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

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

Articles 1 and 2 of the Convention. Legislative developments. The Committee notes that section 7(1)–(3) of the new Framework Act on Employment Policy, 2015, prohibits discrimination in recruiting and employing workers, in providing employment services and with respect to vocational training and employment support on grounds of “gender, religion, age, physical conditions, social status, place of origin, level of education, educational background, marriage, pregnancy, medical history, etc.”, but omits the grounds of race, colour, and political opinion. The Committee notes the Government’s indication that the process of the enactment of a general anti-discrimination act has been delayed. It notes in this regard the observations by the Korean Employers’ Federation (KEF), which were submitted by the Government with its report, indicating that the current scheme of individual laws regulating discrimination is preferable to a general non-discrimination law to maintain definitional clarity and enable tailored enforcement. The Committee requests the Government to clarify why the grounds of race, colour and political opinion have been omitted from the anti-discrimination provisions of the Framework Act on Employment Policy 2015, and to provide information on its practical application, including relevant judicial and administrative decisions. Please continue to provide information on the progress made in the adoption of general anti-discrimination legislation, including any obstacles encountered.

Discrimination based on sex and employment status. The Committee notes that, according to the data provided by the Government, in August 2014, 73.4 per cent of male workers and 60.1 per cent of women workers were in regular employment, and 26.6 per cent of the male and 39.9 per cent of women workers were in non-regular employment. Of those in non-regular employment, women represented 21.9 per cent of those engaged in fixed-term employment, 17.7 per cent of those in part-time work and 12.2 per cent in atypical work; for men these figures were 16.2 per cent, 5.5 per cent and 10.5 per cent, respectively. Data for August 2015 (the Korean Statistical Information Service) show that the proportion of women workers in non-regular employment slightly increased (40.1 per cent). The Committee notes the information provided by the Government during the Conference discussion (June 2015) regarding workplace inspections carried out, corrective orders issued in cases of discrimination and judicial and administrative actions in 2014. The Conference Committee requested the Government to review, in consultation with workers’ and employers’ organizations, the impact of the reforms regarding non-regular workers, in particular women working part time and short term. In this regard, the Government adds that the changes in the system are aimed at addressing discrimination fundamentally and, as they have just taken effect, analysing their effectiveness would be premature. The Government adds that when individual conditions (such as gender, age, academic background, years of service, occupation, among others) are controlled, the hourly wage gap between regular and non-regular workers is decreasing.

Regarding non-regular workers in the public sector, the Committee notes that the “Plan to transfer non-regular workers to open-ended contract workers in 2013–15” included the transfer of 65,711 workers by 2015, and welcomes the progress made in this regard. The Committee also notes that the survey of the National Human Rights Commission of Korea (NHRCK) found that 28.5 per cent of non regular workers were earning below the minimum wage and that the NHRCK recommended stricter sanctions against employers who fail to comply with the minimum wage and measures to prevent abuse of the Minimum Wage Act during probation periods. The Committee notes that in response the Government submitted a bill to revise the Minimum Wage Act on 31 December 2014. The Committee will address the policy recommendation decision for protection of low-income female non-regular workers by the NHRCK regarding the gender differences in the monthly income of regular and non-regular workers at its next session in the context of its examination of the Government’s report on the Equal Remuneration Convention, 1951 (No. 100). The Committee requests the Government, in consultation with workers’ and employers’ organizations, to assess the impact of the effectiveness of the legislative reforms regarding non regular workers to ensure that they do not in practice result in discrimination on the basis of sex and employment status, and to provide information on the results achieved. Please include information, disaggregated by sex, on the practical application of the measures for non-regular workers in the public sector, including the transfer of non-regular workers into open-ended contracts. Since no new information has been provided on the practical application of the punitive monetary compensation system and the impact of the financial support provided as of 2015 to small and medium-sized enterprises that had regularized their non-regular workers, the Committee requests the Government to provide such information with its next report. Please indicate any progress made regarding the bill to revise the Minimum Wage Act.

Equality of opportunity and treatment for men and women. In its previous comments, the Committee noted that in 2014 the participation rate of women was 57.2 per cent and that, since the introduction of the affirmative action schemes, the employment rate of women in the civil service increased to 37.09 per cent, and that women represented 18.37 per cent of persons in managerial positions. The Committee notes that the Conference Committee requested the Government to continue to monitor the participation of women in the labour market and to provide relevant data. Regarding the practical application of the amendments made in 2014 to the Act on Equal Employment and Support for Work–Family Reconciliation, the Government indicates that the list of businesses whose affirmative action implementation plan is not sufficient will be announced in 2016. The Government further indicates that, from May 2015, for vulnerable businesses, a consultative council would operate on a pilot basis with tripartite participation, as well as participation by civic groups and honorary equal employment inspectors. The Government introduced further measures in 2015 regarding childcare services for part-time working parents and the Committee notes that the number of workers using childcare leave increased from 69,616 in 2013 (2,293 men) to 76,833 (3,421 men) in 2014, as well as the number of workers on reduced hours during the childcare period (from 736 workers in 2013 to 1,116 workers in 2014). The Committee welcomes these measures to reconcile work and family responsibilities as a means of improving women’s participation in employment, which it will further examine at its next session in the context of the Government’s report on the Workers with Family Responsibilities Convention, 1981 (No. 156). The Committee requests the Government to continue its efforts, including through the affirmative action scheme, in consultation with workers’ and employers’ organizations, to promote women’s access to a wider range of employment opportunities and high-quality employment in the public and private sectors, including at the managerial and decision-making levels. Please continue to provide detailed and up-to-date statistics, disaggregated by sex, on the distribution of men and women in various types of economic activity and occupations in the public and private sectors in order to assess progress made over time. Recalling the negative impact of social stereotypes regarding the roles of men and women on equality of opportunity and treatment, the Committee once again requests the Government to provide information on the specific measures taken to address gender stereotypes, including in the context of its policy to promote women’s employment in the public sector.

Article 3(d). Access of women to the police force. The Committee previously noted the very low proportion of women in the police force. The Government indicates that a quota system has been implemented, as well as a system of preferential treatment with regard to promotions and that, as of June 2015, the proportion of women has risen to 9.5 per cent of the total police force, from 7.6 per cent in 2013, and that 21.3 per cent of new recruits to the police force were women. Noting that the number of women in the police force remains low, the Committee requests the Government to continue its efforts to promote equality of opportunity and treatment of men and women in all posts in the police force, including during the recruitment process, and the results achieved in this regard. Please continue to provide information on the results achieved through the quota and the preferential treatment systems and statistical information on the proportion of men and women in the different posts of the police force.

Migrant workers. The Committee notes, in the same way as the Conference Committee, the information provided by the Government describing a range of services and training provided to migrant workers, the measures to remove limitations on change of workplace for migrant workers under the Employment Permit System (EPS), and to improve their conditions of work. The Committee recalls the importance of ensuring that migrant workers are able in practice to change workplace due to “unfair treatment” including “unreasonable discrimination by the employer”. In this regard, the Conference Committee requested the Government to ensure that rights of migrant workers regarding workplace changes and working hours were properly enforced, including through regular workplace inspections and publication of annual reports. The Government indicates that, in 2013, out of the 53,582 applications from EPS workers for a change of workplace, 342 applications concerned “unreasonable treatment by employers such as violations of working conditions, verbal use, physical violence, sexual assault and harassment”. A change of workplace was granted in 339 of these cases. Further, during the period 2013–15, the NHRCK received 27 petitions on employment discrimination against migrant workers, most of them relating to wages, recruitment, dismissal, employment or “other matters”, although it appears that many of the cases were dismissed. The Government further reports that, between June 2013 and May 2015, 842 petitions were filed by migrant workers with the National Labor Relations Commission (NLRC), 798 of which related to unfair dismissal; of these 501 were either “abandoned” or “dropped”. All of the 39 petitions relating to unfair labour practices were “dropped”. It is however not clear whether these cases involved violations of the anti-discrimination legislation. The Committee requests the Government to review, in consultation with workers’ and employers’ organizations, the impact of the measures taken and, if necessary, to make adjustments to programmes to ensure appropriate protection of foreign workers, as requested by the Conference Committee. It further requests the Government: (i) to continue providing information on the number of migrant workers who have applied to job centres for a change of workplace on the basis of “unfair treatment by the employer”, including unreasonable discrimination, and the nature and outcome of those cases; (ii) to indicate the reasons for the high number of cases relating to employment discrimination, unfair dismissal and unfair labour practices brought before the NHRCK and the NLRC that were apparently abandoned or dropped; and (iii) to supply up-to-date information on the number, nature and outcome of complaints made to labour inspectors, the courts, the NLRC and the NHRCK, and the remedies provided.

Article 1(2). Inherent requirements of the job. Political opinion. The Committee notes that section 65(1) of the State Public Officials Act prohibits public officials to “participate in an organization of, or join in, any political party or other political organization”. Section 66(1) of the Act prohibits public officials from engaging in any political activities for any labour campaign, or activities other than public services. The Committee notes that in its decision of 28 August 2014 (2011 Hun-Ba, 2011 Hun-Ga18, 2012 Hun-Ba18 (combined)), the Constitutional Court held that not all forms of collective activities are prohibited, only those “with an objective that contradicts the public interest and has the effect of derogating the duty to be dedicated to one’s work”. The Committee recalls that, if the restriction on political activities is not to constitute discrimination, it has to be an inherent requirement of the job. The Committee requests the Government to indicate the reasons why prohibiting public officials from (a) joining a political party and (b) participating in political activities is related to an inherent requirement of the job. It also requests the Government to provide information on the practical application of sections 65(1) and 66(1) of the State Public Officials Act, in light of the decision of the Constitutional Court, including on any disciplinary action taken.

Article 1(1)(b). Additional grounds of discrimination. Age and disability. The Committee notes the Government’s explanation regarding the high number of complaints relating to discrimination on the basis of age and disability which were indicated as “abandoned” or “dismissed” in the 2013 annual report of the NHRCK. It notes that 416 cases of disability discrimination and 35 cases of age discrimination were “settled under investigation”, out of the respective totals of 1,454 and 147 dismissed or abandoned cases. Noting that even when accounting for the number of cases “settled under investigation”, the actual number of dismissed and abandoned cases regarding disability and age discrimination remains high, the Committee requests the Government to examine the reasons for the high rate of rejection or dismissal of complaints on these grounds, and to provide further information in this respect.