The Ministry of Labor issued the Lao-Dong-Guan-Two-1080127025 Circular of June 21, 2019 (hereinafter, the “Circular”) to clarify issues concerning the application of Article 17-1 of the Labor Standards Law (hereinafter, the “Law”).
Paragraphs 1 and 2 of Article 17-1 of the Labor Standard Law, which came into effect on June 21, 2019, provide: “(Paragraph 1) A requesting organization shall not interview a dispatched worker or otherwise designate any specific dispatched worker before a labor contract is executed between the dispatch business organization and the dispatched worker. (Paragraph 2) In case the requesting organization violates the preceding paragraph when receiving services performed by a dispatched worker, the dispatched worker may indicate an intent in writing to the requesting organization to enter into a labor contract within 90 days after such services are provided to the requesting organization…” 」
As previously mentioned, Article 17-1 of the Law provides that beginning with the effective date of June 21, 2019, if a requesting organization has interviewed a dispatched worker or otherwise designated a dispatched worker before a labor contract is executed between the dispatch business organization and the dispatched worker, not only the local competent authority may impose a penalty for violation of Paragraph 1 of the same article but also the dispatched worker may express an intent to the requesting organization to enter into a labor contract if the requesting organization has also received the services performed by the dispatched worker.
However, in case a requesting organization or a dispatched worker is subject to circumstances under Paragraphs 1 and 2 of the same article before the effective date of Article 17-1 of the Law, although the principle of non-retroactivity applies, if the dispatched worker believes that he/she has actual employment relationship with the requesting organization, a civil procedure may still be followed to confirm such relationship as determined by the court based on the facts associated with an individual case.