Republic of Korea (South Korea):
‘Migrant workers are also human beings’
1: Introduction
"I want to go home, but the company is not paying me. I went to the employment security centre, but they did not solve my problem. Migrant workers are also human beings. Why don’t they pay for my work? I cannot go home because I don’t have money. I have chosen to kill myself as there is no other way."
Note left by Jeong, a 34 year-old Chinese worker.
Jeong was working 12 and 13-hour night shifts in an embroidery factory. When her contract came up for renewal she went to the government-run employment security centre(1) to explain her situation, but to no avail. Her employer refused to allow her to move to another workplace and threatened to sack her. The employer claimed that withholding pay for less than three months was not a sufficient reason to ask to change workplaces. She chose to quit the job and after visiting the employment security centre for one last time April 2004 she threw herself under a subway train.
At least 360,000 migrant workers were believed to be working in the Republic of Korea (South Korea) by June 2006, some 1.5 per cent of the total workforce. Of this total, there were at least 189,000 "irregular" migrant workers (see footnote 9) and at least 115,000 "documented" migrant workers.(2)
A migrant worker is "a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national"
International Convention on the Protection of All Migrant Workers and Members of their Families (Migrant Workers’ Convention), Article 2.1(3)
In August 2003 the Korean National Assembly passed the Act Concerning the Employment Permit for Migrant Workers (EPS Act). The Act prohibits discrimination against foreign workers and was intended to give migrant workers legal status and to put an end to human rights violations against them. By passing the Act, South Korea became the first labour importing country in Asia to attempt to protect the rights of migrant workers through legislation.(4)
However, two years after the Act came into effect, Amnesty International is concerned that migrant workers remain at risk of a range of human rights violations. Despite the recognition of their rights contained in the EPS Act, in reality migrants continue to have little protection and very limited possibilities for obtaining redress for abuses. In this introduction, we will enumerate Amnesty International’s concerns which will highlight this vulnerability faced by the migrant workers in South Korea; the report will discuss these concerns in greater detail in subsequent sections. Later in the introduction, we will also list the range of international treaties protecting the rights of migrant workers. The South Korean government is a State Party to most of these treaties and by enacting the EPS Act, it has undertaken an important step to protect the basic rights of migrant workers in South Korea. The South Korean government now has the obligation to ensure that the EPS system – both in its content and practice – does not violate international human rights law and standards.
1.1: Migrant workers: issues and concerns
Testimonies gathered by Amnesty International from migrant workers, counselling centres and experts in the field, show that migrant workers continue to have their wages withheld and to work excessively long hours for lower wages than Korean workers in similar jobs.
Migrant workers continue to be denied the right to organize in legal trade unions,(5) and to experience high levels of verbal and physical abuse in the workplace. Their work is often dangerous and there are many reports of serious industrial accidents(6) where injured migrant workers have received inadequate treatment and little or no compensation. (7)
A third of all migrant workers in South Korea are women.(8) Amnesty International’s research has shown that women migrant workers face discrimination in levels of pay compared to men migrant workers, and that they are also at risk of sexual harassment in the work place. A range of human rights violations suffered by women migrant workers in South Korea reveal apparent breaches of a number of international human rights treaties to which South Korea is a State Party including the Convention on Elimination of All Forms of Discrimination against Women (CEDAW) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).
Many migrant workers accumulate huge debts in order to pay high recruitment fees for jobs in South Korea. However, once in Korea, many find that the jobs are very different from those they were promised and are more dangerous or more poorly paid than they had ever expected. With few rights to negotiate a change of job, many end up giving up their legal employment and going to work as "undocumented" or "irregular" migrant workers(9) elsewhere in the country. Most feel compelled to try to earn enough money to pay their debts and support their families back in their home countries.
Amnesty International’s research has shown that under the EPS system, migrant workers, in practice, have very limited scope for changing their workplace. This can seriously hamper their ability to lodge complaints about abuses because they fear antagonizing their employers or because they fear losing their jobs and thereby losing their legal status to work in South Korea. There are also reports that employers have seized official documents, including passports and work permits, preventing migrant workers from looking for jobs elsewhere.
The EPS system calls for the return – voluntary or forced – of irregular migrant workers. This has resulted in the arrest, detention and deportation of thousands of workers since November 2003. The collective nature of the arrest and deportation operations make it very difficult for the government to provide the necessary procedural guarantees, including individual assessment,(10) and so ascertain whether people legally entitled to remain in the country may be among those expelled. This is in violation of procedural guarantees against forced return provided for in the International Convention on Civil and Political Rights (ICCPR), Article 13.(11)
Amnesty International has also received reports of excessive use of force by police and immigration officials during arrest and very poor conditions of detention pending deportation.
Many migrant workers, who have been forcibly returned to their home countries, did not receive the wages due to them, leaving them destitute.
In the wake of the operations to arrest and deport irregular migrant workers since November 2003, there has been an increase in people claiming asylum. Amnesty International continues to be concerned at continuing reports that the existing refugee recognition system is at times unfair, arbitrary and lacks transparency.(12)
1.2: Migrant workers’ rights "I heard a shout from my boss insulting/forcing me with verbal abuses to hurry so I was scared and I lost concentration so I was pulled by the machine. When the machine was switched off, I realized my fingers had been chopped off; so I was rushed to the hospital and that was the last time I saw my employer.
"My treatment at the hospital was very poor(13) and it was this poor treatment of my hand that led to a decay of the hand and it was amputated. The company did not do anything about my expenses and my employer was nowhere to be found. I had a one-year visa before the accident; but my employer kept my passport because he did not want the insurance company to compensate me. The Korea Labor Welfare Corporation(14) was responsible for my proper medical treatment and compensation; the Korean government also refused to grant me and my family residence. I was not fully treated before I was harshly discharged on 6 May 2003, and my hand was still very painful. I have been walking on the street for sometime now without treatment, living on charity in Korea, with a wife and two sons aged 13 and 10 in Ghana. Due to this, there is no education for my kids; this also makes my situation even worse and the psychological implications are equally disturbing."
Testimony to Amnesty International from James Mensah, a migrant worker from Ghana who was injured in October 1998, dated 3 May 2006.
The South Korean government has an obligation to ensure that the EPS system is compatible with international human rights law and standards. All migrant workers, regardless of their legal status, have rights under international human rights and labour rights law. The range of international treaties protecting the rights of migrant workers enshrine and include the indivisibility of civil and political and economic, social and cultural rights:
· the International Convention on the Elimination of All Forms of Racial Discrimination (CERD);
· the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW);
· the International Covenant on Civil and Political Rights (ICCPR);
· the International Convention on Economic, Social and Cultural Rights (ICESCR);
· the Convention on the Rights of the Child (CRC);
· the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Migrant Workers’ Convention);(15)
· Conventions of the International Labour Organization (ILO).
These international treaties guarantee migrant workers the rights to:
· Life;(16)
· freedom from torture, and other cruel, inhuman or degrading treatment or punishment;(17)
· freedom from slavery and servitude;(18)
· freedom from imprisonment for inability to fulfil a contractual obligation;(19)
· recognition as a person before the law;(20)
· freedom of thought, conscience and religion;(21)
· best attainable standard of physical and mental health;(22)
· education;(23)
· adequate housing;(24)
· adequate food and water;(25)
· work and rights at work(26).
The South Korean government has, by enacting the EPS Act, begun a significant attempt to protect the basic rights of migrant workers in South Korea. However, the implementation of the Act reveals that migrant workers remain a vulnerable community. This report examines how, despite the enactment of the EPS Act, the system for dealing with migration in South Korea has evolved in a manner that disadvantages migrant workers. It also describes human rights violations against migrant workers including discrimination and abuses in the workplace and during arrest, detention and deportation. The report ends with a series of recommendations to the South Korean government and other concerned stakeholders to address these violations and protect the rights of migrant workers.
2: International Standards
South Korea has ratified a range of key international human rights and labour treaties which provide that the rights of all migrant workers, regardless of their legal status, should be promoted and respected. However it has yet to sign the International Convention on the Protection of the Rights off All Migrant Workers and Members of Their Families members.
South Korea acceded to the ICCPR and the ICESCR in April 1990; the CERD in December 1978; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture) in January 1995 the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in December 1984; and the Convention on the Rights of the Child (CRC) in November 1991.
The South Korean government should also ensure that all migrant workers benefit from the principles and rights in the 1998 ILO Declaration on Fundamental Principles and Rights at Work and its follow-up, which are reflected in the eight fundamental conventions which the ILO has identified as core standards of labour protection.(27) It is a State Party to the following ILO Conventions.
Of the eight fundamental ILO conventions identified as core standards of labour protection, South Korea has ratified:
· ILO Convention No.100: Equal Remuneration Convention, 1951 (which South Korea ratified in December 1997);
· ILO Convention No.111: Discrimination (Employment and Occupation) Convention, 1958 (which South Korea ratified in December 1998);
· ILO Convention No.138: Minimum Age Convention, 1973 (which South Korea ratified in January 1999); and
· ILO Convention No.182: Worst Forms of Child Labour Convention, 1999 (which South Korea ratified in March 2001).
However, South Korea is not a State Party to some key ILO Conventions; the ratification and implementation of which would improve the vulnerable situation of migrant workers in South Korea.
Of the eight fundamental ILO conventions identified as core standards of labour protection, South Korea has not ratified:
· ILO Convention No.87: Freedom of Association and Protection of the Right to Organise Convention, 1948;
· ILO Convention No.98: Right to Organise and Collective Bargaining Convention, 1949;
· ILO Convention No. 29: Forced Labour Convention, 1930 and
· ILO Convention No.105: Abolition of Forced Labour Convention, 1957.
South Korea has also not ratified the following ILO Conventions which specifically protect the rights of migrant workers:
· ILO Convention No. 97: Migration for Employment Convention (Revised), 1949 and
· ILO Convention No. 143 on Migrant Workers (Supplementary Provisions) Convention (1975).
Amnesty International welcomes a recent commitment made by the South Korean government to ratify the four core standards of labour protection (ILO Convention Nos. 87, 98, 29 and 105) conventions in a recent letter to the UN(28), and urges the South Korean government to implement them in full and without delay. AI also urges the South Korean government to ratify the ILO Conventions which specifically protect the rights of migrant workers.
The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families members (or the Migrant Workers’ Convention) is regarded as the foremost international instrument for the promotion and the protection of the rights of all migrant workers and their families. Regarded as a core international human rights convention, the Migrant Workers’ Convention imposes a series of obligations on States Parties to promote among other things "sound, equitable, humane and lawful conditions" for all migrant workers, whether documented or irregular. Under the terms of this Convention, migrant workers are entitled to protection of their basic freedoms including the right to life; the right to freedom from torture; the right to due process including freedom from arbitrary arrest and detention; the right to medical care that is urgently required and the right to equal treatment – in comparison to nationals in the country – in respect to remuneration and other conditions of work, membership of trade unions and access to social services. The Migrant Workers’ Convention also contains a non-discrimination clause for migrant workers and their families with regard to rights at work, access to education, access to adequate housing, food and water. It also protects the right of migrant workers to possess their identity documents when it states clearly that it is unlawful for anyone, other than officials, to confiscate or destroy identity documents including passports or documents authorizing entry to or stay or work permits.
Amnesty International calls on South Korea to ratify this important instrument as a key step towards the full protection of the rights of all migrant workers on its territory.
2.1: Non-discrimination
Universal Declaration of Human Rights (UDHR), Article 2 – "Everyone is entitled to all the rights and forth in the Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."
Everyone is entitled to enjoy their human rights without discrimination. This fundamental principle is of particular importance to groups that are especially vulnerable and marginalised, including migrant workers. As noted above, despite the implementation of the EPS Act, which recognises that migrant workers have the same rights as their Korean counterparts, over a two year period, migrant workers in South Korea face discrimination at various levels. They have to work longer hours than most Korean workers, are paid lower wages, denied the right to organize legal trade unions, and are at risk of verbal and physical abuse in the workplace. In addition injured migrant workers receive inadequate compensation from either employers or the state.
The discrimination they face shows that South Korean authorities and employers of migrant workers are failing to adhere to international standards of non-discrimination in their treatment of migrant workers. Such standards are set out in various international instruments South Korea has ratified and which clearly obligate States Parties to guarantee that all individuals within their territory enjoy all the rights contained in these instruments without discrimination.(29) The ICESCR, in its General Comment No.18,(30) has urged that to ensure that the migrant workers do not face discrimination in their work, there is a "need for national plans of action to be devised to respect and promote [non-discrimination] principles by all appropriate measures, legislative or otherwise."(31)
In 2004, the Committee on the Elimination of Racial Discrimination adopted General Recommendation No. 30, which outlines the general principles that State Parties to the Convention should adopt in order to protect non-citizens against discrimination. General Recommendation No. 30 (paragraph 33)calls on States Parties of CERD to "(t)ake measures to eliminate discrimination against non-citizens in relation to working conditions and work requirements, including employment rules and practices with discriminatory purposes or effects."
2.2: Rights at work
In the work place, migrant workers in South Korea often face discrimination in the pay they receive for work which itself is often dirty, dangerous, and difficult. International standards clearly provide that all workers, regardless of their status, should enjoy the right to equal pay for equal work.
UDHR Article 23 (2): Everyone, without any discrimination, has the right to equal pay for equal work.
The ICESCR, in particular Article 7,(32) provides for the right of all workers (including irregular migrant workers), to the enjoyment of just and favourable conditions of work. General Comment No.18 of the CESCR notes the indivisible and multifaceted nature of rights that are needed to improve protection of rights of migrant workers when it states that:
"Protection of the right to work has several components, notably the right of the worker to just and favourable conditions of work, in particular to safe working conditions, the right to form trade unions and the right freely to choose and accept work." (Paragraph 12 (c))
The right to freedom of association, see Section 2.3, gives all workers, especially vulnerable workers such as migrant workers, the power to protect themselves and this gives them the power to ensure that other abuses, such as discrimination, and unsafe conditions do not exist at the workplace.
A way to ensure just and favourable conditions of work, according to Article 7 (b) of the ICESCR, is by States Parties providing "(s)afe and healthy working conditions" and, in Article 12(1), by recognising the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. Furthermore, CERD, General Recommendation No.30 (paragraph 36) calls on States Parties to ensure that non-citizens are not denied their right to health when it calls on State Parties to "respect the right of non-citizens to an adequate standard of physical and mental health by, inter alia, refraining from denying or limiting their access to preventive, curative and palliative health services."(33) Moreover, ILO Convention No.155 (Occupational Health and Safety (1981) and its Protocol (2002) aim at eliminating preventable accidents and diseases and ensuring safe working conditions.(34) Besides, states are obliged in addition to ensure the delivery to all persons on their territory or under their effective control the underlying determinants of health. In addition to available, accessible, acceptable and quality healthcare, this includes respecting, protecting and promoting the rights to adequate food and water.
Within a vulnerable community such as migrant workers in South Korea, the situation of women migrant workers is particularly vulnerable. International law such as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) provides in Article 2 that States Parties condemn discrimination against women in all its forms and agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women. Article 11 provides for equality of rights in respect of employment and work and Article 6 calls for the suppression of exploitation of women.
Amnesty International is concerned that, in light of the situation faced by thousands of women migrant workers in South Korea, many of these provisions are not being respected.
Apart from the discrimination in pay, many migrant workers in South Korea also face non-payment of wages by their employers; in some cases, migrant workers have not been paid for several months. This is one of the most common reasons cited by migrant workers to change jobs. The Committee on Migrant Workers,(35) has addressed the issue of non-payment of outstanding wages to migrant workers who have been returned to their countries of origin. In its contribution to the High Level Dialogue on International Migration and Development, the Committee has stated that "states should consider entering into bilateral agreements in order to ensure that migrants who return to their country of origin have access to justice in the country of employment in order to claim unpaid wages and benefits".
2.3: Freedom of Association
Under South Korean law, workers are allowed to form or to join trade unions; but migrant workers in South Korea have not been able to form a legally recognised trade union. Those who have attempted to form a migrant workers’ trade union have faced intimidation and many of the leaders of a nascent migrants’ trade union have been detained and forcibly returned to the countries of their origin.(36) This has further increased the vulnerability of the migrant worker community in South Korea. Without the ability to form trade unions, many migrants are unaware of their rights and lack the means to effectively articulate and campaign for their rights. For irregular migrant workers, the right to freedom of association can be an important step in moving towards the regularization of their status. In addition, the right to associate can enable migrant workers to seek effective redress for abuses perpetrated against them in the workplace by employers and other actors. In most cases, the effective exercise of the rights depends on a level of worker participation made possible only through the existence of a trade union.
The right to freedom of association by all persons is recognised in international law including ICCPR, Article 22 and ICESCR, Article 8. Both provide that States Parties such as South Korea place no restrictions in the enjoyment of this right.(37) This is further supported by ILO Convention No. 87, Article 2, according to which both workers and employers, without any distinction, have the right to freedom of association.(38)
2.4: Right to freedom of movement
Migrant workers in South Korea have described to Amnesty International how their identity documents, including passports, visa papers and identity cards, had been confiscated and retained by their employers in breach of their right to identity documents. This has made many migrants in South Korea particularly vulnerable to detention and deportation to their countries of origin, despite their possessing the right to work and remain in South Korea, as there are unable to prove their legal status in the country. The confiscation of documentation such as passports and visa papers hinders the migrant workers’ right to liberty of movement which violates ICCPR, Article 12.(39) Lacking documentation, they also face greater difficulty in getting redress from government authorities if they suffer from human rights violations, such as if their wages are withheld by their employers.
2.5: Right to liberty and security of the person
UDHR: Article 3: Everyone has the right to life, liberty and security of person.
Since the implementation of the EPS Act, irregular migrants in South Korea remain at constant risk of arbitrary arrest and detention, often in very poor conditions, followed by forcible return to their countries of origin. International laws and standards including the ICCPR,(40) the UDHR and the Migrant Workers’ Convention recognise that no one, regardless of their legal status in the country, shall be subjected to arbitrary arrest or detention and that everyone has the right to liberty and security of person. In addition, such instruments provide that everyone is entitled to effective protection against violence, physical injury, and intimidation by public officials or by others.
International human rights standards, such as the Standard Minimum Rules for the Treatment of Prisoners provide for the protection, without discrimination, of the human rights of persons subjected to detention or imprisonment. In addition, the UN Working Group on Arbitrary Detention (WGAD) has adopted Deliberation No. 5 concerning the situation of immigrants and asylum-seekers.(41) This sets out ten principles in respect of people held in custody and a number of safeguards governing detention. The principles provide that immigrants and asylum-seekers are informed in a language they understand the nature of and grounds for the decisions of the government authorities and those placed in custody are informed about the internal regulations and applicable disciplinary rules; that they can communicate with the outside world by telephone or fax or electronic mail and can contact lawyers, consular representatives and relatives; that those placed in custody are brought promptly before a judicial or other authority. The principles also provide that the detention period is not unlimited or of excessive length; that the detained immigrant or asylum-seeker can appeal for a remedy against the detention order and that the United Nations High Commissioner for Refugees (UNHCR), International Committee of the Red Cross (ICRC) and duly authorized NGOs have access to these detention facilities.
2.5.1: Protection from arbitrary expulsion and threat of refoulement
During the two year period of the implementation of the EPS regime, the South Korean authorities have forcibly returned thousands of migrant workers to their country of origin. International law requires that deportation procedures must be in accordance with due process of law and include guarantees that fundamental human rights will be respected and protected.
Migrant workers are entitled to protection against arbitrary or collective expulsion under ICCPR, Article 13.(42) Any expulsion decision must be assessed on an individual basis and be subject to due process.(43)
In addition, the fundamental principle of non-refoulement requires South Korean authorities to ensure that no one is returned to a country where there are substantial grounds for believing that she or he would be in danger of being subjected to torture. The South Korean government should ensure that its actions do not violate international law and standards such as the Convention against Torture(44) and the 1951 Refugee Convention(45) which states that none of its States Parties should expel a person to another state where his life or freedom is under danger.
The South Korean authorities have also reportedly failed to submit applications for asylum to a fair refugee determination procedure effectively denying asylum-seekers their fundamental human rights. Immigration officials admitted to Amnesty International in February 2006 that they were not considering claims of irregular migrant workers who had stayed for three years or more prior to applying for asylum.
3: South Korea’s regulation of migrant workers In January 1995, 13 Nepali trainees made history at the Myongdong Cathedral in Seoul. They organized a protest to bring public attention to the human rights violations faced by migrant workers and trainees in South Korea.
Their rally highlighted widespread abuses such as verbal and physical violence in the workplace, the seizure of passports by employers, long hours of work in poor conditions, delays in paying wages and the lack of care or compensation for trainees and migrant workers who were injured or killed at work.
Since 1995, there have been some improvements; voluntary organizations have set up several counselling centres and the government has taken steps to protect migrant workers and trainees.
However, many of these abuses – including lack of access to justice for migrant workers and trainees who have suffered abuses, the failure of employers to inform workers of their rights’ and continued restrictions on the mobility of migrant workers and trainees – means that tens of thousands of workers in South Korea continue to have very limited protection against human rights violations.
Migrant workers in South Korea come from more than 90 countries including Bangladesh, China, Indonesia, Mongolia, Nepal, Pakistan, the Philippines, Sri Lanka and Viet Nam.(46) Almost 95 per cent of migrant workers in South Korea work in jobs classified as low-skilled work.(47)
Until the late 1980s, South Korea was a labour exporting country. It only emerged as a labour importing country around 1987 when domestic workers from the Philippines began to be employed in Seoul. At that time, there were around 6,500 migrant workers in South Korea, all of them "irregular."
South Korea’s rapid economic growth raised the income and expectations of Korean workers. The demand for manual and unskilled workers in small and medium sized companies – so-called ‘3D’ (dirty, dangerous, and difficult) jobs - was increasingly filled by low-paid migrant workers. By the end of 2002, nearly 290,000 migrants were working in South Korea, 80 per cent of them irregular; after the onset of the EPS, they had declined to a still substantial 189,000 irregular migrant workers, nearly 52 percent of the total.
The following section discusses in more detail the trainee system which has been in operation since the early 1990s, and the Employment Permit System (EPS) which was introduced in 2004. The EPS was intended to overcome the shortcomings of the trainee system both in terms of protecting migrant workers’ rights and by ensuring that Korean industry could fulfil its need for large numbers of migrant workers. However Amnesty International is concerned that it has as yet failed to achieve this objective.
3.1: The trainee system
The Joint Venture Trainee System (JVTS) was established in 1991. In May 2005, 7,352 people were working in South Korea under this system. The JVTS allows companies that have overseas branches to bring non-Korean staff to South Korea for training. The training lasts for six months, with the possibility of a further six-month extension. There is a minimum wage which employers are legally bound to pay, and trainees can claim compensation for industrial accidents and health insurance. However, employers frequently ignore these rules and safeguards. A study in 2004 showed that 53 per cent of JVTS trainees surveyed paid for all or some of their treatment for industrial injuries and only 3.8 per cent had received benefits from the industrial accident compensation and insurance system.(48)
Following lobbying by the Korea Federation of Small and Medium Business (KFSB), the government also introduced the Industrial Trainee System (ITS) to enable small and medium-sized manufacturing firms with no more than 300 employees to take on foreign nationals as trainees. The recruitment, placement, training and management of trainees are organized by the Korea International Training Cooperation Corps (KITCO) which was established in 1994.(49) ITS trainees work in manufacturing, construction, agriculture, fisheries and the service industries. Since 2002, there has been a decline in the number of ITS trainees; recent surveys show that there were 26,516 trainees in May 2005. A significant reason for this fall in numbers of ITS trainees could be the onset of the EPS regime since August 2004. Under the Post-training Employment Program, ITS trainees who work for a firm for a year without interruption qualify to live and work in South Korea for another two years as workers rather than as trainees.
Since 1995 all foreign trainees have been covered by Industrial Accident Compensation Insurance, National Health Insurance and by the Minimum Wage Act. Trainees are also given some limited protection under certain provisions of the Labor Standards Act, for example those dealing with forced labour and violence in the workplace.(50) Their rights have also been defined in a Supreme Court ruling(51) and the 1995 Guidelines on Protection and Regulation of Industrial Trainees.(52)
However, both the JVTS and the ITS continue to deny trainees the legal status of "workers" and employers rarely fulfil their obligations to their trainee employees. Because of their status as "trainees" and because they are not Korean nationals, industrial trainees are not given equal protection under the law with Korean workers.(53) There are numerous reports of employers’ discriminatory treatment and abusive behaviour towards foreign trainees. Some employers take advantage of the weak legal protections and lack of effective access to mechanisms for redress to avoid paying wages, or to physically abuse or insult them.(54)
A number of non-governmental organizations (NGOs), including the Joint Committee for Migrant Workers in Korea (JCMK), have called the ITS a "contemporary form of slavery."(55) Not surprisingly, industrial trainees choose to leave their workplaces and run the risk of becoming irregular workers rather than continue to work in such conditions. By April 2004, it was estimated that nearly 53 per cent of industrial trainees had left their industrial trainee positions and moved to better paying jobs, many as irregular migrant workers.
In May 2005, in view of the persistent and serious criticisms of this system, the then Korean Prime Minister, Minister of Labour and Minister of Justice announced that the government would abolish the current industrial trainee programme by January 2007.(56) While the South Korean government appears to be on course to abolish the ITS, it has not announced any plans to abolish the JVTS; instead the government is reportedly renaming those working under the JVTS as "Technical Trainees" and maintaining the system. The South Korean government is also believed to be stepping up efforts to bring migrants under a more comprehensive and effectively managed migration system such as that envisaged under the EPS Act.
3.2: Employment Permit System (EPS)
The EPS Act entered into force in August 2004. It was intended to give migrant workers legal status and to put an end to human rights violations against them. By passing the Act, South Korea became the first labour importing country in Asia to attempt to protect the rights of migrant workers through legislation. Under the EPS, employers who are unable to find a Korean worker to fill a vacancy can obtain a permit from the Ministry of Labour to employ a foreign national on a one-year contract. The contract can be extended to a maximum of three years.
The EPS Act prohibits discrimination against foreign workers (Article 22).(57) It also recognizes their right to have access to a system of redress against employers in cases of overdue wages and industrial accidents and also to national health insurance.
However, the EPS appears to have had little impact on health and safety at work for migrant workers, many of whom continue to work in unsafe or dangerous conditions. Under safety rules, all employers are obliged to conduct monthly medical check-ups for their staff and to check the safety of their machines. However, Amnesty International’s research suggests that very few companies conduct such checks and that migrant workers continue to be exposed to industrial hazards, such as dangerous chemicals, with little protection.
The introduction of the EPS system has been followed by what appears to be a government’s decision to arrest and deport all the thousands of migrant workers who have become irregular workers. This has taken the form of operations by police and immigration officials since November 2004 which has already resulted in thousands of irregular and other migrant workers being arrested, detained in detention facilities with very poor facilities and forcibly returned to their countries of origin. The operations have intensified the intense pressures felt by many migrant workers.
In November 2003, a few days before the authorities began an intensive crack-down on irregular migrant workers, Tharaka, a 31 year-old Sri Lankan undocumented migrant worker, threw himself in front of an underground train on 11 November 2003. He committed suicide after finding out that he had been excluded from the South Korean government’s legalization measures as these only applied to migrant workers who had been in South Korea for less than four years. Tharaka had initially arrived in South Korea in January 1996. He had been working for four years in a small company in Gwangju, Gyonggi-do. He was born in Chilis in Sri Lanka when he was 25 years old. He worked in a gas company and a tent factory where he worked for 12 hours daily. His monthly wages were approximately 750 US dollars. He committed suicide five days before he was going to forcibly returned from South Korea.
The EPS also sought to regularize the situation of irregular migrants. For example, an addendum to the EPS allowed irregular foreign workers who had been in South Korea for three years or less by 31 March 2003 to work in the country for a further two years, with certain conditions.(58) This resulted in a sharp decrease in the number of irregular migrant workers. However, this limited and selective legalization has not solved the problem of irregular migrant workers; as of June 2006, there were at least 189,000 irregular migrant workers in South Korea.
The implementation of the EPS has raised a number of concerns. Two key concerns are the continued presence of large numbers of irregular workers and the difficulties faced by migrant workers who do have contracts and want to change employers. Although EPS Act, Article 22 states unambiguously that migrant workers have equal rights, the EPS fails to provide a mechanism for holding accountable those who violate this provision. The South Korean government should ensure that the EPS regime is compatible with international human rights law and standards and provides for the protection of the human rights and labour rights of migrants.
4: Recruitment An irregular migrant worker from Indonesia recruited under the EPS in 2004 told Amnesty International that he left his job because it turned out to be very different from the job he had been promised; the work was dangerous and so poorly paid that he could not repay the loan his family had taken out to pay for his recruitment in South Korea. He found another job with better pay, but his employer would not agree to sign the necessary papers. The restrictions on mobility, coupled with the pressure of the debt incurred by his family, meant he had little choice but to leave and become an irregular migrant worker, despite the fact that as an irregular worker he could be detained at any time and forcibly returned to Indonesia.
Under the EPS the South Korean government takes a leading role in the process of employing migrant workers, including their selection and placement. The Act provides for a system of bilateral Memoranda of Understanding that the South Korean government can enter with labour exporting (sending) countries.(59)
An aim of Memoranda of Understanding between governments under the EPS was to ensure greater transparency during the recruitment process. This is an important element as Amnesty International has received many reports that migrant workers have been charged excessive recruitment fees by agencies or individuals in their countries of origin. As a result, many migrant workers find themselves with large debts. Once in South Korea, many find that they are unable to pay off their debt and so they are effectively in a position of bonded labour. Because they are paid low wages, which are sometimes paid late or not at all, many migrant workers have seen their debts increase, forcing them to take the risk of becoming undocumented/irregular migrant workers in order to obtain better wages.
The South Korean government has taken action to put an end to improper recruitment practices. For instance, after discovering improper job-brokering activities in Indonesia, the South Korean government suspended the recruitment of Indonesian workers under the EPS from June 2005. In April 2005, the South Korean government scrapped the quota of Nepalese trainee workers for 2005 after two Nepalese recruitment companies were found to have been involved in overcharging prospective workers.(60) However, there is evidence that a number of labour-sending countries are failing to stop exorbitant fees being charged by recruitment agencies.
5: Discrimination in freedom to seek work
Five workers from Nigeria -- Prince Kossy, Julius, Chinedu and Tony – explained how they had arrived as legally employed workers under the EPS system, but were forced to become undocumented workers as a result of actions by their employer against whom they had no means of redress. The five men had signed a paper which they later discovered allowed their employer to allocate some of their promised wages to insurance payments. They asked the employer to increase their wages to make up the amount of the insurance payments so that their pay would not be cut. The employer interpreted their request as collective action -- despite the fact that the men had said they would continue to work for the company even without an increase in wages -- and sacked them. The employer then lodged a report with the authorities claiming that the men had deserted their work without permission. The men had no choice but to become undocumented migrant workers. When Amnesty International met them in September 2004, the men were desperate. They had no jobs or money and feared they could be arrested and deported at any time.
Under the EPS migrant workers who want to change workplace continue to face severe restrictions.(61) For example, migrant workers can change their jobs no more than three times and only with the permission of the employer. Migrant workers are unable to change jobs because of health problems that prevent them from continuing to do a particular job, or when they have suffered human rights violations in a particular workplace unless it (serious health problems and/or human rights violations) has been officially reported.(62) A recent study showed that the majority of migrant workers interviewed (81.8 per cent) found it difficult to change workplaces under the EPS.(63) In some cases, their situation became even more difficult after they highlighted abuses by their employers which made them want to change jobs.
Andri from Indonesia found that his monthly wages had been reduced from the contracted 800,000 won (approximately US$830) to 500,000 won (approximately US$520). The employer told Andri he would have to accept the lower wages or leave, but he would not sign the necessary documents to allow Andri to change jobs legally.
Under the EPS migrant workers are given one-year contracts which have to be renewed annually. If a migrant worker is refused an extension to a contract and is unable to find alternative work within one month, they are required to leave the country. Given this ever-present risk of dismissal and deportation, migrant workers often consider they have no choice but to accept poor working conditions and are less likely to seek to exercise fully their rights.
6: Health and safety at work Eight Thai women working at a company – Donghwa Digital – which made components for plastic frames for liquid crystal displays (LCD) monitors suffered serious injuries as a result of prolonged exposure to toxic chemicals. The women, seven of whom were irregular migrant workers, worked at a factory in Hwasong, 40 kilometres south of Seoul for up to four years.
The women told Amnesty International that their job involved cleaning plastic frames with a toxic chemical called n-hexane.(64) They were not given any safety instructions or warned of the dangers of using the chemical. They worked in closed, windowless rooms for up to 14 hours a day. The women reportedly worked 400 hours per month each, including an average of 160 hours overtime. Despite the fact that they were working with n-hexane, they had no goggles, masks or protective gear, other than cotton gloves.(65)
According to the women’s testimonies, the company appears to have used n-hexane from the beginning. However, initially the room where n-hexane was used was spacious and well ventilated. However, the room was later cut in half and the new restructured room lacked ventilation. The women said that Korean workers did not work in the rooms where n-hexane was used.(66)
The women initially attributed their illness to standing all day at work. By October 2004, three of them were very weak and ill. The supervisor took them to hospital where they were informed for the first time that their illness was a result of n-hexane poisoning. Fearful of the cost of treatment and of losing work and pay, the women tried to carry on working.
When their condition worsened, the company president refused to allow them to go to hospital, forcing the women to seek treatment secretly. Indeed, when the women were no longer able to walk, the employer, fearing negative publicity, reportedly confined them to their dormitory for 40 days and prevented them from going out for treatment or meeting other people.
Five of the women managed to escape from the dormitory and, with the help of friends and a missionary organization, received treatment at a local hospital. However, three of the women were returned by their employers to Thailand where they were unable to access appropriate medical help. The three -- Rhochana Nusaram, 31, Saraphee Yindee, 31, and Sirinan Phinihamaneerat, 37 – later arrived in Seoul for treatment at a state-funded hospital. It is reported that hexane poisoning requires intensive treatment for one year or more.
The company had apparently ignored warnings about the dangers of n-hexane given by industry security inspectors. The President of Donghwa Digital was arrested in 2005.
This case presents a clear example of multiple discrimination faced by many migrant workers, and the particular vulnerability of women migrant workers. These workers, on the basis of their nationality, were assigned more dangerous tasks than their Korean colleagues and were not given adequate training or protection. When the women fell ill, they were vulnerable to denial of their rights and were subjected to arbitrary detention by their employer and denied access to appropriate health care.
Migrant workers in South Korea often work in dangerous conditions. Many work long hours on machines that are not safe and about which they receive little training. Others work with dangerous chemicals with little protection equipment or safety training. Many migrant workers interviewed by Amnesty International reported that they had witnessed or been the victims of accidents in the workplace. According to the Ministry of Labour, around 1,300 migrant workers suffered workplace accidents in the first half of 2004, an increase over previous years.(67)
Most migrant workers have at best a basic knowledge of Korean, which is problematic as instructions about working practices or the operation of machinery are generally available only in Korean. This can have serious consequences for their health and safety especially when, as is often the case with employment undertaken by migrant workers, the work is difficult, dangerous and dirty. A number of migrant workers interviewed by Amnesty International complained that they worked in more dangerous conditions than their Korean colleagues.
The Ministry of Labour has stated that all migrant workers, including irregular workers, are eligible to benefit from the industrial accident compensation scheme. However at present, migrant workers appear to be denied this right in many cases. Indeed, some irregular migrant workers who have suffered long-term or permanent injuries as a result of industrial accidents have reportedly been forced to leave South Korea immediately after medical treatment as handicapped persons without compensation.(68)
"I was working in a company in Yesan, Chungnam Province. On 15 January 2005 I was hit in the head by a 500kg heavy sand bag; the ligaments in my leg were also torn…"
"When I was injured, the employers took me to a small clinic, where I stayed for three days and I received inadequate treatment. Later I was taken to Dankook Hospital where I was operated upon; I received treatment there for six months. While the doctor advised me not to work, the employers made me work. After one year, the manager did not let me get physiotherapy treatment…"
"Although I received some money for treatment, I did not receive insurance money as the boss did not report my injury to the insurance company. My employers swore a lot but it was not a problem as I did not speak Korean and did not understand them. They did not allow me to leave the dormitory where I lived; I could only talk to my friends over the phone but I could not meet them. The company refused to renew my contract and tried to get me deported on 25 January 2006. I knew it from one of my work colleague so I ran away from there…".
"I live at my friend’s place. Because of my injured leg, I cannot work. So I cannot pay the debts that I have incurred back home. My daughters can’t study and my family members suffer in poverty. My eldest daughter earns some money by breaking rocks in Nepal; it is hard manual work. My passport is with immigration authorities and I am now an undocumented migrant worker."
YB, a Nepali migrant worker, April 2006
Many injured migrant workers are reported to have received inadequate medical treatment and compensation. In some cases, employers of injured workers have refused to renew contracts, thereby denying them the right to stay in South Korea legally, and informed the immigration authorities. At risk of deportation at any moment, injured irregular workers have sought help from migrant workers’ organizations. Those who are caught and deported face a life of even greater poverty and economic insecurity in their home country. Others continue to fight for compensation in South Korea.
"I worked for a plastic manufacturing company – Misung Industry – in Daegu as an undocumented migrant worker for two years. I worked for 12 hours a day. The payment was right on time, but the condition of the work environment was very poor. Because of the chemical smoke around the working area, I had much pain in my lungs. Masks were not helpful. I had been having pains around my ribs for a year…"
"On 7 October 2005, my left hand glove got stuck and rolled into the plastic making machine; I could not remove my hand. It was not until my left shoulder was about to roll into the machine that the machine was stopped. I heard later that people could hear the sound of the bones being ground by the machine. The machine was switched off by people next door at another company who heard the screams from the scene. When taken out of the machine, my arm was without flesh or bones. Only clothes and skin were left. One person from the company next-door cut off the clothes and ligaments with a pair of scissors. There was no First Aid. I was then taken to an orthopaedic surgery. Some of Korean women workers who witnessed the scene were shocked and one of them fainted".
"The company was not insured for either industrial accident compensation insurance or health insurance. The company kept the accident in secret. When my friends came to see me, the president of the company initially denied knowledge of my whereabouts and so didn’t tell them which hospital I was admitted to for treatment. My friends became suspicious of her and informed a migrant workers’ centre and the centre made enquiries to the company about my whereabouts. The company refused to give the name of the hospital stating that I had suffered a minor accident. It was only after the centre told the company it would be reporting to the police that the president of the company told the centre where I was. In contrast to what the president said, my injury was very serious. When asked why she had lied, the president of the company said she was going to send me back to Nepal after my treatment was finished. I received treatment for 5 months; since then, the company has not paid for the physiotherapy treatment, nor has it paid for living expenses…."
"I am paying for treatment with my own savings but staying in Korea is another problem. I tried to apply for a visa for temporary stay for treatment, but the company refused to help me. Because I do not have a place to stay, I am staying at the house of one of my friends and paying for my treatment. I still have much pain in the ligaments. I cannot work at all. I would be able to receive treatment at home in Nepal, but it would cost a lot. I don’t want to go back to Nepal before getting compensation."
BS, a 33-year-old Nepali worker, April 2006
The failure of many employers to provide mandatory health insurance for migrant workers has serious repercussions for both men and women migrant workers.
6.1: Lack of mandatory health insurance on women migrant workers
There are particular concerns about the ways the lack of mandatory health insurance affects women migrant workers who may become pregnant but cannot afford to pay for appropriate treatment or undertake regular check-ups. Reports suggest that even after miscarriages many migrant women continue to undertake the same heavy workload. In a 2002 survey conducted by the Joint Committee for Migrant Workers in Korea (JCMK), "A Report on the Actual State of Human Rights of Women Migrant Workers," 66.7 per cent of workers who became pregnant did not inform employers for fear of dismissal and 56 per cent of them had had miscarriages.
According to the Women Migrants Human Rights Center, in the case of women trainees, pregnancy can be judged by employers as a justifiable reason for deportation. Such practices are in violation of CEDAW, Article 11, which calls on States Parties to "take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights," and in particular, Article 11 (f), which calls on states to ensure women workers "The right to protection of health and to safety in working conditions (for women), including the safeguarding of the function of reproduction."
Such practices also violate ICESCR, Article 10 (2) that calls on States Parties such as South Korea to recognize that "(s)pecial protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits." In addition such practices do not appear to be in line with ICESCR, Article 12 (1) which calls on States Parties to "recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health."
7: Pay
E, an Indonesian national recruited under the EPS system, found on arrival in South Korea that his wages were much lower than promised by the company and almost half the salary of Korean workers. He was required to work seven days a week with only one day off each month. His salary of 600,000 won (approximately US$600) per month, including overtime, meant that he could not pay the debts that he and his family had incurred in financing his recruitment. Under the EPS, E could only stay in South Korea legally for three years, barely enough time to pay debts incurred in financing his recruitment and travel to South Korea, so he became an irregular migrant worker to try and pay off the family debt.
Many migrant workers in South Korea are paid less than the prescribed national minimum wage, and their pay is often withheld for long periods. Amnesty International’s research suggests that these discriminatory practices are widespread and frequently go unchallenged in large part because of the precarious legal status of many migrant workers.
Trainees also work very long hours for low pay. According to a 2003 survey by the Korea Labor Institute,(69) JVTS trainees worked on average 11 hours a day. Their pay was delayed, on average, by 7.2 months, and 25.9 per cent of those interviewed were not paid for overtime. Although in reality JVTS trainees did the same amount of work (including overtime) as other workers, their status as trainees meant that employers paid them less. This is because JVTS trainees are only paid an "allowance" for "training" in South Korea, while the remainder of their wages was paid in their country of origin. (70)
R came to South Korea from the Philippines in August 2003 as a trainee. He and Thai and Cambodian colleagues worked for a company which had withheld their wages for three months. Their Korean colleagues had left to find work elsewhere and the company had been reported to the local labour office. R did not want to become an irregular migrant worker but hoped to work for another company legally. When R approached the KFSB for help with a transfer to another workplace, they told them that if he refused to continue to work for his company he would be deported.
In addition, according to NGO activists interviewed by Amnesty International, millions of dollars of unpaid wages have been withheld from migrant workers. Very few of those who were forcibly returned to their home countries received the wages they were due from employers. Even under the EPS, there is very little support from the South Korean government to ensure the payment of unpaid wages for those migrant workers who have been forcibly returned. Employers also reportedly withhold severance pay from many migrant workers at the end of their contracts.
Women are particularly vulnerable to discrimination in the payment of wages. More than 35 per cent of all migrant workers in South Korea are women and their numbers are increasing. Most are employed in manufacturing, the service sector or sex-related industries. Most women migrant workers experience double or triple discrimination: as migrant workers with legal work permits, as women and as irregular workers.(71) Unequal pay for men and women without good cause is prohibited in South Korea by law.(72) Nevertheless, employers continue to pay women migrant workers less than men migrant workers for equal work. A survey conducted in 2002 by the NHRC, "A Fact Finding Report of the Human Rights of Migrant Workers Living in Korea," indicates that women migrant workers earned on average 10 per cent less than their male counterparts. This practice violates ICESCR, Article 7(a) (i) which guarantees women "conditions of work not inferior to those enjoyed by men, with equal pay for equal work."
8: Violence and abuse in the workplace
One in every five migrant workers reportedly suffers from direct physical violence in the workplace and more than one in three migrant workers are verbally abused by their Korean employers or colleagues.(73)
"S", an industrial trainee from Nepal, was dragged out of his dormitory by his employer after he refused to work an extra four hours after his 13-hour night shift. Unable to bear the conditions of work and ill-treatment meted out to him by his employer, "S" complained to the recruiting agency and the KFSB. While "S" was visiting the agency, his company reported that he had left work without permission. When the agency next called him to the office, the police were waiting for him and detained him as an irregular migrant worker. The KFSB then refused to help "S" on grounds that he had become irregular. Later "S" was not allowed to give testimony to a parliamentary inspection team that was investigating problems of the ITS trainees because of his undocumented status. In the absence of any mechanism for obtaining redress for the abuses against him, "S" returned to Nepal.
Women migrant workers are reportedly at risk of sexual harassment and violence. A woman migrant worker from Nepal told Amnesty International that it was usual for women migrant workers to suffer sexual harassment at work carried out by their supervisors. She cited many occasions when she had been woken in the middle of the night by a drunken supervisor who violently beat on her dormitory room door, shouting at her to open the door. (74)
According to the 2002 survey conducted by a prominent NGO Coalition, the Joint Committee for Migrant Workers in Korea, "A Fact Finding Report of the Human Rights of Migrant Workers Living in Korea," 12 per cent of the women surveyed had suffered sexual violence at work. Many had not reported the abuses as they feared dismissal and the loss of their legal migrant status. Among irregular women migrant workers, 54 per cent of those who said that they had experienced sexual violence said they were threatened by their employers with forcible return to their home countries if they reported the incidents.
Six Sri Lankan women working in an alcohol manufacturing company described to Amnesty International(75) how they endured persistent inappropriate touching and other sexual harassment from the company president. They did not dare to complain because they feared they would be sacked and they desperately needed the money they earned in South Korea to send home to their families. At night the company president would come to their dormitory and would try to open the door when they were taking a shower. In summer, when it was very hot, he removed the door to their room and replaced it with a net door. The women were unable to sleep, knowing that he was watching them and could enter the room at will.
Not knowing what else to do, the women complained to the Sri Lankan Embassy in the last week of December 2004, but were merely told to leave the company. In January 2005, they complained to the representative of their recruitment agency, who asked an immigration control official from Chuncheon to investigate their complaints. The official visited the company, but his only suggestion was that the women talk with the company president and agree a solution with him.
From early February onwards, after the immigration official’s visit, the president’s behaviour deteriorated. He shouted at the women, threatened to send them back to Sri Lanka, gave them very heavy work to do and started censoring their mail. Three weeks after the official’s visit, he invited two women to his room and showed them sexually explicit photographs.
The women were eventually helped them to leave in December 2005 by a priest from the Ansan Migrant Workers’ Centre. The women have no money and would like to work, but they have no visas as these have been withheld by the company president. The women remain presently at the Centre waiting for result of a police investigation.
South Korea has obligations under international law to prevent, investigate and punish acts of violence against women, whether they are perpetrated by state or non-state actors. CEDAW General Recommendation No.19 defines ‘gender-based violence’ as a form of ‘discrimination’ against women under CEDAW, Article 1. States Parties to the CEDAW are obliged inter alia "to take all appropriate measures to eliminate discrimin
‘Migrant workers are also human beings’
1: Introduction
"I want to go home, but the company is not paying me. I went to the employment security centre, but they did not solve my problem. Migrant workers are also human beings. Why don’t they pay for my work? I cannot go home because I don’t have money. I have chosen to kill myself as there is no other way."
Note left by Jeong, a 34 year-old Chinese worker.
Jeong was working 12 and 13-hour night shifts in an embroidery factory. When her contract came up for renewal she went to the government-run employment security centre(1) to explain her situation, but to no avail. Her employer refused to allow her to move to another workplace and threatened to sack her. The employer claimed that withholding pay for less than three months was not a sufficient reason to ask to change workplaces. She chose to quit the job and after visiting the employment security centre for one last time April 2004 she threw herself under a subway train.
At least 360,000 migrant workers were believed to be working in the Republic of Korea (South Korea) by June 2006, some 1.5 per cent of the total workforce. Of this total, there were at least 189,000 "irregular" migrant workers (see footnote 9) and at least 115,000 "documented" migrant workers.(2)
A migrant worker is "a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national"
International Convention on the Protection of All Migrant Workers and Members of their Families (Migrant Workers’ Convention), Article 2.1(3)
In August 2003 the Korean National Assembly passed the Act Concerning the Employment Permit for Migrant Workers (EPS Act). The Act prohibits discrimination against foreign workers and was intended to give migrant workers legal status and to put an end to human rights violations against them. By passing the Act, South Korea became the first labour importing country in Asia to attempt to protect the rights of migrant workers through legislation.(4)
However, two years after the Act came into effect, Amnesty International is concerned that migrant workers remain at risk of a range of human rights violations. Despite the recognition of their rights contained in the EPS Act, in reality migrants continue to have little protection and very limited possibilities for obtaining redress for abuses. In this introduction, we will enumerate Amnesty International’s concerns which will highlight this vulnerability faced by the migrant workers in South Korea; the report will discuss these concerns in greater detail in subsequent sections. Later in the introduction, we will also list the range of international treaties protecting the rights of migrant workers. The South Korean government is a State Party to most of these treaties and by enacting the EPS Act, it has undertaken an important step to protect the basic rights of migrant workers in South Korea. The South Korean government now has the obligation to ensure that the EPS system – both in its content and practice – does not violate international human rights law and standards.
1.1: Migrant workers: issues and concerns
Testimonies gathered by Amnesty International from migrant workers, counselling centres and experts in the field, show that migrant workers continue to have their wages withheld and to work excessively long hours for lower wages than Korean workers in similar jobs.
Migrant workers continue to be denied the right to organize in legal trade unions,(5) and to experience high levels of verbal and physical abuse in the workplace. Their work is often dangerous and there are many reports of serious industrial accidents(6) where injured migrant workers have received inadequate treatment and little or no compensation. (7)
A third of all migrant workers in South Korea are women.(8) Amnesty International’s research has shown that women migrant workers face discrimination in levels of pay compared to men migrant workers, and that they are also at risk of sexual harassment in the work place. A range of human rights violations suffered by women migrant workers in South Korea reveal apparent breaches of a number of international human rights treaties to which South Korea is a State Party including the Convention on Elimination of All Forms of Discrimination against Women (CEDAW) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).
Many migrant workers accumulate huge debts in order to pay high recruitment fees for jobs in South Korea. However, once in Korea, many find that the jobs are very different from those they were promised and are more dangerous or more poorly paid than they had ever expected. With few rights to negotiate a change of job, many end up giving up their legal employment and going to work as "undocumented" or "irregular" migrant workers(9) elsewhere in the country. Most feel compelled to try to earn enough money to pay their debts and support their families back in their home countries.
Amnesty International’s research has shown that under the EPS system, migrant workers, in practice, have very limited scope for changing their workplace. This can seriously hamper their ability to lodge complaints about abuses because they fear antagonizing their employers or because they fear losing their jobs and thereby losing their legal status to work in South Korea. There are also reports that employers have seized official documents, including passports and work permits, preventing migrant workers from looking for jobs elsewhere.
The EPS system calls for the return – voluntary or forced – of irregular migrant workers. This has resulted in the arrest, detention and deportation of thousands of workers since November 2003. The collective nature of the arrest and deportation operations make it very difficult for the government to provide the necessary procedural guarantees, including individual assessment,(10) and so ascertain whether people legally entitled to remain in the country may be among those expelled. This is in violation of procedural guarantees against forced return provided for in the International Convention on Civil and Political Rights (ICCPR), Article 13.(11)
Amnesty International has also received reports of excessive use of force by police and immigration officials during arrest and very poor conditions of detention pending deportation.
Many migrant workers, who have been forcibly returned to their home countries, did not receive the wages due to them, leaving them destitute.
In the wake of the operations to arrest and deport irregular migrant workers since November 2003, there has been an increase in people claiming asylum. Amnesty International continues to be concerned at continuing reports that the existing refugee recognition system is at times unfair, arbitrary and lacks transparency.(12)
1.2: Migrant workers’ rights "I heard a shout from my boss insulting/forcing me with verbal abuses to hurry so I was scared and I lost concentration so I was pulled by the machine. When the machine was switched off, I realized my fingers had been chopped off; so I was rushed to the hospital and that was the last time I saw my employer.
"My treatment at the hospital was very poor(13) and it was this poor treatment of my hand that led to a decay of the hand and it was amputated. The company did not do anything about my expenses and my employer was nowhere to be found. I had a one-year visa before the accident; but my employer kept my passport because he did not want the insurance company to compensate me. The Korea Labor Welfare Corporation(14) was responsible for my proper medical treatment and compensation; the Korean government also refused to grant me and my family residence. I was not fully treated before I was harshly discharged on 6 May 2003, and my hand was still very painful. I have been walking on the street for sometime now without treatment, living on charity in Korea, with a wife and two sons aged 13 and 10 in Ghana. Due to this, there is no education for my kids; this also makes my situation even worse and the psychological implications are equally disturbing."
Testimony to Amnesty International from James Mensah, a migrant worker from Ghana who was injured in October 1998, dated 3 May 2006.
The South Korean government has an obligation to ensure that the EPS system is compatible with international human rights law and standards. All migrant workers, regardless of their legal status, have rights under international human rights and labour rights law. The range of international treaties protecting the rights of migrant workers enshrine and include the indivisibility of civil and political and economic, social and cultural rights:
· the International Convention on the Elimination of All Forms of Racial Discrimination (CERD);
· the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW);
· the International Covenant on Civil and Political Rights (ICCPR);
· the International Convention on Economic, Social and Cultural Rights (ICESCR);
· the Convention on the Rights of the Child (CRC);
· the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Migrant Workers’ Convention);(15)
· Conventions of the International Labour Organization (ILO).
These international treaties guarantee migrant workers the rights to:
· Life;(16)
· freedom from torture, and other cruel, inhuman or degrading treatment or punishment;(17)
· freedom from slavery and servitude;(18)
· freedom from imprisonment for inability to fulfil a contractual obligation;(19)
· recognition as a person before the law;(20)
· freedom of thought, conscience and religion;(21)
· best attainable standard of physical and mental health;(22)
· education;(23)
· adequate housing;(24)
· adequate food and water;(25)
· work and rights at work(26).
The South Korean government has, by enacting the EPS Act, begun a significant attempt to protect the basic rights of migrant workers in South Korea. However, the implementation of the Act reveals that migrant workers remain a vulnerable community. This report examines how, despite the enactment of the EPS Act, the system for dealing with migration in South Korea has evolved in a manner that disadvantages migrant workers. It also describes human rights violations against migrant workers including discrimination and abuses in the workplace and during arrest, detention and deportation. The report ends with a series of recommendations to the South Korean government and other concerned stakeholders to address these violations and protect the rights of migrant workers.
2: International Standards
South Korea has ratified a range of key international human rights and labour treaties which provide that the rights of all migrant workers, regardless of their legal status, should be promoted and respected. However it has yet to sign the International Convention on the Protection of the Rights off All Migrant Workers and Members of Their Families members.
South Korea acceded to the ICCPR and the ICESCR in April 1990; the CERD in December 1978; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture) in January 1995 the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in December 1984; and the Convention on the Rights of the Child (CRC) in November 1991.
The South Korean government should also ensure that all migrant workers benefit from the principles and rights in the 1998 ILO Declaration on Fundamental Principles and Rights at Work and its follow-up, which are reflected in the eight fundamental conventions which the ILO has identified as core standards of labour protection.(27) It is a State Party to the following ILO Conventions.
Of the eight fundamental ILO conventions identified as core standards of labour protection, South Korea has ratified:
· ILO Convention No.100: Equal Remuneration Convention, 1951 (which South Korea ratified in December 1997);
· ILO Convention No.111: Discrimination (Employment and Occupation) Convention, 1958 (which South Korea ratified in December 1998);
· ILO Convention No.138: Minimum Age Convention, 1973 (which South Korea ratified in January 1999); and
· ILO Convention No.182: Worst Forms of Child Labour Convention, 1999 (which South Korea ratified in March 2001).
However, South Korea is not a State Party to some key ILO Conventions; the ratification and implementation of which would improve the vulnerable situation of migrant workers in South Korea.
Of the eight fundamental ILO conventions identified as core standards of labour protection, South Korea has not ratified:
· ILO Convention No.87: Freedom of Association and Protection of the Right to Organise Convention, 1948;
· ILO Convention No.98: Right to Organise and Collective Bargaining Convention, 1949;
· ILO Convention No. 29: Forced Labour Convention, 1930 and
· ILO Convention No.105: Abolition of Forced Labour Convention, 1957.
South Korea has also not ratified the following ILO Conventions which specifically protect the rights of migrant workers:
· ILO Convention No. 97: Migration for Employment Convention (Revised), 1949 and
· ILO Convention No. 143 on Migrant Workers (Supplementary Provisions) Convention (1975).
Amnesty International welcomes a recent commitment made by the South Korean government to ratify the four core standards of labour protection (ILO Convention Nos. 87, 98, 29 and 105) conventions in a recent letter to the UN(28), and urges the South Korean government to implement them in full and without delay. AI also urges the South Korean government to ratify the ILO Conventions which specifically protect the rights of migrant workers.
The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families members (or the Migrant Workers’ Convention) is regarded as the foremost international instrument for the promotion and the protection of the rights of all migrant workers and their families. Regarded as a core international human rights convention, the Migrant Workers’ Convention imposes a series of obligations on States Parties to promote among other things "sound, equitable, humane and lawful conditions" for all migrant workers, whether documented or irregular. Under the terms of this Convention, migrant workers are entitled to protection of their basic freedoms including the right to life; the right to freedom from torture; the right to due process including freedom from arbitrary arrest and detention; the right to medical care that is urgently required and the right to equal treatment – in comparison to nationals in the country – in respect to remuneration and other conditions of work, membership of trade unions and access to social services. The Migrant Workers’ Convention also contains a non-discrimination clause for migrant workers and their families with regard to rights at work, access to education, access to adequate housing, food and water. It also protects the right of migrant workers to possess their identity documents when it states clearly that it is unlawful for anyone, other than officials, to confiscate or destroy identity documents including passports or documents authorizing entry to or stay or work permits.
Amnesty International calls on South Korea to ratify this important instrument as a key step towards the full protection of the rights of all migrant workers on its territory.
2.1: Non-discrimination
Universal Declaration of Human Rights (UDHR), Article 2 – "Everyone is entitled to all the rights and forth in the Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."
Everyone is entitled to enjoy their human rights without discrimination. This fundamental principle is of particular importance to groups that are especially vulnerable and marginalised, including migrant workers. As noted above, despite the implementation of the EPS Act, which recognises that migrant workers have the same rights as their Korean counterparts, over a two year period, migrant workers in South Korea face discrimination at various levels. They have to work longer hours than most Korean workers, are paid lower wages, denied the right to organize legal trade unions, and are at risk of verbal and physical abuse in the workplace. In addition injured migrant workers receive inadequate compensation from either employers or the state.
The discrimination they face shows that South Korean authorities and employers of migrant workers are failing to adhere to international standards of non-discrimination in their treatment of migrant workers. Such standards are set out in various international instruments South Korea has ratified and which clearly obligate States Parties to guarantee that all individuals within their territory enjoy all the rights contained in these instruments without discrimination.(29) The ICESCR, in its General Comment No.18,(30) has urged that to ensure that the migrant workers do not face discrimination in their work, there is a "need for national plans of action to be devised to respect and promote [non-discrimination] principles by all appropriate measures, legislative or otherwise."(31)
In 2004, the Committee on the Elimination of Racial Discrimination adopted General Recommendation No. 30, which outlines the general principles that State Parties to the Convention should adopt in order to protect non-citizens against discrimination. General Recommendation No. 30 (paragraph 33)calls on States Parties of CERD to "(t)ake measures to eliminate discrimination against non-citizens in relation to working conditions and work requirements, including employment rules and practices with discriminatory purposes or effects."
2.2: Rights at work
In the work place, migrant workers in South Korea often face discrimination in the pay they receive for work which itself is often dirty, dangerous, and difficult. International standards clearly provide that all workers, regardless of their status, should enjoy the right to equal pay for equal work.
UDHR Article 23 (2): Everyone, without any discrimination, has the right to equal pay for equal work.
The ICESCR, in particular Article 7,(32) provides for the right of all workers (including irregular migrant workers), to the enjoyment of just and favourable conditions of work. General Comment No.18 of the CESCR notes the indivisible and multifaceted nature of rights that are needed to improve protection of rights of migrant workers when it states that:
"Protection of the right to work has several components, notably the right of the worker to just and favourable conditions of work, in particular to safe working conditions, the right to form trade unions and the right freely to choose and accept work." (Paragraph 12 (c))
The right to freedom of association, see Section 2.3, gives all workers, especially vulnerable workers such as migrant workers, the power to protect themselves and this gives them the power to ensure that other abuses, such as discrimination, and unsafe conditions do not exist at the workplace.
A way to ensure just and favourable conditions of work, according to Article 7 (b) of the ICESCR, is by States Parties providing "(s)afe and healthy working conditions" and, in Article 12(1), by recognising the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. Furthermore, CERD, General Recommendation No.30 (paragraph 36) calls on States Parties to ensure that non-citizens are not denied their right to health when it calls on State Parties to "respect the right of non-citizens to an adequate standard of physical and mental health by, inter alia, refraining from denying or limiting their access to preventive, curative and palliative health services."(33) Moreover, ILO Convention No.155 (Occupational Health and Safety (1981) and its Protocol (2002) aim at eliminating preventable accidents and diseases and ensuring safe working conditions.(34) Besides, states are obliged in addition to ensure the delivery to all persons on their territory or under their effective control the underlying determinants of health. In addition to available, accessible, acceptable and quality healthcare, this includes respecting, protecting and promoting the rights to adequate food and water.
Within a vulnerable community such as migrant workers in South Korea, the situation of women migrant workers is particularly vulnerable. International law such as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) provides in Article 2 that States Parties condemn discrimination against women in all its forms and agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women. Article 11 provides for equality of rights in respect of employment and work and Article 6 calls for the suppression of exploitation of women.
Amnesty International is concerned that, in light of the situation faced by thousands of women migrant workers in South Korea, many of these provisions are not being respected.
Apart from the discrimination in pay, many migrant workers in South Korea also face non-payment of wages by their employers; in some cases, migrant workers have not been paid for several months. This is one of the most common reasons cited by migrant workers to change jobs. The Committee on Migrant Workers,(35) has addressed the issue of non-payment of outstanding wages to migrant workers who have been returned to their countries of origin. In its contribution to the High Level Dialogue on International Migration and Development, the Committee has stated that "states should consider entering into bilateral agreements in order to ensure that migrants who return to their country of origin have access to justice in the country of employment in order to claim unpaid wages and benefits".
2.3: Freedom of Association
Under South Korean law, workers are allowed to form or to join trade unions; but migrant workers in South Korea have not been able to form a legally recognised trade union. Those who have attempted to form a migrant workers’ trade union have faced intimidation and many of the leaders of a nascent migrants’ trade union have been detained and forcibly returned to the countries of their origin.(36) This has further increased the vulnerability of the migrant worker community in South Korea. Without the ability to form trade unions, many migrants are unaware of their rights and lack the means to effectively articulate and campaign for their rights. For irregular migrant workers, the right to freedom of association can be an important step in moving towards the regularization of their status. In addition, the right to associate can enable migrant workers to seek effective redress for abuses perpetrated against them in the workplace by employers and other actors. In most cases, the effective exercise of the rights depends on a level of worker participation made possible only through the existence of a trade union.
The right to freedom of association by all persons is recognised in international law including ICCPR, Article 22 and ICESCR, Article 8. Both provide that States Parties such as South Korea place no restrictions in the enjoyment of this right.(37) This is further supported by ILO Convention No. 87, Article 2, according to which both workers and employers, without any distinction, have the right to freedom of association.(38)
2.4: Right to freedom of movement
Migrant workers in South Korea have described to Amnesty International how their identity documents, including passports, visa papers and identity cards, had been confiscated and retained by their employers in breach of their right to identity documents. This has made many migrants in South Korea particularly vulnerable to detention and deportation to their countries of origin, despite their possessing the right to work and remain in South Korea, as there are unable to prove their legal status in the country. The confiscation of documentation such as passports and visa papers hinders the migrant workers’ right to liberty of movement which violates ICCPR, Article 12.(39) Lacking documentation, they also face greater difficulty in getting redress from government authorities if they suffer from human rights violations, such as if their wages are withheld by their employers.
2.5: Right to liberty and security of the person
UDHR: Article 3: Everyone has the right to life, liberty and security of person.
Since the implementation of the EPS Act, irregular migrants in South Korea remain at constant risk of arbitrary arrest and detention, often in very poor conditions, followed by forcible return to their countries of origin. International laws and standards including the ICCPR,(40) the UDHR and the Migrant Workers’ Convention recognise that no one, regardless of their legal status in the country, shall be subjected to arbitrary arrest or detention and that everyone has the right to liberty and security of person. In addition, such instruments provide that everyone is entitled to effective protection against violence, physical injury, and intimidation by public officials or by others.
International human rights standards, such as the Standard Minimum Rules for the Treatment of Prisoners provide for the protection, without discrimination, of the human rights of persons subjected to detention or imprisonment. In addition, the UN Working Group on Arbitrary Detention (WGAD) has adopted Deliberation No. 5 concerning the situation of immigrants and asylum-seekers.(41) This sets out ten principles in respect of people held in custody and a number of safeguards governing detention. The principles provide that immigrants and asylum-seekers are informed in a language they understand the nature of and grounds for the decisions of the government authorities and those placed in custody are informed about the internal regulations and applicable disciplinary rules; that they can communicate with the outside world by telephone or fax or electronic mail and can contact lawyers, consular representatives and relatives; that those placed in custody are brought promptly before a judicial or other authority. The principles also provide that the detention period is not unlimited or of excessive length; that the detained immigrant or asylum-seeker can appeal for a remedy against the detention order and that the United Nations High Commissioner for Refugees (UNHCR), International Committee of the Red Cross (ICRC) and duly authorized NGOs have access to these detention facilities.
2.5.1: Protection from arbitrary expulsion and threat of refoulement
During the two year period of the implementation of the EPS regime, the South Korean authorities have forcibly returned thousands of migrant workers to their country of origin. International law requires that deportation procedures must be in accordance with due process of law and include guarantees that fundamental human rights will be respected and protected.
Migrant workers are entitled to protection against arbitrary or collective expulsion under ICCPR, Article 13.(42) Any expulsion decision must be assessed on an individual basis and be subject to due process.(43)
In addition, the fundamental principle of non-refoulement requires South Korean authorities to ensure that no one is returned to a country where there are substantial grounds for believing that she or he would be in danger of being subjected to torture. The South Korean government should ensure that its actions do not violate international law and standards such as the Convention against Torture(44) and the 1951 Refugee Convention(45) which states that none of its States Parties should expel a person to another state where his life or freedom is under danger.
The South Korean authorities have also reportedly failed to submit applications for asylum to a fair refugee determination procedure effectively denying asylum-seekers their fundamental human rights. Immigration officials admitted to Amnesty International in February 2006 that they were not considering claims of irregular migrant workers who had stayed for three years or more prior to applying for asylum.
3: South Korea’s regulation of migrant workers In January 1995, 13 Nepali trainees made history at the Myongdong Cathedral in Seoul. They organized a protest to bring public attention to the human rights violations faced by migrant workers and trainees in South Korea.
Their rally highlighted widespread abuses such as verbal and physical violence in the workplace, the seizure of passports by employers, long hours of work in poor conditions, delays in paying wages and the lack of care or compensation for trainees and migrant workers who were injured or killed at work.
Since 1995, there have been some improvements; voluntary organizations have set up several counselling centres and the government has taken steps to protect migrant workers and trainees.
However, many of these abuses – including lack of access to justice for migrant workers and trainees who have suffered abuses, the failure of employers to inform workers of their rights’ and continued restrictions on the mobility of migrant workers and trainees – means that tens of thousands of workers in South Korea continue to have very limited protection against human rights violations.
Migrant workers in South Korea come from more than 90 countries including Bangladesh, China, Indonesia, Mongolia, Nepal, Pakistan, the Philippines, Sri Lanka and Viet Nam.(46) Almost 95 per cent of migrant workers in South Korea work in jobs classified as low-skilled work.(47)
Until the late 1980s, South Korea was a labour exporting country. It only emerged as a labour importing country around 1987 when domestic workers from the Philippines began to be employed in Seoul. At that time, there were around 6,500 migrant workers in South Korea, all of them "irregular."
South Korea’s rapid economic growth raised the income and expectations of Korean workers. The demand for manual and unskilled workers in small and medium sized companies – so-called ‘3D’ (dirty, dangerous, and difficult) jobs - was increasingly filled by low-paid migrant workers. By the end of 2002, nearly 290,000 migrants were working in South Korea, 80 per cent of them irregular; after the onset of the EPS, they had declined to a still substantial 189,000 irregular migrant workers, nearly 52 percent of the total.
The following section discusses in more detail the trainee system which has been in operation since the early 1990s, and the Employment Permit System (EPS) which was introduced in 2004. The EPS was intended to overcome the shortcomings of the trainee system both in terms of protecting migrant workers’ rights and by ensuring that Korean industry could fulfil its need for large numbers of migrant workers. However Amnesty International is concerned that it has as yet failed to achieve this objective.
3.1: The trainee system
The Joint Venture Trainee System (JVTS) was established in 1991. In May 2005, 7,352 people were working in South Korea under this system. The JVTS allows companies that have overseas branches to bring non-Korean staff to South Korea for training. The training lasts for six months, with the possibility of a further six-month extension. There is a minimum wage which employers are legally bound to pay, and trainees can claim compensation for industrial accidents and health insurance. However, employers frequently ignore these rules and safeguards. A study in 2004 showed that 53 per cent of JVTS trainees surveyed paid for all or some of their treatment for industrial injuries and only 3.8 per cent had received benefits from the industrial accident compensation and insurance system.(48)
Following lobbying by the Korea Federation of Small and Medium Business (KFSB), the government also introduced the Industrial Trainee System (ITS) to enable small and medium-sized manufacturing firms with no more than 300 employees to take on foreign nationals as trainees. The recruitment, placement, training and management of trainees are organized by the Korea International Training Cooperation Corps (KITCO) which was established in 1994.(49) ITS trainees work in manufacturing, construction, agriculture, fisheries and the service industries. Since 2002, there has been a decline in the number of ITS trainees; recent surveys show that there were 26,516 trainees in May 2005. A significant reason for this fall in numbers of ITS trainees could be the onset of the EPS regime since August 2004. Under the Post-training Employment Program, ITS trainees who work for a firm for a year without interruption qualify to live and work in South Korea for another two years as workers rather than as trainees.
Since 1995 all foreign trainees have been covered by Industrial Accident Compensation Insurance, National Health Insurance and by the Minimum Wage Act. Trainees are also given some limited protection under certain provisions of the Labor Standards Act, for example those dealing with forced labour and violence in the workplace.(50) Their rights have also been defined in a Supreme Court ruling(51) and the 1995 Guidelines on Protection and Regulation of Industrial Trainees.(52)
However, both the JVTS and the ITS continue to deny trainees the legal status of "workers" and employers rarely fulfil their obligations to their trainee employees. Because of their status as "trainees" and because they are not Korean nationals, industrial trainees are not given equal protection under the law with Korean workers.(53) There are numerous reports of employers’ discriminatory treatment and abusive behaviour towards foreign trainees. Some employers take advantage of the weak legal protections and lack of effective access to mechanisms for redress to avoid paying wages, or to physically abuse or insult them.(54)
A number of non-governmental organizations (NGOs), including the Joint Committee for Migrant Workers in Korea (JCMK), have called the ITS a "contemporary form of slavery."(55) Not surprisingly, industrial trainees choose to leave their workplaces and run the risk of becoming irregular workers rather than continue to work in such conditions. By April 2004, it was estimated that nearly 53 per cent of industrial trainees had left their industrial trainee positions and moved to better paying jobs, many as irregular migrant workers.
In May 2005, in view of the persistent and serious criticisms of this system, the then Korean Prime Minister, Minister of Labour and Minister of Justice announced that the government would abolish the current industrial trainee programme by January 2007.(56) While the South Korean government appears to be on course to abolish the ITS, it has not announced any plans to abolish the JVTS; instead the government is reportedly renaming those working under the JVTS as "Technical Trainees" and maintaining the system. The South Korean government is also believed to be stepping up efforts to bring migrants under a more comprehensive and effectively managed migration system such as that envisaged under the EPS Act.
3.2: Employment Permit System (EPS)
The EPS Act entered into force in August 2004. It was intended to give migrant workers legal status and to put an end to human rights violations against them. By passing the Act, South Korea became the first labour importing country in Asia to attempt to protect the rights of migrant workers through legislation. Under the EPS, employers who are unable to find a Korean worker to fill a vacancy can obtain a permit from the Ministry of Labour to employ a foreign national on a one-year contract. The contract can be extended to a maximum of three years.
The EPS Act prohibits discrimination against foreign workers (Article 22).(57) It also recognizes their right to have access to a system of redress against employers in cases of overdue wages and industrial accidents and also to national health insurance.
However, the EPS appears to have had little impact on health and safety at work for migrant workers, many of whom continue to work in unsafe or dangerous conditions. Under safety rules, all employers are obliged to conduct monthly medical check-ups for their staff and to check the safety of their machines. However, Amnesty International’s research suggests that very few companies conduct such checks and that migrant workers continue to be exposed to industrial hazards, such as dangerous chemicals, with little protection.
The introduction of the EPS system has been followed by what appears to be a government’s decision to arrest and deport all the thousands of migrant workers who have become irregular workers. This has taken the form of operations by police and immigration officials since November 2004 which has already resulted in thousands of irregular and other migrant workers being arrested, detained in detention facilities with very poor facilities and forcibly returned to their countries of origin. The operations have intensified the intense pressures felt by many migrant workers.
In November 2003, a few days before the authorities began an intensive crack-down on irregular migrant workers, Tharaka, a 31 year-old Sri Lankan undocumented migrant worker, threw himself in front of an underground train on 11 November 2003. He committed suicide after finding out that he had been excluded from the South Korean government’s legalization measures as these only applied to migrant workers who had been in South Korea for less than four years. Tharaka had initially arrived in South Korea in January 1996. He had been working for four years in a small company in Gwangju, Gyonggi-do. He was born in Chilis in Sri Lanka when he was 25 years old. He worked in a gas company and a tent factory where he worked for 12 hours daily. His monthly wages were approximately 750 US dollars. He committed suicide five days before he was going to forcibly returned from South Korea.
The EPS also sought to regularize the situation of irregular migrants. For example, an addendum to the EPS allowed irregular foreign workers who had been in South Korea for three years or less by 31 March 2003 to work in the country for a further two years, with certain conditions.(58) This resulted in a sharp decrease in the number of irregular migrant workers. However, this limited and selective legalization has not solved the problem of irregular migrant workers; as of June 2006, there were at least 189,000 irregular migrant workers in South Korea.
The implementation of the EPS has raised a number of concerns. Two key concerns are the continued presence of large numbers of irregular workers and the difficulties faced by migrant workers who do have contracts and want to change employers. Although EPS Act, Article 22 states unambiguously that migrant workers have equal rights, the EPS fails to provide a mechanism for holding accountable those who violate this provision. The South Korean government should ensure that the EPS regime is compatible with international human rights law and standards and provides for the protection of the human rights and labour rights of migrants.
4: Recruitment An irregular migrant worker from Indonesia recruited under the EPS in 2004 told Amnesty International that he left his job because it turned out to be very different from the job he had been promised; the work was dangerous and so poorly paid that he could not repay the loan his family had taken out to pay for his recruitment in South Korea. He found another job with better pay, but his employer would not agree to sign the necessary papers. The restrictions on mobility, coupled with the pressure of the debt incurred by his family, meant he had little choice but to leave and become an irregular migrant worker, despite the fact that as an irregular worker he could be detained at any time and forcibly returned to Indonesia.
Under the EPS the South Korean government takes a leading role in the process of employing migrant workers, including their selection and placement. The Act provides for a system of bilateral Memoranda of Understanding that the South Korean government can enter with labour exporting (sending) countries.(59)
An aim of Memoranda of Understanding between governments under the EPS was to ensure greater transparency during the recruitment process. This is an important element as Amnesty International has received many reports that migrant workers have been charged excessive recruitment fees by agencies or individuals in their countries of origin. As a result, many migrant workers find themselves with large debts. Once in South Korea, many find that they are unable to pay off their debt and so they are effectively in a position of bonded labour. Because they are paid low wages, which are sometimes paid late or not at all, many migrant workers have seen their debts increase, forcing them to take the risk of becoming undocumented/irregular migrant workers in order to obtain better wages.
The South Korean government has taken action to put an end to improper recruitment practices. For instance, after discovering improper job-brokering activities in Indonesia, the South Korean government suspended the recruitment of Indonesian workers under the EPS from June 2005. In April 2005, the South Korean government scrapped the quota of Nepalese trainee workers for 2005 after two Nepalese recruitment companies were found to have been involved in overcharging prospective workers.(60) However, there is evidence that a number of labour-sending countries are failing to stop exorbitant fees being charged by recruitment agencies.
5: Discrimination in freedom to seek work
Five workers from Nigeria -- Prince Kossy, Julius, Chinedu and Tony – explained how they had arrived as legally employed workers under the EPS system, but were forced to become undocumented workers as a result of actions by their employer against whom they had no means of redress. The five men had signed a paper which they later discovered allowed their employer to allocate some of their promised wages to insurance payments. They asked the employer to increase their wages to make up the amount of the insurance payments so that their pay would not be cut. The employer interpreted their request as collective action -- despite the fact that the men had said they would continue to work for the company even without an increase in wages -- and sacked them. The employer then lodged a report with the authorities claiming that the men had deserted their work without permission. The men had no choice but to become undocumented migrant workers. When Amnesty International met them in September 2004, the men were desperate. They had no jobs or money and feared they could be arrested and deported at any time.
Under the EPS migrant workers who want to change workplace continue to face severe restrictions.(61) For example, migrant workers can change their jobs no more than three times and only with the permission of the employer. Migrant workers are unable to change jobs because of health problems that prevent them from continuing to do a particular job, or when they have suffered human rights violations in a particular workplace unless it (serious health problems and/or human rights violations) has been officially reported.(62) A recent study showed that the majority of migrant workers interviewed (81.8 per cent) found it difficult to change workplaces under the EPS.(63) In some cases, their situation became even more difficult after they highlighted abuses by their employers which made them want to change jobs.
Andri from Indonesia found that his monthly wages had been reduced from the contracted 800,000 won (approximately US$830) to 500,000 won (approximately US$520). The employer told Andri he would have to accept the lower wages or leave, but he would not sign the necessary documents to allow Andri to change jobs legally.
Under the EPS migrant workers are given one-year contracts which have to be renewed annually. If a migrant worker is refused an extension to a contract and is unable to find alternative work within one month, they are required to leave the country. Given this ever-present risk of dismissal and deportation, migrant workers often consider they have no choice but to accept poor working conditions and are less likely to seek to exercise fully their rights.
6: Health and safety at work Eight Thai women working at a company – Donghwa Digital – which made components for plastic frames for liquid crystal displays (LCD) monitors suffered serious injuries as a result of prolonged exposure to toxic chemicals. The women, seven of whom were irregular migrant workers, worked at a factory in Hwasong, 40 kilometres south of Seoul for up to four years.
The women told Amnesty International that their job involved cleaning plastic frames with a toxic chemical called n-hexane.(64) They were not given any safety instructions or warned of the dangers of using the chemical. They worked in closed, windowless rooms for up to 14 hours a day. The women reportedly worked 400 hours per month each, including an average of 160 hours overtime. Despite the fact that they were working with n-hexane, they had no goggles, masks or protective gear, other than cotton gloves.(65)
According to the women’s testimonies, the company appears to have used n-hexane from the beginning. However, initially the room where n-hexane was used was spacious and well ventilated. However, the room was later cut in half and the new restructured room lacked ventilation. The women said that Korean workers did not work in the rooms where n-hexane was used.(66)
The women initially attributed their illness to standing all day at work. By October 2004, three of them were very weak and ill. The supervisor took them to hospital where they were informed for the first time that their illness was a result of n-hexane poisoning. Fearful of the cost of treatment and of losing work and pay, the women tried to carry on working.
When their condition worsened, the company president refused to allow them to go to hospital, forcing the women to seek treatment secretly. Indeed, when the women were no longer able to walk, the employer, fearing negative publicity, reportedly confined them to their dormitory for 40 days and prevented them from going out for treatment or meeting other people.
Five of the women managed to escape from the dormitory and, with the help of friends and a missionary organization, received treatment at a local hospital. However, three of the women were returned by their employers to Thailand where they were unable to access appropriate medical help. The three -- Rhochana Nusaram, 31, Saraphee Yindee, 31, and Sirinan Phinihamaneerat, 37 – later arrived in Seoul for treatment at a state-funded hospital. It is reported that hexane poisoning requires intensive treatment for one year or more.
The company had apparently ignored warnings about the dangers of n-hexane given by industry security inspectors. The President of Donghwa Digital was arrested in 2005.
This case presents a clear example of multiple discrimination faced by many migrant workers, and the particular vulnerability of women migrant workers. These workers, on the basis of their nationality, were assigned more dangerous tasks than their Korean colleagues and were not given adequate training or protection. When the women fell ill, they were vulnerable to denial of their rights and were subjected to arbitrary detention by their employer and denied access to appropriate health care.
Migrant workers in South Korea often work in dangerous conditions. Many work long hours on machines that are not safe and about which they receive little training. Others work with dangerous chemicals with little protection equipment or safety training. Many migrant workers interviewed by Amnesty International reported that they had witnessed or been the victims of accidents in the workplace. According to the Ministry of Labour, around 1,300 migrant workers suffered workplace accidents in the first half of 2004, an increase over previous years.(67)
Most migrant workers have at best a basic knowledge of Korean, which is problematic as instructions about working practices or the operation of machinery are generally available only in Korean. This can have serious consequences for their health and safety especially when, as is often the case with employment undertaken by migrant workers, the work is difficult, dangerous and dirty. A number of migrant workers interviewed by Amnesty International complained that they worked in more dangerous conditions than their Korean colleagues.
The Ministry of Labour has stated that all migrant workers, including irregular workers, are eligible to benefit from the industrial accident compensation scheme. However at present, migrant workers appear to be denied this right in many cases. Indeed, some irregular migrant workers who have suffered long-term or permanent injuries as a result of industrial accidents have reportedly been forced to leave South Korea immediately after medical treatment as handicapped persons without compensation.(68)
"I was working in a company in Yesan, Chungnam Province. On 15 January 2005 I was hit in the head by a 500kg heavy sand bag; the ligaments in my leg were also torn…"
"When I was injured, the employers took me to a small clinic, where I stayed for three days and I received inadequate treatment. Later I was taken to Dankook Hospital where I was operated upon; I received treatment there for six months. While the doctor advised me not to work, the employers made me work. After one year, the manager did not let me get physiotherapy treatment…"
"Although I received some money for treatment, I did not receive insurance money as the boss did not report my injury to the insurance company. My employers swore a lot but it was not a problem as I did not speak Korean and did not understand them. They did not allow me to leave the dormitory where I lived; I could only talk to my friends over the phone but I could not meet them. The company refused to renew my contract and tried to get me deported on 25 January 2006. I knew it from one of my work colleague so I ran away from there…".
"I live at my friend’s place. Because of my injured leg, I cannot work. So I cannot pay the debts that I have incurred back home. My daughters can’t study and my family members suffer in poverty. My eldest daughter earns some money by breaking rocks in Nepal; it is hard manual work. My passport is with immigration authorities and I am now an undocumented migrant worker."
YB, a Nepali migrant worker, April 2006
Many injured migrant workers are reported to have received inadequate medical treatment and compensation. In some cases, employers of injured workers have refused to renew contracts, thereby denying them the right to stay in South Korea legally, and informed the immigration authorities. At risk of deportation at any moment, injured irregular workers have sought help from migrant workers’ organizations. Those who are caught and deported face a life of even greater poverty and economic insecurity in their home country. Others continue to fight for compensation in South Korea.
"I worked for a plastic manufacturing company – Misung Industry – in Daegu as an undocumented migrant worker for two years. I worked for 12 hours a day. The payment was right on time, but the condition of the work environment was very poor. Because of the chemical smoke around the working area, I had much pain in my lungs. Masks were not helpful. I had been having pains around my ribs for a year…"
"On 7 October 2005, my left hand glove got stuck and rolled into the plastic making machine; I could not remove my hand. It was not until my left shoulder was about to roll into the machine that the machine was stopped. I heard later that people could hear the sound of the bones being ground by the machine. The machine was switched off by people next door at another company who heard the screams from the scene. When taken out of the machine, my arm was without flesh or bones. Only clothes and skin were left. One person from the company next-door cut off the clothes and ligaments with a pair of scissors. There was no First Aid. I was then taken to an orthopaedic surgery. Some of Korean women workers who witnessed the scene were shocked and one of them fainted".
"The company was not insured for either industrial accident compensation insurance or health insurance. The company kept the accident in secret. When my friends came to see me, the president of the company initially denied knowledge of my whereabouts and so didn’t tell them which hospital I was admitted to for treatment. My friends became suspicious of her and informed a migrant workers’ centre and the centre made enquiries to the company about my whereabouts. The company refused to give the name of the hospital stating that I had suffered a minor accident. It was only after the centre told the company it would be reporting to the police that the president of the company told the centre where I was. In contrast to what the president said, my injury was very serious. When asked why she had lied, the president of the company said she was going to send me back to Nepal after my treatment was finished. I received treatment for 5 months; since then, the company has not paid for the physiotherapy treatment, nor has it paid for living expenses…."
"I am paying for treatment with my own savings but staying in Korea is another problem. I tried to apply for a visa for temporary stay for treatment, but the company refused to help me. Because I do not have a place to stay, I am staying at the house of one of my friends and paying for my treatment. I still have much pain in the ligaments. I cannot work at all. I would be able to receive treatment at home in Nepal, but it would cost a lot. I don’t want to go back to Nepal before getting compensation."
BS, a 33-year-old Nepali worker, April 2006
The failure of many employers to provide mandatory health insurance for migrant workers has serious repercussions for both men and women migrant workers.
6.1: Lack of mandatory health insurance on women migrant workers
There are particular concerns about the ways the lack of mandatory health insurance affects women migrant workers who may become pregnant but cannot afford to pay for appropriate treatment or undertake regular check-ups. Reports suggest that even after miscarriages many migrant women continue to undertake the same heavy workload. In a 2002 survey conducted by the Joint Committee for Migrant Workers in Korea (JCMK), "A Report on the Actual State of Human Rights of Women Migrant Workers," 66.7 per cent of workers who became pregnant did not inform employers for fear of dismissal and 56 per cent of them had had miscarriages.
According to the Women Migrants Human Rights Center, in the case of women trainees, pregnancy can be judged by employers as a justifiable reason for deportation. Such practices are in violation of CEDAW, Article 11, which calls on States Parties to "take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights," and in particular, Article 11 (f), which calls on states to ensure women workers "The right to protection of health and to safety in working conditions (for women), including the safeguarding of the function of reproduction."
Such practices also violate ICESCR, Article 10 (2) that calls on States Parties such as South Korea to recognize that "(s)pecial protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits." In addition such practices do not appear to be in line with ICESCR, Article 12 (1) which calls on States Parties to "recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health."
7: Pay
E, an Indonesian national recruited under the EPS system, found on arrival in South Korea that his wages were much lower than promised by the company and almost half the salary of Korean workers. He was required to work seven days a week with only one day off each month. His salary of 600,000 won (approximately US$600) per month, including overtime, meant that he could not pay the debts that he and his family had incurred in financing his recruitment. Under the EPS, E could only stay in South Korea legally for three years, barely enough time to pay debts incurred in financing his recruitment and travel to South Korea, so he became an irregular migrant worker to try and pay off the family debt.
Many migrant workers in South Korea are paid less than the prescribed national minimum wage, and their pay is often withheld for long periods. Amnesty International’s research suggests that these discriminatory practices are widespread and frequently go unchallenged in large part because of the precarious legal status of many migrant workers.
Trainees also work very long hours for low pay. According to a 2003 survey by the Korea Labor Institute,(69) JVTS trainees worked on average 11 hours a day. Their pay was delayed, on average, by 7.2 months, and 25.9 per cent of those interviewed were not paid for overtime. Although in reality JVTS trainees did the same amount of work (including overtime) as other workers, their status as trainees meant that employers paid them less. This is because JVTS trainees are only paid an "allowance" for "training" in South Korea, while the remainder of their wages was paid in their country of origin. (70)
R came to South Korea from the Philippines in August 2003 as a trainee. He and Thai and Cambodian colleagues worked for a company which had withheld their wages for three months. Their Korean colleagues had left to find work elsewhere and the company had been reported to the local labour office. R did not want to become an irregular migrant worker but hoped to work for another company legally. When R approached the KFSB for help with a transfer to another workplace, they told them that if he refused to continue to work for his company he would be deported.
In addition, according to NGO activists interviewed by Amnesty International, millions of dollars of unpaid wages have been withheld from migrant workers. Very few of those who were forcibly returned to their home countries received the wages they were due from employers. Even under the EPS, there is very little support from the South Korean government to ensure the payment of unpaid wages for those migrant workers who have been forcibly returned. Employers also reportedly withhold severance pay from many migrant workers at the end of their contracts.
Women are particularly vulnerable to discrimination in the payment of wages. More than 35 per cent of all migrant workers in South Korea are women and their numbers are increasing. Most are employed in manufacturing, the service sector or sex-related industries. Most women migrant workers experience double or triple discrimination: as migrant workers with legal work permits, as women and as irregular workers.(71) Unequal pay for men and women without good cause is prohibited in South Korea by law.(72) Nevertheless, employers continue to pay women migrant workers less than men migrant workers for equal work. A survey conducted in 2002 by the NHRC, "A Fact Finding Report of the Human Rights of Migrant Workers Living in Korea," indicates that women migrant workers earned on average 10 per cent less than their male counterparts. This practice violates ICESCR, Article 7(a) (i) which guarantees women "conditions of work not inferior to those enjoyed by men, with equal pay for equal work."
8: Violence and abuse in the workplace
One in every five migrant workers reportedly suffers from direct physical violence in the workplace and more than one in three migrant workers are verbally abused by their Korean employers or colleagues.(73)
"S", an industrial trainee from Nepal, was dragged out of his dormitory by his employer after he refused to work an extra four hours after his 13-hour night shift. Unable to bear the conditions of work and ill-treatment meted out to him by his employer, "S" complained to the recruiting agency and the KFSB. While "S" was visiting the agency, his company reported that he had left work without permission. When the agency next called him to the office, the police were waiting for him and detained him as an irregular migrant worker. The KFSB then refused to help "S" on grounds that he had become irregular. Later "S" was not allowed to give testimony to a parliamentary inspection team that was investigating problems of the ITS trainees because of his undocumented status. In the absence of any mechanism for obtaining redress for the abuses against him, "S" returned to Nepal.
Women migrant workers are reportedly at risk of sexual harassment and violence. A woman migrant worker from Nepal told Amnesty International that it was usual for women migrant workers to suffer sexual harassment at work carried out by their supervisors. She cited many occasions when she had been woken in the middle of the night by a drunken supervisor who violently beat on her dormitory room door, shouting at her to open the door. (74)
According to the 2002 survey conducted by a prominent NGO Coalition, the Joint Committee for Migrant Workers in Korea, "A Fact Finding Report of the Human Rights of Migrant Workers Living in Korea," 12 per cent of the women surveyed had suffered sexual violence at work. Many had not reported the abuses as they feared dismissal and the loss of their legal migrant status. Among irregular women migrant workers, 54 per cent of those who said that they had experienced sexual violence said they were threatened by their employers with forcible return to their home countries if they reported the incidents.
Six Sri Lankan women working in an alcohol manufacturing company described to Amnesty International(75) how they endured persistent inappropriate touching and other sexual harassment from the company president. They did not dare to complain because they feared they would be sacked and they desperately needed the money they earned in South Korea to send home to their families. At night the company president would come to their dormitory and would try to open the door when they were taking a shower. In summer, when it was very hot, he removed the door to their room and replaced it with a net door. The women were unable to sleep, knowing that he was watching them and could enter the room at will.
Not knowing what else to do, the women complained to the Sri Lankan Embassy in the last week of December 2004, but were merely told to leave the company. In January 2005, they complained to the representative of their recruitment agency, who asked an immigration control official from Chuncheon to investigate their complaints. The official visited the company, but his only suggestion was that the women talk with the company president and agree a solution with him.
From early February onwards, after the immigration official’s visit, the president’s behaviour deteriorated. He shouted at the women, threatened to send them back to Sri Lanka, gave them very heavy work to do and started censoring their mail. Three weeks after the official’s visit, he invited two women to his room and showed them sexually explicit photographs.
The women were eventually helped them to leave in December 2005 by a priest from the Ansan Migrant Workers’ Centre. The women have no money and would like to work, but they have no visas as these have been withheld by the company president. The women remain presently at the Centre waiting for result of a police investigation.
South Korea has obligations under international law to prevent, investigate and punish acts of violence against women, whether they are perpetrated by state or non-state actors. CEDAW General Recommendation No.19 defines ‘gender-based violence’ as a form of ‘discrimination’ against women under CEDAW, Article 1. States Parties to the CEDAW are obliged inter alia "to take all appropriate measures to eliminate discrimin
