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ACT ON FOREIGN WORKERS' EMPLOYMENT, ETC

ACT ON FOREIGN WORKERS' EMPLOYMENT, ETC.

Act No. 6967, Aug. 16, 2003

Newly Established by Act No. 6967, Aug. 16, 2003

Amended by Act No. 7327, Dec. 31, 2004

Amended by Act No. 7567, May 31, 2005

Amended by Act No. 7829, Dec. 30, 2005

Amended by Act No. 8218, Jan. 3, 2007

Amended by Act No. 8852, Feb. 29, 2008

CHAPTER

General Provisions

Article 1 (Purpose)

The purpose of this Act is to achieve the smooth supply and demand of manpower and the balanced development of the national economy by systematically introducing and managing foreign workers.

Article 2 (Definition of Foreign Worker)

The term "foreign worker" in this Act refers to a person who does not have a Korean nationality and works or intends to work in a business or workplace located in Korea for the purpose of earning wages: provided, that among foreigner workers who are granted a status of sojourn eligible for employment pursuant to Article 18 (1) of the Immigration Control Act, those determined by the Presidential Decree in consideration of the area of employment, period of stay, etc. shall be excluded.

Article 3 (Scope of Application, etc.)

(1) This Act shall apply to foreign workers and businesses or workplaces which employ or intend to employ foreign workers: provided that this provision shall not apply to seamen who work on board any ship under the Seamen Act and do not have a Korean nationality and ship owners who employ or intend to employ the said seamen.

(2) Matters not prescribed in this Act regarding the entry, - 2 -

stay, departure, etc. of foreign workers shall be governed by the Immigration Control Act.

Article 4 (Foreign Workforce Policy Committee)

(1) To deliberate and decide important matters concerning the employment management and protection of foreign workers, the Foreign Workforce Policy Committee (hereinafter referred to as "the Policy Committee") shall be established under the control of the Prime Minister.

(2) The Policy Committee shall deliberate and decide matters falling under the following subparagraphs:

1. Matters concerning the establishment of basic plans on foreign workers;

2. Matters concerning the types and size of businesses eligible for the introduction of foreign workers;

3. Matters concerning the designation and cancellation of a country entitled to send foreign workers (hereinafter referred to as "a sending country"); and

4. Other matters prescribed by the Presidential Decree. (3) The Policy Committee shall be comprised of not more than twenty members including one chairperson.

(4) The chairpersonship of the Policy Committee shall be assumed by the Director of the Office of the Prime Minister, and the Committee membership by the Vice Minister of Strategy and Finance; the Vice Minister of Foreign Affairs and Trade; the Vice Minister of Justice; the Vice Minister of Knowledge and Economy; the Vice Minister of Labor; the head of the Small and Medium Business Administration; and other Vice Ministers of central administrative agencies determined by the Presidential Decree.

(5) To efficiently operate the Policy Committee, the Foreign Workforce Employment committee (hereinafter referred to as "the Employment Committee") which deliberates in advance matters concerning the operation of the foreign worker employment system and the protection of the rights and interests of foreign workers shall be established under the Ministry of Labor.

(6) Necessary matters concerning the composition, functions and operation of the Policy Committee and the Employment Committee shall be prescribed by the Presidential Decree. Article 5 (Announcement etc. of Foreign Worker Introduction Plan) - 3 -

(1) The Minister of Labor shall establish a foreign worker introduction plan including matters described in each subparagraph of Article 4 (2) after deliberation and decision by the Policy Committee and announce the plan by March 31 every year according to the methods determined by the Presidential Decree.

(2) Notwithstanding the provisions of paragraph (1), the Minister of Labor may, if it is necessary to change the foreign worker introduction plan under paragraph (1) due to drastic changes in domestic employment situations such as unemployment increases, change the plan after deliberation and decision by the Policy Committee. In this case, the provisions of paragraph (1) shall apply mutatis mutandis to the methods of announcing the changed plan.

(3) The Minister of Labor may, if necessary, conduct a survey or research project in order to support foreign worker-related work and necessary matters concerning this shall be prescribed by the Presidential Decree.

CHAPTER

Employment Procedures for Foreign Workers

Article 6 (Efforts to Hire Native Workers)

(1) An employer who intends to hire a foreign worker shall first submit an employment announcement seeking native workers to an Employment Security Center (hereinafter referred to as "Employment Security Office") prescribed in Article 4 (1) of the Employment Security Act.

(2) The head of an Employment Security Office shall, upon receiving an employment announcement seeking native workers for vacant posts pursuant to paragraph (1), provide counseling and support for the employer to present adequate job requirements, and actively provide job placement services to ensure the preferential hiring of qualified native workers. (3) Deleted

(4) Deleted

Article 7 (Preparation of Roster of Foreign Job Seekers) - 4 -

(1) The Minister of Labor shall prepare a roster of foreign job seekers in consultation with the head of the government agency in charge of labor administration in a sending country designated pursuant to subparagraph 3 of Article 4 (2) under the conditions prescribed by the Presidential Decree : Provided, that in case there is no such an independent government agency in charge of labor administration in the sending country, the Minister of Labor shall designate a department which performs the closest function and consult with the head of the department after deliberation by the Policy Committee.

(2) When preparing a roster of foreign job seekers pursuant to paragraph (1), the Minister of Labor shall administer a Korean Language Proficiency Test (hereinafter referred to as "the Korean Language Proficiency Test") to use the test as criteria for selecting qualified foreign job seekers.

(3) The selection and cancellation of an agency responsible for administering the Korean Language Proficiency Test, the methods of implementing the test, and other necessary matters concerning the implementation of the Korean Language Proficiency Test shall be prescribed by the Presidential Decree.

Article 8 (Foreign Worker Employment Permit)

(1) An employer who has applied for domestic workers pursuant to Article 6 (1) and has been unable to hire workers regardless of the job introduction pursuant to Article 6 (2), shall apply for permission to employ foreign workers to an Employment Security Office under the conditions prescribed by the Ordinance of the Ministry of Labor. (2) The validity period of the application pursuant to paragraph (1) is three months. However, if there are difficulties in hiring new workers because of temporary management difficulties, etc., the validity period may be extended one time pursuant to the Presidential Decree.

(3) Upon receiving an application pursuant to paragraph (1), the head of the Employment Security Office shall recommend qualified candidates among those registered in the roster of foreign job seekers under Article 7 (1) for the employers who meet the conditions prescribed by the Presidential Decree - 5 -

including the type, size, etc. of a business that can hire foreign workers.

(4) The head of the Employment Security Office shall immediately issue an employment permit bearing the name of a selected foreign worker to the employer who has selected a qualified foreign worker from among those recommended pursuant to paragraph (3).

(5) Other necessary matters concerning the issuance and management of a foreign worker employment permit prescribed in paragraph (4) shall be prescribed by the Presidential Decree.

(6) No one other than the Employment Security Office shall be involved in the process of hiring foreign workers including the selection and placement thereof.

Article 9 (Labor Contract)

(1) In case an employer intends to employ the foreign worker selected pursuant to Article 8 (4), the employer shall sign a labor contract with the foreign worker by using the standard labor contract form prescribed by the Ordinance of the Ministry of Labor.

(2) An employer who intends to sign a labor contract pursuant to paragraph (1) may have a proxy determined by the Presidential Decree conduct the process. (3)The term of the labor contract shall not exceed one year: provided, that the labor contract may be renewed for a period not exceeding that prescribed in Article 18 (1), and in this case, the term of each renewed contract shall not exceed one year. (4) Necessary matters including the signing procedure of the labor contract pursuant to paragraph (1) and its effectuation etc. shall be determined according to the Presidential Decree.

Article 10 (Certificate for Visa Issuance)

An employer who has signed a labor contract with a foreign worker pursuant to Article 9 (1) may apply for a certificate for visa issuance to the Minister of Justice on behalf of the foreign worker concerned pursuant to Article 9 (2) of the - 6 -

Immigration Control Act.

Article 11 (Employment Training for Foreign Workers) (1) Foreign workers shall receive training (hereinafter referred to as "the employment training for foreign workers") which is provided by organizations determined by the Presidential Decree to learn matters necessary for employment, within a period determined by the Ordinance of the Ministry of Labor after entering Korea.

(2) An employer shall enable foreign workers to receive the employment training for foreign workers.

(3) The hours and contents of the employment training for foreign workers and other matters necessary to provide the employment training for foreign workers shall be prescribed by the Ordinance of the Ministry of Labor.

Article 12 (Special Cases Concerning Employment of Foreign Workers) (1) A business or the employer of a workplace falling under any of the following subparagraphs may employ a foreigner who have entered after obtaining a special employment certificate pursuant to paragraph (4) and a visa determined by the Presidential Decree and intend to be employed in Korea. In this case, the provisions of Article 6 and 9 shall apply mutatis mutandis to the employment process of a foreign worker.

1. Businesses or workplaces in the construction industry, determined by the Policy Committee in consideration of labor market situations for daily workers, the possibility of undermining employment opportunities for native workers, the size of workplace, etc.; and

2. Businesses or workplaces in the service, manufacturing, agriculture, and fishing industry, determined by the Policy Committee in consideration of industry-specific characteristics. (2) Foreigners prescribed in paragraph (1), who intend to be employed in the businesses or workplaces falling under each subparagraph of paragraph (1), shall submit a job-seeking application to an Employment Security Office after completing the employment training for foreign workers, and the Minister of Labor shall manage them by including them in a roster of foreign job seekers.

(3) The employer under paragraph (1) shall employ a foreign worker among those registered in the roster of foreign job seekers pursuant to paragraph (2) and report this to the Minister of Labor under the conditions prescribed by the Ordinance of the Ministry of Labor when the foreign worker - 7 -

starts to work.

(4) An employer who has applied for domestic workers pursuant to Article 6 (1) and has been unable to hire workers regardless of the job introduction of the head of the Employment Security Office, shall apply for the issuance of a special employment certificate to employ foreign workers to the head of the Employment Security Office under the conditions prescribed by the Ordinance of the Ministry of Labor. In this case, the head of the Employment Security Office shall issue a special employment certificate to the employers who meet the conditions prescribed by the Presidential Decree including the type, size, etc. of a business that can hire foreign workers. (5) The validity period of a special employment certificate is three years. However, in the case of a business falling under paragraph (1) 1 or workplace whose construction period is less than three years, the validity period shall be the construction period.

(6) Other necessary matters concerning the issuance, management, etc. of a foreign worker employment permit shall be prescribed by the Presidential Decree.

(7) The provisions of Article 21 of the Immigration Control Act shall not apply to a foreign worker under paragraph (1).

CHAPTER

Employment Management of Foreign Workers

Article 13 (Departure Guarantee Insurance and Trust) (1) A business or the employer of a workplace hiring a foreign worker (hereinafter referred to as "employer") shall take out insurance or trust (hereinafter referred to as "departure guarantee insurance") with the foreign workers as the insured or beneficiaries in order to provide severance pay to foreign workers due to causes such as the departure, etc. of the foreign worker. In this case, the employers shall pay or entrust the payment of the monthly premium or trust amount. (2) If an employer takes out departure guarantee insurance, - 8 -

etc. pursuant to paragraph (1), the employer shall be deemed to have put in place a severance pay system pursuant to Article 8 (1) of the Employee Retirement Benefit Security Act. (3) Other necessary matters concerning employers required to take out departure guarantee insurance, etc., subscription methods, contents, management and payment, etc. shall be prescribed by the Presidential Decree. Article 14 (Health Insurance)

In applying the National Health Insurance Act, an employer and foreign workers employed by the employer shall be regarded as the employer under Article 3 of the Act and the workplace-based policyholders under Article 6 (1) of the Act, respectively.

Article 15 (Return Cost Insurance and Trust)

(1) A foreign worker shall take out return cost insurance or trust in order to finance the costs of returning to his/her home country.

(2) Other necessary matters concerning the subscription methods, contents, management and payment of the insurance and trust prescribed in paragraph (1) shall be prescribed by the Presidential Decree.

Article 16 (Measures Necessary for Return)

An employer shall take necessary measures, such as paying money and other valuables such as wages, etc. if foreign workers return to their home country due to the termination of employment relationships, expiration of period of sojourn, etc. Article 17 (Employment Management of Foreign Workers) (1) An employer shall, when the labor contract is cancelled or when there are other reasons prescribed by the Presidential Decree such as changes in important employment-related matters, report this to the Minister of Labor under the conditions prescribed by the Ordinance of the Ministry of Labor.

(2) Other necessary matters concerning the appropriate employment management of foreign workers, etc. shall be prescribed by the Presidential Decree.

Article 18 (Restrictions on Employment)

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(1) A foreign worker may work for three years from the date of his/her entry.

(2) A foreigner who has left after having been employed in Korea shall not be reemployed pursuant to this Act, if six months have not passed since the date of his/her departure.

Article 18-2 (Special Cases of Restrictions on Employment) (1) If an employer makes a request before the foreign worker, who has been employed in the Republic of Korea pursuant to this Act and whose employment period of three years has expired, leaves the Republic of Korea, the period stipulated by Article 18 (2) may be reduced as prescribed by the Presidential Decree for the relevant foreign worker. (2) Article 7 (2) and Article 11 shall not be applied to the foreign worker who reenters the Republic of Korea and is employed pursuant to paragraph (1).

(3) Other necessary matters such as employer's request procedure, etc. in relation to paragraph (1) may be prescribed by the Ordinance of the Ministry of Labor. Article 19 (Cancellation of Foreign Worker Employment Permit) (1) In case an employer falls under any of the following subparagraphs, the Minister of Labor may issue an order to cancel the foreign worker employment permit prescribed in Article 8 under the conditions prescribed by the Presidential Decree:

1. In case an employer has violated wages and other labor conditions promised in a contract made before entry;

2. In case maintaining a labor contract is considered difficult due to overdue wages and the employer's violation of other labor-related laws; or

3. In case an employment permit is obtained in false or other fraudulent ways.

(2) An employer subject to the cancellation of a foreign worker employment permit under paragraph (1) shall terminate a labor contract with the foreign worker concerned within fifteen days from the date of receiving the order. Article 20 (Restrictions on Employment of Foreign Workers) (1) The Minister of Labor may restrict employers who fall under any of the following subparagraphs from employing foreign workers for three years from the date of the incident:

- 10 -

1. Those who employ foreign workers without obtaining an employment permit pursuant to Article 8 (4);

2. Those whose employment permit has been cancelled pursuant to Article 19 (1);

3. Those who have been punished for violating This Act or the Immigration Control Act; or

4. Those who have other reasons determined by the Presidential Decree.

(2) In the case of restricting the employment of foreign workers pursuant to paragraph (1), the Minister of Labor shall give a notice to the employer concerned under the conditions prescribed by the Ordinance of the Ministry of Labor. Article 21 (Implementation of Projects Related to Foreign Workers) The Minister of Labor shall carry out the following projects with a view to facilitating the employment of foreign workers and effectively managing their employment:

1. A project to assist with the entry and departure of foreign workers;

2. A project to educate foreign workers and their employers;

3. A project to promote cooperation with related public agencies of sending countries and private groups related to foreign workers;

4. A project to offer services, such as counseling, to foreign workers and their employers;

5. A project to publicize the foreign worker employment system; and

6. Other projects concerning the employment management of foreign workers, prescribed by the Presidential Decree. CHAPTER

Protection of Foreign Workers

Article 22 (Prohibition of Discrimination)

An employer shall not give unfair and discriminatory treatment to foreign workers on grounds of their status. Article 23 (Taking out Guarantee Insurance, etc.) (1) A business or the employer of a workplace prescribed - 11 -

by the Presidential Decree in consideration of business size and industry-specific characteristics shall take out guarantee insurance to cover their foreign workers against overdue wages. (2) Foreign workers employed in the businesses or workplaces determined by the Presidential Decree in consideration of industry-specific characteristics shall take out casualty insurance to cover themselves against any illness or death.

(3) Other necessary matters concerning the subscription methods, contents, management and payment of the guarantee insurance and casualty insurance under paragraphs (1) and (2) shall be prescribed by the Presidential Decree.

Article 24 (Support for Foreign Workers-related Organizations, etc.) (1) The government may support an organization or group which offers foreign workers counseling, education and other services prescribed by the Presidential Decree with part of the necessary costs of providing the services within the limit of available budgets.

(2) Other necessary matters concerning requirements, criteria, procedures, etc. for application for the support prescribed in paragraph (1) shall be prescribed by the Presidential Decree. Article 25 (Permission for Change of Business or Workplace) (1) In case a foreign worker is difficult to continue his/her normal employment relationship in a business or workplace due to situations falling under any of the following subparagraphs, the foreign worker may apply to an Employment Security Office for a transfer to other businesses or workplaces under the conditions prescribed by the Ordinance of the Ministry of Labor:

1. In case an employer intends to cancel a labor contract during the contract period or to reject the renewal of a contract after its expiration for justifiable reasons;

2. In case it is deemed impossible to continue to work in a workplace because of business shutdown, closure and other reasons not attributable to the foreign worker;

3. In case an employment permit is cancelled or any restriction is imposed on the employment of foreign workers pursuant to Article 19 (1) and Article 20 (1), respectively; and

4. In case there are other reasons prescribed by the Presidential Decree.

(2) The provisions of Articles 6, 8 and 9 shall apply mutatis - 12 -

mutandis to procedures for and methods of the reemployment of a foreign worker after he/she applies for a change of business or workplace pursuant to paragraph (1).

(3) In case a foreign worker has failed either to obtain permission to change his/her workplace pursuant to Article 21 of the Immigration Control Act within two months of applying for a change of business or workplace pursuant to paragraph (1), or to apply for a change of business or workplace within one month of the termination of his/her labor contract with the employer, the foreign worker shall depart from Korea. (4) A foreign worker shall not transfer to other businesses or workplaces as prescribed in paragraph (1), in principle, more than three times during the period of sojourn prescribed in Article 18 (1): provided, that this shall not apply in case there are inevitable reasons prescribed by the Presidential Decree. CHAPTER

Supplementary Provisions

Article 26 (Report and Investigation, etc.)

(1) The Minister of Labor may, if deemed necessary, order employers, foreign workers or foreign workers-related groups supported pursuant to Article 24 (1) to make a report, submit related documents and do other necessary things, and have the public official concerned ask questions to a related person or investigate or inspect related account books, documents, etc. (2) The public official who conducts investigation or inspection pursuant to paragraph (1) shall carry an identification showing his/her status and show it to the relevant person. Article 27 (Collection of Fees, etc.)

(1) A person who conducts signing of a labor contract for an employer and a foreign worker as proxy pursuant to Article 9 (2) (including a case where the provisions are applied mutatis mutandis under Article 12 (1)) may receive fees and other necessary expenses from the employer under the conditions prescribed by the Ordinance of the Ministry of Labor. (2) The Minister of Labor may, if it is necessary to carry out projects related to foreign workers as proxy pursuant to - 13 -

Article 21, collect fees and other necessary expenses from the employer under the conditions prescribed by the Ordinance of the Ministry of Labor.

(3) No one aside from a person who conducts signing of a labor contract between an employer and a foreign worker pursuant to Article 9 (2) (including a case where the provisions are applied mutatis mutandis under Article 12 (1)) or a person who is entrusted or delegated to carry out projects related to foreign workers pursuant to Article 28 shall receive any money and other valuables in return for conducting the signing a labor contract as proxy or carrying out projects related to foreign workers.