Foreign workers and Visa

Workers : Non-professionals

Foreign Workers: Labor Rights & Limitations

I. Introduction

Since the late 1980s, Korea has suffered a rapid increase in labor costs, coupled with a labor shortage in the 3D jobs of small- and medium-sized companies (SMEs), and since 1993, has introduced foreign workers through the Industrial Trainee System. An Industrial Trainee does not have the legal status of a worker, but rather, has a trainee status with limited protection under labor law. Many social problems such as human rights abuses, corruption in introducing foreign workers, and illegal stays occurred under the Industrial Trainee System because these had been left to the civilian institutions rather than the government. To resolve these problems, in August 2003, the Act on the Employment, etc. of Foreign Workers (hereinafter referred to as the “Foreign Worker Employment Act”) was enacted to introduce an Employment Permit System. The Employment Permit System is for non-professional foreign workers (E-9 visa) and visiting workers (H-2 visa).
The Foreign Worker Employment Act aims at promoting a smooth supply of manpower and the balanced development of the national economy by introducing and managing foreign workers systematically (Article 1). In other words, the purpose of the Act is to supply foreign workers to fulfill the labor shortage in the 3D jobs of SMEs, but not to provide labor law protection for foreign workers. However, when foreigners enter the country and work, they become residents of our country, and should be protected as human beings under the Constitution. The constitutionally-guaranteed human rights include the Labor Standards Act (Article 32) the three rights of labor (Article 33), and the four social insurances (Article 34). This means that there has been a conflict between the purpose for introducing foreign workers and the rights of those workers. In the paragraphs following, I will look at the content of this conflict and system improvement.

II. Recognition of Worker's Status for Foreign Workers (1991 - 2003)

Until introduction of the Foreign Worker Employment Act in 2004, Korean labor law did not apply to foreign workers, and they were not treated as workers, but as trainees. A Thai worker who entered the country with the status of an industrial trainee and became an illegal foreign worker due to overstaying his contract period, had a work-related accident on December 10, 1992. The “trainee” applied for medical treatment under the Industrial Accident Compensation Act, and the Supreme Court concluded that an injured foreign worker would be entitled to Industrial Accident Compensation Insurance coverage as long as he or she was providing labor service to earn money.1) This was the first court case to be accepted as an occupational accident for illegal foreign workers, and has since become the precedent in instances of similar incidents. This court ruling confirmed two significant facts. First, it stipulated that “the purpose of the Immigration Control Act is to monitor the illegal stay of foreigners to protect domestic workers, and to regulate the employment eligibility of foreign workers in order to prohibit those not qualified for employment.” Therefore, the Immigration Control Act is a law for punishing those who violate the immigration laws, but cannot deny the legal rights achieved after delivering such work, and cannot deny a worker’s status accumulated over a long period of time. Second, when evaluating the worker status of the foreign worker, the court recognized the illegal foreign worker’s status through a practical standard rather than simply formal content.
After this Supreme Court ruling, work-related accident and severance pay cases for illegal foreign workers have been positively recognized. 2)

III. Recognition and Limitations of the Fundamental Rights of Foreign Workers (2004-2014)

There were two important Constitutional Court decisions during this period. In 2011, there was a violation of the constitution regarding the Labor Ministry Guidelines called, “A Guide to the Protection and Management of Foreign Workers.” There was also a case which was rejected when foreign workers claimed the Industrial Trainee System was unconstitutional due to the lack of freedom to choose an occupation.

1. Decision on claims that the Industrial Trainee System was unconstitutional
The Industrial Trainee System was introduced November 1993 by the Ministry of Justice, but there were a lot of human rights violations due to the lack of labor law protection for foreign workers. To resolve this issue, on February 14, 1995, the Ministry of Labor introduced some provisions to the Labor Law for industrial trainees through the Ministry of Labor's operating procedures, “Guidelines on the Protection and Management of Foreign Workers as Industrial Trainees.”3) The foreign workers demanded judgment by the Constitutional Court, which ruled that the System violated the equal rights guarantee in Article 11 of the Constitution. 4)
In this decision, the Constitutional Court "recognized the basic constitutional rights of foreign workers. Foreign workers do not have all basic rights indefinitely but in principle do have basic rights only within the scope of 'human rights', not 'Korean people's rights' ··· Work-related rights include not only the ‘right to demand a position to work at’, but also the ‘right to demand a healthy working environment.’ Foreign workers only have the right to demand a healthy working environment, and this right includes the fundamental rights which prevent the violation of human dignity, such as the right to make demands for things such as a healthy working environment, fair compensation for work, and the guarantee of reasonable working conditions.”
The Constitutional Court stipulates, "Even if an industrial trainee is under the Industrial Trainee System, if the trainee provides labor service to an employer under the supervision of that employer, he or she is actually in a labor relationship, providing labor and receiving money in the name of a beneficiary. In this case, if the trainee receives different working conditions compared to other workers, it is arbitrary discrimination.”

2. Freedom to choose a workplace
Five foreign workers submitted a petition to the Constitutional Court that Article 25 (4) of the Foreigners Employment Act violated the right to work, the freedom to choose a job, and the right to pursue happiness by restricting the foreign workers’ movement of workplaces to three times in a three-year period. In the decision, the Constitutional Court ruled that this Article 25 (4) was not unconstitutional because foreign workers were not entirely restricted in consideration of the legislative purpose of this law.5)
First of all, the Constitutional Court stated that foreign workers have the freedom to choose a job as the fundamental right of a human being. In other words, the freedom of job choice, which is a problem in this case, is closely related to human dignity, value, and pursuit of happiness, and is the right of all humans, not of just the Korean people.
The Constitutional Court stated, “The legal provisions of this case (Article 25 (4)) were introduced to protect the employment opportunities of domestic workers by restricting the uncontrolled transfer of jobs to foreign workers, and to facilitate the efficient supply of foreign workers to SMEs through efficient employment management of those foreign workers, and to ensure a balanced development of the economy. The provisions of this case allow foreign workers to change workplaces up to three times during their stay of three years and to change workplaces additionally if there are unavoidable reasons as pr

For further questions, please
call (+82) 2-539-0098 or email bongsoo@k-labor.com

    • 맨앞으로
    • 앞으로
    • 다음
    • 맨뒤로