FWC FPI/PSF/2015 Lot 4 RFS: 2016 / /1

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2 1 FWC FPI/PSF/2015 Lot 4 RFS: 2016 / /1 This Report was financed by the European Union. The views expressed herein are those of the contractor and do not represent the official views of either the European Union or the Korean Government. EUROPEAN COMMISSION Directorate-General for Trade European Commission Rue de la Loi 170 B-1049 Brussels

3 2 About DEVELOPMENT Solutions DEVELOPMENT Solutions (DS) is a European consultancy which serves the international donor and business community in support of sustainable development and sustainable investment objectives, world-wide. Our expertise is built on our strong grounding in project design and management, research, policy and regulatory analysis, and the management of capacity strengthening programmes for governments. Our primary projects are in support of EU external policies and cooperation in third countries, which includes deep experience in the area of trade policy, environment and sustainable solutions. This work has served as a valuable demonstration as to how trade and environmental policies can support developing countries to transition towards sustainable growth, which can bring economic efficiency and contribute to local and international efforts for sustainable development outcomes.

4 3 List of abbreviations CAS CEACR Committee on the Application of Standards Committee of Experts on the Application of Conventions and Recommendations CJEU CoE CTSD CV DAG DS EC ECHR The Court of Justice of the European Union Council of Europe Committee on Trade and Sustainable Development Curriculum Vitae Domestic Advisory Group DEVELOPMENT Solutions Europe Ltd European Commission European Convention for the Protection of Human Rights and Fundamental Freedoms ECtHR EPS EU EUD FADA FTA ILO KEAD LRC LSA MOU NCEP NGO NHRCK OECD SME TAW TEU TFEU UN European Court of Human Rights Employment Permit System European Union European Delegation to Korea Federal Anti-Discrimination Agency Free Trade Agreement International Labour Organization Korean Employment Agency for the Disabled Labor Relations Commissions Labour Standards Act Memorandum of Understanding National Commission for the Promotion of Equality Non-governmental Organisation National Human Rights Council of Korea Organisation for Economic Cooperation and Development Small- or Medium-sized Enterprise Temporary Agency Work Treaty on the European Union Treaty on the Functioning of the European Union United Nations

5 4 Contents Foreword Project Parameters and Constraints Project Approach and Methodology Project Approach Analysis Identification of workplace issues International Labour Organisation (ILO) Convention no. 111 and legal implications EU Member States approach towards equality and non-discrimination in employment and occupation EU legal framework Treaties and Directives National level practices in EU Member States Korean approach to human rights in the work place Labour Inspectors Labour Relations Commissions ILO comments and challenges identified in EU Members States and the Republic of Korea Classic forms of non-gender-related discrimination in EU Members States and the Republic of Korea Migrants Age Disability Religion Political Opinion Gender discrimination in EU Member States and the Republic of Korea Work place issues Temporary Employment Part Time Work Temporary Agency Work (TAW) Equality and non-discrimination institutional ecosystem... 36

6 The Ecosystem Equality Bodies Labour Inspectorates Social partners and other relevant stakeholders Courts and tribunals General prescriptions for good practice and examples General Prescriptions Good Practices in action Labour Market Issues Good Practices Conclusions and Policy Implications... 46

7 6 Foreword The present document comprises the core assessment of the longer Research and Analysis report, available as a separate document. The project team would be the first to acknowledge that the subject for research was too vast to be fully captured in detail given the resources available to the project. The original intention of the project was to compare merely the Republic of Korea and the European Union (EU), but the need to penetrate to the country level quickly became apparent. The 29 countries (28 EU Member States and the Republic of Korea) with their own legal systems and their own languages demanded attention which could not be fully satisfied. Given the time available, adopting a thorough quantitative approach would have been inappropriate and it would have been difficult to build a statistically representative sample for the entire territory investigated. Hence we were heavily reliant on the comparative work by the ILO, OECD and other bodies, as well as our own interviews and legal analysis. Concerns were addressed by many parties about the question of balance. Issues of balance have been carefully considered, not least between the amount of attention given to individual EU Member States versus the Republic of Korea. We are deeply indebted to Katerine Landuyt and Karen Curtis of the ILO Norms division who facilitated our access to their database and to Taehohn Lee of the ILO, who guided us both physically and mentally through the world of the ILO activities. As is stated clearly on the title page, while taking into account the official views of representatives, the report represents the considered opinion of the consultants and not the official views of the EU, nor of any individual Member State, nor of the ILO, nor of the government of the Republic of Korea. - Dr. Tony Michell, Mr. Ioan Cristinel Raileanu and Mr. Chan Sik Ahn

8 7 1. Project Parameters and Constraints The project was framed as a comparative study of the EU and the Republic of Korea s implementation of ILO Fundamental Convention no It required delving into the 28 EU Member States legal structure and experience in order to allow direct comparisons with the Republic of Korea. This direct comparison was of significant interest to the Republic of Korea, since EU legislation and directives, so important in Europe s adaptation to the 21 st century, were seen as too abstract from the point of view of Korea. However for each EU directive, the Republic of Korea would do well to consider its own measures in comparison. The project as originally conceived asked for a careful examination of the legal structures in the Republic of Korea and the EU, but as the work progressed, it appeared that the issues which offered most scope for improvement were not legal, but those of implementation (or in ILO terms, governance.) This required that the study look not only at the institutions of governance, but also at how they function; and at the process of redress, to assess how easily an individual or group experiencing discrimination can gain or regain a discrimination-free work environment. ILO Convention no. 111 itself presents strict parameters regarding the location of discrimination. It is concerned with equality and discrimination in employment and occupation. This refers to access to vocational training, access to employment and to particular occupations, and terms and conditions of employment. Many of the difficulties raised in non-government reports to the ILO spill across other areas of society. Some are covered by other ILO conventions, notably no. 156 Workers with Family Responsibilities. Some stray into the political roles of governments. 2. Project Approach and Methodology 2.1. Project Approach The Comparative Study on the Implementation of International Labour Organisation (ILO) Convention no. 111 in Korea and the European Union (EU) Member States project was launched in July The project was funded by the EU under the EU Partnership Instrument, and was implemented by DEVELOPMENT Solutions Europe Ltd (DS).

9 8 The mutually defined goal of the project is to better understand the state of play of implementation in the Republic of Korea and the EU Member States of the Convention no. 111 and to contribute to understanding how implementation could be improved. 1 ILO Fundamental Convention no. 111 is about discrimination in the workplace. Had the Convention been written in the 21 st century rather than 1958 it would have used the phrase human rights in the workplace. The core concept of human rights in the workplace is equality of opportunity. ILO Convention no. 111 prescribes equality of opportunity in the run up to employment in recruitment and vocational training, and throughout the working life of each individual. Since the discrimination agenda has evolved and expanded significantly in order to effectively respond to emerging challenges. Enhancing equal and fair treatment for several groups of workers vulnerable to discrimination in employment remains a constant priority for signatory countries when developing laws and policies for the labour market. Although progress and positive outcomes have been noted in both the Republic of Korea and EU Member States, discrimination on various grounds still exists, notably inequality between women and men. For the scope of this study we identify gender issues as core discrimination, given the issues high profile and the ongoing efforts put in place internationally in achieving equality between women and men and combating gender differences in payment and in other aspect of the labour market. We use classic discrimination to identify the remaining six (race, colour, religion, political opinion, national extraction or social origin) grounds explicitly included in Convention no. 111 and all other evolving grounds of discrimination generally recognised in society (age, disability, etc.). 3 As a comparative study the chief methodological problem was to acquire comparable data which could be used for comparisons, and to decide what should be compared. From the side of the Republic of Korea it was made clear that the most useful part of the study was finding areas of good practice and examples in EU Member States (rather than EU directives or Member States legislation) which could be examined for application to particular challenges in development of the Republic of Korea. As Europe s experience is 1 European Commission. (2015). Joint Statement of the 4 th Meeting of the Committee on Trade and Sustainable Development under the Korea-EU FTA., Seoul, Korea, 9 September Available: 2 The year when ILO Fundamental Convention no. 111 was adopted 3 This distinction is partly based on Gary Becker s Economics of Discrimination 1957 which studies classic discrimination notably racial, and ignores discrimination based on gender which is built into society.

10 9 different from that of the Republic of Korea, some of the areas of most interest to the Republic of Korea were almost non-issues in EU member states and required separate research Analysis The study consisted of the following stages: o o o o Legal and constitutional studies; Review of ILO guidelines and those of related Human Rights organizations; Governance structures; Identification of workplace issues where discrimination occurred and a typology of discrimination; o Comparative study of the reported incidence of discrimination in the 29 countries; o o Search for good practice or general principles; Study conclusions. A questionnaire was distributed to allow consultation with the maximum number of stakeholders. The questionnaire was designed to assess perceptions of discrimination on a national basis and to use a well-established sociological tool for qualitative analysis known as grounded situational analysis. This allows an outline of the perception of the state of discrimination as perceived by a wide variety of stakeholders. This will allow analysis to go deeper into individual situations in future discussions and the results are shown in Appendix VI of the accompanying Research and Analysis report Identification of workplace issues ILO Fundamental Convention no. 111 defines discrimination as follows: Article 1 1. For the purpose of this Convention the term discrimination includes- (a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; (b) such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned after consultation with representative

11 10 employers' and workers' organisations, where such exist, and with other appropriate bodies. Clause 1 therefore names seven types of discriminatory grounds in section a) but adds in section b) such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity. These other distinctions regularly cover disability, age, and complex workplace issues related to employment status including indirect discrimination International Labour Organisation (ILO) Convention no. 111 and legal implications The International Labour Organisation is the only tripartite United Nation agency that actively works to enhance the quantity and quality of jobs throughout the world and to protect the people s rights. The tripartite character is specific important and a value-added feature in which representatives from governments, employers and workers from 187 States come together to adopt adequate labour standards and to develop policies and actions that aim at achieving decent work for all individuals. The labour standards adopted by the ILO are included in Conventions, Protocols and Recommendations. These instruments have the role of ensuring access to decent work and protection for both women and men. Moreover, the Conventions represent instruments which on ratification by the ILO Members States create legal obligations under Article 19, paragraph 5(d) of the ILO Constitution, of ensuring implementation in national law and practices of the provisions included in the convention. Out of the numerous Conventions adopted to date, eight are considered Fundamental and deal with: Freedom of Association Convention no. 87 concerning Freedom of Association and Protection of the Right to Organise from 1948 and Convention no.98 concerning the Application of the Principles of the Right to Organise and to Bargain Collectively from 1949; Forced Labour Convention no. 29 concerning Forced or Compulsory Labour from 1930 and Convention no. 105 concerning the Abolition of Forced Labour from 1957; 4 Indirect discrimination occurs when an employer has rules, reasonable in themselves, which discriminate between different workers for example men and women or young and old workers.

12 11 Discrimination Convention no. 100 concerning Equal Remuneration from 1951 and Convention no. 111 concerning Discrimination in Respect of Employment and Occupation from 1958; Child Labour Convention no. 138 concerning Minimum Age for Admission to Employment from 1973 and Convention no. 182 concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour from In terms of ratification, the Fundamental Conventions were ratified by all EU Member States and the Republic of Korea has ratified the four dealing with discrimination and child labour. In total the Republic of Korea has signed 26 conventions 5. In the EU the Member State that ratified the largest number of conventions is Spain with 137 in total (out of which 87 are in force) and the most recent Member State to join the ILO, Estonia, has the least number of conventions, having ratified 39 in total (out of which 33 are in force). Briefly presented, the ILO Fundamental Convention no. 111 is about promoting and ensuring respect for human rights in the world of work, since discrimination represents a violation of the Universal Declaration of Human Rights. ILO Convention no. 111 promotes equality of opportunity in employment and occupation, including access to vocational training, throughout the working life of each individual. Convention no. 111 has been ratified by 173 countries to date, with the United States the most prominent absence. The first EU Member State that ratified Convention no. 111 was Portugal on 19 November 1959 and the latest was Estonia on 17 August The Republic of Korea ratified the Convention on 4 December Convention no. 111 is strongly connected with Convention no. 100 concerning Equal Remuneration (and in certain cases Convention no. 156 Workers with family responsibilities). In many cases the ILO committees 6 analyse the progress of countries looking at the measures adopted for the implementation of all of these labour standards. A complete view on all the features included in the Convention no. 111 has the role of enhancing the effectiveness of policy responses developed by the EU Member States and the Republic of Korea to issues of discrimination and equality in employment, life-long learning and occupation. The equality and non-discrimination agenda has evolved considerably since the adoption of Convention no The changes, transformations and transitions experienced both by 5 Conventions signed by the Republic of Korea are 81, 122, 142, 100, 150, 160, 111, 138, 144, 159, 19, 156, 182, 26, 131, 88, 135, 170, 162, 185, 155, 187, 2, 47, 115, 139. As the Republic of Korea signed Maritime Labour Convention, 73 and 53 had been automatically denounced in January Committee on the Application of Standards (CAS) and Committee of Experts on the Application of Conventions and Recommendations (CEACR)

13 12 the EU Member States and the Republic of Korea have shaped the legislative framework and the measures implemented to achieve equality and to combat discrimination. Still, several studies and analysis conducted worldwide reveal that many people do not enjoy their rights to the full, and suffer from direct and indirect discrimination, especially in employment and occupation. Building a proper legislative system that combats discrimination and promotes equality on various grounds represents only the first step a country could take when ratifying the ILO Convention no Equally important is the enforcement of those provisions, in ILO terminology the governance, that is the administrative framework put in place to ensure the protection of those rights and the procedures available to file a complaint for persons who are discriminated against. These procedures should be accessible to all and not incur burdensome costs, and should be designed to deliver speedy results and limit as much as possible the stigma and victimisation on persons who come forward. 4. EU Member States approach towards equality and non-discrimination in employment and occupation In most 7 EU Member States the principle of equality and the prohibition of discrimination on various grounds are included in the EU member state s constitution. Also, in order to supplement the constitutional provisions, to better describe and further develop their national policies all EU Member States have adopted multiple laws and legal acts that aim to promote equality and combat discrimination in line with international provisions and with the binding European Union legislation 8. The process of developing or updating the legal framework on equality and discrimination in employment and occupation in the EU Member States has to take into account multiple legal sources. National legislation accommodates on one side the country challenges and situation and on the other side the relevant international framework (UN core international human rights instruments and the ILO conventions) and the European Union aquis. 9 The EU legislative framework in the area builds upon the international provisions and tries to develop a common approach for all 28 Member States. 7 Exceptions are Denmark and the United Kingdom, which have no formal written constitutions. 8 Treaties provisions and Directives adopted in this area. 9 The acquis is the body of common rights and obligations that is binding on all the EU member states. It is constantly evolving

14 13 Equally important to EU Member States is the Council of Europe 10, an institution which predates and works independently of the EU. Established in 1949, it adopted two extremely important treaties, the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) in 1950 and the European Social Charter in It proceeded to establish the European Court of Human Rights (ECtHR) not to be confused with the Court of Justice of the European Union (CJEU). 11 All 28 EU Member States are also members of the Council of Europe, which has 47 members who have signed and ratified the two international treaties. Figure 1 Sources of legal provision International Level United Nations and International Labour Organisation Conventions 1 European Convention on Human Rights and European Court of Human Rights 2 Treaties, Charters and Directives 2 European Level Council of the European Union, European Commission, Court of Justice of the European Union 2 1 Relevant for both EU Member States and Korea 2 Relevant only for EU Member States National Level Constitutional and Infrastructure for the Administration Legislative Frameworks 1 National Courts 1 of Rules, Inspection and Complaint Handling Proceedures 1 In the European Convention on Human Rights Article 14 deals with discrimination. The provisions included in the ECHR are enforced through the European Court of Human Right (ECtHR) which oversees the compliance and protection of civil and political rights in states that ratified it. Therefore its rulings and decision can shape the national frameworks and legislations on equality and discrimination from EU Member States. 10 More details about the Council of Europe at: 11 Until the Treaty of Lisbon 2009 the EU legal system did not recognize the ECtHR within EU law as opposed to member state law, nor could the EU as an organization be taken to the ECtHR. Final negotiations are still in progress

15 EU legal framework Treaties and Directives Nowadays, the two treaties that represent the legal basis of the European Union and for every action taken by the EU are the consolidated version of the Treaty on European Union (TEU) 12 which lays down the basic structures and the consolidated version of the Treaty on the Functioning of the European Union (TFEU) 13 which elaborates the TEU. The two treaties have been approved voluntarily and democratically by all EU Member States. Consequently, equality represents one of the founding values of the European Union and all Member States are committed in their actions at national level to combat discrimination and to promote equality between women and men. The first directives in the area of equality and non-discrimination were adopted in 1975 and 1976 aiming to remove differences between women and men in payment, access to employment, vocational training and promotion, and working conditions. Current directives framework in equality area takes into account the expanding discrimination agenda and the transformations undergone by the EU. Its main pillars are the Racial Equality Directive 2000/43/EC, the Employment Equality Directive 2000/78/EC (first legal document which is directly linked with the provisions included in the ILO Convention no. 111) and the Recast Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation. Another important pillar of enforcement on the European level is the Court of Justice of the European Union (CJEU) 14. Its role is to ensure that the EU law is interpreted and applied in a similar way in each and every EU Member State, and also to ensure that countries and EU institutions abide by the EU law. The Court interprets EU law and settles legal disputes between national governments and EU institutions. The court is open to all individuals resident in the EU. In certain circumstances, it can be used by individuals, companies or stakeholders to take action against EU institutions, if they believe that through their actions these institutions have violated their rights More details available at:

16 15 Figure 2 Timeline of EU directives Directive (75/117/EEC) on to the application of the principle of equal pay for men and women Directive (76/207/EEC) on the implementation of the principle of equal treatment for men' and women Directive 97/80/EC on the burden of proof in cases of discrimination based on sex Directive 2002/73/EC ammending Directive (76/207/EEC) 10 Feb Feb Dec Jun Nov Sep Jul-2006 Directive 2000/43/EC Racial Equality Directive 2000/78/EC Employment Equality Directive 2006/54/EC Recast 4.2. National level practices in EU Member States National-level legislation for promoting equality and combating discrimination put in place by the EU Members States is very diverse and varies from single pieces of legislation that cover multiple grounds of discrimination, to multiple pieces of legislation covering specific grounds. Also, interesting cases are found in federal states which have a two-tier system. The first tier includes the provisions adopted by national parliaments (federal level) and the second tier the legislation put in place at provincial level by the regional parliaments. A similar situation occurs in the United Kingdom, where the general provisions are included in the Equality Act of 16 February 2006, with subsequent amendment, but further specific legal acts have been adopted in the special context of Northern Ireland. The seven grounds included in Article 1 of the Convention no. 111 race, colour, sex, religion, political opinion, national extraction or social origin are covered in the legislation adopted by all EU Member States. Additionally, some states have decided to protect several other grounds based on their specific national situations and on challenges identified in practice. Examples illustrating the diversity of these practices are presented in the Italian and Romania Case studies included in the accompanying Research and Analysis report.

17 16 5. Korean approach to human rights in the work place The Republic of Korea s constitution largely dates from its original 1948 incarnation. It was drafted by Dr. Chin-O Yu, and revised by President Syng-Man Rhee, who insisted on direct Presidential elections (rather than Dr Yu s originally proposed system, which involved election by assembly). It has been partially amended nine times and wholly amended four times (constitutions of 1962, 1972, 1980, 1987). Reflecting the influence of post-war thinking in the 1940s, sections include all the rights normally found in the US and European constitutions, including the basic human rights of equal opportunity, equality and individual freedom, plus a guarantee of due legal process. Those detained or arrested must be informed of the reason and of their right to an attorney, and family members must be informed. Warrants must be issued by a judge "through due procedures," and accused persons may sue for wrongful arrest in certain cases. Key articles which have been used in the courts to rectify discrimination include: Article 11 (1) All citizens shall be equal before the law, and there shall be no discrimination in political, economic, social or cultural life on account of sex, religion or social status. Article 32 (3) Standards of working conditions shall be determined by the Act in such a way as to guarantee human dignity. Article 32 (4) Special protection shall be accorded to working women, and they shall not be subjected to unjust discrimination in terms of employment, wages and working conditions. Article 33 (1) To enhance working conditions, workers shall have the right to independent association, collective bargaining and collective action. However, Article 119(2) (a slight alteration of Article 120 of the 1980 constitution), emphasises the need for stable and balanced growth rates, "proper distribution of income", and preventing "abuse of economic power", which are explicitly listed as goals of the government.

18 17 The Constitution affirms both the right and the duty to work, requiring regulation of minimum wages and working conditions. Workers have the right to independent association, collective bargaining, and collective action. The 1987 Constitution created a stronger Constitutional Court which immediately became active in judging the constitutionality of various actions including discrimination. The basic statutes expand on the constitution, creating five major labour laws which guide most workplace procedures. Under the civilian Presidents Kim Young-sam and Kim Dae-jung , more emphasis was put on human rights, although the Republic of Korea acceded to the ILO under their predecessor in It ratified its first two conventions in 1992, conventions no. 81 (labour inspectors) and no. 122 (employment policy). Convention no. 100 (Equal pay) was ratified in 1997 and no. 111 in In accordance with the Convention no.122 (employment policy), a tripartite structure involving employers, labour and public organisations was created in 1996, succeeded in 1998 by a tripartite structure directly involving the government. The tripartite structure works as a consultative body to determine labour policy, in line with ILO recommended best practice. All related matters were placed by law under the relevant ministry which was and is responsible for overseeing the governance structure of Labour Commissions (normally referred to as Labour Offices) who oversee individual and collective complaints, and the Labour Inspectorate, which conducts inspections in a selection of workplaces according to political and social direction. Gender issues were felt important enough under President Kim Dae-jung to require the establishment of a Presidential Commission on Women's Affairs, created on 28 February The current Ministry was formed on January 29, 2001 (currently the Ministry of Gender Equality and Family) with oversight and governance of aspects of women at work, and later multicultural families. By 1986, the Republic of Korea had already created a Minimum Wage Commission under an Act of that year, and minimum wages, at first restricted to manufacturing, were steadily extended to include the majority of workers in the Republic of Korea, subject to exceptions. This commission worked in parallel with the Korea Tripartite Commission from 1998, which considered all labour matters and has been involved in labour law reform consideration in 2007 and The following diagram shows a comparable timeline to that of the EU.

19 18 Figure 3 Timeline of major Korean Labour and Human Rights Initiatives Constitution Constitution rewritten includes new Constitutional Court Joined ILO Ratified Convention no.81 Ratified Convention no.100 Ratified Convention no. 111 Ministry of Gender Equality Founded National Human Rights Commission 1. August Oct Dec Dec Dec Dec Jan Nov-2001 The final element in the governance structure was the creation of the National Human Rights Commission of Korea (NHRCK) in This equality body was designed using the criteria of the UN Paris Conference of 1993 as the national advocacy institution for human rights protection. It is committed to the fulfilment of human rights in a broader sense, including the dignity, value and freedom of every human being, as set out in international human rights conventions and treaties to which the Republic of Korea is a signatory. The NHRCK has the right to investigate and recommend redress of workplace and nonworkplace issues. 15 It has no power to either fine offenders or compel compliance. The NHRCK Act included a key description of discrimination of women and a detailed definition of sexual harassment. Prior to these reforms, on 10 July 1990 the Korean government signed the UN International Covenant on Economic and Social and Cultural Rights (some of whose terms are similar to that of ILO Convention no. 111), writing in their accompanying letter that human rights are now the cornerstone of the Republic of Korea. At the time of signing, the government of the Republic of Korea stated that international treaties had upon signature the force of law, and in a conflict between existing laws and the treaty, the treaty had 15 Article 1 of the National Human Rights Commission Act defines the objective of the Commission as follows. The purpose of this Act is to contribute to the embodiment of human dignity and worth as well as to the safeguard of the basic order of democracy, by establishing the National Human Rights Commission to ensure that inviolable, fundamental human rights of all individuals are protected and the standards of human rights are improved.

20 19 precedence, but in case of laws passed after the treaty was signed the Supreme Court had jurisdiction Labour Inspectors The Republic of Korea signed Convention no. 81 on labour inspectors in The Republic of Korea s labour inspectorate operates through one headquarters and 47 district labour offices. The Korean government employs approximately 1,100 labour inspectors. The majority (78 percent) specialize in labour standards while the remaining inspectors focus on occupational health and safety 17. Their activities are under the purview of the district labour offices. They are administratively managed by the Labour Standards Policy Bureau or the OSH Bureau of the National Labour Relations Policy Office, depending on their specialty. Labour inspectors are responsible both for responding to allegations of labour law violations brought to district labour offices by workers and employers, and for conducting regular inspections to monitor labour law implementation. They have the authority to investigate, to detain and arrest employers suspected of violating labour laws, and to order fines, other penalties, and remedies where violations have been found. While inspectors are required to provide ten-day notice to employers prior to conducting regular inspections, no such notice is required for special inspections conducted in response to information received regarding working conditions or potential violations. Where the corrective actions or remedies ordered by the inspectorate are not implemented within a specified period or where a penalty is not paid, the inspectorate is required to refer the case to prosecutors. In a typical year, the Labour Inspectors handle 300,000 complaints made by workers (and employers) regarding the law and expect to settle about 80%. Inspections may cover up to 25,000 of the 4.1 million work places in the Republic of Korea in one year Labour Relations Commissions In addition to filing complaints with the labour inspectorate, workers and employers may bring allegations of labour violations and labour disputes before quasi-judicial 16 Consultant study visit to ILO, Geneva 17 Ibid. 18 Ibid.

21 20 administrative bodies called Labour Relations Commissions (LRC), which serve as the principal entities for adjudication and mediation of labour-related issues in the Republic of Korea. The main responsibilities of the LRCs are mediating or arbitrating labour disputes, and providing support for interested parties to autonomously settle their disputes in accordance with the law. The LRCs consist of Regional LRCs, which report to the government and a Special LRC, which handles special cases prescribed by specific labour laws. The LRCs are comprised of an equal number of worker representatives ( employee members ), employer representatives ( employer members ), and members representing the public interest ( public interest members ), who must meet specific qualifications with regard to expertise and experience, as stipulated in the Labour Relations Commission Act. Their responsibilities include: investigating allegations of violations of labour laws; judging, deciding, making resolutions, and ordering redress of labour violations. These are commonly used for wage bargaining disputes and collective bargaining agreements disputes. 6. ILO comments and challenges identified in EU Members States and the Republic of Korea The major objective of the ILO Convention no. 111 is to promote equality of opportunity and treatment in all states that ratify it. But the scope of it goes beyond that and aims at eliminating all evolving forms of direct and indirect discrimination that could arise in employment and occupation, by promoting the adoption of concrete legislative provisions and comprehensive equality policies at national level. Ratifying states of Convention no. 111 have the obligation 19 to regularly submit reports that include information about progress achieved, legislative changes, measures and actions designed to implement the national equality policy, in addition to statistics, studies and research conducted. These reports are analysed by the Committee of Experts on the Application of Conventions and Recommendations (CEACR) and, along with information from other sources, represent the basis for Observations and Direct Requests addressed to specific issues identified in the reporting states. The Committee of Experts on the Application of Conventions and Recommendations is an independent body composed of 20 outstanding legal experts at the national and international levels, charged with examining the application of ILO Conventions and Recommendations by ILO Member States. The members of the Committee are appointed 19 Under the Article 22 of the ILO Constitutions

22 21 in their personal capacity from among impartial persons of competence and independent standing drawn from all regions of the world in order to enable the Committee to have at its disposal first-hand experience of different legal, economic and social systems. 20 The Observations are adopted and published by the ILO and include inquiries on the application of Conventions. The Direct Requests are communicated to governments and have a more technical approach, demanding that ratifying states deliver more in-depth information in their regular reports. These tools, along with the examinations of Individual Cases by the Committee on the Application of Standards (CAS) and the discussions in the International Labour Conferences, identify specific challenges faced and areas not covered sufficiently by existing legislative and administrative frameworks in countries that have ratified Convention no The Research and Analysis report includes some of the main challenging issues identified and raised by the CEACR and CAS in the Direct Requests and Observation or discussed at the International Labour Conference. Based on the information from these sources available for consultation on ILO Normlex online system, the project team summarised the main challenges identified by ILO in EU Member States and in Korea (these summaries can be found in Annex II of accompanying Research and Analysis report). The countries in the table below are grouped in general categories, but this should not be taken to imply that they face the same situation in each case. 20

23 22 Table 1 Summary of common challenges identified by ILO Legislative Gender Equality and discrimination based on sex Migrants and minorities groups Persons with disabilities Institutional Delay in submitting the reports to ILO Austria; Cyprus; Czech Republic; Estonia; France; Ireland; Latvia; Lithuania; Luxembourg; Malta; Netherlands; Romania; Sweden; United Kingdom; Republic of Korea Belgium; Bulgaria; Croatia; Cyprus; Czech Republic; Denmark; Estonia; Finland; France; Germany; Greece; Hungary; Ireland; Italy; Latvia; Lithuania; Luxembourg; Malta; Netherlands; Poland; Portugal; Romania; Slovakia; Slovenia; Spain; Sweden; United Kingdom; Republic of Korea Bulgaria; Croatia; Cyprus; Czech Republic; Denmark; Finland; France; Germany; Greece; Hungary; Ireland; Italy; Latvia; Lithuania; Netherlands; Poland; Portugal; Romania; Slovakia; Slovenia; Spain; Sweden; United Kingdom; Republic of Korea Austria; France; Germany; Ireland; Italy; Republic of Korea Croatia; Hungary; Slovakia Source: Developed by the project team based on publicly available information from the ILO. Bulgaria; Croatia; Czech Republic; Denmark; France; Ireland; Malta; Portugal; Slovenia; Sweden; United Kingdom The legislative challenge is the most difficult to overcome, as it refers to issues that are included in laws and other acts. In most countries, a long process of analysis and political consultation is required in order to reach the decision to change a specific legislative act. Also, the legislative challenges faced both by EU Member States and the Republic of Korea are very diverse, including cases where legislation infringes the provision of Convention no. 111 and cases where the legislation is not specific or explicit enough on one or more grounds 21 of Article 1 of the Convention. The Gender Equality and discrimination based on sex challenge covers multiple facets of the complicated task of ensuring women and men are treated equally in the labour market. 21 In several countries social origin or political opinion are not explicitly included in legislation or the terms used to cover these grounds are not in line with ILO opinions.

24 23 The main specific issues included under this heading are: Persistent differences in participation into the labour market, with women having lower employment rates, higher incidence of part-time work; Vertical (the glass ceiling effect) and horizontal occupational segregation in the labour market; Deeply rooted gender-based stereotypes that lead to gender-based exclusion; Gender pay gap; Issues involving access to or termination of employment on the grounds of pregnancy or maternity leave; Sexual harassment. The Migrant and minority groups challenge deals mostly with issues faced by people with a migrant background (either first or second generations) and specific minority groups that can be found in the EU Members States. Also, here is included the Roma challenge, relating to the largest ethnic minority in the EU, which still encounters difficulties in accessing the labour market and mainstream educational system and suffer from prejudice and social exclusion. The Persons with disabilities challenge covers mainly the issues of finding an adequate workplace for persons that try to overcome their disabilities and integrate into the labour market and also the high number of complaints raised to national institution. The Institutional challenge touches on both the role (mandate and tools available) of institutions that could be strengthen to better support the fight against discrimination and the institutional capacity (financial and human resources) to raise awareness about legislative provisions or to assist victims of discrimination. The Delay in submitting the reports to ILO challenge is the one that can be most easily overcome by the states, through better coordination at national level and stronger commitment towards the appraisal system developed by the ILO.

25 24 7. Classic forms of non-gender-related discrimination in EU Members States and the Republic of Korea 7.1. Migrants EU Within the EU, migrant workers may originate from other Member States, or from third countries (countries outside the EU). The right to work in the EU allows all EU citizens to freely take work in other Member States. This may lead to discrimination against newcomers, and to political movements which seek to limit this freedom of movement, as has been notable in the UK. Some of the general factors which intensify discrimination among many categories and in particular for migrants are: limited awareness about their rights and procedures to file a complaint, reduced levels of trust in the institutions designed to protect their rights, low enforcement and implementation of legislative provisions and underdeveloped monitoring mechanisms, and underestimation by nationals of the level of discrimination against migrants. The reduced knowledge about rights and procedures to get redress when facing a discriminatory practice is mainly addressed through awareness campaigns conducted by different stakeholders (government and independent institutions, social partners, NGOs). Cases of unfavourable treatment during the selection process directed to persons with a foreign name, which may lead to a concentration of migrant workers in low skilled occupations below their skills and competency levels could be reduced by using depersonalised recruitment procedures, at least in the early stages. Despite positive developments in terms of assistance and protection of migrants, discrimination remains high and still impedes successful and sustainable economic and labour market integration. Republic of Korea Until 2000, there were almost no foreign national workers in the Republic of Korea except those employed by multinational companies. Since then the number has grown to 1 million in 2016 (out of 27 million inhabitants classed as economically active). Issues brought to the ILO have mainly been related to a system of work visas (EPS) which cover about 300,000 workers where the company, normally an SME (Small- or Medium-sized Enterprise), invites a worker resident abroad to come to work for up to a total of four years

26 25 and 10 months (although the visa needs to be renewed after the third year). Issues arising from this system have included subsequent changes of jobs and renewal of visas requiring the foreign national to return to his own country to reapply. Like migrants to the EU, migrant workers are more likely to face vulnerable working conditions and be unaware of their rights. There was a decade-long struggle to permit a Migrants Trade Union to exist legally, with the case originally filed in The matter was eventually resolved by the Korean Supreme Court in Age Discrimination based on age is not mentioned specifically in the Convention no. 111, but nevertheless is protected under the provision of Article 1 Paragraph 2 as other grounds that were identified by the ratifying states in consultation with relevant stakeholders (representative of employers' and workers' organisations, other appropriate bodies). Although some justified differences of treatment on the ground of age could be utilised in measures designed to boost employment and vocational training of certain categories or in access to certain advantages linked to employment, these should be carefully developed so as not to infringe the principle of equality and non-discrimination. Complaints brought to the attention of national level institutions or to supranational courts on discrimination based on age concern mostly: access to employment, recruitment (including job advertisements) and promotion practices, dismissals, forced retirement and harassment. The Republic of Korea was progressive in enacting laws to promote the employment and non-discrimination for older employees, first passing Act on Prohibition of Age Discrimination in Employment and the Promotion of Employment of the Elderly (enacted 31 December 1991). Revised in 2009, it reminded citizens of their right to appeal to the NHRCK, which was receiving complaints. Surveys of both job applicants and employers indicate that at the point of hiring, excellent candidates are excluded on the grounds of age. In addition, the Act was later revised to oblige employers to comply with a compulsory retirement age of 60, beginning in 2016.

27 Disability Disability is not mentioned per se in the Convention no. 111 but is covered and protected under the same conditions as the ground of age. Also, the ILO adopted the Vocational Rehabilitation and Employment (Disabled Persons) Convention no. 159 from 1983 which ensures equality of opportunity and treatment between persons with disabilities and other workers. Disability is another area where official intent is clear, but success is not guaranteed. This is complicated by the diversity of conditions which result in disability, with the EU going further in distinguishing between physical disability and health-related disability. EU Discrimination based on disability is prohibited in all EU Member States and employers are obliged to provide reasonable accommodations 22 for people with disabilities. The common measure used in EU Member States to enhance participation of peoples with disabilities into the labour market is the mandatory quotas system. In general, the system is applicable using a ceiling to determine the employers that must employ a set quota of people with disabilities and in some cases the employers have the option of paying a levy for failing to comply with the rule. Republic of Korea The Republic of Korea has also used the mandatory quota system for disability. The Act on Employment Promotion and Vocational Rehabilitation for Disabled Persons has, since 2000, provided obligation to hire people with disabilities and has allowed the government to offer financial incentives to firms to achieve this. The Republic of Korea may be unique in also having created as early as 1990 the Korea Employment Agency for the Disabled (KEAD), which monitors the situation, quotas and other related matters. Despite this, with the policy emphasis of finding employment for young people, companies appear to be falling behind in their quota performance. It is notable that there is also an Act on the Prohibition 22 Take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer - Article 5 of Directive 2000/78/ EC

28 27 of Discrimination against People with Disabilities, Remedy against Infringement of their Rights in the Republic of Korea in order to protect people with disabilities Religion EU Challenges in terms of discrimination based on religion have been growing in the EU and will probably further intensify in the coming years, given the increasing diverse landscape of Members State societies. Some of the areas of employment and occupation where discriminatory practices based on religion arise include: special types of clothing and prohibition of wearing religious signs, including head coverings; special working conditions and failure to acknowledge and accommodate religious holidays; requirements to make an oath when accessing special positions that could be incompatible with the religious belief or practice. In order to combat discrimination based on religion in employment and occupation, additional measures are required to accommodate the diverse religious needs and to promote full participation in society of all individuals irrespective of their religion. Republic of Korea The Republic of Korea has a very diverse and liberal attitude to religion, and is entirely secular in governance, having a population split between approximately one third Christians (various denominations), one third Buddhists (various orders) and one third other, including no religious belief. No cases of discrimination on the basis of religion in the Republic of Korea have been brought to the ILO to date Political Opinion EU In terms of discrimination based on political opinion, the challenge identified in some EU Member States 23 remains the restrictions impose on accessing occupations in the public sector for persons linked with former political systems or oppression apparatus developed by these systems. 23 Czech Republic; Lithuania; Latvia; Romania

29 28 In the case of Germany, a restriction of this kind used in the past has since been phased out. In the long run, it is likely that restrictions of this kind will be removed by other EU Member States as threats from political systems of the past and their oppression apparatus diminish and disappear. Republic of Korea There are two major issues with regard to freedom of political expression in the Republic of Korea. One is the National Security Law dating from 1948, which prohibits public praise of North Korea (The Democratic People s Republic of Korea). The second relates to the State Public Officials Act, Article 65, which forbids public servants (including teachers) from expressing political opinions in public. This resulted in a much-publicised case where school teachers were dismissed for joining a public demonstration on a politicised social issue, as this was deemed a political act. This led to a conflict between the teachers union and the government, which was supported by the courts, which led to the eventual disbanding of the union. As the Republic of Korea is not a signatory to the Basic Convention on Freedom of Association, discussions at the ILO have brought this issue before the eyes of the Committee of Experts under Convention no. 111, and the issue has been commented on for several years. The Korean courts have consistently supported the government s position on these issues Gender discrimination in EU Member States and the Republic of Korea Equality between women and men, especially in the labour market, is a topic extensively covered and debated, and remains one of the challenges faced by all the countries analysed in this report. Identifying and quantifying gender equality and developing reliable international comparisons represents a priority for major international institutions and for many researchers. The accompanying Research and Analysis report includes country comparisons using several measurements developed to assess the complexity of the gender equality issue. 24 The fact that this issue was raised in successive ILO reports has made this one of the most contentious issues in relation to Convention no. 111 and is discussed further in the Research and Analysis report.

30 29 The indexes 25 presented rely on a large number of indicators and take into account various dimensions of female social integration and participation, like economic, education, health and empowerment. An accurate measurement of gender equality continues to be hampered by the availability of data and by scarcity of reliable information for dimensions such as sexual harassment and violence against women. However, despite the methodological difficulties in developing reliable and internationally comparable measurements, the indexes presented in the report reveal the persistence of differences in social and economic status between women and men. Achieving gender equality implies overcoming multiple barriers and all EU Member States and the Republic of Korea have put in place various policies and practices to realise that goal. Nevertheless, additional efforts are required to close gaps in payment and in participation into the labour market. From both the Observations and Direct Requests addressed from the ILO, and the analysis of labour market indicators, most of the countries analysed in the report face persistent horizontal segregation (concentration of women in certain sectors of the economy) 26 and vertical segregation (concentration or the overrepresentation of women in the lower levels of the professional hierarchy) in the labour market. As for discrimination based on sex, common issues encountered relate to refusal to employ; to dismissal based on pregnancy or maternity; and to sexual harassment. Several cases were referred to national and international courts on circumstances linked to remuneration of pregnant workers and those on parental leave; access to employment, dismissal and other unfavourable treatment; right to receive bonuses and non-extension of fixed-term contracts due to pregnancy or parental leave. Despite the best efforts of the best governments on the planet, gender issues continue to reflect what was once classic discrimination in terms of treating women as second class citizens and workers, but is now best described as institutional discrimination in that while laws appear to mandate equality, in actuality there are still gender differentials in terms of wages, and women are usually a small minority in upper management and in a number of respected professions and occupations. Equally, there are professions and occupations 25 The Gender Development Index (GDI), the Gender Empowerment Measure (GEM), Gender Inequality Index (GII), Global Gender Gap Index (GGGI) and Gender Equality Index (GEI), Gender Payment Gap and the Glass Ceiling Index were all analysed by the project team during the preparation of the research and analysis report. 26 Human health and social work activities; Education; Wholesale and retail trade; Manufacturing

31 30 in which they are the overwhelming majority. This remains the case in EU Member States and in the Republic of Korea. There are many indexes measuring this gap and after consideration the consultants have chosen two to be the most useful in rapidly understanding the current situation. These are the Economist Glass Ceiling Index and the OECD Wage Gap data. The Economist 2016 index is shown below. The advantage of the Economist Index is that, being online 27, it permits the reader to alter the weightings of the different factors that determine a country s position. If strong weighting is given to the Korean strengths of paid maternity leave and childcare, the country moves up the index from last place (according to the default weightings), to sit between the Netherlands and New Zealand and above the US, Japan and Britain. Figure 4 The Economist Glass-ceiling index Source: The Economist 27

32 31 Since the wage gap is the major factor holding the Republic of Korea at the bottom rung, the OECD study of pay differentials was chosen as the second key index. A comparison of the two shows that some Nordic nations which place highly on the Economist Index according to its default weightings do not in fact have the smallest pay differentials so their position in the Economist Index is also based on the balance of factors chosen. Figure 5 OECD Gender Wage Gap Gender Wage Gap Source: OECD Sexual Harassment Sexual harassment continues to be a problem in all the countries of study, partly because men have often failed to understand that there have been rapid changes in attitudes to which they have not fully adjusted. Of all the types of discrimination, sexual violence to co-workers is one of the most pernicious, because the victim is least likely to complain and if she or he does, usually the person suffers from further victimization as a result of speaking out. The enterprise involved is also likely to suffer a loss of productivity as a result. The NHRCK Act has a well written detailed definition of sexual harassment.

33 32 Recent surveys suggest that the incidence of extreme sexual harassment is higher in Europe (at 40% of women reporting having experienced it) than Asia (30%) Workplace issues The Republic of Korea is the one country out of those studied where labour issues are most frequently brought to the ILO by the labour side within the context of Convention no.111. It is also a country to which the OECD and other bodies consistently advise adopting a more flexible labour structure. The labour side claims that there is constant discrimination between so-called regular workers, those who are protected by the Labour Standards Act, which gives permanent employment and set benefits, and those who are subject to alternative forms of employment. Non-regular workers include fixed term, part time and dispatched workers, sub-contracted workers and independent self-employed workers, domestic workers and daily workers. 29 Useful for a comparative analysis between the situation in Republic of Korea and some of the EU Member States is the information collected and computed by OECD regarding the strictness of the employment protection legislation. The graph presents the four indicators OECD uses to assess the strictness of employment protection regulations/legislation: individual dismissal for regular contracts; individual and collective dismissal for regular contracts; temporary contract and additional restriction for collective dismissals ILO Republic of Korea Development of National Employment Policies through Two Economic Crises. Lessons from its Experiences, 2012

34 United Kingdom Ireland Finland Hungary Sweden Denmark Korea Slovak Republic Poland Croatia Austria Czech Republic Estonia Greece Netherlands Latvia Spain Portugal Germany Lithuania Slovenia Italy Belgium France Luxembourg 33 Figure 6 Strictness of Employment Protection Strictness of employment protection collective dismissals (additional restrictions) Strictness of employment protection temporary contracts Strictness of employment protection individual dismissals (regular contracts) Strictness of employment protection individual and collective dismissals (regular contracts) Source: OECD database The Republic of Korea lies on the low regulated side of the survey (left of the middle, in this graphic), with relatively strong protection against individual dismissal; limited possibility of collective dismissal; and mid-ranking regulation of temporary employment. As for the EU Member States, flexibility is mostly observed in United Kingdom, Ireland, Hungary and Nordic countries. Luxembourg, France, Belgium and Italy have strict protection legislation for both regular contracts and temporary contracts Temporary Employment The ILO has just completed a major study of non-standard employment around the world, which allows a better comparison of the relative situation of EU Member States and the Republic of Korea. 30 The Diagram below shows the ILO s estimate Republic of Korea s part time employment wage gap is much smaller than 11 of the 13 EU Member States included and, notably, lower than Germany, Italy, Ireland, France and Austria. At first sight, this contradicts the Korean evidence (given in the accompanying Research and Analysis report) that fixed term contract employees earn only about 56% of comparable regular workers. 30 ILO 2016 Non-Standard Employment around the World Overview.

35 34 However it is presumed that it should be viewed as measuring the gap between the average payment combined of contract and regular workers and part time pay. Figure 7 ILO survey of the part time workers wage gap (varied years of survey) Part Time Work The ILO report distinguishes between part time work for men and women, since women are often more likely to be compelled to take part time work (defined as less than 35 hours a week). On this basis, the percentage of both men and women working part time is smaller in the Republic of Korea than most EU Member States. For women, the number is around 40% for many EU Member States, and 30% for the Republic of Korea Temporary Agency Work (TAW) The ILO uses the term Temporary Agency Work (TAW) to cover dispatched, agency, subcontracted or outsourcing of labour (as distinct from production). In Europe in 2010, the highest percentage of the work force in TAW was reported to be Belgium, with 3.7%, higher than the rate in Korea of 3.5% (not including in house sub-contracting whereby 31 Wage Penalty of Part Time Work Table 7 of Non Standard Employment around the world 2016, p.16

36 35 workers are hired through a subcontractor but work in the premises of the lead firm. This is especially common in large firms with more than 300 employees. 32 ). No other EU member state had a proportion higher than 2.5%. The situation appears to have improved since then, with only 1.1% of the workforce in TAW in Korea in 2014, according to the OECD. 33 Figure 8 Percentage of Employees working part time Source: ILOSTAT 32 Non Standard Employment around the world (2016), ILO 33 OECD Employment Outlook (2014)

37 Equality and non-discrimination institutional ecosystem The Ecosystem Equality bodies, labour inspectorates, courts and tribunals, social partners and other civil society stakeholders are component parts of the institutional ecosystem that should ensure equality, combat and punish discriminatory practices from a governance point of view. As noted, all EU Member States and the Republic of Korea have a similar institutional ecosystem which has evolved within their differing societies. The equality bodies, labour inspectorates, social partners and NGOs have a major role in preventing discrimination from happening through actions developed to raise awareness about the legislative provisions and rights. Equally important is the ability to investigate and support substantiated complains about discriminatory practices before courts and tribunals Equality Bodies All EU Members States and the Republic of Korea have established Equality Bodies with diverse roles and tasks but with the common aim of promoting equality and combating discrimination in relation to the grounds covered by national law. These institutions promote nationwide the principles of equality and non-discrimination and for EU Members States are a requirement included in the EU directives 34. The practices in EU Members States are diverse and all have set up at least one or in many cases multiple equality bodies. Roles played and actions undertaken by equality bodies in the EU Members States vary. However, most of them cover the following general areas: providing assistance to victims of discrimination; promoting equal treatment and conducting awareness campaigns; performing independent analysis on themes of interest; publishing reports and issuing recommendations; and 34 Article 13 of Racial Equality Directive 2000/43/EC and Article 8 a of Directive 2002/73/EC

38 37 performing quasi-judicial roles and issuing binding decisions. Equality bodies represent a simple and reliable out-of-court alternative for individuals that consider themselves victims of discrimination, involving limited or no costs and in many cases with a less formal approach. These characteristics help explain the differences between the number of complaints investigated annually by equality bodies and cases brought to courts. Most EU Member States equality bodies have their legal basis in ordinary law and are entrusted with a specific role to apply sanctions (that should be effective, proportionate and dissuasive 35 ). Thus some equality bodies levy fines to respondents that fail to provide the information and documents requested and/or infringe recommendations or decisions issued. Few could award compensations and most of them refer cases to court to obtain compensation for the victims of discrimination. The primary role for these bodies is to achieve soft solutions and settlements between the parties. The accompanying Research and Analysis report includes information on the roles and tasks of equality bodies and the important contribution that they make in combating discrimination in employment and occupation. Also, it contains descriptions of equality bodies from selected EU Member States and the Republic of Korea Labour Inspectorates Labour Inspectorates have a crucial contribution to make in early intervention and detection of discriminatory practices in employment. Although their mandate is diverse across countries, their role in enforcing the labour relation legislation is preeminent and this could include combating discrimination and ensuring equality in work and remuneration. With an appropriate mandate and when adequately trained on discrimination issues, labour inspectors can easily identify, address violations and impose sanctions during inspection and report or refer those violations to other competent bodies. Still, Labour Inspectorates cannot cover all aspect of ILO Fundamental Convention no. 111, especially aspects relating to vocational education and training. The Labour Inspectorates contribute to prevention and monitoring of equality and discrimination in the workplace and labour relations. This can be further enhanced through 35 Article 15 of Racial Equality Directive 2000/43/EC, Article 17 of Employment Equality Directive and Article 25 of Recast Directive 2006/54/EC

39 38 increased interaction and cooperation with equality bodies, social partners and other relevant stakeholders. Details of the Korean system which we regard as having several attractive features are given above Social partners and other relevant stakeholders Developing a truly comprehensive and effective equality and non-discrimination national framework relies heavily on the active involvement of trade unions, employers representatives and civil society organisations. The important role played by the social partners and other stakeholders is emphasized in Article 3 of the ILO Convention no. 111 and for the EU Member States in directives and national practices. Still, limited platforms for cooperation with the social partners and relevant stakeholders that deal exclusively with equality and discrimination issues are in place Courts and tribunals In order to enforce legal provisions in terms of equality and non-discrimination, complaints are typically brought to court or to a labour tribunal. Judicial proceedings (civil, criminal, labour and/or administrative) could provide appropriate remedies and impose sanctions, when violations are proven. Furthermore, decisions by courts and tribunals enhance and develop jurisprudence consolidating the principles covered in Convention no. 111, as well as EU legislation and national legislation. The law courts have not tended to make huge contributions through their decisions to reshape a nation s laws on matters of discrimination in the work place. 37 However, the CJEU made an important contribution concerning employment and pregnancy, cited in accompanying Research and Analysis report. The Korean courts have made two major decisions, one that positive discrimination in employment in favour of army veterans was contrary to non-discrimination against the sexes (as in Republic of Korea soldiers are overwhelmingly male) and the previously mentioned ruling in favour of legalizing a Migrants Trade Union. 36 See sections 6.1 and A review of landmark cases at the ECtHR and CJEU shows most human rights cases have been nonwork related.

40 General prescriptions for good practice and examples General Prescriptions If our conclusion is correct in believing that all countries need to work harder on issues of workplace discrimination, the question is how would the best results be achieved and where can we find the best practice? 38 Further discussion, analysis and education with regard to combating discrimination in the work place is the first general prescription. The nature of work itself and our societies may change more in the first half of the 21 st century than at any time in the 20 th. Leaving unresolved equality issues from the past are likely to compound inequality in the future. The following section first lays out good practice principles and then good practices we have identified during the study. 1. The value of interlocking ILO conventions The ILO conventions put together build an equality ecosystem built around the principle of decent work which is up to date and brings the possibility of expertise to discuss difficult issues, and the latest thinking on common issues. Such an initiative, which requires actively promoting the signing of conventions, should be developed country by country. In leading this move, the ILO may need to improve its public image in some countries where it is best known for criticising governments and where its consultative work is less well known. Studies of how the conventions improved decent work in those countries which signed would also assist. 2. Equality education in the work place The most significant change in the Republic of Korea regarding gender equality came in 1996, when HR personnel of each firm were required to attend training at the local labour office and then to hold consciousness-raising sessions amongst employees. Recent moves have been made to promote online education, but this has poor retention rates and no discussion between peers. (In the opinion of the Consultants, celebrating UN Women s Day with a single ceremony does not amount to a proper public campaign.) 38 For ideas on how to handle particular issues see Appendix VI of the Report and Analysis.

41 40 Recognizing that there is an ecosystem and using that infrastructure to spread debate and messages would seem worthwhile. 3. Recognize, Re-evaluate and Reinforce the Ecosystem The ecosystem described above has evolved, rather than been designed, and some parts probably work less well than they should. There is a need for each country to study its ecosystem and remedy any malfunctions. We also came across instances where two or more institutions were fighting over parts of the ecosystem where cooperation would bring stronger results. This includes social partners and the role they have in the system, given that the overwhelming number of beneficiaries of a better system are employees without official positions within the ecosystem. In particular, the effectiveness of the inspectorate and its ability to inspect a reasonable proportion of workplaces requires further study. 4. Speed of redress Justice delayed is justice denied is a saying attributed to the great British nineteenth century statesman William Gladstone. The benefit of the traditional labour office system in the Republic of Korea is that an employee can make a complaint in the morning and the company management receives a phone call for redress in the afternoon, and because the entire process is local, it is hard to discriminate against the complainant. By contrast, in the same country, the Supreme Court was too busy to hear a key case concerning a labour union for eight years. The labour office exists to quickly put things right, whereas the national courts have their own momentum. Our conclusion for discussion is that labour issues should have their own quick system of resolution, as equality in the work place had an immediate impact on employees. Equality bodies, if involved, also need to see whether there is an express system to deal with labour issues. 5. Address non Compliance in SMEs The case was made by employer s organisations that large companies could normally be expected to be compliant, but SMEs could present a host of inequality issues. Many SMEs are likely to have less regular and less regulated systems, less pleasant working conditions, and employ those less well-educated and non-unionised. Labour Inspectors may be a solution, but a more scientific way is to study high turnover (revealed through social security data) and choose those companies with the highest turnover for inspection.

42 41 In small, badly managed companies, the employees only possible move is to leave the company which in Korea created problems for migrants who were limited in the number of times they could change jobs. 6. Gatekeepers During the study, the team observed many cases where delays in dealing with discrimination could be attributed to what we came to term gatekeepers. In every organisation there are gatekeepers who exist not because the organisation intended them to act in this capacity, but because as an unintended side-effect of requirements that the organisation did expect from junior members of staff. The classic example is the assistant or secretary of the busy CEO who decides much his agenda, and who is permitted to see him. In the study we observed many cases where official and commercial organisations had created gatekeepers who did not see equality as their concern. As more instances of discrimination probably occur in the hiring of new staff, where disability, age, gender, social status and education all easily play the part of disqualifying qualified candidates, the HR department of every organization has a critical gate keeping function. Therefore this group of professionals should be co-opted into the campaign to reduce discrimination. Senior management has a duty to work with their HR managers to establish a clear ethical code for decent work. Some equality bodies dismissed a high proportion of discrimination cases without consideration which also implies a gatekeeper issue Good Practices in action Beyond the general principles which are self-evident and do not need further elaboration, the team identified a series of measures implemented by individual countries which were outstanding and worthy of further study and transfer. The ILO itself has begun to collect examples of good practice and these appeals to practical policy makers in each jurisdiction. EU Members States and the Republic of Korea have developed several practices that aim at enhancing equality and at combating discrimination in employment and occupation as defined by the ILO Convention no To this end, a series of practices were identified and their main features are presented in the accompanying Research and Analysis report. The Republic of Korea and the Nordic Nations recently signed an MOU to transfer best practice on the matter of gender equality. The ILO, Gallup and the Danish Institute of

43 42 Human Rights agreed to conduct a global survey on these issues whose report will be available shortly. 39. All the practices included in the report aim at promoting and enhancing gender equality, at increasing diversity in the workplace and at combating discriminatory practices in the labour market. The Gender Test in Belgium represents a good way of creating a reflex for public institution on assessing and taking into consideration the impact of draft regulation promoted on the situation of women and men. This Test is a regulatory impact analysis with a gender perspective and has the role of avoiding the adoption of regulation that could introduce or create discriminatory practices. For the successful implementation of this type of practice, the staff that performs it needs to understand the importance of the equality and non-discrimination framework and to be well-trained on the subject. The main risk is that such practices could be seen as an increase in bureaucratic procedures if performed only as an obligation. To further enhance the outcome of the Gender Test the extension of the scope could be considered, going from a limited assessment on the impact on women and men to an impact analysis of draft legislation on other relevant groups that are at risk of direct or indirect discrimination, such as the aged and disabled or migrants. Other good practices presented in accompanying Research and Analysis report include examples that have a similar approach from Malta, France and Belgium. It refers to Certification practices like the Equality Mark in Malta, The Diversity Label in France and The Equality Label in Belgium. These practices promote awareness on equality and nondiscrimination in the workplace and provide recognition to employers that comply with the legislative provisions in force. Through these practices, the HR procedures and the internal environment of employers from both public and private sector are assessed. In this way, compliance with the requirements on equality and non-discrimination is certified. The Diversity Label in France is an example of bringing together multiple stakeholders (public authorities, the French Association of Human Resources Managers and social partners) in a common effort to improve human resource practices regarding recruitment, integration, career management and remuneration and in identifying potential discriminatory practices. 39 Consultant study visit to ILO, Geneva

44 43 Some of the main positive features of the Diversity Label are: The three-year validity of the certification, with the option of renew, after the employers pass the required certification procedure. This has the role of regularly monitoring compliance with the legislative requirements. The certification procedure is available for various types of employers. Being open to SMEs, large companies and to public sector authorities. The diversity and parity of representation of stakeholders in the labelling commission. Five representatives each from the public institutions, trade unions, employers and from the French Association of Human Resources Managers. This ensures an unbiased assessment process for employers that want to receive the diversity label. A somehow similar practice is implemented in Malta, where the National Commission for Promotion of Equality (NCEP) awards the Equality Mark Certification to organisations that make gender equality a priority of their management and practices. Given the discrepancies in participation of women and men into the Maltese labour market, this practice is an important step towards ensuring equality and promoting female participation. The employers that receive the Equality Mark have to update their internal HR procedures and to enhance access to advice, consultation and awareness on equality and nondiscrimination. Also, the Mark promotes access to family-friendly measures for persons with caring responsibilities, and promotes equality in career and personal development opportunities. The depersonalized application procedure promoted by the Federal Anti-Discrimination Agency (FADA) from Germany could help in overcoming partially the gatekeepers effect in recruitment practices. This practice is designed to limit discriminatory practices that can occur in recruitment processes against people with a migrant background, elderly or women with children. It was employed by enterprises, public bodies and local authorities and produced good results. The depersonalized application procedure emphasizes the importance of the person s qualification and experience since those are the only information disclosed until a job interview is set with the candidate. Other information such as applicant name, address, date of birth, age, civil status, origin or photo is not included in the application submitted. This practice was quite successful in Germany, as people that faced particular challenges in recruitment processes (mainly people with a migrant background, of a certain age or

45 44 with personal responsibilities) had more chance to attend job interviews and gain employment. Still, such practices are not infallible, and this was proved by a case from France where after a recruitment procedure using depersonalized CVs a person was obliged to communicate their date of birth before receiving an invitation to interview. This was considered as discrimination based on the ground of age by the French Equality Body Defenseur des Droits in a decision issue which compelled the employer in question to change their recruitment procedures. The Republic of Korea is trying to adopt the same policies in Fair Hiring Procedure Act of , and it would be highly advantageous for Germany and the Republic of Korea to share experiences, and to spread this practice throughout the EU. In Slovakia, the Ministry of Labour, Social Affairs and Family uses an annual public ceremony to give awards to employers that have family-friendly policies, and show commitment and respect to gender equality and equal opportunity principles in their practices. This type of action is a cost-effective way to increase awareness of and to draw attention to the equality and non-discrimination framework, and has a strong chance of being replicated in other countries. Training represent a useful tool in building a network of professionals at national level that could enhance equality and deal with discriminatory practices. That s why, in various EU Member States, the Equality Bodies and other stakeholders organise training sessions with a diverse audience that includes labour inspectors, judges, experts, and HR managers. Training practices of this type are very important and the example chosen for the report is the Diversity Training programme implemented by the Danish Institute of Human Rights, which focuses on providing relevant information and tools to HR managers from companies to help them accommodate a diverse workforce. Also, during the training the participants gain more insights on the anti-discrimination and equal treatment framework and on both direct and indirect discriminatory cases that can occur in the labour market. Knowledge exchange, good practices databases and mutual learning programmes represent the best tools designed and used at EU level and employed in the gender equality area. Each year, events are organized by Member States or by the European Institute for Gender Equality with support from the European Commission in order to present, share or 40 This Act was enacted in 21 January 2014, but does not have articles with regard to depersonalized application procedures yet.

46 45 select good practices and relevant projects implemented at national level with good outcomes on gender equality issues. Given the positive impact of the Mutual Learning Programme events in sharing gender equality practices, it would be useful to consider the expansion of this exercise to a wider range of grounds of discrimination protected under EU and Member State law. Also, the impact of the Good practices database that was developed by the European Institute for Gender Equality could be further enhanced with relevant actions and measures developed by EU Member States to combat discrimination in the labour market on all the other grounds protected Labour Market Issues Good Practices Attempts to reform the labour laws in the Republic of Korea in 2015 created considerable opposition between the demand for more flexible forms of employment from business and international bodies and government, and resistance by organized labour. From the point of view of Fundamental Convention no. 111 (in terms of discussion at the ILO reflected in the annual comments 41 ) there is a mismatch between the labour side s point of view and that of business, which needs to be urgently resolved. The general point made by labour holds true that different kinds of contract for the same work can lead to discrimination. The EU Member States offer a number of models for a future state of employment policy in the areas of controversy. One which might fit the Korean case is the Netherlands Good Quality Part Time Employment Model discussed in the accompanying Research and Analysis report, and also picked up by the ILO Non-Standard Employment Report of The idea of an adapted Netherland s labour market as a future model for the Republic of Korea and for most 21 st century societies is worth further study. 43 This offers an important and apparently successful alternative to legislating shorter work hours or job-sharing, both of which affect those whose pay is based on hourly payments rather than salaries, as they suffer a direct fall in income if hours are shortened. 41 Consultant study visit to ILO, Geneva 42 publ/documents/publication/wcms_ pdf, p First proposed by Jelle Visser The first part time economy in the world: a model to be followed. in the Journal of EU Social Policy

47 Conclusions and Policy Implications The research indicates that all countries considered in the study have made serious efforts to reduce discrimination in the workplace in recent years, but all need to continue to innovate methods to educate and to combat discrimination as society and the workplace change. Education consists of both reminding those who are discriminated against that they have legal rights to a recruitment process and a workplace which are free from discrimination, and reminding employers large and small that they have a legal duty to provide a discrimination-free environment. Institutions tasked with encouraging and enforcing compliance with a discrimination-free environment, HR departments within organisations, and Ministries, inspectors and equality bodies need to work together and refresh monitoring processes. Where there are holdouts within government policy especially regarding political discrimination, the ILO and concerned NGOs need to lobby harder for greater fairness. In the accompanying Research and Analysis report we propose five general proposals based on the study: 1) That good laws without constant consciousness-raising are not enough. 2) That there should be a closer study of the ecosystem of different countries to ensure that the optimum system is in operation and that gatekeepers do not produce unintended results. Employers should create a values charter for HR departments in this regard. Countries should have further dialogues with those with recognized best practice. 3) That the different parts of the ecosystem engage in dialogue about their functions. 4) That given the existence of a persistent gender wage gap governments might consider a fiscal compensation to households headed by working women. 5) That more attention be given to collecting reliable data for cross country studies. The rise of so-called political populism across the world is a reminder that the task of keeping a fair society in which human rights are the keystone, which was the foundation of western society from 1945 to the present, is increasingly under challenge and therefore achieving harmony in one decade does not guarantee its continuity, without proactive vigilance.

48 47 Without a doubt, discrimination has a detrimental impact on economic development and growth, and affects the efficiency of individual workplaces, and increases inequalities. Therefore, enhancing equality and combating discrimination should remain a priority for all stakeholders a priority which calls for action and cooperation processes which can unfold internationally.

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