Solicitud directa (CEACR) - Adopción: 2023, Publicación: 112ª reunión CIT (2024)

Convenio sobre el trabajo forzoso, 1930 (núm. 29) - República de Corea (Ratificación : 2021)

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The Committee takes due note of the Government’s first report. It also notes the observations made by the Social Service Workers Union received on 1 September 2023, the Korean Confederation of Trade Unions (KCTU) received on 2 September 2023 and the Federation of Korean Trade Unions (FKTU) received on 8 September 2023 as well as the Government replies received on 5 October and 3 November 2023.

Articles 1(1) and 2(1) and 25 of the Convention. 1. Legal framework criminalizing forced labour. The Committee notes that a number of provisions of the legislation refer to the prohibition of forced labour or practices that could amount to forced labour:

section 7 of the Labour Standards Act as amended by Act No. 18176 of 2021: no employer shall force an employee to work against his or her own free will through the use of violence, intimidation, confinement, or any other means by which the mental or physical freedom of the employee might be unduly restricted which is punishable by imprisonment of not more than five years or a fine (section 107);
section 25-2 of the Seafarers Act as amended by Act No. 18697 of 2022 contains similar provisions prohibiting the forced labour of seafarers which shall be punishable with imprisonment for not more than five years or by a fine (section 167).
section 288(2) of the Criminal Act as amended by Act No. 17571 of 2020: obtaining or maintaining another person under his/her control by means of threat or use of force for purposes of labour exploitation shall be punishable with imprisonment from two to fifteen years:
section 324 of the Criminal Act establishes penalties of imprisonment or a fine for coercing another person to do any unobliged work.

The Government’s report indicates that from 2018–22, seven cases of forced labour under section 7 of the Labour Standards Act were identified during labour inspections, which were brought to justice.

The Committee observes that the penalties imposed on perpetrators of forced labour under section 107 of the Labour Standards Act, section 25-2 of the Seafarers Act and section 324 of the Criminal Act may be limited to a fine, which does not constitute an effective sanction in light of the seriousness of the violation and the fact that the sanctions need to be dissuasive (see the Committee’s 2012 General Survey on the fundamental Conventions, paragraph 319). The Committee therefore requests the Government to provide more detailed information on the investigations and prosecutions carried out in relation to cases of forced labour identified as well as convictions and the penalties applied to perpetrators, with an indication of the facts giving rise to the legal proceedings and the provisions used by the prosecution and judicial authorities.

2. Trafficking in persons. The Committee notes that section 289 of the Criminal Act establishes penalties involving imprisonment for up to 15 years for the offences related to selling, buying or transporting any person for the purposes of labour or sexual exploitation. It also notes that the United Nations Human Rights Committee (HRC) on the International Covenant on Civil and Political Rights (CCPR), in its concluding observations of 3 November 2023, noted the adoption of the Act on Prevention of Human Trafficking and Protection of Victims in 2021 and the Comprehensive Plan for Prevention of Human Trafficking (2023–27) in March 2023 (CCPR/C/KOR/CO/5). The Committee requests the Government to provide information on the measures taken to prevent trafficking in persons as well as measures to identify, protect and support victims of trafficking within the framework of the Comprehensive Plan for Prevention of Human Trafficking 2023–27. It requests the Government to provide information on any monitoring and evaluation of the implementation of this plan, as well as the findings and measures taken as a result. The Committee also requests the Government to supply a copy of the Act on Prevention of Human Trafficking and Protection of Victims in 2021. Lastly, it requests the Government to provide information on the number of investigations and prosecutions carried out and the penalties imposed for offences related to trafficking in persons.

3. Vulnerable situation of migrant workers. The Committee notes that the Act on the Employment of Foreign Workers No. 18929 of 2022, under section 25, permits a foreign worker to apply for change of his/her work or workplace on the event (i) if his/her employer intends to terminate the labour contract or refuses to renew the contract; (ii) of temporary shut-down, closure of business or revocation of employment permission; or (iii) any other cause or event prescribed by Presidential decree occurs (which, according to the Presidential Decree No. 32844, 2022 relates to situation where a foreign worker is unable to continue his/her service due to injury and so on). The Act also stipulates that a worker who fails to obtain a permission of transfer to another workplace within three months from the date of application or fails to file an application within one month after the expiration of the labour contract shall leave the country. Furthermore, such change of work shall not exceed three times during the contract period or two times during the extended period (section 24(3) and (4)).

The Committee notes that the KCTU, in its observations, states that the Act on the Employment of Foreign Workers, limits change of workplace by migrant workers in some exceptional cases, such as cases where there is a reason attributable to an employer, and even sets the limit on the number of workplace changes so that migrant workers cannot fully use the opportunity, and all of them correspond to excessive restrictions on the “freedom to leave their employment.” Furthermore, according to the KCTU, the act is problematic in that it leads migrant workers to hesitate to file an application for change of workplace due to the risk of deportation, and, as a result, they are forced to endure poor working conditions and provide labour involuntarily. The Committee also notes that the Ministry of Employment and Labour Notification No. 2021-30, as referred to by the KCTU, provides for violation of the terms and conditions of the employment contract and unfair treatment at the workplace, as reasons for a change of workplace. However, the number of applications for workplace change due to reasons such as working conditions different from the employment contract, the employer’s violation of terms and conditions on working conditions, or unfair treatment is much lower. The KCTU also adds that the employers often confiscate migrant workers’ passports and other identity documents.

According to the observations of the FKTU, the Employment Permit System gives employers significant control over their employees leading to instances of labour exploitation, low wages coupled with long working hours and incidents of violence against migrant workers.

The Government, in its reply, indicates that the change of workplace policy is an inevitable aspect of achieving the purpose of the Employment Permit System, which is to reduce competition for jobs with domestic workers and to alleviate labour shortages in small and medium-sized enterprises by restricting the indiscriminate movement of workplaces. With regard to the retention of passports and identity documents by the employer, the Government indicates that various measures are taken to prevent and respond to human rights violations of migrant workers, including: conducting educational programmes for employers hiring workers; and increasing the annual number of inspections and guidance sessions to detect cases of employers retaining migrant worker’s passports. Employers found to be in violation of the laws face administrative and judicial measures, including the potential cancellation and restriction of their Employment Permits, along with other penalties.

In this regard, the Committee notes that the HRC on CCPR, in its concluding observations, expressed concern that migrant workers are particularly exposed to labour exploitation and forced labour due to practices, including confiscation of identification documents by employers. The Committee requests the Government to continue to take the necessary measures to prevent and monitor passport confiscation by employers and to provide information on the number of violations detected and the specific penalties imposed. The Committee further requests the Government to take the necessary measures to ensure that foreign workers are aware of their right to change work or workplace in case of violation of their labour rights or unfair treatment as laid down under the Ministry of Employment and Labour Notification No. 2021-30 as well as on mechanisms available to enable them to seek redress in the event of a violation of their rights or abuse, without fear of reprisal.

Articles 1(1) and 2(1). Freedom of career military members to leave their service.TheCommittee requests the Government to indicate any provisions applicable to career military members as regards their right to leave the service, in time of peace, at their own request, either at certain reasonable intervals or by means of notice of reasonable length.

Article 2(2)(a). Compulsory military service. The Committee notes that article 39 of the Constitution and section 3 of the Military Service Act require all male citizens to perform mandatory military service. As per section 12 (1)(1) of the Military Service Act, persons who are physically and psychologically healthy enough to perform active or supplementary service shall be determined at Physical Grade I, II, III or IV. The Committee also notes that according to section 5(3) of the Military Service Act, individuals who are found to be physically capable of serving on active duty through the draft physical examination, may not be determined as active-duty soldiers, but instead be determined as social work personnel in supplementary service, based on the supply and demand conditions of the armed forces. “Social work personnel” as defined under section 2(1)(10) means persons called up to serve in the field of public interest to support social service duties, related to social welfare, health and medical service, education, culture, environment, safety, which are necessary for the following agencies, for serving the public interest: (a) State agencies; (b) Local governments; (c) Public organizations; and (d) Social welfare facilities installed under article 2 of the Social Welfare Services Act. The Government indicates that section 65(8) of the Military Service Act was amended in 2021 to enable social work personnel fulfilling their duty for military service or persons in supplementary service who are called to be social work personnel to change their assignment to active military service if they desire to do so, thereby expanding the right to choose between active service and supplementary service.

The Committee notes that the Social Service Workers Union (SSWU), in its observations, considers that social work service mandated to conscripts who receive physical grade IV following the draft physical examination, is a state act of forcing citizens to perform compulsory military service for work of a non-military character. It states that the amendment of article 65 which was intended to give conscripts who receive physical grade IV the option to choose between active service and social work service was never envisaged as a privilege, but a means to pursue economic and social development through the use of compulsory labour. Moreover, the violation of service obligation by social work personnel entails criminal conviction according to section 89(3) of the Military Service Act. The SSWU points out that after the amendment, only 87 conscripts in 2021, and 941 conscripts in 2022, who received a physical grade IV were able to serve active military duty.

The FKTU, in its observations, considers that though the legislation provides conscripts with physical grade IV, the option to choose active service, it remains difficult to dismiss the aspects of forced and compulsory labour and therefore, there is a need for institutional improvements. The FKTU also indicates that, due to the compulsory nature of this service, instances of harassment and the imposition of unreasonable labour on such personnel have become frequent occurrences at their assigned service locations.

In its reply, the Government states that the fact that fewer conscripts with a physical examination grade IV are serving on active duty is a result of those conscripts choosing the social service system because of the preferential treatment of social service personnel, and not because the Korean government considers conscripts with a physical examination grade IV incapable of serving on active duty. The Government further states that the social service personnel system was introduced in accordance with the Military Service Act to ensure the fulfilment of military service without exception, and it is recognized that social service personnel have fulfilled their military service obligations. Given that the active-duty soldiers are subject to a strict military regime, living in a military environment and maintaining a state of readiness for combat preparation and training, the social work personnel are often perceived as having significant privileges, as they fulfill social service duties while being able to commute. The Government also indicates that, following the 2021 amendment, there have been as many as 4,274 applicants for active-duty service.

The Committee observes that although the amendment grants conscripts the possibility of choosing between military service and work of a non-military character in the context of national service, such a choice does not exclude the application of the Convention, since the choice is made within the context and on the basis of the legal obligation to perform mandatory military service as provided for by the Constitution and the Military Service Act. The existence of such a choice is not sufficient to obscure the fact that the persons concerned are mobilized in the framework of a statutory national service obligation, without necessarily performing work related to the need to ensure national defence, which is at the basis of the exception envisaged by Article 2(2)(a).

The Committee recalls that, as regards national service obligations imposed outside emergency situations, only compulsory military service is excluded from the scope of the Convention, subject to the condition that it is used “for work of a purely military character” (Article 2(2)(a)), this condition being aimed specifically at preventing the call-up of conscripts for public works or development purposes. In order to bring the legislation into line with the Convention, the principle that such non-military tasks are restricted to emergencies or performed exclusively by volunteers should be clearly reflected in the legislation (see the Committee’s 2012 General Survey on the fundamental Conventions, paragraph 288). The Committee therefore requests the Government to take the necessary measures, both in law and practice, to ensure that work carried out in the context of mandatory military service is limited to work of a purely military nature, in accordance with Article 2(2)(a) of the Convention. Meanwhile, the Committee requests the Government to provide information, disaggregated by year, on: (i) the number of male citizens under the obligation to perform mandatory military service; (ii) the total number of those enlisted; (iii) the number of those found capable of serving on active duty but not enlisted; and (iv) the total number of those who are performing social work service. The Committee also requests the Government to provide information on the nature and types of work carried out within the framework of the social work service.

Article 2(2)(c). Prison labour. 1. Work of prisoners for private entities. The Committee notes that according to section 67 of the Criminal Act, imprisonment with labour shall be executed by confinement in a correctional facility and performance of prescribed work. As per section 66 of the Administration and Treatment of the Correctional Institution Inmates Act, No. 16925, 2020, convicted prisoners have the obligation to perform the work assigned to them and other labour. Section 7 of this Act stipulates that the Minister of Justice may entrust a part of the duties concerning the establishment and operation of correctional facilities to either a corporation or an individual. Moreover, section 68 facilitates work of prisoners by commuting to an outside enterprise or at the place of work of an outside enterprise installed within the correctional institution. Accordingly, section 61 of the Regulation establishing Guidelines for the Operation of Correctional Labour provides that individuals selected as external commuting workers shall write and submit a consent form for employment to the Director of the facility. The Committee also notes the Government’s information that the “Somang Correction Facility”, the only private prison in the Republic of Korea which is operated under the Government’s strict oversight and supervision, selects and accepts applicants who have submitted an application for admission in advance.

The Committee observes that the consent of sentenced inmates to work for private entities” appears to be required for external commuting workers through the submission of a consent form for employment to the Director of the facility. However, the Committee observes that the legislation allows entrusting a part of the duties concerning the operation of correctional facilities to private entities, which may include duties relating to providing work inside the establishment. In this regard, the Committee recalls that, to be compatible with the Convention, prisoners’ work for private entities must be performed on a voluntary basis, implying the free and informed consent of the prisoners and a certain number of safeguards, indicating the existence of conditions of work which approximate those of a free employment relationship The Committee therefore requests the Government to provide information on the legislative provisions that regulate the procedures and working conditions of prisoners working in the privately operated prison as well as in correctional facilities in which private entities operate. The Committee asks the Government to indicate how, in practice, it is ensured that the prisoners concerned offer themselves voluntarily, by giving their free and informed consent. It also requests the Government to provide further information on the consent form for commuting workers and to provide a copy of the same.

2. Community service. The Committee notes that, according to sections 69, 70, and 71 of the Criminal Act, a person who fails to pay the fine imposed on him/her, on time, or in full, shall be confined in a work house and shall work for a period prescribed depending upon the amount of fine imposed. The Committee requests the Government to indicate the type of work and the establishments in which, convicts may have to undergo work pursuant to sections 69, 70 and 71 of the Criminal Act for failure to pay the fine imposed as well as to indicate the beneficiaries of such work.