Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Equality of Treatment (Accident Compensation) Convention, 1925 (No. 19) - Republic of Korea (Ratification: 2001)

Article 1 of the Convention. Equality of treatment of migrant workers. In its 2011 direct request, the Committee asked the Government to reply to the observations made by the Federation of Korean Trade Unions (FKTU) raising concern over the treatment of foreign workers in national law and practice and to indicate the sanctions imposed in case of breach of the national legislation concerning occupational accidents. In its reply received in September and November 2012, the Government states that foreign workers who are victims of employment injuries are entitled to the same compensation as national workers. Foreign workers, just like Korean workers, are allowed to choose between a lump sum and a pension in case of disability due to an industrial accident. Nonetheless, in accordance with sections 57 and 58 of the Industrial Accident Compensation Insurance Act (IACIA), if a foreign worker entitled to a pension leaves the Republic of Korea, his or her pension entitlement is terminated and converted into a lump sum compensation. This is done in order to avoid unjust receipt of insurance benefits as it is difficult to keep track of changes in the personal details of beneficiaries and determine whether they are still entitled to receive benefits. Since pensions and lump sum payments have the same legal value, paying one instead of the other benefit cannot be considered as being discriminatory.

In the new communication received 31 August 2012, the FKTU reiterates its concern that migrant workers, contrary to national workers, are forced under the IACIA to receive lump sum compensation upon returning to their respective countries. In practice, most migrant workers falling victims to industrial accidents have to leave Republic of Korea as it would be difficult for them to retain their right to stay in the country and impossible for those who are undocumented to live in the Republic of Korea based on disability pension alone.

The Committee observes that sections 57 and 58 of the IACIA do not guarantee equality of treatment between Korean workers and nationals of other Member States that have ratified the Convention; this equality should be granted without any condition as to residence. The Committee wishes to stress that the right to equal treatment cannot be conditioned by the administrative capacity of the Government to undertake the necessary checks with a view to preclude possible cases of abuse. On the contrary, to overcome such difficulties, Article 4 of the Convention requires ratifying countries to afford each other mutual assistance with a view to facilitating the application of the execution of their respective laws and regulations on workmen's compensation. The Committee hopes that these explanations will help the Government to reconsider the treatment of migrant workers both under section 57 and 58 of IACIA with respect to their right to receive employment injury abroad. The Committee invites the Government to provide additional information on developments in this regard.

Part V of the Convention. Supervision and enforcement of the application of the Convention in practice. The Government states in its report that in cases where employers would fail to report occupational accidents, foreign workers may still claim compensation on their own or through medical institutions. Employers refusing to respond in an investigation, or to supply information, requested by the Korean Workers’ Compensation and Welfare Service (COMWEL), are subject to a fine of up to 1 million Korea (South) won (KRW) (sections 117 and 129 of the IACIA). A fine of up to KRW10 million is imposed on employers who fail to report industrial accidents to the Minister of Employment and Labour, and violation of law by the company may be made public where the employer wilfully failed to report twice over a 3-year period (section 10 of the Occupational Safety and Health Act). The Government further refers to a Court ruling (Seoul Administrative Court, 11 April 2007; 2006 Guhap 26899) which considered it illegal to refuse giving a vocational training subsidy for rehabilitation after an industrial accident, only on the grounds that the person was a foreign national.

From its side, the FKTU reiterates that the IACIA does not contain any provision allowing for direct legal remedy against employers violating their duty to sign and seal application letters for workers’ compensation. The legal sanctions referred to by the Government only represent administrative penalties and it is doubtful whether the current system efficiently prevents the employers from dissimulating industrial accidents. Although the nearly 500,000 foreign workers are considered to represent only 3.9 per cent of all the salaried employees, they are involved in about 6.9 per cent of the total number of industrial accidents. This is significantly higher than the average occurrence rate for national workers and this figure does not take into account the unreported industrial accidents.

Taking note of this information, the Committee requests the Government to review the regime of sanctions in order to ensure that employers accurately report industrial accidents and do not discriminate against foreign workers. To that end, the Committee would like the Government’s next report to supply extensive information on the manner in which the national legislation is applied in practice by reference, inter alia, to the number of inspections undertaken and the amount of sanctions imposed.