KWDI Korean Women’s Development Institute

Abstract

 

Gender Perspective Analysis on Labor Law

 

Miyoung Gu

Young Taek Kim

Cheon Jae Young

Kim Ki-sun

Yang Seung Yub

 

The Labor Law regulates the living conditions related to the provision of labor to enable workers to live a humane life in a capitalist society. Its underlying principle and purpose is to actualize the “humane life of workers.” The Labor Law is an important means of realizing women's equal labor rights because it has the power to determine how the economic and social forces surrounding labor relations are reflected in the lives and experiences of working people. In Korea, the Labor Standards Act enacted in 1953 includes a clause on equal treatment. In 1987, the former Equal Employment Act was enacted. With the enactment, gender equality became an important value of labor law and began to take a stand as an area for regulation. However, despite these legislative efforts, it is difficult at the present to say that the Labor Law has contributed positively to the realization of gender equality.

 

Although the female employment rate has risen by 2.0% since 2000, to 50.9% (2018), the figure is still far below the 70.8% male employment rate. The gender gap in the quality of employment has not narrowed either; 33.2% of male workers are non-regular workers while the proportion of non-regular workers is 50.7% for women. The wage gap between genders is 33.4% (2018), which is among the lowest level among OECD countries. Given the significant gender gap in the size, quality of employment, and working conditions, we cannot help but wonder whether Korean Labor Law is doing anything to achieve gender equality.

 

Against this backdrop, this study aims to critically examine and seek ways to improve the Labor Law's contribution to the realization of gender equality in the workplace. So far, research and discussion on gender equality in Labor Law have been focused on the Equal Employment Act. On the other hand, very few studies have examined the impact that the legislation stipulated by the Labor Law has had on the gender gap. As the problems of non-regular workers, such as the formation of internal labor market structure, short-term labor, and special employment, overlap with gender discrimination in both employment and task designations, the Equal Employment Act alone is facing limitations in resolving the gender differences in the labor market. The current Labor Law is being only partially applied in terms of normative and factual matters to small-scale businesses and non-regular workers. This is because it is difficult to treat such issues as employment discrimination under the Equal Employment Act. Therefore, it is necessary to identify the reasons why the Labor Standards Act, the Trade Union and Labor Relations Adjustment Act, and the Occupational Safety and Health Act do not contribute to the protection of female workers and their rights. There is also need to correct and supplement the acts in legal and policy terms. This is a gender-sensitive analysis of Labor Law in that it examines the impact of Labor Law on genders and gender gaps, and seeks ways to improve the current legislation.

 

Secondly, it can be pointed out that the existing 'women's labor law' or discussion on gender equality of the Labor Law developed with the sole focus on the role and improvement plan of the Equal Employment Act. This is because the employment discrimination law is only a starting point and a means for achieving gender equality. The feminist debate on gender equality has been based on the question of how to overcome the "Wollstonecraft dilemma." The concept of equality as equals is embodied in laws prohibiting discrimination in hiring, promotion, and wages. However, social differences such as burdens of family care and biological differences such as pregnancy and childbirth have resulted in women having to put in much effort in both the home and the workplace, almost to the point of exploitation in both places. The concept of equality as difference has been embodied in policies such as maternity protection, active measures, and policies for work-life balance. But this concept has the limitation of "reproducing the marginalized status of women in a patriarchal order." Given this debate, gender equality should be defined as “the deconstruction of unequal social organizational logic, ie, gender discrimination structures, including hierarchical gender roles, gender identity, gender status and norms.,”

 

Gender equality ultimately changes the masculine and hierarchical social operations and gender order and aims to "transform" gender roles and resource distribution rules. However, gender equality should be viewed as “different yet equal, the strategic frame of transformation is not phased, it is both synchronic and synonymous, and a mix of policies that can be introduced at any time in different societies.” Considering this complex discussion on gender equality, the legislation of the Labor Law for the realization of gender equality should not be limited to the Equal Employment Act, which only represents the ‘same yet different’ frame. Analysis and efforts for improvement should be made on whether Labor Law contributes to increasing gender inequality and hierarchy in the labor sector, and how gender-based perspectives can be reflected in the existing Labor Law to dissolve and transform inequality. A study by Lee Ju-hee (2012) suggests that short-term labor revitalization policies will solidify women's low status in the labor market, induce women's marginalization, and ignore the gender-based discrimination effects of general labor market policies such as the minimum wage system. She criticized the limitations of the existing women's employment policy locked in the ‘different yet same’ frame. Her conclusions suggest the need for analyzing the effects of general labor policies and laws on gender and the need to reflect such analysis in policy alternatives. Therefore, based on the premise that gender equality is an important value and area for legislation in the Labor Law, there is need to analyze the gender impact of major labor laws. Further research should be done on how to improve the Labor Law to realize gender equality, including the dissolution and transition of the gender hierarchy itself.

 

The purpose of this study is as follows:

○ Critically review key labor laws in terms of gender equality

○ Suggest improvement measures based on a critical review of the Labor Law

○ Create a network of relevant entities and experts both in Korea and abroad to involve them in the process of discussing gender equality in the Labor Law Labor-management autonomy acts as the fundamental principle when it comes to collective labor relations, including collective bargaining and collective agreements. Nevertheless, the primary reason for pushing the enforcement of legal mandates or actively promoting gender equality during negotiations and agreements between labor and management is because the gender gap in the three primary labor rights (the right to organize, the right to negotiate, the right to act) remains serious and persistent. As was noted in Section 3 above, female representation during labor union decision-making is very low. So is the proportion of gender equality in the collective agreement agenda. The gender gap in the exercise of the three primary labor rights is simply too great for one to expect only the voluntary actions of unions and employers to lessen that gap. In fact, the gender gap is so great that the potential of collective bargaining and collective agreements to contribute to the realization of gender equality fails to be realized. The second reason for legislative improvement is that the law can effectively complement the role of collective bargaining for the realization of gender equality in the three primary labor rights. Legislation can empower trade unions to monitor gender gaps in the work place and provide workers with standards and collective and individual remedies for equality in working conditions. Labor legislation that enables gender equality negotiation is considered one of the important factors that enable collective bargaining and collective agreements to contribute to the realization of gender equality.

 

Finally, legislative improvements can be supported for the purpose of realizing democracy in labor unions in the truest sense. Under the Korean Constitution (hereafter simply referred to as "Constitution" and the Trade Union and Labor Relations Adjustment Act (hereafter simply referred to as Union and Labor Act), trade unions have the authority to enter into collective agreements with employers through collective bargaining, and “should be run more democratically than any other private organization as it has been given powerful authorities such as exclusively leading of disputes which may possibly result in wage reduction for union members." The democratic operation of trade unions is also an important principle in that it leads to a basis for maintaining union autonomy. For the purpose of democratic operations, the Union and Labor Act stipulates in detail the procedures and resolutions of the General Assembly and the authority to conclude collective agreements. In relation to the democratic operation of unions, discussions are focused on the chairman's authority to conclude agreements and the effect of the violation of procedures in important decisions of the General Assembly. However, it is difficult to find a case in which the Union and Labor Act was reviewed from the perspective of gender equality and gender democracy. But since “the trade union has an intrinsic character as an organization that seeks to secure representative democracy through elections", the theoretical basis for gender democracy upon this principle. If the elected pool of union officers is oligopolized by a particular gender, the union's democracy can be viewed as being infringed. Therefore, there is need to specify more explicitly and specifically in the Union and Labor Act that the genuine democratic management of unions in terms of gender equality is necessary.

 

Gender gap in collective agreements and collective bargaining shows up in the gender gap in the persons present for negotiations and also in the gap revealed in the agenda dealt with during the negotiations. The gender balance in the collective bargaining teams is a “basic value of democracy and trade union movements” and enables all collective bargaining to “integrate new perspectives into the negotiation agenda using women's experiences, opinions, knowledge and skills” at every stage of collective bargaining. In order to alleviate the gender gap in the persons present for bargaining, union membership rate of women should be improved. Ways to increase the participation of women in the collective bargaining process should also be sought after. To decrease the gender gap in the agenda during negotiations, the current male-centered corporate culture existent within labor unions should be changed. We need to look for ways to ensure that gender equality agenda be given important status during negotiations.

 

In this study, we surveyed 441 labor unions to do a fact check on the representation of women in unions. The findings revealed that a significant gender gap exists in the composition of decision-making units within unions. Most notable in the survey results is the consistently high response rate for the question of '0% women'. The absence of women within the union's decision- making units represents the most serious situation in terms of gender balance and women's representation, with the highest response being '0% women' in all positions. '0% women' responses showed to be highest for bargaining committee members followed by officers, delegates, and executives. Such a trend shows that the bigger the position for decision-making and influence, the harder it is for women to enter into such positions. Women represented only 10.9% of union representatives; this figure is consistent with the survey results. The second highest percentage of responses is the '1~25% women' category. This category showed to be the second highest in executives, delegates, and bargaining committees members (officers exempted).73) When these two responses ('0% women' and '1~25% women') were combined to allow for '0-25% women,' 50-60% of all union positions were included. Since the case of the proportion of women in the decision-making unit falling below 25% accounts for 50 ~ 60% of all union positions, the survey results indicate poor female representation in the labor unions.

 

This study also distinguished between two different union groups: one group having female union members of below 30% and one having female members of over 30%. After making the distinction, the study conducted a cross tabulation. When the proportion of women among the members reaches a certain level, the decisionmaking body should reflect the demographics of the union in order to ensure the democratic operation of the union. Despite this requirement, however, when females exceeded 30% of the total union population, the proportion of women in various positions showed to be 0-25% in 40-60% of all positions. It was only when the number of women in a union became the majority of the entire union that women were adequately represented in decision-making units.

 

73) Such trends also show up in trade unions in other countries as well. According to a study done by Braithwaite and Byrne (1995) on trade unions in Europe, women in trade unions were concentrated in specific committees and departments such as social, policy-making, training, and industrial safety. It was rare to find women in fields related to wage policies, collective bargaining, and finances (Study result cited by Briskin, 2014:210).

 

This study could not contain gender equality provisions in the questions on collective agreements which exceeds legal standards. That is a limitation of this study and thus, further research is necessary. Despite such limitation, the findings of the survey are as follows. Mother-and-parent provisions are defined by law as the rights of the employees and obligations of employers. However, 11.3~50.4% of cases showed that such provisions were not specified in collective agreements. Even if the rights and obligations are already specified in the law, including such provisions in collective agreements have the effect of forcing them to be effectively implemented through collective labor relations. Therefore, common collective agreements include contents related to the Labor Standards Act and the Minimum Wage Act even though the contents have already been prescribed by law. In this context, the proportion of collective agreements that do not include mother-and-parent provisions show the position of the parenting agendas within collective labor relations. In addition, the fact that the proportion of 'None' for inclusion of the reduction of working hours during pregnancy and reduction of working hours for child care, both required by law, in collective agreements is high, shows that labor unions respond more passively to parenting agendas in comparison to other agendas. The provisions on prohibiting gender discrimination show much lower collective agreement inclusion rates than even the parenting agenda. This shows that the gender equality agenda of labor unions focuses on parenting and is very passive in employment discrimination.

 

In seeking to achieve gender equality through collective labor relations laws, the issue of Korea's low union membership rate and problems in applying collective agreements are essential points to consider. Korea's union membership rate (10.7% in 2017) and collective agreement application rate (11.8% in 2015) are low in comparison to other OECD countries. Workers in unstable employment conditions or in small- and medium-sized enterprises are unorganized and therefore do not have access to enjoy the three primary labor rights. Women have "job characteristics quite different from men, and the problem of gender segregation by industry and occupation is serious." Therefore, policies supporting the enjoyment of three primary labor rights by non-regular workers and workers in small and medium-sized enterprises are linked to the narrowing of the gender gap in the collective labor relations law. Intra-enterprise unions can set and apply labor standards for different industries. Thus, such unions can have a significant effect of protecting non-regular workers and workers in unstable working conditions and high turnover rates. However, since the simplification process is also applied to intra-enterprise unions, the process is having a negative effect on the enjoyment of the three primary labor rights by female workers who are mainly temporary workers or work in small and medium-sized enterprises. Therefore, the Union and Labor Act should be amended to exempt intraenterprise unions from participation in the bargaining window unification process.

 

Under the current legislation, the subject of bargaining window unification is limited to 'a labor union either founded or joined by a worker in single business or workplace.' Thus, another alternative for amending the current Union and Labor Act would be to not include a intra-enterprise union as a subject for bargaining window unification when the intra-enterprise union requests unified bargaining by industry to user enterprises.

 

Non-regular workers and unorganized workers at small and medium-sized enterprises are very vulnerable to access to the three primary labor rights. The Union and Labor Act does not provide regulations for the support of workers to join labor unions. Meanwhile, the Act on Support for the Improvement in LaborManagement Relations (hereinafter referred to as the Labor Relations

 

Development Act) focuses on supporting labor-management relations for workers who are already organized. If the Union and Labor Act or the Labor Relations Development Act newly establishes a basis for supporting the groups not having adequate access to the three primary labor rights, unorganized female workers will be more likely to be protected by collective labor relations laws. Kwon Hye-won, who conducted a survey on the actual conditions of non-regular women workers in Seoul, noted that, “non-regular women workers are alienated from collective bargaining and the opportunity to represent their interests through labor unions. Despite various disadvantages and discrimination such as unfair layoffs and unpaid wages, they lack the organizational and institutional resources to cope with such injustices." She suggests that a center for non-regular women workers should be created to fill the current lack of an entity to champion the interests of non-regular women workers (Kwon Hye-won: 48-50, 2017). Her diagnosis and suggestion are in line with the findings of this study. If the law is amended as follows, the amendment will act as the basis for creating government projects and securing the necessary budget to support labor relations for vulnerable group workers.

 

Key Words: Labor Law, Gender Analysis, Labor Standards Act, Industrial Relations Law, Occupational Safefy and Health Act.