ILO and UN CESCR call for the Prompt Registration of the Migrants Trade Union and Greater Protection of Migrants’ Rights in South Korea

In the past week both the ILO Committee on Freedom of Association (CFA) and the UN Committee on Economic, Social and Cultural Rights (CESCR) released important recommendations regarding the situation of migrant workers in South Korea.

The CFA recommendation, adopted by the ILO Governing Body on November 18 affirms the right of all migrant workers, regardless of status, to form and join unions of their choosing and calls for the prompt registration of the Migrants Trade Union (MTU). It also repeats the CFA’s past recommendation that the South Korean government end measures such as targeted arrests and deportations aimed at interfering with their union activities.

The CESCR report, adopted on November 20at the Committee’s 43rd Session, calls for a review of South Korea’s Employment Permit System with the goal of increasing protection of migrant workers’ labor rights. It also calls for the South Korean government to up hold the High Court decision that ruled in favor of MTU’s legal union status in February 2006.

These reports represent clear acknowledgment of the grave labor rights violations suffered by migrant workers in South Korea. Even more significantly, they reaffirm the right of all migrant workers to freedom of association. They are thus an important victory for migrant workers seeking to unionize, not only in Korea, but also around the world.

MTU’s Struggle for Freedom of Association
MTU was formed in April 2005 as a union by and for migrant workers, regardless of status. Since MTU’s founding the South Korean Ministry of Labor has refused to register it as a legal union alleging that undocumented migrant workers’ right to freedom of association is not protected under South Korean law. On February 7, 2006, the Seoul High Court, finding the government’s arguments to be incorrect, ruled that the right of undocumented migrant workers to form and join unions of their choosing is protected under the South Korean Constitution and labor law and that MTU’s legal union status should therefore be recognized. Refusing to accept this ruling, the Ministry of Labor appealed this ruling to the Supreme Court where a decision is still pending. In the meantime the government step up its repression against MTU, arresting and deporting its leadership twice, once in December 2007 and once in May 2008. Despite these attacks MTU has continued to carry out union activities and has maintain the firm stance that all workers, regardless of status, have the right to form and join trade unions of their choosing.

The Employment Permit System
The Employment Permit System (EPS) is the main system regulating documented migrant labor in South Korea. It has been heavily criticized by South Korean civil society and the international community for engendering exploitation and rights abuses by greatly restricting migrant workers freedom to change workplaces, making the continuation or termination of contracts completely dependent on the will of the employer and otherwise creating a highly unequal relationship between workers and their employers.

Content of the CESCR Report

The CERSCR report makes the following observations and recommendations [para. 20]:

The Committee recommends that the Employment Permit System… be further reviewed. The Committee recommends that particular attention be paid to the fact that the three month period stipulated for a change in job is highly insufficient. This is especially true in the current economic situation, in which migrant workers often have little choice but to accept jobs with unfavorable work conditions just to remain regular. The Committee further recommends that the State party uphold the High Court’s decision to grant legal status to the Migrants’ Trade Union.

Content of the CFA Report
The CFA’s report makes the following recommendations (para. 710):

(a) The Committee requests the Government to proceed with the MTU’s prompt registration and to ensure that national decisions concerning the MTU’s application for registration recognize the principle that all workers may be guaranteed the full exercise of their freedom of association rights. It further requests the Government to ensure that the Committee’s conclusions, particularly those concerning the freedom of association rights of migrant workers, are submitted for the Supreme Court’s consideration and to provide
a copy of the Supreme Court’s decision once it is handed down.

(b) The Committee requests the Government to undertake an in-depth review of the situation concerning the status of migrant workers, along with the social partners concerned, so as to fully ensure and safeguard the fundamental rights to freedom of association and collective bargaining of all migrant workers, whether in a regular or irregular situation and in conformity with freedom of association principles, and to prioritize dialogue with the social partners concerned as a means to find negotiated solutions to the issues faced by these workers. The Committee requests the Government to keep it informed of the progress made in this regard.

(c) The Committee once again requests the Government to refrain from taking measures which involve a risk of serious interference with trade union activities, such as the arrest and deportation of trade union leaders for reasons related to their election to trade union office and while legal appeals are pending.

With regards to the right of undocumented migrant workers to freedom of association the report also states [para. 705]:

…the Committee once again recalls, as it had in its previous examination of this case [see 353rd Report, para. 788], the general principle according to which all workers, without distinction whatsoever, including without discrimination in regard to occupation, should have the right to establish and join organizations of their own choosing [see Digest, op. cit., para. 216]. The Committee further recalls that when examining legislation that denied the right to organize to migrant workers in an irregular situation – a situation maintained de facto in [the MTU] case – it has emphasized that all workers, with the sole exception of the armed forces and the police, are covered by Convention No. 87, and it therefore requested the Government to take the terms of Article 2 of Convention No. 87 into account in the legislation in question [see Digest, op. cit., para. 214]. The Committee also recalls the resolution concerning a fair deal for migrant workers in a global economy adopted by the ILO Conference at its 92nd Session (2004) according to which “[a]ll migrant workers also benefit from the protection offered by the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up (1998). In addition, the eight core ILO Conventions regarding freedom of association and the right to bargain collectively, non-discrimination in employment and occupation, the prohibition of forced labour and the elimination of child labour, cover all migrant workers, regardless of status” [para. 12].

The reports of both committees demonstrate unequivocal support for migrant workers rights, particularly the right of migrant workers, regardless of status, to freedom of association, by two of the most authoritative international voices on human and labor rights. The CFA recommendations also make clear that use of tactics such as the arrest and deportation of union leaders in order to interfere with union activities is a violation of international labor law regardless of the immigration status of the union leaders in question. These reports therefore set important precedents, which have meaning for migrant workers seeking to organize all over the world.

We therefore wish to share this victory with you, and hope that it will be an inspiration for the movement for migrant workers’ rights everywhere. We also hope the CESCR and CFA recommendations can be concrete tools for those unions and organizations who are engaged in legal battles regarding migrant workers’ rights to freedom of association.

The full reports are attached to this email.

If you have any questions about the details of this complaint or MTU’s Supreme Court case please contact:

Jung Yongsup
Vice General Secretary
Seoul-Gyeonggi-Incheon Migrants Trade Union