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mrsquirrel
Joined: 13 Dec 2006
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 Posted: Thu May 03, 2007 4:32 pm Post subject: |
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| ChuckECheese wrote: |
| Yeah, rape is also illegal until you consent to it. |
With that comment there you show that you're posts are not of any relevance to anybody. Pathetic. |
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The_Conservative
Joined: 15 Mar 2007
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| Posted: Thu May 03, 2007 8:43 pm Post subject: |
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| aphong420 wrote: |
| The_Conservative wrote: |
| aphong420 wrote: |
The fact of the matter is - these "indemnity deposits" are ILLEGAL. Any way you spin it, it's illegal for ANY employer to enter a contract as such.
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No they are not. This has been discussed before. It's only illegal if you don't agree to the deposit. If you sign a contract with that clause in, then it's legal. This has ALL been hashed out on these boards before. Now if it were a penalty clause...that's different. |
(1) You don't sound very smart here. Not agreeing to the deposit, would imply that you don't agree to the contract ..... in which case a contract that hasn't been signed would have no legal standing (as implied).
The problem is that most people that agree to the deposit DON'T KNOW that they're illegal to begin with. That's why they're illegal.
(2) I've had legal advice in Korea about this through a friend's husband's attorney - who specializes in contract law. And man ... it's clearly stated in the plain language of the Labor Standards Act - that indemnity is ILLEGAL:
Article 27:
An employer shall not enter into any contract by which a penalty or indemnity for possible damages incurred from nonobservance of a labour contract is pre-determined.
Article 29:
An employer shall not enter into a contract incidental to a labour contract that stipulates compulsorary savings or the management of savings.
Article 30:
An employer shall not dismiss, lay off, suspend, transfer, reduce wages or take any punitive measures against a worker without justifiable reason
I called out my school about this a while back and they themselves acknowledged that the deposit was "illegal". I said ... I didn't care, as long as I get it back. It's money in the bank as far as I'm concerned. |
2 things here.
1. Focus here. We were talking about signing the contract. If you don't agree to the deposit but sign the contract anyway then it is legal. Quite a number of people have done this. They signed the contract and then said "Oh this is illegal." But the point I was attempting to make, was that the clause in and of itself is not illegal.
2. So have I (from a lawyer). And a deposit falls under none of those articles.
Let's look at Article 27. How does a deposit equate to a penalty incurred from nonobservance of a labour contract? If you damage your house they have every right to ask for reinbursement.
29. A deposit is not compulsory savings or the management of savings. Such a stipulation would be illegal as it means you can not spend your money as you see fit for the DURATION of the contract. But that is not what is happening here.
30 Does not apply. The deposit is not a punishment.
Once again, if you sign the contract with that clause in then it is not an illegal clause. And FYI the introduction of a illegal clause in a contract does not necessarily cancel the contract and make it null and void. |
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icicle
Joined: 09 Feb 2007
Location: Gyeonggi do Korea
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| Posted: Thu May 03, 2007 9:36 pm Post subject: |
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| The_Conservative wrote: |
[quote="aphong420
2 things here.
1. Focus here. We were talking about signing the contract. If you don't agree to the deposit but sign the contract anyway then it is legal. Quite a number of people have done this. They signed the contract and then said "Oh this is illegal." But the point I was attempting to make, was that the clause in and of itself is not illegal.
2. So have I (from a lawyer). And a deposit falls under none of those articles.
Let's look at Article 27. How does a deposit equate to a penalty incurred from nonobservance of a labour contract? If you damage your house they have every right to ask for reinbursement.
29. A deposit is not compulsory savings or the management of savings. Such a stipulation would be illegal as it means you can not spend your money as you see fit for the DURATION of the contract. But that is not what is happening here.
30 Does not apply. The deposit is not a punishment.
Once again, if you sign the contract with that clause in then it is not an illegal clause. And FYI the introduction of a illegal clause in a contract does not necessarily cancel the contract and make it null and void. |
I think that the reason that the deposit has been seen as a penalty clause in the past is because it is effectively making a person pay money effectively for something that they have not done. And the deposit clearly does not just apply to damage to accommodation when it has to be paid by people who have their own accommodation. It is covering the school from loss - the main circumstance that will lead to loss is someone doing a runner - the issue which leads to it being seen in Korea as a penalty clause historically is that everyone is effectively being penalised because of what someone else has done wrong. There is legal precedent here in Korea putting the deposit in the category of being a penalty clause.
But it is also true that if both parties agree to the clause being included in the contract then it is legal. It is too late after the event to have problems with it being included. When I made the decision to agree to including this in my contract I did so knowing that legally it was not legal until I signed. I took everything into account before I signed the contract including this clause. The clause definitely does not make the contract itself illegal.
Icicle |
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contrarian
Joined: 20 Jan 2007
Location: Nearly in NK
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| Posted: Thu May 03, 2007 9:50 pm Post subject: |
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No deposit for me, well 100,000 won, but I had to buy my own plane ticket (I got half back already) and then "surprise" cough up 5,000,000 key money.
Thank heaven's I had it. |
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aphong420
Joined: 06 Feb 2007
Location: KOREAAAAAAH
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| Posted: Thu May 03, 2007 10:17 pm Post subject: |
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| The_Conservative wrote: |
| aphong420 wrote: |
| The_Conservative wrote: |
| aphong420 wrote: |
The fact of the matter is - these "indemnity deposits" are ILLEGAL. Any way you spin it, it's illegal for ANY employer to enter a contract as such.
. |
No they are not. This has been discussed before. It's only illegal if you don't agree to the deposit. If you sign a contract with that clause in, then it's legal. This has ALL been hashed out on these boards before. Now if it were a penalty clause...that's different. |
(1) You don't sound very smart here. Not agreeing to the deposit, would imply that you don't agree to the contract ..... in which case a contract that hasn't been signed would have no legal standing (as implied).
The problem is that most people that agree to the deposit DON'T KNOW that they're illegal to begin with. That's why they're illegal.
(2) I've had legal advice in Korea about this through a friend's husband's attorney - who specializes in contract law. And man ... it's clearly stated in the plain language of the Labor Standards Act - that indemnity is ILLEGAL:
Article 27:
An employer shall not enter into any contract by which a penalty or indemnity for possible damages incurred from nonobservance of a labour contract is pre-determined.
Article 29:
An employer shall not enter into a contract incidental to a labour contract that stipulates compulsorary savings or the management of savings.
Article 30:
An employer shall not dismiss, lay off, suspend, transfer, reduce wages or take any punitive measures against a worker without justifiable reason
I called out my school about this a while back and they themselves acknowledged that the deposit was "illegal". I said ... I didn't care, as long as I get it back. It's money in the bank as far as I'm concerned. |
2 things here.
1. Focus here. We were talking about signing the contract. If you don't agree to the deposit but sign the contract anyway then it is legal. Quite a number of people have done this. They signed the contract and then said "Oh this is illegal." But the point I was attempting to make, was that the clause in and of itself is not illegal.
2. So have I (from a lawyer). And a deposit falls under none of those articles.
Let's look at Article 27. How does a deposit equate to a penalty incurred from nonobservance of a labour contract? If you damage your house they have every right to ask for reinbursement.
29. A deposit is not compulsory savings or the management of savings. Such a stipulation would be illegal as it means you can not spend your money as you see fit for the DURATION of the contract. But that is not what is happening here.
30 Does not apply. The deposit is not a punishment.
Once again, if you sign the contract with that clause in then it is not an illegal clause. And FYI the introduction of a illegal clause in a contract does not necessarily cancel the contract and make it null and void. |
YES. The clause in itself is absolutely illegal. Indemnity - or any such deposit in a contract for employment is ILLEGAL. I know this for a fact because I even called the Ministry of Labour counseling line (call 1350) to verify.
It's not a matter of who's right and who's wrong here ... the fact of the matter is GEPIK is undermining the law. And people unknowingly sign contracts - not realizing the clause is illegal.
Thus, if you file a complaint with the Ministry of Labour citing these articles - they will force the school to give the money back to you. I've seen several unnamed teachers do it, and get their money back.
I personally didn't think it was worth the hassle, so I deferred. I considered asking them to pay me interest equal to inflation (pegged at 3% in Korea), but even that only amounts to 27,000 won.... It's just not worth it. |
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wylies99
Joined: 13 May 2006
Location: I'm one cool cat!
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| Posted: Thu May 03, 2007 10:25 pm Post subject: |
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| Quote: |
It's not a matter of who's right and who's wrong here ... the fact of the matter is GEPIK is undermining the law. And people unknowingly sign contracts - not realizing the clause is illegal.
Thus, if you file a complaint with the Ministry of Labour citing these articles - they will force the school to give the money back to you. I've seen several unnamed teachers do it, and get their money back.
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You've seen public school teachers do this? |
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aphong420
Joined: 06 Feb 2007
Location: KOREAAAAAAH
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| Posted: Thu May 03, 2007 10:37 pm Post subject: |
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| wylies99 wrote: |
| Quote: |
It's not a matter of who's right and who's wrong here ... the fact of the matter is GEPIK is undermining the law. And people unknowingly sign contracts - not realizing the clause is illegal.
Thus, if you file a complaint with the Ministry of Labour citing these articles - they will force the school to give the money back to you. I've seen several unnamed teachers do it, and get their money back.
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You've seen public school teachers do this? |
Yes I have. It sounds like you're skeptical...
Don't be. Either accept or reject the information I've given you. Obviously it's circumstantial - it might be better to say they "may" force the school to give the money back to you. |
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ChuckECheese
Joined: 20 Jul 2006
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| Posted: Fri May 04, 2007 1:07 am Post subject: |
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aphong420 is absolutely right. You cannot have indemnity clause in a labor contract.
If GEPIK wants to collect deposit, they should have separate lease agreement for FTs accomodation with check list for damages and household items. Even then they cannot withhold deposit money from FTs' salary. They must pay salary in full after the lawful deduction (tax, insurances, etc.). Only then they may ask FTs to pay their deposit.
Last edited by ChuckECheese on Fri May 04, 2007 1:37 am; edited 1 time in total |
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wylies99
Joined: 13 May 2006
Location: I'm one cool cat!
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| Posted: Fri May 04, 2007 1:31 am Post subject: |
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| I believe you when you say it's an illegal clause. But have any public school teachers actually challenged it? |
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TheUrbanMyth
Joined: 28 Jan 2003
Location: Retired
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| Posted: Fri May 04, 2007 2:06 am Post subject: |
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| wylies99 wrote: |
| I believe you when you say it's an illegal clause. But have any public school teachers actually challenged it? |
Maybe...but I doubt they'll be working for that school..or any other public school in the same program once their contract is up. Word gets around about 'troublemakers'. Regardless of the legality of the clause, people who complain about it (especially after they signed) will be seen as such.
I doubt most schools will want to put up with someone who picks a fight over it. That's not how Koreans do things. Not that I am saying it's right or wrong, but when in Rome... |
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Mosley
Joined: 15 Jan 2003
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| Posted: Fri May 04, 2007 3:05 am Post subject: |
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| Don't always agree w/Urban, but I'll take his side here. As I said, I'm NOT happy about the deposit but I believe in picking my battles. So, I'm looking at it as money I won't piss away in pubs, whatever. To me, this issue just ain't worth fightin' over. I look forward to getting the cash after a year. Now, OTOH, if I don't get the money back after a year, supreme shyte will be raised.... |
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wylies99
Joined: 13 May 2006
Location: I'm one cool cat!
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| Posted: Fri May 04, 2007 3:34 am Post subject: |
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I also agree that the money is withheld for reasons other than just apartment damage. It's awfully close to the amount recruiter's usually charge.  |
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icicle
Joined: 09 Feb 2007
Location: Gyeonggi do Korea
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| Posted: Fri May 04, 2007 4:24 am Post subject: |
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| wylies99 wrote: |
| I also agree that the money is withheld for reasons other than just apartment damage. It's awfully close to the amount recruiter's usually charge. |
It is also close to the cost of the one way airfare to Korea which we are reimbursed for which is treated as a loan for the first six months we are here ... and I would expect for the first six months the "loan" would be covered by the deposit . If you read the article in the contract there is nothing which limits its use to accommodation damage.
Icicle |
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merkurix
Joined: 21 Dec 2006
Location: Not far from the deep end.
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| Posted: Fri May 04, 2007 7:22 am Post subject: |
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| wylies99 wrote: |
| I also agree that the money is withheld for reasons other than just apartment damage. It's awfully close to the amount recruiter's usually charge. |
And in any case (according to what I have read in the EFL-Law forums at least) most recruiters will reimburse the hagwon owner if they are not satisfied with their foreigners. So like various people have stated, this does indeedy sound like a penalty clause. I am in agreeance. |
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wylies99
Joined: 13 May 2006
Location: I'm one cool cat!
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| Posted: Fri May 04, 2007 8:21 am Post subject: |
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| Yes. The amount (900,000) wasn't just chosen at random. |
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