Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

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

The Committee notes the observations from the Federation of Korean Trade Unions (FKTU) annexed to the report, and the Government’s reply thereon.

Recalling the conclusions and the ensuing discussion that took place in the Conference Committee on the Application of Standards in June 2015 in relation to the application of the Convention, the Committee will examine under the relevant Articles of the Convention matters relating to the workplace flexibility of migrant workers and their protection from discrimination on the grounds enumerated in Article 1(1)(a) of the Convention, discrimination against non-regular workers, including women working part-time and short-term, and equality of opportunity and treatment of men and women in employment and occupation.

Articles 1 and 2 of the Convention. Protection against discrimination. Legislation and practical measures. With respect to its previous comments regarding the omission on the grounds of race, colour and political opinion from the Framework Act on Employment Policy, 2015, the Committee notes the Government’s indication that the non-exhaustive list of grounds in section 7(1) of the Act – which contains the term “etc.” – covers all these grounds. The Government also indicates that, since transnational labour mobility is low in the country, race and skin colour are not among the key issues and that it is why these grounds are not specified in Korean law. It adds that the Framework Act on Employment Policy, 2015, contains only declaratory and non-binding provisions and that compulsory provisions may be found in individual laws. With respect to the national anti-discrimination legal framework in force, the Committee recalls that discrimination is prohibited on the basis of “gender” under the Equal Employment Opportunity and Work–Family Balance Assistance Act, “disability” under the Act on the Prohibition of Discrimination of Persons with Disabilities, Remedy against Infringement of their Rights, etc., and “age” under the Act on Prohibition of Age Discrimination in Employment and Elderly Employment Promotion. Furthermore, the Labour Standards Act prohibits discrimination against workers on the basis of “gender” and discriminatory treatment in relation to terms and conditions of employment on the grounds of “nationality”, “religion” and “social status” (section 6 of the Act). In its 2012 General Survey, the Committee recalls that where legal provisions are adopted to give effect to the principle of the Convention, they should include at least all of the grounds of discrimination specified in Article 1(1)(a) of the Convention. The Committee also indicates that the implementation of a national equality policy presupposes the adoption of a range of specific and concrete measures, including in most cases the need for a clear and comprehensive legislative framework, and ensuring that the right to equality and non-discrimination is effective in practice (see 2012 General Survey of on the fundamental Conventions, paragraph 732). In this respect, the Committee notes that, in a Special Report addressed to the President in December 2017, the National Human Rights Commission of Korea (NHRCK) emphasized the need for a new system to guarantee human rights in a society that has drastically changed over the last 30 years, including through the enactment of an Anti Discrimination Act (according to the information available on the website of the NHRCK). The Committee notes that, in its concluding observations, the United Nations Committee on Economic, Social and Cultural Rights, expressed concern that the Republic of Korea has not taken sufficiently proactive and effective steps to build consensus around the prohibited grounds of discrimination among the population. It also reiterated the urgency of adopting comprehensive anti-discrimination legislation and recommended that the Republic of Korea raises awareness among the population and legislators about the harmful effect of discrimination on the protection of human dignity and the equal enjoyment of human rights (E/C.12/KOR/CO/4, 19 October 2017, paragraphs 22–23). The Committee further notes that, in its concluding observations, the United Nations Human Rights Committee, expressed concern that comprehensive anti discrimination legislation was lacking, in particular legislation defining and prohibiting racial discrimination and discrimination on the grounds of sexual orientation or gender identity (CCPR/C/KOR/CO/4, 3 December 2015, paragraphs 12–13). The Committee further notes that, despite its previous request for information on this matter, the Government has not provided information on the progress made in the adoption of a general anti-discrimination legislation, including identifying any obstacles encountered. The Committee once again asks the Government to provide information in this respect and urges the Government to introduce provisions covering, as a minimum, all the grounds enumerated in Article 1(1)(a) of the Convention, namely race, colour, sex (including sexual orientation and gender identity), religion, political opinion, national extraction and social origin. The Committee also asks the Government to provide information on the practical measures taken to fight against discrimination, in particular racial discrimination, and to raise awareness and promote tolerance and respect among the population.

Article 1(1)(a). Discrimination based on sex. Sexual harassment. Legislative developments and practical measures. The Committee notes with interest that the Government has adopted a wide range of measures in the public and the private sectors to address sexual harassment in the workplace. The Government refers in its report to the inclusion of matters on the prevention and prohibition of sexual discrimination and harassment in the Standardized Employment Rules (Proposal) distributed to workplaces in March 2016, and to the training on sexual discrimination and harassment conducted for 20 “honorary equal employment inspectors” in the same year. In 2017, the Government adopted measures against sexual harassment in the public sector, which include reporting guidelines. Furthermore, the Equal Employment Opportunity and Work–Family Balance Assistance Act was amended in May 2018 to include preventive measures, including yearly training, and to provide for obligations on employers to investigate allegations of sexual harassment without delay and in a confidential manner and to take appropriate steps to protect victims – by transferring them to another position or placing them on paid leave – and disciplinary sanctions against the perpetrator when sexual harassment is established. The Committee further notes that, according to its workplan for 2018, the Ministry of Gender Equality and Family (MOGEF) will conduct a special investigation in the public sector to identify sexual harassment cases in the workplace and strengthen preventive measures and enforcement (website of the MOGEF). The Committee requests the Government to provide more detailed information on the implementation of the measures adopted, the methodology used, including the definition of sexual harassment adopted, and the findings of the special investigation launched by the MOGEF as well as any measures taken to follow up with a view to addressing sexual harassment in the public sector. The Committee also asks the Government to provide information on the implementation and enforcement of the new provisions on sexual harassment of the Equal Employment Opportunity and Work–Family Balance Assistance Act and any measures taken in this regard in the private sector. The Committee also requests the Government to provide a copy of the relevant sections of the Standardized Employment Rules (proposal) to which the Government referred in its report.

Discrimination based on sex and employment status. The Committee recalls that many of the non-regular workers (that is part-time, temporary or fixed-term and dispatched workers) are women and therefore discrimination on the basis of employment status has an impact on the employment of women, in particular on their conditions of employment. The Committee notes from the Government’s report that the target of welfare benefits (that is selective welfare, payments for meals, commuter buses and cafeterias) was expanded and guidelines for the job security of fixed-term workers were established. The Committee notes that, further to its request regarding the assessment of the impact of the legislative reforms regarding non-regular workers, the Government indicates that there has not been sufficient time to analyse the efforts made in this regard. However, it indicates that it is conducting intensive labour inspections in sectors and workplaces “which are highly likely to discriminate against non-regular workers”. In this regard, the FKTU points out that no tripartite consultation to assess the effectiveness of these institutional reforms on discrimination has taken place. The Committee notes that, according to the national report of the Republic of Korea to the United Nations Human Rights Council (HRC), the Government will devise a roadmap to prevent the overuse of non-regular employment and to improve the treatment of non-regular workers in private sectors (A/HRC/WG.6/28/KOR/1, 4 September 2017, paragraph 33). The Committee notes from the FKTU’s observations that part-time workers in micro, small and medium enterprises have difficulties in claiming overtime pay because of fears of job insecurity, and part-time or fixed-term workers face difficulties in filing claims for discrimination for fear of termination of their employment contract. The FKTU indicates that, to address this issue, the right to file a complaint should be given to the trade union of which the worker concerned is a member. The Committee notes the FKTU’s observation that the wage of women non-regular workers is only 35.8 per cent of the wage of a male regular worker, and the Government’s reply that wage levels for part-time jobs continue to increase.

With regard to the public sector, the Committee welcomes the Government’s indication in its report that from 2013 to 2015, approximately 74,000 non-regular workers were converted to open-ended contract workers (12 per cent more than the scheduled number) and that from 2016 to 2017, nearly 15,000 more non-regular workers were scheduled to become open-ended contract workers. The Committee notes the FKTU’s observation that, in 2013–15, the number of non-regular positions had decreased by 1.67 per cent but indirect employment has increased by 1.55 per cent at the same time in order to limit personnel expenses. The FKTU also points out that there still remains discrimination between regular workers and open-ended contract workers in public corporations. The Committee notes from the Government’s reply that the number of workers working under service contracts or in temporary agency work and through subcontracting only increased by 0.2 per cent in public organizations (due to various activities such as enhancement of security and safety). The Government also indicates that it conducts biannual fact-finding surveys in public institutions and, on the basis of their results, provides support to public institutions failing to meet their conversion plans. In this regard, the Committee welcomes the information from the Ministry of Employment and Labour that the Government has adopted in 2017, and is currently implementing, a Project to convert non-regular workers in the public sector to regular workers in a total of 835 public entities, through conversion deliberation committees comprising representatives of workers and management. The Committee asks the Government, in consultation with workers’ and employers’ organizations, to assess the impact of the legislative reforms on non-regular workers and take the necessary steps to ensure that such workers do not, in practice, face discrimination on the basis of sex and employment status and that they can exercise their rights, including their right to non-discrimination, and are effectively protected against reprisals, in particular against non-renewal of their contract or termination of employment. The Committee further asks the Government to provide information on the implementation of the Project to convert non-regular workers in the public sector to regular workers in public entities, and any such steps taken for the private sector, as well as information on any measures taken to improve the conditions of employment of non-regular workers, in particular women workers, both in the private and the public sectors.

Migrant workers. The Committee welcomes the Government’s indications that measures have been adopted to contribute to the protection of foreign workers, namely: (i) separate guidelines specifying the working conditions of foreign workers, including working hours, rest, leave, and limits for deductible amounts for the provision of accommodation and food, in the agricultural and livestock industries; (ii) the extension of the scope of Councils for the Protection of Rights and Interests of Foreign Workers to cover regional employment and labour offices; and (iii) the establishment of subcommittees to help settle conflicts over workplace changes. In this respect the Committee notes from the Government’s report that, in 2015, the 351 requests to change workplaces because of violations of working conditions, violent language, physical violence, sexual harassment, sexual violence and other unfair treatment were all granted. The Government adds that under article 25 of the Act on the Employment, etc. of Foreign Workers and the relevant notification (No. 2016-4), there is no limit in the number of workplace changes for migrant workers under the Employment Permit System (EPS) because of “unreasonable discrimination”. The Committee notes that the FKTU, which provides information on the poor working conditions, in particular long hours and low wages, of migrant workers in agricultural and livestock industries to whom the Labour Standards Act does not apply, points out that the above guidelines issued by the Government are not binding. With respect to the high number of cases relating to employment discrimination and unfair dismissal and labour practices against migrant workers, the Committee notes the Government’s explanations that, in order to settle disputes and remedy workers’ rights, compromise is used and proves to be more appropriate since it is faster and cheaper. The Government adds that, contrary to the FKTU’s assertion, according to rulings delivered by the Supreme Court, employers bear the burden of proof with respect to disadvantageous measures taken against workers, such as layoffs. The Committee notes that the report does not give any reason for the high rate of cases dropped or abandoned. The Committee requests the Government to continue to monitor and review as necessary, in consultation with workers’ and employers’ organizations, the impact of the EPS on the situation of migrant workers in employment and occupation, in particular with respect to the possibility to change workplace on the basis of “unfair treatment by the employer”, including unreasonable discrimination and the number of cases of remedies sought by migrant workers. With respect to the number of cases in which a remedy is sought that are dropped or abandoned, the Committee requests the Government to review the complaint procedure to determine the reasons for this, including whether fear of reprisals, issues of confidentiality or the burden of proof are contributory factors.

Article 1(1)(b). Additional grounds of discrimination. Age and disability. The Committee notes that, further to its request for information on the reasons for the high number of abandoned or withdrawn cases, the Government indicates that petitions for discrimination in employment based on age or disability that appear as withdrawn have either been settled while under investigation (14.35 per cent) or have been withdrawn for no clear reason (51.47 per cent). The Committee requests the Government to take appropriate steps, including reviewing claims mechanisms and providing for legal assistance, to ensure that workers alleging discrimination on the basis of age or disability can effectively exercise their rights and have access to effective remedies.

Article 2. Equality of opportunity and treatment for men and women. Policy developments. The Committee welcomes the detailed statistics provided by the Government on the situation of men and women in employment from 2013 to 2015. The Committee notes that these statistics show a slight increase in the overall female employee rate from 2014 to 2015 (0.32 per cent) but that it still remains low at 37.41 per cent (19.37 per cent at the managerial level). The Committee also notes from the statistics of the MOGEF that the employment rate for women remained low at 57.4 per cent in November 2017 (compared to 76.4 per cent for men). The Committee notes the FKTU’s observations, according to which 60 public corporations do not have a single woman manager – 46 out of 316 according to the Government – and that the percentage of women employees in public corporations is lower than in the private sector. In addition, it notes from the information provided by the Minister of Gender Equality and Family to the United Nations Committee on the Elimination of All Forms of Discrimination against Women (CEDAW) in February 2018, that the Government, which is said to be committed to eliminating gender-based stereotypes and address vertical occupational segregation, has adopted the Second Basic Plan for gender Equality Policy 2018–22, the Sixth Basic Plan for Gender Equal Employment 2018–22 and the Plan to Enhance Women’s Representation in the Public Sector 2018–22, including through gender targets in the civil service, public organizations, universities, the military and the police. With respect to measures taken to reconcile work and family responsibilities as a means of improving women’s participation in employment, the Committee notes the indication that efforts were ongoing to expand the provision of childcare support to prevent career interruption following childbirth and refers the Government to its comments under the Workers with Family Responsibilities Convention, 1981 (No. 156). It also notes that the Labour Standards Act was amended on 20 March 2018, to reduce to 52 hours (40 hours plus a maximum of 12 hours overtime) the maximum number of hours an employee can work per week. This limitation applies to enterprises with 300 or more employees from 1 July 2018, and will be gradually applied to enterprises of a smaller size. The Committee notes the FKTU’s indication that gender equality policies have been weakened by the following measures: the replacement of the grievance handling system by a labour-management council; the abolition of the Equal Employment Commission; and other changes in the institutional bodies in charge of gender equality. The Committee notes the Government’s reply that the Equal Employment Commission was abolished due to its ineffective functioning. The Committee requests the Government to provide information on the implementation of the Second Basic Plan for Gender Equality Policy 2018–22, the Sixth Basic Plan for Gender Equal Employment 2018–22 and the Plan to Enhance Women’s Representation in the Public Sector 2018–22, in particular on the achievement of the targets established for the public sector. The Committee further requests for more information on any steps taken to address gender stereotypes and career interruptions and their impact on women’s participation in employment, including statistical data disaggregated by sex, on the distribution of men and women in various types of economic activity and occupations both in the public and private sectors in order to assess the progress made. The Government is also requested to provide any information available on the impact of the maximum working week through the amendment of the Labour Standards Act on the participation of women in employment and occupation.

Article 3(d). Participation of women in the police force. The Committee recalls that it had previously observed the very low proportion of women in the police force and notes from the Government’s report that they represented only 16.5 per cent of the police officers hired in 2015. The Committee notes the Government’s indication that recruitment quotas for women are set every year and female officers are given preferential treatment for promotion. It further notes from the concluding observations made by the CEDAW that, in 2017, women accounted only for 10.9 per cent of the total police force (compared with 9.9 per cent in 2015), owing to “sex-segregated recruitment practices” (CEDAW/C/KOR/CO/8, 14 March 2018, paragraph 30). With reference to the quota policy, the Committee asks the Government to step up its efforts to promote equality of opportunity and treatment of men and women at all levels in the police force, including at higher posts, and to continue to provide information on the results achieved in this regard.