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.