The Ministry of Labor amended the Guiding Principles for the Rights and Interests of Dispatched Workers (hereinafter, the “Principles”) via the Lao-Dong-Guan-Two-1070125576 Circular of March 9, 2018. The amendments are highlighted as follows:
1. To ensure the freedom of employment of dispatched workers and prevent a dispatch organization from constraining the opportunities of dispatched workers to switch to full-time employment by arbitrarily agreeing to the “minimum years in service” and “non-compete clause after termination of employment” with dispatched workers, Article 3 of the Principles is amended to additionally stipulate that a dispatch organization which does not meet the requirement under Article 15-1, Paragraph 1 of the Labor Standards Law shall not agree with workers that they have to pay default penalties during the term of dispatch if they switch to become full-time employees of the organization to which the workers are dispatched. It is additionally stipulated that a dispatch organization which fails to meet the provision of Article 9-1, Paragraph 1 of the Labor Standards Law shall not agree with workers that they shall be prohibited from working at the organization to which they are dispatched for a certain period of time after the labor contract is terminated.
2. To ensure the rights and interests of dispatched workers, Article 5 of the Principles is modified as follows. When a dispatch organization enters into a dispatch agreement with an organization seeking dispatched workers, attention shall be paid to the operating factors of the dispatch-seeking organization. If dispatched workers are required to accommodate extended work hours, work on rest days or change work time, it is necessary to confirm with the dispatch-seeking organization if workers’ consent is obtained first with respect to work hour extension, number of hours and extended work hours for work on rest days, calculation of wages for work on rest days, manners of payment, and distribution and adjustment of normal work hours. In addition, such details shall be stipulated in the dispatch agreement.
3. A dispatch-seeking organization is required to fulfill its responsibility for setting up safety and sanitation facilities and fully safeguard the work rights of dispatched workers through compensation (indemnification) liabilities under an insurance plan. Therefore, Article 5 of the Principles is amended to specifically stipulate that if a dispatched workers is deceased, disabled, injured or ill as a result of an occupational accident, the dispatch organization shall provide compensation for the occupational accident. A dispatch organization and a dispatch-seeking organization shall specifically stipulate the safety sanitation facilities which shall be set up by the dispatch-seeking organization, the obligation to implement safety and sanitation management and conduct training and education, and other matters relating to the rights and obligations of both parties in the dispatch agreement. In addition, the employer’s compensation and damages liabilities may be planned in advance through insurance before the work of dispatched workers begins.