Solicitud directa (CEACR) - Adopción: 2004, Publicación: 93ª reunión CIT (2005)

The Committee notes the first report supplied by the Government on the application of the Convention. It also notes the subsequent adoption of the Act No. 6967 of 16 August 2003 on foreign workers employment. The Committee wishes to draw the Government’s attention to the following point.

Article 1, paragraph 1, of the Convention. (a) The Committee notes that the Act on foreign workers’ employment regulates, since August 2004, the employment of foreign workers in the country. It states that, according to article 22 of this Act, an employer shall not give unfair and discriminatory treatment to foreign workers on grounds of their status. The Committee further notes that by virtue of article 23(2) of the same Act, foreign workers employed in certain businesses or workplaces shall subscribe to casualty insurance to cover themselves against any illness or death, whereas under articles 5 and 7 of the Industrial Accident Compensation Insurance Act (IACIA), all enterprises using workers, except those businesses determined by presidential decree, shall be bound to be insured under the industrial accident compensation insurance. The Government indicates in this respect that under the IACIA all those defined as "workers" in the Labour Standards Act (i.e. persons engaged in whatever occupation offering work to a business or workplace for the purpose of earning wages) are compensated in case of industrial accident. However, observing that the Act on foreign workers employment does not contain explicit provisions to the purpose of assimilating foreign workers with employment permits to "workers" within the meaning of IACIA, the Committee would be grateful if the Government would supply detailed information concerning the manner in which relevant acts or regulations ensure effective equality of treatment between Korean nationals and employed foreign workers in cases of injury due to the industrial accidents.

(b) The Committee notes from the Government’s report that foreign persons are also working in the country as industrial trainees and that two successive Supreme Court rulings, of respectively 1995 and 1997, considered that a foreigner who entered the country not as a worker but as an industrial trainee, signed an employment contract with a company covered by the IACIA and was subsequently injured at work, shall be assimilated to a "worker" as defined under the Labour Standards Act and therefore entitled to compensation for injuries under the IACIA. However, considering that these two rulings seem to concern the application of the previous IACIA, the Committee wishes the Government to specify in its next report the legal regime applicable to foreign trainees suffering personal injury due to industrial accidents, and especially whether article 105-3 of the IACIA providing that on-the-job trainees shall be considered as workers employed in the business for the application of the Act is also applicable to foreign industrial trainees.

The Committee hopes that the Government will supply the requested information with its next report and recalls that according to Article 1, paragraph 1, of the Convention, each Member of the ILO which ratifies it undertakes to grant to the nationals of any other Member which shall have ratified the Convention, who suffer personal injury due to industrial accidents happening in its territory, or to their dependants, the same treatment in respect to workmen’s compensation as it grants to its own nationals.