Labor Rights of Foreign Trainees of Industrial Technology

[19-2 KCCR 297, 2004 Hun-Ma 670, Aug. 30, 2007]

In this case, the Constitutional Court declared unconstitutional the regulation of Ministry of Labor which intruded upon the right to equality of foreign trainees of industrial technology by applying only some parts of Labor Standard Act to foreign trainees of industrial technology.

Background of the Case

Some provisions of the regulation of Ministry of Labor entitled 'Guideline for the Protection and Supervision of Foreign Trainee of Industrial Technology' (hereinafter, 'the regulation of Ministry of Labor in this case') protected foreign trainees of industrial technology (hereinafter, 'industrial trainees') with the prohibition of assault and forced labor, the guarantee of minimum wage and the guarantee of industrial security and health. However, they did not include to protect the retirement allowance, preference payment of wage debt, yearly vacation with payment, the protection of pregnant worker in Labor Standard Act.

The complainant, who had come to Korea in March 2004 as an industrial trainee, brought a suit against the regulation of Ministry of Labor claiming that the regulation was unconstitutional because it discriminated against industrial trainees in favor of Korean workers and foreign workers who were not industrial trainees.

Summary of the Opinions

The Constitutional Court, by a 7:2 decision, declared the regulation of Ministry of Labor unconstitutional and the summary of the reasoning is as follows.

1. Summary of the Majority Opinion by Seven Justices

A.The labor rights includes not only "a right for a working seat" but also "a right for a working environment." Since the latter has a character of liberty to defend the infringement upon the human dignity, it includes

the right to claim a healthy working environment, a just reward for work, and the guarantee of reasonable working conditions and a foreign worker could enjoy this right. In other words, according to concrete contents of labor right, the right to demand social and economic policies to the government for the acceleration of employment is the social right which should be applied to Korean people. However, since the right to claim a minimum working condition for the workers in order to secure basic means of living and get their human dignity guaranteed under capitalistic economic order has a character as a liberty right, it would be appropriate that a foreign worker could enjoy the right in this case.

B.If an administrative regulation is applied repeatedly as a standard of exercising discretionary power to be an administrative custom, the administrative agency would be placed under self-restraint to follow the regulation according to the principle of equality and the principle of the protection of trust, and the exercise of power in this case by the administrative agency becomes the exercise of governmental authority with external binding force.

The chief of local government office does administrative guidance so that the employers may follow the regulation of Ministry of Labor in this case, requires the trainee recommending organization for necessary measures when the employer violates the administrative guidance, and should exercise the competence of special supervision and take measures against the violation according to the concerned provisions. On the other hand, the employer is the object of protection in Labor Standard Act and any measures above cannot be taken when the employer violates something that is not prohibited by the regulation of Ministry of Labor and the chief of local government office cannot help repeating such administrative practices against all the employers due to the principle of equality and the principle of the protection of trust. Accordingly, the regulation above becomes the exercise of governmental power with external binding force.

Further, the regulation of Ministry of Labor in this case has the possibility to intrude upon the basic rights of the complainants such as the right to equality since the regulation protects only some matters in Labor Standard Act. Therefore, the regulation of Ministry of Labor is the exercise of the governmental power with external binding force, has the

possibility to intrude upon the basic right, and, accordingly, becomes the subject of constitutional complaint.

C.It is difficult to find reasonable grounds that essential particulars of labor standards guaranteed by Labor Standard Act are not applied to foreign industrial trainee even when the industrial trainees are practically in labor relationships offering their services such as having directions and supervision from the employer under the pretext of training, rendering their services, and receiving money under the name of allowances. Especially, according to official notice by the Small & Medium Business Administration, only the companies equipped with various conditions concerning the employer's ability to observe Labor Standard Act including the employer's ability to observe law and the government's ability to supervise labor can be selected as training company. Hence, it must be irrational discrimination that such companies exclude industrial trainee from the workers to whom all the provisions in Labor Standard Act are applied. According to Article 5 of Labor Standard Act and Article 4 of 'International Covenant on Economic, Social and Cultural Rights of United Nations,' only a statute can limit 'the right to enjoy equal labor conditions on the labor of same value.' In this case, not a statute but an administrative regulation limits the right, and, therefore, it is against the principle of limiting the rights by law. For the reasons, the regulation of Ministry of Labor in this case infringes upon the right to equality of the complainant.

2. Summary of the Dissenting Opinion by Two Justices

The regulation of Ministry of Labor in this case directly binds the chief of local labor office. Hence, although the chief of local labor office is bound to follow the regulation above in the relations to the employer by the administrative practice, that does not mean the regulation itself directly change the right-duty relations of industrial trainees and give effect to their legal status as the norm with external binding force.

The the regulation of Ministry of Labor in this case which excludes industrial trainee from the application of some of the Labor Standard Act is not about the exercise of discretionary power but about the application scope of Labor Standard Act. Hence, we cannot admit its external binding

force by the legal principle of self-binding. The regulation above has no legal effect although it arbitrarily restricts the application scope of Labor Standard Act to industrial trainee with no legal foundation.

Therefore, the regulation of Ministry of Labor in this case does not belong to the case when the exercise of governmental power can intrude upon the people's constitutional rights, so we dismiss the claim.

Aftermath of the Decision

The government abolished the foreign industrial trainee system in January 1, 2007 and adopted 'the employment sanction system‘ which equally guaranteed the basic rights in Labor Standard Act such as retirement allowances and vacation for foreign workers as well. Therefore, the improvement in the level of system has already come true. However, since the industrial trainee system was supposed to exist until the end of the year of 2007, some of the industrial trainee come to be benefited from this decision by the Constitutional Court. In addition, this decision means a foreign worker should be protected equally in terms of labor rights with Korean workers, and that seems to give big impact on other polices concerned with foreign workers (Hankyoreh Newspaper, August 31, 2007).