Last Updated March 08, 2019

Law and Practice

Authors



Yoon & Yang LLC (Seoul - HQ) 's Employment and Labour Practice Group consists of 17 attorneys and other professionals who all concentrate solely on employment issues. The type of issues that the Practice Group has recently represented are illegal worker dispatches, discriminations among different type of workers, implementation of performance-based salary system, protection of non-regular workers, and ordinary wage issues. The firm's key areas of practice are general HR issues, including performance-based salary systems, labour union activities, collective bargaining agreements and disciplinary regulations, employment issues in mergers and acquisitions, employment issues on corporate restructuring, representation in labour disputes in civil, criminal and administrative proceedings.

Methods of employing foreigners can be largely divided into two categories. The first method is through the “Hiring Foreigners with Professional Skills” system and “Other Status Stay that permits Employment (mainly those who are not professionals or simple-skilled workers)” under the Immigration Act. The second method consists of the “Employment Permit System” and “Work Permit System” based on the Act on Employment etc. of Foreign Workers (the “Foreign Worker Employment Act”).

To begin with, the Employment Permit System is a system that allows an employer to employ certain foreigners if that employer could not hire domestic employees despite its recruiting efforts.

The Work Permit System, on the other hand, allows a foreigner who satisfies certain conditions to obtain a work permit in Korea to be employed with an employer of such foreigner’s choice. This system allows for a relatively broader movement of foreign workers among workplaces in Korea compared to the Employment Permit System.

In Korea, the Employment Permit System ordinarily serves as the default system for hiring manual labourers. As for Koreans who hold foreign nationalities, the Work Permit System is applied.

Article 2 of the Foreign Worker Employment Act defines “foreign worker” as a person without Korean nationality who provides or desires to provide labour in return for wages in any business or workplace situated within Korea. Anyone within the meaning of “foreign worker” must satisfy the requirements and follow the requisite procedures under the Foreign Worker Employment Act in order to be employed in Korea. In addition, any matters not provided under the Foreign Worker Employment Act relating to entering, leaving or staying in Korea must be handled in accordance with the Immigration Act.

Meanwhile, the Foreign Worker Employment Act provides that the Act does not apply to foreigners with any of the following visas who are permitted to stay and work in Korea (ie visas that allow the visa holder to pursue employment activities in Korea):

  • Short-term employees (C-4); professors (E-1); foreign language instructors (E-2); research (E-3); technology transfer (E-4); professional employment (E-5); artistic performer (E-6); and designated activities (E-7);
  • Residence permits for overseas Koreans, such as permanent residence (F-2, F-4, F-5, F-6); and
  • Working holiday (H-1).

Pursuant to Article 18 of the Foreign Worker Employment Act, a foreign worker may pursue employment activities for up to three years from the date he or she enters Korea. Further, foreigners staying in Korea, as a principle, are subject to the sovereignty of Korea. Additionally, unless a foreigner’s rights under the public or private laws are otherwise restricted through treaties or laws, foreigners and Koreans receive identical protections.

According to Article 6(1) of the Foreign Worker Employment Act, a person who intends to hire “ordinary” foreign workers (through the Employment Permit System) must first post a job-opening for a domestic worker through an employment security office defined under the Employment Security Act.

If, despite the foregoing efforts to hire a domestic employee, an employer fails to hire a new personnel, then, as prescribed under Article 8(1) of the Foreign Worker Employment Act, the employer must apply for an employment permit for foreign workers from the head of the employment security office in accordance with the requirements under the enforcement decrees of the Ministry of Employment and Labor.

If an employer satisfies the conditions for employing foreigners, then the employer may apply for the issuance of an employment permit from an employment assistance centre. Upon receipt of such application, the employment assistance centre makes worker referrals (in multiples of three). The employer can then select the personnel qualified for the job among the referred workers and obtain an employment permit for such worker (seeArticle 8 of the Foreign Worker Employment Act).

Simultaneously upon issuance of the employment permit, a standard employment contract is drafted based on the working conditions described in the employer’s application for the employment permit. Such standard employment contract is then transmitted, through the Human Resources Development Services of Korea, to the foreign country’s agency that is eligible for dispatching the foreign worker selected by the employer. Once such transferred employment contract is conclusively confirmed and returned to the Human Resources Development Services of Korea, the employment contract is deemed executed (seeArticle 9 of the Foreign Worker Employment Act).

Once the said employment contract is executed, a visa issuance certificate is issued, after which the selected foreign worker is dispatched to the relevant workplace upon that foreign worker’s arrival to Korea and completion of employment training.

Yoon & Yang LLC

ASEM Tower, 517 Yeongdong-daero
Gangnam-gu
06164
Seoul
Korea

+82 2 6003 7000

+82 2 6003 7800

yoonyang@yoonyang.com www.yoonyang.com
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Authors



Yoon & Yang LLC (Seoul - HQ) 's Employment and Labour Practice Group consists of 17 attorneys and other professionals who all concentrate solely on employment issues. The type of issues that the Practice Group has recently represented are illegal worker dispatches, discriminations among different type of workers, implementation of performance-based salary system, protection of non-regular workers, and ordinary wage issues. The firm's key areas of practice are general HR issues, including performance-based salary systems, labour union activities, collective bargaining agreements and disciplinary regulations, employment issues in mergers and acquisitions, employment issues on corporate restructuring, representation in labour disputes in civil, criminal and administrative proceedings.

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