Observation (CEACR) - adoptée 2008, publiée 98ème session CIT (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.