hankyoreh

Aug. 10. 1

By Jeon Hong-hwi, staff reporter

South Korea’s labor and business worlds will be focusing their attention on Seoul Central District Court this Aug. 21 and 22.

That’s when first trial rulings are expected in two lawsuits filed by 1,569 employees at Hyundai Motor subcontractors demanding recognition of their status as regular Hyundai employees.

The lawsuits, filed in Sept. 2010, argue that despite their affiliation with subcontractors, the workers are effectively employees of Hyundai and should be recognized as such.

It’s the single biggest legal case since the enactment of the Act on the Protection, etc., of Dispatched Workers in 1998, amid the shock waves from the foreign exchange crisis and subsequent International Monetary Fund bailout. It could also mean legal confirmation that illegal dispatch employment has been taking place on a massive scale at the world’s fifth-biggest automaker.

The labor world, and even the Ministry of Employment and Labor, are predicting victories for hundreds of workers at least. While both lawsuits focus on the same issues, they were filed by two separate groups - one with 1,287 workers, the other with 282 - and are being tried by different judges, with rulings to come out on Aug. 21 and 22.

At the heart of the cases is the crucial question of whether the workers should be considered subcontractor employees or dispatch employees. Officially, they are hired by subcontractors, through which they receive the four major types of insurance and their pay. Instead of dispatch contracts with Hyundai Motor according to labor law, the companies signed subcontracts based on civil law, and sent their workers to Hyundai factories.

But the workers behind the lawsuits claim that they have been working as dispatch employees. The Dispatched Workers Act states that anyone employed as a dispatch worker for over two years must be hired directly by the employer, and the workers are citing it to demand recognition as Hyundai Motor employees after working there for more than two years through their subcontractor employers. They also want the court to confirm their dispatch employment was illegal, since the act explicitly forbids dispatch employment on direct production lines at manufacturing companies. A group of 143 workers are also citing regulations from the act’s amendment in July 2007 that require direct employment if someone works even one day as an illegal dispatch employee.

The key question in the court’s decision is who gave the workers their assignments and orders and managed their attendance. While dispatch employees are subject to the orders of the main hirer, civil law states that subcontractors “contract to complete a certain job, with the other party paying compensation for the outcome of that job.” By these terms, the workers are subject to orders from the subcontractor, not the main hirer.

In July 2010, the Supreme Court ruled to recognize illegal dispatch employment status of Choi Byeong-seung, a Hyundai Motor subcontractor employee, and his official status as an employee for the automaker. Its ruling at the time essentially stated that a scenario like Choi’s, where subcontractor employees and regular workers alike were working on the same assembly lines, could only be viewed as dispatch employment.

In the case of the 1,569 workers in the two lawsuits, 1,182 are employed in design (assembly line), while 161 work in engines, transmissions, and seats. Many are believed to work on assembly lines, or to be involved in directly related duties. Another 226 employees in production and quality management claim their orders and attendance management came directly from regular employees of Hyundai Motor.

The automaker is countering that managers at the subcontractors gave the orders and managed attendance, which means the workers should be regarded as subcontractor employees rather than dispatch workers. Even in cases where workers were employed on conveyor belts, the company said, it was just a “modified” form of subcontracting, and not something that should be interpreted as dispatch employment.

In addition to their illegal dispatch charges, the workers are also asking for recognition of the implicit labor contract relationship. Since no basis exists for recognizing the subcontractor in terms of capital strength or technical ability, the workers are saying, they were essentially Hyundai Motor employees when they worked for the subcontractor - just without the labor contract with the automaker.

“Hyundai Motor is saying its relationship with the subcontractor constitutes ‘other subcontracting’ rather than dispatch services, but if you look at the contract, the signatures are the only thing that’s different - the other content is all the same,” said attorney Kim Tae-wook on Aug. 17. Kim works for the Korean Metal Workers’ Union Legal Center, which filed suit on behalf of the workers.

“It’s a clear-cut case of dispatch employment,” Kim said.

The rulings are expected to have a major impact on South Korean industry, where illegal dispatch work is a rampant practice. A similar lawsuit filed by 520 subcontracting workers at Kia and four workers at GM Korea is currently awaiting a first-trial ruling, and the first trial is under way on another suit filed by 1,004 employees of a Samsung SVC partner company. It’s a tense moment for companies that have gotten into the habit of indirectly employing subcontracting workers to get around the restrictions of the Dispatched Workers’ Act and its ban on hiring dispatch employees for over two years.

Please direct questions or comments to [english@hani.co.kr]