뉴스레터

Vol.1 [Yoon&Yang] Full Amendment to Occupational Safety and Health Act in 28 Years

관리자 | 2019.04.27 | 조회 296
  • 글꼴
  • 확대
  • 축소

 

Full Amendment to Occupational Safety and Health Act in 28 Years


January 2019, Employment & Labor Practice Group


Kyung Ho Hong

E. khhong@yoonynag.com

T. +82-2-6003-7091

Chan-Keun Park

E. ckpark@yoonyang.com

T. +82-2-6003-7528

Seong Hong

E. shong@yoonyang.com

T. +82-2-6003-7792



On December 27, 2018, the National Assembly passed the full amendment bill of the Occupational Safety and Health Act (“OSHA”) which had been introduced as an aftermath of the recent accident at the Taean Thermal Power Plant. Key aspects of the amendment to the OSHA are as follows:


 


1. Expansion of Protection (Articles 1, 77, and 79)


 


Article 1 of the amended OSHA expands the legislative objectives of OSHA to include the maintenance and promotion of the safety and health of “persons who provide labor,” clearly indicating that the legislative intent of the amendment is to broaden the scope of the persons eligible for protection under OSHA in keeping with recent changes in the labor practice. Specifically, as shown below, the amended OSHA includes Workers of Special Types of Employment (Article 77), Delivery Workers (Article 78), and Franchise Business Owners and Employees (Article 79) as subjects of protection under the OSHA.


 


Workers of Special Types of Employment (Article 77)

n  Workers of Special Types of Employment mean persons who provide labor similar to workers and thus require protection from accidents on duty but to whom the Labor Standards Act does not apply. In order to be eligible for the protection under the OSHA, they must meet the following requirements: 

     They are employed for certain types of work designated by a Presidential Decree.

     They provide labor to and receive compensation from a single business.

     They do not engage a third party in providing labor.

Delivery Workers (Article 78)

n  Person who mediates the pickup or delivery services using mobile devices shall take necessary safety and health measures for those who pick up and deliver goods by motorcycles to protect them from industrial accidents.

Franchise Business Owners and Employees (Article 79)

n  The franchise headquarters shall prepare and implement safety and health programs; and provide information on the equipment, machinery, raw materials or products supplied to franchisees.


 


2. Duty of Representative Director to Establish Safety and Health Plan (Article 14)


 


To ensure that the system for prevention of industrial accidents systematically operate  at the corporate level rather than at individual business units, the amended OSHA requires that the representative director of a company of a certain size or above should prepare a safety and health plan, and report it to the company’s board of directors for approval.   


 


3. Prohibition of Subcontracting Hazardous and Dangerous Works (Article 58)


 


The amended OSHA prohibits subcontracting of works having a high risk of occupational diseases, such as plating or works using mercury, lead or cadmium. Subcontracting is permitted exceptionally with the approval of the Ministry of Employment and Labor in the following cases: temporary or intermittent work or the subcontractor has professional skills that are essential to the contractor’s business operations.


 


4. Increased Responsibility of the Contractor (Articles 63 and 65(4))


 


To reform the practice of “outsourcing of dangers” which has recently become a social issue in Korea, the amended OSHA increases the responsibilities of the contractor that manages and exercises the actual control over hazard and danger factors at the business site, as shown below.  


 


Expansion of duty to provide safety and health measures

(Article 63)

The scope of the places where the safety and health measures are required has expanded from “any place where the risk of industrial accidents exists” to “any business place of the contractor”.

Increased duty to provide information

(Article 65(4))

The contractor shall provide the subcontractor with information on safety and health related to the following types of work before the commencement of work. If the contractor fails to provide such information even upon the subcontractor’s request, the subcontractor may choose not to perform such work without being held liable for the delay of work.  

     Altering, disassembling, dismantling or demolishing equipment (such as a storage tank) used for the manufacture, use, transport or storage of hazardous and dangerous chemical substances  

     Work performed inside the aforementioned equipment

     Work with the risk of suffocation or collapse


 


5. Special Provisions for Construction Business (Chapter 5-3, Articles 67 and 76)


 


Definition of Construction Contractor

(Article 2(10))

A construction contractor is defined as a “construction contractor who does not lead, supervise or control the entire construction..”

Responsibilities of the Construction Contractor

(Article 67)

The construction contractor is responsible for (i) preparing basic safety and health manuals; (ii) providing the basic safety and health manuals to the construction designer; (iii) ensuring that the construction designer prepares and implements design safety and health manuals; (iv) providing the subcontractor with the design safety and health manuals; and (v) ensuring that the subcontractor prepares and implements construction safety and health manuals.

Subcontractor’s safety measures regarding machines and tools (Article 76)

The construction subcontractor is responsible to take necessary safety measures if machines and tools designated by a Presidential Decree such as tower cranes are being operated, installed or dismantled at its business site. 


 


6. Duty to Prepare and Submit MSDS (Articles 110 and 112, etc.)


 


To prevent health problems of workers caused by toxic chemicals, the amended OSHA imposes the duty to submit the Material Safety Data Sheet (MSDS) to the Ministry of Employment and Labor on manufacturers and importers of chemical substances in addition to requiring them to provide MSDS to people to whom chemical substances are transferred.


 


Moreover, in order to guarantee the workers’ right to know about chemical substances, the amended OSHA requires that prior approval of the Ministry of Employment and Labor should be obtained for the names of chemical substances and contents to be recognized as trade secrets.


 


7. Increased Sanctions for Violation (Article 167)


 


In order to facilitate an effective implementation of the OSHA, the amended OSHA strengthens criminal penalties for violation as follows:


  • Strengthened penalty in the event of death caused by violation of the requirements regarding safety and health measures (Article 167): if the same  violation is committed second time within 5 years from the date when the sentence for the previous violation was finalized, the penalty is aggravated by addition of 1/2 of the initial sentence.
  • Increased penalty for companies under the joint penal provision (Article 173): the maximum amount of criminal fines will increase from KRW 100 million to KRW 1 billion.
  • Concurrent order for training (Article 174)


 


The amended OSHA is expected to bring about substantial changes to the overall regulations related to industrial safety and health by expanding the scope of protection and increasing sanctions against violation. However, further discussions are still needed for an effective implementation of the amendment, in particular given that there have been strong criticisms about the amendment from the labor, economic, and academic communities. In the meantime, companies doing business in Korea need to get prepared for the newly reformed industrial safety and health regulations which will start to be enforced in one to two years from the promulgation and at the same time, pay closer attention to the specific discussions related to the amended OSHA.


 


These Newsletters and Legal Updates are circulated to provide information to the clients and potential clients of Yoon & Yang LLC. These Newsletters and Legal Updates do not contain the legal advice or official position of Yoon& Yang LLC on any particular legal issues. If you encounter any legal issues relating to the contents of these Newsletters and Legal Updates, please obtain the counsel or advice of legal professionals.