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Angelus

Joined: 10 Feb 2006

Posted: Sat Apr 22, 2006 5:59 am Post subject: Question regarding contracts

I was just wondering how many of your contracts have a clause which states that if you quit before the term of contract, you must pay a month's salary or possibly a recruiter's fee. *I know these clauses do exist. What I'm interested in knowing is how widely used it may be. My second question is whether this is legal under Korean law. Any help in this issue would be appreciated. Thanks in advance.

Grotto

Joined: 21 Mar 2004

Posted: Sat Apr 22, 2006 6:49 am Post subject:

Totally illegal 9. DEDUCTION, PENALTY, SAVINGS: Not allowed even if you quit. Art. 24,26

Gord

Joined: 25 Feb 2003

Posted: Sat Apr 22, 2006 8:32 am Post subject:

Grotto wrote:

Totally illegal

9. DEDUCTION, PENALTY, SAVINGS: Not allowed even if you quit. Art. 24,26

Article 24 states that the terms of employment must be clearly stated. Article 26 states that if the terms of the employment were inconsistent with what was really offered that a person is entitled to claim for damages.

Neither article prohibits a clause regarding repayment of funds spent on hiring someone should they quit before the contract finishes.

In contrast, article 42(1) clearly states that such a deduction is quite lawful.

Grotto

Joined: 21 Mar 2004

Posted: Sat Apr 22, 2006 9:06 am Post subject:

Quote:

Korean Labor Laws

--------------------------------------------------------------------------------

The following is an edited summary of the Labor Standards Act of Korea, based upon information provided by attorney Rodney Pantony of Samwon International, a law firm located in Kangnam-ku.
1. APPLICATION: This statute sets out the rights of employees. Generally Korean courts have held that it applies to foreign or illegal employees as well as to Korean employees. (Note, too, that other statutes may provide additional protection.) The statute prevails over contracts. It applies to employers with five or more employees. It even applies to government employers. Art. 2, 10, 11; Korean Supreme Court cases; direction to Ministry of Labour
2. CONTRACTS: Both employer and employee must comply with collective bargaining agreements, employment agreements and rules of employment. Both must act in good faith. Art. 4 Note that under the Korean Civil Code, an offer (of employment)cannot be withdrawn.

3. FOREIGNERS: Employer shall not discriminate against foreigners. (This statute applies to foreigners) Art. 5

4. THREATS: Employers shall not threaten, beat, or confine employees.Art. 6, 7

5. EMPLOYMENT AGENCIES: Prohibited unless licensed. Art. 8

6. TIME OFF: Permitted for official business. Art. 9

7. POSTING OF RIGHTS : Employers must post a summary of employee rights as well as the rules of employment (Fine for failure to post: 5,000,000 Art. 111)

8. EMPLOYMENT AGREEMENTS: Employer is bound by provisions of agreement or Labor Standards Act, whichever favors the employee; Employer violation gives right to damages and travel expenses home. Art. 20 ~ 23

9. DEDUCTION, PENALTY, SAVINGS: Not allowed even if you quit. Art. 24,26

10. DISMISSAL : Generally difficult under Korean law. (For those to whom it applies, the Private School Act provides dismissal for: Art. 58 1. Inability to fulfill duties for one or more years 2. Service record extremely poor 3. Intention to destroy government 4. Participation in political or labor groups 5. Giving an unlawful grade or recording a false attestation in student record. etc.: 30 days pay or notice is required.)

11. LACK OF NOTICE : Termination without notice is allowed for destroying the school. Art. 27-2

12. LABOR INSPECTOR OR HEARING : A teacher can request an inspection or hearing within 3 months of the wrongful act.

13. SEVERANCE/RETIREMENT PAY: Applicable to employment for one year or more, payable within 14 days of leaving. Art. 28 (for KORETTA and other teachers, the Education Act and Private School Pension Act have similar provisions)

14. PROBATION: Not applicable to 1 year contracts. Art. 29

15. CERTIFICATE OF EMPLOYMENT : Must be provided forthwith upon request. Art.31

16. VACATION: One day per month + 10 days per year or 22 days (+ 12 days for females or 32 per year) Art. 47 ~ 48 Statutory holidays are additional

17. RULES OF EMPLOYMENT : Required for 10 or more employees, consultation required to draft; consent of majority required to modify; approval of Ministry of Labour required: 1. Hours 2. Calculation of pay and overtime 3. Family allowance 4. Retirement 5. Bonuses 6. Food 7. Education 8. Safety 9. Accident relief 10. Commendations and sanctions

18. ENFORCEMENT: Only Labour Inspector and Public Prosecutors are able to investigate and enforce the Labour Standards Act.

19. PUNISHMENT OF EMPLOYER: Maximum is five years or 30,000,000 Won

20. MEDICAL: Employer must provide one (?) per year.

21. CONTRACTS: Always obtain an original signed copy. Make sure you know your company's name, address, telephone number, fax, name of your employer, name of person who signed the contract, beneficial owner, and so on.

22. PASSPORTS: Provide copies, not originals.

23. IMMIGRATION VIOLATION: Labor rights above apply. Fines average 1,000,000 Won. Use of Korean lawyer or Worker's Counsellor advisable. Purchase of airfare in advance of surrender to Immigration investigator advisable.

--------------------------------------------------------------------------------

Some Organizations or Individuals Offering Assistance
ASSOCIATION OF FOREIGN WORKERS' HUMAN RIGHTS (Seoul, Seocho)
Tel: 795-5504
Fax: 749-6055
ASSOCIATION OF FOREIGN WORKER'S HUMAN RIGHTS (Uijongbu)
Tel: (0351) 872-5837
DUTY LAWYER: 525-1919
BAR ASSOCIATION COUNSELLING FOREIGN WORKERS: 521-0030
FRIEDRICH-EBERT-STIFTUNG
Tel: 745-2648
Fax: 745-6684 OECD and international labor laws may also apply

-----------------------------------------------------------------------------

We could take the advice of gord Rolling Eyes

....or listen to an actual professional in this field.

Grotto

Joined: 21 Mar 2004

Posted: Sat Apr 22, 2006 10:55 am Post subject:

You're wasting your breath Blackbear....gord thinks of himself as the pre-eminant authority on labour laws......its just too bad that his knowledge isnt as great as his ego

Gord

Joined: 25 Feb 2003

Posted: Sat Apr 22, 2006 3:16 pm Post subject:

Grotto wrote:

We could take the advice of gord Rolling Eyes

....or listen to an actual professional in this field.

Sure, we could take a list of things someone says which may or may not apply depending on the context, or we can all read the laws which clearly state what I already said.

That, and nothing there says that they are professionals rather than just some kids trying to help people out. In contrast, I worked for the government and dealt with the fallout from decisions against people all the time who had their wages withheld because of money owed. You'd be surprised how many people live paycheque to paycheque in this country and require their family or government to bail them out when they get issued an exit order and can't afford a plane-ticket home.

You're welcome to say that the law is wrong if you wish.

Last edited by Gord on Sat Apr 22, 2006 3:44 pm; edited 1 time in total

Gord

Joined: 25 Feb 2003

Posted: Sat Apr 22, 2006 3:29 pm Post subject:

blackbear wrote:

Gord read into Article 42 a little deeper! There are no special provisions of laws or decrees or collective agreements within the Labor Standards act, that make it legal for an employer to deduct wages for the reasons at hand.[/color]

It is my understanding that "collective agreement" is somewhat poorly translated from the Korean version which would been better worded as a "mutual agreement". So long as all parties agree to it, then anything can be deducted. Unilateral deductions are prohibited unless ordered by law.

An employer can't say suddenly that a person quitting has to pay back the recruiter, but it can be plainly stated in the agreed-to contract if a person quits when they have to pay for the recruiting fee then all is fine.

Under your interpretation of the law, anything short of cash in an envelope on payday would be a violation of the law as a transfer to one's bank account is not the same as receiving cash. Are you honestly suggesting that getting a bank transfer is a violation of "the law"?

But if you really want to get fussy, we can file such items under "withholding" rather then deductions if you wish and then everything comes up hunky-dory.

That, and if you were correct then we would be hearing a lot of people posting about how the labour board has ruled in favour of striking the deductions rather than the almost universal opposite.

Grotto

Joined: 21 Mar 2004

Posted: Sat Apr 22, 2006 4:43 pm Post subject:

Quote:

based upon information provided by attorney Rodney Pantony of Samwon International, a law firm located in Kangnam-ku.

Sounds like more of a professional than you!

The law states that the employer is only allowed to deduct: taxes, pension and health care. Thats it! There is no clause stating that the employer can deduct anything else. In several discussions with the labour board they have backed this up every time!

Quote:

anything short of cash in an envelope on payday would be a violation of the law as a transfer to one's bank account is not the same as receiving cash. Are you honestly suggesting that getting a bank transfer is a violation of "the law"?

The only one suggesting such stupidity here is you! Why do you keep prattling on about how stupid you are? We get it...we got it...we know it...shaddup already....OH Yeah and crawl back under your rock! Laughing

I hate to break it to you

Quote:

we can all read the laws which clearly state what I already said.

but the laws in Korea are not clearly stated....they are open for interpretation.....such as yours....which has been proven wrong time and time again. Yeah yeah..so you 'say' you worked in government but yet you never state which area you were in. Just because you 'may' have worked in some building where govt workers were....doesnt make you an authority, doesnt mean you had any power and sure as hell doesnt make you any kind of expert!

Ahhh why do I bother....you're not worth the time or the effort. Razz

Gord

Joined: 25 Feb 2003

Posted: Sat Apr 22, 2006 7:47 pm Post subject:

Grotto wrote:

The law states that the employer is only allowed to deduct: taxes, pension and health care. Thats it! There is no clause stating that the employer can deduct anything else.

You would be correct if we were talking about unilaterally withholding money, which we are not.

Quote:

In several discussions with the labour board they have backed this up every time!

You personally have spoken with various members of the labour board about this very issue? I find such a claim suspect.

Quote:

Why such childish insults in response to a serious question?

Quote:

I hate to break it to you but the laws in Korea are not clearly stated....they are open for interpretation.....such as yours....which has been proven wrong time and time again.

While I am not without fault, my track record on posting correct information is amongst the highest percentage of anyone on this forum. In stark contrast, you've managed to get people deported with your incorrect claims of law.

Quote:

Yeah yeah..so you 'say' you worked in government but yet you never state which area you were in. Just because you 'may' have worked in some building where govt workers were....doesnt make you an authority, doesnt mean you had any power and sure as hell doesnt make you any kind of expert!

In general terms, I primarily worked out of two buildings in Incheon for Incheon Immigration where I supported the development of the Incheon Free Trade Zone in Songdo. I was directly involved in overhauling Immigration procedures in dealing with foreigners who would be more used to dealing things in a certain way than what Immigration here would be used to and setting into place an environment where business people could more easily operate. Secondary considerations were also the training on Incheon Immigration employees in cultural issues and editing of the language used in International trade documents and agreements. All that, and pie too.

Quote:

Ahhh why do I bother....you're not worth the time or the effort. Razz

I, amongst many others, simply wish you would be more creative and entertaining with your insults. We all know that you use them as a distraction from serious subject matters you wish to avoid discussing and would greatly appreciate a little less predictability and redundancy.

Grotto

Joined: 21 Mar 2004

Posted: Sat Apr 22, 2006 8:05 pm Post subject:

Quote:

Highest percentage Rolling Eyes

...I would love to see that stat! Oh wait...its just another lie you tell yourself Laughing

Would you like to cite any incident where "I" have managed to get someone deported Question

Another typical gord lie.....no facts in your bag of tricks....just lie after lie after lie!

Quote:

The law states that the employer is only allowed to deduct: taxes, pension and health care. Thats it! There is no clause s

tating that the employer can deduct anything else.

Since the Labour laws clearly state that the employer is only allowed to deduct/withhold these 3 items any other deduction (agreed to or not) would violate the labour laws and therefore a null and void. I get it....the labour board gets it....its pathetic that you cant/wont get it!

Quote:

You personally have spoken with various members of the labour board about this very issue? I find such a claim suspect.

I spoke with the labour board about the 200,000 won deposit the public school wanted to charge me. They contacted the school and told the principal that they are not allowed to deduct this from my pay.....contract or no!

Quote:

I was directly involved in overhauling Immigration procedures in dealing with foreigners who would be more used to dealing things in a certain way than what Immigration here would be used to and setting into place an environment where business people could more easily operate. Secondary considerations were also the training on Incheon Immigration employees in cultural issues and editing of the language used in International trade documents and agreements. All that, and pie too.

So you worked there and helped them do paperwork...yeah that makes you some kind of caseworker Rolling Eyes

, an expert on labour laws Rolling Eyes

and where are you now? Hope you like that crow pie Cool

Gord

Joined: 25 Feb 2003

Posted: Sat Apr 22, 2006 8:06 pm Post subject:

Grotto wrote:

Quote:

based upon information provided by attorney Rodney Pantony of Samwon International, a law firm located in Kangnam-ku.

Sounds like more of a professional than you!

Samwon International has no mention that he works there.

Gord

Joined: 25 Feb 2003

Posted: Sat Apr 22, 2006 8:20 pm Post subject:

Grotto wrote:

Highest percentage Rolling Eyes

...I would love to see that stat! Oh wait...its just another lie you tell yourself Laughing

Would you like to cite any incident where "I" have managed to get someone deported Question

How many would you like? Sadly, due to confidentiality agreements I am not allowed to discuss specific names unless they were previously made public knowledge.

Quote:

The law states that the employer is only allowed to deduct: taxes, pension and health care. Thats it! There is no clause stating that the employer can deduct anything else.

Much like I said before, stating it as a withholding does an end-run around everything.

Quote:

Yes, you've mentioned it before. Yet most people who have done the labour board run have met with failure on this issue.

Quote:

Your claim was that you had several discussions on the issue. Now it's become one? So your original claim was manufactured as I had suspected. Tsk.

Quote:

So you worked there and helped them do paperwork...yeah that makes you some kind of caseworker Rolling Eyes

, an expert on labour laws Rolling Eyes

and where are you now? Hope you like that crow pie Cool

Where am I now? I took leave of my job where I design phones in Korea for a speciality outsourced company (sadly, my name isn't listed in the credits of the Razr-Z as they wanted to pimp the "made in Korea" angle) for one year and returned home to Canada to build a PC room empire. The business is so I can employ my brother who was hit by a drunk driver when training for the Iron-Man and was put into a coma for six weeks with a broken neck. Due to nerve damage, he won't be able to return to work as a lab technician thus once the operation is running smoothly I'll be able to run everything over to him to run as it won't require the hand-control that his old job required. Though the company is discussing moving me to Germany in November instead of keeping me in Korea as Nokia does much of their research and prototype development there.

denverdeath

Joined: 21 May 2005
Location: Boo-sahn

Posted: Sat Apr 22, 2006 8:43 pm Post subject:

Gord wrote:

Grotto wrote:

Quote:

based upon information provided by attorney Rodney Pantony of Samwon International, a law firm located in Kangnam-ku.

Sounds like more of a professional than you!

Samwon International has no mention that he works there.

Perhaps he has moved on? If you look at the article, you will see reference to "Koretta". I don't believe that that entity has been in operation for quite some time.

Anyway, OP, the penalty clauses may or may not be illegal. Why not tell the place to change or delete any questionable clauses? If they refuse to do so, tell them you're no longer interested. If you sign on to things the way they are now, and you later say that those things are illegal, the company will laugh at you. Then, you have to try and go through the struggle to get the money owed to you because they'll just take it out of your last pay. I think it's better with both parties entering the agreement happily and knowing what's expected of them. I've signed contracts with housing deposit clauses in them before. I got all the money back. I think it depends on who you sign with and what questions you ask beforehand, of the employer as well as current and past employees. I would never sign a contract that says that I have to re-imburse the recruiter's fee, especially if the amt is not stated...and if it were stated, it should also state that it will be prorated...if you have been there for four or five months and decide to quit, why should the place get the full recruiter's fee back from you? I would also never sign a contract that states that I have to give the employer a month's salary if I quit. Read all the clauses before signing, ask questions about anything you're suspicious of, get changes made to things you aren't in agreement with, walk away if needed.

Grotto

Joined: 21 Mar 2004

Posted: Sat Apr 22, 2006 8:55 pm Post subject:

Quote:

How many would you like? Sadly, due to confidentiality agreements I am not allowed to discuss specific names unless they were previously made public knowledge.

How typically gord...innuendo without any meat to it....pathetically same MO you've had for years.

Deduction/withholding

Quote:

Much like I said before, stating it as a withholding does an end-run around everything.

its the same damn thing.

Quote:

Yes, you've mentioned it before. Yet most people who have done the labour board run have met with failure on this issue.

So now you're privy to the inside information from the labour board Rolling Eyes

Have you ever thought of NOT lying?

Quote:

Your claim was that you had several discussions on the issue. Now it's become one? So your original claim was manufactured as I had suspected. Tsk.

No I said I knew of several cases...you really shouldn't twist someones words into something they are not! After I had successfully argued my case I passed the message on to other GEPIK members and they also got the deposit clause removed/voided!

Quote:

Why dont you just open up your game store again, after all that turned out so well Laughing

Or better yet...retire on your investments....after all they are making 50% right Rolling Eyes

Keep tooting your horn...after all no one else will do it for you!

Kind of funny how you scoff at my insults yet your lies just keep rolling along! You seem to have a pathological need for attention gord...seek help...really!! Seek help Laughing

Angelus

Joined: 10 Feb 2006

Posted: Sat Apr 22, 2006 11:01 pm Post subject:

Um....First of all, thanks for answering my questions. As for the negativity between Gord and Grotto, you guys should get together and have a beer. I guess there isn't a concrete answer to my question. Given the fact that the salary deduction clause does exist in several contracts, I'll lean towards its legality. From a business perspective, it would make sense that the various schools would insert that clause in order to protect themselves from instructors who decide to quit (without a legitmate reason) on short notice. *Assuming that the school is upholding their end of the contractual stipulations, I guess the instructor should honor his/her end as well. If the school in question is not honoring their contractual agreements, it should nullify that clause.

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