“Why should migrant workers be paid the minimum wage?”
Park Gwang-soo (Intern, Counseling Team, Korea Migrant Human Rights Center)
On July 2, the Minimum Wage Committee decided the 2011 minimum wage to be 4,320 won, a 5.1% increase from this year’s after the 8th meeting. Violent controversies arose during the process of determining the minimum wage, such as large differences in positions between the labor and management circles, workers’ siege and management members’ exits. Moreover, this year, in conjunction with the ‘Live a month on the lowest cost of living’ experience campaign conducted by the Participation Solidarity, it caused a great social impact.
As the years go by, the conflict over the minimum wage is deepening and the interest of society is growing. Above all, he said that the fact that the number of workers who are currently receiving the minimum wage in Korean society is increasing, he said. can do. Considering that the minimum wage is only a legal ‘minimum standard’, it is surprising that it works like a standard for working conditions and like a ration for daily necessities in a communist country.
A labor contract concluded between a worker and an employer is essentially a type of ‘contract’, and like other contracts, whether or not to conclude a contract and its content can be freely determined by agreement between the parties. However, a contract with illegal contents, such as a memorandum of renunciation or a loan contract with an interest rate exceeding the statutory interest rate, must be subject to the restriction that it becomes invalid. This is to prevent damage to the public as a result.
The same applies to labor contracts as well. In other words, the parties can freely conclude a labor contract, but the content must not violate the law, and in particular, a series of labor laws such as the Labor Standards Act and the Trade Union Act, which are special laws regulating labor-management relations, must be complied with. Article 15 of the Labor Standards Act stipulates, “A labor contract that stipulates working conditions that do not meet the standards stipulated in this Act shall be null and void limited to that part. The invalidated part shall be in accordance with the standards set forth in this Act.” Therefore, for the contents of the labor contract that do not comply with the law, the standards of the Labor Standards Act are compulsorily supplemented. As such, various regulations specified in the Labor Law were prepared to “guarantee human dignity” as expressed in Article 32, Paragraph 3 of the Constitution. It can be said that this is only the ‘minimum’ standard that the parties to a labor contract must comply with in order to
Migrant workers are no exception to the minimum wage, which is currently widely used as a standard for labor contracts in Korean society. It can be said that the harm caused by the minimum wage is more serious for migrant workers than for domestic workers. In the case of domestic workers, the minimum wage is widely applied, mainly to non-regular workers in the service industry, but migrant workers are not only engaged in manufacturing with relatively strong labor intensity and poor working conditions, but also are subject to the current employment permit system, fixed-term or dispatched workers. This is because they cannot be employed as a form of employment and are directly employed by the employer.
In the case of dispatched workers, since the dispatching company takes a portion (or nearly half) of the profits to be returned to the workers, the amount that the employer actually pays to receive work actually exceeds the minimum wage, whereas in the case of migrant workers, direct employment Therefore, employers actually pay only the minimum wage and are provided with the work of migrant workers. Nevertheless, the majority of migrant workers sign labor contracts with the minimum wage, so why do the majority of migrant workers sign labor contracts with the minimum standard, and (in the case of migrant workers who visit the center for consultation) failing to meet this minimum standard? The question arises as to whether you are working under working conditions.
From this point of view, if we consider whether migrant workers can freely move around the workplace for better working conditions, or whether they can negotiate their own working conditions with the employer in the process of concluding a labor contract, migrant workers and their employer It can be seen that they are in a situation where they cannot conclude a labor contract in an equal relationship and maintain or improve their working conditions.
If we look again at the fact that an employment contract is a kind of ‘contract’, it seems that this question could be easily resolved. The contents of the contract are determined through agreement between the contracting parties, in other words, through negotiation. In the case of a labor contract, the difficulty of the work, the working environment, working hours, labor intensity, and the job skill level of the employee are placed on the negotiation table. It determines not only whether the contract is concluded, but also the working conditions, including wages. However, it is easy to miss the point that in order to negotiate such a contract, both parties to the contract must be on equal footing, both economically and socially. As an extreme example, in the case of a slave deprived of bodily liberty, he has no choice but to conclude a contract with any contract required by his master. Also, if you are in economic poverty, you will have to accept a labor contract with conditions that are significantly unfavorable to you for immediate livelihood.
Also, with the exception of very exceptional cases such as sickness and childbirth, migrant workers cannot terminate their employment contract at their own will. Aside from notifying the employer of the termination of the labor contract, the employer must fill out an application for change of workplace and submit it to the Employment Support Center, but migrant workers can provide work ‘legally’ in Korean society. If the employer does not comply with this procedure, the employment contract has been legally terminated, but it is treated as an unauthorized departure and cannot be employed at another company. Employers frequently use this to block the retirement of migrant workers by refusing to fill out an application for change of workplace even if they express their intention to retire. From the employer’s point of view, there is no need to make efforts to improve working conditions, such as wages, or to spend money to improve the working environment, in order to find workers who can endure the poor working environment of their workplace. You can be provided with work while paying only the minimum wage.
Such behavior by employers infringes on freedom of change of job and is effectively forced labor prohibited by Article 7 of the Labor Standards Act, and the highest punishment under the Labor Standards Act is imprisonment for not more than 5 years or a fine not exceeding 30 million won. Although the current employment permit system stipulates that an employer must fill out an application for change of workplace for migrant workers to change their workplace, no punishment can be imposed on the employer for the violation. In other words, the current law ‘legally’ grants employers the unconditional authority to restrict the ‘freedom of job change’ of migrant workers.
The employment permit system, which restricts the movement of migrant workers to workplaces, has caused a number of serious ills, but what I want to say here is that migrant workers are completely deprived of the possibility of improving their working conditions. No matter how difficult and risky the work is, even if the minimum wage is paid by comparison, the fact that the employer does not want it means that the employer has to continue working at the workplace while accepting the poor working environment, so it is natural for employees to deviate from the minimum wage Nothing else but to do. In addition, the Ministry of Employment and Labor itself states in the process of constitutional complaint against workplace change restrictions that the current employment permit system has regulations that restrict migrant workers from changing workplaces for that purpose.
To give the right to amend the principles of the civil law, workers must have the means of resistance called industrial action. They can ‘only’ enter into a labor contract or collective agreement to maintain and improve their working conditions in an equal relationship with the employer. Because the legislators have decided that If we take the opposite interpretation, it can be said that it is difficult for workers to maintain and improve working conditions and improve their economic and social status without the union, and legally and realistically, they cannot have a balance of power compared to the employer, in other words, they cannot have bargaining power. can In the case of migrant workers, whose union is fundamentally blocked, it is inevitably difficult to maintain and improve their working conditions.
So what should I do? It is not easy for each worker to achieve economic and social equality with the employer. In order for workers to “maintain and improve their working conditions” and “promote improvement of their economic and social status”, a union is necessary above all else. (Expressions in quotation marks are the labor unions stipulated in Article 2, Paragraph 4 of the Trade Union Act. Even if there is freedom of contract, in reality, there are situations in which workers have to sign a labor contract while accepting unfavorable working conditions. Therefore, our Constitution and the Trade Union Act provide for the organization, operation and activity of a labor union. In doing so, it gives the authority to ‘legitimate’ even labor disputes. An industrial action that suspends the provision of labor means that workers do not perform the labor contract, and the workers must be held responsible for the non-performance of the contract. However, the Trade Union Act exempts them from not only civil liability but also criminal liability for just industrial action.
Against the background of a situation in which migrant workers are legally restricted in their rights as workers (restriction on freedom of change is a limitation of basic human rights beyond workers’ rights!), the very purpose of the legislation of the Employment Permit System is to turn migrant workers into workers. It reveals the perspective of the lawmakers of the Employment Permit System, who simply want to receive only ‘labor force’ rather than to recognize it as a ‘labor force’. Jeon Tae-il’s call to “abide by the Labor Standards Act” from 40 years ago is still valid even today in 2010 for migrant workers.
First of all, in the case of migrant workers working in Korea through the Employment Permit System, the worker’s own right to choose is excluded in the process of concluding the labor contract, and the working conditions are completely tailored to the employer’s intention. Employers look at the list of foreign job seekers provided by the Employment Support Center and select suitable candidates for their workplace. At this time, the choice of migrant workers selected by the employer is limited to either ‘Yes’ or ‘No’. If you select ‘Yes’, you agree to the working conditions suggested by the employer and conclude a labor contract accordingly. If you select ‘No’, you become one of the many job seekers listed in your home country, and the Korean employer You have no choice but to wait indefinitely to be selected.