MONITORING OF INDUSTRIAL RELATIONS
AND LABOUR LAW REFORM IN KOREA

REVIEW OF LABOUR MARKET
AND SOCIAL SAFETY NET POLICIES IN KOREA
 

NOTE BY TUAC (1)
FOR
CONSULTATIONS WITH OECD EMPLOYMENT,
LABOUR AND SOCIAL AFFAIRS COMMITEE (ELSAC)

April 2000

Summary

1. It is essential that the OECD maintains its special monitoring procedure on labour law reform in Korea until Korean labour legislation is brought into line with internationally accepted standards of freedom of association and collective bargaining. The March 2000 Interim Report of the ILO's Freedom of Association Committee (the conclusions are annexed to this note) and paragraphs 91-121 of the draft OECD Labour Market Review set out clearly what reforms are still required to achieve this goal. TUAC accepts that progress has been made by the Korean authorities, but it would be premature at this stage for the OECD to put an end to the special monitoring procedure. To do so would risk sending a message that either the OECD has reached a different interpretation of freedom of association from the ILO or that it no longer cares about Korea’s commitment on accession to the OECD to “reform its legislation in line with internationally accepted standards, including such basic rights as freedom of association and collective bargaining”. Either conclusion would be damaging to the OECD and would risk setting back the process of labour law reform in Korea.

2. Against the background of the continuation of the special monitoring procedure, TUAC would hope to use the eventual OECD Review to engage in a series of discussions with our affiliates in Korea over the next 18 months on the wider labour market recommendations. The OECD should consider organising a conference on the report with the social partners in Korea to discuss its conclusions. It is essential that the improving economic situation is used to put in place a well-funded employment insurance system and labour market programmes which have wide coverage. This should not be at the expense of acquired rights of workers in employment but rather dovetail company-based protection with a developing public system.

(A) Assessment of Labour Law Reform in Korea and the OECD’s Monitoring Procedure

3. The OECD’s monitoring procedure of labour law reform in Korea was established in the light of the Korean government’s solemn commitment at the time of its accession to the OECD, in October 1996, to “reform its legislation in line with internationally accepted standards, including such basic rights as freedom of association and collective bargaining”. Although this has been applied to Korea, it is TUAC’s view that bringing legislation into line with core labour standards as defined by the ILO is a necessary requirement for any country that says it accepts the OECD's “shared values” including respect for human rights as stated by successive OECD Ministerial Council meetings during the 1990's. It is also a necessary condition for any country to play a full and active part in the ELSAC. Social partners must be free to carry out their normal activities without risk of arrest and harassment if OECD work on broader employment and social objectives is to be meaningful.

4. The OECD’s monitoring procedure has been an important element in the peer-group pressure that has resulted in some progress being made in Korea in honouring its commitment to bring its labour law into line with international standards. This is notably true with regard to the introduction of trade union rights for teachers in July 1999 and the legalisation of the KCTU in November 1999. However, significant parts of Korean labour law continue to breach freedom of association principles and diverge from practice in other OECD countries, notably with regard to the absence of trade union rights for public servants, the widespread intervention by the state in internal trade union affairs, and the excessive limitation of normal strike activity through both the wide definition of essential public services and the use of Section 314 of the Penal Code on “obstruction of business”. These continued breaches of freedom of association were the reason for the large number of arrests of trade union members in 1998 and 1999. As the breaches remain in existence a further round of industrial disputes would be likely to be met by a further round of arrests and repression.

5. These remaining breaches of freedom of association are described in paragraphs 91-121 of the OECD draft Labour Market Review. They are also set out clearly in the March 2000 Interim Report of the ILO’s Freedom of Association Committee on the complaint against the Government of the Republic of Korea. 

6. The absence of “trade union rights for public servants” (See OECD draft Review, paragraphs 98-105). As a first step to granting rights to organise for public servants, certain categories of public officials were allowed to form “workplace associations” (workplace Councils) from January 1999. The restrictions on the type of official covered however mean that only 338,000 out of the 930,000 public officials actually have this right (See Annex ILO, paragraph 509). The limited terms of reference of the Councils is restricting their relevance to staff - after one year only 60 Councils have been formed out of an estimated 2,000 potential workplaces (KCTU estimate). Moreover the establishment of Councils was supposed to be a step towards full Freedom of Association. Yet, the Government has not presented any timetable for the introduction of legislation granting freedom of association to public officials. Rather attempts to form a national association of representatives of workplace Councils has been resisted by the authorities.  For the foreseeable future therefore freedom of association for public officials remains denied and as pointed out by the draft OECD Review, Korea remains unique in the OECD on this issue (OECD, paragraph 105).

7. Definition of essential public services (OECD, paragraphs 106-110). The ILO has repeatedly called for Korea to restrict the definition of essential public services, where the right to strike is denied, to services upon which life depends in the strict sense of the term (ILO, paragraph 513). Although the government has said it will remove banking (except the Central Bank) and inner-city bus services from the definition by the end of 2000, the list will continue to include:- rail; water; electricity; gas supply; oil refinery and supply services; hospitals; and telecommunications. This denies the right to strike to a far wider range of service employees than that defined as essential services by the ILO (ILO, paragraph 513) or is the case in other OECD countries (OECD, paragraph 110).

8. Use of the Penal Code (section 314) on “obstruction of business”. The Trade Union and Labour Relations Act of 1997, substantially restricted the use of “third party intervention” to justify the imprisonment or arrest of trade unions. However, other laws are now used with the same effect, notably section 314 of the Penal Code on “obstruction of business”. This is being used to convict trade unionists who go on strike over economic and social issues such as employment security, downsizing, social protection for laid-off workers. The use of “obstruction of business” to outlaw what in other countries would be legal industrial disputes or protest actions has raised the concern of the ILO (ILO, paragraphs 525-527). It was behind the wave of arrests of trade unionists in 1999 and as currently defined could be used to bring about another round of arrests in a future period of industrial disputes. It is significant that in the current dispute in the Korean automobile industry the Korean employers and industry organisations have stated that the strike is illegal and called on the government to intervene (Financial Times, 7 April 2000). Similar statements have been made by the public prosecutors office according to the KCTU. The use by prosecutors of section 314 of the Penal Code calls into question the OECD’s judgement in footnote 36 (paragraph 95) of the draft Review that “It seems safe to say that once multiple unionism at enterprise level will be institutionalised in 2002 ... freedom of association principles in the private sector will be widely respected in Korean labour law and practice ...”.

9. With regard to the issue of arrests it is seriously misleading to state that “the number of trade unionists subject to arrest procedures has been reduced considerably”, as is done in paragraph 12 of the ELSAC Issues Paper (DEELSA/ELSA(2000)4). At any point in time over the last five years this statement may have been technically correct, yet these quieter moments have been followed by a further round of arrests once industrial disputes take place. This has been the case on the last two occasions when ELSAC has considered Korean labour law in depth:- at the time of the June 1999 Enlarged Bureau meeting when a wave of new arrests took place (OECD, paragraph 120); or October 1998 when the then President of the Korean Metal Workers’ Federation, Dan Byong-ho was arrested and subsequently sentenced to two years imprisonment for “interference in business activities”. His subsequent release is welcome but does not remove the original cause of his arrest. The ILO recalls that “the number of unionists arrested or detained in 1998 (since the establishment of the first Tripartite Commission) has increased dramatically in comparison to previous years” (ILO paragraph 524). The OECD estimates the figure at over 500 (OECD, paragraph 120). As long as the legislation is used by the authorities in the current way, a new round of arrests can occur at any time. TUAC would agree strongly with the ILO Committee’s conclusion that “ ... it will not be possible for a stable industrial relations system to function harmoniously in the country as long as trade unionists are subject of arrests and detentions” (ILO, paragraph 524).

10. Excessive government interference in union affairs. Government interference in internal union affairs continues to extend beyond that normal in other OECD countries and represents further restrictions on the practice of freedom of association. Other examples include:- 

- Third party intervention: Although previous prohibitions on third party intervention in industrial disputes have been lifted, unions are still required to notify to the authorities the names of those assisting them in such disputes. In view, particularly, of the heavy penalties of imprisonment for failure to notify, and the potential for harrassment, this requirement remains of concern to the ILO;

- The payment of full time trade union officials: The outlawing of the payment of full time union officials by employers is an intrusion of the law into an area which should be left for negotiations between the parties concerned, the proposed compromise suggestions that have been forwarded on this issue from the Third Tripartite Commission at the end of 1999 remain unclear;

- The eligibility of individuals for union office: This should be a matter for union members themselves to decide, not the government.

11. Implementation of choice of trade unions at enterprise level:- the permission of multiple trade union representation at enterprise level must still be awaited until 2002, which is again a cause for concern to the ILO.

12. Conclusions. The remaining freedom of association abuses in Korea and the resort to imprisonment of trade unionists undermine support for the law and prevent the development of trust which is essential to the creation of a stable industrial relations system which can manage and minimise conflict and encourage the social consensus necessary for the continued restructuring of the economy. The next stage in the OECD monitoring process should therefore focus on:-

- Establishing the right of public servants to join trade unions;

- Limiting the public service workers who are denied the right to strike to essential public services as narrowly defined by the ILO;

- The redefinition of “interference in business activities” (section 314 of the Penal Code) to allow normal industrial action;

- The permanent ending of the arrest of trade unionists for normal trade union activities;

- The removal of legislation that prohibits the payment of full time union officials by employers and the ending of excessive legal and administrative interference in union affairs by the State.

(B) OECD’s Review of Labour Market and Social Safety Net Policies in Korea

13. The maintenance of the OECD monitoring procedures on labour law reform and the renewal of progress towards establishing rights of freedom of association in the Korean labour market is a prerequisite for developing more constructive dialogue in a tripartite setting on the other employment challenges and labour market measures which are discussed in the OECD draft Review.

14. Against a background of continued special monitoring procedures, TUAC would be ready to play an active role in using the eventual OECD labour market Review for discussions with our affiliates in Korea. One general concern is the tendency of the draft to criticise the acquired rights of workers on issues such as severance pay at the company level. These rights have been built up as a reaction to the lack of a broad-based unemployment and social security system. Criticising severance pay levels or the conditions of advance notification of redundancies are therefore misplaced. Removing company-level protection  will not bring a good state system into existence. Rather there should be an effective dovetailing of the state and company based systems of social protection.

15. With regard to the questions posed in the Issues Paper (DEELSA/ELSA(2000)4):-

- We would agree on the need to reduce the incidence of precarious forms of employment. This should be done by extending broad-based social security protection throughout the Korean labour market, not by reducing the acquired rights of existing employees (paragraph 5);

- We would agree with the need to expand the institutional part of the labour market system through an expansion of the employment insurance system to all employees and the development of the public employment services (paragraph 6);

- Social expenditure as a proportion of GDP remains exceptionally low in Korea compared with other OECD countries, there should therefore be budgetary scope to develop a broad-based and well funded system (paragraph 6);

- In strengthening complementarity between public employment services and private employment agencies the development of union-based employment counselling services should be included (paragraph 7);

- In developing the concept of “productive welfare” the goal must be to develop the concept of active labour market policy linked to “lifelong learning”, in which trade unions can play an important role (paragraph 8);

- The conditionality of benefits depends a great deal on their level, duration, and national circumstances. “One stop” employment and social counselling services can play an important role in ensuring appropriate job offers are accepted and the unemployed not penalised (paragraph 9).

 The questions in paragraph 10 on freedom of association and collective bargaining rights have been replied to in section A above.

 ANNEX
 
 

ILO COMMITTEE ON FREEDOM OF ASSOCIATION
CONCLUSIONS AND RECOMMENDATIONS OF THE INTERIM REPORT
ON CASE N°. 1865 - 6 March 2000

Complaints against the Government of
the Republic of Korea
presented by
– the Korean Confederation of Trade Unions (KCTU)
– the Korean Automobile Workers’ Federation (KAWF)
– the International Confederation of Free Trade
Unions (ICFTU) and
– the Korean Metal Workers’ Federation (KMWF)
Allegations: Arrest and detention of trade union leaders and members;
government refusal to register newly established organizations;
adoption of labour law amendments contrary to freedom of association
 

E. The Committee’s conclusions

504. During its previous examination of this case the Committee had recalled that, while the Trade Union and Labour Relations Adjustment Act (TULRAA) which was enacted on 13 March 1997 contained a number of amendments which constituted progress towards acceptance of its previous recommendations, certain provisions that the Committee had deemed to be contrary to freedom of association principles had not been amended. In this respect, the Committee had noted that a second Tripartite Commission with more or less the same composition and mandate as the first was established in June 1998 to deal with a series of reforms on labour-related issues, including those relating to freedom of association, and that these reforms, if implemented, would necessitate the corresponding amendments to the TULRAA. The Committee notes the Government’s statement that, due to the withdrawal of the Korean Employers’ Federation (KEF), the Federation of Korean Trade Unions (FKTU) and the Korean Confederation of Trade Unions (KCTU) from the second Tripartite Commission, the latter ceased to function. The Committee notes nevertheless that a third Tripartite Commission with more or less the same composition as the first and second Commissions (with the exception of the KCTU) was launched in September 1999. This third Tripartite Commission is mandated to deal with a series of issues including those raised by the Committee during its previous examinations of this case. The Committee notes however that the FKTU withdrew from the third Tripartite Commission in November 1999. In this respect, the Committee would call on all parties to act in good faith and expresses its hope for continued dialogue in a tripartite manner on all the issues raised by it. The Committee proposes to review these various issues in the light of the information provided by the Government. At the outset, the Committee notes with interest that a number of measures have been adopted by the Government which constitute progress towards acceptance of a certain number of its recommendations and would encourage the Government to continue taking such measures with a view to complying with the Committee’s remaining recommendations.

505. With regard to the issue of the legalization of teachers’ unions, the Committee had previously requested the Government to take the appropriate steps so as to ensure the right to organize of teachers and to register the Korean Teachers’ and Education Workers’ Union (CHUNKYOJO) so that it could legally defend and promote the interests of its members. The Committee notes the Government’s statement that it submitted the “Act concerning the Establishment and Operation of Teachers’ Unions” which secures basic labour rights for teachers to the National Assembly which adopted it in January 1999. This law entered into force on 1 July 1999. Moreover, CHUNKYOJO and another teachers’ union, the Korean Union of Teaching and Educational Workers (KUTE) were registered on 2 July 1999. The Committee notes these developments with interest.

506. Regarding the issue of industrial action in the form of workplace occupations, the Committee had noted that section 42(1) of the TULRAA prohibited any “... occupation of production facilities or installations related to important businesses or the equivalent thereof as determined by Presidential Decree”. The Committee had considered in this respect that certain types of strike action, such as workplace occupations, should not be considered as unlawful unless they ceased to be peaceful or they interfered with the freedom to work and had requested the Government to provide information on the application in practice of section 42(1) [see 309th Report, para. 150]. The Government indicates in this regard that this provision does not ban workplace occupations unless they obstruct other employees from working if they choose to do so. Moreover, no penal sanctions have been imposed under this provision since 1 January 1998. The Committee takes due note of this information.

507. Concerning the lack of legal status of the KCTU, the Committee had requested the Government on several occasions to ensure that the KCTU was registered as a trade union organization. The Committee notes with interest from the information provided by the Government that the KCTU was recognized as a legal entity on 22 November 1999.

508. With regard to the issues of the right to organize of public servants, and the lifting of the ban on third-party intervention in collective bargaining and industrial disputes, the Committee notes that the Government merely indicates that these issues will be the subject of discussions at the third Tripartite Commission. The Committee therefore proposes to reiterate its conclusions and recommendations concerning these issues.

509. Regarding the issue of the right to organize of public servants, the Committee had noted at its March 1998 meeting that public servants would have the right to form associations (workplace councils) from 1 January 1999 [see 309th Report, para. 144]. The Committee had noted with concern, however, that large categories of public servants would be excluded from joining these workplace councils. Hence, the Committee had noted that public servants from grades 1 to 5 would be excluded from workplace councils as would public servants belonging to special services, i.e. firefighters. Moreover, public servants involved in personnel and confidential work, budgeting and accounting, receiving and distributing goods, supervising general service staff, secretarial work, guarding security facilities and driving passenger cars or ambulances would also not be entitled to join workplace councils. The Committee notes from the Government’s most recent communication that only 338,000 public servants out of a total of 930,000 are eligible to join these workplace councils. The Committee notes from the Government’s most recent communication that only 338,000 public servants out of a total of 930,000 are eligible to join these workplace councils. In view of the restrictions on the right to associate of a wide range of public servants, the Committee had drawn the Government’s attention to the fundamental principle that all public service employees, with the sole possible exception of the armed forces and the police, should be able to establish organizations of their own choosing to further and defend the interests of their members [Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 206]. The Committee would therefore reiterate its request to the Government to extend the right of association, recognized as of 1 January 1999 for certain categories of public servants, to all those categories of public servants who should enjoy this right in accordance with freedom of association principles.

510. Furthermore, the Committee would recall that the denial of workers in the public sector to set up trade unions, where this right is enjoyed by workers in the private sector, with the result that their “associations” do not enjoy the same advantages and privileges as “trade unions”, involves discrimination as regards government employed workers and their organizations as compared with private sector workers and their organizations. Such a situation gives rise to the question of compatibility of these distinctions with freedom of association principles according to which workers “without distinction whatsoever” shall have the right to establish and join organizations of their own choosing without previous authorization [see Digest, op. cit., para. 216]. The Committee would recall further that the right to organize does not necessarily imply the right to strike which may be prohibited in the public service for public servants exercising authority in the name of the State or in essential services in the strict sense of the term, i.e. services whose interruption would endanger the life, personal safety or health of the whole or part of the population. This would, for example, be the case of firefighting services. Consequently, the Committee requests the Government to take steps to recognize, as soon as possible, the right to establish and join trade union organizations for all public servants who should enjoy this right in accordance with freedom of association principles.

511. With regard to the lifting of the ban on third-party intervention in collective bargaining and industrial disputes, the Committee had noted from the report of the high-level tripartite mission that the KCTU, in particular, had notified the names of many advisers to the Ministry of Labour because non-notified persons were prohibited from intervening in collective bargaining or even making any comments about an industrial dispute under the terms of section 40(2) of the TULRAA. The KCTU had considered this measure to be tantamount to maintaining the ban on third-party intervention since non-notified persons who intervened in collective bargaining were liable to a maximum penalty of three years’ imprisonment and/or 30 million won in fines (section 89(1) of the TULRAA). The Committee, for its part, had considered the notification requirement contained in section 40(1)(3) of the TULRAA to be onerous on unions and unjustified, especially in light of the prohibition contained in section 40(2) of the TULRAA. It had also considered that provisions such as section 89(1) entailed serious risks of abuse and were a grave threat to freedom of association. Consequently, the Committee, noting that the Government will review this issue, once again requests it to repeal the notification requirement contained in section 40 of the TULRAA as well as the penalties provided for in section 89(1) of the TULRAA for violation of the prohibition on persons not notified to the Ministry of Labour from intervening in collective bargaining or industrial disputes.

512. At its March 1998 meeting, the Committee had regretted that, in taking steps to recognize trade union pluralism at the national and industrial levels, the Government did not consider organizations established at the enterprise level for which trade union pluralism would only be possible from the year 2002. It had noted the arguments put forward by the Government to justify this delay, including the instability in industrial relations and confusion over collective bargaining which could result therefrom. The Committee was nevertheless of the opinion that this additional period during which freedom of association principles would continue to be seriously infringed could be avoided by setting up a stable collective bargaining system in conformity with trade union pluralism. The Committee therefore had requested the Government to speed up the process of legalizing trade union pluralism at the enterprise level and to this end promote the implementation of a stable collective bargaining system [see 309th Report, para. 146]. The Committee reiterates this request to the Government. It notes the Government’s most recent statement in this respect. It regrets that the Government has decided to maintain its decision to postpone the recognition of trade union pluralism till the year 2002. It notes however that a draft bill that deals with collective bargaining in the context of trade union pluralism has been submitted to the National Assembly. The Committee requests the Government to provide the text of this bill so as to review its compatibility with freedom of association principles.

513. At its March 1998 meeting [see 309th Report, para. 148], the Committee had noted that the TULRAA established a distinction between general public services and essential public services and that recourse could be had to compulsory arbitration for this second category of public services only after a recommendation of the Special Mediation Committee to this effect (sections 71(2), 74(1) and 62(3) of the TULRAA). The Committee had observed that the essential services specified were the following: railroad services (including inter-city rail), inner-city bus services, water, electricity, gas supply, oil refinery and supply services, hospital services, banking services and telecommunication services. However, the inner-city bus services and banking services (except for the Bank of Korea) would be considered as essential only until the year 2000. The Committee had recalled that recourse to compulsory arbitration, when this resulted in the prohibition of the right to strike, should be limited to services whose interruption would endanger the life, personal safety or health of whole or part of the population. The Committee had considered, on the basis of this definition, that the Mint, banking services, transport services and the petroleum sector did not constitute essential services in the strict sense of the term. They did constitute, however, services where a minimum negotiated service could be maintained in the event of a strike so as to ensure that the basic needs of the users of these services were satisfied. The Committee therefore had requested the Government to amend the list of essential public services contained in section 71 of the TULRAA in line with the above conclusions so that the right to strike was prohibited only in essential services in the strict sense of the term. Noting that this issue will be discussed at the Tripartite Commission, the Committee would reiterate this request to the Government.

514. With regard to the issue of the payment of wages to full-time union officials, the Committee had noted that section 24 of the TULRAA prohibited employers from remunerating full-time union officials as of 1 January 2002 [see 309th Report, para. 152]. The Committee had considered that the prohibition of the payment of full-time union officials by employers was a matter which should not be subject to legislative interference and had therefore called upon the Government to repeal section 24(2) of the TULRAA. The Committee would reiterate this request to the Government. It notes in this respect that a draft bill has been submitted to the National Assembly. The Committee requests the Government to provide the text of this bill so as to review its conformity with freedom of association principles.

515. With regard to the provisions in the TULRAA concerning the denial of the dismissed and unemployed workers to keep their union membership and the ineligibility of non-members of trade unions to stand for office (sections 2(4)(d) and 23(1), respectively, of the TULRAA), the Committee had considered that the determination of conditions of eligibility of union membership or union office was a matter that should be left to the discretion of union by-laws and the public authorities should refrain from any intervention which might impair the exercise of this right by trade union organizations. The Committee, noting that the legislative process concerning the issue of dismissed trade union officials maintaining their membership is on hold, requests the Government to repeal the provisions concerning the denial of dismissed and unemployed workers to keep their union membership and the ineligibility of non-members of trade unions to stand for office (sections 2(4)(d) and 23(1) of the TULRAA.

516. The Committee once again draws the Government’s attention to the principles enunciated above and firmly hopes that these issues will be examined and resolved as quickly as possible in a manner compatible with freedom of association principles. The Committee requests the Government to keep it informed of deliberations within the Tripartite Commission or the National Assembly on all of these issues.

517. As regards the legislative aspects of this case, the Committee requests the Government to provide information on any measures taken to give effect to the Committee’s recommendations thereon.

Allegations of a factual nature

518. The Committee notes with regret that the Government states that it is not possible to drop the remaining charges pending against Mr. Kwon Young-kil, former President of the KCTU. During its previous examination of this case [see 311th Report, para. 332], the Committee had noted with concern that Mr. Kwon still faced charges of violating the Law on Public Assembly and Demonstration and the Traffic Law, and that a criminal charge of intrusion into private premises was still pending against him for the holding of the inaugural congress of the KCTU at Yonsei University on 11 November 1995. The Committee had firmly insisted that the Government do everything in its power to ensure the dropping of all remaining charges which were brought against Mr. Kwon before the January 1997 strikes as a result of his trade union activities. The Committee notes with regret that despite its firm insistence on the dropping of all charges brought against Mr. Kwon, the latter is still being tried on these charges. It expresses the firm hope that he will not be convicted on these charges and requests the Government to keep it informed of the outcome of the trial.

519. As regards the KCTU’s allegation that 57 trade union leaders were arrested and detained and that arrest warrants were issued for 13 other KCTU leaders for participation in a May Day rally and two general strikes but that the Government later committed itself to withdraw all charges against those persons in an agreement reached between the KCTU and government representatives on 5 June 1998, the Committee notes that the Government acknowledges that the two parties reached an agreement on 5 June 1998. However, the Government contests that this agreement contained any commitment by it to drop all charges. Rather it relates to an agreement reached between the KCTU and the Government on issues to be discussed and implemented in the second Tripartite Commission. The Committee notes in effect that the contents of this agreement (a copy of which is annexed to the Government’s reply) relate to a series of measures in the economic and labour-related fields to be discussed in the second Tripartite Commission.

520. The Committee further notes with interest the Government’s statement that out of the 70 KCTU leaders and activists detained or on trial or wanted for arrest, none are now under detention. The Committee requests the Government to indicate whether they have been released unconditionally.

521. Regarding the alleged dismissal of two public servants, Lee Seung-chan and Kim Dong-il, for their involvement in the “Public Servants’ Works Council Preparation Committee” a body responsible for organizing preparatory activities for the establishment of public servants’ works councils, the Committee had urged the Government to take the necessary measures to ensure that these two public servants were immediately reinstated in their jobs [see 311th Report, para. 338]. The Committee notes from the information provided by the Government that Mr. Kim was reinstated in his job in July 1999 after appealing to the Kwangju District and High Courts which both ruled in favour of Mr. Kim. The Committee notes with concern, however, that Mr. Lee Seung-chan has still not been reinstated since his case is still pending before the Seoul Administration Court. The Committee would recall that Mr. Lee was dismissed for violating legislation governing public servants which the Committee had, on previous occasions, considered to be contrary to freedom of association principles since it denied public servants the right to organize. In view of this fact and taking into account that public servants are legally entitled to establish workplace councils as of 1 January 1999, the Committee once again urges the Government to take the necessary measures to ensure that Mr. Lee Seung-chan is immediately reinstated in his job. It requests the Government to keep it informed of any progress made in this regard.
 

522. The Committee notes that the KMWF’s allegations concern violent police intervention to break peaceful strikes; large-scale arrest and detentions of strikers; laws that allow employers to dismiss workers unfairly and to ignore decisions of the National Labour Relations Commission for reinstatement.

523. As regards alleged violent police intervention to break peaceful strikes, the Committee notes that the two examples given by the complainant concern sit-in strikes carried out by the Mando Machinery Workers’ Union (MMWU) and the Hyundai Motors Workers’ Union (HMWU) in their respective company premises. In both cases, the complainant protests the use of riot police to break peaceful sit-in strikes. While the Government does not contest the intervention of riot police in both cases, it contends that the police intervened “to disperse the unionists who illegally occupied the company premises during the MMWU strike” and to protect company facilities and check any inflow of weapons during the HMWU strike. The Government adds that some strikers had assaulted the police and office workers with steel pipes and other weapons. In this regard, the Committee would recall that it has previously considered that certain types of strike action, such as for example workplace occupations, should not be considered as unlawful unless they cease to be peaceful [see 307th Report, Case No. 1865 (Republic of Korea), para. 222]. The Committee notes the complainant’s contention, however, that the clashes that occurred during the course of the two strikes were provoked by 14,000 riot police in the MMWU strike and 15,000 riot police in the HMWU strike, who confronted the outnumbered sit-in strikers with, amongst others, tear-gas tanks, fork-lift cranes, fire engines, water cannons and steel pipes. The police intervention in the MMWU strike resulted in the arrest of 2,580 persons (2,483 by the Government’s account) although many were released within ten days. Moreover, although 46 unionists were detained as a result of the MMWU strike, the Committee notes that none of them are still in detention.

524. The Committee recalls in this respect that the authorities should resort to calling in the police in a strike situation only if there is a genuine threat to public order. The intervention of the police should be in proportion to the threat to public order and governments should take measures to ensure that the competent authorities receive adequate instructions so as to avoid the danger of excessive violence in trying to control strike action that might undermine public order [see Digest, op. cit., para. 582]. Although the Government maintains that the intervention by the riot police and the subsequent detention of workers was justified as a legitimate way to defend national law and order, the Committee fails to see how national law and order were threatened in the cases of the MMWU and HMWU sit-in strikes which were carried out on company premises. In this regard, the Committee must note with serious concern that it has examined the phenomenon of police intervention in activities linked to collective labour disputes – on grounds of defending national law and order – leading to the large-scale arrest and detention of workers on various occasions in the past in the Republic of Korea. While reliance on police intervention in labour disputes may be the result of a culture which places a heavy emphasis on the security and stability of the country, the Committee is of the view that this sort of action only serves to aggravate industrial disputes. This point of view appears to be borne out by the complainant’s assertion which is not disputed by the Government that the number of unionists arrested or detained in 1998 (since the establishment of the first Tripartite Commission) has increased dramatically in comparison to previous years. The Committee is convinced that it will not be possible for a stable industrial relations system to function harmoniously in the country as long as trade unionists are the subject of arrests and detentions. In view of the deteriorating social climate prevailing in the country, the Committee believes it would be particularly appropriate for the authorities to pursue measures which would allow for the building of an industrial relations system based on a climate of confidence. These measures would involve in particular limiting police intervention in labour disputes. In this regard, the Committee notes that the Government adopted a four-step plan in April 1999, part of which aims to minimize the arrest and detention of workers except in extreme cases. The Committee would request the Government to ensure that the part of its new plan which aims to minimize the arrest and detention of unionists is effectively implemented so that in future trade unionists are no longer arrested or detained for legitimate trade union activities. Furthermore, the Committee would call on all parties to exercise restraint in pursuing activities linked to labour disputes.

525. As regards the situation of the 87 persons whom the KMWF alleged were detained (a list of these persons is reproduced in the annex to this case), the Committee notes the Government’s statement that none are now under detention. The Committee notes, however, that the majority of persons listed in the annex to this case were charged with obstruction of business and that, according to the KMWF, this provision from the Penal Code (section 314) has been widely used to convict unionists who went on strike. The KMWF also alleges that the logic of the obstruction of business provision is that any strike or rally or demonstration which causes workers to walk off the job and therefore obstruct business can be deemed to be illegal. The KMWF finally alleges that this provision – which does not define what obstruction of business is – has been interpreted to construe strikes on issues such as employment security, downsizing of workers, social protection for laid-off workers, etc., to be political strikes and therefore illegal because the issues at stake are not of any concern to workers. The KMWF points out that the example of Dan Byung-ho, former KMWF President and current KCTU President, who was charged with obstruction of business for his participation in, and organization of, strikes and rallies on various issues including the issues mentioned above, is a case in point.

526. The Committee notes that Dan Byung-ho, as well as the other unionists whose names appear in the annex, have now been released. It notes with concern, however, that the vast majority of them were arrested and detained on charges of obstruction of business which, if applied as alleged above, would tend to prevent strikes on economic and social issues as well as protest and sympathy strikes. The Committee would recall in this respect that the occupational and economic interests which workers defend through the exercise of the right to strike do not only concern better working conditions or collective claims of an occupational nature, but also the seeking of solutions to economic and social policy questions and problems facing the undertaking which are of direct concern to the workers. Organizations responsible for defending workers’ socio-economic and occupational interests should be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and standards of living. Finally, while purely political strikes do not fall within the scope of the principles of freedom of association, trade unions should be able to have recourse to protest strikes, in particular where aimed at criticizing a government’s economic and social policies and the right to strike should not be limited solely to industrial disputes that are likely to be resolved through the signing of a collective agreement [see Digest, op. cit., paras. 479, 480, 482 and 484].

527. Noting that the Government has not responded to the KMWF’s allegations on the interpretation and application of the provision concerning obstruction of business to persons involved in various forms of industrial action as described above, the Committee requests the Government to provide information on what exactly constitutes “obstruction of business”, a charge for which the majority of unionists listed in the annex to this case were arrested and detained.

528. As regards the alleged unfair dismissals of 182 union leaders and members of the Sammi Specialty Steel Workers’ Union (SSSWU) on 17 February 1997, the Committee notes that the Government does not dispute that the discontinuation of the employment relationship of the 182 workers concerned constituted unfair dismissals. Rather the Government indicates that further to the decision of the National Labour Relations Commission (NLRC) on 8 December 1997 that these dismissals were unfair, the Ministry of Labour imposed penal sanctions on the management of Changwon Specialty Steel Company (which took over the Sammi Specialty Steel Company) on 30 January 1998 for violating the provision of the Labour Standards Act on unfair dismissals. However, the Government states that the workers concerned have not been reinstated in their jobs since the management appealed the NLRC’s decision first to the Seoul Appeals Court and then to the Supreme Court. Similarly, as regards the alleged unfair dismissals of workers of the Dong-hae union, when the Dong-hae Company was taken over by OMRON Automotive Electronics Korea Company on 20 March 1998, the Committee notes the Government’s statement that the NLRC determined on 30 October 1998 that six workers had been unfairly dismissed. However, the company appealed against the NLRC’s decision to the Seoul Appeals Court and the Government, in the meantime, imposed penal sanctions on the management of the OMRON company for violating the provision on unfair dismissals of the Labour Standards Act on 2 November 1998.

529. While noting that the corresponding legal sanctions have been applied to the companies concerned, the Committee would recall that no person should be dismissed or prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities [see Digest, op. cit., para. 696] and it is for governments to ensure that this principle is respected. The Committee therefore requests the Government to take the necessary measures to enable the 182 members of the Sammi Specialty Steel Workers’ Union (dismissed in February 1997) and the six members of the Dong-hae union (dismissed in March 1998) to secure reinstatement in their posts in the Changwon Specialty Steel Company, and the OMRON company respectively. It further requests the Government to keep it informed of the outcome of the court proceedings in these two cases.

The Committee’s recommendations

530. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations: 

 (a) The Committee calls on all parties to act in good faith and expresses its hope for continued dialogue in a tripartite manner on all issues raised by it.

 (b) As regards the legislative aspects of this case, the Committee requests the Government:

 (i) to extend the right of association, recognized as of 1 January 1999, for certain categories of public servants, to all those categories of public servants who should enjoy this right in accordance with freedom of association principles;

  (ii) to take steps to recognize, as soon as possible, the right to establish and join trade union organizations for the abovementioned public servants;

  (iii) to speed up the process of legalizing trade union pluralism at the enterprise level and to this end promote the implementation of a stable collective bargaining system and to provide the text of the draft bill submitted to the National Assembly;

  (iv) to repeal the requirement, contained in section 40 of the TULRAA, to notify to the Ministry of Labour the identity of third parties in collective bargaining and industrial disputes as well as the penalties contained in section 89(1) of the TULRAA for violation of the prohibition on persons not notified to the Ministry of Labour from intervening in collective bargaining or industrial disputes;

  (v) to amend the list of essential public services contained in section 71 of the Trade Union and Labour Relations Adjustment Act (TULRAA) so that the right to strike is prohibited only in essential services in the strict sense of the term;

 (vi) considering that the prohibition of the payment of full-time union officials by employers is a matter which should not be the subject of legislative interference, to repeal section 24(2) of the TULRAA and to provide the text of the draft bill submitted to the National Assembly;

  (vii) to repeal the provisions concerning the denial of the right of dismissed and unemployed workers to keep their union membership and the ineligibility of non-members of trade unions to stand for office (sections 2(4)(d) and 23(1) of the TULRAA);

  (viii) to keep the Committee informed of the outcome of the deliberations within the Tripartite Commission or the National Assembly on the above issues, which the Committee firmly hopes will be examined and resolved quickly in a manner that is compatible with freedom of association principles;

  (ix) to provide information on measures taken to give effect to the above recommendations and to keep the Committee informed thereon.

 (c) As regards the allegations of a factual nature:

  (i) the Committee notes with regret that despite its firm insistence on the dropping of all remaining charges pending against Mr. Kwon Young-kil, former President of the KCTU, the latter is still being tried on these charges. It expresses the firm hope that he will not be convicted on these charges and requests the Government to keep it informed of the outcome of the trial; 

  (ii) the Committee requests the Government to indicate whether the 70 KCTU leaders and activists were released unconditionally;

  (iii) the Committee urges the Government to take the necessary measures to ensure that the public servant, Lee Seung-chan, is immediately reinstated in his job. It requests the Government to keep it informed of any progress made in this regard.

 (d) As regards the KMWF’s new allegations contained in communications dated 10 December 1998 and 22 January 1999:

  (i) noting that the Government has recently adopted a four-step plan, part of which aims to minimize the arrest and detention of unionists, the Committee requests the Government to ensure that its new plan minimizing the arrest and detention of unionists is effectively implemented and police intervention in labour disputes is strictly limited, so that in future trade unionists are no longer arrested or detained for legitimate trade union activities;

  (ii) the Committee calls on all parties to exercise restraint in pursuing activities linked to labour disputes;

  (iii) recalling that workers should have the right to carry out strikes on economic and social issues as well as protest and sympathy strikes the Committee requests the Government to provide information on what exactly constitutes “obstruction of business”, a charge for which the majority of unionists listed in the annex were arrested and detained; 

  (iv) the Committee requests the Government to take the necessary measures to enable the 182 members of the Sammi Specialty Steel Workers’ Union and the six members of the Dong-hae union to secure reinstatement in their posts in the Changwon Specialty Steel Company and the OMRON company respectively. It further requests the Government to keep it informed of the outcome of the court proceedings in these two cases.