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Troglodyte
Joined: 06 Dec 2009
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 Posted: Sun Apr 08, 2012 9:12 am Post subject: |
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| YTMND wrote: |
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| they aren't receiving their due |
ASSUMING that is true, then I agree with you. You seem to fail to understand this concept. I am talking about if they are unsure. Another poster in this thread summed it up nicely, "If they say you are required to be covered", emphasis on the word "if".
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| Simply showing them that you have a contract |
I disagree. What is stated in the contract holds the weight. |
Law trumps contract.
In what context would the teacher NOT be required to contribute to pension?
| YTMND wrote: |
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| if you're planning on sticking around in Korea afterwards, you're probably best off requesting that they back pay the pension AFTER you start your new job. |
I agree there. If you are going to claim anything, then wait. However, the impression I got was that the OP is going to "leave", as in go back to their home country. |
You're right. I didn't pay attention to that point. So he's better off getting it done ASAP or change plans and hang around in Korea for a while afterwards (if his E2 permits it or he gets a D10).
Since the employer didn't pay into pension, I would guess that he didn't sign the teacher up for national health insurance either. AND there's a good chance that if the boss didn't do either of those that he's cutting other legal corners as well. Depending on how much of a stickler to the law the OP is, he might just negotiate with his boss to give him the lump sum that would have been the bosses contribution to pension. The OP would get the same money and the boss saves on how much he backpays (for other stuff) and avoids the red flag on his record. It may also be a lot quicker for the OP. But as a law abiding member of society, I would never endorse such a thing.  |
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YTMND
Joined: 16 Jan 2012
Location: You're the man now dog!!
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| Posted: Sun Apr 08, 2012 1:36 pm Post subject: |
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| Law trumps contract. |
I never stated it didn't.
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| In what context would the teacher NOT be required to contribute to pension? |
My comments were on the employer/school, not the teacher.
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| But as a law abiding member of society, I would never endorse such a thing. |
An independent contractor/employee can't pay into the pension scheme after a school gives them money for services rendered (in total or at the end of a working cycle)? When do they pay this (law "abidingly"?)....before? |
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Mr Lee's Monkey
Joined: 24 Oct 2007
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| Posted: Tue Apr 10, 2012 5:45 am Post subject: |
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| YTMND - are you from England or something - don't honestly have a clue about pension and the law?? The IC thing is a scam - why do you keep bringing it up? Show me, in writing, the laws and statutes on Korean terms that deal with being an IC. Wouldja? If you can't, then would you please give it a rest? Teachers choosing to flout the law - why do you keep espousing that here every time you get the chance? You seem to rationalize unlawful garbage every chance you get, and justify it with more garbage. You aren't helping anybody on this forum in that regard. Quit pulling stuff out of your hiney and show me the Korean laws and rules about IC's, if they really do exist. |
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Troglodyte
Joined: 06 Dec 2009
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| Posted: Tue Apr 10, 2012 6:24 am Post subject: |
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| Mr Lee's Monkey wrote: |
| YTMND - are you from England or something - don't honestly have a clue about pension and the law?? The IC thing is a scam - why do you keep bringing it up? Show me, in writing, the laws and statutes on Korean terms that deal with being an IC. Wouldja? If you can't, then would you please give it a rest? Teachers choosing to flout the law - why do you keep espousing that here every time you get the chance? You seem to rationalize unlawful garbage every chance you get, and justify it with more garbage. You aren't helping anybody on this forum in that regard. Quit pulling stuff out of your hiney and show me the Korean laws and rules about IC's, if they really do exist. |
+1
And better yet, how about you show us even 1 case where a court acknowledged that an E2 visa holder was indeed an IC? Just one case where a school listed a foreign teacher (on an E2 visa) as an IC, the teacher challenged it and the court ruled that the teacher really was an IC. There's a certain hogwon franchise that is now pushing for this to be approved, but as far as I've heard they haven't been successful yet. |
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ontheway
Joined: 24 Aug 2005
Location: Somewhere under the rainbow...
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| Posted: Tue Apr 10, 2012 7:10 am Post subject: |
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Currently in South Korea it is perfectly legal and proper to be an Independent Contractor on an E2 visa.
Immigration routinely approves contracts that list the worker as an "Independent Contractor" with those exact words in the contract. They have no authority to say no. There is no law that prohibits an E2 visa holder from being an IC and Immigration cannot make law.
IC status is up to the Tax Office. Immigration, Pension and Health Insurance offices have no authority and have to follow the rulings of the Tax Office in this matter. That is the state of the law.
There is no need of a law or court ruling to make IC status legal. Remember how the law works. Everything is legal unless there is a law or rule to regulate or make something illegal.
IC status is legal for all workers in Korea, domestic and foreign. In fairness it should stay that way.
There is NO lawsuit where an employer is trying to change the status of E2 teachers as ICs in Korea. There is, however, a lawsuit against CDI by a group of former workers that makes numerous claims including failure to pay overtime, underpayment of wages and improper use of the IC status. This suit could be used by the courts to change how the current rules are interpreted.
The court could make a ruling that applies to only foreign workers, with some difficulty, but not for just teachers as that would be struck down, or for all workers in Korea, which is problematic since approximately half of all Korean workers as ICs, Independent business owners and family business workers could be adversely affected, having serious ramifications for employment and the Korean economy as a whole. |
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YTMND
Joined: 16 Jan 2012
Location: You're the man now dog!!
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| Posted: Tue Apr 10, 2012 5:29 pm Post subject: |
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| Show me, in writing, the laws and statutes on Korean terms that deal with being an IC. Wouldja? If you can't, then would you please give it a rest? |
Take this slow and think this one out. Let's say there is an E2 visa holder teaching classes at one school. Are they allowed to teach at a second location assuming they get permission from immigration? YES? Great, ok, then would that second school have to also pay into pension then? How about you show me 1 law that states this and I will shut up. Until then, I am going to call that individual an independent contractor, not employee.
Last edited by YTMND on Tue Apr 10, 2012 8:41 pm; edited 1 time in total |
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Mr Lee's Monkey
Joined: 24 Oct 2007
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| Posted: Tue Apr 10, 2012 6:08 pm Post subject: |
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| ontheway, you say the Pension Office has to 'follow the rulings' of the Tax Office - well, that's the "law" I want to see in writing.... those are the rules I want to see. What is the real status of a hagwon director who taxes employees at 3.3% and tells them they are IC's, doesn't pay pension, and then hears from the Pension Office that what she is doing is illegal? You are saying the Tax Office makes it right for all parties concerned? |
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SeoulNate
Joined: 04 Jun 2010
Location: Hyehwa
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| Posted: Tue Apr 10, 2012 9:47 pm Post subject: |
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| Mr Lee's Monkey wrote: |
| ontheway, you say the Pension Office has to 'follow the rulings' of the Tax Office - well, that's the "law" I want to see in writing.... those are the rules I want to see. What is the real status of a hagwon director who taxes employees at 3.3% and tells them they are IC's, doesn't pay pension, and then hears from the Pension Office that what she is doing is illegal? You are saying the Tax Office makes it right for all parties concerned? |
No, what he is saying is that it is completely legal for a Hakwon to list their employees as ICs. Which is completely true.
The problem is two fold:
1. Most fresh off the boat newbies do not realize that pension is an option for them. If an employee requests pension, the school or business MUST comply. It isnt an option. That is the problem YBM has run into. Employees requested pension from them and they denied their right to it, that is illegal. Since most NETs here do not know that they can request pension, the 'scheme' continues. I say 'scheme' because it isnt illegal for employers to not pay pension, its just illegal if the workers request it and are denied.
To make it even more ridiculous, most koreans that you will work with at a Hakwon will not take the pension because of three reasons: 1) they live at home and are covered under their parents health insurance, thus do not need their own 2) they dont expect to be the pension system for 20 years in order to collect it at the end (they cant just leave and collect like we can) and 3) their take home pay is more even though the taxes are higher if they dont get pension. This means that at most Hakwons, the only people on pension would be the NETS and the bosses.
2. The second problem is that even if you are an IC you MUST PAY YOUR OWN PENSION. This is a law, however, the problem is that it isnt enforced. 90% of koreans that I know dont pay into the pension system even though they are legally obligated to do so. Hell, most of them dont even know its a law. Its embarrassing that as a foreigner who has studied korean law for maybe a total of 10-15 hours, I know more about how the legal system in this country works than 90% of its residents.
Anyway, what all this boils down to is a situation with limited accountability. If an employer gets caught not paying pension, all they do is pay it for the year, it isnt a big deal; there are no files involved in that case, so they continue to do it. The ONLY situation where they will really get into trouble is if they are deducting pension and then not actually paying it. |
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Troglodyte
Joined: 06 Dec 2009
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| Posted: Wed Apr 11, 2012 12:57 am Post subject: |
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| SeoulNate wrote: |
| If an employer gets caught not paying pension, all they do is pay it for the year, it isnt a big deal; there are no files involved in that case, so they continue to do it. The ONLY situation where they will really get into trouble is if they are deducting pension and then not actually paying it. |
If the employer pays into the pension before the contract finishes, then there's definitely no penalty. If the employer pays into the pension after the contract ends (or refuses to do so altogether after the pension office requests it) then they get fined. I don't know if they get fined all the time, but I know plenty of people who reported their employer after the contract finished (usually when they tried to collect the pension). Usually the employer (or in most cases the EX-employer) gets incredibly irate because they also have to pay a fine of some sort in addition to back-paying the pension contributions. I've asked at the pension office and they said that if an employer does this, then it goes on file. If they pay up before the contract ends, then there's no problem. I think that the bigger problem for employers is that if they are on file for not paying up, then the pension office (and perhaps other gov't offices) watches them more closely. |
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Mountain Mama
Joined: 20 Feb 2010
Location: South Korea
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| Posted: Wed Apr 11, 2012 1:45 am Post subject: |
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| YTMND wrote: |
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| Show me, in writing, the laws and statutes on Korean terms that deal with being an IC. Wouldja? If you can't, then would you please give it a rest? |
Take this slow and think this one out. Let's say there is an E2 visa holder teaching classes at one school. Are they allowed to teach at a second location assuming they get permission from immigration? YES? Great, ok, then would that second school have to also pay into pension then? How about you show me 1 law that states this and I will shut up. Until then, I am going to call that individual an independent contractor, not employee. |
The second school isn't sponsoring his visa. |
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YTMND
Joined: 16 Jan 2012
Location: You're the man now dog!!
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| Posted: Wed Apr 11, 2012 3:49 am Post subject: |
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| Mountain Mama wrote: |
| YTMND wrote: |
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| Show me, in writing, the laws and statutes on Korean terms that deal with being an IC. Wouldja? If you can't, then would you please give it a rest? |
Take this slow and think this one out. Let's say there is an E2 visa holder teaching classes at one school. Are they allowed to teach at a second location assuming they get permission from immigration? YES? Great, ok, then would that second school have to also pay into pension then? How about you show me 1 law that states this and I will shut up. Until then, I am going to call that individual an independent contractor, not employee. |
The second school isn't sponsoring his visa. |
So? What does that have to do with this thread or particular part of the discussion? They were asking about being identified as an independent contractor. You should follow the thread before commenting. |
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ontheway
Joined: 24 Aug 2005
Location: Somewhere under the rainbow...
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| Posted: Wed Apr 11, 2012 4:02 am Post subject: |
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If you want to know more about Pension see these threads:
Relevant Threads:
http://forums.eslcafe.com/korea/viewtopic.php?t=210465&postdays=0&postorder=asc&start=0
http://forums.eslcafe.com/korea/viewtopic.php?p=2687780&highlight=#2687780
A bit more:
To be a legal IC in Korea, your employer has to register you as an IC and follow the rules for being an IC. These rules are the tax laws and not subject to Immigration, Pension or Health Insurance office purview.
An E2 visa holder is under the same rules as anyone else. The sponsor of a visa does not have to be an "employer" as defined by the tax office. Immigration forms generally use terms such as "sponsor" and "workplace." Immigration cannot change the rules for ICs as set by the Tax Office.
Immigration approves sponsorship papers and contracts that use the words "Independent Contractor" just as they do for "employees," "teachers," and other words that commonly appear in contracts.
If anyone is registered and working as an Independent Contactor, it does not mean that they are exempt from enrolling in and paying for the National Pension and National Health Insurance. The IC is required to sign up and pay for these things on their own. The business or organization that is paying the services of the worker, however, is exempt from paying the 50% share that employers are required to pay.
(Note: Employers are required to pay at least 50%. It is legal for them to pay more than 50%.)
It is legal to be an IC at the present time in Korea even if the individual only has one workplace. |
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Wildbore
Joined: 17 Jun 2009
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| Posted: Wed Apr 11, 2012 5:00 am Post subject: |
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| ontheway wrote: |
If you want to know more about Pension see these threads:
Relevant Threads:
http://forums.eslcafe.com/korea/viewtopic.php?t=210465&postdays=0&postorder=asc&start=0
http://forums.eslcafe.com/korea/viewtopic.php?p=2687780&highlight=#2687780
A bit more:
To be a legal IC in Korea, your employer has to register you as an IC and follow the rules for being an IC. These rules are the tax laws and not subject to Immigration, Pension or Health Insurance office purview.
An E2 visa holder is under the same rules as anyone else. The sponsor of a visa does not have to be an "employer" as defined by the tax office. Immigration forms generally use terms such as "sponsor" and "workplace." Immigration cannot change the rules for ICs as set by the Tax Office.
Immigration approves sponsorship papers and contracts that use the words "Independent Contractor" just as they do for "employees," "teachers," and other words that commonly appear in contracts.
If anyone is registered and working as an Independent Contactor, it does not mean that they are exempt from enrolling in and paying for the National Pension and National Health Insurance. The IC is required to sign up and pay for these things on their own. The business or organization that is paying the services of the worker, however, is exempt from paying the 50% share that employers are required to pay.
(Note: Employers are required to pay at least 50%. It is legal for them to pay more than 50%.)
It is legal to be an IC at the present time in Korea even if the individual only has one workplace. |
Yes, it is legal.
I think the real problem is with the mis-reporting by employers.
Also, even if a contract says IC, one would assume that if the person meets the legal definition of employee that the person would be a de-facto employee. A written contract is not the only consideration in these matters.
At the end of the day, it is essential a scam as far as many ESL teachers are concerned. |
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Mountain Mama
Joined: 20 Feb 2010
Location: South Korea
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| Posted: Wed Apr 11, 2012 7:25 am Post subject: |
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| YTMND wrote: |
| Mountain Mama wrote: |
| YTMND wrote: |
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| Show me, in writing, the laws and statutes on Korean terms that deal with being an IC. Wouldja? If you can't, then would you please give it a rest? |
Take this slow and think this one out. Let's say there is an E2 visa holder teaching classes at one school. Are they allowed to teach at a second location assuming they get permission from immigration? YES? Great, ok, then would that second school have to also pay into pension then? How about you show me 1 law that states this and I will shut up. Until then, I am going to call that individual an independent contractor, not employee. |
The second school isn't sponsoring his visa. |
So? What does that have to do with this thread or particular part of the discussion? They were asking about being identified as an independent contractor. You should follow the thread before commenting. |
Why don't you follow it? The OP didn't say anything about being an independent contractor. He also didn't say anything about having a second job. YOU'RE the one off topic. Why don't you stop trolling and try giving out some advice that might actually help someone. |
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YTMND
Joined: 16 Jan 2012
Location: You're the man now dog!!
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| Posted: Wed Apr 11, 2012 11:14 am Post subject: |
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| Why don't you follow it? The OP didn't say anything about being an independent contractor. |
REWIND, PAUSE, PRESS PLAY WHEN READY
"I'd go to the pension office and complain, but the one trouble is that it doesn't specifically say that they will pay it in my contract."
If this doesn't represent an independent contractor, then how does it represent an employee? Employees would be entitled to pension, right?
So, obvious deduction, yes, the OP is addressing independent contractor status. As mentioned before, if a teacher is able to legally work at a second location, they would be an independent contractor. |
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