Act On Foreign Workers' Employment, Etc.

ACT ON FOREIGN WORKERS’ EMPLOYMENT, ETC. Act No. 6967, Aug. 16, 2003

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

CHAPTER Ⅰ 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, 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,

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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 Minister of the Office for Government Policy Coordination, and the Committee membership by the Vice Minister of Finance and Economy; the Vice Minister of Foreign Affairs and Trade; the Vice Minister of Justice; the Vice Minister of Commerce, Industry and Energy; 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) (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 October 1 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

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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 Ⅱ 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 Center”) prescribed in Article 4 (1) of the Employment Security Act. (2) The head of an Employment Security Center 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) The head of an Employment Security Center shall issue a document confirming labor shortages following the conditions determined by the Presidential Decree and the procedures prescribed by the Ordinance of the Ministry of Labor, in case the applicant under paragraph (1) fails to hire workers notwithstanding the placement effort prescribed in paragraph (2). (4) The document confirming labor shortages issued pursuant to paragraph (3) shall be valid for three months and its validity may be extended one time under the conditions prescribed by the Presidential Decree. Article 7 (Preparation of Roster of Foreign Job Seekers) (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 - 595 -

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 of an agency responsible for administering the Korean Language Proficiency Test pursuant to paragraph (2), 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 obtained a document confirming labor shortages pursuant to Article 6 shall apply for permission to employ foreign workers to an Employment Security Center under the conditions prescribed by the Ordinance of the Ministry of Labor. (2) Upon receiving an application pursuant to paragraph (1), the head of an Employment Security Center shall recommend qualified candidates among those registered in the roster of foreign job seekers under Article 7 (1). (3) The head of an Employment Security Center 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 (2). (4) Other necessary matters concerning the issuance and management of a foreign worker employment permit prescribed in paragraph (3) shall be prescribed by the Presidential Decree. (5) No one other than an Employment Security Center 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 (3), the employer shall sign a labor contract with the foreign worker by using the - 596 -

standard labor contract form prescribed by the Ordinance of the Ministry of Labor. In this case, other necessary matters concerning procedures for signing a labor contract and its effective date shall be prescribed by the Presidential Decree. (2) 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. 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 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 foreigners who have entered after obtaining a visa determined by the Presidential Decree and intend to be employed in Korea: 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, and the size of workplace; and 2. Businesses or workplaces in the service industry, determined by the Policy Committee in consideration of industry-specific characteristics.

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(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 Center 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 provisions of Articles 6, 8 and 9 shall apply mutatis mutandis to matters concerning procedures for the employment of foreign workers pursuant to paragraph (1): Provided that matters concerning procedures for the employment of foreign workers by the businesses or workplaces prescribed in paragraph (1) 1 shall be separately prescribed by the Presidential Decree. (4) The head of an Employment Security Center shall issue an Employment Permit Certificate under the conditions prescribed by the Ordinance of the Ministry of Labor, to foreign workers who qualify for the criteria set forth by the Presidential Decree and intend to be employed in the businesses or workplaces prescribed in paragraph (1) 1, among those who have submitted a job-seeking application pursuant to paragraph (2). (5) Foreign workers who have either made a labor contract with the employers of the businesses or workplaces prescribed in paragraph (1) 2, or obtained an Employment Permit Certificate pursuant to paragraph (4) shall obtain permission to change their status of sojourn into one eligible for employment pursuant to Articles 18 (1) and 24 of the Immigration Control Act. (6) The provisions of Article 21 of the Immigration Control Act shall not be applied to foreign workers who have obtained permission to change their status of sojourn after receiving an Employment Permit Certificate pursuant to Article 4.

CHAPTER Ⅲ Employment Management of Foreign Workers Article 13 (Departure Guarantee Insurance and Trust) (1) A business or the employer of a workplace hiring foreign workers (hereinafter referred to as “employer”) shall take out departure guarantee insurance or departure guarantee lump-sum trust with his/her foreign workers as the insured or

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beneficiaries. (2) If an employer takes out departure guarantee insurance or departure guarantee lump-sum trust pursuant to paragraph (1), the employer shall be deemed to have put in place a severance pay system pursuant to Article 34 of the Labor Standards Act. (3) Other necessary matters concerning employers required to take out departure guarantee insurance or lump-sum trust, subscription methods, contents, management and payment 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 a foreign worker begins to work after entering Korea, 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 shall be prescribed by the Presidential Decree. Article 18 (Restrictions on Employment) (1) A foreign worker may work for three years from the - 599 -

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 one year has not passed since the date of his/her departure. 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: 1. Those who employ foreign workers without obtaining an employment permit pursuant to Article 8 (3); 2. Those whose employment permit has been cancelled pursuant to Article 19 (1); 3. Those who have been punished for violating 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:

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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 Ⅳ 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 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,

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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 Center 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 mutatismutandis 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.

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CHAPTER Ⅴ 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) The Minister of Labor may, if it is necessary to carry out projects related to foreign workers pursuant to Article 21, collect fees and other necessary expenses under the conditions prescribed by the Ordinance of the Ministry of Labor. Article 28 (Delegation and Entrustment of Authority) In accordance with the conditions prescribed by the Presidential Decree, the Minister of Labor may delegate part of the authority given under this Act to the head of a regional labor office or entrust it to the Human Resources Development Service of Korea under the Act on Human Resources Development Service of Korea or to the person prescribed by the Presidential Decree.

CHAPTER Ⅵ Penal Provisions Article 29 (Penal Provisions) A person who falls under any of the following subparagraphs shall be punished by imprisonment of up to one year or a fine not exceeding 10 million won: 1. A person who is involved in the selection, placement and hiring of foreign workers in violation of Article 8 (5); 2. A person who fails to take necessary measures required for foreign workers to return to their home country in - 603 -

violation of Article 16; 3. A person who fails to terminate a labor contract with a foreign worker in violation of Article 19 (2); and 4. A person who obstructs the change of business or workplace prescribed in Article 25. Article 30 (Penal Provisions) A person who falls under any of the following subparagraphs shall be punished by a fine not exceeding 5 million won: 1. A person who fails to sign a labor contract using the standard labor contract form in violation of Article 9 (1); 2. A person who fails to take out departure guarantee insurance or lump-sum trust in violation of Article 13 (1); and 3. A person who fails to take out the guarantee insurance or casualty insurance prescribed in Article 23. Article 31 (Joint Penal Provisions) If a representative of a corporation or an agent, an employee or any other hired person of a corporation or an individual commits an offense as prescribed in Articles 29 and 30 in connection with the business of the corporation or individual, the fine prescribed in respective Articles shall be imposed on the corporation or individual, in addition to punishment of the offender. Article 32 (Fine for Negligence) (1) A person who falls under any of the following subparagraphs shall be punished by a fine for negligence not exceeding 1 million won: 1. A person who violates the provisions of Article 11 (2); 2. A person who fails to take out insurance or trust in violation of Article 15 (1); 3. A person who either fails to report or makes a false report in violation of Article 17 (1); and 4. A person who, not complying with the provisions of Article 26 (1), fails to report or makes a false report, fails to submit related documents or submits false documents, or refuses, obstructs or avoids the questions, investigation or inspection prescribed in the same paragraph. (2) The fine for negligence prescribed in paragraph (1) shall be imposed and collected by the Minister of Labor under the conditions prescribed by the Presidential Decree. (3) Any person who is dissatisfied with the imposition of a

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fine for negligence prescribed in paragraph (2) may raise an objection to the Minister of Labor within thirty days from the date of notifying the person of the imposition. (4) If a person who is subject to the imposition of a fine for negligence prescribed in paragraph (2) raises an objection pursuant to paragraph (3), the Minister of Labor shall, without delay, notify the competent court of this fact and the competent court shall, upon receiving the notification, try the case of a fine for negligence under the Non-Contentious Case Litigation Procedure Act. (5) If no objection is raised and no fine for negligence is paid within the period referred to in paragraph (3), the said fine for negligence shall be collected according to the examples of the collection of national taxes in arrears.

Addenda Article 1 (Enforcement Date) This Act shall enter into force one year after its promulgation: provided that the provisions of Articles 4, 5 and 7 (1) of the Act and Article 2 of the Addenda shall take effect on the date of promulgation and the provisions of Article 7 (2) and (3) shall take effect two years after its promulgation. Article 2 (Special Cases Concerning Illegal Foreign Workers) (1) A foreign worker who stays in Korea in violation of Article 17 (1) or 18 (1) of the Immigration Control Act but meets the following criteria shall be permitted to be employed in the business or workplace for up to two years, if the total period of his/her stay does not exceed five years, and the Minister of Justice shall grant the foreign worker the status of sojourn eligible for employment prescribed in Article 18 (1) of the Immigration Control Act: 1. A person who had stayed in Korea for less than three years as of March 31, 2003; 2. A person who are employed in the types of businesses determined and announced by the Minister of Labor and has received an employment confirmation letter from an Employment Security Center; and 3. A person who has reported his/her stay in Korea following the procedures determined by the Minister of Justice. (2) If a foreign worker who stays in Korea in violation of Article 17 (1) or 18 (1) of the Immigration Control Act and

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meets the following criteria voluntarily leave Korea within the period determined by the Minister of Justice, the provisions of Articles 95 (5) and 102 of the Immigration Control Act shall not be applied; the foreign worker shall be permitted to be employed in the business or workplace where he/she was originally employed prior to his/her departure, as long as the total period of his/her stay including that before departure does not exceed five years; and the Minister of Justice shall grant this foreign worker the status of sojourn eligible for employment prescribed in Article 18 (1) of the Immigration Control Act: 1. A person who had stayed in Korea for more than three years but less than four years as of March 31, 2003; 2. A person who are employed in the types of businesses determined and announced by the Minister of Labor and has received an employment confirmation letter from an Employment Security Center; and 3. A person who has reported his/her stay in Korea following the procedures determined by the Minister of Justice. (3) The provisions of Articles 6 through 13, 15, 18 (1), and 23 shall not apply to foreign workers employed in Korea pursuant to Articles 1 and 2. (4) Those who violate the provisions of Articles 17 (1) and 18 (1) of the Immigration Control Act but do not fall under paragraphs (1) and (2) shall voluntarily leave Korea within the period determined by the Minister of Justice, and in this case, the provisions of Articles 94 (5) and 102 of the Immigration Control Act shall not be applied to those who have voluntarily left Korea. Article 3 (Revision of Other Laws) The Act on Human Resources Development Service of Korea shall be amended as follows: The Item 10-2 of Article 6 shall be newly inserted as follows : 10-2. Mandate entrusted to the HRD Service of Korea pursuant to Article 28 of the Act on Foreign Workers' Employment, etc.

Addendum This Act shall promulgation.

enter

into

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force

six

months

after

its