We Are Sorry to the Constitutional Court

We regret the decision of the Constitutional Court.

Park Kwang-soo (Counseling Team Intern)

On September 28, 2011, four migrant workers filed a constitutional complaint in 2007 and 2009, respectively, saying that the 「Act on the Employment of Foreign Workers」 (hereinafter referred to as the Employment Permit System), which restricts the movement of migrant workers to workplaces, was unconstitutional. There was a decision of the Constitutional Court on Briefly summarizing the decision of the Constitutional Court, although migrant workers can recognize the subjectivity of the constitutional basic right to ‘freedom to choose a job’, the purpose of the employment permit system is to protect the employment opportunities of Korean workers (so-called ‘preferential employment for locals’). Principle’) The purpose of efficient employment management for migrant workers is to facilitate the supply and demand of manpower for SMEs and achieve balanced national economic development. Therefore, restrictions on the movement of workplaces for migrant workers are not unreasonable. Therefore, the Employment Permit System is a ‘workplace’ system for migrant workers. It does not infringe on freedom of choice.

If we look closely at the contents, the Constitutional Court found that in this decision regarding the legal status of migrant workers, not only Korean citizens but also foreigners can enjoy limited constitutional rights, similar to the 2001 decision on overseas Koreans. As the Constitution expresses the subject of fundamental rights as ‘people’, it has been argued that foreigners cannot become subjects of basic rights. However, the Constitutional Court distinguished between ‘people’s rights’ and ‘human rights’, and the dignity and value of human beings and the right to pursue happiness. It is a human right, so it was judged that foreigners can also become subjects. Although it is positive to acknowledge the subjectivity of the basic rights of foreigners, the restriction on the movement of workplaces for migrant workers who enjoy ‘freedom to choose a workplace’ does not infringe on the ‘freedom to choose a workplace’. is aggravating
The Constitutional Court sacrificed the ‘freedom of work choice’ for migrant workers for the ‘principle of preferential employment for locals’. do. In other words, the Constitutional Court said that in order to secure employment opportunities and employment possibilities for Koreans, migrant workers must work in a situation of de facto forced labor where they cannot move their company of their own will. Let’s examine the effectiveness of how much our employment can be guaranteed.

The Employment Permit System is a device to guarantee the priority of employment of Koreans. The system of calculating the appropriate amount of foreign workers and setting quotas through the Foreign Workers Policy Committee. Employers who want to hire migrant workers must make efforts to recruit Koreans for a certain period of time. Procedures are in place to hire It is thought that the policy objective of preferential employment of Koreans can be achieved with only these complementary devices. In other words, if it is judged that the employment of Korean nationals is significantly infringed, it is necessary to reduce the scale of the introduction of foreign workers, strengthen the recruitment process for migrant workers, and thoroughly manage and supervise compliance with labor-related laws such as the Labor Standards Act at workplaces using migrant workers. will be Therefore, the question arises as to why the human rights violation regulations such as restrictions on workplace changes for migrant workers are necessary.
In addition, the current situation of the Korean labor market makes the purpose of the regulations meaningless. In the theoretical model of a perfectly competitive market, it is assumed that the influx of migrant workers increases the supply of labor, leading to a decrease in wages in the labor market and an increase in the unemployment rate of Koreans, that is, a situation in which the employment of Koreans is infringed. In fact, according to 「Trends and Implications of Foreign Workforce Policies in OECD Countries」 (OECD Korea Representative Office, 2007), which evaluates the impact of the influx of migrant workers on the labor market of each OECD country, the wage is 0.12 when the number of migrants increases by 1%. % decrease and the unemployment rate increases by 0.23 to 0.44%. However, if the labor market is divided and the supply of domestic labor force is different for each industry, the general evaluation of the academic community is that the inflow of migrant workers has no or no significant labor force substitution effect in the short to medium term. The OECD report also concludes that it is very difficult to prove the correlation between immigration and wages because wages are also affected by capital equipment, arguing that the above effects are short-term and will disappear in the mid- to long-term.

What we need to pay attention to here is that the labor market in Korea is divided, so the mismatch between the supply and demand of manpower is severe. According to a survey conducted by the Ministry of Employment and Labor, in the second half of 2010, 563,000 people were recruited by companies, but 459,000 of them were hired, with an unfilled rate of 18.4%. (Ministry of Employment and Labor, 「Employment and Labor」 Labor White Paper”, 2011) Statistics compiled only for job seekers and job seekers through the Worknet run by the Ministry of Employment and Labor show that the gap between job openings and job search is larger by job type, including financial insurance, social welfare and religion, In the fields of driving, transportation, security and cleaning, the number of job seekers is several times higher than the number of job seekers, but in the fields of machinery, chemicals, textiles and clothing, electricity and electronics, simple production jobs, and agriculture, forestry and fisheries, the number of job seekers is almost twice as high as that of job seekers. (Korea Employment Information Service, 「Worknet Recruitment, Job Search and Employment Trends」, September 2011)
This discrepancy is due to a divided labor market, and even if we do not refer to these statistics, we already know. For example, civil servants, professional workers, ‘large companies + regular workers + office workers’, etc. are classified as primary, ‘small business + regular + office workers’ are secondary, and other non-regular and production workers are classified into tertiary and quaternary jobs. What is happening now is that you would rather remain unemployed or give up looking for a job than not being able to enter. The current Employment Permit System limits the industries that migrant workers can work in, such as manufacturing, construction, livestock and aquaculture, and the like. In the above Worknet statistics, the number of job seekers required by the company exceeds the number of job seekers. is almost exactly consistent with In other words, migrant workers are working in industries that Koreans are reluctant to, so they would rather remain unemployed than working there. This purpose is also behind the Korean government’s legalization of the introduction of foreign workers as an employment permit system.
Therefore, in the case of Korea, there are no empirical studies that report the substitution effect on whether there is competition for jobs between domestic workers and migrant workers in the labor market, but there are studies showing that the complementarity is strong or does not have an effect. There are also studies showing that the shortage of production-related simple skilled workers is being resolved.

If the contents of the reports and statistical data cited so far can be summarized in one sentence, the inflow of migrant workers has no or no significant effect on the employment and unemployment of Korean workers. Nevertheless, the Constitutional Court concluded that forced labor should be allowed for migrant workers because of the ‘the slightest possibility’ that Korean workers may not be able to find employment due to migrant workers. Considering the fact that there is little real benefit, it can only be said that it is a ridiculous decision.
However, there is nothing to be gained from this unconstitutional decision. The OECD report cited above points to one concern: the ‘political logic’ that views migrant workers as more exclusive and negative may play a role when the economy is struggling and unemployment rises. According to this ‘political logic’, the cause of social and economic problems such as deepening polarization, youth unemployment, low wages, and mass production of non-regular workers is attributed to the failure (or acceptance) of government policies or to migrant workers, not to the capitalist economic structure. The ‘indulgences’ of the government and the economic system that will be obtained and the ‘excess profits’ that employers obtain through forced labor in violation of human rights for migrant workers will certainly be achieved.

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