Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

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

The Committee notes the observations of the Federation of Korean Trade Unions (FKTU) and the observations of the Korea Employers’ Federation (KEF), attached to the Government’s report, and the Government’s reply thereto, as well as the communication from the Korean Confederation of Trade Unions (KCTU), dated 31 August 2012 and the Government’s reply thereto. It also notes the communication of the International Organisation of Employers (IOE), dated 27 August 2013.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 102nd Session, June 2013).

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards in June 2013, and the conclusions adopted. The Conference Committee requested the Government to take steps, in collaboration with employers’ and workers’ organizations, to ensure that the Employment Permit System (EPS) provided appropriate flexibility for migrant workers to change employers and did not in practice give rise to situations in which they became vulnerable to discrimination. It also requested the Government to continue to strengthen initiatives to ensure that migrant workers received all the assistance and information they needed, and were made aware of their rights. The Conference Committee also asked the Government to examine the impact of the recent measures taken to address non-regular employment on the employment of women and to take measures to ensure that women could freely choose their employment and had access in practice to a wide range of jobs. It further called on the Government to ensure rapid, effective and accessible procedures to address discrimination and abuse in practice. The Conference Committee also urged the Government to take steps to ensure effective protection against discrimination based on political opinion, in particular for pre-school, primary- and secondary-school teachers.

Articles 1 and 2 of the Convention. Migrant workers. For a number of years, the Committee has been drawing attention to the need to provide appropriate flexibility to allow migrant workers to change workplaces and to ensure the effective protection of these workers against discrimination. In this context, it recalls, as noted by the Conference Committee, the changes made to the EPS, including section 25(1)(2) of the Act on foreign workers’ employment, etc., and the Notification (No. 2012-52) issued by the Ministry of Employment and Labour (MEOL) providing that “unfair treatment” – as one of the causes not attributable to the worker, for workplace change – covers “unreasonable discrimination by the employer based on nationality, religion, gender, physical disability and so on”. The Committee further notes the Government’s indication that “unreasonable discrimination” is determined according to social norms and it is difficult to set criteria in advance for its determination. With regard to how it is “objectively recognized” that a foreign worker suffers from discrimination, and who is the authority responsible, the Government explains that a foreign worker can file a complaint with the National Human Rights Commission (NHRC) and submit the outcome of the decision of the NHRC to the jobcentres which then decide in a prompt manner whether to allow the foreign worker to change workplace. When a foreign worker applies for a workplace change directly to the jobcentres, without filing a complaint to the NHRC, jobcentres carry out an investigation into whether the case constitutes discrimination before determining the workplace change. The Committee notes that it is still not entirely clear how the jobcentres “objectively recognize” a victim of discrimination, which would allow the worker concerned to request an immediate change of workplace, pursuant to section 25(1)(2) of the Act on foreign workers’ employment etc. The Committee notes that the KCTU and the FKTU reiterate that further positive measures are required in order to provide appropriate flexibility to migrant workers to choose their employer, whereas the IOE considers that frequent mobility would undermine employers’ ability to manage their workforce. The IOE provides statistics showing that the number of workers applying for a workplace change has increased from 60,542 applications for 156,429 foreign workers in 2006 to 75,033 applications for 189,189 foreign workers in 2011. The Government considers that it is dealing with workplace changes in an integrated manner, considering protection of foreign workers’ human rights, employers’ benefit, possible negative impact on vulnerable groups due to frequent workplace changes of foreign workers and deterioration of working conditions. The Committee encourages the Government to continue its efforts to ensure that migrant workers are able, in practice, to change workplaces when subject to violations of the anti-discrimination legislation, and requests it, in cooperation with employer’s and workers’ organizations, to keep the applicable legislation governing migrant workers, the EPS and related measures, under regular review, and to continue to provide information in this respect. Please provide information on the number of migrant workers who applied to the jobcentres for a change of workplace on the basis of “unfair treatment by the employer”, the outcome of those cases, and the manner in which the jobcentres “objectively recognize” a victim of discrimination.

With regard to enforcement of the anti-discrimination provisions in respect of migrant workers, the Committee notes that according to the information provided by the Government, only six cases were lodged by migrant workers with the NHRC, five of which were rejected. It notes, however, that between June 2012 and March 2013, 4,025 cases were brought to the MEOL by foreign workers (including workers under the EPS) with regard to delayed payment of wages, of which 2,244 cases were settled, 1,608 faced judicial action and 173 remained pending in court. The Government also indicates that in 2012, in the 4,402 workplaces inspected, 5,078 cases were found that concerned violations of the Act on foreign workers’ employment etc., which resulted in the issuing of 4,887 corrective orders (most of which were related to insurance for foreigners). The Government also provides information on additional measures taken to raise awareness among the foreign workers of the relevant legislation and available procedures for redress. The Committee requests the Government to continue to provide information on the measures taken to ensure that the legislation protecting migrant workers from discrimination is fully implemented and enforced, and that migrant workers have access in practice to speedy complaints procedures and effective dispute resolution mechanisms when subject to discrimination on the grounds set out in the Convention. Please continue to provide information on the inspection of workplaces employing migrant workers, including the number and nature of violations detected, and remedies provided, as well as the number, content and outcome of complaints brought by migrant workers before labour inspectors, the courts and the NHRC.

Discrimination based on sex and employment status. The Committee recalls the policy measures taken by the Government in 2011 with a view to eliminating discrimination against non-regular workers, many of whom are women. The Committee notes that the FKTU considers that following the implementation of the above measures, the quality of female employment in the public sector deteriorated. According to the FKTU the proportion of female non-regular workers in the public sector decreased (from 44.2 per cent in August 2011 to 42.3 per cent in August 2012), in particular the proportion of female workers on fixed-term contracts of less than two years (converted into open-ended contracts), whereas the proportion of female, dispatched and part-time workers increased. According to the KCTU, the number of “indirectly employed” workers has doubled and wage discrimination of workers already converted is not being addressed. The IOE indicates that a growing number of enterprises are changing or planning to change their non-regular workers into regular workers and that labour inspections have been undertaken on a regular basis since August 2012; also, the MEOL can order directly the rectification of any discrimination. The Committee notes the Government’s indication that, in 2012, a total of 22,069 non-regular workers were converted into workers with open-ended contracts, 479 cases of illegally dispatched workers were found and 2,958 workers were ordered to be hired directly by their employers; another 66,711 non-regular workers will be converted to regular workers between 2013 and 2015, and measures are being taken to improve the working conditions and wages for workers with open-ended contracts. The Government disagrees that the employment status of female workers in the public sector has changed as a result of the implementation of the measures adopted in 2011 and indicates that conversion of non-regular workers to open-ended contracts is taking place mainly in occupations (nutritionists, cooks and librarians) where many female workers are employed. The Committee asks the Government to continue to assess the impact of the measures taken to address discrimination against non-regular workers on the employment of fixed-term, part-time and dispatched workers, and provide information on the results achieved, including statistics disaggregated by sex and employment status. Noting the Government’s intention to improve further the effectiveness of the anti-discrimination measures through the revision of the Act on protection, etc. of fixed-term and part-time employees and the Act on the protection, etc. of dispatched workers, the Committee asks the Government to provide information on any developments in this regard.

Equality of opportunity and treatment between men and women. The Committee recalls the low labour force participation of women (54 per cent in recent years) and the measures taken by the Government to address gender discrimination and promote women’s employment. The Committee notes the Government’s intention to implement a roadmap to achieve an employment rate of 70 per cent, including measures to assist workers, in particular women having taken career breaks, and to reconcile work and family life, including through the system of reduced working hours and parental leave. In this regard, the Committee refers the Government to its direct request on this Convention and its 2011 observation on the Workers with Family Responsibilities Convention, 1981 (No. 156). Regarding affirmative action schemes, the Committee notes that as of May 2013 the measure was extended to businesses with less than 50 employees, but that there was only a minor increase in the ratio of women workers and women managers employed in workplaces in the private and public sectors subject to the scheme in 2012. The Committee notes that the IOE points to the positive results of the affirmative action schemes in the private sector, whereas the FKTU considers that the affirmative action measures do not provide enough incentives to increase female employment in large businesses. The FKTU also finds it difficult to assess whether any improvement has been made in the quality of women’s employment in terms of employment type (daily, temporary or regular work), and indicates that more efforts are needed to increase the number of female workers and managers in public institutions. In this regard, the Government indicates that “a name and shame” system will be introduced to ensure compliance with affirmative action measures and that the relevant amendment Bill to the Act on equal employment and support for work-family reconciliation is pending in the National Assembly. Regarding the honorary equal employment inspectors (a person recommended by both labour and management among the workers concerned in the workplace), the Committee notes that their number increased to 4,958 inspectors in 4,955 workplaces in 2012, and that 19 consultative bodies were set up and are currently functioning to enhance their expertise. In reply to concerns expressed by the FKTU regarding the effectiveness of the system of honorary equal employment inspectors, the Government indicates that the MEOL will monitor progress in implementing the system, promote the system and consult with relevant government agencies to secure a budget for further strengthening the inspectors’ expertise to address employment discrimination and promote gender equality. The Committee asks the Government to continue to take steps, in consultation with workers’ and employers’ organizations, to promote in an effective manner the access of women to employment in a wider range of jobs both in the public and the private sectors, and to take measures to address the underlying causes of gender discrimination, including gender stereotypes regarding job preferences of men and women, and provide detailed information in this regard. Please continue to provide information on results achieved through the implementation of affirmative action schemes in the private and the public sectors and any specific measures taken to improve their implementation in the public sector, and on any progress made in the adoption of the amendment Bill to the Act on Equal Employment and Support for Work–Family Reconciliation. Please also indicate the results achieved through the measures to improve the effectiveness of the system of honorary equal employment inspectors, and its impact on addressing gender discrimination in employment.

Discrimination on the basis of political opinion. The Committee recalls its previous observation noting the concerns of Education International (EI) and the Korean Teachers and Education Workers’ Union (KTU) regarding alleged discrimination based on political opinion against pre-school, primary- and secondary-school teachers. The Committee notes that the Government reiterates the differences in duties between elementary, middle and high-school teachers and the duties of university teachers. The Government also recalls articles 7, 31, and 31(6) of the Constitution regarding the right to education, political neutrality of government officials and political neutrality of education, and refers to rulings of the Constitutional Court in this respect. The Government also indicates that the Government Officials Act and the Act on the establishment, operation, etc. of trade unions for teachers limit political activities of government officials and teachers’ trade unions. In addition, according to the Government, the Supreme Court ruled that “a declaration by teachers of the state of the affairs constitutes “collective action for matters other than their duty” (Supreme Court Decision 2010Do6388)”. The Committee notes that the IOE recalls the ruling of the Supreme Court of 19 April 2012 and concurs with the Government’s views regarding political neutrality of teachers of public schools, while the KCTU reiterates the observations submitted by the KTU in 2012, including the request that the ILO send a fact-finding mission to Korea to investigate discrimination on the basis of political opinion. The Committee notes the explanations by the Government but must conclude that the information provided does not demonstrate that any concrete and objective criteria are being used to determine the very limited cases where political opinion could be considered an inherent requirement of a particular job, including that of pre-school, primary- and secondary-school teachers, in the context of the Convention. The Committee therefore urges the Government to take immediate measures to ensure that elementary, primary- and secondary-school teachers enjoy protection against discrimination based on political opinion, as provided for in the Convention, and to establish concrete and objective criteria to determine the cases where political opinion could be considered an inherent requirement of the particular job, in accordance with Article 1(2) of the Convention. The Committee asks the Government to provide full information on the measures taken in this respect, as requested by the Conference Committee, including any steps taken to avail itself of ILO technical assistance.

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