Individual Case (CAS) - Discussion: 2015, Publication: 104th ILC session (2015)



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.

Individual Case (CAS) - Discussion: 2014, Publication: 103rd ILC session (2014)



The Government provided the following written information.

With regard to the protection of migrant workers, the Government of the Republic of Korea aims to set best practice in the management of labour migration. A transparent selection system is in place to help prevent workers under the Employment Permit System (“EPS workers”) from being taken advantage of. After entering the Republic of Korea, EPS workers are provided with detailed information on their rights under all relevant labour laws, including the Labour Standards Act, occupational safety education and detailed instructions on the means and procedures for filing a complaint when their rights have been infringed. The education costs are fully borne by their employers. Labour laws, including the Industrial Accident Compensation Act, the Minimum Wage Act and the Labour Standards Act, 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. After providing guidance and conducting inspections of 3,048 workplaces in 2013, the Government found a total of 5,662 cases of violations (in 1,992 businesses) 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 schemes and employment changes not being reported. Sixty-four job centres under the Ministry of Employment and Labour across the country deal with various employment-related matters 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. These provide various services free of charge, such as counselling services on labour law language and cultural awareness training, medical check-ups and shelters. Five more support centres will be established in 2014, to improve services for migrant workers and better protect their rights. Free interpretation services are also provided. In 2013, the Government, in cooperation with the embassies in the Republic of Korea of countries of origin, organized 11 cultural events for migrant workers. A national cultural event called the “Korean Cultural Festival with Migrant Workers” was also held. In 2013, 5,826 migrant workers completed fully funded 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 the workers on how to prepare for their return to their home countries. For instance, instructions are provided on how to collect unpaid wages and receive insurance benefits. In 2013, 68 information sessions were held and attended by 6,465 EPS workers. After the departure of EPS workers, the Government supports migrant workers to build returnee community networks in their home countries, provides job placement services for returnees and ensures that migrant workers who left the Republic of Korea without receiving the insurance compensation of the “departure guarantee insurance” or the return cost insurance, receive such insurance compensation. In 2013, 270 million Korean won (KRW) (approximately US$265,000) were paid for 249 cases under “departure guarantee insurance”, and KRW500 million (approximately $490,000) were paid for 1,208 cases under the return cost insurance. If the 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 equality of opportunity and treatment for women and men, the economic activity rate and employment rate of women in the Republic of Korea were on a continued rise (53.9 per cent of female activity rate and 52.2 per cent of women in employment in 2009 and 55.6 per cent of female activity rate and 53.9 per cent of women in employment in 2013). The percentage of women workers and managers has risen steadily in workplaces which are subject to the Government’s affirmative action scheme, with 36 per cent of women workers and 17 per cent of women managers in 2013. The proportion of women workers in the public sector has also increased, with 42.7 per cent of women public officials and 27.7 per cent of women appointed in central agencies in 2013. Moreover, the use of paid maternity leave (up to 90 days) and childcare leave available to those with a child under the age of 6 has increased. In this respect 90,507 women took maternity leave in 2013 and 69,616 workers took childcare leave in 2013.

Respecting the supervisory activities of labour inspectors concerning discrimination against non-regular workers, in 2013, the Government inspected a total of 1,112 workplaces which employ a large number of non-regular workers, such as fixed-term, dispatched and in-house subcontracted workers: 991 were found to have committed 4,468 violations of labour laws, 54 cases were sent to the prosecutor’s office; fines were imposed in nine cases; and administrative action was taken in 123 cases. Most cases involved violations of the Labour Standards Act or the Minimum Wage Act, and other cases included 589 violations of the Act on the Protection of Dispatched Workers and there were 213 violations of the Act on the Protection of Fixed-term and Part time Employees.

In addition, before the Committee, a Government representative said that the Government had been making every effort to respect, promote and implement the principles and rights enshrined in the Convention and highlighted the Korean Government’s legal amendments and policy measures to eliminate discrimination in employment and occupation. The Act on the Protection of Fixed-Term and Part-Time Employees and the Act on the Protection of Dispatched Workers had been revised in March 2013 and March 2014 to ensure that the working conditions and fringe benefits of fixed-term and part-time workers were guaranteed against discrimination and to establish a punitive monetary compensation system to address repeated or wilful discrimination. 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 used as the criterion to impose affirmative action obligations had been raised from 60 per cent of the average number of women workers for the same industry to 70 per cent. Under the revised Act on Equal Employment and Support for Work-Family Reconciliation in January 2014, a list of employers failing to comply with affirmative action obligations would be made public beginning in 2015. In February 2014, the Government had announced a plan to help working women, who were married or had children, maintain their careers. Under the plan, it had become possible for people entitled to childcare leave to ask instead for a reduction of their working hours. Moreover, the Act on the Employment of Foreign Workers had been amended in 2013 to require “departure guarantee insurance” benefits to be paid to foreign workers within 14 days after the date of departure. With regard to equality of opportunity and treatment between men and women, the Government supported the vocational skills development of women through a vocational voucher system to enhance women’s employability, and to help them return to work. Furthermore, the Government had announced Support Measures for Working Women’s Career Continuation at Every Stage of Life on 4 February 2014, aiming to reduce the childcare burden of women, increase men’s participation in childcare, and create a working environment that engendered a healthy work–family balance. The Government, all public institutions and businesses with 500 employees or more, were taking affirmative action to tackle discrimination against women. Since an affirmative action programme had been introduced in 2006, the employment rate of women had increased from 30.8 per cent in 2006 to 36 per cent in 2013, and the percentage of women managers had increased from 10.2 per cent in 2006 to 17 per cent in 2013.

The Government representative indicated that, since the adoption of the Measures for Non-regular Workers in the Public Sector in November 2011, 22,069 non-regular workers engaged in permanent and continuous work in the public sector had become workers with open-ended contracts by 2012, increasing to 31,782 in 2013. The Government had revised the Act on the Protection of Dispatched Workers in August 2012 to require employers to directly and immediately hire illegally dispatched workers identified by the labour inspection. As a result, 2,489 people in 2012 and 3,800 people in 2013 had been directly hired in accordance with government orders. The Government had also made it mandatory for companies with more than 300 employees to announce their current status of employment types starting from 2014 to encourage companies to convert non-regular workers into regular status. The Government planned to introduce the Guideline for Non-regular Workers’ Employment Security and Conversion into Regular Status in 2014. With regard to migrant workers, EPS workers were allowed to change workplaces if certain criteria provided for in the law were met. Every year, the Government inspected approximately 5,000 workplaces which employed migrant workers, issued corrective orders and imposed sanctions against violations of labour laws to protect the rights of migrant workers. With regard to discrimination based on political opinion, he recalled that in 2012 the Constitutional Court had ruled that the prohibition and restrictions on political activities of public officials, including school teachers, was constitutional. In conclusion, the policy measures of the Government were designed to eliminate discrimination in a way that was most appropriate within the framework of the national context and practices of the Republic of Korea, in accordance with Article 3 of the Convention. He added that the Government would continue to move forward in consultation with various sectors, including the tripartite constituents, for sustainable growth and social development.

The Employer members recalled that this case was being examined for the third time since 2009. In 2013, the Committee had concluded that the Republic of Korea should take steps in three areas to prevent or bring discriminatory practices to an end with respect to migrant workers, women, and primary and secondary school teachers. With respect to the EPS, migrant workers were allowed to change jobs when they were subject to unfair treatment. Foreign workers could file a complaint with the National Human Rights Commission (NHRC) and submit the outcome of the decision to their respective job centre, which could authorize the migrant worker concerned to change employment or carry out an enquiry into the grounds of discrimination. Only six cases had been brought before the NCRC, and five had been dismissed. As stated by the Employer members in 2013, these figures confirmed the difficulties of migrant workers to assert their rights for reasons linked to linguistic and cultural differences. They encouraged the Government to continue its efforts to ensure that migrant workers had access to the information and assistance needed to handle impartially discrimination cases that were based on nationality, religion, gender or disability, as provided for under the legislation. Furthermore, they were of the opinion that the arrangements in place worked well because the Government had provided specific data on the number of workplaces inspected, the number of violations and the steps taken to make migrant workers aware of the applicable legislation and procedures of redress for both foreign and national workers.

With regard to discrimination against women, an increasing number of enterprises were changing the status of irregular workers to regular workers, and labour inspections had been carried out on a regular basis since 2012. The Government had therefore taken a number of measures to curb irregular employment. The fact that these measures mostly affected women, who accounted for a large share of irregular employment, did not mean that they could systematically be qualified as discrimination. However, as requested by the Committee of Experts, more specific information on this matter would be relevant to be able to assess the impact of the measures taken on women’s employment. With regard to equality of opportunity and treatment, the Employer members noted that a number of positive action mechanisms were operating in the Republic of Korea, such as the obligation for enterprises employing more than 500 workers to publish information on the number of women employed and women managers. The system of honorary equal employment inspectors also operated. Although additional measures could be taken, the current ones were developing in the right direction with a view to increasing the activity rate of women and putting a stop to all forms of discrimination towards them. They encouraged the Government to continue with this course of action. Referring to a ruling by the Supreme Court on the participation of teachers in political activity (2012), the Employer members felt that the political neutrality of teachers in primary and secondary schools was justified when this principle applied in the education sector. When the principle of political neutrality was applied outside this sector, it should be justified on the basis of specific criteria and objectives linked to the requirements of a particular job, because it was likely to constitute discrimination based on political opinion. In 2013, the Employer members had asked the Government to provide information on the matter. They therefore called on the Government to ensure that the principle of neutrality was thus defined and that the requirement of teachers’ political neutrality was justified on the basis of specific and objective criteria in accordance with Article 1(2) of the Convention. They also asked the Government to take the necessary steps to protect teachers against discrimination based on political opinion.

The Worker members deeply regretted that serious violations of the Convention had continued in the Republic of Korea. They protested against the arrest of the General Secretary of the Korean Confederation of Trade Unions (KCTU) following his participation in a march calling on the Government to take responsibility for the recent ferry disaster. His arrest undermined the ability of the KCTU to carry out its important work as a national centre and to participate fully in the work of the ILO. The Government had been urged in 2013 to avail itself of ILO technical assistance, which it had not done, in order to bring its laws and practice into line with the Convention. Migrant work was regulated under the EPS. Concerns had been expressed about the system and steps should be taken to address them. Referring to the comments of the previous the year, the Government was once again urged to take steps, in collaboration with employers’ and workers’ organizations, to protect migrant workers from discrimination. The EPS legislation did not expressly prohibit changes of workplace; however various restrictions made the process difficult in practice. Migrant workers were only allowed to change their job a total of three times in a three-year period. In addition, their employer had to agree to the change by signing a release document and, where permission was not granted, migrant workers who left their jobs lost their regular migration status. The job centre had the authority to deal with cases without release papers. In such instances, however, the burden of proving discrimination fell entirely on the migrant worker. Although a Ministry of Labour directive covered such cases, the Committee of Experts had noted that it was still not entirely clear how jobcentres “objectively recognized” a victim of discrimination. Korean labour law imposed a ban on political expression by civil servants and certain teachers, which had been denounced by the ILO on several occasions. They once again 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. The Korean Constitutional Court had ruled in March 2014 against the Korean Government Employees Union (KGEU) and the Korean Teachers and Education Workers’ Union (KTU), two public sector unions that had filed a complaint to strike down the ban on political expression. In November 2013, the Government had used the excuse of an alleged lack of political neutrality to obtain warrants to search and seize the servers of the KGEU and KTU. The prosecutor’s office had conducted a second search on another server and had inspected personal telephone records. A third search had been conducted on another seven servers, which was not included in the warrant. It was clear that the seizure had had no other purpose than to harass and intimidate KGEU leaders and members. The KTU had been deregistered because the union allowed dismissed and retired workers to be members, even though the ILO had repeatedly reaffirmed that such workers were entitled to be union members. A final decision on this case was expected in June 2014. The KGEU had never been registered for the same reason.

Over a third of the workforce was in some form of precarious work. This had created a two-tier labour market with little mobility between the two tiers. Precarious workers earned roughly 40 per cent less than regular workers doing the same or similar work. Women workers were disproportionately affected. The seriousness of the problem had been noted by the international community, including the International Monetary Fund (IMF). Women’s participation in the labour force was the lowest in the Organisation for Economic Co-operation and Development (OECD), at about 60 per cent, which was 23 per cent below Korean men. The gender earnings gap was also the highest in the OECD. Indeed, the Committee of Experts had observed many times that the concentration of women in precarious forms of employment violated the country’s obligations under the Convention. The Worker members urged the Government to take the necessary measures to protect fixed-term, part-time and dispatched workers against discrimination, and particularly women, and to provide information on the impact on precarious employment of the measures adopted in 2011, including the measures to convert non-regular employment into regular employment and measures for the protection of subcontracted workers. The trade unions had yet to see any progress on the regularization of workers engaged under precarious work conditions.

The Employer member of the Republic of Korea explained that, under the EPS, foreign workers were allowed to change workplace up to three times during their stay in the Republic of Korea (and two more times in the case of re-employment). However, there was no limit to workplace changes when they were not due to the behaviour of the migrant worker. For example, in the case of the closure or suspension of a business, or of unfair treatment. Findings had shown that the number of foreign workers applying for a change of workplace had been increasing, often for the purpose of obtaining a wage increase. Under the circumstances, if foreign workers were to be fully allowed to change workplaces, they would be tempted to do so even for a minor difference in wage levels. The frequent movement of migrants would make it difficult for employers to manage their workforce and increase their financial burden. Regarding discrimination based on sex and employment status, the relevant laws had been amended to prohibit discrimination and workers could request corrective measures. Employers in the Republic of Korea were concerned about increased labour market regulation. In this regard, she drew attention to the rule that, if a fixed-term or part-time worker had been working for longer than two years at one workplace, the workers’ employment contract had to be converted and the worker was considered to be directly employed. Increased labour market regulation had made the labour market more rigid, which had led employers to hire more non-regular workers to adapt to the changing business environment. Regarding equality of opportunity between men and women, she agreed that women’s economic participation rate was low. In order to increase their participation, it was necessary to take into account a large spectrum of different types of employment. By doing so, work–life balance could be achieved. It should also be taken into account that some women had voluntarily opted to become non-regular workers for reasons of maintaining a work–life balance. In general, women’s wages were lower than men’s, but that was a result of many factors, rather than just discrimination. For example, many women preferred to work part time because of childcare responsibilities, and in this case their working hours and work experience would be less than that of men. Moreover, the law already required certain companies to apply affirmative action and the Republic of Korea was the only country in Asia which required companies to do so. The level of regulation was also higher than that of other advanced nations. Lastly, regarding discrimination on the basis of political opinion, she reiterated that in the Republic of Korea civil servants and teachers were asked to remain politically neutral. This, however, did not mean that they had to give up political freedom. Rather they were requested not to show their political views when performing their profession.

A Worker member of the Republic of Korea indicated that, despite the conclusions adopted by this Committee in 2009 and 2013, no tangible improvements could be noted. Precarious workers, the majority of whom were women, accounted for 50 per cent of the total workforce and 78 per cent of the workforce in those workplaces with fewer than five employees. Women non-regular workers earned 35.5 per cent of men’s wages. While 84 to 99 per cent of regular workers were covered by social security, only 33 to 39 per cent of non-regular workers were covered by such schemes. Similar situations existed with respect to severance pay, bonuses and overtime pay. This important wage gap between regular and non-regular workers was the consequence of serious flaws in the existing legislation. It was also extremely difficult for precarious workers to seek redress as they feared retaliation by employers. Employers generally terminated employment contracts before the completion of a statutory period that would allow fixed-term workers to be considered as regular workers. Furthermore, workers in various special employment arrangements were not covered by the legislation, and were thus denied appropriate working conditions and social protection. The Government should take all necessary steps to bring the relevant law and practice into line with the Convention, in particular with respect to effective access of these workers to remedies. The Labour Standards Act should provide for direct employment by the user company and all workers should be covered by industrial accidents insurance and provided with equal training opportunities. In this regard, it should be noted that in the recent ferry disaster, which had claimed 300 lives, more than two-thirds of the crew members were contract workers.

Another Worker member of the Republic of Korea expressed deep regret at the lack of improvement in the implementation of the Convention. Indeed, the situation had been exacerbated. The EPS still did not provide migrant workers with adequate flexibility to change employer. In addition, on 29 July 2014, the amended provision regarding severance pay of the Act on Foreign Workers’ Employment would enter into effect. After this, migrant workers would only be paid severance pay “within 14 days after the departure date”, whereas up to now they had received the payment within three days of leaving their job, regardless of whether they left the country. Turning to the situation of non-regular workers, she indicated that discrimination and exploitation of indirectly employed workers had become an issue of national importance when a subcontracted worker had committed self-immolation in October 2013. Companies, especially major conglomerates, were increasingly turning to this type of employment in order to circumvent labour regulations, and this practice was increasing the number of precarious workers. Workers in indirect employment were discriminated against despite the fact that they were doing the same work as regular workers. This year, the Government had strengthened the penalties and introduced punitive damages against employers who discriminated against precarious workers. While the Government considered this to be an improvement, in reality penalties and punitive damages were imposed only in cases in which the Labour Relations Commission found discrimination following a complaint by an individual worker. Since trade unions were still not allowed to represent individual precarious workers, those workers had no access to effective remedies. She also drew attention to the very high number of fatal industrial accidents incurred by indirectly employed or subcontracted workers, and regretted the death of eight subcontracting workers during work in the past two months. Under the Occupational Safety and Health Act, subcontracted workers were not equally protected against industrial accidents, even when doing the same job at the same workplace. In practice, subcontracted workers did not have safety equipment and could not participate on an equal footing with other workers in the council or investigation body on occupational safety and health. In order to end the increase in the death toll of precarious and especially subcontracted workers, all workers should be protected under the same system without discrimination. The Committee’s conclusions the previous year had not been implemented and the Government was in violation of many other ILO standards, which had required an urgent ILO intervention four times within a year. A direct contacts mission was therefore inevitable to end this indifference towards international labour standards.

An observer representing Education International addressed two issues affecting teachers and the KTU. The first concerned the fact that teachers did not enjoy civil and political rights, unlike lecturers in higher education and other citizens. In that regard, the Committee of Experts had urged the Government to take immediate measures to ensure that elementary, primary and secondary school teachers were protected against discrimination based on political opinion, as provided for in the Convention. In March 2014, the Constitutional Court had issued a contrasting verdict on the status of the KTU, in which a narrow majority of the judges (five out of nine) had decided that the discrimination was reasonable owing to the different nature of the work, thus ruling against the recommendations made by the Committee in 2013 that the Government should bring its legislation into conformity with the Convention. The second issue concerned the fact that retired and dismissed teachers were not entitled to join a trade union. That situation had led the authorities to annul the legal status of the teachers’ unions. The law provided that only employed teachers could join a union and the Committee on Freedom of Association had repeatedly urged the Government to repeal the provisions prohibiting dismissed and unemployed workers from keeping their union membership. Until now the KTU, of which nine members had been dismissed, had reformed its legal status, but on 19 June 2014 the decision on the legal status of the union would be issued. Regarding the KGEU, the decision of the Supreme Court to support the Government’s refusal to register the union was a matter of concern. In March 2014, the Committee on Freedom of Association had urged the Government to take necessary measures to ensure the certification of the KTU without delay and to facilitate the registration of the KGEU. Education International was especially concerned about the avalanche of judicial decisions that undermined respect for ILO Conventions and narrowed the scope of union activities in the Republic of Korea. The Government should once again be asked to respect international labour standards by giving all teachers civil and political rights.

An observer representing Public Services International (PSI) raised the issue of deeply entrenched discrimination against precarious workers in the public sector, where a 70 per cent employment rate was envisaged through deregulation, cost cutting and efficiency maximization. These measures were part of a plan to expand part-time jobs, targeted at 3 per cent of newly hired civil servants in 2014. These lower paid, lower status jobs predominantly targeted women workers. This policy deepened discrimination between men and women, and had a negative impact on the quality of public services. Since the election of the new President of the Republic, short-term contracts for directly employed public sector workers had been converted into permanent contracts after the completion of two years of continuous employment. This measure however only targeted one third of the total of one million precarious workers in the public sector, and did not eliminate wage discrimination against these workers or enhance their job security. The measure had also resulted in an artificial reduction of the duration of short-term contracts with the aim of avoiding completion of two years’ of continuous employment. She referred to the Sewol ferry tragedy of 16 April 2014, which had its origins in deregulation, outsourcing and privatization policies, and the expanded use of precarious workers. To genuinely address discrimination against precarious workers, she called on the Government to develop a plan for the gradual direct employment of subcontracted workers with permanent jobs. She called for an ILO direct contacts mission to achieve real progress, based on the application of the relevant ILO Conventions, which had become more relevant given the export of the Korean model of precarious work to other countries by large Korean companies.

The Worker member of Nepal said that under the EPS, introduced in 2004, an employer had complete control over migrant workers. Migrant workers could not change employers, and this restriction increased the risk of exploitation and abuse in the workplace. The Government had also suppressed the trade union rights of migrant workers, and since 2005, most leaders of migrant trade unions had been deported. Following an intervention of the courts, the migrant workers’ trade union had been registered, but the attitude by the Government remained suppressive. Despite having passed a Korean language test in order to enter the labour market, migrant workers were not treated as qualified workers. These workers faced discrimination in overtime and were forced to work long hours and to engage in unpaid work. The forthcoming legislation regarding severance pay would also result in discrimination against migrant workers. In addition, the exclusion of the agricultural sector, where most migrant workers were engaged through the EPS, contributed to discrimination against these workers. The recent publication by the EPS office of a list of migrant workers in an irregular situation constituted a violation of workers’ privacy. The EPS needed to be improved so that migrant workers were treated equally in terms of wages, social security, severance pay, working hours and union activity. The labour law should be enforced equally in workplaces where migrant workers were engaged and their trade union rights should be respected.

The Government representative said that, although the labour legislation applied equally in principle to Korean workers and migrant workers covered under the EPS, it nonetheless allowed for a certain flexibility given the varying characteristics of these workers. Both the 1958 Report prepared with the view to the adoption of Convention No. 111 and the 1996 Special Survey on equality in employment and occupation noted that the concept of national extraction in the Convention did not refer to the distinctions that might be made between the citizens of a given country and persons of another nationality. Furthermore, the direct comparison between the severance pay of Korean nationals and the departure guarantee insurance provided for under the EPS was not appropriate. Although the departure guarantee insurance constituted a way of ensuring severance pay for foreign workers, it also set out to prevent any delays in payment and to secure a livelihood for these workers once they had left the country. The burden of proof did not lie solely with the workers. If a worker under the EPS submitted evidence, the local job centre made a judgement primarily on the basis of that evidence. However, in the event of no or insufficient evidence, the job centre itself tried to gather together the facts to deal with the case. In addition, the Government was implementing various measures to facilitate the entry of non-regular workers into regular employment. In this respect, enterprises with over 300 employees were now bound to provide statistics on the various work contracts applicable to their staff. This year, the Government was planning to establish guidelines to help non-regular workers enter regular employment and to encourage those workers to accept the guidelines voluntarily. It also intended establishing its role as a model employer. As stated in the 1996 Special Survey of the Committee of Experts, the Convention did not contain any specific provision concerning the right to establish trade unions, thereby avoiding any overlap with Convention No. 87. There was therefore no need to go into detail on the issues related to the so-called KGEU and the KTU. It should nonetheless be noted that the measures taken by the Government with respect to the KGEU and the KTU were both lawful and legitimate. In conclusion, he hoped that the Committee of Experts would continue to support the effective implementation of the Convention within the specific scope of the instrument and recalled the Government’s firm commitment to eliminate all forms of discrimination in employment.

The Employer members considered that problems remained in the application of the Convention, even though it should be recognized that steps had been taken by the Government with regard to discrimination likely to affect migrant workers, workers in precarious employment, women and also public sector teachers. Before any proposal was made to send a direct contacts mission, the Government needed to step up its efforts and its cooperation with the ILO to take account of the observations of the Committee of Experts concerning the various situations that might generate discrimination, including discrimination concerning access to legal remedies for migrant workers and discrimination on the basis of political opinion affecting teachers in the public education system.

The Worker members recalled that the Government and Employer members had provided information on the measures taken to address discrimination in the country, while several Worker members had indicated that important steps still needed to be taken. Migrant workers still faced discrimination in the country, and many public sector workers were prohibited from expressing their political opinion, in violation of the Convention. The Government was not relieved of its obligations under the Convention, even if the decision by the Constitutional Court was inconsistent with the Convention. Even with the amendments made to the legislation on dispatch workers and fixed-term workers, a large portion of the Korean workforce continued to be trapped in low-paid insecure jobs. They urged the Government to respect the civil and political rights of all teachers, to reinstate teachers dismissed for exercising freedom of speech and to allow dismissed and retired workers to be members of a union. They also urged the Government to take the necessary measures to ensure the re-registration of the KTU and to facilitate the registration of the KGEU. Moreover, they called on the Government to ensure that migrant workers were able, in practice, to change workplaces when subject to violations of the anti-discrimination legislation, that the legislation protecting migrant workers from discrimination was fully implemented and enforced and that migrant workers had access, in practice, to speedy complaints procedures and effective dispute resolution mechanisms. They also urged the Government to extend the scope of the labour law to the agricultural sector, where the majority of migrant workers employed under the EPS were working. They also urged the Government to take immediate measures to regularize the employment of non-regular workers, so as to eliminate employment discrimination against fixed-term, part-time, subcontracted and dispatched workers. This discrimination had a serious and lasting impact on workers’ wages, employment security and social protection, particularly for women workers. Lastly, they urged the Government to accept a direct contacts mission to ensure that the observations and conclusions of the supervisory system, which had been reiterated on repeated occasions, were adequately addressed, and that the offer of technical assistance was re-extended, if necessary.

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

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.

Individual Case (CAS) - Discussion: 2009, Publication: 98th ILC session (2009)

The Government communicated the following written information:

Migrant workers management system in the Republic of Korea

Development of the labour migration policy in the Republic of Korea

From a country sending its workers abroad in the 1960s and the 1970s, the Republic of Korea turned into a receiving country in the 1990s. Based on its unique experience as both a sending and receiving country, the Government had been developing labour migration policy taking into consideration not only the national economic needs of introducing foreign workers but also due protection of foreign workers’ rights.

In 1993, the Industrial Trainee System (ITS) was established to address labour shortages faced especially by small and medium-sized enterprises. After ten years of its operation of the ITS, the Government introduced the Employment Permit System (EPS) in 2004 through the “Act on the Employment of Foreign Workers”. The EPS was designed to address the shortcomings of the ITS, such as irregularities in the sending and receiving process and disruption of domestic labour markets, thereby improving the management system of migrant workers. Since 2004, the EPS had become the only channel through which low-skilled migrant workers were granted permission to work in the Republic of Korea. The merits of EPS, compared with ITS, could be summarized as follows:

– Under the EPS system, transparency in the sending and receiving process was ensured and irregularities were reduced as the sending and receiving process was conducted only by public organizations as stated in the Memorandum of Understanding (MOU) signed between the two governments.

– Labour laws, including the Industrial Compensation Insurance Act, the Minimum Wage Act, and the Labour Standard Act, were equally applied to ant workers and Korean nationals to protect migrant workers’ rights.

– Labour quota for foreign workers was determined each year based on the labour supply and demand to receive appropriate number of foreign workers for SMEs facing labour shortages while protecting employment opportunities for Korean nationals.

As of 2009, the Korean Government had signed the MOU with 15 countries and a total of 191,592 workers entered the Republic of Korea from 14 countries from 2004 to March 2009.

After only three years since the introduction of the EPS, a remarkable progress had been made especially with regard to the reduction of the number of workers absent without leave, cases of overdue wages and amount of average sending cost.

Results of survey on the implementation of the EPS in its third year (2007)

Workers absent without leave (%) / Workers experenced overdue wage (%) / Average sending cost (US$)

ITS / 50.5 / 36.8 / 3 509

EPS / 3.3 / 9.0 / 1 097

Change of workplace and other rights of migrant workers

Under the EPS, migrant workers were required to work at the workplace where they were placed initially. However, in case it was deemed impossible for migrant workers to maintain employment relations at the workplace where they were assigned, they were allowed to change workplaces for up to 3–4 times. The legitimate reasons for changing workplace were as follows:

– In case of cancellation of the labour contract by the employer or legitimate refusal to renew the contract on expiry.

– In case migrant workers could no longer work at the workplace due to reasons not attributable to them, such as suspension of business or workplace shut down.

– In case of cancellation of employment permit to hire foreign workers or imposition of an employment limit on the employer.

– In case the worker was injured, and was not able to continue working in the initial workplace.

In addition to the abovementioned cases, a revised bill was drawn up and submitted to the National Assembly in November 2008 to include other cases in which the workers were allowed to change workplaces. These included cases where working conditions differed from the terms provided in the labour contract and where employers treated workers unfairly including through the violation of the labour contract. In order to change workplaces, workers only needed to submit an application for changing workplace to a local jobcentre where cases were reviewed and approved. As of March 2009, 130,000 cases of workplace changes had been reported, illustrating that in practice, workers were allowed to change workplaces as long as they had legitimate reasons.

Labour inspection and monitoring for migrant workers’ rights were conducted mainly on small-sized businesses and counselling service was provided to address difficulties faced by migrant workers in a way to strengthen protection of human rights of migrant workers.

Mandatory insurances – return cost insurance for return flight ticket, casualty insurance for accident and death unrelated to work, guarantee insurance for overdue wage, and departure guarantee insurance for severance pay – were other measures to protect workers and support their stay and return process.

Some five migrant worker support centres were currently in operation to provide: counselling services in workers’ native languages; Korean language courses; computer skills programmes, etc. The Government was planning to set up more centres and diversify the services.

Equality of opportunity and treatment of women and men

Eliminating gender discrimination in employment

In order to guarantee equal opportunity and treatment between men and women in employment, the Government enacted “the Act on Equal Employment and Support for Work-Family Reconciliation.” The Act prohibited discrimination in recruitment and hiring, wages and other welfare benefits, education, assignment, dismissal, etc. It also prohibited sexual harassment, imposed a fine for any violation and obliged employers to provide preventive education. In addition, the Affirmative Action Scheme had been implemented in government subsidiaries, government-invested institutions, and private companies of a certain size or larger, since 2006, in order to proactively increase female participation in the workplace. Under this scheme, the organizations were required to submit and carry out an affirmative action plan and to increase the proportion of their female workers and managers in case the current figures were less than 60 per cent of the average numbers in the companies of a similar size, which were in the same or similar industry.

Since the introduction of the Affirmative Action Scheme, the proportion of female workers and managers was gradually increasing in those workplaces.

Female employment at workplaces subject to the Affirmative Action Scheme

Year / Female employment rate (%) / Female managers (%) / Remarks

2006 / 30.7 / 10.2 / 1 000 employees or more

2007 / 32.3 / 11.0 / 1 000 employees or more

2008 / 32.4 / 12.0 / 500 employees or more

----/ 35.0 / 13.2 / 1 000 employees or more

In order to monitor the improvements, the Government had announced the employment equality index by gender every year since 2006. The index had been on the rise from 55.7 per cent in 2006, to 57.1 per cent in 2008. The employment equality index by gender showed relative employment status of female or male wageworkers. It consisted of four sub-indices – labour participation index, labour compensation index, labour status index, and job security index – and a composite index that was a weighted average of the four sub-indices.

The Government also provided standardized interview guidelines to be referred to in the recruitment procedure and distributed self-inspection checklists, etc. to firmly establish the principle of equal pay for work of equal value. It was also strengthening guidance and inspections for workplaces to ensure that any unlawful acts with regard to maternity protection, gender discrimination and equal pay for work of equal value were not committed under the pretext of the economic recession, etc. In addition, the Government referred to measures protecting maternity, paternity and supporting reconciliation of work and family life.

Promoting female employment and supporting skills development

In order to promote female employment, the Government had established a work net and employment service centres for women. It also subsidized setting up facilities favourable for female employment and consulting services aimed at expanding female employment. Meanwhile, the Government had designated private employment service agencies as “return-to-work centres for women” and through such centres, offered comprehensive employment services including job counselling, vocational training and job placement services. The Government had designated and operated 72 such centres in 2009 and by 2012 the number of centres would increase by 100. The Government also promoted participation of unemployed women in vocational training, and provided specialized training for vulnerable groups, such as career-break women and unemployed female household heads. Besides, it used the Individual Training Accounts to expand the participation of unemployed women in vocational training.

With a view to increasing jobs for women, the Government was fostering social enterprises engaged in patient-care and child-care services, which were favourable for female employment (218 in 2008, 400 in 2009). In 2009, 1.5 trillion won of its budget would be injected, with a target of creating 161,000 social service jobs suitable for women, such as patient caring, post-partum care of mothers and their newborn babies, and baby-sitting, etc.

Additional grounds of discrimination

Age

With the aim of banning age discrimination, the “Aged Employment Promotion Act” was amended into “the Act on Age Discrimination Prohibition in Employment and Aged Employment Promotion” in March 2008. The Act prohibited age discrimination in every aspect of employment including recruitment, hiring, wages, welfare benefits, education, training, assignment, transfer, promotion, retirement and dismissal. It also stipulated a procedure by which any victim of such discrimination could file for a remedy with the Human Rights Commission, and penal provisions such as imposing a fine for a violation. Meanwhile, the Government provided subsidies for companies that extended retirement age limits, adopted a wage peak system, employed large numbers of aged workers, etc. In 2008, a total of 273,945 people received 48 billion won in these subsidies.

Disability

In order to promote employment of the disabled, the Government enacted “the Act on Employment Promotion and Vocational Rehabilitation for Disabled Persons” in 1990. Under the Act, the State and local governments were mandatorily required to hire three per cent or more of their employees from the disabled, and to regularly submit related employment plans. Private companies with 50 full-time workers or more, too, were mandatorily required to hire at least two per cent of their employees from the disabled. An employer who failed to meet the mandatory employment quota was imposed corresponding levies. The number and percentage of disabled workers employed by companies subject to mandatory employment requirement were 10,461 persons in 1991 (0.43 per cent) and 89,546 in 2007 (1.54 per cent).

A legal framework for prohibiting any discrimination against the disabled was set up through the enactment of “the Anti-Discrimination and Remedy for Persons with Disability Act” in 2008. It prohibited discrimination against the disabled in hiring, promotion, dismissal, etc. and compulsorily required employers to provide technical aids and equipment for workers with disabilities. In case of a violation, a remedy could be sought through the National Human Rights Commission, etc.

Employment status

In December 2006, to balance worker protection and labour market flexibility, the Government enacted “the Act on Protection, etc., of Fixed-term and Part-time Employees.” The Act came after intensive debates and fact-finding surveys organized mainly by the Tripartite Commission and further discussion in the National Assembly for another two years. The Act stipulated the ban on undue discrimination against fixed-term and part-time workers and provided an effective remedial procedure to redress such discrimination. In particular, the Government introduced a system that allowed workers, subject to discrimination, to directly request a redress to the Labour Relations Commissions. An opinion survey found that this system had the effect of preventing discrimination in advance as it prompted companies to voluntarily improve employment conditions. However, the system was still in its early stages and partially applied. Once decisions and rulings by the Labour Relations Commissions and the courts were accumulated to provide standardized criteria for judgement, the system was expected to play an important role in improving employment conditions for workers in diverse employment status. In order to prevent abuses and to enhance the effectiveness of the remedial procedure, the Act obliged the employers to state the terms of employment contracts in writing and to make efforts to preferentially employ fixed-term and part-time workers already working in the workplace concerned when hiring regular workers.

In addition, before the Committee, a Government representative stated that since ratifying Convention No. 111 in 1998, the Government had been striving to implement the latter while bearing in mind the principles of equality of opportunity and the elimination of discrimination in employment and occupation, as enshrined in the Declaration of Philadelphia and the Universal Declaration of Human Rights.

With respect to migrant workers, the Government had enacted the “Act on the Employment of Foreign Workers” in August 2003, which introduced the Employment Permit System (EPS). The EPS was introduced to provide a legal framework for the employment of migrant workers and their effective management at the government level. The EPS had two distinctive features: firstly, it ensured transparency in the receiving and sending procedures. Based on the Memorandum of Understanding (MOU) concluded between the Ministry of Labour of the Republic of Korea and the relevant ministry of the sending country, the receiving and sending process was carried out on a government-to-government basis, thereby blocking the involvement of private recruiting agencies, which often engaged in irregularities. Secondly, under the EPS any unreasonable discrimination against migrant workers was prohibited: the labour laws, including the Industrial Accident Compensation Insurance Act, the Minimum Wage Act, and the Labour Standards Act were equally applied to migrant workers and Korean nationals. At present, the Government had signed MOUs with 15 countries.

She added that under the EPS, foreign workers were in principle permitted to change workplaces up to three times, and four times at most during their three years of stay. As the EPS was designed to grant employment permits to the employer, workers who entered the Republic of Korea under it were, in principle, required to work for the employer with whom they initially signed employment contracts. She recalled that one conclusion of the 40th session of the ILC stated that it seemed necessary to make exceptions to allow for the continuation of restrictions on the access of non-nationals to employment. Another conclusion stated that the foreign worker was restricted to a particular post or sector of employment and he might change his employment only with the permission of the competent authorities … this system facilitated manpower movement across frontiers which might otherwise not occur, and did not seem to give rise to serious objections so long as it is confined to the initial period of a foreign worker’s stay. The EPS nevertheless allowed a certain degree of flexibility for the purpose of protecting migrant workers’ human rights. For instance, it allowed migrant workers to change their workplaces for the following reasons: when workers were not able to continue working at the current workplace due to reasons not attributable to them, such as employers’ refusal to renew the contract, cancellation of the current contract, or business shutdown or suspension; when the employment permit was cancelled due to employers’ violation of labour-related laws and working conditions; when workers were unable to work in the current workplace due to injury.

Additionally, the Bill revising the EPS that was submitted to the National Assembly in November 2008 provided for greater flexibility. The revised Bill enabled migrant workers to change workplaces in case working conditions differed significantly from the terms provided for in the employment contract, or in case the worker had been subjected to unfair treatment, including the violation of agreed-upon working conditions. As of March 2009, about 130,000 workers had changed workplaces, demonstrating that in practice, workers were allowed workplace transfers in most cases when they had legitimate reasons. In case a migrant worker’s rights were violated, he or she could file a complaint at a regional labour office under the Ministry of Labour. In 2008, out of 4,251 cases filed to regional labour offices, 2,475 were settled through the administrative process and 1,754 cases through the judicial process. The regional labour offices also conducted labour inspections in the workplaces where migrant workers were concentrated; inspections were conducted in 713 workplaces in 2007 and 934 in 2008, and corrections were made with respect to such matters as overdue payments and violation of working hours and leave. Additionally, 81 job centres across the nation dispensed guidance and monitored workplaces covered by the EPS.

With regard to the information on court cases concerning discrimination requested by the Committee of Experts, she regretted that the disaggregated statistics were not available. However, the data from the National Human Rights Commission showed that a total of 64 cases were filed from 2001 to June 2009 concerning discrimination in employment based on national origin, ethnicity, race, and colour. Among them, three cases were cited, 51 cases dismissed, and four cases settled during investigation. The cited cases were disposed of with recommendations for policy improvement, mutual consent, or recommendations for corrective measures. She stated that the Government was also proactively assisting EPS workers to adapt to their workplaces. Beginning this year, the Government was providing support for cultural events for migrant workers, in cooperation with the embassies of the sending countries, and undertaking outreach programmes to provide counselling and basic medical services. Through a returnee support programme called “Happy Return” vocational training was being provided to returning workers, as well as job placement services with Korean businesses operating in their home countries.

As concerned gender equality, she noted that the employment rate of women continued to grow from 53.1 per cent in 2006 to 53.2 per cent in 2007, although at a very slow pace, as mentioned in the Committee of Experts’ report. However, due to the recent economic situation the number had fallen to 52.4 per cent as of April 2009. Nevertheless, there had been a significant change in the female employment rate in the civil service; the percentage of women in the civil service was 3.6 times higher than the 3 per cent figure of 1999, a decade ago. The “employment target system for gender equality” implemented by the Government since 2003 was considered to have played an important role in this increase. Since March 2006, the Government had also implemented the “affirmative action scheme”, which required public organizations and private companies of a certain size to maintain the proportion of female workers and managers at 60 per cent or higher than the average of the companies of a similar size in the same or similar industry. In case of failure to meet the requirement, they should draw up and report a plan to improve the situation. As a result of the scheme, the proportion of female managers in workplaces with 1,000 employees or more rose 2 per cent yearly, to 13.2 per cent in 2008.

In order to monitor compliance with the ban on gender discrimination in employment, the Government had established a comprehensive plan for guidance and inspection every year. In 2008, the Government conducted guidance and inspection for 1,628 workplaces and had most of the violations corrected. According to the “Act on Equal Employment and Support for Work-Family Reconciliation”, an employer should give equal pay for work of equal value in the same business. To ensure compliance, the Government also provided consulting services, job interview guidelines as well as a manual on gender-based discrimination. It would also develop and provide a self-inspection checklist so that employers and workers voluntarily could check and improve discriminatory elements in wage payment. Thanks to these efforts, in 2002 women earned 64.5 per cent of the corresponding salary of men while in 2008 the figure stood at 66.5 per cent. Nonetheless, since seniority-based wage systems remained dominant and wage levels were based on educational qualifications, length of service and experience, there were some limitations to policy implementation. Companies needed to modify their labour management systems and wage structures, but such reforms remained a challenge as trade unions preferred the current seniority-based wage system.

With a view to increasing job opportunities for women, the Government was injecting 1.5 trillion won of its budget in order to foster social enterprises, such as patient-care service, with the target of creating 400 such enterprises in 2009. Also, expanding maternity protection and supporting the reconciliation of work and family life were essential to ensuring equality for female workers. In the Republic of Korea, female workers were granted maternity leave of 90 days and employers were required to grant paternity leave of three days. A worker with an infant or a child under the age of three could take childcare leave of up to one year and the childcare leave benefits were partially financed by the Government. She referred to the written information supplied by the Government for more detailed information on the measures taken to promote the employment of women and to support their skills development; the document also contained information on the measures taken to combat discrimination against the elderly and people with disabilities.

In respect of fixed-term and part-time workers, she stated that in December 2006, and in order to balance worker protection and labour market flexibility, the Government enacted the “Act on Protection, etc. of Fixed-term and Part-time Employees”. This Act came after intensive debates and fact-finding surveys organized mainly by the Tripartite Commission, which were followed by further discussion in the National Assembly for another two years. The Act banned undue discrimination against fixed-term and part-time workers and established an effective remedial procedure within Labour Relations Commissions for acts of discrimination. The Act also obliged employers to state the terms of employment contracts in writing and to make efforts to preferentially employ fixed-term and part-time workers already working in the workplace concerned when hiring regular workers. A recent opinion survey found that this system had the effect of preventing discrimination in advance as it prompted companies to voluntarily improve employment conditions. However, the system was still in its early stage and only partially applied. Once decisions and rulings by the Labour Relations Commissions and the courts had been sufficiently accumulated to provide standardized criteria for judgment, the system was expected to play an important role in improving employment conditions for workers in diverse employment settings.

In concluding, she maintained that all forms of excessive discrimination should be eliminated, not only in the world of work, but also in every aspect of human life. The policy measures the Government had taken were designed to eliminate discrimination in a way appropriate to national conditions and practices, as stated in Article 3 of Convention No. 111. She reiterated that the Government was doing its utmost to eradicate discrimination on the basis of race, colour, sex, religion, political opinion, national extraction and social origin. Not content to rest on its achievements, the Government was committed to bringing about improvements based on opinions from all sectors of society.

The Employer members stated that observations had been made on four occasions and that it was the first time that the case had come up for discussion. Regarding Article 1 of the Convention, there was no provision in national legislation that prohibited discrimination on grounds of race, colour, national ascendancy or political opinion; nor did it prohibit indirect discrimination in the terms of Convention No. 111. The situation had begun to improve from 2005 onwards, when protection and assistance measures were introduced. Act No. 6507 of 14 August 2001, for instance, imposed a restriction on the number of hours that women who had given birth could work over the course of a year. In 2006, regulations were introduced on the entry of migrant workers to do internships, who under the Employment Services System of 2004 had been too dependent on the employer and could therefore fall victims to exploitation and find it difficult to look for better paid jobs. In 2007, the Foreign Workers’ Employment Act allowed unskilled workers to be employed in specific sectors of the economy under contracts that were renewable each year up to a maximum of three years, provided they did not change employer – save in exceptional cases where the employer violated the terms of the contract. Between 2001 and 2006, the National Commission on Human Rights examined 1,222 complaints of employment discrimination, only one of which concerned migrant workers. Help centres for migrant workers were set up to provide advisory and medical services. In 2008, the Government envisaged additional grounds for allowing them to change their place of work. The infringement of labour legislation by employers who failed to pay workers their wages made it difficult to maintain an employment contract.

On the subject of disability, the modifications to the Act concerning the Prohibition of Discrimination against Persons with Disabilities and Compensation for the Infringement of their Rights came into force on 11 April 2008. Regarding equal opportunity and treatment between men and women in employment, which was the main thrust of decent work, one could point to a certain equity in terms of rights inasmuch as the discrimination faced by women in the world of work had to be combated as a matter of fundamental human rights and justice. Furthermore, from the standpoint of efficiency it could be argued that women played a vital role as potential economic agents in the transformation of society and of the economic environment. Equality was not valued simply for its intrinsic virtue; it also played a decisive part in furthering economic growth and reducing poverty.

The Employer members emphasized the importance of the effective application of Convention No. 111 by the Republic of Korea as it was one of the core Conventions, and it therefore welcomed the Government’s assurances of its intention to comply with the Convention. They recalled that, under Article 2, member States undertook “to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation”, while Article 3 made the same point by referring to “methods appropriate to national conditions and practice”. An effective social dialogue with the employers’ and workers’ organizations was needed to improve disaggregated statistics and to make labour inspection more efficient and non-discriminatory.

The Worker members highlighted that the case on the Republic of Korea had been chosen because of their belief that discrimination within the Korean labour market had increased. After having consulted the written information communicated by Government, they felt that the Government’s view was a little too optimistic.

With regard to the issue of migrant workers, the new system of work permits tied workers to their employers and did not allow them to change their place of work except under very restrictive and limiting conditions. Such inflexibility exposed workers to intimidation, abuse and reprisals on the part of employers and constituted basic discrimination. The Government had stated that a draft bill included new provisions allowing workers to change their place of work if the employer had not fulfilled the essential conditions of the contract and had not, for example, paid the salary that was due. The bill certainly represented progress, but it failed to limit the power of the employer and, on its own, would not put an end to discriminatory practices. Furthermore, the new provision did not improve the situation of migrant workers as, once they were without employment, they had only two months to find other work and would be compelled to accept new jobs, even under duress. Also, migrant workers could not reside in the country for longer than three years and required an “invitation” from their employers in order to stay a further three years. Employers often promised new contracts in order to force workers to accept unpaid overtime.

The Worker members stated that the Government had failed to indicate that it also intended to deduct accommodation and food costs from workers’ salaries, which were currently paid by employers. The Government also refused to recognize the Migrant Workers’ Trade Union, in direct contravention of the provisions of Convention No. 87.

With regard to the issue of discrimination based on age or disability, new laws prohibited any form of discrimination and promoted employment for older or disabled persons, with grants and quotas. The Worker members said that they would await data and would be interested to see the results of those new legislative provisions.

As for the issue of discrimination against women, the Committee of Experts had noted a slight increase in the rate of female employment in 2007. In 2006, an affirmative action scheme had been established, obliging the public sector and large private companies to recruit more women if the rate of female employment fell below 60 per cent of the average in their sector. According to the figures communicated by the Government, the rate of female employment had risen by an average of 2.5 per cent per year, but had only reached a rate of 35 per cent by 2008. Inequality in salary rates was worse than that declared by the United States; women only received 63.4 per cent of the salary that men received.

Another worst form of discrimination, based on employment status, was noted between regular and irregular workers. In 2005, so-called casual or temporary workers constituted 56 per cent of all male workers and 70 per cent of all female workers. One in every two men and two in every three women were therefore considered as irregular or casual workers. In comparison with 100 per cent of the salary of a regular worker, the irregular male worker only earned 49.7 per cent, while irregular female workers earned only 39.1 per cent. In December 2006, a law on the protection of salaries for fixed-term and part-time contracts had been enacted, which prohibited all discrimination regarding the employment status of workers. The law had come into force under the slogan “flexibility without discrimination”, which brought to mind the Danish “flexicurity” model; in the current case, it referred more to Korean “flexequality”. It should be noted that the pay gap between regular and temporary workers had widened, 87 per cent of those who had been made redundant following the economic crisis were women, four out of every five regular workers enjoyed social security compared with one in every three temporary workers, and among the 46 cases brought before judicial authorities, only two had been judged to be discriminatory.

According to the Worker members, the law could not be applied as it limited the workers’ right to appeal and did not open it up to trade union organizations. Moreover, many workers had, under duress, withdrawn the complaints filed against their employers. The law intended, in addition, to reconcile two contradictory objectives: eliminating all forms of discrimination towards temporary workers while at the same time introducing greater flexibility by increasing temporary employment. In that regard, the Worker members stated that discrimination in the Republic of Korea was not yet set to disappear.

A Worker member of the Republic of Korea observed that although all workers were affected by the current global economic crisis, migrant workers, precarious workers and women workers remained among the most vulnerable and, as such, should be the focus of any solutions designed to resolve the crisis. Discrimination on the basis of nationality, employment status, and gender had unfortunately grown more severe in the Republic of Korea, and the Government had failed to take appropriate measures in response to this phenomenon. Discrimination on the basis of employment status, particularly as concerned workers with fixed-term labour contracts, and with regard to wages, welfare or working conditions, had rapidly increased in recent years. As of August 2008, precarious workers accounted for 52 per cent of the total labour force. Wage disparities had increased, so that precarious workers’ wages were now only 50 per cent of that of regular workers. The wage disparity for women workers was even greater, as female precarious workers received only 39 per cent of regular workers’ average wages. Additionally, only 37 per cent of precarious workers received social security benefits, compared to around 90 per cent of regular workers.

The application of the principle of equal pay for work of equal value was a key tool for preventing discrimination. He pointed out, however, that this principle was not clearly expressed in the Protection of Fixed-term and Part-time Workers’ Act, and urged the Government to amend article 6 of the Labour Standards Act so as to incorporate this crucial principle. Weak anti-discrimination measures in the Protection of Fixed-term and Part-time Workers’ Act was a principal reason for increased discrimination against precarious workers; as of August 2008, only 46 petitions concerning discrimination had been filed, despite the scale of the problem, demonstrating the ineffectiveness of the Act’s provisions. Also, as only individuals and not organizations were permitted to file petitions under the Act, many workers were unwilling to come forward with complaints for fear of being dismissed; cases where workers who had filed petitions had been fired existed, as in the case of the Agricultural Cooperatives Joint Market, where the employer refused to renew the worker’s contract after the local Labour Relations Commission ruled that the worker had indeed faced discrimination at the worksite. In this connection, the speaker underscored the need for trade unions to be granted the right to submit petitions on behalf of workers.

The Government was attempting to render the situation as concerned discrimination even worse, by planning for instance to extend the maximum duration of temporary contracts from two to four years. He requested the Committee to urge the Government to prioritize ensuring equal treatment for precarious workers, instead of weakening the current law’s protections in its single-minded push for labour market flexibility.

Migrant workers also faced serious discrimination, as evidenced by the serious legislative restrictions referred to in the Committee of Experts’ report. The Government was planning to include housing and food costs in the calculation of the minimum wage of migrant workers, who were already suffering from low wages and poor working and living conditions. Furthermore, the Korean Federation of Small and Medium Businesses had issued a directive to its members to deduct 8 to 20 per cent of the minimum wage from migrant workers’ salaries for food and housing. He requested the Committee to urge the Government to halt its plan to introduce these wage deductions and permit migrant workers to change employers freely. Recalling that collective bargaining was instrumental to securing the rights under Convention No. 111 in practice, he stressed that full respect for freedom of association was a necessary precondition for enabling workers’ and employers’ organizations to carry out their important role in addressing discrimination. However, precarious and migrant workers’ freedom of association rights were seriously repressed. The Migrants Trade Union, an affiliate of the Korean Confederation of Trade Unions, was still denied legal recognition. Moreover, a leader of the Korean Transport Workers Union, who had disguised himself as a “self-employed” worker at Daehan Tongwoon, tragically sacrificed his life for the cause of trade union recognition. The Government had issued an order to the Korean Construction Workers’ Union and the Korean Transport Workers’ Union to voluntarily dissolve their membership, as their members were categorized as “self-employed”. He requested the Committee to urge the Government to ensure freedom of association for precarious workers to prevent further forms of discrimination.

The Employer member of the Republic of Korea noted that policies on migrant workers depended on each country’s unique economic and social situation. The EPS limited workplace mobility, which was unavoidable in order to fully comply with the employment contract and to prevent labour market distortions by foreign workers. Notwithstanding the existence of limitations, some exceptional cases were recognized for the protection of foreign workers’ rights and interests, for example, when employers rejected the renewal of employment contracts after termination without specific reasons, or when it was difficult for foreign workers to continue their work for reasons not attributable to themselves. If foreign workers would be allowed to freely change workplaces, they would be tempted to move to another workplace even for an insignificant difference in wage rates. This frequent mobility would undermine the ability of employers to manage their workers, and as a result, increase the heavy financial burden of employee education and training. Compared to other countries, wage rates in the Republic of Korea were high – 5 to 15 times higher than those in migrant workers’ home countries. Therefore, from their perspective, a 5 to 10 per cent wage difference was substantial, and as a result, foreign workers would be inclined to frequently change workplaces. In fact, many employers had pointed out that workplace mobility was a major difficulty they were faced with in managing foreign workers. According to research done by the Korean Federation of Small and Medium Businesses, of 888 manufacturing companies employing foreign workers last year, 47 per cent of the respondents had experienced problems related to foreign workers’ demands for a workplace change. Furthermore, there was no discrimination between domestic and foreign workers in terms of basic social protection, such as employment injury benefits and minimum wage.

As regards female temporary workers, as a result of the current global economic recession, female employment in the Republic of Korea had decreased. However, given that the male employment rate had also decreased, there was no downward trend of employment of women workers. The female employment rate had decreased by 0.2 per cent (from 48.9 per cent in 2007 to 48.7 per cent in 2008), while the male employment rate had decreased by 0.4 per cent (from 71.3 per cent in 2007 to 70.9 per cent in 2008). In relation to the argument that most non-regular workers were women, the speaker argued that it was an unavoidable global trend that, with the diversification of industries in modern society, occupations were also increasingly diversified. In order to raise the low participation rate of women, it was thus important to recognize increasingly diverse employment types, rather than to favour regular over temporary employment. Also, it should not be ignored that many women voluntarily chose to work part time, as this allowed them to choose flexible working hours and maintain a work–life balance. The gender wage gap was not caused by gender discrimination, but by the difference between men and women and other factors such as career interruption due to child birth, lower education levels, smaller periods of service, and less work experience than men. Many women at present were eager to work but they could not. However, women’s economic participation rate was still low. The answer to improving the situation lay in recognizing the growing diversification of employment types and improving the flexibility of the labour market. These measures had to be accompanied by increased assistance to women to enable full access to the labour market.

Another Worker member of the Republic of Korea stated that the Industrial Trainee System was introduced in the Republic of Korea in 1993 with the aim of resolving labour shortages. However, this system caused serious problems such as severe exploitation, human rights violation and discrimination. To address this situation, the Government introduced a new policy – the EPS – in 2004, and further improvements to the new system were introduced in 2007. Problematic provisions in the current legislation remained, however. It was almost impossible for migrant workers to change employer due to the heavy restrictions on workplace transfer pointed out by the Committee of Experts. Although under the EPS some restrictions on workplace transfer understandably were necessary in order to prevent job losses for low-wage and precarious local workers, especially in the construction sector where they had to compete with migrant workers, more flexibility should be allowed in the law so that migrant workers could also change workplaces when there was a sharp difference in wages and working conditions compared with other workers performing the same type of job. Job transfer should also be allowed when employers violated the laws prohibiting discriminatory treatment.

Another restriction on workplace transfer was the period for applying for a new job. Under immigration laws, if migrant workers failed either to obtain permission to change employer within two months of applying for a change of business or workplace, or to apply for a change of business or workplace less than a month from the termination of their labour contracts, they were subject to immediate deportation. A number of migrant workers had become undocumented due to these provisions as the prescribed periods were too short to find a new job, especially in the Korean labour market where there were not enough job opportunities. Therefore, extending this period was urgently needed to prevent migrant workers from becoming undocumented or being forced to leave the country before their contract term ended. In addition, the Government had to make every effort to ratify the related ILO Conventions including Migration for Employment Convention (Revised), 1949 (No. 97), and Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143), through amending the provisions of the current legislation which were not in line with international labour standards.

With respect to discrimination based on employment status, the Government was trying to amend the laws on precarious work; by the proposed amendment, the Government was attempting to extend the employment period of fixed-term workers, from the current two years to four years, and to expand the types of jobs allowed to temporary agency workers – currently only 26 types of jobs were allowed to the latter. He maintained that as these changes could lead to further discrimination against precarious workers by perpetuating their marginal and unstable status, the Government should take drastic measures to minimize the adverse effects of the current legislation and effectively redress discrimination against precarious workers instead of attempting to downgrade the current law. His organization, the Federation of Korean Trade Unions (FKTU) continued to promote social dialogue and sincerely hoped that the Government would find a reasonable solution regarding this matter as soon as possible, and in full consultation with the social partners.

A Worker member of Malaysia stated that the Malaysian Trade Union Congress was gravely concerned that the Korean EPS system led to severe discrimination against migrant workers. The Committee of Experts had previously noted that a system of employment of migrant workers which provided employers with the opportunity to exert disproportionate power over them could result in discrimination and had asked that the EPS be kept under review with a view to further decreasing the level of dependency of migrant workers in relation to their employers.

The two problematic points of EPS were, first, its prohibition of workers’ change of workplace unless there had been a documented labour law violation or the employer gave his consent. Second, the number of workplace changes was restricted even if there existed a documented labour law violation. As the Committee of Experts had noted in its 2008 report, this inflexibility made migrant workers vulnerable to discrimination and abuse. In this regard, the Committee of Experts had observed that migrant workers suffering such treatment might refrain from bringing complaints out of fear of retaliation by the employer although bringing a complaint was necessary to establish that the employer had violated the contract or legislation, which was a requirement for being granted permission to change the workplace. In order to solve these problems, the speaker recommended that this Committee requested that migrant workers be given the right to change their employers freely and that the restrictions on the number of times they could change be eliminated.

The fact that migrant workers leaving their employers were only granted two months to find a new workplace had led to migrant workers being forced to sign new contracts quickly and without adequate time to assess labour conditions. This constituted a severe restriction on the right to freely choose employment. The restriction on the length of time for finding new work should be abolished.

In his view, the short residency period of three years and the requirement for an invitation on the part of the employer to extend their stay for a second three-year term, as laid down in the EPS, was also problematic. Employers often used the promise of rehiring workers as a means to force them to accept unjust conditions such as forfeiting severance or overtime pay. To eliminate this abuse, migrant workers should be allowed to work for a term of five years with the possibility of extending the time once this term was completed. Food and housing costs should not be deducted from the calculation of migrant workers’ minimum wages.

He expressed his concern that the Government’s refusal to register the Migrants Trade Union (MTU) and the repeated arrest and deportation of union leaders denied migrant workers their right to form and participate in a trade union of their choosing. The Government had used the fact that the members of the MTU were primarily undocumented migrant workers as a justification for its denial of MTU’s status. However, the Committee on Freedom of Association had recently recommended that when examining legislation that denied the right to organize to migrant workers in an irregular situation – a situation similar to that of the MTU case – all workers, with the sole exception of members of the armed forces and the police, were covered by Convention No. 87. It therefore requested the Government to take the terms of Article 2 of Convention No. 87 into account in the legislation in question. Moreover, the Committee had recommended that the Government avoided measures which involved a risk of serious interference with trade union activities such as the arrest and deportation of trade union leaders shortly after their election to trade union office.

Freedom of association rights were of vital importance to ensuring equal opportunity with respect to employment and occupation. The Conference Committee should therefore recommend that the Government stopped targeting MTU leaders and granted MTU the status of a legal trade union, in accordance with the recommendations made by the Committee on Freedom of Association.

The Worker member of Germany stated that she spoke on behalf of her fellow female trade union members and wanted to focus on the discrimination of female employees in the Republic of Korea. In the worldwide economic crisis, women were the main losers and highlighted again that a staggering 87 per cent of the persons having lost their jobs were women. This figure was frightening, even more so if one recalled that employed women also were the main losers during the 1997–98 financial crisis. The Republic of Korea should have learned since then that women in particular deserved special protection of their rights. The Republic of Korea had ratified the UN Convention on the Elimination of All Forms of Discrimination against Women as early as 1984. This Convention condemned every form of discrimination against women. In its Equal Employment Act, the Republic of Korea had further provided that women were not to be discriminated against because of their sex, pregnancy or their marital status. Reality, however, showed another picture.

It was mainly women who were exposed to precarious working conditions. While one in two men was employed in precarious working conditions, two out of three women were employed in such conditions. The National Human Rights Commission referred to a case where women were employed as temporary workers and were promised permanent contracts in the medium term; however, this never materialized. Yet, men nearly always obtained a permanent employment contract. This was flagrant discrimination against women due to their sex. She therefore urged the Government to especially consider the situation of women in its combat against precarious working conditions and to contribute to the improvement of women’s working conditions.

There was a further significant difference between the salaries of male and female workers. Recent research by the KCTU had shown that the salaries differed by 36 percentage points. This was an even larger difference than in the US, and the US was infamous among OECD countries for having the largest inequality of the salaries of men and women.

The Government had committed itself to complying with Convention No. 111 – even during the current economic crisis – and to become active against the discrimination of women and to ensure that women’s rights were complied with. Referring to the statement of the Korean Employer representative, she requested clarification as to whether in their view the Convention would justify discrimination of women, based only on the fact that women were the ones giving birth.

The Worker member of the United States made his observations in full solidarity with Korean workers and especially with the KCTU and the FKTU regarding the disparate treatment between regular and non-regular workers. This was a most compelling issue, as such discrimination had become all the more prevalent and devastating with the deepening of the global economic crisis. This dimension had to be reviewed by the Committee given the agenda of this year’s ILC Committee of the Whole. In spite of the comments made by the Employer member of the Republic of Korea, Article 1, paragraph 1(b) of the Convention, clearly justified review of the employment status discrimination aspect of this case. This particular dimension of the case was also covered by Article 1, paragraph 1(c) because discrimination based on difference in employment status produced an overwhelming and disproportionate negative impact on women – as 70 per cent of all Korean female workers were also non-regular and precarious workers. This case also had implications concerning the application of Conventions Nos 87 and 98.

In 2006, the Government adopted a law enabling the expanded use of temporary contracts for up to two years. This measure exacerbated the precarious situation of many Korean employees. Notwithstanding the recent information provided by the Government to the Committee, this new law contributed to diminishing the ability of unions to bargain collectively and essentially formalized the practice of the past ten years. In the wake of the 1997 Asian financial crisis, employers had imposed a rapid deregulation of the Korean labour market and precarious or non-regular work proliferated so that it constituted at least 56 per cent of the entire Korean workforce. The effects were staggering – as of August 2008, the ratio of the average wage for non-regular workers to that of regular workers was less than 50 per cent. Around 90 per cent of regular employees were covered by the social insurance systems, but the coverage of non-regular workers was only one third. While about 80 to 90 per cent of regular employees enjoyed benefits such as severance allowances, bonuses, overtime pay, and paid leave of absence, less than a quarter of the non-regular workers were entitled to such benefits.

The growing use of subcontracted, non-regular employees in the Republic of Korea’s basic manufacturing sectors, such as auto, steel, and electronics – the base of the nation’s formal workforce and of its trade union movement – was particularly ominous. In addition to being paid half of what regular and unionized employees had been receiving for the same work, these non-regular workers were subjected to more hazardous and dangerous conditions. According to the Labour Ministry’s own information, after reviewing the working conditions in 2,040 enterprises between February and May of 2007, 34 reported job-related deaths including 21 irregular workers. Repeatedly, when subcontracted and irregular manufacturing workers attempted to form a union, the primary contractor either terminated its agreement with the subcontracted company or the subcontracted company closed its business. Such was the practice over the last five years with Hynix Magna Chip, KM and I, GM Daewoo Motors, Donghee Auto, Hwasung Factor of Kia Motors, and Hyundai Hysco.

As the KCTU had observed, the Government’s Discrimination Corrective System (DCS), consisting of administrative complaints and remedies, was not getting to the root of the problem. The Labour Ministry and the National Labour Relations Commission did not assert jurisdiction over the primary contractor in the case of subcontracted dispatch workers, even though the primary contractor had the actual power to remedy the discriminatory wage rates for the dispatched employees. Moreover, it was still not clear whether the DCS could even maintain jurisdiction over the complaints of subcontracted irregular workers when primary contractors refused to renew their agreements with the subcontractors in the middle of the investigatory process.

Korean unions had rightly concluded that these problems would persist unless and until the Fair Labour Standards Act was amended to provide for equal wages for work of equal value, removing one of the primary incentives to further exploit the growing irregular workforce. Regrettably, the Government appeared to be moving in the opposite direction in the midst of the current global crisis, by simply proposing the extension of fixed term contracts from two to four years instead of pursuing an authentic macroeconomic policy of converting irregular workers into regular employees with full legal and protected, status. The speaker emphasized that the Committee had to maintain full vigilance in this case and called for an ongoing review at next year’s session.

The Government representative of the Republic of Korea informed that the category of so called non-regular workers was unique to the Republic of Korea, and different from informal workers. The definition of the workers covered by the “Non-Regular Workers’ Protection Law” was the subject of protracted discussions among the tripartite constituents finally resulting in an agreement in 2007. According to the agreed definition, non-regular workers in the Republic of Korea – which covered workers having regular employment relations in most other countries – were divided into contingent workers, part-time workers and atypical workers. The latter category included dispatched workers, contract company workers, workers in special types of employment, at-home workers and workers on call.

According to the supplementary survey to the economically active population survey, in March 2009 non-regular workers accounted for 33.4 per cent of the total number of wage-earners. Since the promulgation of the Non-Regular Workers’ Protection Law (Act on Protection of Fixed-term and Part-term Employees), the total number of non-regular workers had continued to fall, while the number of fixed-term workers had risen. The increase of fixed-term employments was a result of the Government’s policy to create jobs to overcome the economic downturn and the job-sharing efforts in the private sector.

With reference to the alleged violation of the right of freedom of association, she referred to paragraph 74 of the General Survey on equality in employment and occupation of 1988, which stated that: no specific clause concerning the right to establish or join trade unions or to participate in trade union activities was included in the Convention in order to avoid duplication of the provisions of Convention No. 87. Therefore it was not appropriate to discuss issues concerning trade unions, as they fell outside the scope of Convention No. 111.

Regarding the issue of extending the employment period for fixed-term workers, under the current Act, an employer could employ fixed-term workers for up to two years and if the employment period exceeded two years, the employer should employ them as regular workers. However, the surveys had found that the two-year limitation had decreased fixed-term workers’ chances of being converted to a regular status while increasing their chances of losing jobs as the company replaced them with other fixed-term workers or outsourced their work especially under the current economic difficulties.

The opinion surveys conducted by various media firms also showed that amid the recent economic recession, fixed-term workers had a smaller chance of being converted to a regular status and a bigger chance of losing jobs. So it was needed to extend the current two-year employment period further to ensure that companies retained fixed-term workers through contract renewals without throwing them out of work.

She recalled that the Government was effectively prohibiting discrimination through relevant laws and regulations as well as through diverse policy measures. The Government was also taking measures to ensure equality of opportunity and treatment for vulnerable groups of workers such as women, the aged and people with disabilities through protective measures and active preferential treatment. The observations of the Committee of Experts on the Government’s implementation of Convention No. 111 had touched upon discrimination based on the grounds of gender, age, migrant and employment status. She expected that the ILO and the Committee of Experts would facilitate the effective implementation of Convention No. 111 through the supervisory mechanisms within the boundaries of the Convention.

She then referred to the report which was prepared for the adoption of Convention No. 111 in 1958: “the words ‘national extraction’ might be taken to cover also foreign nationality.” However, it should be recalled that these words had been used in preference to national origin in order to make it clear that nationality was not covered. It was therefore obvious that it was not intended in this paragraph to deal with nationality. Furthermore, she made reference to the 1996 General Survey on Convention No. 111, which stated that the concept of ‘national extraction’ in the 1958 instruments did not refer to the distinctions that might be made between the citizens of one country and those of another, but to distinctions between the citizens of the same country on the basis of a person’s place of birth, ancestry or foreign origin.

In closing, she stated that, with full respect for the principles of Convention No. 111, the Government was determined to continue its efforts to eliminate every possible form of discrimination and promote reasonable equality in employment and occupation.

The Employer members appreciated the information provided by the Government which demonstrated its political will in so far as, since 2006, it had been reforming its laws to bring them into compliance with many of the comments of the Committee. The legislative amendments were gradual and, in some instances, did not result in decisive change. It was also well-known that on many occasions, although the legislative amendments were well-intentioned, they affected the legitimate interests of businesses, for example, with regard to their costs and budgets or the fear of provocations from workers that affected job security. Convention No. 111 was one of the fundamental Conventions on employment and the prevention of discrimination based on gender existed nowadays in respectable workplaces; in that regard, failure to comply with the Convention was inexcusable. Tripartite dialogue should be established in order to create better conditions through the implementation of the Convention. Article 3(a) urged governments to seek the cooperation of employers’ and workers’ organizations and other appropriate bodies in promoting the acceptance and observance of a national policy that encouraged equality of opportunity and treatment in employment and occupation, in order to eliminate all discrimination.

The Employer members hoped that future reports would show real progress in each of the areas that had been discussed before the Committee. The Government should provide copies of all legal texts that had recently been approved as well as precise statistical data disaggregated by, inter alia, sex, age and nationality. Equally, as the Committee had requested in 2008, monitoring should be strengthened regarding the implementation of legislation applicable to migrant workers in order to prevent discriminatory practices.

The Worker members stated that the labour market in the Republic of Korea seemed to change constantly, as much in relation to different forms of discrimination as in relation to the adaptation of its regulatory and monitoring functions. It was for this reason that they had requested the Committee, the Committee of Experts and the Office to carry out heavy monitoring of those changes and to establish a monitoring system on the developments that occurred in the Republic of Korea. To that end, the Government was requested to continue communicating precise information on the situations in which workers were exposed to discrimination, as well as on the measures that had been or would be taken to eliminate those situations, particularly regarding the new law on temporary work. In its report, the Committee of Experts had clearly indicated the information that it wished to be transmitted.

The Worker members urged the Government to amend its labour legislation. With regard to the Employment Permit System they urged that: migrant workers be able to change their workplace without any restriction; the period of residency be extended from three years to five years at minimum; the accommodation and food costs not be deducted from workers’ salaries; and, finally, the Migrant Workers’ Trade Union (MTU) be recognized as such and the harassment of its leaders be put to an end. The new law on the protection of temporary workers should be amended so that: trade unions were given the capacity to conduct legal proceedings on behalf of workers; the time limit for lodging a petition was extended from three to 12 months; the principle of “equal pay for work of equal value” was stipulated explicitly in the law; and finally, the scheme allowing temporary contracts to be extended from two to four years was abolished.

To conclude, the Worker members emphasized that the priority should be to ensure genuine and effective equality in the treatment of temporary and casual workers.

Conclusions

The Committee noted the oral and written information provided by the Government representative and the discussion that followed.

The Committee noted that the Committee of Experts had stressed the importance of ensuring effective promotion and enforcement of the labour and anti-discrimination legislation to ensure that migrant workers were not subject to discrimination and abuse contrary to the Convention. The Committee noted the measures that the Government had taken to improve the application of the existing anti-discrimination provisions in respect of migrant workers, including the establishment of five Korea Migrant Worker Support Centres, and a plan to expand the number of Centres and diversify their services. The Committee also noted the Government’s commitment to making continuous efforts to ensure respect for migrant workers’ rights. The Committee noted the Government’s indication that a bill had been submitted to the National Assembly in November 2008 to improve the Employment Permit System (EPS) providing greater flexibility so that migrant workers could change employers, including due to unfair treatment and violation of their employment contracts.

The Committee noted that the issue of protecting migrant workers from discrimination and abuse required the Government’s continuing attention and it therefore requested the Government to pursue, and, where necessary, to intensify its efforts in this regard. The Committee considered that measures reducing migrant workers’ excessive dependency on the employer by allowing for appropriate flexibility for migrant workers to change their workplace would assist in decreasing migrant workers’ vulnerability with regard to abuse and violations of their labour rights. It therefore called on the Government to review the functioning of the current arrangements for workplace changes, and the proposals in the draft bill, in consultation with workers’ and employers’ organizations, with a view to determining how best to achieve the objective of reducing migrant workers’ vulnerability. The Committee asked the Government to provide in its report when it was next due, the results of this review for examination by the Committee of Experts. The Committee also recommended that the Government further strengthen the enforcement of the labour legislation, including through labour inspection, to protect migrant workers’ labour rights.

The Committee welcomed the various measures taken by the Government to promote women’s equality in employment and occupation, including the affirmative action scheme and the equality targets regarding recruitment and appointment to management positions. However, it expressed concern that women’s participation in the labour market continued to be at a very low level and that the gender pay gap continued to be very wide. The Committee insisted that discrimination based on gender was unacceptable and called on the Government to reinvigorate its efforts and to seek the cooperation of workers’ and employers’ organizations in this regard.

The Committee also welcomed the recent adoption of legislation addressing discrimination in employment and occupation based on the grounds of age and disability. It called on the Government to take all measures necessary to ensure the full implementation and enforcement of these laws.

With regard to discrimination based on employment status, the Committee noted that the Act on Protection, etc. of Fixed-term and Part-time Employees of 2006 prohibited discrimination against fixed-term and part-time workers. The Committee requested the Government to provide information concerning the difficulties encountered with the enforcement of the Act, and on whether trade unions were authorized to bring complaints on behalf of victims of such discrimination. The Committee also noted the significant differences in wages and social security coverage between regular and non-regular workers, based on employment status, and expressed concern that the large majority of non-regular workers were women. Noting that the Act was currently under review, the Committee called on the Government, in consultation with the workers’ and employers’ organizations, to improve the legislative protection against discrimination based on employment status, which disproportionally affected women. It called on the Government to provide further information on this matter for examination by the Committee of Experts.

The Committee requested the Government to provide in its next report under article 22 of the ILO Constitution detailed information on the measures taken and results achieved in addressing discrimination in all the areas mentioned above, as well as all the information requested in the Committee of Experts’ observation for its continuing examination of the situation.

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

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

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

Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

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

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

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

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

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

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

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

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

Article 1 of the Convention. Legislative developments. The Committee notes from the Government’s report that the Ministry of Justice is currently working towards the adoption of the draft Discrimination Prohibition Act. According to the Government, the draft Act addresses both direct and indirect discrimination. The Committee requests the Government to provide information on the progress made in the adoption of the Act.

Articles 1, 2 and 3(d). Access of women to employment in the police force. The Committee recalls that the National Human Rights Commission issued a recommendation on 5 December 2005 to the effect that gender-segregated recruitment of police officers should be discontinued and that the quota system in this regard should be modified. The Committee notes from the Government’s report that the National Police Agency did not accept this recommendation because, in its view, the current system of recruitment was “favourable to women because women have less physical force than men”. Further, the National Police Agency considers that if the same physical criteria applied to men and women applicants, the proportion of women hired would be even lower. In order to enable the Committee to examine this matter, the Committee requests the Government to provide detailed information on the conditions and modalities applying to the recruitment of women to the police force as well as information on the number of women currently employed as police officers.

Practical application. The Committee requests the Government to continue to provide information on the practical application of the Convention, including relevant statistical data on the situation of the groups protected by the Convention, any relevant reports or studies that may be available, as well as information on the cases concerning discrimination in employment and occupation dealt with by the different competent bodies and leading cases decided by the courts.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the Government’s report, the communication dated 5 September 2008 received from the Korean Confederation of Trade Unions (KCTU), as well as the Government’s reply thereto of 28 October 2008.

Articles 1 and 2 of the Convention. Migrant workers. The Committee recalls its previous comments in which it welcomed that the Employment Permit System (EPS) has introduced new elements of protection for migrant workers and that migrant workers are generally covered by the labour and anti-discrimination legislation. The Committee stressed the importance of ensuring the effective promotion and enforcement of the legislation to ensure that migrant workers are not subject to discrimination and abuse contrary to the Convention. The Committee also considered that providing for an appropriate flexibility to allow migrant workers to change workplaces may assist in avoiding situations in which migrant workers become vulnerable to discrimination and abuse.

The Committee notes the Government’s statement that, considering the views of the Committee, it planned to add a further reason for the granting of a workplace transfer to the legislation, i.e. “when it is deemed difficult to maintain an employment contract on account of the employer’s violation of labour laws, such as delayed payment of wages”. The Committee notes that currently section 25(1)(3) of the Act on Foreign Workers’ Employment provides that a migrant worker’s application for a workplace transfer may be granted in case of cancellation of the employer’s permit to engage foreign workers under section 19(1) which provides that the authorities may cancel such a permit if the employers breach the labour contract or violate the labour legislation. It thus appears that the suggested amendment would have the aim of providing a direct basis for migrant workers to request a workplace transfer in case of discrimination or abuse, as compared to the current legislation which construes the workplace transfer as a consequence of the cancellation of the employers’ permit rather than as a measure to assist migrant workers whose rights have been violated. According to the KCTU, the revision proposed by the Government, though making the legislation clearer, would not contribute to diminishing the power of employers over the foreign workers engaged by them. The KCTU recommends that migrant workers are given the possibility to apply for a workplace transfer more generally when they are dissatisfied with their working conditions. The Committee requests the Government to continue to provide information on the measures taken or envisaged to allow for appropriate flexibility for migrant workers to change their workplaces which may assist in avoiding situations in which migrant workers become vulnerable to discrimination and abuse. In this regard, please indicate the number of migrant workers that have successfully applied for a change of workplace during the reporting period, indicating the reasons for granting such a change.

With regard to the enforcement of the anti-discrimination provisions in respect of migrant workers, the Committee notes from the Government’s report that among the 1,845 discrimination cases dealt with by the National Human Rights Commission, so far only one related to the situation of migrant workers. It notes that 1,537 complaints were filed by migrant workers (employed under the EPS or otherwise) with local labour offices in 2007. However, the Government indicates that no information is available on the content and outcome of such complaints. The Government further indicates that, as of October 2008, three Korea Migrants’ Centres providing assistance to migrant workers were operating and that two more will be established before the end of 2008. Given that migrant workers may often refrain from bringing complaints out of fear of retaliation by the employers, the Committee stresses the need to ensure effective labour inspection. The Committee requests the Government to provide detailed information on the measures taken to ensure that the legislation protecting migrant workers from discrimination and abuse is fully implemented and enforced, including more detailed information on the number of inspections of enterprises employing migrant workers and the number and kind of violations detected and the remedies provided, as well as the number, content and outcome of complaints brought by migrant workers before labour officers, the courts and the National Human Rights Commission.

Equality of opportunity and treatment of women and men. The Committee notes that the women’s employment rate continued to grow, although at a very slow pace, from 48.8 per cent in 2006 to 48.9 per cent in 2007. The data provided by the Government indicates that increases in women’s employment mainly occurred in the categories of professionals and managers. The Committee notes with interest from the Government’s report that the public sector affirmative action scheme has been extended to workplaces with more than 500 employees as of March 2008. According to this scheme, workplaces where the participation of women is less than 60 per cent of the average female employment rate in the respective industry, must draw up equal employment plans and report on them. In 2007, out of the 613 workplaces concerned, 333 failed to meet the required level of women’s employment and are therefore required to report on the measures taken in this regard by 31 October 2008. The Committee further notes that the Personnel Administration Guidelines for Public Enterprises and Quasi‑Government Agencies were revised on 11 April 2007 to ensure that companies introduce gender equality targets when hiring workers through open competition and with regard to women’s representation in management positions. The Committee requests the Government to continue to provide information on the measures taken to promote and ensure gender equality in employment and occupation, including through the adoption and implementation of equal employment plans in the private and public sectors, as well as updated detailed information on the position of men and women in the labour market, including the civil service.

Article 1(1)(b). Additional grounds of discrimination. Age. The Committee notes with interest the enactment and promulgation of the Act on prohibition of age discrimination in employment and employment promotion for the aged, on 21 March 2008, which replaces the previous Aged Employment Promotion Act. According to the Government’s report, the Act introduces a ban on age discrimination, including indirect discrimination at every stage of employment. The Committee requests the Government to provide a copy of the new Act, along with information on its implementation and enforcement.

Disability. The Committee also notes from the Government’s report that amendments prohibiting discrimination against persons with disabilities have been introduced into the Act on the prohibition of discrimination against disabled and remedy for violation of their rights. The amendments entered into force on 11 April 2008. The Committee requests the Government to provide a copy of the Act, as amended, along with information on its implementation and enforcement.

Employment status. The Committee notes the information provided by the Government concerning the implementation of the Act on the protection, etc. of fixed-term and part-time employees (Act No. 8074 of 21 December 2006), which prohibits discriminatory treatment of these workers based on their employment status. According to the Government, the number of fixed-term workers fell in early 2008, with many companies converting fixed-term contracts into regular employment relationships. The Labour Relations Commission has started to render decisions to redress discrimination against non-regular workers. However, no information is yet available on the effects of the Act on equality of opportunity in employment and occupation of women and men. The Committee requests the Government to provide this information, as soon as it is available, and to continue to provide information on the Act’s implementation more generally.

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

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

Legislative developments

1. Article 1(1) of the Convention. Indirect discrimination. Recalling its previous comments regarding whether section 30 of the National Human Rights Commission Act is meant to cover indirect discrimination, the Committee notes the Government’s indication that the Act contains no explicit provisions on indirect discrimination, but referred instead to the Equal Employment Act, the Constitution and international human rights instruments. Stressing the importance of putting in place effective non-discrimination legislation, the Committee trusts that the envisaged Discrimination Prohibition Act will explicitly cover direct and indirect discrimination in employment and occupation. Please provide information on the progress made in the adoption of the Act.

2. Article 1(1)(b). Additional grounds of discrimination. Employment status, age and disability. The Committee notes the adoption of the Act on the Protection, etc. of Fixed-term and Part-time Employees (Act No. 8074 of 21 December 2006). The Act prohibits discriminatory treatment of fixed-term and part-time employees based on their employment status (section 8) and that fixed-term and part-time employees may apply for redress to the Labour Relations Commission (section 9). The Committee further notes that a law concerning equal treatment in employment of persons with disabilities as well as a law prohibiting discrimination based on age at all stages of employment are under preparation. The Committee requests the Government to provide information on the implementation of Act No. 8074 and its impact on equality of opportunity and treatment of men and women workers, including statistical information on the evolution of non-regular employment, disaggregated by sex. The Committee also requests the Government to report on the progress made in adopting legislation concerning equal treatment irrespective of age and disability.

3. Scope of the legislation. The Committee recalls that a number of provisions concerning conditions of work contained in the Labour Standards Act (severance pay, working hours and leave) and the Equal Employment Act (wages, training, deployment and promotion, retirement and dismissal) do not apply to workplaces with less than five employees, and as a result enjoy no protection from discrimination regarding these matters. In this regard, the Committee notes from the Government’s report that an extension of the coverage of these provisions is under discussion. The Committee requests the Government to provide information on any further developments in this regard.

Practical application

4. National Human Rights Commission. The Committee thanks the Government for providing detailed information on the cases concerning employment discrimination in which the National Human Rights Commission issued recommendations. Most of the cases concerned discrimination in public employment based on age, sex, disability or social status. The Committee welcomes that the recommendations in these cases have been accepted by the institutions concerned to a large extent, paving the way for eliminating discriminatory policies or practices. The Committee requests the Government to continue to provide such information in its future reports, indicating the number of employment discrimination cases received (in proportion to the total number of cases), the underlying facts, the thrust of the recommendations made and the status of their implementation. The Committee would also appreciate information on any other activities carried out by the Commission to promote equality and non-discrimination at work, including information on relevant studies and reports.

5. Discrimination against migrant workers and ethnic minorities. Further to its observation concerning the operation of the Employment Permit System and the protection of migrant workers from discrimination, the Committee requests the Government to provide information on the following points:

(a)   the number of migrant workers admitted to and present in the country, according to sex and industry;

(b)   the number of complaints or cases concerning employment discrimination brought by migrant workers respectively, before the labour offices, the National Commission on Human Rights, and the courts, including information on the facts and outcomes of these cases;

(c)   the number of cases in which a permission for change of business or workplace as provided for in section 25 of the Act on Foreign Workers’ Employment was granted to migrant workers, including indications on which grounds;

(d)   information on the Government’s assessment concerning the extent to which the Employment Service System discourages migrant workers to become undocumented, including statistical information;

(e)   detailed information on the measures taken to raise public awareness of the principle of non-discrimination among the public to promote respect for the human rights and dignity of migrant workers and ethnic minorities.

6. Sexual harassment. The Committee notes from the Government report that the number of sexual harassment complaints made to the regional labour office decreased by 11.8 per cent between 2004 and 2005. The number of self-inspections on education for the prevention of sexual harassment has continued to increase. The Committee requests the Government to continue to provide information on the measures taken to raise awareness of sexual harassment and the protection available under the law, to prevent sexual harassment, and to enforce the relevant legal provisions (including statistical information on inspections and complaints).

7. Women’s access to employment in the police force. The Committee notes from the Government’s report that the National Human Rights Commission issued a recommendation on 5 December 2005 to the effect that gender-segregated recruitment of police officers should be discontinued and that the quota system in this regard be modified. According to the report, the Ministry of Government Administration and Home Affairs and the National Policy Agency have not accepted the Recommendation. Recalling that under the Convention equal access of men and women to employment under the authority of the Government must be ensured, the Committee requests the Government to provide further information on the content and outcome of this case, as well as the Government’s reasons for not accepting the recommendations. The Committee requests the Government to ensure that men and women have access to employment in the police without discrimination, and asks the Government to keep the Committee apprised of measures taken in this regard.

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

1. In its previous observation, the Committee noted comments made by the International Confederation of Free Trade Unions (ICFTU), now International Trade Union Confederation (ITUC), in 2005 expressing concerns over the inflexible nature of the Employment Permit System, established under the Act on Foreign Workers’ Employment. The ICFTU considered that the Employment Permit System made foreign workers excessively dependent on the employers and thus vulnerable to exploitation and abuse, and that it also inhibited their access to higher-paying jobs. Having noted the Government’s reply to the ICFTU’s comments, the Committee noted that where a system of employment of migrant workers places those workers in a particularly vulnerable position and provides employers with the opportunity to exert disproportionate power over them, this could result in discrimination based on grounds such as race, colour, sex, religion or national extraction against migrant workers, contrary to the Convention. The Committee, therefore, requested the Government to provide further information on the Employment Permit System and, in particular, on how this system ensures that migrant workers are protected against discrimination. The Committee also wished to examine further any other measures that may have been taken to ensure that migrant workers are not discriminated against in practice.

2. The Employment Permit System. The Committee notes from the provisions of the Act on Foreign Workers’ Employment and the Notice for Foreign Workers published by the Ministry of Labour that under the Employment Permit System low-skilled foreign workers have an opportunity to work in certain sectors of the economy under renewable one-year contracts for a period no longer than three years. As a general rule, foreign workers may not change their employers during the three-year period. On an exceptional basis, a worker may apply for a transfer to another business or workplace where the employment permit is cancelled by the authorities because the employer has violated the provisions concerning working conditions as stipulated in the labour contract or the legislation. However, during the three-year period, foreign workers can apply for a change of employer on this basis only three times. Employers hiring workers through the Employment Permit System must subscribe to departure guarantee insurance and payment delay insurance to cover severance pay and delayed or unpaid wages. Following the three-year period, foreign workers must leave the country for at least six months. This period can be reduced to one month where the employer makes a request for re-employment.

3. Legal protection from discrimination available to migrant workers. The Committee notes that section 22 of the Act on Foreign Workers’ Employment provides that an employer “shall not give unfair and discriminatory treatment to foreign workers on grounds of their status”. The Government indicates that, accordingly, foreign workers were now covered by the labour legislation, including the Labour Standards Act, the Minimum Wage Act and the Industrial Safety and Health Act. The Committee recalls that section 6 of the Labour Standards Act provides that an employer shall not discriminate against workers on the ground of gender or extend discriminatory treatment in relation to the conditions of employment on the grounds of nationality, religion or social status. More specific protection from discrimination based on sex, including sexual harassment, is available under the Equal Employment Act. However, domestic workers remain outside the scope of the labour legislation and the Equal Employment Act.

4. Under the National Human Rights Commission Act, migrant workers can petition the National Human Rights Commission in case of employment discrimination on a wide range of grounds, including race, colour, and national or ethnic origin. In August 2007, the Government indicated to the Committee on the Elimination of Racial Discrimination that a new Discrimination Prohibition Act was under preparation which would make discrimination illegal and prohibited. The Committee understands that this legislation would protect migrant workers from discrimination in the workplace based on their race, sex or nationality.

5. Enforcement. The Government’s report further states that, in response to the increasing number of foreign workers, regular labour inspections have been carried out in industries with a high concentration of foreign workers, such as manufacturing and in the food and service sectors. In 2005, 637 inspections concerning the working conditions of foreign workers found 639 violations in 361 workplaces. The Committee also notes that, between 1 January 2003 and 31 July 2007, a total of 344 cases were filed by migrant workers before the courts or administrative agencies, with a marked increase of cases in 2006. These cases concerned almost entirely delayed payment of wages, only one dealt with an unfair labour practice and none of them involved sexual harassment. According to the Government’s information, 1,222 cases concerning employment discrimination were filed with the National Human Rights Commission between 25 November 2001 and 23 October 2006, in 75 of which the Commission issued recommendations. Only one case related to the situation of migrant workers.

6. Assistance to migrant workers. The Committee notes that the Government in partnership with private partners has set up migrant workers centres in Daeri-don, Seoul and Ansan to provide, free of charge and in numerous foreign languages, support to foreign workers through counselling and handling of grievances on labour-related matters, interpretation, information and education, as well as medical services. Additional centres are planned. The Committee notes that between 1 January 2005 and 30 June 2007 a total of 85,286 migrant workers were using these centres, and that 42,258 of them made use of counselling services and grievance handling.

7. The Committee’s assessment. The Committee welcomes the fact that the Employment Permit System has introduced new elements of protection for migrant workers. It notes that migrant workers are now generally covered by the labour and anti-discrimination legislation. However, domestic workers, who are predominantly women, remain outside the scope of this legislation, which raises doubts as to how they are protected from discrimination and abuse. The Committee also notes that efforts have been made by the Government to monitor the application of the labour legislation and to provide information, assistance and counselling to migrant workers. However, noting the concerns expressed by the Committee on the Elimination of Racial Discrimination over the persistence of widespread societal discrimination against foreigners, including migrant workers, in all areas of life, including employment (CERD/C/KOR/CO/1, 17 August 2007, paragraph 11), the Committee considers that further efforts are necessary to address such discrimination and ensure full compliance with the legislation and the Convention. Effective labour inspection and access of migrant workers to legal remedies, including accessible and speedy complaints procedures, are important in this regard. In addition, given the continuing increase of migrant workers in the country, the Committee considers it important that the Government keeps the operation of the Employment Permit System under review, with a view to further diminishing the migrant worker’s dependency on the employer by providing for appropriate flexibility to change workplaces, as a means of avoiding situations in which migrant workers become vulnerable to discrimination and abuse. Migrant workers suffering such treatment may refrain from bringing complaints out of fear of retaliation by the employer, including termination or non-renewal of their contract. At the same time, bringing a complaint would appear necessary in order to establish that the employer has violated the contract or legislation, which is a requirement for being granted permission to change the workplace. Even in cases where a migrant worker launches a complaint, he or she is confronted with uncertainty as to whether this would lead to a change of workplace.

8. The Committee requests the Government to continue to provide information on the measures taken or envisaged to ensure the full application of the Convention in respect of migrant workers, including information on the following measures:

(a)   to strengthen further the enforcement of the legislation applicable to migrant workers with a view to eliminating and preventing discriminatory or abusive practices and treatment contrary to the Convention and the legislation, including through providing accessible and effective complaints procedures and providing adequate information, counselling and legal assistance to migrant workers;

(b)   to keep the operation of the Employment Permit System under review with a view to further decreasing the level of dependency of migrant workers in relation to their employers. In this regard, the Committee invites the Government to consider allowing migrant workers to apply for a change of business or workplace for significant personal reasons;

(c)   to protect migrant domestic workers, many of whom are women, from discrimination and abusive treatment at work.

Equality of opportunity and treatment of women and men

9. The Committee notes that the rate of women’s labour force participation has increased somewhat, from 50.1 per cent in 2005 to 50.3 per cent in 2006, but still remains relatively low compared to men (74.1 per cent in 2006). The Committee also notes that some progress has been made in increasing the participation of women in senior and top management positions, although women remain significantly under-represented in this category. In 2005, only 5 per cent of employees in the occupational group of “legislators, senior officials and managers” were women, while their participation increased to 8 per cent in 2006. Only 0.4 per cent of women participating in the labour force in 2006 held positions in this category, compared to some 4 per cent among men.

10. In this context, the Committee notes with interest that amendments to the Equal Opportunities Act which entered into force on 1 March 2006 formalized the affirmative action programme previously applied in the public sector on a trial basis, and extended it to private enterprises. The new affirmative action scheme covers government institutions, state-owned enterprises and private enterprises with more than 1,000 employees (i.e. a total of 617 workplaces in 2007), and, as of 1 March 2008, workplaces with more than 500 employees will be covered. The scheme involves the collection of data on the participation of men and women in the different occupational categories and at the different levels of responsibility, reporting of such data to the Ministry of Labour, the adoption of action plans at the enterprise level to address imbalances, as well as reporting and evaluation of results achieved. The Committee requests the Government to continue to provide information on the measures taken to promote gender equality in employment and occupation in the private and public sectors, including information on the implementation of affirmative action measures under the Equal Employment Act. It requests the Government to provide detailed information on the results achieved by such action, including statistical information on the participation of men and women in employment in the different sectors of the economy, the various occupations and at the different levels of responsibility.

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

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

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

1. Article 1 of the Convention. Sexual harassment. The Committee notes that under section 12 of the Equal Employment Act, employers, senior workers or workers shall not engage in sexual harassment at work and that the Act’s definition of sexual harassment at work contains elements of hostile environment and quid pro quo harassment (section (2(2)). Employers have an obligation to conduct educational programmes on sexual harassment (section 13) and to take disciplinary or other measures against sexual harassers. Under section 7 of the Gender, Discrimination Prevention and Relief Act employees and employers of public institutions may not engage in sexual harassment, which is regarded as a form of gender discrimination. The Committee notes that victims of sexual harassment can apply for mediation to the Equal Employment Commission or file petitions with regional labour offices. The Committee requests the Government to provide information on the practical application of the abovementioned legal provisions on sexual harassment, including examples of preventive action taken and their contribution to reducing the incidence of sexual harassment in the workplace. Please also provide information on the number of sexual harassment cases brought before the competent authorities or found through equal employment inspections, and the manner in which these cases have been resolved.

2. Indirect discrimination. The Committee requests the Government to indicate whether section 30 of the National Human Rights Commission Act is meant to provide protection against indirect discrimination.

3. Article 2. Measures to promote equality of opportunity and treatment. The Committee notes with interest that the National Human Rights Commission so far has dealt with some 370 discrimination cases. It also notes that a number of surveys on discrimination in employment and occupation were scheduled to be carried out between 2002 and 2004. The themes to be examined include employment discrimination on the ground of disability, the right of public officials to equal employment and discrimination against non-regular workers. The Committee requests the Government to supply further information outcomes of employment discrimination cases handled by the Commission, as well as more detailed information on the results and follow-up to the discrimination surveys carried out by it.

4. Equality of opportunity and treatment of men and women. The Committee recalls its previous comments with regard to the equal access and participation of men and women in the different occupational groups and the levels of education of men and women workers. In this regard the Committee notes from the Government’s report that in the period covered by the statistics provided the proportion of women in professional, technical and managerial positions grew faster than that of men. In 2000, 21.9 of all male employees and 14 per cent of all female employees worked in that occupational category, while in 2003 this ratio in to 22.2 for men and 17 per cent for women. At the same time the ratio of female employees holding college or university degrees has not increased. In this context, the Committee notes that the Government is implementing affirmative action measures to increase the employment of women, including in management positions in state-owned companies and government subsidiaries, on a trial basis. It asks the Government to continue to provide information on the participation of men and women in the labour market and on any measures taken or envisaged to promote their equality of opportunity and treatment, including:

(a)   further statistical information on the participation of men and women in the different occupational groups and levels of responsibility, their participation in the labour market according to educational levels, as well as statistical information on men’s and women’s participation in university education and vocational training, according to fields of study and training; and

(b)    additional information on the affirmative action measures referred to by the Government (extent, nature, impact and follow-up of the programme) and any other measures taken to promote the equal access of women to training and occupations in which they are underrepresented, and to decision-making and management positions.

5. Equality of opportunity and treatment on the grounds of race, colour and national extraction. The Committee notes from the Government’s report that in addition to section 30 of the National Human Rights Commission Act, foreign workers present in the country are covered by section 5 of the Labour Standards Act which provides that employers shall not discriminate against workers on the basis of their nationality, religion or social status, and by section 22 of the Act on Foreign Workers’ Employment which states that employers shall not give unfair or discriminatory treatment to foreign workers on the ground of their status. The Committee also notes from the Government’s 12th periodic report of 2002 under the International Convention on the Elimination of all Forms of Racial Discrimination (CERD/C/426/Add.2, 17 January 2005) that Consultation Centres for Foreign Workers have been established at the regional labour offices. In the same report, the Government also indicated that it paid close attention to any possible discrimination or prejudice against ethnic minorities and that it undertook awareness raising and other measures to counter them. The Government is requested to provide information on the concrete measures taken to promote and ensure equality of opportunity and treatment of foreign workers and ethnic minorities, including the activities of the relevant public authorities, such as the National Human Rights Commission, the Consultation Centres referred to above, and the labour inspection services.

6. Article 4. Measures affecting persons suspected of or engaged in activities prejudicial to the security of the State. Recalling its previous comments regarding this Article, the Committee notes the Government’s statement that under section 14 of the National Security Act, the courts may, along with other punishments, suspend the qualification of persons convicted under the Act from practicing a certain profession for a certain period of time. The Committee again requests the Government to provide a copy of the National Security Act, which was not attached to the Government’s report. It also reiterates its request to the Government to provide information on examples of convictions that have led to restrictions of professional activities. The Committee wishes to receive such information in order to examine whether state security measures affecting access to employment and occupation are in accordance with the requirements of the Convention (General Survey, 1988, paragraphs 134-138).

7. Part IV of the report form. The Committee is requested to continue to provide information on judicial and administrative decisions relevant to the application of the Convention.

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

1. Article 1(a). Equality of opportunity and treatment on the grounds of race, colour and national extraction. The Committee notes the communication of the International Confederation of Free Trade Unions (ICFTU) dated 6 September 2005, and the response of the Government thereto, dated 24 May 2006. The ICFTU expressed concern that the inflexible nature of the Industrial Trainee System, allowing foreign workers to enter the country as trainees, and the employment permit system, under the Employment of Foreign Labourers Act, 2004, make migrant workers excessively dependent on the employer and thus vulnerable to exploitation and abuse, and also inhibits their mobility and access to higher-paying jobs. In order to move to higher-paying jobs, the ICFTU states that migrant workers then become undocumented, and consequently are even more vulnerable to pressure from their employer and risk deportation. The ICFTU also expressed concern that the Government is forcibly expelling undocumented foreign workers, in effect adhering to a policy of discrimination. The Committee notes that the Government acknowledges that there were considerable problems with the Industrial Trainee System, and states that the system is being abolished, and that the nation’s foreign worker system will be placed under a single Employment Permit System, effective 1 January 2007. With respect to the allegation of restrictions on workforce mobility, the Government states that such a measure is “inevitable” to prevent confusion and to resolve workforce shortages. The Government also states that some mobility is, however, permitted. The Committee further notes the Government’s assertion that basic labour rights of both native workers and foreign workers who are legally employed are ensured. The Committee also notes that the Government is taking measures to induce the voluntary departure of foreign workers.

2. The Committee notes that all the grounds set out in the Convention are to apply equally to migrant workers and nationals. As a result, schemes and policies related to migrant workers should not result in discrimination based on race, colour, national extraction, sex, religion, social origin or political opinion. Where a system of employment of migrant workers places those workers in a particularly vulnerable position and provides employers with the opportunity to exert disproportionate power over them, this could result in discrimination against migrant workers on the basis of the grounds listed in the Convention, in particular race, colour and national extraction. The Committee requests the Government to provide further details on the nature and extent of the Government incentives that have been put in place to induce foreign workers’ voluntary departure. The Committee also requests further information regarding the Employment Permit System, in particular how this system ensures that migrant workers are protected against discrimination on the grounds listed in the Convention, including based on race, colour and national extraction. Please also provide information on any other measures that have been taken or are envisaged to ensure migrant workers are not discriminated against in practice on the grounds enumerated in the Convention. The Committee would also welcome information on the number and nature of complaints made by migrant workers to the courts or administrative bodies, and the results thereof.

3. Legislative protection. Noting that the Government has not yet forwarded a reply to the Committee’s previous observation, the Committee reiterates its request for information on the practical application of the relevant provisions of the National Human Rights Commission Act, including on the nature and outcome of any petitions filed, or investigations or surveys conducted under the Act with respect to employment and occupation.

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

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the communication dated 6 September 2005 from the International Confederation of Free Trade Unions (ICFTU) which was sent to the Government for comments on 7 October 2005.

1. Article 1 of the Convention. Sexual harassment. The Committee notes that under section 12 of the Equal Employment Act, employers, senior workers or workers shall not engage in sexual harassment at work and that the Act’s definition of sexual harassment at work contains elements of hostile environment and quid pro quo harassment (section (2(2)). Employers have an obligation to conduct educational programmes on sexual harassment (section 13) and to take disciplinary or other measures against sexual harassers. Under section 7 of the Gender, Discrimination Prevention and Relief Act employees and employers of public institutions may not engage in sexual harassment, which is regarded as a form of gender discrimination. The Committee notes that victims of sexual harassment can apply for mediation to the Equal Employment Commission or file petitions with regional labour offices. The Committee requests the Government to provide information on the practical application of the abovementioned legal provisions on sexual harassment, including examples of preventive action taken and their contribution to reducing the incidence of sexual harassment in the workplace. Please also provide information on the number of sexual harassment cases brought before the competent authorities or found through equal employment inspections, and the manner in which these cases have been resolved.

2. Indirect discrimination. Further to its observation, the Committee requests the Government to indicate whether section 30 of the National Human Rights Commission Act is meant to provide protection against indirect discrimination.

3. Article 2. Measures to promote equality of opportunity and treatment. The Committee notes with interest that the National Human Rights Commission so far has dealt with some 370 discrimination cases. It also notes that a number of surveys on discrimination in employment and occupation were scheduled to be carried out between 2002 and 2004. The themes to be examined include employment discrimination on the ground of disability, the right of public officials to equal employment and discrimination against non-regular workers. The Committee requests the Government to supply further information outcomes of employment discrimination cases handled by the Commission, as well as more detailed information on the results and follow-up to the discrimination surveys carried out by it.

4. Equality of opportunity and treatment of men and women. The Committee recalls its previous comments with regard to the equal access and participation of men and women in the different occupational groups and the levels of education of men and women workers. In this regard the Committee notes from the Government’s report that in the period covered by the statistics provided the proportion of women in professional, technical and managerial positions grew faster than that of men. In 2000, 21.9 of all male employees and 14 per cent of all female employees worked in that occupational category, while in 2003 this ratio in to 22.2 for men and 17 per cent for women. At the same time the ratio of female employees holding college or university degrees has not increased. In this context, the Committee notes that the Government is implementing affirmative action measures to increase the employment of women, including in management positions in state-owned companies and government subsidiaries, on a trial basis. It asks the Government to continue to provide information on the participation of men and women in the labour market and on any measures taken or envisaged to promote their equality of opportunity and treatment, including:

(a)  further statistical information on the participation of men and women in the different occupational groups and levels of responsibility, their participation in the labour market according to educational levels, as well as statistical information on men’s and women’s participation in university education and vocational training, according to fields of study and training;

(b)  additional information on the affirmative action measures referred to by the Government (extent, nature, impact and follow-up of the programme) and any other measures taken to promote the equal access of women to training and occupations in which they are underrepresented, and to decision-making and management positions; and

(c)  the measures taken or envisaged to promote gender equality in employment and occupation in the framework of the Second Basic Women’s Policy Plan, including assisting women and men with family responsibilities in preparing for, entering, participating in or advancing in economic activity. Please indicate whether any consideration is being given to ratifying ILO Convention No. 156 concerning workers with family responsibilities.

5. Equality of opportunity and treatment on the grounds of race, colour and national extraction. The Committee notes from the Government’s report that in addition to section 30 of the National Human Rights Commission Act, foreign workers present in the country are covered by section 5 of the Labour Standards Act which provides that employers shall not discriminate against workers on the basis of their nationality, religion or social status, and by section 22 of the Act on Foreign Workers’ Employment which states that employers shall not give unfair or discriminatory treatment to foreign workers on the ground of their status. The Committee also notes from the Government’s 12th periodic report of 2002 under the International Convention on the Elimination of all Forms of Racial Discrimination (CERD/C/426/Add.2, 17 January 2005) that Consultation Centres for Foreign Workers have been established at the regional labour offices. In the same report, the Government also indicated that it paid close attention to any possible discrimination or prejudice against ethnic minorities and that it undertook awareness raising and other measures to counter them. The Government is requested to provide information on the concrete measures taken to promote and ensure equality of opportunity and treatment of foreign workers and ethnic minorities, including the activities of the relevant public authorities, such as the National Human Rights Commission, the Consultation Centres referred to above, and the labour inspection services.

6. Article 4. Measures affecting persons suspected of or engaged in activities prejudicial to the security of the State. Recalling its previous comments regarding this Article, the Committee notes the Government’s statement that under section 14 of the National Security Act, the courts may, along with other punishments, suspend the qualification of persons convicted under the Act from practicing a certain profession for a certain period of time. The Committee again requests the Government to provide a copy of the National Security Act, which was not attached to the Government’s report. It also reiterates its request to the Government to provide information on examples of convictions that have led to restrictions of professional activities. The Committee wishes to receive such information in order to examine whether state security measures affecting access to employment and occupation are in accordance with the requirements of the Convention (General Survey, 1988, paragraphs 134-138).

7. Part IV of the report form. The Committee is requested to continue to provide information on judicial and administrative decisions relevant to the application of the Convention.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

1. Article 1 of the Convention. Legislative protection from discrimination. Recalling its previous comments on the absence in national laws and regulations of a prohibition of discrimination on the grounds of race, colour, national extraction and political opinion, and regarding the application of the Convention to domestic workers, dispatched workers, as well as foreign workers present in the country, the Committee notes with satisfaction that under the National Human Rights Commission Act (No. 6481 of 24 May 2001), any person may file a petition with the National Human Rights Commission against acts of unreasonable discrimination on the ground of gender, religion, disability, age, social status, regional, national or ethnic origin, physical condition such as features, marital status, pregnancy or delivery, family status, race, skin colour, thought or political opinion, criminal record, sexual orientation or history of diseases. Under the Act, acts of unreasonable discrimination include any act of favourably treating, excluding, differentiating or unfavourably treating a particular person in employment, including recruitment, appointment, training, assignment of tasks, promotion, payment of wages and other commodities, age limit, retirement, and dismissal, etc., as well as such acts in respect to the use of educational facilities and vocational training institutions (section 30 (2)). Further, the Commission may initiate investigations on its own motion. It also has wide promotional functions, including undertaking surveys on human rights, including regarding discrimination in employment and occupation. The Committee requests the Government to provide information on the practical application of these provisions, including on the nature and outcome of any petitions filed, or investigations and surveys conducted under the Act with respect to employment and occupation.

2. Article 5. Measures of protection and assistance. Recalling its previous comments regarding overtime limitations applying to all women contained in section 69 of the Labour Standards Act, the Committee notes with satisfaction that section 69, as amended by Act No. 6507 of 14 August 2001 now limits the possibility to perform overtime work only for women who have given birth during one year following delivery.

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

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the first and second reports of the Government and the attached legislation. It asks the Government to provide further information in its next report, on the following points.

1. Article 1(1) of the Convention. The Committee notes the various national laws and regulations prohibiting discrimination on the basis of sex, religion and social origin, including in particular the Labour Standards Act, the Equal Employment Act and the Gender Discrimination Prevention and Relief Act. Noting that 28 per cent of all women workers are employed in companies with less than five workers, the Committee asks the Government to provide information on the application of the Convention to women employed in workplaces with less than five employees.

2. Recalling that the protection from discrimination in employment and occupation on the grounds listed in Article 1(1)(a) extends to all workers, the Committee also invites the Government to indicate by what means the Convention is applied to domestic workers and "dispatched workers" (contracted workers from agencies) and to provide information on measures taken to provide protection from discrimination on the basis of grounds covered by the Convention to foreign workers present in the country.

3. The Committee notes that the relevant laws do not prohibit discrimination on the basis of race, colour, national extraction or political opinion and that no provision prohibits indirect discrimination on the grounds listed in the Convention. The Committee recalls that where provisions are adopted in order to give effect to the principles contained in the Convention, they should include all of the grounds of discrimination laid down in Article 1, paragraph 1(a), of the Convention (see General Survey on equality in employment and occupation, 1988, paragraph 58). It therefore requests the Government to indicate in its next report by what means the national policy to eliminate discrimination in employment and occupation of all workers on the basis of race, colour, national extraction or political opinion is being declared and pursued in legislation and practice. Noting that indirect discrimination is prohibited under the Prevention of Gender Discrimination and Relief Act, the Committee also asks the Government to indicate how protection from indirect discrimination on grounds other than sex is ensured.

4. Article 1(2). The Committee notes that certain restrictions in employment on the basis of sex, as laid down in section (3)(1) of the Administrative Regulation on Equal Employment, are not regarded as discrimination. In order to enable the Committee to appreciate fully these provisions in light of the requirements of Article 1(2) of the Convention, the Government is requested to provide further clarification regarding the application of that section in practice, including by giving concrete examples of activities falling under subparagraphs (a), (b) and (c). Please also provide a copy of the Official Appointment Test Regulation, and practical information on its application.

5. Article 1(3). The Committee notes that in 1999, 17.7 per cent of working women were holding university or college degrees or had a higher level of education, compared to 27.9 per cent in the male labour force. The Committee also notes that among working women, in 1999, only 13 per cent were employed as professionals, technicians and managers, while the percentage among men in these occupations was 23.3 per cent. In contrast, women were over represented in the occupational groups of clerks and service and sales workers. The Committee requests the Government to provide statistical information on university and college graduates, disaggregated by sex and academic discipline. Noting that equality in respect of vocational training and guidance is provide for under the law, the Committee requests the Government to give indications regarding the number of women and men currently receiving vocational education and training in public and private training facilities as well as on their distribution in the various technical fields. The Committee requests the Government to keep it informed on measures taken or contemplated to promote equal access of women to training and occupations in which they are underrepresented, and to decision making and management positions.

6. Article 4. The Committee notes that a conviction for crimes related to national security can lead to restrictions on exercising the professions of architect or publisher. In this regard, the Committee requests the Government to provide the texts of the Act on Architects and the Act on Registration of Periodicals. The Government is further asked to supply the national legislation which provides for conviction for crimes related to national security. The Committee also wishes to receive information on convictions that have led to restrictions on exercising the profession of architect or publisher. Noting the information in the Government’s report on the right to appeal to the Constitutional Court, the Committee would be grateful if the Government would indicate the provisions on the basis of which a person could lodge such an appeal for protection against discrimination on the basis of political opinion. Please also submit any court case involving an alleged infringement of equality rights related to restrictions to exercise the profession of architect or publisher resulting from a conviction under national security laws.

7. Article 5. The Committee notes that section 63 of the Labour Standards Act prohibits employment of female workers for any work detrimental to morality and health, or any dangerous work. The Committee also notes that section 68 of the Labour Standards Act outlaws night work of females, except where consent of the worker concerned and approval by the Ministry of Labour are obtained, and that section 69 restricts the possibility of women to perform overtime work. In this respect, the Committee recalls that, because of the protection and assistance, which they are to pursue, special measures under Article 5 of the Convention should be reviewed periodically in the light of the principle of equality and be proportional to the nature and protection needed. The Committee requests the Government to provide a list of work that is considered to fall within section 63. The Committee notes that a general restriction of overtime hours without linkage to maternity protection as currently provided for in the Labour Standards Act, may have an impact on the full application of the Convention, as it appears to disadvantage women unduly in the labour market. The Committee requests the Government to provide further information on the application of this section in practice. Noting that the abovementioned measures had been under review recently, the Committee requests the Government to keep it informed of any new developments in this regard.

8. Part III of the report form. The Committee asks the Government to supply information on the mandate and functioning of the Human Rights Commission, including a copy of the legislation establishing it. Please also provide information on the Commission’s activities as regards protection from discrimination and the promotion of equality in employment and occupation.

9. Part IV of the report form. The Government is requested to continue to provide judicial or administrative decisions relevant to the application of the Convention.