Individual Case (CAS) - Discussion: 2013, Publication: 102nd ILC session (2013)

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

The Government provided the following written information.

The Korean Government aimed to set best practice in the management of labour migration by implementing various policies to protect migrant workers at every stage from the “entry” and “employment” to the “departure” period. With respect to entry, migrant workers entering the Republic of Korea under the Employment Permit System (EPS) were given opportunities to work in the country in a fair and transparent manner. A fair and transparent selection system was in place to prevent EPS workers from being taken advantage of by a broker or being put in a difficult situation by irregularities or corruption. After entering the Republic of Korea, EPS workers were provided with significant integration training and awareness education concerning their legal rights. The education costs were fully borne by their employers. Workers were provided with detailed information regarding their rights under all relevant labour laws, as well as detailed instructions on the procedures for filing a complaint when their rights had been infringed upon.

During employment under the EPS, any discrimination against migrant workers was prohibited and labour laws including the Industrial Accident Compensation Insurance Act, the Minimum Wage Act and the Labour Standard Act were equally applied to both migrant workers and Korean nationals. The 47 local labour offices across the country were responsible for receiving and reviewing complaints submitted by migrant workers. The Government provided guidance to, and conducted roughly 5,000 inspections per year on workplaces which employed migrant workers. The 60 local job centres under the Ministry of Employment and Labour were helping migrant workers address relevant legal concerns and employment-related affairs, such as questions related to extending employment periods. A total of 34 support centres and one call centre for migrant workers were in operation in the country. They offered a variety of services to migrant workers free of charge. For instance, they provided counselling services, legal assistance, free Korean culture classes, free medical check-ups and shelters to migrant workers. Free interpretation services were at the disposal of migrant workers. Approximately 200 interpreters were in service at any given time and 500 interpreters remained available. The Government, in cooperation with the embassies of countries of origin, organized cultural events for migrant workers so that workers from the same country had opportunities to meet and share information with one another. In 2012, nine cultural events had been organized for six countries including Thailand and the Philippines, in addition to six multi-country events which had been held. Migrant workers were provided with fully funded vocational training by the Government in a range of fields. In 2012, 4,935 migrant workers had completed vocational training in areas such as computer literacy, operation of heavy construction equipment and car repair. The Government also required insurance designed exclusively for EPS workers. Elements of the mandatory insurance required by the Government included return cost insurance for return flight ticket, casualty insurance for accident and death not associated with work, guarantee insurance for overdue wages, and departure guarantee insurance for severance pay. These represented requirements tailored to protecting workers and supporting their interests for the entire duration of their work experience.

With respect to departure and return measures, under the returnee support programme, EPS workers were invited to information sessions which were held to inform them of ways in which to prepare for the return to their home countries. Examples of instruction provided, included how to collect unpaid wages and receive insurance benefits. In 2012, 77 information sessions were held and attended by 5,122 EPS workers. The Government provided job placement services for returnees. It held job fairs to connect jobseeking returnees with Korean companies in their home countries. In 2012, 2,087 returnees had received such job placement services and 377 of those persons succeeded in finding employment. A package of services ranging from free customized vocational training to job placement services was provided to help returnees settle in their countries within a short period of time. For migrant workers who had left the Republic of Korea without receiving insurance compensation, which was due to them under the departure guarantee insurance taken out by employers, or the return cost insurance taken out by the migrant workers themselves, the Government provided services to ensure that such insurance compensation was received. In 2012, EPS workers had received 204 million won (KRW) (approximately US$182,000) under departure guarantee insurance and KRW278 million (approximately US$248,000) under return cost insurance. Under the current EPS, a migrant worker was allowed to change workplaces a maximum of three times during the first three years of employment and a maximum of two times during an extended period of employment of up to one year and ten months. Therefore, a migrant worker could change workplaces a maximum of five times over the course of four years and ten months. If EPS workers changed employment for a reason not attributable to them, such as a temporary shutdown or permanent closure of the business at which they were employed or a violation of working conditions by the employer, they could change workplaces without being subject to the limit on the maximum number of workplace changes. Under the EPS, when a migrant worker changed workplaces for any of the legitimate reasons outlined, he or she might request a change of workplace at a job centre for which no confirmation from the employer was required. Only if an EPS worker requested a change of workplace under the claim that his or her employment contract had been terminated, job centres at times verified with the employer with regard to whether the employment contract indeed had been terminated. An EPS worker needed no permission from the employer to change workplaces. Most of the violations of labour laws that were found in 2011 had been simple violations of the administrative obligations or procedures prescribed by labour laws, such as the Labour Standards Act. The violations had included failures to specify working conditions in writing (1,051 cases), failures to post the main contents of labour laws at the workplace (979 cases), failures to post a list of workers (894 cases), failures to inform workers of the minimum wage (710 cases) and failures to provide sexual harassment education (593 cases). Furthermore, there had been 341 cases of overdue wages and 63 cases of paying less than the minimum wage. With respect to equality of opportunity and treatment of women and men, the percentage of female workers and managers had risen steadily in workplaces which were subject to the Government’s affirmative action scheme: in 2009, 34.01 per cent of female workers and 14.13 per cent of female managers; in 2010, 34.12 per cent of female workers and 15.09 per cent of female managers; in 2011, 34.87 per cent of female workers and 16.09 per cent of female managers; and in 2012, 35.24 per cent of female workers and 16.62 per cent of female managers.

With respect to measures regarding maternity protection and support for work–family balance, the use of paid maternity leave (up to 90 days) and childcare leave available to those with a child under the age of 6 had increased. The number of workers who had taken maternity leave had increased by approximately 35 per cent between 2008 and 2012: 68,526 in 2008; 70,560 in 2009; 75,742 in 2010; 90,290 in 2011; and 93,394 in 2012. The number of workers who took childcare leave had doubled between 2008 and 2012: 29,145 in 2008; 35,400 in 2009; 41,732 in 2010; 58,137 in 2011; and 64,069 in 2012. To support and facilitate a healthy work and family balance, additional legal changes were made in 2012. Currently, workers were able to work shorter hours instead of taking childcare leave, and were able to take leave to care for a sick family member.

With respect to supervisory activities of labour inspectors concerning discrimination against non-regular workers, in 2012, the Government had inspected a total of 5,431 workplaces which employed a large number of non-regular workers, such as fixed-term and dispatched workers. Of the workplaces inspected, 4,267 had been found to have committed 17,103 violations of labour laws. A total of 191 cases had been sent to the prosecutors’ office, fines had been imposed in three cases and administrative action had been taken in 244 cases. The violations included failure to specify working conditions in writing (1,737 cases), failure to inform workers of the minimum wage (1,530 cases), and failure to provide the workers with wages or compensation within 14 days after they left the workplaces due to death or resignation (1,334 cases). Cases such as the dispatching of workers to workplaces where dispatched workers were not allowed to work, or the dispatching of workers by unauthorized agencies (168 cases) had been sent to the prosecutors’ office. Other cases including discrimination against non-regular workers in terms of bonus compensation and vacation (108 cases) had been addressed through administrative measures.

In addition, before the Committee a Government representative highlighted that the Government had been striving to eliminate any and all forms of discrimination in employment and occupation in order to promote the overall employment quality. Migrant workers under the EPS enjoyed equal protection with nationals under labour legislation, and the migrant workers’ quality of life had been improved by a variety of support programmes provided by the Government, before entry, during employment and after departure. The EPS had been recognized by the international community as a pioneering labour migration management system. In addition, workers under the EPS were allowed to change workplaces up to five times. However, they were granted unlimited workplace changes under a certain set of criteria provided in the law, such as the temporary or permanent closure of the business, violations of employment contracts or unfair treatment by the employer. Referring to the conclusions of the Conference at its 40th Session, which had recognized that a certain degree of restriction on labour migration was necessary, the speaker underlined that frequent and unlimited workplace changes might result in illegal interventions by unauthorized brokers.

The Government had introduced comprehensive policy measures in 2011 for the protection of non-regular workers against discrimination and to reinforce the social safety net for workers in precarious situations. The measures included: (i) the extension of the application period for remedial action against discrimination from three months to six months; (ii) amendments to the Act on the Protection of Dispatched Workers in August 2012, so that illegally dispatched workers were to be hired directly and immediately by the actual employers directly overseeing them; and (iii) giving labour inspectors authority to identify and properly address discrimination against fixed-term and dispatched workers based on wages and working conditions. These measures had been accompanied by progressive results. The speaker also indicated that giving standing to trade unions to represent non-regular workers concerning discrimination cases was not compatible with the litigation procedures, as the unions were not the party directly affected by the discriminatory treatment, nor would they benefit from remedial action.

Concerning equal opportunity and treatment between men and women, the Government had implemented policies including reduced working hours during childcare, a family care leave system and maternity protection. For female workers who had experienced career disruptions, the Government was providing comprehensive employment services such as career counselling, job placement and vocational training for their reintegration into the workforce. The Government had started taking affirmative action measures in public institutions and private enterprises with more than 500 employees, and from May 2013, the affirmative action programmes had been expanded to cover all public institutions.

Concerning discrimination on the ground of political opinion, the Constitution mandated political impartiality on the part of all public officials, including government officials and teachers at public schools, thereby prohibiting this category of employees from engaging in political activities in favour of a specific political party or politician. In 2012, the Constitutional Court had held that the prohibition and restrictions on political activities of public officials, including schoolteachers, was constitutional. The speaker emphasized that the Government had been making more efforts to ensure quality employment and fairness in its society to achieve further equality by consulting with the social partners.

The Worker members recalled that, in 2009, this Committee had concluded that protecting migrant workers against discrimination and abuse required persistent attention from the Government. They indicated that the 2012 legislative amendments to allow migrant workers to change jobs, particularly in the case of difficult working conditions or unfair treatment, were important but that problems remained in practice as a result of the fact that the burden of proof rested with the worker, and due to language problems, the absence of legal assistance and the obligation to continue working in the same workplace during the investigation. They also underlined the fact that the Government had not provided information on safeguards for workers who complained to a labour inspector or the police, or on how “objective recognition” as a victim of discrimination, which would allow a worker to request an immediate change of workplace, could be obtained. They were surprised that, in the vast majority of cases, requests for a change of workplace were made for reasons other than a breach of employment contract. Workers were often invited, or rather forced, to change their reason in mid-procedure, for fear of their requests being rejected. Moreover, given that migrant workers who left their employers would be sent back to their country of origin if they did not find other work within three months, they often had to choose between putting up with discrimination and abuse by their employers or being deported. With regard to gender-based discrimination, the Worker members mentioned irregular work, which was largely performed by female workers, and the frequency with which workers were dismissed on the grounds of pregnancy, childbirth or having to look after a child. Another problem was the lack of financial resources and expertise in the area of equal opportunities for men and women. Although honorary inspectors for equality at work had been appointed in enterprises, few tangible results had been achieved owing to a lack of training and awareness. The Worker members also deplored the fact that discrimination on the ground of political opinion existed in the education sector.

The Employer members underlined that under the EPS introduced in 2004, more than 200,000 workers had entered the country between 2004 and 2009. Several pieces of labour legislation applied equally to migrant and Korean workers. While the EPS had initially been based on the assumption that workers would continue to work with the employer with whom they had first entered an employment agreement, practical issues led to the relaxation of that assumption. Workers were now permitted to change employers up to three times (in the first three years) for specified reasons, and the list of acceptable reasons for changing workplaces had recently been extended. The Employer members indicated that the right of foreign workers to stay in the country was vested in the contract signed with the first employer and, in principle, the worker should remain with this employer. While this was not always possible in reality, setting a limit on the number of changes of employer was therefore not, in and of itself, an act of discrimination. Nonetheless, it was not always easy for migrant workers, with considerations of different culture and language, to raise concerns about their employment, and they might experience difficulties in the permitted changes. The Employer members therefore encouraged the Government to continue initiatives to ensure that migrant workers received the information and assistance required. The Employer members echoed the call of the Committee of Experts for the Government to take the necessary steps to ensure that in practice the EPS, including the re-entry and re-employment system, allowed for appropriate flexibility to change workplaces so as to avoid situations in which workers became vulnerable to abuse and discrimination on the grounds set out in the Convention.

Turning to the issue of discrimination on the basis of sex and employment, the Employer members recalled that while any form of discrimination was inappropriate, workers in non-permanent work should not automatically receive the full conditions available to permanent work, and in the case of subcontracting, it was not necessarily appropriate to apply the same conditions of work to workers hired by different companies. A key aspect in managing discrimination was the means by which workers could raise concerns and seek redress, and new measures in this regard included an increase in the time limit for filing a complaint as well as new advisory and supervisory powers for labour inspectors. Measures adopted regarding the employment of women included utilizing honorary equal employment inspectors appointed by individual enterprises, the requirement of all public organizations, and private companies of a certain size, to report annually on the employment of women, and requiring large companies with low female participation to submit affirmative action plans to the authorities. However such measures relied on commitment at the workplace level. Therefore, the Employer members requested the Government to consider additional measures that would assist in making such measures systematic, to facilitate improvement of the participation of women in the workforce. Turning to discrimination based on political opinion, the Employers members noted that the group of teachers dismissed in 2012 had all been reinstated after court action. This indicated that protections against discrimination were in place. However, this was a complex issue, as Korean law required that public sector employees remain politically neutral. The Committee of Experts had noted that exceptions to the general protection against discrimination on grounds of political opinion were permitted in certain cases, but for the exception to be valid “the criteria used must correspond in a concrete and objective way to the inherent requirements of a particular job”. There was a lack of information on whether an objective assessment of the inherent requirements of a teacher’s job had been undertaken. Therefore, the Employer members echoed the request of the Committee of Experts that the Government take measures to provide proper protection to primary and secondary teachers.

A Worker member of the Republic of Korea highlighted that despite the amendment made to section 25(1) of the Act on Foreign Workers Employment, etc. and the EPS, it was still extremely difficult for migrant workers to change workplaces due to strict restrictions. A new system introduced in 2012 had further aggravated the migrant workers’ situation. Therefore easing the criteria to allow changing of workplaces was necessary, by including the situation where there was a large discrepancy in wages and working conditions compared with other workers performing the same type of job. Referring to the female overrepresentation in precarious work, and to the fact that female non-regular workers received only 40 per cent of wages of male regular workers, the speaker highlighted that this structured gender pay gap was to be attributed to the flawed legislation. Under current legislation, it was extremely difficult for workers in precarious situations to seek remedies, due to fear of reprisals by employers, including dismissals. The speaker emphasized that due to various forms of employment created, increasing numbers of workers were outside the scope of the Labour Standards Act or the Trade Union and Labour Relations Adjustment Act, leading to deteriorating working conditions and a lack of social security. It was necessary to cover workers in special employment arrangements by these Acts, to include the principle of direct employment in the Labour Standards Act, and to give standing to trade unions in seeking remedies. Citing the employment rate of women, which had been 46.3 per cent in January 2013, the speaker emphasized that women, in particular female workers in precarious situations, were under pressure to leave the workforce, despite maternity and childcare leave systems provided in the legislation.

Another Worker member of the Republic of Korea stated that in-house subcontract workers were facing the worst discrimination in terms of working conditions, including wage differences and job security. The Guidelines on protection for in-house subcontract workers, published by the Government in 2011, in fact protected employers using indirect employment. In the manufacturing sector, in which the dispatch of labour was prohibited, this form of labour was increasing continuously. A system of converting fixed-term contracts to non-fixed term ones, which had been proposed by the Government, was not effective. For example, even after the conversion to non-fixed term contracts pursuant to the instruction of the Government, these workers had been placed in a certain category with no possibility of promotion, and their wages were only 64 per cent of regular workers. A new measure taken by the Government in 2012 concerning changing of workplaces for migrant workers also constituted discrimination on the ground of country of origin. Under this new measure, migrant jobseekers were forced to wait until being contacted by employers, without knowing the type or the place of work, thereby being subjected to extreme insecurity. Concerning discrimination based on political opinion, the speaker highlighted that dismissals of teachers, members of the Korean Teachers and Education Worker’s Union (KTU), members of the Korean Government Employee’s Union (KGEU) and public officials, were being used to deny legal recognition of these trade unions.

The Employer member of the Republic of Korea highlighted that migrant workers were permitted to change workplaces without limit for reasons not attributable to workers, and up to three times in the case of termination. The Constitutional Court had held in 2011 that the limitation on the number of changes did not violate the rights of foreign workers. The frequent mobility would undermine employers’ ability to manage their workers and increase their financial burden of providing education and training to workers. In practice, workplace changes did not require permission from employers, since employers were obliged to report to the authorities upon requests for changes made by workers. To further improve the rate of economic participation by women, which was lower than men’s, wage flexibility and diversification of employment were the solution to assist women to have full access to the labour market. In this regard, legislation had been revised, and labour inspections had been implemented since August 2012. As a growing number of large enterprises were changing or planning to change their non-regular workers to regular workers, as shown in the Guidelines on protection for in-house subcontract workers, the issue of non-regular workers would soon be improved. The Republic of Korea was the only country in Asia in which legislation required enterprises to take affirmative action measures. Although affirmative action had not always been perfectly implemented since its introduction in 2006, enterprises were trying to implement measures in this regard, as shown in the increasing trends of female employment and women in managerial positions, which was higher in the private than in the public sector. Concerning discrimination on the ground of political opinion, though the Supreme Court had ordered the reinstatement of the teachers concerned, it had held that the teachers had violated their duty to remain politically neutral, which was a constitutional requirement.

The Worker member of Japan declared that Korean and Japanese workers were facing many common problems, the most important of which was discrimination on the basis of sex and employment status. The most discriminated against were female non-regular workers. She underlined that when the number of non-regular workers was broken down by sex, there were more regular workers (60.9 per cent) in the case of men than non-regular ones. In the case of women, there were more non-regular workers than regular workers, and the wages of non-regular women workers were low. Also, the number of workers in “special types of employment” was increasing rapidly, and those workers were not recognized as employees in labour legislation. In the name of global competition, workers were being deprived of the rights embodied in ILO instruments and the protection for workers was weakening. The Worker member hoped that the Government would take the necessary measures to implement fully the provisions of the Convention, not only for the betterment of Korean workers, but also for the promotion of decent work in the region and in the world.

An observer representing Public Services International (PSI) rejected and expressed concern at the difficult situation faced by trade unions in the public service. Precarious work was increasing every year in the public service and the Government had reduced the budget to a minimum, which did not allow for any new recruitment. That meant that public servants were seeing an increase in their workload and that subcontracting and temporary posts were being used. For example, education support workers in precarious conditions, who made up almost half of all precarious workers in the public sector, received wages between 50 and 70 per cent lower than regular staff for the same work. Women were the most affected. Although the Government stated that it would regularize the work situation of public servants, the speaker considered that, in reality, the situation of those workers would simply get worse as fixed-term contracts were replaced by open-ended part-time contracts. The Government had in fact announced that it was thereby planning to increase the employment rate to 70 per cent. That would mean doing more work in less time for less money. Pressure at work was already so intense that the suicide rate had risen in recent months. It was regrettable that the Government considered that women preferred flexible working hours so that they could take care of their families. It served only to perpetuate gender differences and condemn women to lower-paid jobs. Rather than solving the problem of precarious work, such policies were a means of perpetuating deep-seated inequalities. Policies based on the principle of stable and secure work should be adopted instead, so as to guarantee high-quality public services.

The Worker member of the Netherlands recalled that the Government recently announced measures to create “good part-time jobs” and that the Korean trade unions were concerned that these measures would promote the increase of temporary low-quality employment instead of contributing to more decent employment and less discrimination. She noted that the Government likened the proposed measures to the “Dutch model”. Consequently, she thought it relevant to share information about the Dutch experience with atypical and part-time employment relations. In 1999, a law on atypical employment had been introduced, which regulated these types of employment, instead of prohibiting fixed-term, part-time and indirect employment relations, in order to offer flexibility and security to these workers, while ensuring the application of the principle of equal pay for work of equal value, including all worker benefits. As a result, one third of the Dutch labour force no longer had permanent or open-ended employment contracts. Women, in particular, took part-time jobs, and for some groups of workers – young workers, care workers, workers in the agricultural and food sectors – atypical employment relations became typical. While for many of these workers, the regulation of the principle of non-discrimination had led to an improvement of their labour conditions, for a large groups of workers, the quality of employment had deteriorated when permanent jobs had been replaced by fixed-term contracts, and when new forms of flexible employment had emerged, such as on-call and zero-hour contracts offering only a few hours of employment. Noting the risk of an increasingly divided labour market, the Government of the Netherlands and the social partners had agreed that additional measures were needed, including the prohibition of some forms of flexible employment, to prevent the mushrooming of bad employment contracts. Therefore, and given the huge wage gap noted by the Committee of Experts between the regular and non-regular workers in the Republic of Korea, she expressed her serious concern at the Government’s statement that it aimed to follow the “Dutch model”, and asked which measures it intended to take to convert non-regular employment into regular employment, to ensure the monitoring of non-discrimination, and to guarantee the full trade union and collective bargaining rights of non-regular workers.

An observer representing Education International (EI) considered that the prohibition of primary and secondary school teachers to engage in political activities, as opposed to university lecturers, was discriminatory and in clear violation of the Convention. The rationale brought forward by the Government concerning the difference in the treatment of these two categories of teachers with regard to their different roles (teaching or teaching and research, respectively) was unjustified, since all citizens were equal and should be given the same opportunity to influence decisions in the political, economic and social spheres of society, as also provided for by article 80 of the 1966 ILO–UNESCO Recommendation stating that teachers should be free to exercise all civil rights generally enjoyed by citizens. She further considered the practice of not allowing dismissed or retired teachers to unionize to be discriminatory. The Korean teachers’ union, Chunkyojo, was threatened with the cancellation of their registration because it maintained the union membership of teachers who had been dismissed based on political opinion, as well as those of retired teachers. For the same reason, the Government was also still refusing to register the Korean Government Employees’ Union (KGEU). She requested the ILO supervisory bodies to urge once again the Government to respect international labour standards by giving all teachers civil and political rights, reinstating teachers dismissed for exercising freedom of speech, and allowing dismissed and retired workers to unionize.

The Worker member of Nepal indicated that for many Nepalese workers, working in the Republic of Korea meant a better job with a good salary and decent working conditions. The workers believed that the involvement of the respective governments meant that their labour rights were protected. They spent more than a year in language and skills training, at the end of which they were placed on a roster expecting to be selected for a job. The Act on Foreign Workers Employment, etc. of 2003 prescribed that the rights and interests of foreign workers applied to them in the same way as to their Korean counterparts. According to the law, the migrant worker could seek a suitable job that they could perform well in good working conditions, consulting a list of workplaces, which could be chosen and changed if the conditions appeared to be not suitable or in case of exploitation. The majority of migrant workers performed difficult and unwanted jobs. In August 2012, the Government enforced a new measure on the right of migrant workers to change workplaces. Under the new measure, migrant workers looking for new employment were no longer provided with a list of workplaces with job openings as they had in the past. As a result of this measure migrant workers were put in a situation where, should they be looking for a new job, they had to wait to be contacted. They had no certainty regarding the job or location that would be offered. As a consequence, migrant workers were forced to endure job searches in highly insecure conditions. Moreover, as migrant workers were required to return to their home countries if they could not find a new workplace within three months, they were either forced to sign new employment contracts, regardless of conditions, before the three months were up or had to avoid changing workplaces altogether regardless of how dissatisfactory their present workplace was. As such, the new measure constituted a violation of migrant workers’ recognized right to choose their place of employment freely and freely enter into employment contracts. This was clearly a form of discrimination in employment based on country of origin. Moreover, equal opportunity for men and women did not seem to apply in the EPS system either since, despite the fact that many women passed the EPS-TOPK (Test of Proficiency in Korean), very few got the chance to work in the country. Women should enjoy equal opportunity for work.

The Government representative pointed out with regard to migrant workers, that since August 2012, the Government had started connecting employers and migrant workers directly through job centres, rather than providing workers who requested a change of workplace with the list of employers looking for migrant workers. This measure was expected to reduce the costs for both migrant workers and employers and was in no way a restriction on migrant workers’ freedom of choice as they were able to ask for recommendations of workplaces at these job centres at any time. In addition, she indicated that the burden of proof in cases of unfair treatment and discrimination did not always lie with the worker, but depended on the nature of the case. Regarding the issue of in-house subcontracting, investigations were under way to determine the legality of the broader in-house subcontracting practices of one particular company, while the Government had also been putting forward efforts to facilitate dialogue between the social partners in order to find solutions to the number of subcontracted workers employed directly by that company. As for the In-house Subcontracting Act, the Government had not been trying to achieve the legalization of illegal dispatches for the benefit of the employers, but for the protection of working conditions and employment security. With regard to the wage gap between men and women, she indicated that there had been a significant improvement from the 35 per cent gap of 2009 to a 31 per cent gap today. The Government had introduced laws to prohibit discrimination based on gender and conducted inspections in more than 30,000 workplaces per year to ensure compliance with the law. Moreover, considering the fact that the income gap between men and women could be attributed to women’s career disruption because of pregnancy, the Government had adopted various measures to ensure work and family balance, including maternity leave before and after childbirth, as well as childcare leave, and to help women return to the labour market. The Government had appointed honorary equal employment inspectors among recommended workers to deal with issues of gender discrimination and sexual harassment with objectivity and fairness within workplaces. She declared that, in order to eliminate discrimination against women, it was essential to secure cooperation among labour, management, government and civil society stakeholders. Regarding the political impartiality of public officials and teachers, she stated that the Government had taken disciplinary measures against public officials who joined or supported a political party because this was in violation of the law and the Constitution. As for the non-registration of the KGEU, this was because of the organization’s failure to comply with current labour laws and had no correlation to public officials’ obligation of political impartiality. She underlined that the Convention did not include a specific clause concerning the right to establish unions, in order to avoid the duplication of the provisions of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

She concluded by referring to the preparatory works of the Convention and to the 1996 Special Survey on equality in employment and occupation, and stated that the concept of national extraction did not refer to nationality and the distinctions that could be made between citizens of one country and those of another, but to distinctions between the citizens of the same country. She expressed the Government’s acknowledgment that everyone should be given equal opportunity and treated with equal respect in the workplace, and reiterated the Government’s firm commitment to the elimination of all forms of discrimination in employment and occupation.

The Worker members recalled that the Republic of Korea had ratified the Convention in 1998 and, despite the Committee of Experts’ examination of the application thereof since 2005 and its many suggestions and recommendations to the Government, the situation of the workers remained a source of great concern regarding protection against discrimination and was testimony to a clear lack of will on the part of the Government. Moreover, it also appeared that the Government had failed to understand that it was necessary not only to transpose the principles of the Convention into national law but also to monitor their application. Such monitoring could only be improved if the workers concerned were informed and assisted by the trade unions that represented them. Most workers who suffered discrimination were in precarious employment. In view of that growing phenomenon, it was necessary to train honorary inspectors to take charge of monitoring equal opportunities for men and women in enterprises. Furthermore, since discrimination on the basis of political opinion especially affected teachers, the Government should take steps without delay to protect teachers at all levels. The Government should request technical assistance from the ILO to ensure the rapid adoption of the necessary amendments to the Act on Foreign Workers’ Employment, etc. and to bring them into line with the provisions of the Convention. The recommendations of the Committee of Experts should be implemented without delay and the Government should provide clarifications on the following: (i) the definition of the expression “unreasonable discrimination” used in notification No. 2012–52 and also the grounds of discrimination covered; and (ii) how, and by which authority, it was “objectively recognized” that a foreign worker was a victim of discrimination and therefore did not have to wait for the outcome of the investigation concerning his or her request for a change of workplace to leave the employer. The Worker members asked the Government to take steps to supply information to all workers and employers on the new provisions of the Act on Foreign Workers’ Employment, etc. especially information regarding non-discrimination, and to foreign workers in particular on the new rules regarding changes of workplace and on the current legal provisions and relevant procedures available concerning sexual harassment. The Worker members urged the Government to supply information on the inspection of workplaces employing migrant workers (number of enterprises inspected and workers concerned, number and nature of violations detected and remedial action taken), as well as on the number and content of complaints brought by migrant workers before labour inspectors, the police, the courts and the National Human Rights Commission, and the follow-up action taken.

The Employer members noted the concluding statements of the Government pointing out the issues and the initiatives being taken in this regard, as well as their underlying rationale, for instance in relation to the provision of access of migrant workers to employers and the creation of job centres, and the ability of agents or brokers to take advantage of the lack of cultural familiarity and language abilities of migrant workers during the placement procedure. The Employer members endorsed the fact that the Government had taken account of these issues and was looking at ways to counter them. However, they recognized that these might not have been perfect measures and therefore endorsed the cause for further measures to be taken, in order to ensure that discrimination did not become inherent to the new practices. While there was no country that could claim to be free from discrimination, some principles needed to be observed. First of all it had to be ensured, through the creation of laws and regulations that were entirely consistent with the Convention, that no systemic or institutionalized discrimination occurred. Secondly, these rules also had to be applied in practice and should be designed so as to root out all instances of discriminatory practice, to call them to account and to discourage their emergence. The quest of governments was whether they had systems in place which were able to identify issues and discriminatory practices before they occurred or to deal with them immediately after their occurrence. Those who suffered discrimination needed to be able to bring their cases to the attention of the instances that dealt with them. They therefore encouraged the Government to continue to take measures to raise awareness among migrant workers of their rights and obligations regarding discrimination. With respect to women in the workplace, and more particularly with regard to the income gaps referred to by the Government, a distinction had to be made. The fact that women did not work in full-time jobs and therefore earned less could be either a result of choices or availability. The cases where women made their choices freely could not be called discrimination. Only in cases where they were not able to choose the work that they wanted to do, were there issues that could be called discrimination that should be rooted out by governments. With regard to the issue of political opinion, the Employer members drew the attention to the fact that not only the Government of the Republic of Korea, but also governments around the world, looked at their public service with an expectation of political neutrality, for example, public servants performed their service without fear or expectation of favour of the government in charge, with the understanding that the government could and did change. This being an underlying principle of the public sector, the Committee of Experts had allowed for some possible restrictions, as long as they were concrete and objective and directed at a specific job. The Employer members recalled that the teachers that had been arrested had subsequently been released, which showed that the Korean legal system was balanced. The Employer members encouraged the Government to ensure that any restrictions that were placed on public servants were balanced, and noted that while primary and secondary school teachers had some constraints, other teaching personnel at the higher education level did not. They asked the Government to consider this as an issue in the future.

Conclusions

The Committee took note of the oral and written information provided by the Government representative and the discussion that followed.

The Committee recalled that it had last examined this case in 2009. The Committee considered issues regarding protection of migrant workers from discrimination and abuse, discrimination on the basis of employment status, equality of opportunity and treatment of women and men, and discrimination based on political opinion.

The Committee noted the information provided by the Government regarding the range of services provided to migrant workers, and the recent changes to the Employment Permit System (EPS) expanding the list of reasons for which workers could change workplaces. Regarding discrimination based on sex and employment status, the Committee noted the Government’s indication that the time limit for filing a complaint had been increased from three to six months, and that labour inspectors had been granted powers to address discrimination against fixed-term, part-time and dispatched workers. It also noted the information provided by the Government regarding the system of appointing honorary equal-employment inspectors to assist enterprises to address gender discrimination issues, and the expansion of the requirement for companies with low female participation to file affirmative action plans.

Recalling that the issue of protecting migrant workers from discrimination and abuse required the Government’s continued attention, the Committee urged the Government to take steps, in collaboration with employers’ and workers’ organizations, and without delay, to ensure that the EPS, including the “re-entry and re-employment system”, provided appropriate flexibility for migrant workers to change employers and did not, in practice, give rise to situations in which they became vulnerable to abuse and discrimination on the grounds enumerated in the Convention. The Committee also requested the Government to continue to strengthen initiatives to ensure migrant workers received all the assistance and information they needed, and that they were made aware of their rights. Given the large and increasing number of non-regular workers, the majority of whom were women, the Committee asked the Government to examine the impact of the recent measures taken to address non-regular employment, to ensure that they were not in practice resulting in discrimination. Given the low labour market participation of women, the Committee requested the Government to take systematic measures to ensure that women could freely choose their employment and had access, in practice, to a wide range of jobs. The Committee urged the Government to ensure rapid, effective and accessible procedures to address discrimination and abuse in practice. It 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, and to ensure that concrete and objective criteria were used to determine the very limited cases where political opinion could be considered an inherent requirement of a particular job.

The Committee urged the Government to avail itself of ILO technical assistance. It requested the Government to include in its report to the Committee of Experts due in 2013, complete information regarding all issues raised by this Committee and the Committee of Experts, for examination at its next meeting.