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KMID : 1124020050210020135
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Korean Social Security Studies
2005 Volume.21 No. 2 p.135 ~ p.167
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A Study on Measures for Protection of Workers in Special Types of Employment by Labor Laws
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Jang Eui-sung
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Abstract
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The position of the courts on workers in special types of employment is that these workers cannot be protected by labor laws, because they are not considered workers defined by the Labor Standards Act. Therefore, the only way to give them legal protection is by relying on legislative policies such as the enactment or amendment of labor laws. Specifically speaking, to give legal protection to workers in special employment, ① a special law can be established that classifies workforce into three parts, such as workers, workers in special employment and employers. ② The definition and status (Their status is double both as workers and the self-employed and falls in the middle between workers and employers) of workers in special employment can be stipulated by laws. ③ A legal body called the "Diagnosis Committee for Workers in Special Employment", which makes a judgement, when there is a dispute over whether a certain worker should be categorized as a worker, a worker in special employment, or an employer can be set up within the Ministry of Labor, thereby being able to prevent legal insecurity that could happen before a court ruling is delivered. ④ Because of the unique nature of their double and middle status, workers in special employment are protected less by provisions on individual labor relations than general workers. ⑤ Moreover, provisions on collective labor relations fail to guarantee these workers three basic labor rights stipulated by the Constitution. However, under special laws based on Article 32 (Right to Work) and Article 21 (Freedom of Association) of the Constitution, workers in special types of employment are granted the right to organize a group by occupational area, the right to collective bargaining and the right to collective agreements while being prohibited from taking collective action.
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KEYWORD
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workers in special types of employment, special Laws, double status and middle status, Articles 32 and 21 of the constitutions, Ban on collective action
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