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

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee notes the observations of the Federation of Korean Trade Unions (FKTU) communicated with the Government’s report and the observations of the Korean Confederation of Trade Unions (KCTU), received on 31 August 2018.

Article 1 of the Convention. Equality of treatment of migrant workers. In its previous comments, the Committee requested the Government to take measures aimed at re-establishing equality of treatment between national and foreign workers by amending sections 57 and 58 of the Industrial Accident Compensation Insurance Act (IACIA), pursuant to which the employment injury disability pension of foreign workers, who leave the Republic of Korea, is converted into a lump sum whereas Korean nationals continue receiving such pensions while residing abroad. The Committee notes the reply provided by the Government in its report, which refers to difficulties in monitoring the eligibility of foreign nationals to employment injury pensions (for example, due to death or remarriage) after they leave the country while the eligibility of Korean nationals residing abroad can be checked through the Korean Ministry of Foreign Affairs. In this regard, the Committee notes the Government’s intention to continue consulting with other countries who are parties to the Convention to find ways to facilitate the sharing of information necessary for the payment of benefits to foreign nationals who reside abroad. The Committee also notes the FKTU’s observations indicating that the Government should ensure the collection of the information on eligibility of foreign nationals to employment injury pensions through the Employment Permit System (EPS) centres of the foreign nationals’ countries of origin. In this regard, the Committee takes note of the Government’s reply that the EPS centres lack personnel and therefore cannot handle the additional task of reviewing pension eligibilities of injured foreign workers. The Committee further notes that, according to the KCTU, measures should be taken to enable injured foreign workers to receive disability aids, rehabilitation services, including treatments for complications and vocational training after they return to their countries of origin. The KCTU also indicates that seafarers who are subject to the Act on Accident Compensation Insurance for Fishers and Fishing Vessels of 2017 get a compensation for employment injury based on a minimum wage scale that is lower than the minimum wage applicable to national seafarers. In addition, the KCTU refers to language barrier as a main source of difficulties for foreign workers in applying for workers’ compensation and participation in post-accident vocational trainings. The Committee urges the Government to take the necessary measures: (1) to ensure equality of treatment in respect of workers’ cash compensation and medical care benefits for all foreign workers, including seafarers, who are nationals of any other Member which has ratified the Convention; and (2) to ensure the provision of employment injury pensions instead of lump sums to foreign workers leaving the Republic of Korea, with a view to give full effect to Article 1 of the Convention. The Committee requests the Government to keep it informed of agreements concluded with other ratifying countries in this regard. The Committee also requests the Government to take the necessary measures to facilitate the access of foreign workers to employment injury benefits by ensuring that relevant documents and information are available in a language that they can understand.

Application of the Convention in practice. In its previous comments, the Committee requested the Government to provide information on new legal provisions on securing better compliance with the national legislation on employment injury. The Government replies that it continues strengthening penalties for employers who failed to report or who concealed industrial accidents by adopting new provisions on criminal punishment and increasing fines. The Committee notes the FKTU’s observations indicating that although there is an increase in the number of applications for recognition of industrial accidents, stronger punishment measures should be imposed to prevent employers from not reporting and concealing industrial accidents. In this regard, the Government indicates that it intends to promote education activities and campaigns on the reporting on industrial accidents in the workplace, and enhance administrative and legal enforcement actions. The Committee requests the Government to provide information on the outcome of the measures taken to enhance the enforcement and application of the national legislation.

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

Article 1 of the Convention. Equality of treatment of migrant workers. For a number of years, the Committee has been pointing to the fact that the national legislation does not guarantee equality of treatment between national workers and workers from countries party to the Convention, and their dependants, which leave the Republic of Korea following an employment injury. Pursuant to sections 57 and 58 of the Industrial Accident Compensation Insurance Act (IACIA), the disability pension of foreign workers, which leave the Republic of Korea, is terminated and converted into a lump sum whereas Korean national transferring their residence abroad are allowed to continue receiving their employment injury pensions. The Government indicates in its report that this measure was introduced, following an amendment to IACIA, as it would be difficult to manage changes in the eligibility of recipients living abroad. The Committee asks the Government to explain why the payment of benefits and keeping of records is not considered problematic in the case of Korean nationals residing abroad but only with respect to foreign nationals. Recalling that under Article 4 of the Convention, ratifying States undertake to afford each other mutual assistance with a view to facilitating the execution of their respective laws and regulations on workmen’s compensation, the Committee invites the Government to seek to collaborate with the social security administrations of other countries party to the Convention with a view to concluding the necessary practical arrangements for the payment of employment injury pensions to beneficiaries who transfer their residence to these countries.

In addition, the Committee points out that, according to the IACIA, following a conversion of a pension into a lump sum, the latter is equivalent to about four and a half years of regular annuity payments, whereas the good practice and the most advanced ILO standards recommend that the lump sum should represent the actuarial equivalent of the corresponding periodical payment. Applying the same formula for all foreign workers victims of employment injury regardless of their age can indeed result in substantial losses compared to the benefits that a disabled worker would receive if they continued regular periodical benefits. The Committee therefore asks the Government to take measures aimed at re-establishing equality of treatment between national and foreign workers in accordance with the Convention by amending sections 57 and 58 of the IACIA accordingly.

Part V of the report form. Supervision and enforcement of the application of the Convention in practice. Referring to its previous comments, the Committee welcomes the Government’s indication that efforts are under way to improve the industrial accidents reporting system and to introduce a criminal offence for cases in which employers would intentionally cover up industrial accidents. The Committee hopes that, in its next report, the Government will be in a position to provide details as regards these improvements and any new legal provisions aimed at securing better compliance with the national legislation on employment injury, particularly in cases where the employer has failed to report the industrial accident or to comply with the duty to sign and seal application letters for workers’ compensation.

[The Government is asked to reply in full to the present comments in 2018.]

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

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.

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

With reference to its previous comments, the Committee notes the Government’s report and the reply dated 24 October 2011 to the observations made by the Federation of Korean Trade Unions (FKTU) in its letter of 26 August 2011 concerning the application of the Convention. According to the FKTU, the Republic of Korea is a country with high numbers of industrial accidents in which it is very difficult for documented and undocumented workers to apply for compensation. Migrant workers are often discouraged from filing for claims and forced to sign waivers, or to pay for their medical expenses themselves or to renounce their benefits in exchange for the renewal of their contract of employment. Migrant workers are generally not in position to comply with the complex procedure to prove the occupational nature of their injury and to apply for compensation because of their inability to express themselves in Korean. They are forced to opt for lump sum compensations instead of a pension when they return home; the benefits of the lump sum are less because a partial compensation pension lasts far longer. Migrant workers who decide to remain in the Republic of Korea cannot apply for disability benefits because they cannot apply for the status of a disabled person.

In its reply to the observations of the FKTU, the Government recalls that all foreign workers in the Republic of Korea enjoy protection against industrial accidents in accordance with the Labour Standards Act and the Industrial Accident Compensation Insurance Act (IACIA). Foreign workers, just like Korean workers, can apply for compensation even if their employers fail to confirm the details of the accidents. When a foreign worker files a claim for compensation without the consent of his/her employer, the Korean Workers Compensation and Welfare Service (COMWEL) shall immediately conduct a fact-finding investigation to check whether the worker had an industrial accident or not. Under Article 41(1) of the IACIA, to receive medical benefits a person must apply to COMWEL and furnish documents indicating the workplace, the details of the accident, the medical opinions about the accident and other matters prescribed by the Ordinance of the Ministry of Employment and Labour, which require a confirmation by the insurance policy holder (employer) on the details of the accident involving the worker who intends to receive medical benefits. The Government also quotes Section 20(3) of Enforcement Regulations of the IACIA stipulating that, when COMWEL receives an application from a worker without a confirmation from the employer, the latter shall be informed of the facts. The Government states further that booklets have been published in Korean and English as well as in the languages of the ten countries with a large number of foreign victims of industrial accidents in order to ensure that language barriers do not prevent foreign workers from benefiting from the IACIA and that each branch office of COMWEL has an employee who is exclusively in charge of foreign employees.

The Committee notes the information of the Government about the practical measures it has taken to raise awareness of foreign workers about their rights with regard to occupational accidents as well as on the legislative provisions that apply when an employer fails to confirm that his/her employee has been the victim of an occupational accident. The Committee would like the Government to specify what sanctions are established in the legislation against employers who refuse to confirm the occupational accidents of their employees or force them to sign waivers or to renounce their benefits in any other manner. The Committee requests the Government to reply to the other issues raised by the FKTU regarding the payment of lump sum compensation to foreign workers returning to their home country and their inability to apply for a disability pension when they wish to remain in Korea. Please provide statistics requested under Part V of the report form on the number of foreign workers in the country, their nationality, and on the number and nature of the accidents reported in the case of foreign workers. Please also state whether courts of law or other tribunals have given decisions involving questions of principle relating to the application of the Convention (Part IV of the report form).

Article 1(1) of the Convention. Equal treatment of foreign trainees. The Government reports that since the system which excluded foreign trainees from the IACIA was abolished in 2007, foreign trainees, including those who entered the Republic of Korea under the previous system, are considered as “workers with a non-professional employment visa” under the Employment Permit System (EPS) and enjoy the same protection as Korean workers in relation to industrial accidents. The Committee reiterates its request to the Government to provide a copy of the EPS Act as well as its implementing regulations, identifying the corresponding provisions.

[The Government is asked to reply in detail to the present comments in 2012.]

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the report provided by the Government in reply to its previous comments and the observations made by the Federation of Korean Trade Unions (FKTU) concerning the application of the Convention.

Article 1, paragraph 1, of the Convention. (a). Application to foreign workers of the legislation respecting industrial accidents. In reply to the Committee’s previous comments, the Government indicates that the Industrial Accident Compensation Insurance Act (IACIA) is applicable to workers as defined under the Labour Standards Act (LSA). Furthermore, as the LSA prohibits any discrimination on the grounds, among others, of nationality, the provisions of both the LSA and the Industrial Accident Compensation Insurance Act are applied equally to all workers, including foreign workers. The Committee notes this information. The Committee would nevertheless be grateful to be provided with additional information on the manner in which article 23(2) of the Act on foreign workers’ employment is applied in conjunction with articles 5 and 7 of the IACIA, with particular reference to the obligation set out in the Convention to grant to the nationals of any other Member which shall have ratified the Convention, who suffer personal injury due to industrial accidents, or to their dependants, the same treatment in respect of workers’ compensation as it grants to its own nationals. Indeed, while the above provision of the Act on foreign workers’ employment provides that foreign workers employed in certain businesses shall subscribe to casualty insurance to cover themselves against any illness or death, under the IACIA all enterprises using workers, except those businesses determined by Presidential Decree, shall be bound to be insured under the industrial accident compensation insurance.

(b). Application to foreign apprentices of the same treatment in respect of workers’ compensation for industrial accidents as that granted to apprentices who are its own nationals. The Committee notes that, according to the information provided by the Government, foreign apprentices do not benefit from the protection granted to national apprentices under article 105(3) of the IACIA. Nevertheless, the Government indicates that in practice this text is applied to them in accordance with the “Guidelines on the protection and the management of foreign industrial trainees” (Regulation No. 369 of the Ministry of Labour of 23 February 1998). Furthermore, both the Government and the FKTU indicate that the system for the employment of foreign trainees has been abolished and replaced since January 2007 by the Employment Permit System (EPS). The IACIA is now applied to all foreign workers who enter the country under the EPS. The Committee notes this information with interest and requests the Government to provide copies with its next report of legal texts guaranteeing the equality of treatment envisaged in the Convention. It would also be grateful if the Government would indicate whether foreign nationals who entered the country to work as trainees following the introduction of the EPS benefit in the context of this system from the same treatment as that granted to apprentices who are nationals in relation to industrial accidents. Finally, the Government is requested to indicate whether there remain in the country foreign apprentices governed by Regulation No. 369, referred to above, of the Ministry of Labour and, if so, to provide information on the manner in which the latter and their dependants benefit in practice from the application of the IACIA when they are nationals of a country that is a party to this Convention.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 1, paragraph 1, of the Convention. (a) The Committee notes that the Act on foreign workers’ employment (No. 6967) regulates, since August 2004, the employment of foreign workers in the country. It observes that, according to
article 22 of this Act, an employer shall not give unfair and discriminatory treatment to foreign workers on grounds of their status. The Committee further notes that by virtue of article 23(2) of the same Act, foreign workers employed in certain businesses or workplaces shall subscribe to casualty insurance to cover themselves against any illness or death, whereas under articles 5 and 7 of the Industrial Accident Compensation Insurance Act (IACIA), all enterprises using workers, except those businesses determined by presidential decree, shall be bound to be insured under the industrial accident compensation insurance. The Government indicates in this respect that under the IACIA all those defined as “workers” in the Labour Standards Act (i.e. persons engaged in whatever occupation offering work to a business or workplace for the purpose of earning wages) are compensated in case of industrial accident. However, observing that the Act on foreign workers employment does not contain explicit provisions to the purpose of assimilating foreign workers with employment permits to “workers” within the meaning of IACIA, the Committee would be grateful if the Government would supply detailed information concerning the manner in which relevant acts or regulations ensure effective equality of treatment between Korean nationals and employed foreign workers in cases of injury due to the industrial accidents.

(b) The Committee notes from the Government’s report that foreign persons are also working in the country as industrial trainees and that two successive Supreme Court rulings, of respectively 1995 and 1997, considered that a foreigner who entered the country not as a worker but as an industrial trainee, signed an employment contract with a company covered by the IACIA and was subsequently injured at work, shall be assimilated to a “worker” as defined under the Labour Standards Act and therefore entitled to compensation for injuries under the IACIA. However, considering that these two rulings seem to concern the application of the previous IACIA, the Committee wishes the Government to specify in its next report the legal regime applicable to foreign trainees suffering personal injury due to industrial accidents, and especially whether article 105-3 of the IACIA providing that on-the-job trainees shall be considered as workers employed in the business for the application of the Act is also applicable to foreign industrial trainees.

The Committee hopes that the Government will supply the requested information with its next report and recalls that according to Article 1, paragraph 1, of the Convention, each Member of the ILO which ratifies it undertakes to grant to the nationals of any other Member which shall have ratified the Convention, who suffer personal injury due to industrial accidents happening in its territory, or to their dependants, the same treatment in respect to workmen’s compensation as it grants to its own nationals.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the first report supplied by the Government on the application of the Convention. It also notes the subsequent adoption of the Act No. 6967 of 16 August 2003 on foreign workers employment. The Committee wishes to draw the Government’s attention to the following point.

Article 1, paragraph 1, of the Convention. (a) The Committee notes that the Act on foreign workers’ employment regulates, since August 2004, the employment of foreign workers in the country. It states that, according to article 22 of this Act, an employer shall not give unfair and discriminatory treatment to foreign workers on grounds of their status. The Committee further notes that by virtue of article 23(2) of the same Act, foreign workers employed in certain businesses or workplaces shall subscribe to casualty insurance to cover themselves against any illness or death, whereas under articles 5 and 7 of the Industrial Accident Compensation Insurance Act (IACIA), all enterprises using workers, except those businesses determined by presidential decree, shall be bound to be insured under the industrial accident compensation insurance. The Government indicates in this respect that under the IACIA all those defined as "workers" in the Labour Standards Act (i.e. persons engaged in whatever occupation offering work to a business or workplace for the purpose of earning wages) are compensated in case of industrial accident. However, observing that the Act on foreign workers employment does not contain explicit provisions to the purpose of assimilating foreign workers with employment permits to "workers" within the meaning of IACIA, the Committee would be grateful if the Government would supply detailed information concerning the manner in which relevant acts or regulations ensure effective equality of treatment between Korean nationals and employed foreign workers in cases of injury due to the industrial accidents.

(b) The Committee notes from the Government’s report that foreign persons are also working in the country as industrial trainees and that two successive Supreme Court rulings, of respectively 1995 and 1997, considered that a foreigner who entered the country not as a worker but as an industrial trainee, signed an employment contract with a company covered by the IACIA and was subsequently injured at work, shall be assimilated to a "worker" as defined under the Labour Standards Act and therefore entitled to compensation for injuries under the IACIA. However, considering that these two rulings seem to concern the application of the previous IACIA, the Committee wishes the Government to specify in its next report the legal regime applicable to foreign trainees suffering personal injury due to industrial accidents, and especially whether article 105-3 of the IACIA providing that on-the-job trainees shall be considered as workers employed in the business for the application of the Act is also applicable to foreign industrial trainees.

The Committee hopes that the Government will supply the requested information with its next report and recalls that according to Article 1, paragraph 1, of the Convention, each Member of the ILO which ratifies it undertakes to grant to the nationals of any other Member which shall have ratified the Convention, who suffer personal injury due to industrial accidents happening in its territory, or to their dependants, the same treatment in respect to workmen’s compensation as it grants to its own nationals.