and
childbirth, the employer must grant the leave twice during her career
within a period of one year. On November 28, 1987, the Act was revised,
prolonging the term for "within a three-year" in order to protect the
health the teacher and thus enhance her capacity as an educator. When a
woman teacher takes leave for more than two years, she must undergo a
training course by presidential decree.
The Act applies to female civil servants in the education field and those
who teach in civil schools. Thus, other civil servants are not subject to
this Law(Educational Law, Article 73).
Female civil servants in the educational field may take a leave for the
purpose of child care twice in their career within a period of three
years(six years in total), states the Educational Civil Servants Act,
(Article 45 ① 6). In addition to this, the female teacher may take her
60-day maternity leave.
During the leave, a female teacher retains her status even though she is
not working. According to the Act, however, the leave in itself is not her
given right but provided at the discretion of the employer. Accordingly,
the length of the leave may be changed.
There are no particular pre-conditions or necessary procedures that
regulate the means by which the child care leave can be requested according
to the Act. At the end of the leave, the female teacher is justly
reappointed. However, as pointed out earlier, any female teacher who has
taken a leave that exceeds a period of two years must be re-trained in
accordance to Presidential Decree(Article 45 ③). This is done in order to
maintain the quality of education.
When the cause for leave is terminated, the female teacher must notify
this matter to her employer within 30 days from the expiration of her leave
and it is granted that she will be justly reappointed thereafter.
According to the Regulation on the Wages of Civil Servants, however, any
form of leave from the post, be it a voluntary leave, suspension or
removal, is not calculated as part of the total term of employment in
determining salary upon his/her reappointment. This differs from the
private sector, which includes the length of the leave as part of the total
term of employment.
The Education Civil Servants Act does not present a clear definition of
wages during care leave, either. However, Article 28 of the Act on the
Wages of Civil Servants reads : "a certain percentage of the salary shall
be paid if the leave is due to sickness, overseas study or training." A
leave for any other reason will not be guaranteed payment of salary.
Article 19 of the Regulation on the Wages of the Civil Servants stipulates
that following Article 20 ② of the Standing Orders of the Civil Servants,
a salary shall be paid in case of a maternity leave(60 days). A female
teacher, though she may not be paid a salary during her leave, is obligated
to bear the cost for medical insurance, pension and deductions that go with
her salary.
As child care leave is at the discretion of the employer according to The
Education Civil Servants Act, a request for the leave by a female teacher
can be rejected without any fear for punishment to the employer. If any
form of discrimination is imposed on the female teacher who has requested a
leave, however, she may sue the administration through the General or
Central Committee on Civil Servants' Difficulties according to Article 49
of the Education Civil Servants Act ant the Regulation to Ease Difficulties
of Civil Servants.
According to a survey carried out by the Korea Educators' Union among its
members and a report thereof, 7,7% or 58 of the 751 married repliers, have
utilized the System. The reasons for the 92.3% of the repliers who did not
use the System were as follows :
- Did not feel the necessity 29.3%,
- Were unable to request it at the needed period 25.7%,
- Were unaware the System existed 12.7%,
- Wage problems 10.8%
- Fear of negative career record 4.1%.
48.4% of the respondents even stated that refrained from taking their
maternity leaves, which is guaranteed by the given Regulations. Their
reasons were as follows :
- Pressure from employer 30.2%,
- Unable to find substitute teacher during leave 12.3%,
- Disadvantages in vacation periods 19.1%,
- Consideration of students'need and demands of parents 2.0%,
- Other reasons 36.5%.
With regard to finding an appropriate solution to this matter, those
surveyed suggested that firstly, a child care center in the form of nursery
schools be installed in the facilities(33.2%) and secondly, that the System
be implemented in a natural manner to enhance the working conditions of the
female teachers. For educators of private schools, 58.8% of those surveyed
also pointed out the existing problems on administering the maternity leave
as well as the child care leave system. Of those surveyed, 97.3% were in
favor of the child care leave and 78.1% of those replied that salary should
be compensated during the leave.
IV. PROBLEMS WITH THE CHILD CARE LEAVE SYSTEM IN KOREA AND GUIDELINES FOR
IMPROVEMENT
1. Fundamental Principles for Reform
A. Fundamental Guidelines for Reform
It is the conclusion of this study that an improvement in the Child Care
leave System in Korea would be the most basic step toward achieving gender
equality in employment and in turn improve children's welfare. However, in
order to effect necessary reforms not only do support systems need to be in
place and functioning, but traditional gender roles assigning child care
solely to women, and thus limiting their opportunities for employment, must
be challenged.
By this view, the first stage of reform would be to raise awareness of
the concept that child care is a communal responsibility to be shared by
men and women, nation and society. Furthermore, industry must actively
implement a child care system with the support of government and society.
Changing the traditional sexual division of roles and public/private domain
divisions are prerequisite to equal opportunity in employment. Reforming
the Child Care Leave System is possible in a society in which gender
equality is a widely-accepted value or it can contribute to the
establishment of such a consciousness.
In the quest of practicable ways to improve the Child Care Leave System,
this paper has studied the policies of international organizations as well
as the examples of other countries'systems in order to gain a deeper
understanding of the flaws in the Korean system and its suitability to
current labor conditions. With this in mind, this paper has sought to find
an acceptable compromise bridging the ideal with the feasible. To that end,
it is the conclusion of this paper that current Child Care Leave Systems in
terms of their purpose, eligible persons, qualifications for and ways of
applying, and employment guarantees must be analyzed first of all, and that
income guarantees must be publicly funded on a national level. Since the
subject of income guarantees requires more detailed research, this paper
provides only rough guidelines that may serve until the completion of the
second part of this study due in 1994. However, before such income
guarantees can evolve into a comprehensive social security plan, it is
recommended that labor-industrial relations be smoother, and that these
issues be resolved through autonomous negotiations.
B. Problems with the System and Ways to Improve
1) Flaws in Premise
In Korea, existing Child Care Leave Systems are designed to protect the
mother(refer to Chapter 3 of the Education Civil Servants Act). Under this
principle, only working mothers qualify. In contrast to international
standards, this policy not only reflects a lack of understanding of
maternity protection itself, but also the prevailing convention that
childrearing is a function unique to women or that women are the primary
child caretakers. With rare exceptions, child care issues are not
considered in terms of maternity protection in developed nations.
Elsewhere in the world, Child Care Leave Systems have been designed to
prevent discrimination against hiring women, or to maintain women workers'
employment status. The need for various protective policies for women arose
from historical experience and knowledge of social conditions.
In Korea, legislation covering women workers were drawn up with neither
sufficient study of international conventions and legislation of other
countries, not public debate. As a result, current legislation has in some
cases actually undermined its original purposes, among those the protection
of mothers through child care leave.
In the future, the nation needs to acknowledge that child care leave is
not a function of maternal protection, and that equal rights for workers,
male and female, must be established. A worker's welfare system that can
successfully integrate homelife and worklife, that can develop children's
welfare, and that can expand the nation's and industry's human resources
must be adopted as the norm. Furthermore, such a system would have to
challenge traditional values-such as sexual division of roles and
public/private domain divisions-that degrade women's labor rights, the
right to equality, and other basic human rights.
2) Flaws in Eligibility and Suggestions for Reform
a) Expansion to Include Male Workers
In Korea, the concept that childrearing is the responsibility of women
alone still prevails, and acts as the most serious obstacle to women's
employment. However, if government policy allows only women to take child
care leave, then it actually reinforces traditional notions of sexual
division of roles. A lack of government support at the national level also
discourages industry from hiring women.
Although laws may reflect a society's value systems or its actual
conditions, laws can also function to shape societal values. In the future,
enabling male workers to take child care leave will instill a sense of
shared responsibility for child care and household labor, and the awareness
that women cannot be penalized in employment opportunities because of
so-called "child care problems." Conditions that would allow men to
undertake child care duties should be systemized and consolidated, and
profound attitudinal changes must take root. To that end, many countries
have already instituted staggered work schedules, shortened work hours or
other changes in work schedules that enable men to share childrearing
duties, and thus obliterate traditional divisions of labor by gender.
b) Expansion of Leave to Include Civil Servants
Female civil servants are ineligible for child care leave under current
Korean law. Only female school teachers who are civil servants under the
Ministry of Education can take pregnancy and postnatal leaves under the
Educational Civil Servants Act. For female civil servants in other sectors,
the lack of a policy is seen as a significant hindrance to the execution of
their work duties.
Considering the fact that civil servants by definition serve the welfare
of the general populace and that the nature of their work is of the public
domain, their example may lead to the establishment of similar policies for
women workers in the private sector-that is, denying basic worker's rights
and equal opportunity protection in employment by law. This discrepancy
between civil servants and private sector workers is defended for various
reasons of administration efficiency or public convenience, but no matter
the justification, women civil servants are entitled to at the very least
same protection of human rights and worker's rights that would guarantee
humane standards of living of mothers or for the principle of gender
equality- would uphold their human rights, and elevate the value of their
work, rather than mere efficiency. Not insignificantly, the public sector
can set a progressive example for the private sector in the matters of
maternity protection, gender equality, and child care.
3) Flaws in the System Itself, and Suggestions for Improvement
a) Introducing the Reduced Work Schedule Scheme
Child Care Leave Systems in Korea uniformly require the mother to take a
fixed leave of absence, disengaging herself from the workplace during that
time. From the standpoint of the employee, an extended leave of absence
hinders her efforts to advance her career and develop professionalism,
while to the employer, it represents a substantial loss of manpower.
Thus, Korea should follow the example of advanced nations by expanding
the choices of Child Care Leave Systems other than the single leave-of-
absence model. One alternative would be a reduced work-schedule scheme,
under which the work schedule is shortened on a flexible basis - one day,
one week - a length determined by a combination of special and private
circumstances, between the employee and employer. After the leave period is
over, the employee returns to the regular schedule. Under this system, the
employee is paid commensurate to the shortened schedule, taking into
account the length of the leave and the entire length of employment.
Although salaries must be calculated individually according to various
formulae, complication matters for the employer, this system does alleviate
some of the problems of the leave-of-absence systems, and more importantly,
it fosters among male employees the sense of shared responsibility for
child care. For these reasons, many advanced nations have long since
shifted away from the former system.
b) Introducing Various Nursing Leave Systems for Children/Families
Presently, legislation provides for child care leave only until the baby
turns on year old. But in actuality, the employee has not only the
responsibility of child care but other family obligations as well as
job-related duties that may collide. Thus even though the period of leave
(until the infant is one-year old) may pass without incident, the System
does not take into account other critical situations that may arise at any
time throughout the employee's career : children or elderly family members
falling ill; visits to schools; sudden accidents or emergencies; and even
the adoption of children (although adoption is not as common in Korea as in
other countries). Most leave systems in other countries allow both male and
female workers not only child care leave, and family leave for either
parent. In addition, some systems grant fathers leave when when must assume
greater responsibility for child care because the wife is pregnant or for
whatever reason.
In this country, the concept of child care leave must be expanded to
include time off to nurse children and seniors or other family leave plans,
and paternity leave. By making the leave system more comprehensive, the
competing demands of home and work may be more easily accommodated. Nursing
leave for workers with family responsibilities and administrative
guidelines that establish more generous labor conditions are already being
set up in Japan in anticipation of a graying population.
4) Problems in Eligibility for and Processing Child Care Leave, and Ways
of Improvement
First, under the current Child Care Leave System in this country, women
employees are granted leave until their child is one year old, regardless
of the length of employment and without exception. Thus, employers who
demand that workers requesting leave meet a fixed set of conditions are in
violation of the law. Furthermore, a literal interpretation of the law
allows part-time workers, contract workers, and temporary workers the right
to the same terms of leave.
However, in many other countries, workers are eligible for leave only
after a determined length of employment. Part-time workers have different
arrangements. In this country, the policy of allowing the same terms of
leave to all women employees regardless of employment status may seem
progressive and beneficial in the short term, but more studies need to be
done as to the long term effects on the leave system, and as to whether
such a broad policy works to the detriment of married whether part-time
workers or workers outside of the usual channels are in fact eligible for
child care leave, and if so, under what guidelines that policy should
follow.
Second, the procedures for applying for child care leave are grievously
lacking. Provisions in the Equal Employment Opportunity Act only require
that the applicant turns in a registration form but offers no guidelines or
time schedules. The Education Civil Servants Act has no guidelines at all.
Since the child care leave is a relatively long term, the applicant is
obliged to inform the employer of his/her opinion and a general time frame
as well in advance as possible so as to minimize the negative effects of
his/her prolonged absence. Advance notice can allow the employer and
employee time to negotiate the period of the leave; to arrange for
substitute workers; or to otherwise reassign the duties of departmental
staff to accommodate the absence. The Child Care Leave System must
incorporate such preliminary procedures if its effectiveness is to be
enhanced.
5) Problems in Guaranteed Employment after Child Care Leave and Ways to
Improve
Korea's present System does not explicitly guarantee the worker who takes
child care leave either job security or the resumption of the same position
upon returning from the leave. As there are no legally binding measures,
guarantees of re-employment are adjudicated by labor supervisory boards or
procedural guidelines for civil servants under the Equal Employment
Opportunity Act. In the future, guarantees to maintain the same position
must be backed by law. Also, since violators of regulations against "unfair
treatment" are merely fined 2.5 million won, hardly a deterrent, more
diverse and effective measures to ensure compliance must be enacted if the
law is to have any tooth. Civil servants in the education sector returning
to their original position and pay scale in the education sector returning
to their original position and pay scale after taking child care leave
should be able to benefit from supervision against "unfair treatment." On
all these points, further studies are required.
6) Problems in Guaranteed Wages during Child Care Leave, and Suggestions
for Improvement
Under the Korean System, child care leave does not entail compensational.
Only for the sixty-day period allowed for pregnancy leave is the employee
entitled to full wages paid wholly by the employer under the Labor
Standards Act. Also, the employer is responsible for compensation
substitute workers or regular employees working overtime. Because of the
financial burdens posed by the System, employer may avoid hiring female
workers altogether. On the other hand, a non-paid leave System discourages
those who need the System most from utilizing it. Without even minimal
subsistence wages, the employee may barely afford basic living expenses,
much less bear the additional costs of childbirth and child care.
Thus, if the System is to become more efficient and practicable,
provisions for either partial or full wages during leave are required.
However, such wage guarantees would further increase the financial burden.
However, such wage guarantees would further increase the financial burden
on employers, thereby exacerbation discrimination against hiring women.
Since child care is a societal responsibility as well, it is unreasonable
to demand that employers assume the full costs of child acre leave.
instead, a social security system or a public trust should finance the
compensation of workers on leave. The experience of other countries shows
that income guarantees during leave expedite the participation of male
workers in the System. However, the problem of who will and how to set up
the financial resources is in reality a most difficult one, compounded by
the equity issue of workers who share child care responsibilities with
their partners but do not take leave. What is required are intensive
studies of this problem in its multiple aspects. The second half of this
study, due in 1994, will research these issues at length.
But nevertheless, in this country employers presently assume all
financial costs of providing full wages during maternity leave, in addition
to the burdens of paid menstruation leaves, paid nursing(breastfeeding)
leaves, shifting personnel work duties, banning pregnant women from
overtime and other costs of the maternity protection policy. A social
security system that includes income guarantees can only be established in
gradual stages as the financial burdens above are also addressed. And until
a nationwide system is in place, labor and management should negotiate
these provisions autonomously. Collective agreements between labor and
management at KBS, MBC, Shinhan Bank, Namsung Electrics, etc. provide for
partial pay during child care leave.
7) Suggestions on Measures to Guarantee Efficient Implementation of the
Child Care Leave System
Measures to help implement the child care system in this country include
levying a fine of less than 2.5 million won on those employers guilty of
not providing leave, or guilty of imposing discriminatory treatment on
those who take leave. Also, should conflicts arise between labor and
management over Child Care System regulations, mechanisms are being
established to process such disputes separately. However, a fine of less
than 2.5 million won is a light slap on the wrist at best, and does not
sufficiently deter would-be violators. Moreover, mechanisms designed to
resolve labor-management conflicts over child care leave are weak and
ineffectual at best.
To strengthen the existing System, it is advised that at every
enterprise, a standing committee composed of both labor and management
representatives be formed as an autonomous body to examine issues related
to gender equality and the Child Care Leave System, and to submit to the
Ministry of Labor reports on their independent findings. Thus, systems for
autonomous inspections and reporting should be put into place. Finally,
other incentives such as tax breaks or official commendations that would
facilitate the implementation of the Child Care Leave System should be
offered as well.
C. Prerequisites for Improving the System
Before the suggestions to fix the Child Care Leave System in this study
can be implemented, the following conditions must first be in place.
1) Changing the Concept of Division of Work between Sexes
Even if legislation banning sexual discrimination and granting child care
leave to both men and were enacted and enforced, without concerted efforts
to change this society's long-and widely-held notions about sexual division
of roles, sexual discrimination will never be eradicated, nor will an
equitable leave system take hold. Although Sweden has a paid leave system
with job protection guarantees, only a small percentage of men stay at home
under the System to share in chidrearing duties. This phenomenon has been
attributed to traditional notions of role divisions.
2) Instilling the Concept of Child Care as a Social Responsibility
In the Korean legal system, the first and only specific mention of child
care as a societal responsibility in either national or local law is made
in the Child Protection Act(Article 3 ②). Even so, the Act is problematic
in that it reinforces the traditional notion that the responsibility of
child care primarily rests with the individual, and particularly women.
Furthermore, the Act places the economic burden of child care to
principally market mechanisms, relegates national and local autonomous
bodies to auxiliary status, and provides for only selective aid from the
government, which sharply limits its own function and effectiveness.
Successful implementation of the Child Care Leave System cannot be
accomplished only at eh corporate level between labor and management but
with the active involvement of national and local government bodies.
Government can either provide administrative guidance by establishing a
legal framework for rigorous inspection and enforcement or an autonomous
can provide economic support by establishing a public fund to subsidize
guaranteed incomes for those workers who are on leave or help businesses
which operate model Child Care Leave Systems. Currently the government is
already offering or providing tax breaks businesses that have in-house
child care facilities.
Furthermore, as income tax laws, corporate tax laws, and tax exemption
regulations already provide tax exemptions and benefits to those
corporations that have installed and operate in-house childcare facilities,
so should these laws offer the same benefits to companies with a childcare
leave system.
Beyond these measures, government can expand childcare facilities, break
ground for a social insurance system that would subsidize living expenses
during pregnancy leave, and push for increased organization(or
participation) and activity of women in labor unions.
REFERENCES
(Work in Korean)
Kim, Elim(1993), "The Present Situation of Labor-related Laws for Women and
Directions for Their Revision," The Reality of Women's Labor and the
Measures for Its Legal and Institutional Improvement, Labor Committee, the
Korea National Council of Women, Korean Women Workers Association United.
(Work in English and Japanese)
Hyde, Janet S. & Essex Marilyn J.(1991), Parental Leave and Child Care :
Setting a Research and Policy Agenda, Temple U. Press.
International Labor Office(1988), Conditions of Work Digest-Work and Family
: The Child Care Challenge, Vol.7.
諸外國に おける育兒休業制度の現況に關する 調査硏究會(1990), 「諸外國に
おける育兒休業制度の現況に關する 調査硏究 」.
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