|The Employment System for Foreign Workers and Available Remedies for Violation of Their Legal Rights
Korea is now an “aged society” in addition to having low fertility rates, and has been introducing more foreign workers due to the resulting labor shortages. As of the end of October 2017, 2.14 million foreign nationals reside in Korea, accounting for 4.1% of the total population. That number is predicted to exceed 3 million within four years, which will be equivalent to 5.8% of Korea’s total population.
There are about 1.42 million foreign workers who remain in the country under an employment relationship. More specifically, there are 294,000 non-professional workers (20.7 percent), 833,000 overseas Korean workers (58.7 percent), 48,000 professionals (3.7 percent) with legal visa status, and 244,000 illegal workers (17.2%).
If foreign workers are to continue working here, they should be protected under labor law without discrimination. In practice, however, this does not happen the way it should. Some of the reasons include: ① the difficulty foreign workers have in identifying their rights in Korea because of their lack of ability to communicate; ② the absence of freedom of movement due to strict controls under the Immigration Act; ③ the limitations they have on choosing their workplace; and ④ the institutional problems that make legal remedy difficult to receive for violation of their rights. It is a matter of basic human rights for foreign workers to work where they are entitled to a life worthy of human beings and the right to pursue happiness, and the nation and the company have an obligation to protect these rights. Labor rights guaranteed by the Labor Standards Act are the minimum protections for human dignity, so that foreign workers can work in pursuit of this happiness.
In the following section, I will look at Korea's employment system for foreigners, remedies for violation of their rights, and ways to make improvements.
II. Employment Systems in Major Countries & Global Standards
1. Global Standards
Korea joined the United Nations (UN) and the International Labour Organization (ILO) in September 1991. It has ratified seven of the eight UN human rights treaties (year of Korean ratification in parentheses): ① the International Covenant on Economic, Social and Cultural Rights (1966); ② the International Covenant on Civil and Political Rights (1966); ③ the Convention on the Elimination of All Forms of Racial Discrimination (1978); ④ the Convention on the Elimination of All Forms of Discrimination against Women (1984); ⑤ the Convention on the Rights of the Child (1990); ⑥ the Convention for the Prevention of Torture (1995); and ⑦ the Convention on the Rights of Persons with Disabilities (2009). The UN Convention on the Rights of Foreign Workers (1990), which the Korean government has not yet ratified, contains provisions that would require Korea to change its current law on foreign workers’ human rights to meet global standards. However, since the Convention on the Rights of Foreign Workers is an internationally-recognized standard for labor rights, it is an important reference point for policymaking on foreigners in Korea.
Korea has also ratified the following ILO conventions: ① Convention No. 111 on Employment and Occupational Discrimination (1998) and ② Convention No. 19 on Equality of Treatment for National and Foreign Workers as regards Workmen’s Compensation for Accidents (2001). Korea has not yet ratified the 97th Foreign Workers Convention (of 1949) and the 143rd Convention on Migrant Workers (Supplementary Provisions, of 1975). The 97th Migrant Worker Convention allows family companions, but the Korean Employment Permit System does not. The 143rd Convention on Migrant Workers (Supplementary Provisions) includes provisions that Korea cannot accept: illegal workers cannot be discriminated against; foreign workers can accompany their families; and illegal workers have the same social security protections as legal workers.
2. The Foreign Employment Systems in Major Countries
In Germany, foreigners make up about 8.7% of the total population and are an essential part of the workforce, maintaining harmonious economic activities with domestic workers. In order to prevent domestic conflict and reduce social costs, professional foreign workers who can contribute to economic development are accepted on a preferential basis to stay for a long period of time while non-professional foreign workers are controlled to maintain a short-term cyclical system. Germany has also been embracing policies friendly to German workers from overseas. In 2005, an integrated immigration law was enacted which seeks to integrate foreign workers by providing them with German language and vocational skills education.
In Japan, foreigners accounted for 2.1% of the total population in 2015, with governments there maintaining conservative policies on their introduction as part of the workforce. Trainee systems are in place that do not recognize trainees as workers. Entry of non-professional foreign workers is strictly controlled to keep social costs down, while professional foreign workers are welcomed. There are primarily three ways Japan minimize the number of non-professional, non-Japanese foreign workers. First, simple work allows hiring of foreign workers, but only as industrial trainees through a “trainee practice system” rather than as workers. In effect, foreigners are employed for up to three years as short-term circulating trainees considered vulnerable under international labor standards. Second, Japan invites overseas Japanese workers from South America to work as permanent residents. Third, domestic foreign students are actively employed as short-time workers, able to work up to 20 hours a week and mostly in the services sector.
The United States was populated by immigrants to become the nation it is today, and the government still allows more than one million foreigners entry every year: 800,000 immigrants and 200,000 foreign workers. Foreign workers are accepted into three categories: about 85,000 H-1B (professional foreign workers), about 66,000 H-2B (non-farm workers) per year, and workers in agriculture (H-2) who are accepted without restriction in numbers in order to deal with the scarcity of labor in rural areas. Such non-professional foreign workers are used in short-term circulation for work in the agriculture and services sectors for a period of up to three years. After this period, they must leave the country. On the other hand, professional foreign workers are institutionalized to encourage them to stay long-term.
In Singapore, about 30% of the total population is made up of foreign workers. Singapore divides foreign workers into professional, semi-professional, and non-professional. People in the first two categories are strongly encouraged to stay, while non-professional foreign workers are used short-term for labor contracts of up to 4 years. In order to recruit a worker for simple work, the employer must pay a security deposit of SGD 5000 per person and pay a monthly employment levy. In addition, quotas are set for each workplace dictating how many foreigners they can hire. The professional workforce can stay on an unlimited basis as long as they are employed.
III. Korea’s Employment System for Foreign Workers
In Korea, non-professional foreign workers are currently introduced and managed through the Employment Permit System, while professional foreign workers are managed according to their immigration status in accordance with the Immigration Control Act. It is difficult to overcome the social conflict and backwardness of the industrial structure from having the Employment Permit System manage only non-professional workers.
We need to look at the employment systems for overseas Koreans and professional foreigners as well as non-professional foreigners to maintain a balance. Herein, I review the current status and problems with the employment systems in Korea, and suggest ways to improve them in reality.
First, I look at improving the protection of human rights for non-professional foreign workers. Specifically, ① granting the freedom to choose their workplace, ② granting the freedom to change their employer, ③ maintenance of a short-term circulation policy, and ④ decreasing illegal stays.
Second, I suggest active efforts to employ overseas Korean workers. This will necessitate abolishing the current employment system (H-2) and giving overseas Koreans in China and the states of the former Soviet Union a status of residence as overseas Koreans (F-4) from developed countries. In addition, the government would be wise to support education towards social integration for Korean workers on a systematic basis and assist them as they settle in Korea. Through this, the social costs of an increase in non-professional foreign workers will be reduced and needed numbers added to the labor force.
Third, I suggest plans to expand the introduction of professional foreign workers in the following ways: (1) Introduce a work permit system exclusively for professional foreign workers; (2) Integrate the management of professional foreign workers into the Foreigners’ Employment Act; (3) Establish a synergistic relationship between the Immigration Control Act and the Labor Standards Act; and (4) Promote the active employment of foreign students in Korea.
IV. Available Remedies for Violation of Foreign Workers’ Legal Rights
I review the current status and problems surrounding protection of foreign worker rights in individual employment relations, collective labor relations, social insurances and foreign workers’ insurance, and also suggest measures for improvement.
First, in terms of individual employment relations, details would include:
① Guaranteeing equal treatment: Prohibition of discrimination is the principle. However, in reality, when rules for exceptions recognize rationality, discrimination based on those rules is recognized as just discrimination. These rules are: (i) discrimination in working conditions based on proficiency with the Korean language, years of service, etc.; (ii) discrimination based on contractual terms of fixed-term workers under the Fixed-term Employment Act (Article 4); and (iii) discrimination by visa classification according to the Immigration Act (Article 17). However, if the degree of discrimination is excessive and violates the principle of proportion, it cannot be recognized as reasonable discrimination.
② Providing annual paid leave: This applies to foreign workers under statutory working conditions. Annual paid leave is a statutory leave granted as part of compensation for a month’s or a year’s work, but in reality, it is rarely given to foreign workers.
③ Establishing an exclusive administrative window for handling foreigners: Foreign workers are presently assisted by the system of Foreign Counseling Centers because they cannot communicate through general administrative offices and cannot have their rights-related complaints addressed. These centers do not represent a permanent remedy system but offer temporary specialized counseling and do not have administrative authority. Therefore, labor supervisors should be dispatched to these centers to give them that authority. The Anti-Corruption and Civil Rights Commission also advised the Ministry of Employment and Labor to grant administrative authority to Foreign Counseling Centers to resolve the complaints of foreign workers.
④ Introducing a legal system for foreign workers that integrates the Labor Standards Act and the Immigration Act.
Second, in terms of collective labor relations, details would include:
① The three labor rights must be guaranteed to improve working conditions. Current law and court rulings guarantee union activities for foreigners, but union activities will be limited due to the fixed contract periods of the members. Therefore, foreign workers should be actively accommodated by unit labor unions in the workplace or incorporated into local unions if they work at unorganized workplaces.
② The labor-management cooperation system needs to be revived and receive the participation of foreign workers.
Third, regarding social insurances for foreign workers, details would include: ① Regarding unemployment insurance, foreign workers should be required to subscribe, and more should receive vocational skills education. If foreign workers subscribe to unemployment insurance, they would be eligible for more than unemployment benefits, as allowances for maternity leave and childcare leave would kick in (Article 6 of the Employment Insurance);
② Regarding industrial accident compensation insurance, workplaces presently excluded from agricultural and livelihood coverage need to be included;
③ Regarding national health insurance, even illegal immigrants must be required to subscribe. National policy excludes the application of national health insurance for illegal workers, in order to prevent illegal stays (Article 109 of the National Health Insurance Act). However, the health of foreign workers should be protected as a fundamental human right.
④ Regarding national pension, as non-professional workers return to their home countries after serving a short period, the requirement to subscribe to Korea’s national pension scheme should be waived as they are not entitled to the benefits. Paying premiums for benefits they will never receive is a drain on the foreign worker as well as their employer. For professional foreign workers or overseas Korean workers who are able to stay for a long time, it is reasonable to require that they subscribe. As long-term care insurance for the elderly (part of the national health insurance scheme) kicks in for long-term hospitalization after age 65, non-professional foreign workers can apply for exemption from paying the related premiums. Following the same logic, the national pension system will need to be revised to allow non-professional foreign workers to apply for exemptions.
⑤ Regarding foreign workers’ insurance, it is necessary for foreign workers staying long term to be able to receive severance pay upon termination of employment, rather than the foreign workers’ departure guarantee (equivalent to severance pay) that can be collected only when leaving the country. This latter system is a violation of property rights and discrimination against foreigners by imposing restrictions on retirement pay, which is the part of wage to be paid to resigning workers on condition of resignation. Although the Constitutional Court has decided that it is a legal action taken to prevent illegal stays, it is necessary to supplement the system so that it allows foreign workers to stay for a long time to receive the foreign workers’ departure guarantee as retirement allowance before they depart only as an exception.
When evaluating Korea’s employment system for foreigners, it is important to see the advantages and disadvantages together of their use and protect their human rights. The changes proposed above to these employment and remedy systems for foreign workers will enable Korea to develop as a society where foreigners and Koreans can work together and coexist harmoniously. Therefore, foreigners who stay for a long time should no longer be considered foreigners, but acknowledged and accepted as our neighbors and fellow residents.