Shadow labor’ outside the law |
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Agricultural migrant workers are arranging harvested vegetables. The back of the worker standing outside the greenhouse was photographed from the inside. Provided by Kim Jeong-yong |
[Special Project_Human Rights Table] ④ There
is no provision for the rights of migrant agricultural workers who are not recognized as ‘exist’ in the Labor Act,
which the law ignores. be this
An existence that is not acknowledged for its existence cannot be recognized for its ownership of rights.
Korean agriculture is a realm of shadows. Agriculture, which has been pushed out of national policy, is also a ‘territorial out of concern’ in the world of law. The Korean legal system cannot account for the fact that there are ‘workers’ in the agricultural sector. Those who cannot prove ‘existence’ (存在) belong to ‘non-existence’. Since agricultural workers cannot be seen, the migrant workers who support agricultural labor are also invisible.
Korean law does not exist
The ‘legal situation’ of agricultural and agricultural migrant workers in Korea can be seen in the ‘Unratified Convention Report’ submitted to the International Labor Organization (ILO) by the Ministry of Employment and Labor. The ILO is currently in the process of amending the ‘Agricultural Workers’ Freedom of Association Convention’ (No. 11, enacted in 1921) and the ‘Rural Workers Organization Convention’ (No. 141, enacted in 1975). This is because the need to reflect the changed agricultural reality since the enactment was raised. The two conventions were made over 90 years (1921) and 40 years (1975), respectively. Last year, the ILO sent a questionnaire to governments around the world asking about the reality of agricultural (rural) workers. This is a measure to identify and reflect conflicts between international standards and the laws and systems of each country. Earlier this year, the Ministry of Employment and Labor circulated the responses to employers (Korea Employers Federation) and workers (KCTU, Korea Federation of Trade Unions) and sent them to the ILO. The two major trade unions, together with migrants, prepared a separate opinion by analyzing the problems of the government report with the International Federation of Food Federation (IUF) and the Public Interest and Human Rights Law Foundation.
“There is no statute that separates the categories of rural workers.”
This is the government’s answer to an ILO inquiry (“specify the categories of rural workers in your country” and “provide provisions for laws and administrative regulations governing the establishment of organizations of rural workers”). Domestic agricultural (village) workers are beings that cannot be defined in the language of the law.
The ILO interprets agricultural workers in two terms. Agricultural workers (corresponding to Convention No. 11) refer to wage workers working in the agricultural sector. Rural workers (corresponding to Convention No. 141) include not only rural wage workers, but also landowners, peasants and smallholder farmers. Neither concept exists in Korean law.
In the situation of ‘no concept’, the government took the definition of ‘agriculturist’ stipulated in the ‘Basic Act on Agriculture, Fishery, Rural Community and Food Safety’ and the Enforcement Decree instead of explaining. △ Persons who manage or cultivate farmland of 1,000 m² or more △ Persons whose annual sales of agricultural products through agricultural management exceed KRW 1.2 million △ Persons engaged in agriculture for more than 90 days a year △ Shipment, distribution, processing, and distribution of agricultural products by agricultural association corporations A person who has been continuously employed in export activities for at least one year △A person who has been continuously employed for at least one year in the distribution, processing, and sale of agricultural products of an agricultural corporation
The concepts of employee and employee are mixed. You also need to figure out who your employees are. The majority of Korean workers working in paddy fields are short-term workers, including daily labor. It is rare for a person to be “hired continuously for more than one year”. This means that it is difficult for Korean agricultural (village) workers to be ‘farmers’. The concept mobilized to explain workers is rather pushing them away. It is the power of ‘law language’ that does not reflect changes in reality.
It also shows a marked difference from the definition of the ILO. In the scope of the ILO Convention No. 141, rural workers are defined as employers (“persons who employ workers on a regular basis” and “persons who employ a significant number of seasonal workers” or “persons who own land cultivated by peasants or tenants”). ) is clearly excluded.
count only the number of farms employing workers
‘Farmer’ and ‘Farmer’ are occupations, but ‘worker’ or ‘worker’ is a status. In Korea’s agriculture-related laws, there are only ‘farmers’ who are close to employees, and there is no ‘worker’ whose status and rights are guaranteed by law.
“The law does not recognize the existence of agricultural (rural) workers, and there are no regulations dealing with their rights. The ILO asks whether Korea is complying with the standards, but there is no standard law itself.” (Ryu Mi-kyung, International Director of the Federation of Korean Trade Unions)
Accurate statistics of agricultural (rural) workers are also unknown. Statistics Korea’s Economically Active Population Survey (run monthly) shows the number of agricultural workers, but does not tell whether they are employed, self-employed, or employees. The Agriculture, Forestry and Fisheries Census (every five years) also counts the number of farms employing workers, but not the number of workers. “Since nothing is known about rural workers, the report submitted by the government to the ILO does not reflect the reality they are facing,” commented the two major trade unions.
That’s why. Government reports do not reveal the existence of migrant agricultural workers. In a legal system in which agricultural (rural) workers are not identified, migrant workers who support agricultural labor are bound to be unidentified.
“There is a strong impression that the government report assumes that agricultural (rural) workers are only Koreans. There is no mention of migrant workers at all. Migrant workers fill the majority of long-term wage workers (23,996 as of August 2014 by the Ministry of Justice, but more than 25,000 if undocumented workers are included), but they treat them as if they were invisible.” (Jeong Ok-soon) Director General of IUF Korea Branch)
Criticism is there for a reason. There is no room for migrant workers to intervene among “farmers” when the government says, “Farmers are free to organize peasant groups based on civil law to represent their interests and welfare.” “Farmers (or agricultural businesses)” who receive “various laws related to fostering and support in each field and receiving subsidies for income stabilization and support for educational operation of farmers’ groups, etc.” are also explained only to Koreans and employers.
In response to the ILO’s question about the freedom of association and organization of domestic agricultural workers, the government repeatedly emphasized that “legal rights are guaranteed.” The Ministry of Employment and Labor stated that “workers have the right to independent association, collective bargaining and collective action to improve working conditions” (Article 33 (1) of the Constitution) and “wage workers engaged in agriculture are those of wage workers in other industries. have the same rights as It is far from the reality of agricultural migrant workers. If the government included migrant workers in the category of ‘agricultural wage workers’, it would mean that they wrote a false report that is different from the truth.
Migrant workers without unions
According to the law, migrant workers are also subject to the Labor Union and Labor Relations Adjustment Act, but the current government does not recognize the Seoul, Gyeonggi and Incheon migrant workers’ unions (migrant unions). In May 2005, the Ministry of Labor rejected the notification of the establishment of the migrant union. The reason was that union members included undocumented workers. The migrant labor union filed a lawsuit to cancel the rejection of the establishment report. The Supreme Court, which received an appeal from the Ministry of Labor (February 2007) after going through the first trial (the Ministry of Labor won) and the second trial (winned by the migrant union), has been delaying its ruling for more than seven years. Gonggong lawyer Yoon Ji-young said, “In a situation where realistic oppression exists, it cannot be said that the rights of migrant workers are guaranteed if there are no legal restrictions.” There are currently no unions in which agricultural workers, whether Koreans or migrant workers, have joined as union members.
In some cases, agricultural migrant workers take collective action on the grounds of excessive labor (the cover story of No. 1033) and breach of contract (refer to Special Project No. 1034, ‘Rude Contracts That Break Promises’). Kim Sa-gang, a research fellow at the Institute for Migrant and Human Rights, participated in the preparation of the 2013 National Human Rights Commission’s report on the situation of migrant workers in agriculture and livestock. He introduced the horse of a paprika farmer in Chuncheon, Gangwon Province.
“At first, I wrote two or three people with the same nationality. Then we demo together. So this time, one person from Nepal and two from Myanmar applied. I thought I wouldn’t be able to do a demo if I had to use a different nationality. Demonstration is a pain in the ass, so we send the demonstrators to [home country] altogether.”
Government reports are a series of discrepancies with reality. Agricultural migrant workers receive training for three days and two nights after entering the country. Instead of being educated on their rights and how to raise problems, workers are ‘taught’ (report from the National Human Rights Commission of Korea) to be patient and always grateful even if they have complaints from their employers.
ILO Convention No. 11 (“Undertakes to secure for all persons engaged in agriculture the same right of association and association as for industrial workers, and repeal all laws and other provisions restricting such rights”), 1921 was enacted in Even the 100-year agreement is evidence that it is far from being in Korea. “The revision of ILO Conventions No. 11 and No. 141 is a work to change the outdated content to fit the reality. In Korea, where a large number of migrant agricultural workers are coming in under the employment permit system, even the contents of the 93-year-old agreement are envious.” (Director Jeong Ok-soon)
Looking at the government’s response, it seems that there is no intention to reflect changes in the agricultural field in laws and systems. The two major trade unions urged the ILO to make efforts for the Korean government to legislate to recognize the existence of agricultural (rural) workers. The ILO also asked the government if it had ever requested policy support for the freedom of association of agricultural (rural) workers. The Ministry of Employment and Labor replied “No”. When asked if he needed future policy advice and technical cooperation, he said, “I will ask for it if necessary.” When asked about what Korea would propose to the ILO, the government’s answer was “none.” They also replied that they have never modified Korean laws and practices to implement the recommendations, saying, “No at this time.” Korea’s agriculture is being ignored not only by the government’s industrial policy but also by its will.
A legal system that does not reflect changes in agriculture
This ‘situation’ does not simply mean ‘lack of law’. A law separated from reality is not a ‘foundation of the rule of law’ but a ‘birthplace of suffering’. Korea’s agriculture, where small-scale farmers have collapsed, is seeking survival in the form of large-scale corporate farming. The agricultural labor force, centered on the family, is also being reorganized into a modern wage-labour form. Farming became impossible without ‘workers of consensus’ rather than ‘farmers in the broad sense’. When the legal system fails to reflect the changes in agriculture that has been on the rise, agriculture abandoned by the state and people may ‘die twice’.
The opinions of the two major trade unions were sent to the ILO in time for the start of the ‘Human Rights Table’ campaign (jointly conducted by the Hankyoreh 21 and 8 organizations including Amnesty International) on October 20th. In February 2015, the ILO Committee of Experts synthesizes government responses and labor-management opinions and submits a report to the general meeting in June. The report submitted to the general meeting is reviewed by the Standards Application Committee and decides whether to revise the Conventions No. 11 and No. 141.
By Lee Moon-young, staff reporter moon0@hani.co.kr