I - Facts and legal background

2The facts of the case are simple and straightforward. Ms. Chae, a care worker who has been employed in a private home, rendered care services to the family for four consecutive years. She sued her employer in Seoul Central District Court after her employment was terminated, claiming that she was entitled to a retirement payment under the Korean Act on the Guarantee of Employees’ Retirement Benefits (« GERB Act »), a law that guarantees a certain amount of retirement pay upon termination of employment. 

4Before going into detail about the Constitutional Court’s answer to this question, to fully understand the case, it is necessary to know the overarching Korean labour law scheme on the legal status and rights of care workers.

6Secondly, the GERB Act, a law designed to provide a retirement benefit scheme to workers upon termination of employment, similarly exempts care workers from its protection just like the LSA. Art. 3 of the GERB Act (the article in question in this case) stipulates that the Act applies to all businesses and workplaces in Korea that employs a worker, except for private households that employ a care worker.

8Ms. Chae, the claimant in this constitutional court case, while she certainly was a care worker, was not a « domestic worker » as defined under new EIDW Act since she was employed by a private household. Also, the period she rendered care services to her employer was from 2014 up until 2018, which was prior to the enactment of the EIDW Act.

II - The decision of the Constitutional Court

9As mentioned above, the claimant specifically argued that the non-existence of a retirement payment scheme for a privately employed care worker, where the same exists for ordinary wage workers under the Labour Standard Act and other publicly employed domestic workers who are covered by the EIDW Act, is unconstitutional on the ground that it violates anti-discrimination principles and protection for women’s work guaranteed by Korean Constitution. In answering this question, the nine constitutional court justices were split by 7-2; seven majority justices ruled that the case at hand is a reasonable discrimination, while two justices strongly disagreed.

A - Majority opinion

11Meanwhile, the GERB Act, which mandates employers to give retirement payments to their employees, is « a public one, which could be enforced only upon labour inspection; it is beyond the scope of governmental power to inspect private homes in regard to their treatment of care workers ». The majority ruled that the GERB Act cannot be enforced to private care workers and their employers. The majority also emphasized that, if retirement payments are to be given to private care workers, it will cause «huge administrative costs for the government to enforce and an economic burden on the private household employers who use care workers at their homes.» In conclusion, the majority decided that the absence of a retirement payment scheme for a private care worker like Ms. Chae did not violate the equality principle of the Korean Constitution.

B - Dissenting opinion

12On the other hand, two dissenting justices, Justice Seoktae Lee and Justice Kiyoung Kim, pro-labour judges in the current Constitutional Court, rendered a logical and lengthy dissent that focused more on the socio-legal realities of care workers in Korea.

13First, they began by quoting the ILO Domestic Workers Convention (C189), which says that « domestic work continues to be undervalued and invisible and is mainly carried out by women and girls (…) who are particularly vulnerable to discrimination in respect of conditions of employment and of work ». Using this sentence from the Convention’s preamble, the dissent pointed out that the true reason for not applying labor laws to caregivers is gender stereotyped and discriminatory legal regimes, rather than privacy concerns or administrative costs, as stated by the majority opinion.

14The exemption of care work from the application of the law might appear neutral on the surface as the plain language of the law does not specifically mention gender. However, when we re-read Art. 3 of the GERB Act in light of the disturbing truth that our laws are still gender-stereotyped, and considering the fact that a vast majority of care workers in Korea are women, the exemption of care workers from the protection of the law in fact results in gender discrimination. This, in turn, is a violation of the equality principle and the anti-discrimination principle against women’s work guaranteed under Art. 11 and Art. 32. Sec. 4 of the Korean Constitution.

16Lastly, the dissenting opinion pointed out that care workers are in dire need of receiving proper retirement payments when we look at their social realities. As is widely known, care workers usually work extremely long hours but receive low pay. They suffer harsh working conditions and are even subject to sexual harassment and other gross forms of human rights violations. The employment arrangement of care workers is almost always precarious when compared to white-collar jobs. On top of it all, the very fact that care workers are not standard employees makes them unable to join and contribute to regular social insurance schemes (e.g. national health insurance, unemployment insurance, and old-age pensions, etc.) In short, care workers are a vulnerable group of workers, even in the realm of social security law. Considering this, the dissenting opinion advocated the need to extend retirement payments for care workers to protect their social welfare.

17To sum up, the dissenting opinion concluded that Art. 3 of the GERB Act constitutes unjustifiable discrimination against the rights of care workers. The dissent indicated that a correct reading of the anti-discrimination principle in Art. 32. Sec. 4 of the Constitution should be interpreted in a way that obligates the government to respect and promote substantive, not just formal, equality for all working women.

Conclusion

18Although the recent enactment of the EIDW Act in Korea is a significant step forward, as previously stated, this law provides only limited labor protection to a specific group of care workers, as the law applies only to a narrow definition of « domestic workers » employed by government-registered care service institutions. The Constitutional Court decision discussed so far manifests the legal difficulty suffered by a privately employed care worker who falls outside the scope of the EIDW Act. So far, a private care worker has only a contractual claim in civil court when a legal problem arises. Unfortunately, the majority opinion of the Constitutional Court reaffirms the chronic problem of the situation of care workers; most care workers are basically left without the protection of labour law. Indeed, care workers are « working without care ».

19While it might be true that care work has certain distinctive features when compared to ordinary work, - such as being personal, inter-relational, and emotional - the uniqueness of care work should not be used as an excuse to avoid legal protection for them. As mandated in the ILO Domestic Workers Convention and emphasized in the well-thought out dissenting opinion of the Korean Constitutional Court, the final aim of the labour laws relating to care workers must be focused on achieving substantive equality for all care workers. To this end, one cannot stress enough the need for both legislative and judicial effort.