Caso individual (CAS) - Discusión: 2015, Publicación: 104ª reunión CIT (2015)

Convenio sobre la discriminación (empleo y ocupación), 1958 (núm. 111) - República de Corea (Ratificación : 1998)



The Government provided the following written information.

With regard to the protection of migrant workers, the Korean Government has implemented various policies to support migrant workers at every stage of employment from “entry”, during the employment relationship and to “departure”. A fair and transparent workforce selection system is in place to help prevent workers under the Employment Permit System (EPS) from being taken advantage of by brokers from the moment when the workers are selected as EPS workers in their home countries until they sign employment agreements and arrive in the Republic of Korea. After entering the Republic of Korea, EPS workers are provided with employment training services (and the education costs are fully borne by employers), are provided with instruction in Korean language and culture, and their rights under labour laws, including the Labour Standards Act. They are also provided with occupational health and safety education and detailed instructions on the means and procedures for filing complaints when their rights have been infringed. Under the EPS, labour laws are also applied to both migrant workers and Korean nationals. The 47 local labour offices across the country are responsible for dealing with complaints of the violation of rights under labour laws. Every year, the Korean Government inspects roughly 3,000 to 4,000 workplaces which employ migrant workers, and issues correction orders and imposes sanctions against businesses which have violated laws. After conducting inspections of 3,052 workplaces in 2014, the Government recorded a total of 5,579 cases of violations (in about 2,011 workplaces), and issued correction orders, imposed fines and notified relevant agencies, including the Ministry of Justice, of the violations. Most cases involved violations of administrative duties or procedures, such as migrant workers or employers not joining insurance and changes of employment not being reported. Across the country, 65 job centres under the Ministry of Employment and Labour are in operation to support employment activities. They deal with various employment-related affairs for migrant workers, including the extension of employment periods, and provide counselling services regarding legal matters. A total of 37 support centres and one call centre for migrant workers are in operation in the Republic of Korea. They provide various services free of charge, such as counselling services on all kinds of difficulties migrant workers have on labour law issues, in addition to free lectures on Korean language and culture, free medical check-ups and shelters. At these centres, free interpretation services in 15 languages are provided. Approximately 250 interpreters are in service at any given time and 500 interpreters remain available.

Migrant workers are provided with vocational training services, which are fully funded by the Government. In 2014, 2,653 migrant workers completed vocational training in various areas, such as computer literacy, operation of heavy construction equipment and car repair. An insurance system designed exclusively for EPS workers is in operation. The Government requires employers to join the “guarantee insurance” for overdue wages and the “departure guarantee insurance” to protect migrant workers from the risk of overdue wages or severance pay. Under the returnee support programme, information sessions are held to inform workers of ways to prepare for the return to their home countries. For instance, instruction is provided on how to collect unpaid wages and receive insurance benefits. The Korean Government supports EPS workers, after their departure, to build returnee community networks in their home countries. The Government also provides job placement services for returnees, including job fairs to connect jobseeking returnees with Korean companies in their home countries. In 2014, 157 meetings were held between returnees and Korean companies in the respective countries to increase the employability of returnees. The Government offers returnees an employment support package which covers free customized vocational training and job placement to help them find work with Korean companies in their home countries. In 2014, 942 workers received vocational training and 411 of them obtained a job. The returnees can obtain a certificate of employment in the Republic of Korea through the online system. For migrant workers who have left the Republic of Korea without receiving the insurance compensation of the departure guarantee insurance (subscribed by employers) or the return cost insurance (subscribed by migrant workers), the Government ensures that such insurance compensation is received by the workers in their home countries. In 2014, 24,900 million South Korean Won (KRW) (approximately US$22,493,224) was paid for 20,962 cases under the departure guarantee insurance, and KRW3,400 million (approximately $3,071,364) was paid for 8,189 cases under the return cost insurance. If returnees decide to come back to the Republic of Korea and find work in the Republic of Korea, they are provided with an opportunity for re-entry and employment.

With reference to measures to address discrimination on the grounds of gender and employment type; in 2014, the Government inspected workplaces which employ a large number of fixed-term or dispatched workers, and issued correction orders in discrimination cases. Inspections were carried out in 343 workplaces with a large number of fixed-term workers, and 48 workplaces were found to be in violation. Orders were issued to pay a total of KRW658,798,000 (approximately $595,120) for 49 discrimination cases relating to wages, bonuses and other benefits; correction orders were issued in 11 discrimination cases relating to welfare. In addition, 449 inspections were carried out in workplaces with dispatched workers. Of these 18 workplaces were found to be in violation. Orders were issued to pay a total of KRW145,578,000 (approximately $131,586) for 16 discrimination cases (683 people) relating to wages, bonuses and other benefits; correction orders were issued for five discrimination cases relating to welfare. In 2014, the Government carried out labour inspections of businesses employing dispatched workers or in-house subcontracted workers, and ordered direct employment with the businesses involved in the illegal dispatch of workers. In workplaces sending or employing dispatched workers, 358 worker dispatch agencies and 449 workplaces employing dispatched workers were inspected. Key measures taken included: judicial action for nine cases; fines for two cases; administrative action for 149 cases; and direct employment for 1,058 people. In workplaces employing in-house subcontracted workers, 68 contractors and 140 subcontractors were inspected. Key measures included: judicial action for seven cases; a fine for one case; administrative action for 17 cases; and direct employment for 1,095 people. Following the revision of the Act on the Protection, etc. of Fixed-term and Part-time Workers and the Act on the Protection, etc. of Dispatched Workers (on 18 March 2014), the discrimination correction system has strengthened since 19 September 2014. For instance, punitive damage orders have been introduced and once a discrimination case is confirmed and correction orders are made, the Government may initiate an investigation or make a correction order for those workers who are undertaking the same kind of work within the same workplace, as they may face the same kind of discrimination.

With regard to equality of opportunity and treatment of women and men, the labour force participation rate and employment rate of women in the Republic of Korea have continued to rise from 53.9 per cent in 2009 to 57.0 per cent in 2014. The employment rate rose from 52.2 per cent in 2009 to 54.9 per cent in 2014; the percentage of women workers has risen in workplaces which are subject to the Korean Government’s affirmative action scheme from 34.01 per cent in 2009 to 37.09 per cent in 2014, while the percentage of women managers has risen from 14.13 per cent to 18.37 per cent in the same period. The use of childcare leave (for those with a child under the age of 6) and the reduced working hours system during the childcare period has increased. The number of recipients of childcare leave benefits rose from 58,134 in 2011 to 76,833 in 2014 (73,412 women and 3,421 men). The number of workers using the reduced working-hours system during the childcare period has also steadily increased, from 39 in 2009 to 1,116 in 2014. Starting from October 2014, the basic pay for those using the reduced working hours system during the childcare period has increased from 40 per cent to 60 per cent of the ordinary wage; and the period of reduced working hours may be extended by the period of childcare leave not taken (up to two years). In 2015, the Government introduced part-time childcare services at day-care centres across the country to support part-time working parents, and implemented a programme designed to ensure that working mothers benefit from childcare services. The Government plans to increase gradually the target of childcare services provided by elementary schools.

In addition, before the Committee, a Government representative reiterated that migrant workers entering the country under the EPS received the same protection as nationals under the national labour legislation. Under the system, foreign workers could only change employment for certain reasons allowed by the law, as the worker was under a specific employment contract with the employer and the visa was based on that contract. However, workers were allowed to change workplaces up to three times during the first employment period of three years and up to twice during an extended employment period of 22 months. There was no limit on workplace changes when the change was not attributable to the workers themselves, such as closure of the business and unfair treatment or discrimination by employers. When a worker under the EPS visited a job centre and applied for a workplace change, the centre made its judgement on the basis of evidence submitted by the worker or its own fact-finding efforts. Unreasonable discrimination by the employer based on nationality, religion, gender or physical disability constituted one of the justifiable circumstances for workplace changes. In 2014, a total of 7,501 migrant workers, or 13.2 per cent of total workplace changes, had been approved for reasons not attributable to the worker, including unfair treatment by the employer. In September 2011, the Government had introduced comprehensive policy measures for the protection of non-regular workers to address unreasonable discrimination against them and reinforce the social safety net for workers in precarious situations. In 2015, the Government had initiated a project to financially support partial labour costs of small and medium-sized enterprises that had regularized their non-regular workers. The Government was preparing a guideline for employment security of non-regular workers, which provided that there should be no unreasonable discrimination in terms of welfare benefits. Since the adoption of the measures for non-regular workers in the public sector in November 2011, a total of 31,782 non-regular workers engaged in permanent and continuous work in that sector had become workers with open-ended contracts in 2013, and 18,650 such workers had done so in the first six months of 2014. The Government had been initiating policies to support work–family balance and maternity protection, and was also carrying out affirmative action policies. By inspecting approximately 20,000 companies annually, the Government had been correcting gender discrimination in wages and promotion, as well as violations related to maternity protection. The Government was also providing women with interrupted careers with comprehensive employment services, such as career counselling, job placement services and vocational training. In December 2013, the Enforcement Decree of the Act on Equal Employment and Support for Work–Family Reconciliation had been amended and the minimum proportion of women employees and managers, which was the criteria for the obligation to take affirmative action, had been raised from 60 per cent of the average number of women workers in the particular industry to 70 per cent. With the revision of the Act on Equal Employment and Support for Work–Family Reconciliation, a system had been implemented from 2015 to publicize a list of businesses that had failed to meet the women employment target three consecutive times and had not complied with obligations to take affirmative action after having received correction orders. The women’s employment rate had increased by 20 per cent and the percentage of women managers had risen by 80 per cent from 2006 to 2014. In conclusion, the Government was making efforts to eliminate discrimination in employment and occupation, and these efforts would have an impact.

The Worker members recalled that the Government was becoming a fixture before the Committee which, like the Committee of Experts, had addressed the various forms of discrimination that persisted in the country on numerous occasions. With regard to migrant workers, the EPS, despite recent changes, did not allow workers to change workplace freely in practice, as it imposed a limit of three changes within a three-year period. In addition, employers had to give their agreement, but were in general very reluctant, and in some cases only consented in exchange for a significant payment. Migrant workers who left their jobs without the written agreement of their employer lost their status as immigrant workers and risked being arrested, imprisoned or deported. Even with written consent, they had to find a job in the same sector within three months, or risk deportation. They were obliged to use official job centres during their search for work. The only exception to that was if they could prove that they had been victims of abuse. Throughout the procedure, workers had to continue to work for the same employer and were often actively discouraged from filing for prosecution and were expected to present their apologies to their employer or request a written end-of-contract agreement. Migrant agricultural workers were particularly exposed to practices that left them dependent on the goodwill of their employer, owing to the seasonal nature and location of agricultural work, and the fact that the agricultural sector was not covered by the Labour Code. The Government had not really taken action to identify and follow up discrimination against migrant workers. This was confirmed by its persistent refusal since 2005 to approve the Migrants’ Trade Union (MTU). In the Republic of Korea, the term “non-regular worker” referred to part-time, dispatched and temporary workers, as well as those who had fixed-term contracts. Non-regular workers accounted for 45 per cent of the workforce, resulting in a dual job market and dual society with very little opportunity for mobility. The Government had communicated all the measures that it had taken to improve the situation for non-regular workers, which mostly entailed implementing guidelines rather than bending laws. The measures did not provide for the conversion of non-regular workers into regular workers, but instead into workers with open-ended contracts, without the associated protections. Furthermore, non-observance of these measures was seldom penalized, and they were not therefore very effective and did not comply with the requirements of the Convention. New proposals had simply resulted in extending non-regular work.

Concerning discrimination against women workers, the women’s labour force participation rate was the lowest among Organisation for Economic Co-operation and Development (OECD) countries. The majority of women had a non-regular status. The gender wage gap was the broadest of OECD countries, with women earning barely 60 per cent of the wages of men. The average wage of non-regular male workers was half that of regular male workers, and the average wage for non-regular women workers was barely a third that of regular male workers. With regard to political discrimination, labour legislation prohibited officials and certain teachers from expressing political views and forbade workers who had been dismissed or who had retired from keeping their union membership. In October 2013, the Ministry of Employment and Labour had declared the Korean Teachers and Education Workers’ Union (KTU) illegal because it had refused to change its by-laws and had maintained the membership of nine teachers who had been dismissed. In November 2013, the Government had searched the premises and servers of the KTU and the Korean Government Employees’ Union (KGEU). In June 2014, the administrative court of Seoul had ruled on appeal in favour of the Government, stripping the KTU of its trade union status. In June 2015, the Constitutional Court had rejected the KTU’s appeal and upheld the Government’s decision, ruling that applying the ban on political activities only to teachers at the elementary and middle-school levels did not amount to unreasonable discrimination. After some teachers had attended demonstrations against the ministerial decision to suspend the KTU and against the Government’s poor handling of the Sewol Ferry tragedy, the Government had reacted: the General Secretary of the Korean Confederation of Trade Unions (KCTU) had been arrested and 391 teachers had been accused of violating the law and threatened with disciplinary and criminal proceedings. In conclusion, the Worker members recalled that in 2012 the Office had requested the Government to repeal the provisions prohibiting dismissed workers from keeping their union membership. The most recent report of the Committee of Experts recalled that protection against discrimination based on political opinion applies to opinions which are either expressed or demonstrated, and that exclusionary measures based on political opinion should be objectively examined to determine whether the requirements of a political nature are actually justified by the inherent requirements of the particular job. As the Committee of Experts had indicated, concrete and objective criteria to determine such cases had not yet been established.

The Employer members said that the observation of the Committee of Experts did not contain evidence of the allegations received concerning non-compliance with the Convention, nor did it explain how the Convention had not been complied with. The Committee of Experts had asked the Government for further information or called upon the Government to do things that it was already doing. There was no justification for making a comment in the form of an observation. Referring to the explanations of the Committee of Experts concerning the distinction between an observation and a direct request, as set out in paragraph 53 of its General Report, the Employer members noted that the case demonstrated that the Government had made great efforts to comply with the requests made, and that it continued to be cooperative in its engagement with the Committee of Experts, despite a lack of clear direction as to how the national legislation failed to be in compliance with the Convention. The Employer members therefore considered that the Government had demonstrated commitment to achieving compliance with the Convention, and it should be commended for providing timely and comprehensive information in response to the comments made. The Committee of Experts had welcomed the changes to the EPS allowing workers to change employers in the case of unfair treatment, and had noted that foreign workers could submit complaints in that regard. The Committee of Experts had not provided any specific evidence that the Government was not doing enough to prevent discrimination in that regard in law and practice, and it had only requested the Government to continue its efforts to ensure that migrant workers were able in practice to change workplaces when subject to violations of anti-discrimination legislation and to provide information on that subject. This would have justified a direct request to the Government, and not an observation. As had been emphasized in previous years, the right of foreign workers to stay in the country arose from the labour contract signed between the worker and his or her employer, and in principle the worker should continue to work in that workplace. Therefore, the limitation on the number of workplace changes permitted was not a violation of foreign workers’ rights. In addition, frequent mobility would undermine the ability of employers to manage their workforce, and there had been a 152 per cent increase in applications to change jobs between 2006 and 2011. Foreign workers should receive pre-employment training in their country of origin and should be made aware of the labour legislation in the Republic of Korea and the system of grievances. Training, education and information sessions were provided by the Government to migrant workers upon arrival in the country and programmes of technical and vocational training were also provided, funded by the Government. The Government should continue to review the impact of the new regulations in relation to providing appropriate flexibility to foreign workers based on the national context and to monitoring the impact of new initiatives by collecting data, reviewing, and where appropriate making adjustments to programmes to ensure appropriate protection and management of its foreign worker labour force, in consultation with workers’ and employers’ organizations.

The Employer members indicated that the statement in the observation of the Committee of Experts that many non-regular workers were women should be further explained to clarify how that situation was related to discrimination. It would have to be shown that non-regular forms of work were considered to be less acceptable or that workers in those jobs were at a disadvantage. Labour markets required diverse forms of employment, including part-time work and fixed-term work, as well as seasonal workers. Those forms of work should not be stigmatized as undesirable or underprivileged. The rates of labour market participation of men or women should not necessarily be considered to be discrimination without an appropriate evaluation of the country and the social context. It was also necessary to determine to what extent women who were employed in those forms of employment would prefer other forms of employment over non-regular employment. As some women might prefer part-time work at certain stages, labour market policies aimed at supporting such part-time work included increasing the remuneration for such work. Even if discrimination was present, the Government had taken the necessary measures, which had achieved results. It was therefore not proportional for the Committee of Experts to urge the Government to review the effectiveness of the measures taken. With respect to equality of opportunity and treatment of men and women, labour force participation rates were not necessarily a reflection of discrimination, and the Government had taken various measures to raise the participation of women. The Government might have gone too far with the introduction of a system of denouncing companies that failed to comply with affirmative action requirements, as policies should not create a negative impact on the competitiveness and sustainability of business. With respect to the issue of discrimination on the basis of political opinion, the Employer members considered that the constitutional values invoked by the Government, in particular the political neutrality of education, should be acknowledged and respected. In determining possible discrimination, the Committee of Experts should have balanced the right of students to education without the risk of being politically influenced with the rights of teachers to engage in political activities. If insufficient information was available in that regard, the Committee of Experts should have requested further information in a direct request. In conclusion, there appeared to be little evidence of discrimination or of any serious non-compliance with the Convention, and a direct request would have been more appropriate. The efforts of the Government should be recognized, and the impact of the reforms and changes in legislation should be monitored to ensure that it remained flexible and responsive.

A Worker member of the Republic of Korea recalled that the case had been discussed by the Committee several times before and that no progress had been made with respect to the conclusion of the Conference Committee. The Government had not changed the discrimination remedy system to authorize trade unions to make complaints on behalf of non-regular workers. It had not provided appropriate flexibility for migrant workers to change their employers, as required by the EPS. And it had not taken any steps to ensure that teachers were granted effective protection against discrimination based on political opinion. In that regard, the State Public Officials Act still prohibited teachers from expressing their political opinion, and approximately 220 teachers had been prosecuted since 2014 on account of the fact that they had criticized the Government’s mismanagement of the Sewol Ferry sinking. She expressed grave concern at the fact that it was legally impossible for the teachers’ trade union to protect or represent teachers when they were convicted or dismissed. The KTU, which represented approximately 60,000 teachers, including nine teachers who had been dismissed for their political activity, had been deprived of its legal status once again on 3 June 2015. Regarding discrimination against migrant workers, the Government had introduced, in addition to the restriction on job mobility under the EPS, another discriminatory system by revising in June 2014 the law that regulated the retirement benefit of migrant workers. Under that system, migrant workers could not receive that benefit while remaining in the country. The protections contained in the Labour Standards Act did not apply to workers engaged in the agricultural and livestock industry, many of whom were migrant workers. The measures taken by the Government to reduce the number of non-regular workers and to alleviate discrimination against them had not produced results. While the Government had ordered that 3,800 workers, who had previously been indirectly employed, be directly employed by their current employers, companies were not complying with such orders, but no action had been taken. The Government was taking no concrete action to eliminate discrimination based on employment status, but was also facilitating the increase in the proliferation of non-regular jobs. Finally, she called on the ILO to keep making efforts to help the Government bring the labour law and the institutions of the country into conformity with international labour standards for the purpose of protecting the rights of the workers.

The Employer member of the Republic of Korea said that under the EPS workers were supposed to work at the specific workplace at which they had signed a contract. Migrant workers were allowed to change workplace up to three times, but there was no limit in cases where the change was not attributable to the worker. Discrimination against migrant workers was prohibited in law and complaints regarding discrimination could be filed with the National Human Rights Commission. If persons were treated differently based on reasonable factors such as lack of skills or communication abilities, such distinctions did not constitute discrimination. There was legislation to prohibit discrimination based on gender and employment status, and persons who believed that they had been discriminated against could apply for corrective measures. An employment status disclosure system had been introduced in March 2014, which constituted too great a burden for businesses. Affirmative action policies were implemented in the country. Related measures had been continually strengthened to prevent breaks in the careers of women, including the extension of childcare leave. While women’s participation in the labour market was low compared to men, this was due to many factors, including culture, tradition and stereotyping against women. Civil servants and teachers in the country were asked to remain politically neutral, which meant that they were asked not to show their political preferences while engaged in their profession. Laws and systems had already been put in place to prevent discrimination, and the effectiveness of the measures needed to be monitored. Much progress had been made and efforts were ongoing, which should be acknowledged by the Committee of Experts.

Another Worker member of the Republic of Korea focused on discrimination based on employment status, since women and migrant workers constituted the majority of precarious workers. The most serious problem was the extension of the term “non-regular workers”. Under the current legislation, a worker, after working more than two years as a fixed-term worker, had to be considered by the employer as a non-fixed-term worker. Extending that to four years, a measure favouring employers, would increase the number of non-regular workers and further aggravate job insecurity. Turning to the problem of the increase in temporary agency workers, she emphasized that the Government’s attempt to expand the range of dispatched work for workers aged 55 or more and high-income professionals would result in four out of ten workers falling into the category of dispatched work and facing downward pressure on working conditions and wages. Furthermore, the information provided by the Government did not correspond to the reality and no tangible improvements had been made since the conclusions adopted by the Conference Committee in 2009 and 2013. As of August 2014, precarious workers accounted for nearly 50 per cent of the total workforce, with women workers representing an increasing share of 56 per cent, and the average monthly wage of women non-regular workers being only 36 per cent of that of male regular workers. In order for victims of discrimination to file a complaint against employers, the person who paid the wages and the person who committed discrimination needed to be the same. This was made difficult by the fact that employers were resorting to outsourcing or subcontracting to avoid direct employment. Additionally, a majority of non-regular workers did not have recourse to remedies out of fear of retaliation by employers, such as termination of employment. Strongly calling upon the Government to take the necessary steps to bring the relevant legislation into line with the Convention, she called for the principle of direct employment in consistent and continuous jobs be set out in the Labour Standards Act. Fixed-term work should be strictly confined to temporary vacancies resulting from exceptional circumstances. When illegal temporary agency work was found, the dispatched worker should be treated as a non-fixed term employee of the user–employer. Indirectly employed workers should be allowed to apply for discrimination remedies against their end-user companies, and all workers should be entitled to a social insurance scheme irrespective of their employment status. Labour market reforms would never be successful if the Government continued to promote anti-labour policies.

The Government member of the Philippines indicated that the experience of the EPS in the Republic of Korea was that it helped to regulate skilled Filipino workers in the Republic of Korea. She encouraged the Government to take steps to promote and strengthen equality and remove any obstacles. She was of the view that the measures taken by the Government would lead to concrete and positive results.

An observer representing Public Services International (PSI) explained that the Korean labour market consisted of protected workers and precarious workers. The latter were mostly women and earned roughly 40 per cent less than regular workers for the same or similar work. The situation of discrimination faced by precarious workers in the public sector, which the PSI had mentioned the previous year in the Committee, had only worsened due to the Government’s public sector policies emphasizing the creation of part-time and precarious jobs, deregulation, outsourcing, cost-cutting, including curtailing pensions and benefits, the maximization of efficiency, such as the introduction of performance-based pay, and the privatization of public services. These measures were in stark contrast with the promises made by President Park before her election to eliminate precarious work in the public sector by 2015. In this connection, she referred to the Sewol Ferry tragedy as an example of a consequence of the implementation of those policies. In this case, the Government had not conducted a fair investigation and had not taken the necessary measures. The same attitude could be observed in the Government’s response to the outbreak of the Middle East Respiratory Syndrome (MERS), which put precarious public workers at particular risk. Deaths in the public services were also rising due to suicides committed for reasons of stress and heavy workload. The Government, however, was continuing its anti-union policy, denying the detrimental impact of the lack of negotiation on working conditions. Emphasizing that trade unions in all public sectors must be recognized in order to solve the issues referred to above, she urged the Government to recognize the KGEU, normalize labour relations and reinstate all dismissed workers. She emphasized that in order to reduce the existing discrimination faced by precarious public workers in wages and working conditions, the Government needed to identify the number of workers in precarious employment, adopt the necessary legislation and allocate the required funding. Subcontracted workers performing permanent work must be directly employed in a gradual manner in accordance with an established plan. Finally, she called for an ILO direct contacts mission to promote the implementation of Conventions Nos 87, 98 and 111.

The Worker member of Nepal referred to the problems faced by migrant workers employed under the EPS. Migrant workers were asked to work long hours, more than ten hours a day and even 28 days a month, without being paid for the overtime worked. They were not paid for work performed on their weekly rest or holidays. Such a situation caused physical and mental problems, leading to suicide in many cases. He added that under the EPS, migrant workers could not change their jobs more than three times and each change would require permission from their previous employer. If such permission was not obtained, the worker would work for the same employer under conditions similar to forced labour. Even if permission was granted, the workers would be deported back to the country of origin if a new job was not found within three months. The Government was urged to remove the restriction on the number of job changes. He added that section 63 of the Labour Standards Act excluded from its scope the agricultural sector, in which many migrant were engaged. In this sector, the workers were forced to work long hours and faced ill-treatment from their employers, such as non-payment of wages. He was of the view that the fact that the Labour Standards Act did not apply to this sector meant that the Government was not willing to stop indirect discrimination against migrant workers. He therefore called for the repeal of section 63 of the Labour Standards Act. He also referred to the issue of discrimination against migrant workers with respect to the establishment of trade unions. The Government did not yet recognize the trade unions for migrant workers, depriving them of their right to collective bargaining, which was granted to Korean workers. He added that, while international law provided that employment contracts for foreign workers must be written in a language that could be understood by them, contracts for migrant workers were written only in Korean. Such a situation might allow employers to escape their responsibilities because migrant workers could not understand the contents of their contact. Korean workers would not face such a situation.

The Worker member of the United Kingdom, also speaking on behalf of Education International, indicated that the discrimination faced by Korean schoolteachers on the grounds of their political opinion and activities constituted a long-standing breach of the Convention. In its 2015 observation, the Committee of Experts had requested the Government to provide any justification concerning their prohibition from political activity. She was of the view that this wide-ranging ban was not justifiable and went beyond the scope of the exception provided for in the Convention. Despite this issue not being new, the Government had yet to provide any justification. The Committee of Experts was also seeing information from the Government on the impact of this discrimination. She indicated in this regard that nine teachers had recently been dismissed for their political opinions or activities and that, during the previous administration, around 60 teachers had been made redundant, some of whom might face criminal proceedings. A teacher who was dismissed could not remain a member of a trade union, effectively creating double penalties for teachers. The Constitutional Court had upheld the ban on political activities by teachers, and the Supreme Court had revoked the legal status of the KTU. The Government had thus chosen to compound its breach of the Convention. The KTU had the right to implement its own membership rules and its members had a right to join a body of their own choosing. By deregistering the KTU, over 60,000 members were being punished for their refusal to submit to the Government’s breach of the Convention. To put an end to this issue affecting not only teachers, but also other public servants in the Republic of Korea, urgent intervention was required.

The Worker member of Italy, focusing on discrimination against women, referred to the 2011 concluding observations of the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) concerning the Republic of Korea, which had raised concerns about the disadvantages faced by women in the employment sector, including the concentration of women in certain low-wage sectors, the lack of job security and benefits, particularly for non-regular workers, and the wage gap between men and women. Although the Government’s policy to promote part-time jobs and the “decent flexible work hours system” intended to boost the employment rate were welcome, without enough measures to guarantee equal pay and treatment of women non-regular workers, the policy was deepening the flexibilization of women’s labour at the expense of the less competitive women workers in the labour market. Women’s employment in the Republic of Korea was still lower than the average percentage for OECD countries and the share of women part-time workers had grown rapidly to 17.7 per cent of women workers in the country. In addition, the flexibilization policy had discriminatory effects, as employers preferred to employ women without spouses or children. As married women and mothers were deemed less competitive in the labour market, they were the most vulnerable to labour rights abuses, including sexual harassment. She expressed concern at the impoverishment trend affecting women part-time workers and questioned the enforcement of the Equal Employment Act that protected equal pay for equal work with respect to women part-time workers in non-regular employment and in small enterprises. The policy was not supported by effective measures and legal enforcement to combat discrimination against women workers, and failed to ensure protection and equal benefits, such as maternity leave, for non-regular part-time women workers. She considered that the Government’s promotion of part-time employment and the flexibilization of labour was creating more indecent jobs and discrimination against women workers.

The Government representative clarified that, with respect to the issue of migrant workers changing workplace, the exemption from the application of provisions on working hours, rest and weekly rest provided for in section 63 of the Labour Standards Act was applicable to all workers in the agriculture and livestock industry, not just migrant workers employed under the EPS. However, the Government was trying to improve the existing standard labour contract to specify working conditions for EPS workers. The Government had defined conditions under which an unlimited number of workplace changes could be authorized. The number of such conditions had been continuously increased with a view to alleviating limitations on EPS workers who wished to change their workplace. He expressed the view that it would not be appropriate to compare severance pay for Korean nationals directly with the departure guarantee insurance for EPS workers, since the purposes of the entitlements were different with respect to the issue of non-regular workers. The Government wished to stress that the policy goal was to reduce the number of non-regular workers by preventing employers from depending on non-regular workers to save labour costs, and to narrow the gap between regular workers and non-regular workers in terms of wages and working conditions by prohibiting unfair discrimination against non-regular workers. To this end, the Government was encouraging the conversion of non-regular workers with continuous and regular work into regular workers by providing financial support to small and medium-sized enterprises. Concerning the question of freedom of expression of schoolteachers, he indicated that the Convention did not contain a specific reference to the right to establish trade unions. He did not therefore wish to elaborate on the KGEU, the KTU or the MTU. He however emphasized that the measures taken by the Government with respect to these entities had been lawful and legitimate. He hoped that the ILO and the Committee of Experts would continue to facilitate the effective implementation of the Convention through the supervisory mechanisms. The Government fully recognized that everyone should be given equal opportunities and be treated equally with respect in their employment and occupation. The Government was firmly committed to the elimination of all forms of discrimination in this regard.

The Worker members indicated that this case concerned discrimination on the basis of migratory status, political opinion, gender and contract type. The Government should, as a matter of urgency, take a certain number of measures. It should permit migrant workers to change jobs without having to obtain authorization from their employer and provide those workers who were trying to change jobs with a list of employers. The Government should also: repeal section 63 of the Labour Standards Act and ensure that all labour rights applied to all workers, including migrant workers, in all economic sectors; ensure that the rights of migrant workers were enforced, including through workplace inspections; and extend the scope of the labour legislation to the agricultural sector. The Government should also allow all teachers to exercise their civil and political rights, reinstate teachers dismissed for exercising freedom of expression, allow dismissed and retired workers to join a union and take the necessary measures to register the KTU without delay and to facilitate the registration of the KGEU. Urgent measures should also be taken to eliminate discrimination against workers on fixed-term contracts, part-time workers and dispatched workers, especially given its particular impact on women workers. The Worker members called on the Government to ratify the four fundamental Conventions which the Republic of Korea had yet to ratify: the Forced Labour Convention, 1930 (No. 29), the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Abolition of Forced Labour Convention, 1957 (No. 105). The Worker members said that each of these issues had already been raised over the previous two years, and that the Government had not availed itself of the ILO technical assistance that had been suggested, nor had it accepted the direct contacts mission proposed. The Government had made no progress, and had even regressed in certain areas. As in 2014, the Worker members once again urged the Government to accept a direct contacts mission.

The Employer members acknowledged that, while there were instances of discrimination and that improvements could still be made in practice, there was no concrete evidence that the national laws were in breach of the Convention. Regarding the issue of migrant workers, the Employer members recommended the Committee of Experts to continue to request the Government to: review the impact of its regulations and ensure that there was appropriate flexibility for workers, taking into account the national context; monitor the new initiatives undertaken by the Government through data collection; and make appropriate adjustments through social dialogue. Concerning the issue of discrimination, more particularly non-regular workers, who mainly consisted of women workers, the Employer members emphasized that a functioning labour market required various types of employment, such as part-time or seasonal work, which could not be stigmatized as discriminatory. They considered that the regulations adopted by the Government to increase women’s participation in the workforce were too rigid and that they needed to be reviewed based on data collection. Equality in labour force participation should be evaluated taking into account the social context. Finally, referring to the issue of discrimination on the grounds of political opinion, the Employer members recommended that the Government provide the necessary information to the Committee of Experts to enable it to assess the situation. They generally agreed with the Committee of Experts that information should be collected through appropriate mechanisms involving the social partners.

Conclusions

The Committee took note of the oral and written information provided by the Government representative on the issues raised by the Committee of Experts and the discussion that ensued relating to: the effective protection of migrant workers, in particular with regard to workplace movements, the protection of non-regular workers, particularly women working part time and short term; the measures taken to promote equality of opportunity and treatment of women and men in employment, and possible discrimination, including dismissals, against elementary, primary and secondary schoolteachers on the basis of political opinion.

The Committee noted the information provided by the Government describing the range of services and training provided to migrant workers, the measures to remove limitations for migrant workers under the Employment Permit System to change workplace, and to improve their conditions of work. The Government also provided information on the application since September 2014, of the punitive monetary compensation system to address repeated and wilful discrimination against fixed-term, part-time and dispatched workers, and the support provided, as of 2015, to companies to convert non-regular workers into regular workers. The Government further highlighted measures to enhance the employability of women through comprehensive employment services and the introduction of childcare services to support part-time working parents. The Government provided statistical information: showing a marked increase in the employment rate of women, on the results achieved through affirmative action measures, and on the use of childcare leave and the reduced working hours system. The Government also provided recent statistics on the number of non-regular workers in the public sector who became workers with open-ended contracts in 2013 and 2014, and the inspections carried out in 2014 in workplaces employing migrant workers and a large number of fixed-term and dispatched workers, including violations recorded, correction orders issued in discrimination cases, and direct employment ordered.

The Committee noted that the Government has taken various measures to review, update and enact new legislation to address labour market inequalities, as well as to reduce challenges relating to discrimination. The Government is requested to continue to report to the Committee of Experts at its next session so that the Experts can analyse the situation. The Committee notes that long-standing concerns in relation to the application of the Convention still remain regarding migrant workers, gender-based discrimination and discrimination relating to freedom of expression, and need to be addressed.

Taking into account the discussion, the Committee urges the Government, in particular:

• concerning workplace flexibility for migrant workers, to review, in consultation with workers’ and employers’ organizations, the impact of the new regulations and, if necessary, make adjustments to programmes to ensure appropriate protection of the foreign worker labour force;
• to ensure that the rights of migrant workers are properly enforced regarding workplace changes and working hours, including through regular workplace inspections and the publication of annual reports;
• concerning the protection against discrimination based on the grounds of gender and employment status, in particular with respect to non-regular workers, including women working part time and short term, to review, in consultation with workers’ and employers’ organizations, the impact of reforms and continue to submit relevant data and information to enable the Committee of Experts to evaluate if the protection is adequate in practice;
• with respect to the promotion of equality of opportunity and treatment of men and women in employment, to continue to monitor the participation of women in the labour market and provide the Committee of Experts with relevant data and information before its next session; and
• concerning possible discrimination against teachers on the basis of political opinion, to provide more detailed information on this issue to allow the Committee of Experts to make a solid assessment of the compliance of the related laws and practice with the Convention.

The Committee invited the ILO to offer, and the Government of the Republic of Korea to accept, technical assistance to accomplish the recommendations.