Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

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

The Committee notes the observations, received on 4 September 2015, from the International Organisation of Employers (IOE) and the Korean Employers’ Federation (KEF), and the observations by the KEF submitted by the Government with its report.

Follow-up to the conclusions in the Conference Committee on the Application of Standards (International Labour Conference, 104th Session, May–June 2015)

The Committee notes the conclusions and the ensuing discussion that took place in the Conference Committee on the Application of Standards in June 2015, including the written information provided by the Government. It also notes that the observations of IOE and the KEF reiterate their statements made in the Conference Committee. While noting that the Government had taken various measures to review, update and enact legislation to address labour market inequalities and to reduce challenges relating to discrimination, the Conference Committee considered that long-standing concerns in relation to the application of the Convention regarding migrant workers, gender-based discrimination and discrimination relating to freedom of expression, needed to be addressed. The Conference Committee, in particular, urged the Government to review, in consultation with workers’ and employers’ organizations, the impact of the new regulations regarding workplace flexibility and, if necessary, make adjustments to programmes to ensure appropriate protection of the foreign worker labour force. It also urged the Government to ensure that the rights of migrant workers are properly enforced regarding workplace changes and working hours, including through regular workplace inspections and annual reports. Concerning the protection against discrimination based on the grounds of gender and employment status, in particular with respect to non-regular workers, including women working part time and short term, the Conference Committee urged the Government to review, in consultation with workers’ and employers’ organizations, the impact of reforms and continue to submit relevant data so as to evaluate if the protection was adequate in practice. Further, with respect to the promotion of equality of opportunity and treatment of men and women in employment, it urged the Government to continue to monitor the participation of women in the labour market and provide relevant data and information. Concerning possible discrimination against teachers on the basis of political opinion, the Conference Committee urged the Government to provide more detailed information on this issue so as to allow a solid assessment of the compliance of the related laws and practice with the Convention. The Conference Committee further invited the ILO to offer and the Government to accept technical assistance to accomplish the recommendations. Regarding the follow-up given to matters relating to the workplace flexibility of migrant workers and their protection from discrimination on the grounds enumerated in Article 1(1)(a) of the Convention, discrimination against non-regular workers, and equality of opportunity and treatment of men and women in employment and occupation, the Committee refers to its direct request.

Article 1 of the Convention. Discrimination on the basis of political opinion. In its previous observation, the Committee expressed concern regarding the prohibition of pre-school, primary and secondary school teachers from engaging in political activities. 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. In order to come within the scope of the exception provided for in Article 1(2) of the Convention, the criteria on which the exception is based must correspond in a concrete and objective way to the inherent requirements of a particular job (see General Survey on the fundamental Conventions, 2012, paragraphs 805 and 831). The Government reiterates that the Constitution mandates political neutrality of public officials and of education (Articles 7(2) and 31(4)), and that relevant national legislation prohibits public officials from engaging in political activities, in favour of a political party or a politician. The Committee notes the undisputed facts that teachers were subject to disciplinary measures for engaging in political activities. In this respect, the Government provides information that, out of the 97 teachers, 16 had been the subject of disciplinary measures, which included reprimands for 13 teachers and wage cuts for three teachers.

The Committee notes the Decision of the Constitutional Court (2011Hun-Ba, 2011Hun-Ga18, 2012 Hun-Ba18 (combined), 28 August 2014) provided by the Government. In its reasoning, the Court considered the distinction between primary and secondary school teachers, who are prohibited from political activities, and college professors, who are not. The reason given by the Court for the distinction was that the college students have the ability to make up their own minds without being influenced by professors whereas primary and secondary school students are impressionable and may be influenced by the teaching staff’s expressed political inclination. In so far as the prohibition on political activities in the classroom is concerned, the school is concerned that distinction may meet the requirements of Article 1(2) of the Convention in that it constitutes an inherent requirement of the job. However, in so far as political activities outside of the school and unrelated to teaching are concerned, a prohibition of such political activities does not constitute an inherent requirement of the job. Therefore, disciplinary measures against teachers who engage in such activities constitute discrimination on the ground of political opinion, contrary to the Convention. The Committee urges the Government to take immediate measures to ensure that elementary, primary and secondary school teachers enjoy protection against discrimination based on political opinion regarding activities outside the classroom and the school and unrelated to teaching, as provided for in the Convention, and are not subject to disciplinary measures for such reasons.

The Committee is raising other matters in a request addressed directly to the Government.