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Intent to Encourage Birth Rates… Foreign Domestic Helpers Exempted from Minimum Wage, Paid 1 Million KRW per Month
Legal community points to conflicts with existing laws and possible unconstitutionality
Representative Cho Jung-hoon (Transition Korea) introduced a bill at the National Assembly on the 21st, proposing “foreign domestic helpers at 1 million KRW per month without minimum wage protection” as a solution to Korea’s low birthrate problem.
The bill contains provisions excluding foreign domestic helpers from the application of the minimum wage. Critics argue this amounts to “labor discrimination” and raises constitutional concerns. After interviewing legal experts, this outlet found that many in the legal field pointed to the bill’s potential unconstitutionality.
That day, Rep. Cho noted, “The government has poured 380 trillion KRW into solving the low birthrate problem, yet the number of newborns continues to decline,” criticizing that, “From the perspective of young people, no practical solutions to the problem have been presented.” He therefore proposed introducing “foreign domestic helpers at 1 million KRW per month without minimum wage protection.”
At the core, the bill defines foreign domestic workers as domestic employees excluded from the Minimum Wage Act. Rep. Cho argues that activating the hiring of foreign domestic helpers in this way could help raise birth rates.
As an example, he cited Singapore, which introduced a “low-wage foreign domestic worker system” in 1978. There, foreign domestic workers earn between 700,000 and 1 million KRW monthly, helping young Singaporeans balance work and family. He stressed that Korea should adopt a similar system.
Cho’s “Domestic Helper Bill” May Conflict with Labor Law
Critics argue that Cho’s bill could conflict with Article 6 of the Labor Standards Act, which stipulates: “Employers shall not discriminate based on sex, nationality, creed, or social status in working conditions.”
Since Cho’s bill differentiates working conditions (minimum wage) by nationality, conflicts may arise.
In response, Rep. Cho said after a press briefing that the bill does not conflict with Article 6, citing Article 11(1) of the Labor Standards Act: “This Act shall apply to all businesses employing five or more workers. However, it shall not apply to businesses employing only family members living together, or to domestic employees.”
Similarly, Article 3 of the Minimum Wage Act states: “This Act shall apply to all businesses employing workers. However, it shall not apply to businesses employing only family members living together, or to domestic employees.”
Thus, Rep. Cho argues that domestic workers are already excluded in part from labor standards and minimum wage laws, making foreign domestic workers an exceptional category.
Attorney Kim Won-kyu of the Migrant Legal Support Center “MOMO,” however, pointed out that since June 2022, under the Domestic Workers Act, domestic workers are recognized as legal employees entitled to minimum wage, social insurance, and severance pay.
Kim noted that if workers are employed through domestic service agencies, “they are defined as domestic workers under the law and are in principle covered by the Labor Standards Act.” He added that while exceptions exist, “they are not excluded from the Minimum Wage Act.”
Principle of Special Law Priority
Several legal professionals observed that even if Cho’s bill conflicts with other laws, it could still be applied under the principle of special law priority, whereby special laws override general laws.
For example, under the Seafarers Act, sailors are not covered by the general Minimum Wage Act. Article 3 of the Minimum Wage Act states: "This Act shall not apply to sailors governed by the Seafarers Act or to shipowners employing them.”
Violation of Equality Rights – Possible Unconstitutionality
Some legal experts emphasized that beyond statutory conflicts, the bill could face constitutional challenges.
Attorney Kim, who previously worked at the National Human Rights Commission, said: “The core issue is the idea that foreigners can be paid less simply because of nationality. This directly contradicts the principle of equality guaranteed by the Constitution.”
He argued the bill conflicts with Article 11 of the Constitution: “All citizens are equal before the law. No one shall be discriminated against in political, economic, social, or cultural life for reasons of sex, religion, or social status.”
Kim predicted that even if the bill passes, it would likely face constitutional review and be struck down as unconstitutional.
Attorney Kim Wi-jung of Law Firm Majung also stated: “This could amount to a violation of equality rights. Although the Constitutional Court is generally conservative on such matters, it is still worth raising as an issue.”
He added, “Applying different wages solely based on foreigner status undermines the principle of equal pay for equal work. The bill is likely to face challenges both at the Legislation and Judiciary Committee and at the Environment and Labor Committee.”
On the other hand, Attorney Yoo Jae-won of Law Office Mayday argued the bill may not be unconstitutional.
He explained, “The Constitution must be interpreted organically with other provisions. In wage and working condition matters, which relate to social rights, there is room for flexible interpretation under special laws. Even if Article 11 seems violated, compliance with Articles 32 and 33 could suffice to avoid unconstitutionality.”
Attorney Lee Ye-ji of Migrant Center Friends noted:
“While there may be equality concerns, unconstitutionality cannot be declared so simply. Still, without clear justification, treating foreign and domestic workers differently for the same work cannot escape criticism as discriminatory.”
She added, “Even if the bill were technically adjusted to avoid unconstitutionality, it could still face serious ethical and international criticism. Moreover, it is questionable whether such a discriminatory method is necessary when other approaches—like vouchers or direct financial support—exist to encourage childbirth.”
Source: Ilyo Seoul
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