Ⅰ. Concept

Most of the human rights violations involving migrant workers occur with non-professional foreign workers. Visiting overseas Korean workers have the freedom to choose their workplace, so there is not much difference in labor law protections from their Korean counterparts. For professional foreign workers, there are some limitations on labor protections in certain areas, but those differences can be resolved by transferring to another workplace. However, there are many limitations for non-professional foreign workers in the protections they receive under Korean labor law. Some examples follow.
① Non-professional foreign workers are not free to change workplaces. They must remain at the same workplace for three years unless there are justifiable reasons for the change of workplace. ② Wages remain at the minimum wage regardless of their skills or how many years of experience they have. ③ Despite the fact that the right to annual paid leave occurs when they work for at least one year(Article 60 of the Labor Standards Act or LSA), most non-professional foreign workers do not receive it. ④ Foreign workers can only receive their severance pay when they return to their home country, not when their employment terminates.
Korea’s three labor rights(the right to organize a union, the right to collective bargaining, and the right to collective action) are guaranteed in collective labor relations, and a labor union of illegal workers has even been officially recognized as a legitimate union. Nevertheless, it is impossible in reality for a company-unit foreign labor union to have continuity in its activities, as all non-professional foreign workers are fixed-term workers, and employers can control the collective behavior of foreign workers. Therefore, it is impossible to actually exercise their three labor rights.
Regarding social insurances, ① Foreign workers are protected by means of mandatory subscription to Industrial Accident Compensation Insurance, but occupational accidents are not properly handled unless the work-related accident is a serious one. ② Most workplaces do not subscribe their foreign workers to employment insurance as it is not mandatory. ③ For this reason, non-professional foreign workers cannot receive benefits during any unemployment period after termination of employment.
I would like to examine these problems in detail and propose desirable solutions.

Ⅱ. Individual Employment Relations

1. Prohibition against Discrimination

In terms of criteria for determining discrimination, the court proposes two principles: treating the same things differently and different things in the same way. The first requirement in determining whether discriminatory treatment exists is that there must be an identical working group to compare with the situation facing the person claiming to have been discriminated against. Second, discrimination can be deemed justifiable even in the same workplace with workers who are engaged in the same occupation when the discrimination is according to reasonable standards in consideration of various conditions such as the details of the work and the working conditions.

(1) Application to foreign workers

As foreign workers have the right to a decent work environment, the same labor standards apply to them as to Korean workers.

Discrimination against foreign workers, visiting overseas Korean workers, and illegal workers without Korean nationality may occur. The Foreign Employment Act(FEA) stipulates that Workers shall not be treated unfairly because they are foreign workers(Article 22). However, there is a limit to enforcement of anti-discrimination regulations, as this article does not have a related penalty provision, and only covers non-professional workers in the employment-permit system. Therefore, discrimination based on nationality shall fall under the provision in Article 6 of the Labor Standards Act, “No discriminatory treatment of working conditions on the grounds of nationality shall be made” and related penalties. The Ministry of Employment and Labor(MOEL) also provides guidelines for the remedy of rights(identical to those that apply to Korean workers), even if there are violations of immigration law, such as the worker working illegally at workplaces covered by the Labor Standards Act. However, if there is a justifiable reason for discrimination, exceptions shall be granted. In principle, discrimination is prohibited, but the following is regarded as justified: ① Discrimination based on skill level, Korean language proficiency, and years of service in working conditions; ② Discrimination based on the contract period of fixed-term workers; and ③ Discrimination related to the Immigration Control Act in terms of visa details.

(2) Related issues

Here are some examples of discrimination over nationality. ① The Constitutional Court of Korea judged that in cases where industrial trainees have actual working relations under the name of training, under the direction and supervision of the employer, providing labor and receiving money in the form of allowances, it is difficult to justify excluding them from the main points of labor standards. ② A foreigner(Worker A) of Thai nationality entered the country as an industrial trainee but was injured while working illegally. Worker A filed for medical treatment, but the Labor Welfare Corporation did not permit the accident to be deemed an industrial accident because Worker A was an illegally-employed foreigner. However, the Supreme Court made it clear that while illegal workers are subject to crackdowns, they are still protected by labor law for work already provided. ③ On May 3, 2005, foreign workers in Seoul and Gyeonggi-do filed for establishment of a labor union with the Seoul Regional Labor Administration, but their application for establishment was rejected because some members were illegal workers. A protracted court dispute over recognition of the union took place, but on June 25, 2015, the Supreme Court judges collectively recognized establishment of a union consisting of illegal workers. These three cases apply labor law to foreign workers in the same way as for Koreans, but the origin of discrimination came from their status as foreign workers.
There are many cases of discrimination against workers offering general labor because they are foreigners, on the basis of nationality, differences in skill, and their fixed-term employment. In practice, foreign workers are paid the minimum wage regardless of their work experience or length of service. In contrast, Koreans are paid at least twice the minimum wage and in accordance with how long they have been providing work. This can be regarded as discrimination by nationality. Although discrimination is prohibited on the basis of nationality, it is difficult to prove that discrimination against foreign workers is on the basis of nationality.

2. Annual Paid Leave

The provisions of annual leave for non-professional foreign workers are not specified in the standard labor contract and such leave is rarely granted in reality. Annual leave, however, is an essential part of a labor contract to be included under Article 17 of the Labor Standards Act, and of course this legal leave must be granted in return for work.

Annual leave is intended to be in addition to paid weekly leave in order to ensure worker health and cultural experience. The Constitutional Court stipulates that If a break or weekday is primarily intended for the physiological recovery of workers who have accumulated physical and mental fatigue due to daily or weekly work, annual paid leave will be taken without a reduction in wages. By allowing them to make their own decisions, they ensure that workers are free from work for a certain period of time and have the opportunity to enjoy social and cultural life. In response, the Supreme Court explained, “It is intended to provide time for mental and physical recreational opportunities and improve quality of life by exempting workers from working for a certain period of time.” Therefore, annual leave can be said to improve the quality of life for workers by granting time to engage in cultural aspects of life and a rest from work.

(1) Application to foreign workers

The international standards for annual paid leave and the standards in Korea’s Labor Standards Act can be divided and compared by ① vacation days and occurrence requirements, ② method of use, ③ provision of annual paid leave, and ④ compensation for unused annual leave.
On an international basis, the ILO(International Labour Organization) has adopted Convention No. 52 Annual Paid Leave(1936) and Convention No. 132 Annual Paid Leave(1970)(C132) for annual leave. ① In any case, in relation to the number of leave days and occurrence requirements, a minimum of three weeks must be granted for one year(Article 3 of C132). Workers who have not worked for a year have the right to paid leave in proportion to the period worked(Article 4). ② In relation to the use of annual leave, it may be divided, but should consist of at least two uninterrupted weeks(Article 8) and must be given within one year from the date of eligibility for leave(Article 9). ③ Annual paid leave during working days must be paid(Article 7). ④ For unused annual leave, workers who have worked for the minimum working period(six months) shall be entitled to paid leave, or in lieu of paid leave, shall be compensated(Article 11).
According to the Korean Labor Standards Act, annual paid leave(Article 60) presupposes the use of leave, but specifies compensation when not used. ① Looking at the number of vacation days and the occurrence requirements, 15 days of annual paid leave should be given to workers who work at least 80% of one year. Workers who have worked for at least three years must be given paid leave, plus one day for every two years of continuous work in excess of the first year, with a maximum of 25 days(paragraph 4). ② In the method of use, annual leave should be granted at the time when the worker requests it, but if the leave at the time requested by the worker is seriously disruptive to operation of the business, the period may be changed(paragraph 5). Paid leave can be used continuously over a specific day or several days. Here, if the worker requests specific dates(right to claim leave), the employer can adjust it in consideration of the work situation(right to change timing). ③ The guarantee of annual paid leave refers to the leave being granted on working days for the worker(paragraph 5). Therefore, weekly holidays or contracted holidays shall not be included when calculating how much annual leave is used. ④ With respect to compensation for unused annual leave, the leave shall be forfeited if it is not used within one year. However, this shall not apply in cases where the worker concerned has been prevented from using the leave due to any cause attributable to the employer(paragraph 7). This means that if a worker fails to use annual paid leave, the employer must pay an allowance for unused annual paid leave.

(2) Related issues

Annual paid leave must also apply to foreign workers. In the Foreign Employment Act(FEA) Enforcement Rules(Annex 6), the Standard Labor Contract does not specify annual paid leave, which is mandatory under the Labor Standards Act. It prescribes that items not stipulated in the contract will follow the items stipulated in the Labor Standards Act. In reality, most business owners do not grant annual paid leave to non-professional foreign workers. A report by Amnesty International in October 2014 states, “No migrant worker interviewed by Amnesty International received any annual leave or annual leave allowance.”
Non-professional foreign workers are also never compensated for annual paid leave. On the other hand, the annual paid leave regulations are applied to professional foreign workers in the same way as they are for Koreans. In 2011, the Supreme Court acknowledged the employment status of native English instructors in a lawsuit over their status filed by 24 native English instructors, and decided that the employer had to pay weekly allowance, annual leave work allowance and severance pay for the working period. Unused annual leave allowances are also to be reflected in the average wage for calculating severance pay. The right of non-professional foreign workers to annual paid leave must be enforced, and if they do not use annual paid leave, they must be paid an allowance equivalent to the number of annual paid leave days. When employment is terminated, any unpaid annual leave allowance and severance pay reflected in average wage calculation can be recalculated and the payment made for the difference, with the employer paying their final wages and allowances within 14 days after the date the employment is terminated. Any delay in payment shall be subject to 20% interest per year as defined by the Labor Standards Act(Article 37).

3. Minimum Wage

(1) Application to foreign workers

The purpose of the Minimum Wage Act(MWA) is to provide financial stability to workers and improve workforce quality by guaranteeing a minimum level of wages. It applies to all businesses or workplaces(Article 1 and 3). The Labor Standards Act applies some regulations to businesses or workplaces that employ five or more permanent workers, while the Minimum Wage Act applies to all workplaces with at least one worker. The MWA also applies to foreign workers, including overseas Korean workers. The MWA does not apply to additional allowances for overtime, holiday work or night work, or meal or housing allowances, but fixed and regularly-paid meal allowances are considered part of ordinary wage(Articles 5 and 6).

(2) Related issues

Disputes in standard work contracts for non-professional foreign workers are often around an employer deducting the cost of lodging from ordinary wage. According to recent MOEL administrative guidelines, meal allowances can be deducted from wages, but the limit is 20% of the monthly ordinary wage. As a result, wages can be withheld for accommodations and meals. In fact, this can be seen as a violation of the principle of full payment of wages. In addition, foreign workers in rural areas are often excluded from standards on maximum working hours, rest and holidays under Article 63 of the Labor Standards Act.


4. Evaluation

The employment conditions of non-professional foreign workers are particularly poor, and many violations of the Labor Standards Act continue to occur.
In principle, the working conditions set forth in the Labor Standards Act are to be applied to all workers, regardless of whether they are domestic or foreign. In reality, however, non-professional foreign workers are often discriminated against in working conditions. Differences may exist because of language and work proficiency, but these differences are relatively small and the present situation amounts to overall discrimination by nationality.
Non-professional foreign workers, unlike their domestic counterparts, are paid minimum wage regardless of their length of service. Annual paid leave, which is guaranteed under the Labor Standards Act, is not enforced for them, and almost no compensation is paid for unused annual paid leave. Deducting the cost of accommodation and meals while paying the minimum wage brings with it the possibility that the full payment principle is violated. Farming and fishing villages, particularly, often do not pay the monthly wage specified in the standard labor contract in the off-peak seasons.