The government’s controversial guidelines on general dismissals and rules of employment have gone into effect. As the two new guidelines make it easier for employers to lay off underperforming workers and amend employment regulations to put employees at a disadvantage, the government needs to step up oversight of labor practices at workplaces to prevent them from being abused.
The government enforced the guidelines Monday after finalizing them Friday. The quick move reflects its determination to pull off labor reforms by any means. Yet it is likely to face stiff resistance from trade unions in implementing them.
The Korean Confederation of Trade Unions, the more militant of the nation’s two umbrella labor organizations, told its member unions Monday to go on an indefinite strike until the two guidelines became ineffectual. It plans to hold a massive protest rally at Seoul Plaza in front of City Hall this Saturday.
The Federation of Korean Trade Unions, which represented the labor side at the tripartite social dialogue, also plans to hold a rally in front of Seoul Station on Friday to launch its struggle against the government’s action. It also intends to take legal action to challenge the legitimacy of the two guidelines.
The government responded to these moves by warning that stern punishment would be meted out to those who take illegal action.
One big problem the Ministry of Employment and Labor faces in enforcing the two guidelines is that their legal basis is shaky at best. Critics assert that they clearly contradict the Labor Standards Act.
Their argument appears valid in the case of the guideline on rules of employment. The act unequivocally states that an employer should obtain consent from workers if the rules of employment are sought to be amended in their disfavor.
The law says the employer should get approval from a trade union that is composed of the majority of the workers; if there is no such representative trade union, it is necessary to get endorsement from the majority of the workers.
But the ministry’s guideline allows an employer to amend the rules of employment without the consent of workers, even when the changes are disadvantageous to them, only if the amendment is judged to be reasonable in light of social norms.
Critics argue that the guideline on general dismissals also breaches the spirit of the law. Regarding dismissal of employees, the act simply states that an employer should not dismiss a worker without justifiable cause.
Noting that the clause clearly puts emphasis on restricting ordinary dismissals, critics hold that the ministry’s guideline goes against it by facilitating layoffs.
It is for these reasons that the FKTU plans to take the two guidelines to court. Yet they will remain effective until the court rules that they violate the relevant law. And it will take years before a verdict is given.
Now, the government needs to step up monitoring on how the two guidelines are actually used at workplaces. The Employment Ministry maintains that, despite arguments to the contrary, its dismissal guideline is not intended to facilitate layoffs.
In fact, the guideline specifies detailed requirements that an employer should meet to sack underperforming employees. But it would be naive to believe that employers will strictly follow all those requirements to dismiss underperformers. While strengthening workplace oversight, the ministry needs to set strict penalties for employers who cut corners.
