Amendments to the Labor Standards Act and the Industrial Accident Compensation Insurance Act (collectively the “Acts”), both of which primarily stipulate the regulation of workplace harassment in connection with recent social issues such as workplace bullying and verbal abuse by superiors, entered into force on July 16, 2019. These statutory amendments were brought about after the establishment of joint measures among relevant governmental departments on July 18, 2018, resolution at the plenary session of the National Assembly on December 27, 2018 and promulgation of the amendments on January 15, 2019.
1.Main Amendments to the Acts.
1)Labor Standards Act
The amended Labor Standards Act now includes a provision defining “workplace harassment" (Article 76–2) and a provision imposing an obligation on employers to take action upon reporting of alleged workplace harassment or confirmation of the occurrence of such harassment (Article 76-3). In addition, the Act requires employers to include in their Rules of Employment a provision on preventive and responsive measures against workplace harassment (Article 93-11).
2)Industrial Accident Compensation Insurance Act
Occupational illnesses arising from mental stress caused by workplace harassment are newly recognized under the Industrial Accident Compensation Insurance Act as an industrial accident, which allows victims to apply for medical leave (Article 37 (1) 2 (c)).
2.Elements of Workplace Harassment
The amended Labor Standards Act defines workplace harassment as “an act of an employer or an employee that uses one’s superiority in status or relationship beyond the appropriate scope of work, and inflicts physical or mental suffering on other employees or worsens the working environment.”
The following are elements of workplace harassment:
1. Perpetrator: Both an employer and employee can be regarded as the perpetrator of workplace harassment. In case of dispatched workers, the supervising company or its employees can also be perpetrators.
2. Using superiority in status or relationship in the workplace: ‘Superiority in status’ fundamentally means having dominance in a supervisory relationship. However, such superiority may also be recognized if there is an abuse of a dominant position, even though there was no direct relationship between the victim and the perpetrator. ‘Superiority in relationship’ means having dominance in terms of his or her employment status (e.g. a full-time employee as opposed to a part-time employee), personal attributes such as age, academic achievements, region of origin, gender, race, etc. and occupational capability including the length of service and level of expertise.
3. Beyond the appropriate scope of work: Relevance to work must be viewed holistically such that even if workplace harassment does not occur in the direct performance of duties, if it is related to or occurs on the pretext of such performance, relevance to work will be recognized. In such case, the appropriate scope of work must be determined taking into consideration the various factors mentioned above as a whole.
4. Infliction of physical or mental suffering on other employees, or worsening working environment: Infliction of physical or mental suffering means directly causing others to suffer through physical or verbal abuse, intimidation, mockery or insults. Worsening the working environment means effectively preventing the victim from fulfilling his/her occupational role. For instance, if an employee is forced to perform her job in an unusual work location (for example, in front of the restroom or in an empty warehouse) that is inappropriate for performing the employee’s tasks, the employee’s working environment will be deemed to have worsened, even if the perpetrator has general authority over human resource matters.
Specific examples of workplace harassment include exerting pressure on an employee to forego certain welfare benefits such as annual and sick leaves without justifiable reason; assigning an employee to perform only menial chores; purposely excluding an employee from regular assignments to which other employees are assigned; and where a full-time employee continuously and repetitively requests a contract worker to perform tasks unrelated to work.
In contrast, if a superior justifiably criticizes an employee for his/her performance and asks to see improvements, the resulting increase in workload and mental stress to the subordinate is unlikely to constitute workplace harassment since such constructive criticism cannot be considered to be beyond the appropriate scope of work.
3.Measures to be implemented by Companies in connection with the amended Acts
Under the amended Acts, an employer is required to either add a provision on preventive and responsive measures against workplace harassment to the existing Rules of Employment or establish a separate policy on workplace harassment. In order to amend the Rules of Employment, an employer must consult with and hear the views of a majority of the employees in the business or workplace concerned (or a labor union comprised of such majority) (Article 94 (1) of the Labor Standards Act). The Ministry of Employment and Labor takes the view that because newly establishing or enhancing a company’s disciplinary measures constitutes an unfavorable change of working conditions, an employer must obtain consent from the labor union or the majority of the employees. However, there may be room to argue that such consent is not necessary since it is questionable from the perspective of the entire workforce whether such change is actually unfavorable, and in light of social customs, the change in working conditions may be regarded as a reasonable means of fulfilling the obligation imposed by the amended Acts.
2)Preventive measures against workplace harassment
While the amended Labor Standards Act imposes procedural requirements on employers in connection with workplace harassment (i.e., the requirement to include a provision on preventive and responsive measures in the Rules of Employment), it does not specifically lay out the preventive measures that an employer must implement in order to prevent workplace harassment. Nevertheless, employers are recommended to not only comply with the procedural requirements, but to also carry out preventive measures in practice as a means of mitigating the risk that it may face liability for workplace harassment.
Specific examples of such preventive measures include enforcement of the code of ethics or policy declarations, prior survey of risk factors, implementation of prevention education programs, installation of workplace harassment hotlines and operation of counseling centers.
3)Development of an organizational framework to address incidents of workplace harassment
To deal with the occurrence of workplace harassment, it is necessary to establish specific guidelines for responsible staff. An employer may consider the following procedures to address a workplace harassment incident: