Globalization of Human Rights and Migrant Labor Policy
Dong-Hoon Seol (Professor of Sociology, Chonbuk National University)
1. Dualism of the migrant labor policy of the Korean government
There are a lot of migrant “workers” in Korea, but few migrant “laborers.” This means that even though ‘worker’ (nodongja) and ‘laborer’ (geunroja) are synonyms, only ‘laborer’ is an acknowledged word in legal terms. By the end of April 2002, the number of migrant workers in Korea was estimated at 350,436. Among them, 31,986 who are employed legally can be accepted as laborers by the Labor Standards Law. In other words, legal laborers account for no more than 9.1% of the total number of migrant workers. The other laborers or so called “workers” include 39,716 industrial trainees and 278,734 undocumented workers, including trainees who learn industrial skills trough practical training on a job site and overstayed tourists or people who crossed the border by stealth. Why is this happening?
It is because the Korean government has duplicity in migrant labor policy, in which its external claims differ from its actual persuasions. The government internally makes use of industrial trainees and undocumented workers, but externally adheres to the principle of not importing a migrant laborers for simple technical services.
However, the Ministry of Labor (MOL) has kept on taking administrative action to check migrant workers’ labor, which shows that industrial training in the Industrial Trainee System and the Trainee Employment System is in name only. In addition, Daegu Local Court ruled that industrial trainees also have to be paid retirement allowances, and several times the Supreme Court set precedents recognizing the laborer nature of industrial trainees. Like this, if the existence of industrial trainees is legally weak, then why does the government adhere to industrial training that rationalizes low wages by not granting laborer status to migrant workers and deprives them of labor rights?
Although the Korean government advocates the Trainee Employment System as the basis of migrant labor policy, the majority of migrant workers are undocumented, accounting for 79.5% of the migrant workforce, which is higher than Singapore’s 3.2%, Taiwan’s 7.4% and Germany’s 6.5%.
Ever since 1987, when migrant workers first came to Korea, the present situation has continued. Paradoxically speaking, it means that the actual purpose of a migrant labor policy is to import undocumented workers. Although the government outwardly declares to crackdown on undocumented migrants, it also restrains itself from doing so for the purpose of using them to fill the shortage in the domestic labor market. The government pretends to keep the front door shut, but openly accepts undocumented workers through a side or back door.
Undocumented workers in Korea come from 96 countries around the world, including China, Bangladesh, the Philippines, Mongolia, Vietnam, and so forth. As many as 67.3% have tourist or visiting visas; 20.5% qualify as industrial trainees, but then leave their training companies; 4.1% have been smuggled in; 8.1% account for other cases. Of these, 34.8% are working in manufacturing, 13.7% in construction, 13.7% in restaurants, 7.1% do housework and daily work, and 22.6% account for the rest. Except for in manufacturing, there are many Chinese workers who are regulated by the “Guideline for Managing Migrant Workers’ Civil Affairs.”
Based on the inspection of the administration conducted by the National Assembly, filed by the National Police Agency (gyeongchalcheong) in 2002, the number of undocumented workers increased by 31%, from 188,995 in 2000 to 255,206 in 2001. In August 2002, it had increased by 11.1% compared to 2001. From the beginning, the government regarded undocumented workers as laborers.
MOL gave undocumented workers the same labor rights as their Korean co-workers, such as industrial accidents compensation under the “insurance law for industrial accidents compensation” and retirement allowances according to the Labor Standards Law. In addition, it took action for undocumented workers being covered by the “prevention of labor regulation for vacation, holidays, overtime and holiday work,” and the minimum wages law and the equal employment of men and women. These actions are supported by a court ruling, in which the Labor Standards Law covers undocumented workers during their labor period. In 2000, MOL stipulated the contents and regulated, the “Guideline for Managing Migrant Workers’ Civil Affairs.” However, all those actions were no more than forms causing labor exploitation and human rights violation.
2. The contents of deportation policy of undocumented migrant workers
The Office for Government Policy Coordination under the Prime Minister announced its “Improvement Policy of the Migrant Labor System,” which on March 31 this year, will see the deportation of 255,978 voluntarily reported foreigners who registered from March 25 to May 29, 2002. According to the policy, the labor shortage in the manufacturing industry will be solved through increasing personnel to 145,500, and that of the service industry will be solved through an employment control system effecting 50,000 migrant workers.
The government accepted voluntary reportage from undocumented stayers, but declared that all undocumented workers would be deported by March 2003. Nevertheless, academic circles and civil groups have evaluated that this policy is practically impossible to conduct. In response to this reaction, an embarrassed government published its supplementary measures for a migrant labor system on November 22 2002, which indicates that of the 255,978 undocumented stayers reported during the voluntary report period between March and May 2002, 106,928 having stayed less than 3 years have been re-delayed for forcible deportation during the next year. The government amended the plan so that 255,978 undocumented stayers are steadily deported before March 31, 2004. The measure to deporting all undocumented stayers is theoretically right, but in case undocumented stayers do not leave voluntarily due to the non-existence of forcible execution, it is surely due to fail. Unless 149,049 are forcibly deported after March 2003, the next policy performance will have failed too.
Let’s review some problems caused by the Korean government’s forcible deportation policy against undocumented stayers:
(1) Is it possible to deport all undocumented stayers?
How can the government policy, which is supposed to deport 149,049 illegal stayers by March 31, 2003 and 106,929 by March 31, 2004, succeed? On the condition that all of them depart voluntarily, undocumented workers problems can be solved simply; although the majority of them are trying to stay in Korea because it is difficult to come back after returning to a substitute workforce that is not prepared yet. It has taken the Korean government 15 years to deport more than 270,000 undocumented stayers, so it is nearly impossible to deport about 150,000 in eight months or 270,000 in 20 months.
(2) How are we going to cope with the labor shortage after all the undocumented migrant workers leave?
The government has announced it will start an Employment Regulation System (ERS), which will manage overseas Koreans in the food services industry, housekeeping and out-sourcing services. It will also increase the number of industrial trainees in order to make up for shortages in manufacturing, construction, fisheries, and agricultural and livestock industries caused by undocumented migrant workers returning home.
Expanding the Industrial Training System
The government is attempting to fill the empty space, caused by undocumented migrant workers returning to their home countries with, 145,500 industrial trainees. It decided to import 5,000 industrial trainees for the agricultural and livestock industries and put an additional 5,000 each into small to medium sized manufacturing companies and construction businesses.
In the beginning, the government planned to invite the new industrial trainees after the undocumented migrant workers returned to their home countries in April 2003. However, most small to medium sized business owners showed concern regarding serious labor shortages if undocumented migrant workers leave the country.
Based on such fears, the Korean Federation of Small Business (KFSB) and others insisted on importing 20,000 to 30,000 industrial trainees in advance of the undocumented migrant workers returning. The government accepted the proposal. It decided to import 20,000 industrial trainees from November 2002 to replace the undocumented migrant workers being expelled, which means that they introduced replacements before the existing undocumented migrant workers left Korea.
On the other side of this, managers of workplaces with poor work environments claim they would have no choice but to close their business if the government enforced control of undocumented migrant workers from April 2003. This is because it is difficult to hire foreign industrial trainees and Korean workers to work in such poor working conditions. They have forecast that even if the government raises the number of industrial trainees in manufacturing to 130,000, many companies currently employing undocumented migrant workers will get no industrial trainees at all. Because of this, most entrepreneurs would hire undocumented workers, even though they understand it is against the law.
Another reason why companies continue hiring undocumented migrant workers is because of their skills. “Presently, undocumented migrant workers are fluent in speaking Korean and they have obtained enough skills for the job. It would seriously damage companies if we import new hands instead of keeping them (skilled undocumented migrant workers).” It takes over a year for new migrant workers to adopt Korean society, so some companies have openly admitted that they would continue employing skilled undocumented migrant workers.
The fatal problem that the government’s counter-plan holds is using the Industrial Training System (ITS) as a replacement for undocumented migrant workers. Trainees have worked as “workers” without being offered proper training programs. It is a disgrace and has become a so-called the “Modern Slavery System” due to its harsh exploitation, infringement upon human rights and various other absurdities.
The system is also used as another axis to generate undocumented migrants. Evidence of this is that among the 80,000 industrial trainees as of August 2001, 34,061 chose to leave their workplaces to become undocumented migrants. Considering the Industrial Training System actually nurtured undocumented stay and separation from the workplace, expanding the number of trainees is more hazardous. An attempt to keep and expand the Industrial Training System is no different to intending to increase the number of undocumented migrant workers.
Execute the Employment Regulation System
The government also intends to implement the Employment Regulation System (ERS) to replace undocumented migrant workers who work in the service industry. Those covered by ERS are: invited relatives within an third cousin of kinship degree overseas Koreans aged over 40 who can identify a relative traced on the documents or listed on the family registry. Even if he/she is a Korean living abroad, without the verified documents they will be excluded from the benefits.
The government allows two years of work permit to overseas Koreans who obtained consent to perform activities other than staying with F-1 visas from a Korean embassy or consulate. This action has allowed overseas Koreans to work in food businesses, social welfare, sewage disposal and cleaning related services, nursing, and household services. The total number is limited to 50,000.
If an overseas Korean with an F-1 visa wants employment, he/she should apply to the Employment Stabilization Center, affiliated to the Ministry of Labor, with detailed information of what he/she wants. For an employer who wishes to hire these people should illustrate that he/she failed to find a domestic worker in a period of at least one month. The role given to the Employment Stabilization Center is to create a link between employees and employers. Overseas Koreans with F-1 visas are subject to the same labor laws as other domestic workers and only allowed to transfer to another workplace subject to special conditions, such as the business closing or delayed payment.
The ERS benefits overseas Koreans from China, Russia, Uzbekistan, Kazakhstan, or so who are excluded from the “law for the entry and stay of overseas Korean and legal status” even though they are actually ethnic Koreans. The measure can be a device to solve discrimination among overseas Koreans. However, the system has serious problems. The government prohibits an overseas Korean service workers from moving his/her workplace. There are very exceptional cases for changing workplaces. Korean nationals can freely change workplaces, but this does not apply to these overseas Koreans.
(3) Is there an alternative plan after undocumented migrant workers have been deported?
It is not easy to harshly punish companies who hire undocumented migrant workers without offering replacements. To stick with the Industrial Training System to replace undocumented migrant worker resources and provide trainees to manufacturing, construction, agriculture and fisheries holds another fatal problem. Under the remaining system, there are those who profit from it. I would like to ask these people why they adopt this expedient process to hire trainees, instead of properly assigning them as laborers.
Although there are limits to the system, ERS is now shedding light on overseas Koreans. They have been disposed of because they are from less developed countries. We should apply the same system to all the migrant workers regardless of their ethnicity and origin. Not only does international law prohibit any discrimination either nationality or ethnicity, but so too does Korean law. If we import foreign migrant workers, either overseas Koreans or other foreigners, to solve domestic problems, it would be right to give them proper legal status, and expand work limits to other areas and open the door to them. Other than this, there is no option.
A generalized ERS is also a, so-called, the Employment Permit System (EPS). Legal grounds of the system can be worked on by the National Assembly, which we temporarily call, the “law regarding the employment and management of foreign migrant workers.”
After strict screening, employers and voluntarily turned-in undocumented stayers should be cultivated. So to speak, the government should block the vacancies and massive expulsion through the employment permit for employers and the work permit for foreign migrant workers. Of course, migrant workers should make a commitment to return home and employers should build a sincere plan to manage without a migrant workforce after a certain period of time. Based on these conditions, the government may execute forceful control on both employers and migrant workers. And by doing so, the government would massively reduce undocumented stayers in Korea.
