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Discrimination in Payment of Nutritionists Employed as Miscellaneous Posts [2003] KRNHRC 36 (1 May 2003)

In May 2003 the Commission received a petition stating "The rights to equality of
nutritionists in miscellaneous posts at schools in Gyeonggi-do Province are being violated".
After investigation, the Commission found that nutritionists employed in miscellaneous
posts experienced discrimination as follows: (1) Both public food sanitation officials and
nutritionists assigned to miscellaneous posts at schools possess nutritionist's licenses
prescribed by the Food Sanitation Act; (2) Article 7 of the School Meals Act and the
Article 35 of Food Sanitation Act, which require each school to employ nutritionists, do not
differentiate between a public food sanitation official and a nutritionist; and (3) the basic
duties of the two are the same as prescribed under Paragraph 4, Article 5 of the School
Meals Act, although there is a division of duties depending on the size of each school.
Despite these facts, the annual salary of a first year nutritionist employed in a miscellaneous
post was only 10 million won, which is 60% of the first year public nutritionist officers'
salary employed as a Grade 9 public official. It was also found that although they worked
in the same working environments, nutritionists of miscellaneous positions were not paid
during school vacations by excluding vacations from labor contract terms. Vacations were
also excluded from the period subject to retirement allowance for nutritionists of miscellaneous
positions.

The respondent, Gyeonggi-do Provincial Office of Education, argued that
(1) Public food sanitation officials were appointed through the public officials appointment test after
acquiring nutritionist's licenses;
(2) the duties of public food sanitation officials and nutritionists of miscellaneous positions were
the same as employees in exclusive charge of school meals; but
(3) there were differences between the two in handling affairs to promote
better operation of the school meal system and other tasks.

The Commission concluded that
(1) regulations such as the School Meals Act, the legal grounds for requiring that a nutritionist be
maintained at each school, do not stipulate any differences between the two, and
(2) the duties of public food sanitation officers and miscellaneous job titled nutritionists were all
the same.

The Commission found that
(1) miscellaneous job titled nutritionists received substantially lower salaries than nutritionists
appointed by public food sanitation officials and
(2) that vacation pay was not granted in the labor contract. Recognizing such acts were in violation
of equal rights guaranteed by Article 11 of the Constitution, the Commission recommended that the
superintendent of Gyeonggi-do Provincial Office of Education take corrective action as necessary.

The Commission also decided that the problem was not only limited to the Gyeonggi-do
Provincial Office of Education but also to all other municipal and provincial educational
offices. Thus, it recommended that the Ministry of Education and Human Resources
Development, the competent institution, rectify discriminatory acts against miscellaneous job
titled nutritionists working for schools under the jurisdiction of each educational office.
In June 2004, a 38-year-old complainant filed the petition stating that he was paid below
the poverty line because his past career record as a university lecturer was not included
when he was appointed as a public research official at the Culture and Art Division of OO
City in January 2003. His pay step was set at almost the same level as that for a worker
with a starting salary at a first job.
Article 8 of the Local Government Official Compensation Regulations on new appointment
of public officials stipulates that
(1) the initial pay step should be set according to the pay step table provided for in
Attachment 1 of the Local Government Official Compensation Regulations;
(2) the pay step of public research officials who had career records should be
the number of years calculated according to the standards in Attachment 3 plus one; and
(3) Attachment 3, the `Conversion Rate of Past Career of Research Public Officials'
stipulates that the career records of regular/temporary/substitute teachers but not university
lecturers be included in calculating the pay step.
The complainant taught four to six hours a week at Gosin University for two years and
six months from September 1999 to February 2002, and three hours a week at Gyeongbuk
University for four years from March 1998 to March 2002. However, his record of career
as a lecturer was not included in calculating the pay step in accordance with the Local
Government Official Compensation Regulations. On the other hand, when a university
lecturer is appointed as a public educational official, 50% to 100% of his/her record as a
lecturer is added according to the weekly hours lectured, in accordance with Public Official
Compensation Regulations.

The Minister of Government Administration and Home Affairs argued that
(1) the university lecturers are not subject to the Local Government Official Compensation
Regulations, and
(2) the decision as to whether to recognize university lecturers as other workers should
be considered from a long-term perspective relating to the inclusion of past records of
irregular work.

The Commission noted that
(1) both public research officials and university lecturers are required to conduct
research continually, and
(2) when a person has career a record in similar area, the record of work as a teacher,
substitute teacher, or temporary teacher at either a public or a private school is included
in the calculation of the pay step. In contrast, a university lecturer record is excluded
from the pay step calculation for the only reason of its not being full-time work.
The Commission concluded that this was a discriminatory act on grounds of social status.
The Commission recommended that the Minister of Government Administration and
Home Affairs revise Attachment 3, `Conversion Rate of Past Career of Research Public
Officials' of the Local Government Official Compensation Regulations such that some
portion of the period worked as a university lecturer should be recognized and factored into
the calculation of pay step.