Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Republic of Korea (Ratification: 1998)

The Committee takes note of the Government’s report and the supplementary information provided in light of the decision adopted by the Governing Body at its 338th Session (June 2020).

The Committee also notes the observations of the Federation of Korean Trade Unions (FKTU) and the Korea Employers’ Federation (KEF), communicated with the Government’s report, as well as the observations of the Korean Confederation of Trade Unions (KCTU) received on 20 September 2019. It further notes the observations of the KCTU and the KEF, communicated with the Government’s supplementary information, as well as the comments of the Government on those observations.

Article 1 of the Convention. Discrimination on the basis of political opinion. Schoolteachers. The Committee recalls that, in its previous comment, it stated that, insofar as political activities undertaken by elementary, primary and secondary school teachers are held outside of the school establishment and are unrelated to teaching, a general prohibition of political activities does not constitute an inherent requirement within the meaning of Article 1(2) of the Convention and concluded that disciplinary measures against teachers who engage in such activities constitute discrimination on the ground of political opinion, contrary to the Convention. Consequently, it urged the Government to take immediate steps to ensure that elementary, primary and secondary school teachers enjoy protection against discrimination based on political opinion in conformity with the Convention, as well as measures to ensure that teachers are not subject to disciplinary measures for such reasons. The Committee notes that, once again, the Government recalls that the Korean Constitution guarantees the political neutrality of elementary, primary and secondary education and refers to decisions of the Constitutional Court of 2012 and 2014 in this regard and to its decision of 23 April 2020 maintaining that the prohibition of elementary, primary and secondary teachers to join any political party or other political organization (according to article 65.1 of the State Public Officials Act) is constitutional. The Committee cannot but reiterate that, although in certain circumstances restrictions with respect to political opinion might constitute a bona fide qualification for certain posts (an inherent requirement of the job), it is essential that such restrictions are not carried beyond certain limits. This is because such practices may come into conflict with the Convention’s provisions that require the implementation of a policy designed to eliminate discrimination on the basis of political opinion, in particular in respect of public employment (General Survey of 2012 on the fundamental Conventions, paragraph 831). The Committee notes the Government’s indication that a number of amendment bills to guarantee public officials’ and teachers’ political freedom, such as political party membership and the right to participate in election campaigns, are pending before the National Assembly. The Committee also notes the Government’s commitment to ensuring that the Committee’s requests are discussed. In this regard, the Committee notes the KCTU’s observations that bills introduced in 2017 to reform the State Public Officials Act (SPOA), the Local Public Officials Act (LPOA) and the Public Official Election Act (POEA) are still pending before the competent standing committee, despite recommendations from the National Human Rights Commission of Korea that these laws be amended. Recalling that the protection of opinions which are neither expressed nor demonstrated would be futile, the Committee requests the Government to provide information on the status of these amendments. It urges the Government to take concrete steps to ensure that schoolteachers enjoy protection against discrimination based on political opinion, as provided for in the Convention.

Inherent requirements of the job. Political opinion and public officials. In its previous comment, the Committee asked the Government to: (1) consider limiting the prohibition of political activities to certain positions and therefore consider the possibility of adopting a list of jobs in the public service for which political opinion would be an inherent requirement; and (2) in the meantime, provide information on the practical application of section 65(1) of the State Public Officials Act. The Committee notes the Government’s acknowledgment that the freedom of civil servants in terms of their expression of political opinion and activities is limited in accordance with article 7 of the Constitution which provides that: “(1) all public officials shall be servants of the entire people and shall be responsible to the people; and (2) the status and political impartiality of public officials shall be guaranteed”. It adds that this should be understood with the purpose of the career civil service system in mind, whereby public officials are recruited based on required qualifications for a certain grade and not with a specific position in view. It is only at a later stage that specific tasks and positions are allocated. The Government argues that, due to this specific characteristic of the Korean career civil service, it would be difficult to identify in advance and list the specific tasks which could be subject to limitations regarding political activities and opinion. It adds, however, that it fully understands the need for guaranteeing greater freedom of political expression to public officials and commits, when the National Assembly starts the process of revising the relevant legislation in the future, to support actively this process in order to ensure that an in-depth discussion takes place. In the supplementary information provided, the Government refers to the decision of the Constitutional Court of 23 April 2020 which ruled that the prohibition on forming or joining a political party was constitutional “as it is designed to ensure political neutrality of their service as servants to all citizens” but considered that the prohibition on forming or joining “any other political organization” was unconstitutional because it was too ambiguous. In this regard, the Government states that it will amend the State Public Officials Act in order to ensure clarity and the political neutrality of public officials. With regard to the practical application of the SPOA, the Government states that, among public officials who faced disciplinary action for violating section 65(1) over the period 2015–19, no official in general service (including teachers) has been the subject to disciplinary action for violating the prohibition of political party membership. The Committee notes, however, the KCTU’s observation that teachers were indicted in 2015 and 2017 for the alleged violation of section 66 of the SPOA which prohibits public officials from engaging in any collective activity for any labour campaign or activities other than public services; and that these cases are still pending in court. It adds that several trade unions have requested that the provisions in several acts which excessively restrict the right of political activities of public officials be revised. The Committee wishes to recall that, in cases in which one of the criteria cited by the Convention is taken into consideration in determining the inherent requirements of a job, an objective reappraisal should be made in order to determine whether these prerequisites are really justified by the requirements of the job. Consequently, it cannot but reiterate that political opinion may be taken into consideration as a prerequisite justified by the inherent requirements of a given job, only if this restriction applies to a narrow range of jobs and not for the entire public sector. The Committee asks the Government, once again, to consider limiting the prohibition of political activities to certain positions and therefore to consider the possibility of adopting, in the near future, a list of jobs in the public service for which political opinion would be considered an inherent requirement. It asks the Government to provide information on any developments made in this regard, including before the National Assembly.

The Committee is raising other matters in a request addressed directly to the Government.