Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

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

Follow-up to the discussion in the Conference Committee on the Application of Standards (International Labour Conference, 103rd Session, May–June 2014)

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards in May–June 2014, including the written information provided by the Government.

Articles 1 and 2 of the Convention. Migrant workers. For a number of years, the Committee has been drawing the Government’s 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, the Committee noted previously that migrant workers are generally covered by the labour and anti-discrimination legislation, and it welcomed the changes made to the Employment Permit System to allow foreign workers unlimited workplace changes if they are subject to “unfair treatment”, defined as including unreasonable discrimination by the employer. At the same time, the Committee noted that it is not clear how jobcentres “objectively recognize” a victim of discrimination, which would allow the foreign worker concerned to request an immediate change of workplace. It requested the Government to keep the applicable legislation governing migrant workers and related measures under regular view. The Committee notes that foreign workers can submit a complaint to the National Human Rights Commission of the Republic of Korea (NHRCK), the outcome of which can be forwarded to jobcentres. The Committee also notes that, during the discussions on the application of the Convention at the Conference Committee, the Government indicated that the burden of proof does not lie solely with the worker and that, in the absence of sufficient evidence, the local jobcentre would try to gather the facts to deal with the case. The Government further indicates in its report that, in the event of such an investigation, the worker is placed in a new job while the case is pending. The Government also provides general information on the number of workplaces inspected in 2013 and the total violations of the labour legislation found. The Committee requests 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 to provide information in this respect. Please provide information on the number of migrant workers who have applied to jobcentres for a change of workplace on the basis of “unfair treatment by the employer”, the nature and outcome of those cases and the manner in which the jobcentres “objectively recognize” a victim of discrimination. The Committee requests the Government to continue monitoring the situation to ensure that the legislation protecting migrant workers from discrimination is fully implemented and enforced, and to provide information on the nature and number of the violations detected, and the remedies provided, as well as the number, nature and outcome of complaints brought before labour inspectors, the courts and the NHRCK.

Discrimination based on sex and employment status. The Committee recalls that in the Korean context, the term “non-regular workers” refers to part-time, fixed-term and dispatched workers, and that many of these workers are women. The Government indicates in its report that following the adoption in November 2011 of the Measures for Non regular Workers in the Public Sector, 30,932 non-regular workers engaged in permanent and continuous work have become workers with open-ended contracts, and that the amendment of the Act on the Protection, etc. of Dispatched Workers in 2012 resulted in 3,800 workers being hired directly by their employers in 2013 in accordance with government orders. The Government also indicates that in 2014 further revisions were made to both the Act on the Protection, etc. of Dispatched Workers and the Act on the Protection, etc. of Fixed-Term and Part-Time Employees, to introduce a punitive monetary compensation system as a measure to address repeated or wilful discrimination. Starting in 2014, employers with 300 or more workers will be required to announce the status of workers’ employment. The Government also plans to introduce a guideline on employment security of non regular workers and their conversion to regular status, which will promote the voluntary conversion of non-regular workers to regular status. The Committee further notes that in 2013 the NHRCK conducted a survey on non-regular women workers (Annual Report 2013, Seoul, April 2014, page 72). While welcoming these initiatives, the Committee urges the Government to review the effectiveness of the measures taken regarding non-regular workers to ensure that they do not in practice result in discrimination on the basis of sex and employment status, contrary to the Convention. In particular, the Committee asks the Government to provide information on the practical application of the measures for non-regular workers in the public sector and on the revisions made to the Act on the Protection, etc. of Fixed-Term and Part-Time Employees and the Act on the Protection, etc. of Dispatched Workers, including any penalties imposed for violations. The Committee requests the Government to take steps to ensure that any information gathered on workers’ employment status is disaggregated by sex, and it requests the Government to provide information in this regard. Please also provide information on the results of the survey by NHRCK on non-regular women workers, including any follow-up action taken.

Equality of opportunity and treatment for men and women. The Committee recalls the low labour force participation rate of women and the measures taken by the Government to promote women’s employment through affirmative action schemes. The Committee notes the Government’s indication that the participation rate of women increased from 54.5 per cent in 2010 to 57.2 per cent in 2014. The Committee notes with interest that the Government has taken further legislative measures to ensure the effective application of affirmative action schemes. It notes in particular the amendments adopted in December 2013 to the Enforcement Decree of the Act on Equal Employment and Support for Work-Family Reconciliation with a view to increasing the minimum proportion of women employees and managers through affirmative action requirements. The Government also indicates that the Act on Equal Employment and Support for Work-Family Reconciliation was amended in November 2014 to introduce a system for denouncing companies that fail to comply with affirmative action requirements starting in 2015. The Government has also implemented the target set for women managers in public institutions (set at 18.6 per cent in 2013) and indicates that a performance evaluation will be conducted in 2015. The Government adds that career counselling, job placement and vocational training services are provided by 82 jobcentres affiliated with the Ministry of Employment and Labour (MEOL) and 130 jobcentres affiliated with the Ministry of Gender Equality and Family. With respect to the civil service, the Government reports that since the introduction of the affirmative action schemes, the women’s employment rate increased to 37.09 per cent in 2014, and that women represent 18.37 per cent of persons in managerial positions. Regarding honorary equal employment inspectors (a person recommended by both labour and management among the workers concerned in the workplace), the Government indicates that 5,000 such inspectors are performing duties in workplaces throughout the country. The Committee requests the Government to continue providing information on the measures taken, in consultation with workers’ and employers’ organizations, to promote women’s access to a wider range of employment opportunities and high-quality employment in the public and private sectors, including at the managerial and decision-making levels, and to report on the results achieved. The Committee also requests the Government to indicate the impact of the expanded affirmative action schemes on the participation of women in the labour force. Please provide additional information on the activities of honorary equal employment inspectors and their impact on addressing sex based discrimination in employment and occupation.

Discrimination on the basis of political opinion. In its previous comments, the Committee expressed concern regarding the prohibition of elementary, primary and secondary school teachers from engaging in political activities and noted the Government’s references to articles of the Constitution respecting the right to education, the political neutrality of government officials and the political neutrality of education, as well as related rulings of the Constitutional Court. The Committee notes the Government’s indication that in August 2014 the Constitutional Court ruled that applying the ban on political activities only to teachers at the elementary and middle-school levels did not amount to unreasonable discrimination. The Government adds that disciplinary action has been taken with respect to teachers who joined or donated funds to particular political parties. The Committee once again recalls that protection against discrimination based on political opinion applies to opinions which are either expressed or demonstrated, and that exclusionary measures based on political opinion should be objectively examined to determine whether the requirements of a political nature are actually justified by the inherent requirements of the particular job (see the General Survey on the fundamental Conventions, 2012, paragraph 805). The Committee 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, including by establishing 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. Please provide full information on the progress made in this regard. The Committee also requests the Government to provide information on the number of teachers against whom disciplinary action has been taken, and the outcome of these cases, and to provide a copy of the ruling of the Constitutional Court referred to by the Government.

Enforcement. The Committee notes the general information provided by the Government on the number of workplaces inspected and the overall number of violations detected by labour inspectors. The Committee further notes that according to the information provided by the Government to the Conference Committee, 589 violations of the Act on the Protection, etc. of Dispatched Workers and 213 violations of the Act on the Protection, etc. of Fixed-Term and Part-Time Employees were recorded in 2013. The Committee notes the Government’s indication to the Conference Committee that 37 support centres and one call centre have been established to provide free services to migrant workers, such as counselling on labour laws. The Committee notes from the 2013 Annual Report of the NHRCK that it received 615 complaints concerning discrimination in employment, most of which related to recruitment, hiring and wages, although it is not clear to what extent these were filed by migrant workers. The Committee requests the Government to continue providing information on the number and nature of the violations detected by or reported to labour inspectors concerning the non-discrimination legislation, the Act on the Protection, etc. of Dispatched Workers and the Act on the Protection, etc. of Fixed-Term and Part-Time Employees, the sanctions imposed and the remedies provided. Please indicate the number, nature and outcomes of the relevant complaints handled by the NHRCK, as well as complaints brought by migrant workers to the National Labour Relations Commission and the courts, and provide copies of relevant judicial decisions.

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