Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Republic of Korea (Ratification: 1998)

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards in June 2009 and the resulting conclusions of the Conference Committee. It also notes the observations from the Federation of Korean Trade Unions (FKTU), attached to the Government’s report, and the communications from the Korean Confederation of Trade Unions (KCTU) and the International Trade Union Confederation (ITUC), as well as the Government’s reply thereto.

Articles 1 and 2 of the Convention. Migrant workers. The Committee recalls the importance of ensuring the effective promotion and enforcement of legislation to ensure that migrant workers are not subject to discrimination and abuse, contrary to the Convention. The Committee notes that the Conference Committee concluded that the issue of protecting migrant workers from discrimination and abuse required the Government’s continued attention and requested the Government to pursue, and where necessary, to intensify efforts in this regard. It had also called on the Government to review the functioning of the current arrangements for workplace changes, and the proposals in the Bill amending the Act on employment, etc. of foreign workers, in consultation with workers’ and employers’ organizations, with a view to determining how best to achieve the objective of reducing migrant workers’ vulnerability with regard to abuse and violations of their labour rights.

The Committee notes that section 25(1)(4) of the amended Act on employment, etc. of foreign workers allows a change of workplace when “the working conditions or the workplace are different from the terms of the labour contract and in case it is difficult to maintain a labour contract in a context of conventional wisdom due to unfair treatment by the employer, such as violations of the working conditions”. The Committee further notes that the possibility for workers under the Employment Permit System (EPS) to change their workplace remains limited to a maximum of three times, but that pursuant to section 25(4) a change of workplace which is requested due to “a reason not attributable to the foreign worker (section 25(1)(2))” would no longer be counted among the total of the three changes permitted. The Committee understands that a Constitutional Court decision of September 2011 ruled that restricting migrant workers to three changes of workplace within a work permit issued under the EPS did not violate their freedom of occupation under the Constitution. The Committee notes from the Government’s report that since the entering into force of section 25(1)(4) on 10 December 2009, the total number of transfers granted from January to March 2010 was 16,315, with 13,443 transfers for reason of cancelation or refusal of work permit (section 25(1)(1)), 2,768 due to business shutdown, closure, etc. (section 25(1)(2)), 16 due to the fraudulent acquisition of a work permit (section 25(1)(3)), and 49 due to unfair treatment (section 25(1)(4)). The Committee notes that according to the KCTU, the explanations provided in the Manual of the Ministry of Employment and Labour regarding the situations covered by section 25(1)(4), in practice, cover the most common problems arising at workplaces employing migrant workers. The KCTU states that, therefore, as they constitute violations of the law on the part of the employer, they should not be counted among the total of workplace transfers. The KCTU further expresses concern that in practice migrant workers are still dependent on the employer notifying a change in workplace (notification of change of workplace), and workers who wish to change workplaces due to labour law or rights violations face severe difficulties because of their employers’ refusal to make the proper notification. The FKTU considers that the conditions for change of workplace under section 25 are still too strict and suggests that procedures should be in place respecting migrant workers’ desire to transfer workplaces when renewing or extending their labour contract. The Committee requests the Government to confirm whether section 25(1)(4) would provide a direct basis for migrant workers to request a transfer in the case of discrimination and to clarify whether such requests would be counted among the total of transfers permitted or would fall under the exception provided by article 25(4) of the Act on employment, etc. of foreign workers. The Committee also asks the Government to provide information on the number of migrant workers that have successfully applied for a change of workplace during the reporting period, indicating the reasons for granting such a change. Please indicate all measures taken to raise awareness among workers and employers, as well as the migrant workers support centres, about the new provisions in the Act on employment, etc. of foreign workers, and the procedures for dispute settlement and redress, including the rule that changes of workplace not attributable to the migrant workers would not be counted against them. The Committee also asks the Government to assess on a regular basis whether in practice the EPS allows for appropriate flexibility for migrant workers to change their workplaces so as to avoid situations in which they become vulnerable to abuse and discrimination on the grounds set out in the Convention, and to report on any measures taken in this regard.

With regard to the enforcement of the anti-discrimination provisions in respect of migrant workers, the Committee notes that the Conference Committee had recommended that the Government further strengthen the enforcement of the labour legislation, including through labour inspection, to protect migrant workers’ labour rights. The Government indicates that additional migrant support centres have been created and that the number of complaints filed by foreign workers with local labour offices was 4,181 in 2008, 5,234 in 2009 and 2,058 by the end of May 2010, most of which were resolved through guidance. During 2009 and the first half of 2010, 6,210 workplaces were inspected among which 1,736 were found committing violations. The Committee notes that the large majority of the violations related to the employment permit (2,393 violations in 2009, and 1,529 in 2010). In 2009 and 2010, 160 violations related to working conditions, including wages; 115 violations related to non-respect of the minimum wage; and 173 violations related to violations of the Immigration Control Act. The Committee notes the information on the complaints about discrimination and human rights violations submitted by foreign workers to the National Human Rights Commission, between March 2008 and June 2010, all of which were either rejected or dismissed. The KTUC draws attention to the low number of inspections of workplaces that employ foreign workers (5–6 per cent of roughly 75,000 workplaces) and states that there is a large amount of evidence of labour law violations at workplaces employing migrant workers, including differences in pay in violation of section 6 of the Labour Standards Law, and numerous cases of sexual harassment of women migrant workers left unaddressed. The KCTU draws attention to the importance of sending female inspectors to workplaces where women migrant workers are employed and undertaking systematic investigation and supervision of implementation of measures to prevent and remedy sexual harassment and abuse. According to the FKTU the emphasis of guidance and inspection efforts on investigating illegal employment makes it difficult to reveal and detect discrimination against immigrant workers and violations of their working conditions. The ITUC, concerned by reports that abuse and discrimination persist against migrant workers, states that complaints by migrant workers of changed working conditions upon arrival and wage inequality highlights the need for collective representation to ensure that similar conditions of work apply to all categories of workers. The Committee requests the Government to take the necessary measures to ensure that the legislation protecting migrant workers from discrimination and abuse is fully implemented and enforced, including measures to address more effectively sexual harassment of women migrant workers, and to report on the action taken in this regard. Please continue to provide information on the number of inspections of enterprises employing migrant workers and the number and kind of violations detected and the remedies provided, as well as the number, content and outcome of complaints brought by migrant workers before labour officers, the courts and the National Human Rights Commission.

Equality of opportunity and treatment of women and men. The Committee notes that the Conference Committee called on the Government to step up its efforts and to seek cooperation with the employers’ and workers’ organizations, to increase the low level of women’s participation in the labour market and reduce the gender pay gap. With respect to the gender pay gap, the Committee refers to its observation on the Equal Remuneration Convention, 1951 (No. 100). The Committee notes from the Government’s report that the number of workplaces subject to an affirmative action scheme has further increased and that out of the 1,607 workplaces subject to the scheme in 2009, 902 were required to submit a plan and to report on its implementation by March 2011. The proportion of female managers in workplaces with 500–1,000 workers and those with more than 1,000 workers rose to 13.62 and 14.84 per cent respectively in 2009. However data from the 2009 Survey on Labour Conditions and Employment Type confirm the occupational gender segregation of the labour market and the low representation of women among managers overall (8.2 per cent). With regard to the public sector, the Government provides data indicating that the proportion of female public officials rose from 38.8 per cent in 2006 to 41 per cent in 2009, without giving further information on the position of men and women in the different occupations and levels of the public service. The Committee asks the Government to continue to provide information on the results achieved following the adoption and implementation of affirmative action plans in the public and private sectors, and to indicate whether this has led to an improvement of women’s participation in a wider range of jobs including those in which they are under-represented. Please provide statistical data, disaggregated by sex, on employment at the different levels and occupations in the private and public sectors. The Committee also asks the Government to indicate the measures taken, in cooperation with the workers’ and employers’ organizations, to promote and ensure gender equality in opportunity and treatment, and the results secured by such action.

Discrimination on the basis of sex and employment status. The Committee notes that the Conference Committee requested information concerning the difficulties encountered with the enforcement of the Act on the protection, etc. of fixed-term and part-time employees (Act No. 8074 of 21 December 2006), which prohibits discriminatory treatment of these workers based on their employment status. It also requested information on whether trade unions were authorized to bring complaints on behalf of victims of such discrimination, and called on the Government, in consultation with the workers’ and employers’ organizations, to improve the legislative protection against discrimination based on employment status, which disproportionally affected women. The Committee notes that according to the Government an opinion survey of May 2008 indicated that 73 per cent of the large companies and 46.1 per cent of the medium-sized companies had improved treatment of fixed-term workers since the Law came into effect. It also notes from the Government’s report that in March 2010 the number of fixed-term (contingent) and part-time workers protected by the Act on the protection, etc. of fixed-term and part-time employees of 2006 was 3,202,000 and 1,525,000 respectively, representing 19.3 and 9.2 per cent of the total wage workers. The KCTU and the ITUC continue to express concern at the increasing wage discrepancy between regular and non-regular workers (with an overall wage gap of 46.2 per cent in 2010), poor working conditions and the low participation rate of non-regular workers in various social insurances. With regard to the wage gap between regular and non-regular workers of 46.2 per cent, the Government states that when factors such as gender, age, the length of service and number of working hours are controlled, the wage gap is 15.7 per cent (2009 Survey on Labour Conditions and Employment Type). The KCTU and the ITUC are also of the view that dispatched and subcontracted workers should be covered by the prohibition of discrimination in the Act, and insist on the importance of authorizing trade unions to bring complaints on behalf of fixed-term, part-time and dispatched workers under the existing anti-discrimination legislation. The Committee notes the Government’s reply that it goes against the adversarial system under the litigation procedure law to authorize trade unions to bring complaints on behalf of their members. The Committee notes that from 1 July 2007 until 31 May 2010, a total of 2,280 cases were filed with the Labour Relations Commission to seek redress, of which 2,216 cases were handled. A correction order was issued for 125 cases; 494 cases were settled through mediation or arbitration; 693 cases were rejected or dismissed; and 904 withdrawn. The Government further indicates that the amendments to the Act on the protection of fixed-term and part-time employees, which would extend the period for fixed-term workers from two to four years and the amendment of the Act on the protection, etc. of dispatched workers, have yet to be discussed in the General Assembly, and that it will consult workers and employers with a view to resolving differences regarding these amendments. The Committee draws the Government’s attention to the importance of allowing trade unions to bring complaints as it reduces the risk of reprisals and is also likely to serve as a deterrent to discriminatory action.

The Committee notes that the Conference Committee also expressed concern that the large majority of non-regular workers were women. In this regard, the KCTU states that measures to eliminate discrimination based on gender and employment status have been insufficient and that discrimination on the basis of employment status is particularly severe for women resulting from the fact that 70 per cent of women in the labour force are non-regular workers; the quality of women’s employment has also deteriorated as jobs were created by expanding part-time work after the current economic crisis. The Government states that the purpose of the Act is not so much to achieve gender equality but to reduce undue discrimination against fixed-term and part-time workers. The Committee refers to its observation on the Workers with Family Responsibilities Convention, 1981 (No. 156), noting that women account for 74.2 per cent of those in part-time jobs, including in the public sector. Given the high proportion of women among non regular workers, especially in part-time jobs, the Committee draws the Government’s attention to the fact that employment and labour market policies promoting predominantly female occupations as suitable for part-time jobs constitute indirect discrimination based on sex, and need to be effectively addressed under the Convention.

The Committee asks the Government to continue to examine the nature and extent of discrimination against fixed-term and part-time workers, particularly women, on the basis of employment status. Considering the particular vulnerability of non-regular workers to discrimination, the Committee asks the Government to consider taking serious steps to allow trade union representation with respect to complaints on behalf of fixed-term, part time and dispatched workers under the existing anti-discrimination legislation. The Committee also asks the Government to provide information on all the steps taken to ensure the effective enforcement of Act No. 8074 of 2006 generally, including information, disaggregated by sex, on the number and nature of complaints filed with the Labour Relations Commissioner regarding discrimination based on employment status, and their outcome. Please provide information on the progress made regarding the amendments of the Act on the protection, etc. of fixed-term and part-time employees and the Act on the protection of dispatched workers. The Committee urges the Government to make special efforts to address direct and indirect discrimination based on sex of fixed-term and part-time workers, and to ensure the effective enforcement of the Act on the protection, etc. of fixed-term and part-time employees of 2006, particularly in industries and occupations in which women are predominantly employed.

The Committee is raising other points in a request addressed directly to the Government.