Appendix I_Victims LoAtoSRhealth_Final_Eng LoAtoSRHRD_Final_Eng LoAtoSRtoxicwaste_Final_Eng

 

Letter of Allegation to the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health

 

 

1. 1.      Alleged Victims

 

–      20 previous workers at Samsung Electronics who have applied for industrial accident compensation. (Appendix 1)[1] –      Many other previous and current workers at Samsung Electronics and its affiliates who have suffered from various types of occupational diseases.

 

1. 2.      Alleged Perpetrators

 

1)      Samsung Electronics and its affiliates

 

Samsung Electronics, as a representative corporation in Samsung conglomerate Group, conducts manufacturing business producing semi-conductor, Electronic home appliances, and ubiquitous healthcare and etc.,. As of March in 2013, one hundred and eighty one victims of anemia, and various cancers were reported, and 70 out of them were dead. Victims came from most frequently in the department of Semi-conductor business at the Gi-Heung and Onyang factory and the department of LCD, cellular phone, Electricity, and SDI in Samsung Electronics.

 

However, Samsung Electronics do not acknowledge the causational link between victims’ diseases and working environments, and avoid taking responsibility for their diseases by arguing that Samsung Electronics  has nothing to do with the diseases and they came from  personal origin. Also, Samsung Electronics has not disclosed the outcome of epidemiological survey on victims’ working conditions and relevant information necessary to recognize industrial accident, and placated victims to give up applying for industrial accident by monetary compensation for them.

 

2)      The Government of the Republic of Korea

 

⑴ The Ministry of Employment and Labor

 

Under the Ministry of Employment and Labor, there is the Occupational Safety and Health Research Institute, part of the Korea Occupational Safety and Health Agency. It is an institute created by the government to support occupational injuries and illness prevention activities.

 

Under Article 4 of the Occupational Safety and Health Act, the government has duties, including ▲support of and guidance on accident prevention in the accident-prone workplace ▲ evaluation and improvement of the safety of harmful or dangerous machinery, tools, equipment, protective devices, protective clothing, etc ▲preparation of criteria for safety and health measures and guidance and supervision of harmful or dangerous machinery, tools, equipment, materials, etc; ▲maintenance and management of investigations and statistics on industrial accidents ▲protection and improvement of safety and health of workers.

 

Regarding the present issue, the ministry of Employment and Labor and the government of the Republic of Korea tried to make efforts after recognizing the occurrence of rare and obstinate diseases among workers at Samsung Electronics, however they failed to give enough supports for prevention. They failed to take an active role for evaluation and improvement of the safety, and prepare criteria for safety and health measures promptly.

 

(2)  Korea Workers’ Compensation & Welfare Service (KWCWS)

 

KWCWS is quasi-governmental agency, under Ministry of Employment and Labor, which was established according to the Industrial Accident Compensation Insurance Act. Its core objectives aim to compensate for industrial accidents by workers on their business and to enhance workers’ welfare. The agency, however, has rarely acknowledged industrial accident toward these victims. By putting victim’s excessive burden of proof, it has not compensated them for several years.

1. 3.      Date, place and detailed description of the circumstances of the incident(s) or the violation

 

In July, 2005, the late MinWoong Hwang, then working as installment engineer at the 1^st line of Semiconductor department in Samsung Electronics in GiHeng factory, died of acute lymphoid leukemia at the age of 31. In March, 2006, the late SookYoung Lee, working at the 3^rd line at the same factory, died of the same disease at the same age. In march of next year, YooMi Hwang, working as one team with SookYoung Lee , also died of the same disease. In November, 2009, the late KyongMi Kim, working for etching job in the 2^nd and 3^rd line, died at the age of 29. In March, 2010, the late JiYeon Park, working at Onyang factory, died of leukemia at 23.

 

In addition, as of May, 2013, among the employers working at Samsung Electronics and its affiliates, those who have been reported suffering out of leukemia and various cancers are 181 persons, and even 70 died. The victims have been working as production labors and engineers from 20s to 30s years old who engaged in producing and examining business mostly dealt with chemical materials and radiations. Most of their damages happened to leukemia, lymphoma, determination of blood ammonia, brain tumor, melanoma, granuloma, breast cancer and cervical cancer. Employers working as house person at the age from 40s to 50s and children of the employers at Samsung Electronics who were suffering leukemia and dysmorphophobia were reported. Presumably, there may be potential victims who have not yet been reported and are currently working and suffering from similar symptoms.

 

1)      Violation to the right of health by Samsung Electronics

 

 

Violation of the right to be informed on health, to work in the healthy environment

 

Samsung Electronics violated the right to be informed by the victims as for the material information on their own health. Pursuant to the article 5 of Occupational Safety and Insurance Act(Hereafter “the Act”), Samsung Electronics, as Business owner, shall provide workers with information on safety and health in the work place, but upon request by the victims to disclose information on their work place, it did not provide the information. In addition, the article 31 of the Act stipulates that where a business owner employs a worker for a harmful or dangerous job, he or she shall conduct a special training on the health and safety related to the work, as prescribed by the Ordinance of the Ministry of Employment and Labor. Also, the article of 41 of the same Act provides that where a business owner intends to use any chemical substance prescribed by the Ordinance of the Ministry of Employment and Labor, he or she shall prepare, in advance, data specifying the name and ingredients of the substance and precautions on the health and safety in handling them, and impact on the human body and the environment, and post and keep them in any place to be seen readily by workers.

 

Samsung Electronics, however, before entering employment contract with employees, did not inform them that the employees might deal with chemical substance in their working places while on duty, those substances can affect their health badly, and they may be exposed to the substance to some degree while on duty.  In particular, it has not conducted training on the health and safety sufficiently even though the employees’ working activities fall under “a business owner employs a worker for a harmful or dangerous job”. As the right of health shall cover the one related to giving birth to child, Samsung Electronics should have informed the victims of birth related information such as the ratio of infertility, and possibility of menstrual irregularity, but it failed to do it.

 

As a result, Samsung Electronics violated the right to work in the health environment by victims. That is violation of the right that employees are entitled to avoid dangerous working conditions and to protect their own safety by themselves. If Samsung Electronics had informed victims of possibility of outbreaks of the diseases and sufficient information on dealing with dangerous substance, the victims would not worked for the working place of Semiconductor in Samsung Electronics or at least at the same working conditions or same working environments.

 

Insufficient prevention of the danger on the safety and insurance by Samsung Electronics

 

Samsung Electronics has not prevented dangers of victims’ being exposed to the dangerous chemical or gas substance; this violated the right of health by victims. Pursuant to article 24 of the same Act, Business owner shall take measures necessary for the prevention of health disorder caused by radiation and harmful rays in operating their business. Samsung Electronics has not taken the above measures sufficiently.

 

Indulged in speedy production of products, it did not conduct training on the danger of the chemical substance and the necessity of protecting devices and did not provide the protecting devices sufficiently. As a result, victims have been frequently exposed to harmful chemical substances such as sulfuric, hydrochloric, nitric acid, and ammonia etc., even benzenes which are highly toxic with a short time exposure thereto.

 

Typical examples are the cases of the late YooMi Hwang and SookYoung Lee who, only wearing a mask absent anti-gas function while working, worked in the 3^rd line at the Gi-Heung factory, died of leukemia, were presumed to have been thoroughly exposed to the harmful substances.

 

Insufficient effort for the prevention of the safety and insurance against danger

 

Samsung Electronics has not exerted sufficient effort to prevent danger arising out of working environments and materials to be deal with by workers, which led to the violation of the right of health by victims. In order to systematically manage chemical substance, it should be fundamental to manage traceability of the chemical substance such as when was purchased, where the substance was used and when it was bought and when did it stop using.

 

The result released by the educational-industrial complex of Seoul National University shows that Samsung Electronics overall has not found the ingredients of the 99 sorts of chemical substances used in the 5^th line at Gi-Heung factory.

 

Samsung Electronics has not investigated the ingredients on the chemical substances by itself, the chemical items it was not aware of the first time when it started to use them were 60% in the whole items, ten kinds of them were not ascertained the ingredients thereof because of the trade secret. This indicates that Samsung had no will to fulfill its obligation to post and keep the data specifying the name and ingredients of the substance set forth in the article 41 of Occupational Safety and Insurance Act.

 

Failure in Controlling Safety and Health Harms

 

Samsung Electronics has failed to control harmful factors of harmful chemical substance, thereby violating the right of health of the victims. Ministry of Employment and Labor (MEL) supervised Hwaseong Plant of Samsung Electronics from February 4th to 25th, 2013, and found over 2004 violations of Occupational Safety and Health Act, consisting 1934 violations of Samsung Electronics and 70 violations of subcontractors of Samsung Electronics. Four production lines out of six production lines of Hwaseong Plant failed to install Urgent Ventilation Systems, which neutralize harmful substance, in their Central Chemical Supply Systems (CCSS). Further, Samsung Electronics, in some occasions, furnished workers with protective clothing that cannot protect them enough from harmful substance. Samsung Electronics neglected in controlling workplaces such as making one subcontractor manages 82 workplaces of particularly dangerous Gas Supply Room and Central Chemical Supply Room. Samsung also failed to manage its subcontractors and Safety and Health Consultative Body meeting properly. It also failed in submitting mandatory Harm and Danger Prevention Plan but proceeded with installation or modification on major facilities such as Local Ventilation Systems. It also failed to comply with Process Safety Management (PSM) by not managing sprinkler in Hydrogen Purifier Room.

 

Even when Samsung complied with Standard Operating Procedures (SOP), the rights to health of the workers were infringed. From February to July in 2009, there were 46 occasions of gas detector alerts only in production line four of Samsung Electronics Gi-Heung Semiconductor Plant. 25 occasions out of them were during Preventive Maintenance (PM) of Production Facilities while complying with SOP. This means that the workers were exposed to standards limits of chemical substances even in compliance with SOP. There was one occasion that the safety device malfunctioned which caused highly concentrated gas leakage for around one and a half hour.

 

Violation of the Right to Health of Subcontract Workers

 

The rights to health of not only the workers of Samsung Electronics but also the subcontract workers are being violated. In the Hydrofluoric Acid Leakage in Samsung Electronics Semiconductor Hwaseong Plant occurred in both January and May of 2013, subcontract workers were seriously injured or dead while replacing pipe arrangements. Four injured and one dead from the January Leakage, and three injured from the May Leakage. Those accidents were due to the principal Samsung Electronics’ pressure for rapid operations in order to minimize any production failure, thereby making the subcontract workers violating safety regulations and skipping safety education. As a result, the subcontract workers often use common masks instead of air supplied respirators, or in some occasions, the air supplied respirators were not furnished at all.

 

Interfering with Protection of the Victims’ Rights to Health through Social Security System

 

Samsung Electronics infringed the victims’ rights to health by not providing or interfering the victims with social security. When a worker develops a disease from working environments that do not guarantee the best feasible rights to health, the victim shall be protected by social security and the employer shall cooperate with it. But Samsung failed to disclose workers of their right to claim workers’ compensation or even deceived them that they do not have such rights. Samsung also forced the victims to waive their right to claim workers’ compensation on financial conditions such as providing medical expenses or other compensations, thereby preventing the victims from social security protection.

 

2)       Violation to the Victims’ right of health by the Korean Government

 

⑴     The Ministry of Employment and Labor

 

In particular, as the ministry of Employment and Labor found radiation and carcinogenetic substance set out in the article 39 para. 1 of the Act and its enforcement rule 81 at Gi-Heung factory where the victims were working, pursuant to the article39 para. 3 of the Act and its enforcement rule 81-3 para. 1, 2, the ministry should assess the harmfulness and danger factors to the victims and, in order to manage harmful factors, conduct periodic survey on them such as the amount, the degree of exposure, and the number of workers thereof, but it has failed to do it.

 

As the article 43-2 states “where deemed necessary to diagnose and prevent any occupational disease, to ascertain the cause thereof or to prevent such occupational disease, the Minister of Employment and Labor may conduct an occupational epidemiological inspection with regard to the correlation between the relevant workers’ disease and harmful factors at the workplace”, and it found lots of the victims who worked under similar working conditions were suffering from the same or similar diseases, it should have conducted an occupational epidemiological inspection toward the victims and the working places but it has not done it properly or sufficiently.

 

 

⑵     Violation of the Victims’ Rights to Health by Korea Workers’ Compensation & Welfare Service (KWCWS)

 

KWCWS violated the victims’ rights to health by not pursuing its core objectives to enhance industrial accident victims’ health and workers’ welfare. Some of the victims who were rejected for industrial accident victim’s status are appealing in administrative courts asking for the status by KWCWS. But even when the administrative courts recognize the victims’ industrial accident status, KWCWS is not complying with the decisions. In June, 2011, Seoul Administrative Court recognized industrial accident status of the deceased Yumi Hwang and the deceased Sookyoung Lee who died from leukemia after working at the Gi-Heung Semiconductor Plant (case no. 2010KuHahp1149). But KWCWS opposed to such decision and has appealed in courts. Not only that, KWCWS made Samsung intervened in the action thereby interrupting with the victims’ industrial accident status recognition. By failing to comply with the court decisions recognizing industrial accident status, KWCWS did not follow ‘treatment and rehabilitation principle’ out of five industrial health service principles from International Labor Organization (ILO), which provides for employers to minimize workers’ damage from industrial accident.

 

The Committee on Occupational Disease Decision under KWCWS did not fairly reach the decision whether or not it is occupational disease. The president of KWCWS is to nominate or appoint the chairperson and members of the Committee from people with regular occupations such as lawyers, certified labor consultants, or doctors as provided in the Enforcement Rule of Industrial Accident Compensation Insurance Act. However, there reported unfair organizing and managing the Committee. For instance, in May, 2013, during AI status recognition procedure of the deceased Seulkee Yoon, who died from aplastic anemia at the age of 31 after working at Samsung Electronics LCD Cheonan Plant, a medical doctor from Kangbuk Samsung Medical Center joined as a member of the Committee. Since Kangbuk Samsung Medical Center is a subsidiary of Samsung conglomerate like Samsung Electronics, and is a hospital providing physical examinations for workers of Samsung Electronics Semiconductor and LCD establishments, joining of a medical doctor from the Center into the Committee might have led to a partial decision for Ms. Yoon’s AI status. Further, KWCWS failed to disclose to applicants for AI status of their rights of preemptory challenge from the member pool of the Committee prior to the decision, and to disclose mandatory personal information of the members in advance. This is deprivation of applicants’ legitimate rights of preemptory challenge, thereby making them fail to exempt members with partiality from the Committee.

 

 

⑶    Violation of the Victims’ Rights to Health due to Gov’t’s Unreasonable Legislation and its Implementation

 

Strict standards of industrial accident status are another factor violating the victims’ rights to health. First, the victims have the burden of proving high standards of medical proof. For instance, in proving causation between leukemia and the working environments, Industrial Accident Compensation Insurance Act sets forth more strict standards than those of common courts’. Besides, Occupational Safety and Health Act and Toxic Chemicals Control Act prescribe only 90 carcinogenic substances, which is far less than foreign countries’ standards prescribing 400 to 500 substances, despite recent movement for the Acts’ amendments. Second is complicated application procedure. In order to apply for industrial accident status, the victims are to submit by themselves doctor’s diagnosis and forms stating whether to reinstate work after treatment or whether they are regular workers with their employers’ seals on. Further, when there has been frequent injuries of workers in the same or similar work place, as is the case here, Minister of Employment and Labor should stipulate the substance at issue as harmful material after undergoing deliberation by the Deliberative Committee under Sub-article 16 of Article 30 of the Enforcement Decree of the Occupational Safety and Health Act, but the Minister failed to do so.

 

Deregulations for corporations led in legislating laws that cripple worker’s rights to health protection. Article 3 of the Act on Special Measures for the Deregulation of Corporate Activities provides that “(T)his Act shall be applied in preference to other Acts and subordinate statutes…,which provide for administrative regulations.” The Act sets forth, but not limited to: permission of concurrent holding of offices by safety controllers (Article 29); entrusting of safety control (Article 40); relaxation of inspection (Article 47); relaxation of repetitious regulation on identification of chemical substance (Article 52); relaxation of regulation on authorization of outsourcing of harmful work (Sub-article 5 of Article 55); and formulation of uniform safety control regulations (Sub-article 6 of Article 55). As a result, health and safety controls over workers wholly depend on corporates’ own managements, and the Government can only regulate them within the scope of the Act. Indeed, the Act preempts Occupational Safety and Health Act.

 

This leads to undue burden of proof on the victims since they do not know the identity of the chemical substance that injured them, do not understand entire process scientifically, and the causation of the chemical substance on human body is yet to prove under contemporary medical science standards. Thus, KWCWS has only recognized two industrial accident statuses until 2012: one for aplastic anemia and the other for death from breast cancer, rejecting the rest of the applications for industrial accident status. It should be also mentioned that it usually takes too much time: over two years from the application for industrial accident status till its decision.

 

 

4. Recommendations

 

1. Samsung Electronics shall be ordered to disclose it workers in full all relevant information with regard to the chemical substance which they are working with, and to provide them with safety education on regular basis in order to prevent any industrial accident.

2. Samsung Electronics shall take health measures for the prevention of health disorders caused by radiation, harmful ray in operating their business.

3. Samsung Electronics shall make public apologies, pay damages, and promise to prevent and avoid recurrence of industrial accident to its workers.

4. Samsung Electronics shall provide unreserved cooperation to an independent third party investigator to conduct reliable and objective investigations as well as the epidemiologic investigation by the Ministry of Employment and Labor on semiconductor process.

5. The ministry of Employment and Labor shall conduct assessment of the ministry should assess the harmfulness and danger of harmful factors (in particular, radiation and carcinogenetic substance in the working places) to the victims and conduct a thorough occupational epidemiological inspection with regard to the correlation between the relevant workers’ disease and harmful factors at the workplace.

6. Korea Workers’ Compensation & Welfare Service shall recognize the victims’ industrial accident status.

7. Korea Workers’ Compensation & Welfare Service shall amend its relevant provisions and standard for industrial accident status in order to prevent recurrence of industrial accident and guarantee workers’ rights to health.

8. Korean Government shall reform occupation safety and health system of Korea in order to have systematic control of carcinogenic substances, and shall alleviate standards for occupation disease recognition by amending Occupational Safety and Health Act and Industrial Accident Compensation Insurance Act.

9. We sincerely request the Special Rapporteur to make an official visit to Korea to make a full investigation into the current situations of semi-conductor industry and to come up with feasible solutions.