[Q&A] "Workers Presumed with Proof of Labor Provision and Recipient"

The government is pushing for legislation to fundamentally protect workers who are currently outside the scope of existing labor laws, such as delivery riders, webtoon artists, and other workers in special employment, platform, and freelance sectors.

On January 19, the Ministry of Employment and Labor held a legislative briefing at the Government Complex Sejong regarding the "Basic Act on Working People and the Worker Presumption System." The ministry stated, "We aim to establish a basic framework that guarantees the minimum rights of all 'working people,' regardless of occupation or contract type, and to correct the misclassification of workers, such as fake freelancers, by introducing the presumption system."

The ministry explained, "There is a growing need for legislation because the current legal framework, which limits the constitutional concept of 'workers' to those defined under the Labor Standards Act, cannot adequately address the increasingly diverse employment landscape."

The Basic Act on Working People is characterized by its inclusive approach, covering all 'working people' regardless of occupation, status, or contract type. Under the Worker Presumption System, an individual is presumed to be a worker if they can prove the provision of labor and the recipient of that labor. The burden of proof to rebut this presumption then falls on the employer.

The ministry added, "By shifting the burden of proof from the labor provider to the labor recipient, we will strengthen the protection of those who, despite being workers, have struggled to prove their status and secure legal rights."

Yonhap News Agency

Below is a Q&A with Kim Sujin, Director of Labor Standards Policy, and Heo Kihun, Director of Labor Provider Support at the Ministry of Employment and Labor.

▲What is the fundamental reason the government is pursuing the "Basic Act on the Rights of Working People"?

=It originated from concerns about whether the constitutional concept of "workers" should be limited only to those defined under the Labor Standards Act. There was a judgment that new forms of employment, such as special employment and platform work, are not covered by the existing legal system. The limitations of fragmented individual laws led to the conclusion that a basic law is necessary.

▲How do "working people" and "workers" differ?

="Workers" is a legal concept under the Labor Standards Act. "Working people" is a broader concept that offers wider protection.

▲How does this law differ from existing individual laws related to special employment?

=It covers all "working people" regardless of occupation, status, or contract type. Previous special employment laws failed due to opposition that they divided people by status. The basic law takes a rights-based approach, which sets it apart.

▲Is this bill a government proposal or a parliamentary proposal?

=It was prepared based on data accumulated by the government and opinions from experts and stakeholders. Considering the legislative process and format, it was introduced as a ruling party member's bill. However, the government continues to refine its content.

▲Why was the name of the law changed?

=The previous name, "Workplace Basic Act," was criticized for evoking the image of a physical space. To reduce conceptual misunderstandings, it was changed to "Basic Act on the Rights of Working People."

▲Who is included in the scope of application?

=It includes not only workers under the Labor Standards Act but also those in special employment, freelancers, and platform workers. Platform operators are also explicitly defined as "labor recipients."

▲What rights are included in the basic law?

=It encompasses constitutional rights to the fullest extent possible, such as prohibition of discrimination, prevention of sexual harassment and bullying, safety and health, social insurance, and maternity protection. The responsibilities of the state and employers to provide protection are also stipulated.

▲What changes will freelancers feel most directly?

=A system for mediation and support in economic disputes, such as contract termination or modification and unpaid compensation, will be established. In addition to mediation by the Labor Relations Commission, a new litigation support program will be introduced.

▲What is the purpose of introducing the Worker Presumption System?

=It is not intended to create a new concept of workers. Instead, it is a system designed to address the issue of "misclassification," where individuals who are essentially workers are classified as freelancers in appearance only.

▲What does "presumption" mean in the Worker Presumption System?

=It means shifting the burden of proof from the labor provider to the labor recipient. It does not grant a new status, but rather changes the structure of claims in disputes.

▲In what cases does the presumption system apply?

=If the provision of labor and the recipient are proven, the individual is presumed to be a worker. Thereafter, the employer must provide evidence to the contrary.

▲Why is the effect of the presumption system limited to civil cases?

=This is because the constitutional principle of presumption of innocence applies to criminal cases. Transferring the burden of proof to the employer in criminal matters was considered potentially unconstitutional.

▲How will the limitations of labor office petitions be addressed?

=The right to request submission of materials will be stipulated by law, allowing labor recipients to be required to submit contract, attendance, and work management records. Refusal without just cause will result in a fine.

▲How will cases where it is difficult to determine worker status be handled?

=A Worker Status Determination Committee will be established at local labor offices. Experts will support the determination based on materials obtained by labor inspectors.

▲Why is linking National Tax Service data necessary?

=It is to verify income types, such as fake 3.3 contracts. The authority of inspectors will be expanded to allow direct access to income data.

▲Will there be changes for occupations such as delivery drivers or broadcast writers?

=If the provision of labor is proven, individuals in these occupations may be presumed to be workers in disputes. If the employer or platform cannot provide evidence to the contrary, the likelihood of worker status being recognized increases.

▲Is there a possibility that disputes will increase with the introduction of the presumption system?

=Disputes may increase. However, the government considers this an inevitable process in correcting the practice of fake freelancers.

▲Will the basic law take precedence over individual labor laws?

=By its nature, individual laws will inevitably take precedence. However, once the basic law is established, individual laws should be revised to align with its principles.

▲How will preparations for implementation proceed?

=Before the law takes effect, Supreme Court precedents will be reviewed and training for inspectors will be strengthened. Criteria for major occupations will also be prepared.