Since the late 1980s, South Korea has experienced a rapid increase in labor costs and a shortage of labor in the small and medium-sized 3D industries. In order to address these issues, the government introduced the industrial trainee system in 1993 to bring in foreign workers. Industrial trainees had difficulty in obtaining legal status as workers under labor laws and were only protected by some provisions of labor laws due to their trainee status. Furthermore, as the private sector was responsible for managing the "industrial trainee system," many social issues such as human rights violations, fraudulent activities, and illegal stays occurred. In order to address these issues, the government enacted the "Employment Permit System for Foreign Workers" (hereinafter referred to as the "EPS") in August 2003. The EPS applies to simple labor foreign workers (E-9 visa) and ethnic Korean foreign workers (H-2 visa) for whom a work permit is required.
The purpose of the Foreign Employment Act is to systematically introduce and manage foreign workers to ensure smooth labor supply and balanced economic development. While the main focus of the Act is to provide foreign workers to the insufficient labor supply in the 3D industries of SMEs, it does have some shortcomings in terms of protecting foreign workers' labor rights. However, as long as foreigners come to Korea, reside, and make a living by working, they become residents of Korea and, as such, are entitled to protection of their human rights guaranteed by the Constitution. The human rights guaranteed by the Constitution include the right to work, labor standards protection, anti-discrimination, the three labor rights under Article 33, and social security under Article 34.
■ Recognition of Labor Status of Industrial Trainees (1991-2003)
Prior to the enforcement of the Employment Permit System in 2004, foreign workers in South Korea were not properly protected under labor laws and were instead classified as trainees. For example, Thai worker A, who entered South Korea with an industrial training (D-3) visa, provided labor while in an illegal employment status. On December 10, 1992, A had an accident while working and applied for workers' compensation insurance to the Korea Workers' Compensation and Welfare Service. In this case, the Supreme Court ruled Supreme Court ruling 1995. 9. 15 94nu12067, Decision (recognition of industrial accidents for illegal immigrants).
that even illegal workers who provide labor for wages are eligible for workers' compensation benefits if they suffer a work-related injury. This case was the first ruling to recognize an industrial accident for an illegal worker, and it set the standard for similar cases involving illegal workers in the future.
The ruling established two significant facts. First, the Immigration Control Act aims to regulate the employment of foreigners without work permits in order to protect domestic workers. However, the Act does not prohibit the legal effect of labor-related rights or status of illegal foreign workers who have already provided labor. Second, when determining the labor status of foreign workers, the substance of the employment rather than its formalities should be the basis for determining whether illegal foreign workers are eligible for labor-related benefits. Following this Supreme Court ruling, other rulings also recognized compensation for industrial accidents and severance pay for illegal workers and industrial trainees. Supreme Court ruling 1997. 8. 26 97da18875, (Application of severance pay for illegal foreign workers)
■ Recognition and Limits of Basic Rights for Foreign Workers (2004-2014)
During this period, there were two important decisions made by the Constitutional Court. The first was the decision in 2007 that the "Guidelines for the Protection and Management of Foreign Industrial Trainees infringe upon the right to equality," and the second was the decision in 2011 that "foreign workers also have the freedom to choose their workplace.“
❍ Unconstitutionality of the Industrial Trainee System
In November 1993, the Ministry of Justice introduced the industrial trainee system to bring in foreign workers, but due to a lack of legal protection for foreign workers, there were many human rights violations. To address this, on February 14, 1995, the Ministry of Labor introduced guidelines for the protection and management of foreign industrial trainees, applying only certain provisions of labor law to them.
Foreign workers filed a constitutional petition, and the Constitutional Court declared the industrial trainee system unconstitutional for violating the right to equality under Article 11 of the Constitution. Constitutional Court Sentence 2007. 8. 30 2004hunma670 recognized the unconstitutionality of the industrial trainee system.
In response, foreign workers field a constitutional complaint, and the Constitutional Court ruled that the industrial trainee system violated the right to equality under the Article 11 of the Constitution. Constitutional Court ruling 2011. 9. 20. Decision 2007 Heonma 1083, 2009 Heonma 230, 352 (combination) (freedom of choice of occupation)
In this decision, the Constitutional Court stated that "foreign workers have basic rights not infinitely but within the scope of 'human rights' in principle, not 'citizens' rights'. The right to work includes not only the right to a job, but also the right to a working environment. Foreign workers also have the right to demand a healthy work environment, fair compensation, and reasonable working conditions as part of the fundamental rights of freedom to defend against violations of human dignity." The court also stated that "if an industrial trainee is in a substantive employment relationship, receiving nominal wages while receiving orders and supervision from the employer under the guise of training, it is difficult to find a rational basis for not applying the main labor standards of the Labor Standards Act to foreign industrial trainees. This is arbitrary discrimination.“
❍ Freedom of Occupational Choice
Five foreign workers filed a constitutional appeal, alleging that their employment rights, freedom of occupational choice, and pursuit of happiness were violated by the provision of Article 25, Paragraph 4 of the Foreign Employment Act, which limits the number of times a foreign worker can change their workplace to three. In response, the Constitutional Court stated that foreign workers also possess the fundamental right of occupational choice as a human right. In other words, the freedom to choose a job, which is at issue in this case, is closely related not only to the rights of citizens but also to the dignity, value, and pursuit of happiness of individuals, and therefore, it is declared to be a human right. Constitutional Court Sentence 2011. 9. 29. 2007heonma1083, 2009heonma230, 352 (merging) decision (freedom of occupation).
However, the Constitutional Court also stated that "the provision of this law (Article 25, Paragraph 4) was introduced to limit the indiscriminate movement of foreign workers, protect employment opportunities for domestic workers, and ensure efficient employment management of foreign workers to smoothly supply labor to small and medium-sized enterprises for balanced economic development of the nation. This provision allows foreign workers to change their workplace up to three times during their three-year residence period for certain reasons, and in cases of unavoidable circumstances designated by presidential decree, additional workplace changes are allowed, and therefore, it does not violate the freedom of occupational choice."
■ Expansion and Limitations of Labor Law Application for Foreign Workers (2015-2016)
During this period, there were important decisions by the Constitutional Court and the Supreme Court's Grand Bench regarding the rights of foreign workers. In 2015, the Supreme Court recognized the right of illegal foreign workers to unionize in a unanimous decision by the Grand Bench. In 2016, the Constitutional Court ruled that it was constitutional to require foreign workers to have an employment insurance policy instead of receiving severance pay upon departure.
❍ Guarantee of the Right to Unionize for Illegal Foreign Workers
On April 24, 2005, 91 foreign workers residing in Seoul, Gyeonggi, and Incheon established the "Seoul-Gyeonggi-Incheon Migrant Workers' Union" and submitted a notice of establishment to the Seoul Regional Labor Office. The Labor Office demanded that the union supplement its membership list because illegal residents made up the majority of the union members. However, when the union failed to submit the requested documents, the Labor Office rejected the notice of establishment. The Migrant Workers' Union filed an administrative lawsuit, arguing that the rejection was illegal. In response, the Seoul Administrative Court ruled that the rejection of the notice of establishment was legitimate. The court held that "illegal foreign workers are not considered workers under labor law because they are strictly prohibited from working under the Immigration Control Act and therefore are not in a legal position to pursue the maintenance, improvement, and elevation of their working conditions and status." Seoul Administrative Court Sentence 2005. 2. 7. Decision 2005guhap18266 (disapproval of illegal migrant worker labor union).
However, the Seoul High Court overturned the first-instance ruling and held that the rejection of the notice of establishment was illegal, stating that "workers who provide labor under a usage-dependency relationship, receiving wages or other forms of income for their livelihood while providing labor realistically in Korea, are eligible to form a union." The court found that such workers include those who are temporarily unemployed or seeking employment. Seoul High Court Sentence 2007. 2. 1. 2006nu6774 Decision (Recognized by the labor union of illegal migrant workers).
In 2015, the Supreme Court enactment upheld the second trial ruling, saying, “Under the Trade Union Act, a worker means a person who provides work under a subordinate relationship with another person and receives wages in return, and is employed by a specific employer. Not only those who are employed, but also those who need to guarantee the three labor rights, including those who are temporarily unemployed or those who are looking for work, should be considered to be included here. A person who provides work under a subordinate relationship with another person and receives wages in return is a worker under the Trade Union Act, and as long as worker status is recognized under the Trade Union Act, whether such a worker is a foreigner or employment qualification is not determined. Regardless of presence or absence, it is included in the scope of workers under the Trade Union Act.” Supreme Court ruling 2015. 6. 25. 2007du4995 collusion judgement (recognition of illegal immigrant workers union).
❍ Departure Guarantee Insurance
Departure Guarantee Insurance is a system in which employers who hire foreign workers save 8.3% of their employees' salaries each month at designated financial institutions, in lieu of retirement benefits. These savings are paid to the workers within 14 days of their departure from Korea. In January 2014, the National Assembly added a provision to the Foreign Employment Act that limited the payment of Departure Guarantee Insurance to within 14 days of the insured person's departure from Korea, due to concerns that foreign workers were staying illegally in Korea even after receiving the insurance benefits upon the expiration of their employment contracts. In response, foreign workers filed a constitutional complaint arguing that the provision in Article 13, Paragraph 3 of the Foreign Employment Act, which limits the payment period of Departure Guarantee Insurance to within 14 days after departure, violated their basic rights.
The Constitutional Court ruled that "illegal residents are exposed to various crimes such as wage theft and violence, and their vulnerable status makes them at high risk of human rights violations such as forced labor. Moreover, they may be in a blind spot of administrative supervision, leading to various social problems such as accidents. In addition, illegal residence by simple functional foreign workers can generally increase the cost of social integration and have a negative impact on domestic employment. Therefore, even though the Departure Guarantee Insurance has the nature of retirement benefits for workers' livelihood protection after retirement, it is inevitable to link the payment period with departure to prevent illegal residence. Therefore, the contested provision cannot be deemed to have violated the plaintiffs' labor rights." Constitutional Court Sentence 2016. 3. 31. 2014heonma367 Decision (unconstitutionality of departure guarantee insurance).
Finally, foreign workers who provide labor on a regular basis in Korea should receive the same treatment as domestic workers. However, Korea still discriminates against foreign workers in employment due to its commitment to the legislative purpose of the Foreign Employment Act. Although the Constitutional Court's decision and the trend of Supreme Court precedents have greatly improved the labor rights of foreign workers, there is still a lot of institutional discrimination. In the future, to accept foreign workers as a permanent labor force in Korea, we must recognize them as equal workers and residents as domestic workers.
