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

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

Other comments on C111

Observation

Direct Request

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The Committee notes the Government’s report in reply to the request made by the Conference Committee on the Application of Standards in June 2011. The Committee notes the observations of the Federation of Korean Trade Unions (FKTU) and the observations of the Korea Employers’ Federation (KEF), attached to the Government’s report, the communication from the Korean Confederation of Trade Unions (KCTU), dated 31 August 2012, and the communication of the International Organisation of Employers (IOE) and the KEF, dated 31 August 2012, as well as the Government’s replies thereto. The Committee also notes the observations made by Education International (EI) and the Korean Teachers and Education Workers’ Union (KTU), dated 31 August 2012, and the Government’s reply thereto of 23 October 2012.

Articles 1 and 2 of the Convention. Migrant workers. The Committee recalls that the Conference Committee concluded in 2009 that the issue of protecting migrant workers from discrimination and abuse required the Government’s continued attention and requested the Government to pursue, and where necessary, to intensify efforts in this regard. It had also called on the Government to review the functioning of the current arrangements for workplace changes, in consultation with workers’ and employers’ organizations, with a view to determining how best to achieve the objective of reducing migrant workers’ vulnerability with regard to abuse and violations of their labour rights.

The Committee notes from the Government’s report that changes were made recently to the Act on employment, etc. of foreign workers and the Employment Permit System (EPS). With respect to the possibility for a migrant worker to change workplace, section 25(1) of the Act was amended in 2012, so as to allow such a change in “cases publicly announced by the Minister of Employment and Labour, where it is deemed difficult to work in the workplace considering social norms, due to a reason not attributable to the worker, such as temporary shutdown, business closure, cancellation of the employment permit, restrictions on employment and violations of working conditions or unfair treatment by the employer” (new section 25(1)(2)). The Committee recalls that under the EPS, a worker is permitted to change workplaces a maximum of three times, unless the change is due to “a reason not attributable to the foreign worker”. Pursuant to the amendment to section 25, a change of workplace due to “unfair treatment by the employer” is now considered as a change for “a reason not attributable to the worker” and therefore is not included as one of the three permitted changes under the EPS. In addition, the Ministry of Employment and Labour issued a Notification (No. 2012-52) according to which “unfair treatment” covers “unreasonable discrimination by the employer, etc. on the grounds of his/her nationality, religion, gender, physical disability, and so on”.

The Committee notes that, according to the IOE, which reflects the position of the KEF, the right of the foreign worker to stay in Korea arises from the labour contract signed between the worker and his or her employer and in principle he or she should continue to work in the workplace where permission for employment was first obtained. The IOE considers, therefore, that the limitation on the number of workplace changes is not a violation of foreign workers’ rights. According to the IOE, foreign workers should receive pre-employment training in the sending country and should be made aware of the Korean labour legislation and the system of grievances. The Committee notes from the observations of the KCTU that despite the amendment to section 25(1), it is very difficult for migrant workers to apply for a change of workplace in practice when they face unfair treatment, discrimination or even serious violations of their human and labour rights for a number of reasons: the burden of proof on the worker; language difficulties and the absence of legal support; the lack of appropriate criteria when the request for change is examined by the job centre; and the obligation for the worker to continue to work at the same workplace during the period of the investigation (up to one month). The Government indicates that a foreign worker can file a complaint with a labour inspector or the police and request a change of workplace on the basis of the results of the investigation. In addition, when it is “objectively recognized” that a foreign worker suffers discrimination, he or she may request immediately a change of workplace and therefore does not have to continue to work in the workplace while awaiting the results of the investigation. The Government also states that the Ministry of Employment and Labour provides interpreters and has set up 60 job centres, 34 support centres for foreign workers and one call centre to provide counselling and support with regard to grievances and labour law issues.

The Committee notes the Government’s indication that 94.7 per cent of foreign workers who applied for a change of workplace succeeded in transferring to another workplace within the three-month permitted period in 2011 (compared to 96.7 per cent in 2010), that the main reason for a change of workplace was termination of or refusal to renew the labour contract (85.6 per cent), and that violation of the employment contract was invoked only in 0.13 per cent of the cases during the period 2010–11. The Committee notes that the KCTU considers that these statistics are not reliable, because workers must obtain permission from their employer to request a change of workplace, and they are forced, or sometimes advised by the Ministry, to change the reason invoked in the middle of the procedure for fear of rejection of their case. The Committee notes the Government’s explanation that a confirmation from the employer is only required when the reason invoked is termination of employment. The Committee notes from the KCTU’s observations that in August 2012 a new government policy entitled “Measures for Improvement in Foreign Workers’ Change of Workplace and Prevention of Broker Intervention” ended the practice of providing migrant workers with a list of companies offering jobs, and introduced a system operated by job centres, whereby employers are provided with a list of migrant workers seeking employment, thereby limiting their ability to choose their employer.

With respect to the possibility of being re-employed, the Committee recalls that migrant workers who have entered Korea under the EPS can be employed up to four years and ten months and then should go back to their country. The Committee notes the Government’s indication that since July 2012, foreign workers in small businesses (50 workers or less) in the agricultural, livestock and fisheries industries and manufacturing businesses, who have worked “faithfully in the same workplace for four years and ten months without transferring to another workplace” are entitled to re-enter and be re-employed in Korea after a period of three months outside of the country. The Government also indicates that foreign workers who have transferred to another workplace during their employment period may re-enter and work again in Korea after a period of six months outside of the country “through the special Korean language test system”. The Committee notes that the KCTU points out that, given that most migrant workers want to work in Korea longer, in practice, this system prevents them from requesting a change of workplace and escaping poor working conditions in order to be able to return to Korea.

The Committee notes from the Government’s report the high number of violations found in the 2,241 workplaces employing foreign workers that were inspected in 2011 (7,994 violations, of which 1,768 concerned wages and other working conditions, including gender discrimination). It further notes that fines were imposed in only 74 cases and only six cases resulted in prosecutions. With respect to complaints lodged by migrant workers, the Committee notes that, according to the information provided by the Government, most of the complaints relating to discrimination brought before the National Human Rights Commission (NHRC) were rejected or dismissed.

While noting the changes in the legislation regarding the EPS, the Committee asks the Government to take the necessary steps to ensure that in practice the EPS, including the “re-entry and re-employment system”, allows for appropriate flexibility for migrant workers to change their workplaces so as to avoid situations in which they become vulnerable to abuse and discrimination on the grounds set out in the Convention, and to report on the measures taken. The Committee also asks the Government to ensure that measures are taken to provide migrant workers with adequate access to procedures and remedies in case of discrimination and to ensure that appropriate sanctions are applied. In this respect, the Committee requests the Government to provide clarification on the following points:

(i) the definition of the expression “unreasonable discrimination” used in Notification No. 2012-52 as well as the grounds of discrimination covered; and
(ii) how, and by which authority, is it “objectively recognized” that a foreign worker suffers discrimination and therefore does not have to wait for the outcome of the investigation on his or her request for a change of workplace to leave to employer.

The Committee also asks the Government to take measures to raise awareness among workers and employers of the new provisions in the Act on employment, etc. of foreign workers, in particular the new rules concerning changes of workplace, as well as of the anti-discrimination legal provisions in force and the relevant procedures available, including with respect to sexual harassment. Please continue to provide information on the inspection of workplaces employing migrant workers (number of enterprises inspected and workers covered, number and nature of violations detected, and remedies provided), as well as the number, content and outcome of complaints brought by migrant workers before labour inspectors, the police, the courts and the NHRC.

Discrimination on the basis of sex and employment status. The Committee recalls that the Conference Committee requested information concerning the difficulties encountered with the enforcement of the Act on the protection, etc. of fixed-term and part-time employees, which prohibits discriminatory treatment of these workers based on their employment status. The Conference Committee also requested information on whether trade unions were authorized to bring complaints on behalf of victims of such discrimination, and 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. The Committee notes that, according to the Government, as of March 2012, there were 5,809,000 non regular workers (contingent, part-time and atypical workers), representing 33.3 per cent of all wage earners (47.8 per cent according to the KCTU which alleges that a large number of persons in “special types of employment” are excluded from the Government’s statistics) of which 53.7 per cent are women. The Committee further notes from the statistics provided by the Government that the hourly gross wage of female non-regular workers (i.e. the majority of female workers) represents only 42 per cent of the hourly gross wage of male regular workers. According to the KCTU, which continues to express concern regarding the discrepancies between regular and non-regular workers, there is no indication of any improvement of the situation of non-regular workers. The KCTU is also of the view that fixed term contract workers are excessively used, and that the recruitment of such workers should only be permitted in certain cases. The Committee also notes the observations made by the FKTU according to which, despite legislative protection, in practice women on fixed-term contracts often face disadvantages and even dismissal, due to pregnancy, childbirth, and childcare. The FKTU points to the high concentration of women workers in precarious employment and reports an increase in cases of sexual harassment as well as cases of verbal abuse and disrespect against “indirectly employed” workers. According to the IOE, after the introduction of the Act on the Protection, etc. of Fixed-term and Part-time Employees in 2007, a significant improvement of the situation with regard to discrimination was reported by many companies. In addition, the IOE states that there have been many criticisms regarding the scope of the protection against discrimination. The IOE considers that prohibiting discrimination related to wages and working conditions is appropriate, but not other aspects such as welfare and other advantages and, in the case of subcontracting, it is not reasonable to apply the same conditions of work to workers hired by different companies.

The Government indicates that a set of measures was adopted in 2011 with a view to “removing irrational discrimination against non-regular workers and reinforcing the social safety net for vulnerable workers”. The Committee notes the Government’s statement that it took measures aimed at converting non-regular employment into regular employment by expanding vocational training, converting public sector non-regular workers into workers with open-ended contracts, and obliging the employer to directly and immediately employ dispatched workers in case of illegal dispatch.

The Committee notes that as pointed out by the KCTU, the number of cases of discrimination brought before the Labour Relations Commission significantly decreased in 2011 (46 compared to 194 in 2010) and half of them were dismissed, rejected or withdrawn. In this respect, the Committee notes the Government’s indication that the new measures also include an increase of the time limit for filing a complaint to seek redress from discrimination from three to six months as well as new advisory and supervision powers granted to labour inspectors to address discrimination against fixed-term, part-time and dispatched workers. The Committee notes the Government’s statement that trade unions cannot be given the right to file complaints on behalf of workers because they are neither a party whose rights are infringed as a result of discriminatory treatment nor a party who gains benefit from redressing discrimination. The Government however points out that according to section 36 of the Labour Relations Commission Regulations, a trade union may act on behalf of others with the approval of the chairperson of the Commission. The Committee notes that, according to the KCTU, under this procedure, the burden of filing a complaint remaining on the worker still requires the worker to first file a complaint and then an assignment is made to the trade union. The Committee recalls the importance of allowing trade unions to bring complaints as it reduces the risk of reprisals and is also likely to serve as a deterrent to discriminatory action, particularly in the context of non-regular employment.

The Committee asks the Government to take the necessary measures, including through the qualitative and quantitative strengthening of enforcement, to protect fixed-term, part-time and dispatched workers against discrimination, particularly women, and to provide information on the impact on precarious employment of the set of measures taken in 2011, including measures with a view to converting non-regular employment into regular employment and measures for the protection of subcontracted workers. Please indicate specifically the results of such measures on the employment of women as regular workers. Considering the particular vulnerability of non-regular workers to discrimination, the Committee asks once again the Government to consider taking steps to allow trade union representation with respect to complaints on behalf of fixed-term, part-time and dispatched workers under the existing anti-discrimination legislation, and to provide detailed information on whether and to what extent the procedure under section 36 of the Labour Relations Commission Regulations has been successfully used for trade union representation. It also asks the Government to provide information on the effect of the measures taken to increase time limits for filing a discrimination complaint on the number of complaints brought before the Labour Relations Commission and the results thereof. The Committee asks the Government to provide specific information on the advisory and supervisory activities of labour inspectors concerning discrimination against non-regular workers, including the number of workplaces inspected and male and female workers covered, the number and nature of the violations identified and the remedies provided and sanctions imposed.

Equality of opportunity and treatment of women and men. In its previous comments, the Committee noted that the Conference Committee had called on the Government to step up its efforts and to seek cooperation with the employers’ and workers’ organizations, to increase the low level of women’s participation in the labour market and reduce the gender pay gap. The Committee notes the detailed statistical information provided by the Government on the situation of men and women in workplaces subject to the affirmative action scheme (i.e. private enterprises with 500 employees or more and public institutions with 50 employees or more), which shows a very slow increase in the percentage of women workers and women managers employed in both the private and the public sectors from 2009 and 2011 (respectively 34.87 per cent in 2011 compared to 34 per cent in 2009 and 16.09 per cent in 2011 compared to 14.13 per cent in 2009). The participation of women in the labour force has been stable, around 54 per cent, in the past years. The Committee notes that, according to the Government, the low rate of women’s participation in the labour market is mainly attributable to their unsuccessful return to work after a career break. In August 2012, measures were taken with a view to reconciling work and family life, such as reduced working hours for childcare and a family care leave system, through the amendment of the Act on Equal Employment and Support for Work-Family Reconciliation. The Committee notes that the IOE expressed concern at the potential negative effect of measures to promote the employment of women, such as the family care leave, on the recruitment of women workers. In this respect, the Committee notes the Government’s indication that support would be provided to small enterprises to assist them with the replacement of workers.

The Committee notes the Government’s indication that honorary equal employment inspectors appointed by and in enterprises ensure that these enterprises voluntarily address gender discrimination and sexual harassment issues. Local and employment offices provide the honorary equal employment inspectors with training, have set up local consultative bodies to this end and have created a pool of instructors to provide training on measures to prevent sexual harassment in workplaces. In 2012, the Government developed administrative guidelines on the cooperation between local employment and labour offices and equal employment counselling centres regarding remedies to be provided to women who are victims of gender discrimination. The Committee also notes the FKTU’s indication that unions and women’s organizations have conducted counselling services on discrimination, sexual harassment at work and reconciliation of work and family responsibilities. The organization also states that expertise in gender discrimination and gender sensitivity of labour inspectors has significantly decreased and this has made it difficult to collaborate on these issues. As far as collaboration is concerned, the Government further indicates that it holds regularly a women employment policy forum, in which workers’ and employers’ organizations and experts on women’s policy participate, and that an expert advisory council in which workers’ and employers’ organizations and experts also participate, examines the functioning of the affirmative action scheme in order to improve it. The Committee notes from the observations of the FKTU that a significant number of workplaces have not implemented the affirmative action scheme, due to the low level of awareness among employers, and that the scheme should be provided with adequate budget and expertise. The Committee asks the Government to continue to take steps, in consultation with workers’ and employers’ organizations, to promote the access of women to employment both in the public and the private sector, in particular to a wide range of jobs and to take measures to address the underlying causes of gender discrimination, such as gender stereotypes on the role and the aspirations of women in employment and in society. The Committee asks the Government to continue to provide information on the results achieved in terms of employment of women through the implementation of the affirmative action scheme and the improvements thereof. It also asks the Government to provide information on the concrete activities conducted by honorary equal employment inspectors in enterprises and equal employment counselling centres in the field on gender equality and non- discrimination. The Committee also asks the Government to provide information on the application in practice of the reduction of working hours for childcare and the family leave care, indicating the proportion of men and women who have used this possibility, as well as information on any assessment made or envisaged of its impact on equality of opportunities between men and women in employment and occupation. Please provide a copy of the Act on Equal Employment and Support for Work-Family Reconciliation, as amended.

Discrimination based on political opinion. The Committee notes that EI and the KTU allege discrimination based on political opinion against pre-school, primary and secondary teachers. The KTU states that in May 2010, the Government announced that it would dismiss 183 teachers because they had made donations to the Democratic Labour Party (DLP) and therefore had joined the DLP illicitly, in violation of their obligation of political neutrality under the Korean Civil Servants Law. The KTU indicates that as of August 2012, eight teachers were dismissed, 21 were suspended and many were fined, and legal proceedings are still ongoing. The organization points out that only those teachers in primary and secondary schools are banned from joining a political party, participating in any political activities, and donating money to a political party under Korean Law. The Committee also notes that the KTU indicates that in June 2009, 17,147 teachers signed a statement requesting the withdrawal of education policies designed to create fierce competition among students at the expense of quality education for all. The KTU issued in July 2009 a second statement entitled “Teachers’ statement for the freedom of expression and protection of democracy” which was endorsed by 28,637 teachers. The Government filed a complaint against 89 KTU activists and initiated disciplinary procedures against them, and dismissed 15 KTU chapter heads and suspended 45 union staff members. The KTU indicates that the dismissed teachers have been reinstated by the courts’ decisions but that they took the case to the Supreme Court. In a ruling dated 19 April 2012, the Supreme Court decided that the teachers’ petition campaign was illegal since public servants should maintain political neutrality and that the political expression of teachers was against the public good and in violation of the Public Servant Act.

In its reply, the Government indicates that teachers, who are state public officials, are prohibited from engaging in political activities by law (State Public Officials Act) and that as an exception, university teachers are allowed to engage in political activities as party members. The Committee notes the explanations from the Government that this is due to a difference between the duties of elementary, middle and high school teachers and the duties of university teachers, the former being responsible for educating students as prescribed by law and the latter combining academic research and activities of teaching. The Government indicates that the Constitutional Court took a similar position. It further states that the Constitution and the law impose a duty of political impartiality on teachers, as state public officials, ban their involvement in political activities, and prohibit them from taking collective action for matters that are not their official duties. The Committee also notes the Government’s indication that, in the Court’s ruling on the case relating to the KTU’s statements, the issuance of statements and the gathering of signatures on such statements was an act of clearly manifesting a political bias or partisan views therefore incurring the direct risk of infringing political impartiality of teachers who are public officials.

The Committee recalls that the protection against discrimination on the basis of political opinion implies protection in respect of the activities of expressing or demonstrating opposition to established political principles and opinions and also covers discrimination based on political affiliation. The protection of political opinion applies to opinions which are either expressed or demonstrated, but does not apply where violent methods are used (General Survey on fundamental Conventions, 2012, paragraph 805). The Committee also recalls that the protection of freedom of expression is aimed not merely at the individual’s intellectual satisfaction at being able to speak his or her mind, but rather – and especially as regards the expression of political opinions – at giving him or her an opportunity to influence decisions in the political, economic and social life of the society. For political views to have an impact, the individual generally acts in conjunction with others (General Survey on Equality in Employment and Occupation of 1988, paragraph 57). The Committee also considers that political opinion may in certain circumstances constitute a bona fide qualification for certain senior posts which are directly concerned with developing government policy; however this is not the case when conditions of a political nature are laid down for public employment in general, or for certain other professions. In order to come within the scope of the exception provided for in Article 1(2) of the Convention, the criteria used must correspond in a concrete and objective way to the inherent requirements of a particular job (General Survey on fundamental Conventions, 2012, paragraph 831). The Committee requests the Government to take measures to ensure that elementary, primary and secondary school teachers enjoy protection against discrimination based on political opinion and requests the Government to provide information on the measures taken in this respect.