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Presentation |
Global World,
Migrant Workers and Rights Protection
Abstract
The paper examine the problems of the migrant workers’
protection in the Global world, with empathizes on the
protection by the labour (trade) unions. The uncontrolled
entry of foreign workers into any employment has been viewed
in a negative light by many labour unions and their members.
Nonetheless, it is in the interests of the labour unions,
with a view to protecting the wages and working conditions
of national workers, that migrant workers be afforded the
same work-related rights, to organise and to integrate
migrant workers, once they were already employed in the
receiving country, into labour union structure.
Key words: globalization; labour unions; migrant workers;
rights protection; labour law; labour rights
Introduction
It seems that nowadays regional integration and the
globalization opened up for discussion a number of issues
and questions arising from comparative labour law and its
application to legal regimes in Asian societies. Especially
this questions are important for thousands migrant workers
all around the world. As the modern global world provides
labour force with many opportunities to move around, but
provide little support and protection for the migrant
workers. This problematic situation of workers employed
abroad was addressed first time to the newly founded ILO in
1919. The concern of the ILO about the situation of migrant
workers was reflected in the adoption of a Recommendation
which already sketched out two main aims of the ILO in this
field, those were, (1) equality of treatment between
nationals and migrant workers; and (2) coordination on
migration policies between States, on the one hand, and
between governments and employers’ and workers’
organizations, on the other. The Declaration concerning the
aims and purposes of the International Labour Organization,
or the Declaration of Philadelphia, adopted in 1944, also
makes specific reference to the problems of migrant workers.
As it seems the problem is not new, but lately with the
growing immigration it became severe (see Appendix 1).
To make the definitions used in this paper clearer, I would
like to note that terms ‘migrant worker’, ‘foreign worker’
and ‘immigrant worker’ are used interchangeably. There is
also the term came from the German gastarbeiter ‘guest
worker’ shows that traditionally in European labour law the
migration has been treated as a temporary phenomenon. The
expression ‘migrants’ is used in two senses depending on the
context: to refer globally to all immigrants regardless of
whether they migrate to take up employment, and to refer to
migrant workers and their families taken together
(Papademetriou and Martin, 1991). Likewise, the terms
‘illegal migrant worker’, ‘non-documented’ or ‘undocumented
migrant worker’, ‘clandestine migrant worker’ and ‘migrant
worker in an irregular situation’ or ‘irregular migrant
worker’ are equivalent. States of employment are also
referred to as ‘receiving’ or ‘host countries’, whereas
migrants’ states of origin are also called ‘sending
countries’. Although many sending countries are developing
states and most receiving countries are developed and highly
industrialized states, these terms are not necessarily
synonymous. For example, Kritz and Zlotnik observe that
‘though migration from developing to developed countries is
considerable, large flows also take place . . . between
countries at comparable levels of development, and still
other flows originate in developed countries and end in the
developing world’ (Kritz and Zlotnik, 1992). In fact the
migration the international issue was mentioned a while ago.
Between 1506 and 1650 it is estimated that just under half a
million persons migrated from Spain to the Caribbean and to
Central and South America and Mexico, and that by 1815, one
million migrants had settled in North America from the
United Kingdom and Ireland. Their numbers, however, were
considerably less than those forced to migrate, such as
slaves, indentured labourers, convicts, and refugees (Ricca,
1989). But the mass migrations overseas started together
with the improvements in ocean travel. Voluntary migrants
were usually colonial settlers.
The nineteenth century witnessed the expansion and
acceleration of voluntary migratory movements. Contributing
factors included the industrial revolution, the demographic
and economic situation of Europe, the attraction of spaces
to be settled and developed in the New World, technical
advances in transportation, and the relaxation of government
controls on movements of people. Between 1815 and 1914,
there were considerable intercontinental movements: about 60
million people migrated from Europe and elsewhere to the
Americas, Oceania, and South and East Africa; an estimated
10 million persons migrated from Russia to Siberia and
central Asia; approximately 12 million Chinese and 6 million
Japanese moved to eastern and southern Asia; and 1.5 million
persons emigrated from India to South-east Asia and South
and East Africa (Cholewinski, 1997).
The nineteenth century also saw the development of migration
for paid employment, which initially consisted of the
large-scale importation of indentured agricultural labour to
sustain the plantation economies of European colonial
empires. The importation of Indian Tamils by the British to
work in the coffee and tea plantations in Ceylon, Sri Lanka
is just one example.
International voluntary migration continued during the
inter-war period, but at a slower rate due to the
introduction of restrictive immigration policies and the
Great Depression of the 1930s; the latter resulting in a
drastic decline in international trade, mass unemployment in
many countries, and the phenomenon of large-scale forced and
voluntary repatriation (as the USA and Argentina, for
example, repatriated many Mexican and Italian migrants
respectively) (Ansay, 1977).
The end of the Second World War brought about a significant
increase in migration generally. In addition to the forced
migration of refugees and settlers from former colonies, the
‘guest workers’ contributed significantly to the
reconstruction of Western Europe after the devastation of
the war and to the creation of economic prosperity shortly
afterwards. Indeed, the influx of foreign labour in many
Western European countries appeared to spiral uncontrollably
upwards until the beginning of the 1970s. This brief
historical survey indicates that international labour
migration is truly a global phenomenon, taking place in
every region of the world.
Foreign workers may either be long- or short-term
immigrants. The first category includes workers and their
families who migrate with a view to settle permanently in
the receiving country. For example immigrants to Australia,
Canada, and the USA, who are usually admitted as permanent
residents and who eventually become eligible for
naturalization after a certain period of residence in the
country. The second category comprises workers lawfully
admitted on temporary work permits (of a finite duration),
usually for specific employment (bearing in mind, of course,
that work permits may be extended or renewed while workers
are in the country of employment). This describes the
approach that has been taken and, to some extent, is still
being taken in Western European states of employment which
do not consider themselves to be ‘countries of immigration’.
It is also the preferred approach in other migrant-receiving
countries, such as the Gulf States and South Africa. Short
term migrants also include frontier and seasonal workers and
those studying and pursuing their careers abroad.
Self-employed workers may fall into both categories. Not all
of these groups are covered by the various definitions of
‘migrant worker’ in international instruments. Moreover,
students, trainees and those sent by their employers to
another country to perform a specific job are explicitly
excluded from all the international definitions of ‘migrant
worker’. The two categories of long- and short-term
immigrants are by no means mutually exclusive. For example,
migrant workers who initially intended to work abroad for a
limited period of time and then to return home may be
permitted to settle on a permanent basis (Kritz and Zlotnik,
1992). But this can not be the case of the Japan and South
Korea, as these countries has strict rules of the permanent
residency.
That can be also the case that migrant workers may also work
in a country illegally, i.e. without authorization. Illegal
migrants usually excluded from the definition of ‘migrant
worker’ in all the international legal acts, with the
exception of the recent UN International Convention on the
Protection of the Rights of All Migrant Workers and Members
of Their Families.
The following categories of illegal migrants are
discernible. Migrants may attempt to cross a frontier wholly
concealed from the authorities or may enter a country by
means of false documentation or other kinds of
misrepresentation. The first form of clandestine migration
frequently takes place into countries with particularly long
borders (Warzazi, 1974).
Although the former method can be achieved on the migrant's
own initiative or with the assistance of relatives, both
methods, and especially the latter, increasingly involve the
participation of criminal organizations with substantial
resources. Clandestine crossings arranged by traffickers
often expose immigrants to many forms of exploitation.
Immigrants not only pay a large sum of money for these
services, but also face blackmail by traffickers for long
periods after entry together with confiscation of their
travel documents. Moreover, illegal migrants are
particularly vulnerable to dangerous, unhygienic, and very
uncomfortable conditions of transport to their destination
(Leary, 1987).
In some cases, however, illegal migrant workers actually
enter a country by legal means. They may enter as ‘tourists’
without the necessary papers for employment and then find
themselves in an 'irregular situation' when they start
working (Power, 1978).
Irregular labour migration also frequently encompasses those
migrants who are entitled to residence and not to work and
yet are employed, as well as those who have both residence
and work permits but nevertheless work illegally in
‘informal’ jobs. In this instance, illegal migration for
employment is inextricably bound up with legal labour
migration (Rogers, 1985).
The numbers of illegal migrants may be inflated
substantially by the family members of migrant workers.
These may accompany a clandestine entrant, join a legally
residing migrant worker in contravention of immigration
requirements, or become workers in an irregular situation by
finding employment without permission, even though their
entry into, and their residence in, the host country are
sanctioned by law.
The diverse definitions of ‘migrant worker’ found in the
various international instruments indicate that it is
necessary to embrace a broad understanding of this concept
for the purpose of this study. The adopted definition
applies to both long- and short-term immigrants. So long as
these persons have not acquired the citizenship of the state
of employment and are working or have worked in that
country, they are included. Self employed and seasonal
migrant workers and those studying and training abroad but
also working are therefore covered. A special interest is
also reserved in this paper for illegal migrants, who
constitute the most vulnerable class of migrants and who are
most likely to be subject to exploitation and to suffer from
human rights abuses. The persons excluded under this broad
definition are Geneva Convention and de facto refugees,
tourists, and those migrating to a country for the purpose
of retirement, unless it is to the country in which they
completed their work life.
Part 1. International migration
The causes of international labour migration are numerous
and complex, and this section only focuses on what are
arguably the principal causes. On a basic level, migration
for employment is caused by complementary ‘push’ and ‘pull’
factors; the former is characterized by poor living
conditions in the country of origin and the latter by the
availability of well-paid work (in relative terms) in the
country of employment. The labour migration process is then
facilitated by improving communications, the availability of
transportation, and by social or ethnic networks.
**Most international labour migration movements are linked
to poverty and economic underdevelopment in countries of
origin (Papademetriou and Martin, 1991), chronic
underemployment in the sending countries in contrast with
the relative demographic stability in receiving countries.
Well, in this, its part plays the demand for the cheap
labour. According to the analysis by Gordon H. Hanson, there
is no evidence that legal immigration is economically
preferable to illegal immigration. The illegal immigration
responds to market forces in ways that legal immigration
does not. On example of US we can see, that when the illegal
migrants tend to arrive in larger numbers the economy is
booming (relative to Mexico and the Central American
countries that are the source of most illegal immigration to
the United States) and move to regions where job growth is
strong. Legal immigration, in contrast, is subject to
arbitrary selection criteria and bureaucratic delays, which
tend to disassociate legal inflows from U.S. labor-market
conditions (Hanson, 2007). All this gives us the reasonable
believe that the migration can benefit the economy of the
country, unlike the common fear tells. That means that the
illegal immigration has the clear economic logic, so
according this sending all illegal immigrants home would
reduce the U.S. labor force by 5 percent and the low-skilled
U.S. labor force (workers with less than a high school
education) by 10 percent or more. In 2005, illegal
immigrants accounted for 24 percent of workers employed in
farming, 17 percent in cleaning, 14 percent in construction,
and 12 percent in food preparation. Losing this labor would
likely increase prices for many types of non-traded goods
and services, increase wages for low-skilled resident labor,
decrease incomes of employers that hire these workers, and
increase the incomes of taxpayers that pay for the public
services these individuals use.
The net impact of these changes would be small, although in
some regions and industries the dislocation caused by the
labor outflow would be considerable. If, instead, illegal
immigrants were allowed to remain in the country and obtain
legal residence visas, the economic impact would depend on
the rights granted to these individuals. In the short run,
the economic impact of legalization would likely be minimal
(Hanson, 2007). And this is an impact that illegal migrant
workers gives on such massive economy as American. So why is
it important to protect the rights of migrants? First of all
the studies shows that the whole labour standards connected
to the economy in total (Flanagan, 2003): Contrary to the
race to the bottom hypothesis, the analysis did not find
significant linkages between export performance or FDI
inflows and the measures of labour standards. In sum, the
paper finds no evidence that countries with lower standards
gained competitive advantage in international markets. Poor
labour conditions often signal low productivity or are one
element of a package of national characteristics that
discourage FDI inflows or inhibit export performance.
If the will to protect labour rights doesn’t go from the
willingness to defend the human rights, it shell be just
motivated by the simple economic reasons. There were
different measures for the protection the labour rights of
migrants. Some of the researches think that it’s the task
for international organizations (see Vittin-Balima, 2002).
But other think differently (David, 2002), David empathizes
that the solidarity with migrant workers might help labour
unions to get back to the basic principles of the labour
movement.
The immigration in total linked to workers’ rights and,
therefore, is of concern to trade unions. It is a complex
issue for unions, because the nature of migration flows and
the legal status of migrants vary. Many migrant workers –
including many in the construction, wood and forestry
industries in Asia-Pacific – are effectively invisible. This
makes it difficult to gain adequate and reliable data as a
basis for useful analysis and planning. Majority of
countries in the Asia-Pacific region are experiencing
economic reform, with the adoption of market economies,
trade liberalization and new forms of international trade
agreements and cooperation. Structural adjustment programmes
have contributed to the loss of jobs, with the decline of
traditional industries and public sector employment and as
earning opportunities drop at home, the pressure increases
to move to find them elsewhere. Globalization means that
access to travel and awareness of ‘other places’ has
increased. So workers are driven to migrate, legally or
illegally. Developing nations in the Asia-Pacific region
continue to have a demand for cheap, low-skilled labour.
Rather than move where labour can be found, many companies
restructure and subcontract, as part of the search for cheap
labour. Gaps need to be filled, and the most available
source will be migrant workers, whether authorized or not.
There is a demand for immigrant labour, both to fill vacant
jobs and to provide additional taxpayers who can contribute
to state-run pension schemes in ageing societies. The labour
came largely from Egypt, India, Indonesia, Pakistan, the
Philippines and Thailand. In the next two decades, newly
industrialized countries (NICs) within Asia drew
intra-regional sources of labour as workers migrated to new
locations for employment. There are some cases where migrant
workers are allowed in on the basis of specific agreements
between governments and companies. In Australia, Bangladesh,
Hong Kong, Indonesia, Japan, the Republic of Korea, Malaysia
and Pakistan, there have been some examples of migrant
workers’ being recognized – even sought – for particular
projects. However, this is often under unsatisfactory
conditions or severe limitations. In some cases, the workers
are brought in despite general policies of not welcoming
them. Where this happens, there is often a wide gap between
the estimated numbers of legal and irregular migrant
workers, as companies and project managements find
alternative sources when they are blocked legally. These
illegal workers are very vulnerable – and it is this illegal
status of many individual migrant labourers in the
construction industries that creates most difficulty for
trade unions needing to act and react in workers’ interests.
But there are clear needs not only to react, but to act as
well. These irregular migrants have no access to trade
unions and therefore no avenues for insisting on basic
workers’ rights. With no rights, they can be manipulated to
depress salaries, standards, terms and conditions for local
workers who may be members of trade unions. They may also be
used as strike-breakers.
Trade unions are constantly hindered by not knowing the
numbers and origins of illegal workers and by the inability
to contact and engage with them. There is often anecdotal
knowledge, but the risky and uncertain lifestyle of the
illegal immigrant labourer makes it virtually impossible to
substantiate stories even of severe abuse and exploitation.
Many trade unions, particularly in the construction
industry, have therefore concentrated on limiting the
potentially harmful impact of irregular migrant workers on
the terms and conditions of union members. This must
continue – with vigilance and with determined action against
opportunistic employers who are ready to set workers against
one another.
But it can be the case that workers may come from countries
where there are active unions. So they are so used to have
unionized protection so they may want to obtain it again, if
they can overcome the risks involved in becoming visible.
These people may constitute a new reservoir of trade union
membership. It is essential that the member unions recognize
these workers and understand the forces that drive them and
the contexts in which they operate. It is not surprising,
therefore, that with barriers to legal migration, illegal
migration has developed and grown to meet demand. Most of
these workers were in manufacturing, but it is an example of
how some governments pick and choose when to turn a blind
eye to illegal labour, and how they exploit the availability
of an uncontrolled workforce. Undocumented foreign workers
are estimated to receive less than half the wage of Korean
workers doing the same job and have few if any benefits in
case of accident. Trade unions may do better by addressing
the needs of workers at their source, by educating workers
about their rights in whatever country they are employed,
and by finding ways to make contact with illegal workers.
Part 2. South Korea Case
Before moving towards the more precise characteristic of the
Korean Labour Unions the prehistory shell be briefly
discussed. Korea launched the democratic reform in 1987, the
major changes in its political system, economic structure,
and society were made. The authoritarian regime was replaced
by democratic politics. The economy has been through booms
and busts that have reduced the central role of the dominant
chaebol conglomerates.
Reforms of the legal system have both reflected and
contributed to the changes in the country.
The understanding the current position of the labour unions
can’t be full unless the legal system of South Korea would
be reviewed. As in any other East Asian societies, law in
Korea has traditionally been described as reflecting the
Confucian tradition, adopted at the outset of the Yi dynasty
(1392-1910) (Hahm, 2001). The Confucian legacy is complex,
but several elements of it have drawn attention as having
particular consequences for the Korean legal system. First,
Confucianism is usually seen to incorporate an aversion to
litigation and a preference for social norms as the primary
regulatory mode. Second, Confucianism is based on notions of
social hierarchy, which contrast with liberal assumptions of
formal equality. Third, Confucianism reflects a notion that
positive law is to be understood in instrumental terms as
primarily a tool of the state, rather than an external
constraint on state power. The traditional attitude can be
characterized as rule by law, as opposed to the rule of law.
These notions comported well with a state-centric legal and
political structure introduced during the Japanese colonial
period (1910-45). During this timing, Japan introduced
Western notions of law that had, in turn, been borrowed from
France and later Germany, i.e. roman-germanic legal system.
It was under colonialism that Korea assumed the formal
structure of a modern legal system, with distinct judges,
prosecutors, and private lawyers. However, because of the
colonial character of the state, notions such as judicial
independence, separation of powers, and constitutional
rights were minimal, and the paradigmatic function of the
legal system was social control through criminal law (Choi,
1980). Since the democratization of Korean society began in
1987, industrial relations in Korea have undergone a rapid
transformation. The period between 1987 and 1997 was marked
by growing resistance to the pattern of authoritarian labor
relations that had predominated in the era of rapid
development, and by efforts to build a new dynamic of
industrial relations. The Korean labor legislation, which
had not been significantly changed in the 43 years since its
enactment in 1953, was not suitable to cope with the
challenges of the new business environment. As a result,
labor laws were drastically revised in 1997 to improve
labor-related systems and to enhance basic labor rights.
The reform of the Labour Law helped two main changes occur.
First, provisions were made allowing private school teachers
and public workers to unionize. Second, legal permission was
granted for dismissal for ‘managerial reasons’, and legal
permission was granted to temporary workers and temporary
work agencies. The aims of these changes were to help firms
overcome their predicament and to boost Korea’s economy by
making the labor market in Korea more flexible.
One of the centerpieces of the new reforms was the creation
of the Commission of Labor, Management and Government
(‘Tripartite Commission’). The Commission formulated a
consensus concerning the increase of employment of
flexibility and the enlargement of labor movement rights.
With the Tripartite Commission playing the central role,
Korean industrial relations experienced a turning point. The
Tripartite Commission was a new type of decision making
mechanism, bringing together opposing social interests in a
way that had not previously been possible. On the one hand,
trade unions, which have often prevailed in collective
bargaining in the past, geared to devise a new strategy, due
to the economic crisis.
Trade unions gathered and formed industrial unions. Along
with the growth of participatory and cooperative industrial
relations, decentralization of collective bargaining
proceeded. This development indicates that while the trade
unions have played a powerful role in past collective
bargaining, spurring the centralization of collective
bargaining, the decentralization of the firm structure,
involving the horizontal changes in the enterprise
organization and empowerment, has led to a decentralization
of the bargaining structure. In addition, with the interface
between the trend of globalization and information economy,
the importance of the issues at the level of work
organization and workplace has increased (Lee and Choi,
1998).
The labor movement in Korea has traditionally found the
greatest support from regular workers, and has been
challenged by the dramatic increase in the number of
non-regular workers, which is the result of a more flexible
labor market. Consequently, labor-labor conflicts have
risen. The regular worker unions opposed allowing
non-regular workers to join their unions for fear that
working conditions would fall to the level of those
currently accorded to non-regular workers by the employers.
However, the national labor unions, such as the Korean
Confederation of Trade Unions, and the Federation of Korea
Trade Unions, have supported the organization of unions,
especially for non-regular workers, and are now fighting for
the improvement of non-regular workers' poor working
conditions and unstable employment status, demanding
legislative protection and social welfare. In addition to
the private sector, civil servants and college professors
are also taking steps to organize trade unions (Lee, 2001).
This goes against a long tradition of constraining such
workers' right to organize. Civil servants are now allowed
to organize work councils, but they still have no right to
organize labor unions. The sense of crisis regarding the
labor movement, which deepened during the economic crisis,
has led to efforts to change the structure of trade unions.
In particular, efforts are being made to change the union
structure into industry-based unions and to consolidate
existing industry-based federations. The early part of 2001
brought some trade unions together under the Korean Metal
Workers' Federation. The largest federation under the Korean
Confederation of Trade Unions changed its structure to that
of an industry-based union, and the Korean Federation of
Tourism Industry Workers' Unions and the Korean Federation
of Commercial Workers' Unions merged to launch the Korean
Federation of Service Workers' Unions. The move to change
the trade union structure into an industry-based union will
strengthen activities of industry-based units, by allowing
them to present standard proposals for collective
bargaining.
2.1 Migrant workers in South Korea
There was a problem appeared where no one was waiting in the
early 1990s, before the 1997 financial crisis, Korea's
economy enjoyed rapid growth. The resulting prosperity has,
in turn, created new challenges in the form of severe manual
labor shortages. Having grown accustomed to prosperity,
Korean workers have demanded and received gradual reductions
in their working hours. Furthermore, Korea's well-educated
young people balk at performing what are referred to as "3D"
jobs - dangerous, dirty, and difficult. Many industries have
addressed the problem by looking abroad for the required
manual labor. While the use of unskilled labor has never
been officially allowed by immigration authorities, hundreds
of thousands of unskilled laborers have nonetheless entered
the country to fill the demand.
Since the early 1990s, Korea has undertaken a national and
international campaign of ‘internationalization’,
proclaiming ‘Korea's role in the world community’, with the
aim of counteracting its xenophobic and isolationist image
and fostering an international philosophy more on a par with
its global economic power. Korea has transformed from a
labor-exporting country to a labor-importing country, and
emerged as a leading nation among rapidly
industrializing countries. The globalization of its economy
has forced Koreans to come increasingly into contact with
foreign people and cultures. In an era of free trade and
globalization, the problems related to foreign migrant
workers may be a test case for Korea. Korea was host to
approximately 693,697 foreign workers, including 304,000
illegal entrants (mostly from Bangladesh, the Philippines,
India, Nepal, Pakistan, China, Vietnam), according to the
Ministry of Justice. Of these foreign workers, about 60,000
are industrial trainees (MJ, 2005). Most of these workers go
to fill the demand in the construction industry or in small-
to medium-sized manufacturing companies. Others fill labor
gaps in rural areas and the rest consist of low-wage jobs,
ranging from textiles and needlework to plastics, leather,
computer chip assembly, and injection molding. Foreign
workers are typically recruited by experienced Korean labor
brokers, who are often conveniently connected with the
construction industry (Choe, 1994). Korean policy that aims
to avoid the permanent settlement of unskilled foreign
workers makes labor brokering a prominent feature of migrant
labor markets in the country. Conditions for these workers
are usually harsh. Broken contracts, rampant discrimination,
and violation of civil rights, along with legal issues
involving marriage and family, make life for migrant workers
in Korea difficult. As it was already mentioned according to
the Ministry of Labor, migrant workers generally receive at
least 60 percent less wages than their Korean co-workers for
the same work (Kim, 1995), partly because they are unable to
demand full compensation and partly because their employers
must pay kick-backs to the brokers who arranged for their
employment. In constant fear of deportation and living on
tiny budgets, workers typically
share one-room apartments with several colleagues and live
on a diet of instant noodles and other non-nutritious foods.
Even though they work an average of ten to twelve hours a
day, according to one source, they neither receive pay for
over-time work, based on eight-hour work day, nor receive
compensation for working on holidays (JCMK, 1996). Given the
unstable status of migrant foreign workers, their employers
also typically relax or ignore common health and safety
standards; this problem is exacerbated by the fact that
injured workers often receive no compensation for their
injuries and may even be fired or deported as a consequence.
This situation generally arises because the worker is either
too afraid of discovery by the authorities to complain, or
was required to waive health and safety coverage as a
condition of employment. For similar reasons, many workers
quietly endure verbal and physical abuse at the hands of
their employers and co-workers. As for health care, most
workers are often unwilling and unable to seek out or pay
for medical care. This may mean dangerous neglect of serious
illnesses or injuries, sometimes leading to debilitation or
death. It also has the potential to create broader public
health concerns. Korean and foreign workers are in constant
interaction at the workplace. These crosscultural encounters
often lead to cultural conflict. The most significant
problem is the language difficulty. The language barrier not
only contributes to foreign workers’ discomfort, but also
shapes a negative interpersonal relationship between them
and Korean workers. Due to the lack of mutual understanding
of cultural differences, foreign migrant workers are often
subject to verbal abuse and physical attack (Yoo, 1995).
Koreans tend to divide the concept of ‘foreigners’ into two
categories: Westerners and non-Westerners. Westerners
represent modernity and civilization, whereas non-Westerners
symbolize pre-modernity and inefficiency (Yoo, 1995). This
dual perception of foreigners fits well with the current
composition of foreign workers in the Korean labor market.
Workers from Western countries such as the US and Europe
mostly work in professional fields such as business, high
technology, and language instruction, whereas workers from
non-Western countries are engaged in menial physical labor.
Korean workers often look down on foreign
workers who are engaged in menial physical labor. The
personal interaction between Koreans
and foreigners in the workplace inevitably leads to an
unequal hierarchy, which places foreign
workers at the bottom of the social scale (Yoo, 1995). One
study shows that Koreans are not
so much opposed to the reception of Korean-Chinese as they
are to the reception of other
foreign workers (JCMK, 1996).
To understand the situation deeper, let’s take a close look
at Korean immigration
policy. The first and foremost principle related to foreign
migrant workers derives from the
non-discrimination principle. Until very recently, there has
been no legislative act in Korea to
deal explicitly with the labor rules for foreign migrant
workers. This has been one of the
major drawbacks in the current Korean legal system. Instead,
these workers have been
regulated by the Immigration Bureau through the enforcement
of a number of immigration
laws. The authority exercised by the Immigration Bureau
stems from five principal sources:
(1) the Constitution of Korea; (2) statutes enacted by the
National Assembly, chiefly the
Immigration Control Act of 2002; (3) the Presidential Decree
implementing those statutes; (4)
published administrative regulations implementing those
Decrees; and (5) guidelines by the
Minister of Justice.
There is one more problem, as the employment of foreign
workers is strictly limited.
The principal motive behind this practice is to offer the
best employment opportunities to
native Koreans (Seol, 1999). While outlawing the practice of
hiring foreigners in general, the
current law allows the employment of foreigners under
special circumstances. Permission is
given to hire foreign workers based on occupational
categories in those areas where the native
Korean population alone cannot satisfy the need.
The most interesting elements of current Korean immigration
policy are various
informal "back-door" mechanisms for importing unskilled
foreign labor, in some cases on a
de facto permanent basis. This mechanism is a compromise to
resolve the two competing
concerns: (1) to control a massive influx of aliens; and (2)
to meet industries' demand for
unskilled labor.
Though the foreign industrial trainee system was designed to
teach specific skills to
foreigners, it has in reality become an invidious tool to
import foreign labor. Intellectuals
criticize the company trainee programs on the grounds that
most jobs held by foreign trainees
are those that Korean citizens will not do, that many
employers provide very little actual
training, and that most companies simply use the trainees as
a source of cheap, unskilled labor
(Kim, 1995). While it is clear that these industrial
trainees are a valuable labor resource for
Korean industry, the government treats them merely as
‘trainees’, taking away all the rights
and privileges of being ‘workers’. Since foreign trainees
are not considered regular employees
under Korean labor law, they do not receive regular wages,
health insurance, worker's
compensation, or other fringe benefits (Kim, 1995).
Part 3. Unions and Migrants:
Globally and in South Korea
Migrant workers traditionally were ignored by unions. In
countries of origin they have
been ignored because they do not become members of unions.
Usually everyone powerful
agrees that although migrants perform an important function
for the economy, as migrants
diminish the level of unemployment, meet opportunities for
acquisition of skills, and remit
foreign currency, they have remained largely outside the
interest of unions, normally occupied
with other larger and more pressing domestic issues. But
what shell be also acknowledged,
the role that migrants in receiving countries take as they
perform jobs for which sufficient
local labour is not available (Radio-interview, 2005).
However, migrants have been ignored
because they possess little bargaining power. Sometimes they
also have been opposed because
they diminish the standards and contractual strength of
national workers.
Globalization brings about a change of perspective, since
unions realize that migrants
are not necessarily in direct competition for jobs with
local workers and that increasing the
standards for migrants will result in better standards also
for national workers. Unfortunately
not many unions’ leaders understand this. For example,
leader of the Federation of the Labour
Unions in Russia completely missed the point and talks about
threat from the migrant workers
and damages that they bring to the wages of the Russian
citizens workers (Radio-interview,
2005). This approach requires a change of attitude among
union members. So it shell be
reaffirmed that migrant workers must be included in the
concerns of the trade unions. Not
only is the mission of trade unions all encompassing, but
also allowing differential treatment
among workers does not serve the cause of workers in
general. This, for sure, will be
accompanied by some difficulties. Such as, problems of
unions in receiving countries emerge
from the fact that migrants work for many different
employers and in a variety of sectors,
from the fact that migrants are not very accessible and
problems with language and culture do
not facilitate accessibility, and from the fact that
migrants, who are often not well educated
and do not have an informed knowledge on trade unions, do
not feel encouraged to become
members, particularly if they are in an irregular situation.
In addition, there are restrictive
polices and practices in receiving countries and widespread
pressure from employers not to
join trade unions, under the threat of losing the job, a
risk that migrants, who have incurred
huge migration costs, cannot afford. Unions also suffer from
lack of resources, limited
networking and a basic aversion from members to extend
services to migrants.
Very interesting example of well-manage coexistence of
Labour Union and migrant
workers is in S. Korea. Korean labour movement in the eyes
of many foreigners seemed to be
very ‘militant’ and strong. Although according to Youg Deuk
Lee, Presedent of FKTU,
Korean unions are presented by media as very militant, cause
of ‘focus on unionsed workers’
demonstration or protest actions. This shell be looked at
through the Confusionism of Korean
workers in general perceive their work place as
indispensable to their life, and thus feel more
passionate about and attached to their company than workers
of any other nation (Lee, 2005).
And Yu, Jae Sub adding to this, that ‘unlike the widespread
misunderstanding that labour
movement in Korea is radical and militant, labor relations
in our country are now marked by
cooperation and co-prosperity’(Lee, 2005).
Most of labour unions in Korea are affiliated with one of
the two national
organizations: the Federation of Korean Trade Unions (FKTU)
and the Korean Confederation
of Trade Unions (KCTU). It can be said that while FLTU takes
a moderate rationalist stance,
placing more emphasis on dialogue that on struggle, KCTU has
been relatively struggleoriented
in its practice of labour movement.
In Korea any labour union is ready to help its allies.
Although there are pretty strong
feelings of suspiciousness from Koreans towards all foreign
migrant workers that are mainly
representers of the India, Pakistan, Iran and other Middle
East countries, labour unions are
ready to work together with migrants. For example, latest
protest organized by Migrants’
Trade Union, that is affiliate of KCTU, showed it well. In
April 2002, over 1000 migrant
workers protested against the South Korean government’s
unfair immigration policy in
several rallies and demonstrations. As a part of this
campaign the Equality Trade Union
Migrants’ Branch (ETUMB) conducted a sit-down demonstration
in front of Myongdeung
Cathedral for 77 days and two key leaders of the ETUMB
carried out a hunger strike at the
Hwa Sung immigration detention center after they were
arrested for labor activities (Lorea,
2006).
On July 31, 2003, the South Korean government passed a new
migrant worker
management system, entitled, the Act on Employment of
Foreign Laborers or otherwise
known as the Employment Permit System (EPS). The law, which
took into effect on August
2004, along with the Industrial Trainee System is basically
South Korean's version of a slave
system. According to the new law, migrant workers can work
in South Korea for only three
years and for only one employer. Since migrant workers
cannot change their work place, the
employer basically has complete control over the wages and
working conditions of migrant
workers; thus these workers are bound to the employer like
slaves. The ETUMB and other
migrant workers were outraged by the South Korean
government’s actions thus they
conducted a sit-down demonstration in front of Myongdeung
Cathedral from November 15,
2003 to November 28, 2004.
Through these actions, migrant workers who were ‘invisible
and voiceless’ were
finally able to have their issues to the forefront of South
Korean society. More importantly, it
led to the formation of the Migrant Trade Union, an
independent union organized and lead by
migrant workers.
From the beginning, the South Korean government refused to
recognize the Migrant
Workers Trade Union (MTU) and publicly announced that the
MTU could not have the three
basic labor rights – the right to organize, the right to
strike, and the right to collective
bargaining. In addition, the South Korean government
launched an all-out campaign to
repress the MTU. During a press conference held by the MTU
to announce its formation,
immigration officials secretly videotaped the proceedings in
an effort to specifically target
migrant workers participating in the MTU. Clearly, the
arrest of President Anwar is a direct
attempt by the South Korean government to repress the MTU
and crackdown against migrant
workers in South Korea.
The recent repression by the South Korean government is not
new. The government
has consistently targeted migrant workers activists who have
been arrested and deported. In
2003, many migrant workers were labeled as ‘terrorists’ and
forcibly deported. Samar Thapa,
a key leader of the ETUMB and the Myongdeung sit-down
demonstration was ‘kidnapped’ in
broad day light by immigration officials and deported in an
effort to stop the mobilization
efforts by migrant worker.
Like all workers in South Korea, migrant workers should be
treated with dignity and
respect. Migrant workers should be guaranteed the same
fundamental labor rights that are
enjoyed by native workers. Despite the government crackdown
and threats of deportation, the
MTU will continue to organize and fight for the rights of
migrant workers. On behalf of more
than 400,000 workers in South Korea the MTU calls on the
South Korean government to stop
the crackdown against migrant workers and recognize the
labor rights of migrant workers.
The MTU, which is in fact a merger of several migrant
workers unions and groups in Seoul,
Incheon, Kyongido, is an effort by migrant workers in South
Korea to organize and fight for
their rights. The roots of MTU can be found in the Equality
Trade Union Migrants’ Branch
formed in 2001, to address discrimination and labor abuses
suffered by migrant workers and
the unjust immigration policy of the South Korean government
(S. Korea, 2005).
Labour Unions shouldn’t forget about their basic role and
purpose to defend workers,
to guarantee their labour rights. That is no matter where
those workers are from. The labour
rights are guaranteed to everybody according to
International Legislation and therefore
according to national laws. Although in today global world a
lot of political and different
countries problem might seemed influential to the different
parts of the our life. Therefore to
focus on the original purpose of the organization getting
even more important. Labour Unions
shouldn’t set and discuss the political issues that they
don’t have any influence on. Like it was
with one Labour Union that was discussing Iraqi War on its
plenary meeting, while there were
more related and more essential questions to solve, that
have the strong connection with the
purpose of the organization.
Part 4. What else can labour unions do about migration?
As trade unions develop both awareness and skills in the
understanding of issues,
many of these NGOs could provide models of research as well
as related data and insights.
Trade unions will need to increase their own expertise in
making the links between
macroeconomic practice and policy and the impact on the
ground for workers in the
construction, wood and forestry sectors. Reaching out to the
unorganized and vulnerable
needs to be a key part of ensuring the future relevance of
the trade union movement. This
requires a new effort on the part of unions, particularly in
the case of migrant workers. At
times, difficult issues may be involved.
Where possible, it would be helpful for unions in sending
and receiving countries to
strengthen their contacts concerning migrant labour, through
meetings and other regular
channels. In today’s increasingly connected world, such
contacts are easier than ever before
and should become a priority. There are some examples of
Indonesian migrant workers
organizing, with support from trade unions or NGOs. In Hong
Kong, Indonesian workers
recently marched and demonstrated in front of the Indonesian
consulate, raising issues of
protection and corruption. Unions in Malaysia have also made
some efforts to organize
among migrant workers. However the vulnerability of these
workers, when they seek to
organize, remains a major problem.
Although the concerns of migrant workers and workers in the
formal employment
sector may seem far apart, there are in fact some clear
linkages and common interests: (1)
Many trade union members in the formal urban economy come
from villages and areas that
also send workers abroad. There are family and community
ties linking trade unionists with
migrant workers. (2) The key issue of self-organization to
promote better working conditions,
which applies to the formal sector, can also be applied to
migrant workers, but new and
imaginative approaches are required. (3) Basic legislative
protection and enforcement, which
are critical for workers in the trade union movement, are
also critical for migrant workers. The
skills of unions in seeking to improve labour legislation
can be used to advance a legislative
framework favourable to migrant workers. (4) Respect for the
ILO’s fundamental principles
and rights at work applies to all workers. Unions need to
develop a strategy looking at how
they can help migrant workers, the key interventions
required, and how those interventions
can be made. The strategy should aim to increase protection
of workers before their departure,
whilst they are working abroad, and on their return.
In developing a strategy for migrant workers, unions need to
think about the role of
targeted education. Unions could use their education
activities in areas that send large
numbers of workers abroad, as a vehicle for reaching out to
communities directly involved in
migration. The skills and networks available to trade unions
should lend themselves to: (1)
working with NGOs and others who have a history of support
to migrants; (2) public
information campaigns; (3) providing advice to prospective
migrant workers prior to their
departure; (4) organizing and recruiting migrant workers;
(5) organizing support groups; (6)
monitoring and reporting abuses; and (7) improving
cooperation between trade unions in
sending and receiving countries.
Conclusion
It is not a simple task to formulate and implement practical
and effective policies
around migration, which take into account the needs of both
the receiving economic
community and the workers who make up a migrant labour pool.
Responses may be polarized.
One is described as the ‘open door’, and is based on
humanitarian principles of allowing entry
to any workers whose lives would be on patterns and
movements of workers and networks for
the gathering of information.
In response to economic globalization, trade unions are
organizing the globalization of
solidarity in defence of migrants. In summer 2005, after the
Malaysian Government’s brutal
expulsions of migrant workers, that was reported the inhuman
conditions inflicted upon
thousands of Filipino and Indonesian migrant workers in
detention camps, the Asia-Pacific
Regional Organization of the International Confederation of
Free Trade Unions, in
cooperation with the Malaysian Trades Union Congress, the
Bangladeshi ICFTU-BC and the
Trade Union Congress of the Philippines, asked Malaysian
Government to review its policy
and to ensure the protection of migrant workers, who are
vital to the country’s construction,
plantation and domestic service sectors. Than the major
French industrial group was accused
of anti-union harassment at one of its American plants, in
Indiana. So the French union
confederations CFDT, FO and CGT put some noisy public
pressure on the parent company. In
cooperation with the services and textile workers’
internationals UNI and ITGLWF, the
French unions denounced the expulsion threats made against
workers at the Indiana plant, for
the most part Hispanic immigrants, in a bid to stop them
from joining a union. If today’s
migrations know no frontiers, neither do today’s unions.
It’s difficult to identify specific areas of skill needed as
a basis for allowing migration.
There is often a time lapse, which can result in problems,
particularly given the up-and-down
nature of construction booms. However, there is an urgent
need to press for review and
sensible overhaul of most government policies. These
policies are impacting on the lives of
many workers in the construction industry in countries
around the region. International
Conventions and Agreements can provide standards and
benchmarks for the treatment of
workers. These are particularly relevant and can be applied
to legally migrating workers in
many countries. Ratification and implementation of these
agreements would provide a useful
framework for trade policies. However, while discrepancies
continue between immigration
policies and labour needs, illegal migration will also
continue. The causes of this problem
need to be highlighted while criminal operations are policed
and penalized. Essential to
dealing with the role of labour unions in defending and
contacting irregular migrants will be
recognizing the extent to which Asia-Pacific Governments do
or do not ratify established
international agreements. There are many national, regional
and global networks of NGOs
concerned with migration issues. Not all of these have a
direct focus on workers in the
construction industry.
Both immigration and its social effects to a society are
deeply influenced by the nature,
operation, and institutional structure of immigration. This
structure consists in its ideal form
of three main interrelated and complementary components - an
immigration policy, an
immigrant policy, and an ethnic relations policy - that
enhance the selectivity of immigration,
shape public conceptions, set up safeguards for social
interaction, and provide for required
adjustments between the host and immigrant populations.
As immigration flows are often influenced by the nature and
degree of economic ties
between the sending and receiving states, the new
immigration flow into Korea may be seen
partly as a consequence of the globalization of Korea's
economy. As Korean society expands
along with its economy and comes to incorporate increasingly
diverse elements, it is
important to learn how to effectively integrate these new
elements into the consensus-building
process if it is to escape its isolationist image and
maintain the integrity of the process itself.
The issues regarding foreign migrant workers represent a
unique and profound
challenge to the Korean people and their culture. Analysis
of the areas of immigration control
suggests that many of the socio-political forces that are
shaping international migration to
Korea today have deep historical and cultural roots. The
arrival of substantial numbers of
foreign workers may fundamentally challenge some of the
cultural assumptions of Korea,
particularly the images of social harmony and racial
homogeneity.
As in other areas of public policy-making, Korean
immigration policy has been
primarily shaped by administrative agencies. However, courts
have made some significant
rulings regarding the specific problem of foreign workers'
compensation. A group of publicinterest
lawyers and some social movement organizations are actively
engaged in promoting
public awareness in this area. Thus, immigration policy
provides some insight into the
shifting balance among actors in the policy process.
Traditional assumptions of state
dominance are being challenged at the margins by courts and
civil society.
International norms play an important role in providing
standards that can be used in
this policy area. Yet the current regime of international
human rights law falls short of
providing migrant workers comprehensive protection or
relief. While the resources necessary
to realize such protection can be found in the existing
corpus of law, Korea has thus far shown
little willingness to implement them. In the short term,
then, the effective incorporation of
international human rights principles into Korean case law
may require an indirect
incorporation approach, whereby international norms are used
to inform the interpretation of
Korean law.
Appendix 1. Countries receiving migrant workers.
Source: International Organization for Migrants.
Appendix 2. Foreigners in South Korea
Source: Ministry of Justice, International Crimes, 2005, p.
33
Total Legal Illegal Residence
Residence 16~60 yrs Total
Portion of illegal residence(%)
Total 693,697 483,746 187,908 209,951 27.1
China (Korean) 142,456 96,311 37,228 46,145 26.1
China (ethnic
Chinese)
114,139 66,533 43,354 47,606 38.0
Philippines 35,945 22,080 13,596 13,865 37.9
Indonesia 25.311 19,172 6,099 6,139 24.1
Thailand 28,498 16,611 11,729 11,877 41.2
Vietnam 34,376 23,390 10,944 10,986 31.8
Bangladesh 16,275 1,231 14,880 15,044 91.4
Mongolia 20,578 9,567 10,633 11,011 51.7
Russia 11,944 7,074 3,481 4,870 29.1
Uzbekistan 14,524 7,561 6,888 6,963 47.4
Pakistan 11,365 5,993 5,285 5,372 46.5
India 6,487 3,307 3,123 3,180 48.1
Sri Lanka 9,234 526 2,754 2,768 29.8
Nepal 5,608 3,474 2,131 2,134 38.0
Iran 1,815 472 1,334 1,343 73.5
Kazakhstan 3,378 2,071 1,276 1,307 37.8
Myanmar 3,378 1,550 1,820 1,828 53.9
Nigeria 1,690 661 1,020 1,029 60.4
Other 47,174 45,150 6,403 7,964 13.6
Countries receiving migrant workers
Country Migrants Population
USA 35 million 295 million
Russia 13.3 million 141.5 million
Germany 7.3 million 82.5 million
France 6.3 million 60.7 million
India 6.3 million 1.1 billion
References
Ansay T., 1977, Legal Problems of Migrant Workers. Recueil
des Cours 1, 8.
Choe, U.J., 1994, Status of foreign illegal workers. In:
Controlling Foreigners Seoul: Beop J.
Association.
Cholewinski, Ryszard, 1997, Migrant Workers in International
Human Rights Law: Their
Protection in Countries of Employment. Clarendon Press.
Oxford.
David, Natacha, 2002, Migrants get unions back to basics.
In: Migrant workers. Labour
Education, No. 129.
Flanagan, Stephen J., 2003, Labour standards and
international competitive advantage. In
International labour standards (eds Flanagan and Gould).
Stanford.
G.A. Res. 217A, U.N. GAOR, 3rd Sess., pt. 1, at 71, U.N.
Doc. A/810 (1948) [hereinafter
UDHR].
G.A. Res. 2200, U.N. GAOR, 21st Sess., Supp. No. 16, at 49,
U.N. Doc. A/6316 (1966)
[hereinafter ICESCR].
G.A. Res. 2200, U.N. GAOR, 21st Sess., Supp. No. 16, at 52,
U.N. Doc. A/6316 (1966)
[hereinafter ICCPR].
Hahm, Pyong-choon, 1987, The Korean Political Tradition and
Law. Seoul: Seoul Computer
Press.
Hanson, Gordon H., 2007, The Economic Logic of Illegal
Immigration. The Bernard and
Irene Schwartz Series on American Competitiveness. CSR NO.
26, Council on Foreign
Relations.
Joint Committee on Migrant Workers of Korea (JCMK), 1996,
The Situation of Foreign
Workers in Korea and Measures to Ensure Their Protection.
Kim, S.S., 1995, Human rights issues of foreign workers in
Korea. In: Citizen and Lawyers,
Seoul: Seoul Bar Association, vol. 12.
Kim, T.S., 2003, An Introduction to Constitutional Law.
Seoul: Bakyoung Publishing
Company.
Kritz M. M. and H. Zlotnik, 1992, Global Interactions:
Migration Systems, Processes, and
Policies. In: International Migration Systems: A Global
Approach (eds. Kritz, Lim and
Zlotnik), Oxford: Clarendon Press.
Kwon, Seung-Ho and Michael O’Donnel, 2001, The Chaebol and
Labour in Korea: The
Development of Management Strategy in Hyundai. Routledge.
Labour Unions are worrying about illegal migrants’ problem.
Radio-interview. (Russian)
[online; cited June 2005.] Available from URL:
http://www.radiomayak.ru/schedules/57/22173.html
Leary V., 1987, Migrant Workers and Human Rights. In:
Materials for the 18th Study Session
of the International Institute of Human Rights, Strasbourg,
France.
Lee, Jeong Hee, 2005, What Foreign Investors Don’t Know (but
Should) About Korean Trade
Unions. In: Korea Labor Review. vol. 1, No 2.
Lee, W.D. and K.S. Choi, 1998, Labor Market and Industrial
Relations in Korea: Retrospect
on the Past Decade and Policy Directions for the 21st
Century, Seoul: Korea Labor Institute.
Lee, W.D., 2001, Labor Policies in Korea, Seoul: Korea Labor
Institute.
Legal Reform in Korea (eds RoutledgeCurzon, Tom Ginsburg)
2004. New York.
Papademetriou, D. G. and P. L. Martin, 1991, Labor Migration
and Development: Research
and Policy Issues. In: The Unsettled Relationship: Labour
Migration and Economic
Development, n. 14.
Power J., 1978, Western Europe's Migrant Workers. In:
Minority Rights Group Report No. 28,
rev. ed. London: Minority Rights Group.
Ricca S., 1989, International Migration in Africa. Legal and
Administrative Aspects. Geneva:
International Labour Office.
Rogers R., 1985, Western Europe in the 1980s: The End of
Immigration? In: Guests Come to
Stay: The Effects of European Labour Migration on Sending
and Receiving Countries (eds.
Rogers), Boulder, Colorado: Westview Press.
Seol, D.H., 1999, Foreign Migrant Workers and Korean
Society, Seoul: Seoul National
University Press.
South Korea. Action Alert [online; cited May 2005.]
Available from URL:
http://houston.indymedia.org/news/2005/05/39980.php
South Korea. Migrant Workers Struggle. [online; cited June
2005.] Available from URL:
http://croatia.indymedia.org/news/2005/05/878.php
UN Commission on Human Rights, Sub-Commission on Prevention
of Discrimination and
Protection of Minorities, 1974, Exploitation of Labour
Through Illicit And Clandestine
Trafficking (eds. Warzazi), UN Doc. E/CN.4/Sub.2/351.
Vittin-Balima, Cécile, 2002, Migrant workers: The ILO
standards. In: Migrant workers.
Labour Education. No. 129.
Yoo, M.K., 1995, A study on the cultural adaptation of
foreign workers in Korea. In: Korean
Cultural Anthropology. 27.
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