Foreign Workers: the EPS and Human Rights

I. Introduction
As of December 2016, there were about 2.04 million foreigners staying in Korea, with about 1.32 million having an employment status. There were 48,000 (3.7% of the total) professional personnel, 294,000 (22.2%) non-professional, and 775,000 (58.5%) overseas Koreans. There were also 208,000 (15.8%) illegal workers.¹⁾
Professional foreign personnel (E-1 ~ E-7) are managed under the Employment Permit System (EPS) according to the Immigration Control Act, but they can stay for a long time through a job-seeking visa (D-10). Non-professional foreign workers (E-9) are strictly controlled according to the short-term circulation system and are prohibited, on principle, from becoming residents under the EPS, which has resulted in many human rights violations. In the case of overseas Koreans, there are two types of visas: Working visit visas (H-2) for those from China and the former Soviet Union and Korean descendant visas (F-4) for those from advanced nations. Working visit Korean descendants (H-2) are allowed to work under the Work Permit System (WPS) for a period of 5 years and can choose their workplace freely, while F-4 visa holders can continue to stay on in Korea without restrictions for an unlimited period of time.
Both non-professional and professional foreign personnel are managed under the EPS, while Korean descendant workers are managed by the WPS. As visa status under the EPS can only be maintained with a valid employment contract, the status of foreign workers is unstable and easily subject to human rights violations. On the other hand, under the work permit system, foreigners can be freely employed and move elsewhere to work during the period of the work permit. Since August 2004, we have been dealing with non-professional foreign workers (hereinafter referred to as "foreign workers") under the EPS, to offset the labor shortages in small- and medium-sized companies involved in industries such as production, agriculture, livestock, fishery, construction, etc. This EPS has brought out positive results, by meeting this shortage with foreign workers. However, as the EPS has been used for the benefit of employers, foreign workers’ human rights have not been sufficiently protected, therefore necessitating that the current EPS be supplemented.

II. The Employment Permit System (EPS)

The introduction of foreign workers in Korea began in November 1993 when the industrial trainee system was introduced. Under this system, the government recognized foreign workers as trainees rather than workers, and to whom only some provisions of the Labor Standards Act applied. As a result, there was constant corruption in importing foreign workers due to the fact that they were managed by private companies rather than government agencies. Specifically, 80% of the trainees stayed on illegally beyond expiration of their effective stay, resulting in serious social problems such as forced labor and human rights violations. The EPS was introduced to address these serious problems.
The EPS, in accordance with the Act on the Employment, etc. of Foreign Workers (the Foreigners Employment Act) was enacted on August 16, 2003, and implemented on August 17, 2004, while the Industrial Trainee System ran concurrently with the EPS until the former’s abolishment on January 1, 2007. Through adoption of the EPS, a large number of illegal foreign workers were legalized and brought into the system, while the government itself managed the employment process for foreigners to preclude corruption and succeeded in significantly reducing illegal stays. Above all, working conditions for these workers improved by means of managing them according to labor law. Nevertheless, since the purpose for legislation of the Foreigners Employment Act was to contribute to balancing the supply of and demand for human resources and the balanced development of the national economy through systematic introduction and management, human rights were not specifically protected. Foreign workers who live in Korea for a long time should be guaranteed dignity and value as residents and human beings. However, the EPS has limited the legal rights of foreign workers for the purpose of enhancing the convenience and benefit of the employer. In reality, even though foreign workers are long-term residents, their rights such as freedom of occupation, freedom to have their families with them, equal treatment, applications for remedy under labor law, and social insurances, etc., have been restricted and their human rights at times seriously infringed.

III. System Changes for Employers

1. Employment contract terms have been extended.
Article 9 (3) of the Foreigner Employment Act, at the time of enactment, stipulated that "the term of employment contracts shall not exceed one year." However, as the law was revised on October 9, 2009, this term was extended to three years. This means that when an employer sets a contract period of three years, the foreign worker is restricted to a specific workplace for three years.

2. There is no freedom of movement.
The foreign worker cannot move to other workplaces unless the contract has expired or is terminated due to a reason not attributable to the foreigner. The direct reasons to restraint their transfer to other workplace are ① restrictions for change of workplace, ② frequency, ③ type of industry and ④ permitted period of transferring to other workplace. The indirect reason to restrict their ability to work at another workplace is to give long-term stay benefits if they have not changed jobs. If a foreign worker continues to work at the same workplace for five years, he/she will be given a chance to renew his/her employment contract and be able to work for an additional maximum of 4 years and 10 months.

①        Valid reasons to work for a different employer: In Article 25 (1) of the Foreigners Employment Act,
a) If his/her employer intends to terminate his/her employment contract during the contract period, or intends to refuse to renew his/her employment contract after its expiration, on unjustifiable grounds;
b) Where the Minister of Employment and Labor gives public notice, as he/she deems, under social norms, that the foreign worker is unable to continue to work in the company or workplace for reasons not attributable to him/her, such as temporary shutdown, closure of business, cancellation of the employment permit, limitations on employment, or violation by his/her employer of the terms and conditions of employment, or unfair treatment.
②        Frequency limitations on changing jobs: According to Article 25 (4), workers to whom the Foreigners Employment Act applies cannot change jobs more than three times in three years, or two times in the extended two year period.
③        Restrictions against moving to another industry: As a general rule, the movement of foreign workers into other industries is limited under the current EPS for foreigners. However, it is possible for those originally employed in the manufacturing industry to move into agriculture, livestock, fisheries, and construction, as labor is needed in those industries.
④        Limited period for approval to change jobs: Article 25 (3) of the Foreigners Employment Act stipulates that "within three months from the date of application for change of workplace, or within one month from the date of termination of the employment contract with the employer, foreign workers who have not applied to change jobs at a Job Center must leave the country."

3. Choice of workplace is restricted.
At the time of enactment of the Foreigners Employment Act, when a foreign worker moved to a new workplace, he/she was provided a list of