Foreign workers have already become indispensable at construction sites in South Korea. As domestic skilled workers age and fewer new ones enter the trade, labor-intensive processes such as rebar and concrete work depend heavily on foreign labor. In the process, cases of foreigners without work authorization being put on the job keep arising. Illegal hiring cannot be left unchecked, but it is doubtful whether enforcement and penalties alone, divorced from conditions on the ground, can solve the problem.
The difficulties on site go beyond rising labor costs. The bigger problem is the difficulty of securing workers who hold proper work authorization and are skilled in the relevant process, in the numbers needed and at the time needed. Labor demand shifts constantly by process, and when one process stops, the ones that follow are delayed as well. The foreign labor hiring system itself, which fails to adequately reflect the particular nature of the construction industry, needs to be re-examined.
Employers, of course, have a duty to verify and manage the work authorization of foreign nationals. If they neglect this duty and a violation occurs, they may face restrictions on participating in subcontracts for public construction projects, separate from penalties under the Immigration Control Act. For construction firms whose survival depends on winning orders, a few months of exclusion is a serious disadvantage that threatens not only revenue but also business relationships and the retention of employees.
There are also problems with how the penalty period is set. In practice, when multiple violations are reported at once, the restriction period is sometimes set for each case and the periods simply added together. Last month, the Seoul Administrative Court overturned a four-month subcontracting restriction — one month for each of four notices of disposition — imposed on a construction firm for hiring foreign nationals without work authorization. The ruling held that there is no basis for adding to the period in proportion to the number of violations when the statutes provide no grounds for aggravation, and that arbitrarily splitting violations that could be handled together into separate dispositions is also impermissible. The court found that the restriction period in this case was one month, and noted that adding up periods without a legal basis undermines predictability and legal certainty.
The answer lies not in tolerating illegal hiring but in building a system through which workers can be hired legally. The supply of foreign labor and the rules on moving between sites should be improved to match demand at each site and in each process, and the procedures for verifying work authorization should be overhauled to make them effective. At the same time, the criteria for adding up or aggravating penalties for multiple violations must be clarified, along with a framework that can take into account the circumstances of the violation, the employer's management efforts and the commercial harm involved. Violations of the law should bring accountability, but that accountability must be determined within the bounds of a clear legal basis and the principle of proportionality.