직업재활시설의 실태와 근로장애인의 노동법적 보호

Abstract

For people with intellectual or developmental disabilities, finding a job is especially difficult. People with disabilities who cannot enter the competitive employment market will be provided training or working opportunity in the sheltered workshops(sheltered employment). Such workshops exclusively or predominantly employ only people with disabilities. Wages and working conditions in sheltered workshop are different from those in mainstream workplaces. In Korea the sheltered employment service for people with disabilities is one of the employment models which promotes and establish sheltered workshops and provides sheltered employment services for people with disabilities who are willing to work but have insufficient skills. Sheltered workshop provides sheltered support, employment transition and relevant services for people with disabilities who need shelter. The facilities in such workshops provide an accessible environment in accordance with the needs of the people concerned. The most significant Acts for sheltered workshops are Disability Welfare Act, the Employment Promotion, and Rehabilitation Act for Persons with the disabilities. Under Disability Welfare Act, sheltered workshops are required to meet minimum requirements. Sheltered workshops are divided into three types under the Disability Welfare Act, according to ability of workers. The sheltered employment service programs for people with disabilities administrated by local governments which are subsidized by the Ministry. The sheltered workshop shall, according to business needs, set up professional personnel to provide on-site assistance and counseling. The qualifications and appointment of professional staff shall be carried out according to the regulations prescribed in the Guidelines governing the appointment and cultivation of professional personnel of occupational reconstruction service for people with disabilities. The administrator will also provide them with relevant services including sheltered workshop learning adoption, job skills training, employment transition and resource assistance. At a basic level sheltered workshops suffer from a fundamental conflict of interest. As a service-provider, the workshop is tasked with helping a worker with a disability to pursue their preferred career and maximize their earnings. Even non-profit workshops are however businesses, and like any business, they will seek to maximize their profits and economic viability. Enforcement Regulations of Disability Welfare Act provides a scheme means by which workers can receive payment of below minimum wage rates. However, there is no special law setting out and protecting the rights of persons with disabilities in sheltered workshops except for several rules under Enforcement Regulations of Disability Welfare Act. Therefore, the relevant law is the Labor Standards Act, general law of employment relation. However, whether a person with an intellectual disability in a sheltered workshop qualifies as an employee under this Act is unclear. Besides, Section 7 of the Minimum Wage Act allows exemptions from the minimum wage in the case of employees whose labor ability is seriously impaired by mental or physical disabilities. An employer can obtain authority from the Employment and Labor Ministry to pay the lower wage rates permitted by law. Today, under section 7 of Minimum Wage Act, the majority of workers in sheltered workshops are paid less than the minimum wage (a minority of employers of sheltered workshops also use section 7 certificates to pay under the prevailing wage rate required by Minimum Wage Act). Most of the critics around sheltered workshops has focused on the issue of exemption of minimum wage of workers with disabilities. Sheltered workshop workers can be paid as little as pennies an hour, deriving little economic benefit from their employment. In this regard the policymakers should find alternative minimum wage exemptions for the workers in sheltered workshop, possibly through the use of maximum sub-minimum wage or the difference pay between maximum sub-minimum wage and average wage by the state. Especially workers with very low levels of work ability should be subsidized through the state. Furthermore, in order to combat discrimination, standard labor law(terms and conditions of employment such as work and rest hours, leave, Safe and healthy working conditions) must apply to workers in sheltered employment as far as possible.