Informe provisional - Informe núm. 340, Marzo 2006

Caso núm. 1865 (República de Corea) - Fecha de presentación de la queja:: 14-DIC-95 - Cerrado

Allegations: The complainants’ pending allegations concern the non-conformity of several provisions of the labour legislation with freedom of association principles and the dismissal of several public servants connected to the Korean Association of Government Employees’ Works Councils for the exercise of illegal collective action. New allegations by the IFBWW concern the unjust prosecution and imprisonment of trade union organizers and officials from the Korea Federation of Construction Industry Trade Union (KFCITU) so as to prevent the effective organization of construction workers. New allegations by the ICFTU concern the Establishment and Operation of the Public Officials’ Trade Unions Act which was fast-tracked through official consultation procedures without regard to due process while severe measures of repression were taken against the leaders of the Korean Government Employees Union (KGEU) who opposed the adoption of the Act and pressed for recognition of the right to strike

693. The Committee already examined the substance of this case at its May-June 1996, March and June 1997, March and November 1998, March 2000, March 2001, March 2002, May-June 2003 and November 2004 meetings, when it presented an interim report to the Governing Body [304th Report, paras. 221-254; 306th Report, paras. 295-346; 307th Report, paras. 177-236; 309th Report, paras. 120-160; 311th Report, paras. 293-339; 320th Report, paras. 456-530; 324th Report, paras. 372-415; 327th Report, paras. 447-506; 331st Report, paras. 165-174; 335th Report, paras. 763-841 approved by the Governing Body at its 266th, 268th, 269th, 271st, 273rd, 277th, 280th, 283rd, 287th and 291st Sessions (June 1996, March and June 1997, March and November 1998, March 2000, March 2001, March and June 2003, and November 2004)].

1. 694. In a communication dated 12 October 2004, the International Federation of Building and Wood Workers (IFBWW), which had associated itself to this case in a communication dated 19 January 1996, submitted new allegations. In a communication dated 3 May 2005, the International Confederation of Free Trade Unions (ICFTU) submitted new allegations.
2. 695. The Government provided its observations in communications dated 28 February and 7 September 2005 and 16 January 2006.
3. 696. The Republic of Korea has not ratified either the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 697. At its November 2004 session, in the light of the Committee’s interim conclusions, the Governing Body approved the following recommendations:
2. (a) As regards the legislative aspects of this case, the Committee requests the Government:
3. (i) to confirm that the Public Officials. Trade Union Bill permits the possibility of trade union pluralism and to take the necessary measures in the very near future so as to ensure that all public servants fully enjoy the right to establish and join trade union organizations of their own choosing;
4. (ii) to take rapid steps for the legalization of trade union pluralism, in full consultation with all social partners concerned, so as to guarantee at all levels the right of workers to establish and join the organization of their own choosing;
5. (iii) to enable workers and employers to conduct free and voluntary negotiations in respect of the question of payment of wages by employers to full-time union officials;
6. (iv) to amend the list of essential public services in section 71(2) of the Trade Union and Labour Relations Amendment Act (TULRAA) so that the right to strike may be restricted only in essential services in the strict sense of the term;
7. (v) to repeal the notification requirement (section 40) and the penalties for violation of the prohibition on persons not notified to the Ministry of Labour from intervening in collective bargaining or industrial disputes (section 89(1) of the TULRAA);
8. (vi) to repeal the provisions prohibiting dismissed and unemployed workers from keeping their union membership and making non-union members ineligible to stand for trade union office (sections 2(4)(d) and 23(1) of the TULRAA);
9. (vii) to bring section 314 of the Penal Code (obstruction of business) in line with freedom of association principles and to rectify the situation of any workers who may have been penalized under this provision for non-violent industrial action and to provide further details, including any court judgements, on the 28 cases of workers arrested for obstruction of business in 2003, despite the absence of violent acts;
10. (viii) to keep it informed of the progress made in respect of all of the abovementioned matters.
11. (b) As regards the factual aspects of this case:
12. (i) the Committee requests the Government to provide information on the outcome of the appeal made by Kwon Young-kil, former president of the KCTU, and to transmit a copy of the court judgement in this case;
13. (ii) noting that the dismissal of 12 public servants connected to the Korean Association of Government Employees. Works Councils was in large part due to the absence of legislation ensuring their basic rights of freedom of association and that four of the dismissed have already been reinstated, the Committee requests the Government to provide information on the outcome of the administrative litigation and requests for examinations under way, as well as a copy of the Supreme Court judgement in the case of Oh Myeong-nam.
14. B. The complainants’ new allegations
15. New allegations by the IFBWW
16. 698. In its communication dated 12 October 2004 the International Federation of Building and Wood Workers (IFBWW) made new allegations of victimization and discriminatory prosecution and imprisonment of union officials and local organizers of the Korean Federation of Construction Industry Trade Union (KFCITU), an affiliate of the Korean Confederation of Trade Unions (KCTU) and the IFBWW. According to the allegations, since September 2003, the police and the prosecution had launched a series of unjust investigations specifically targeting the organizing efforts of KFCITU local unions in an attempt to stop the union from carrying out organizing activities aimed at establishing more effective representation and collective bargaining for workers in the construction industry. The complainant explained that the KFCITU represented an amalgamation of workers in the construction industry. It was comprised of enterprise unions (white-collar workers), trade unions (electricians, tower crane operators and ready-mixed cement drivers) and local unions organizing construction site workers and construction plant workers. The latter category amounted to more than 1.8 million workers. The workers (carpenters, masons, steel workers, painters, dry welders and other skilled labourers) were basically non-permanent, irregular, seasonal workers, hired by contractors and subcontractors on a daily basis. Since these workers were paid for each day of work performed, if they missed work due to an illness, family emergency or for any other reason, or if the construction site closed due to rain, natural disasters or for any other reason, they were not paid. Despite working at least ten to 12 hours a day, seven days a week under dangerous and undignified working conditions, their wages barely sustained them. An average of two construction workers died every day due to an accident at the worksite. South Korean construction sites could be compared to “war zones” due to the high number of accidents that resulted in serious injuries and deaths of construction site workers. Although the Republic of Korea was now part of the Organisation for Economic Co-operation and Development (OECD), the rate of construction site accidents was similar to that of non-OECD countries. Because of this, occupational safety and health (OSH) issues were a serious priority for construction site workers. Clearly one of the ways for construction site workers to address their concerns and improve their lives was through forming and participating in trade union activities. The police and the prosecution had specifically targeted the nine KFCITU local unions organizing construction site workers in the construction of big apartment complexes and buildings.
17. 699. The complainant explained that South Korean construction sites were a complex pyramid structure comprised of one main construction company and several subcontractors that often went down to seven levels. In this organizational structure, the main construction company “hid” behind several layers of contractors and subcontractors to remove itself from any responsibility over the construction site workers who were hired by the contractors and subcontractors. This system also allowed the project budget to be reduced by more than 50 per cent and was accountable for the low wages, unsafe working conditions and lack of benefits for construction site workers.
18. 700. The complainant added that although efforts to organize these workers since 1988 had met with minimal success (the union density of construction site workers lying at a depressing 0.1 per cent), in 1999, the KFCITU received a grant from the IFBWW to educate and train organizers, union officials and union members with the objective of assisting the union’s organizing programme to further increase its union density. The South Korea Trade Union Development and Education Project was critical of the union’s decision to develop a national organizing programme, which they launched in 2000. Part of the programme included the signing of a collective agreement between the local unions and the main construction companies represented by company managers and supervisors at the construction site.
19. 701. The complainant stated that as a result of the collective agreement signed, the main construction companies agreed to abide by South Korean labour laws and ensure worker rights at the construction site. In addition, the main company agreed to the following: (i) ensure and allow union activities at the construction site. These activities included access to the construction site, educating union members about South Korean labour laws and other government benefits, election of site delegates and worker representatives, promotion of union activities and recruiting new members, and putting an end to corrupt practices by construction companies; (ii) meet OSH guidelines and regulations, establish OSH committees, educate workers about OSH issues, and provide necessary safety equipment to workers; (iii) contribute to the national employment insurance programme and pension plan; (iv) provide sanitary and clean washing facilities, bathrooms and cafeterias. The collective agreement allowed the union to form OSH committees that monitored the abidance by OSH guidelines and regulations at each construction site, leading to a considerable decrease in the number of accidents in these construction sites and also allowed workers to directly approach the union to help them in receiving their back payments. In the first half of 2003, the total amount of back payments owed to construction site workers was more than US$125 million. The local unions’ contribution was critical in helping workers get their back payments. The local unions were also able to educate workers at the construction site about requirements and changes in employment insurance programmes, pension plans, and other national government social benefits applicable to construction site workers. In addition, as a result of the collective agreement, the Kyonggido Subu local union was successful in their “No Work on Sundays” campaign, in which the local union was able to stop work at 30 construction sites in Ohsan/Hwasung, Ahnyoung, Euiyang, and Kunpo areas on Sundays. This set a historical precedent and encouraged other local unions to try to incorporate this provision in their collective agreement negotiations. The major success in the signing of collective agreements was an increased union presence at the construction site and an increase in union membership by more than 5,000 members since 2000.
20. 702. The complainant explained that a collective agreement with the main construction company, rather than contractors and subcontractors, was necessary for the following reasons: (i) the main construction company was responsible for contributing to the national employment insurance programme and pension plan and ensuring the South Korean labour laws were followed at the workplace, including with regard to OSH; (ii) the main construction company might exert significant control and influence over the employment practices of the contractors and subcontractors, for example, by urging them to tell the workers to either not join or quit the union, or threatening to terminate the contract with the subcontractor if the latter failed to follow the main company’s suggestions; (iii) local unions could only have access to the construction site with the permission of the main construction company.
21. 703. According to the complainant, the recent government crackdown was an attempt to stop construction site workers from organizing for their rights to living wages, good benefits, safe and decent working conditions and dignity in the workplace. The complainant attached a chronological table which indicated that police action and prosecution in the three local regions of the Republic of Korea (Daejeon, Chunahn, Kyonggido Subu) followed a pattern which amounted to a concerted attack on union officials and organizers. These actions involved charges based on criminal rather than labour law and included imprisonment of union organizers and union officials prior to trial. The simultaneous actions demonstrated, according to the complainant, that these were not independent cases but part of a deliberate and coordinated attack on members of the KFCITU. In total, 14 union officials and organizers had been arrested and jailed. Six union officials and organizers in the Daejeon local union (Lee Sung Hwe, Kim Myung Hwan, Kim Wool Hyun, Cho Jung Hee, Noh Jae Dong, and Park Chung Man); Park Yong Jae and Noh Sun Kyun, President and Vice-President of the Chunahn local union; six union officials and organizers with the Kyonggido Subu local union (Kim Seung Hwan, Kim Kwang Won, Lee Myung Ha, Kim Ho Joong, Choi Jung Chul, and Lee Young Chul). In addition, five union organizers with the Kyonggido Subu local union (Yi Joo Mo, Ha Dong Yun, Ko Tae Hwan, Son Hyung Ho and Park Jung Soo), were on the “run” since they were wanted by the police for further questioning and had no confidence that they would be treated justly.
22. 704. The complainant added that the police and the prosecution’s investigations focused on the collective bargaining agreements signed between the local unions and the main construction companies. Police began their investigations with the Daejeon and Chunahn local unions and then expanded to the organizing activities of the Deagu local union, Kyonggido local union, Incheon local union and Kyonggido Subu local union. Using criminal law, the police and prosecution charged union officials and organizers with using force and coercing construction site managers who were hired by the main construction company to sign collective agreements. The police further alleged that the local unions threatened to report OSH violations if the main construction company did not sign these agreements. In addition, the police claimed that the local unions extorted payments as a result of these collective bargaining agreements. The complainant added that the police and the prosecution overstepped the limits of their power by investigating the organizing efforts of the local unions of the KFCITU and had intervened in the legitimate collective agreement negotiations between the local unions and the main construction company.
23. 705. The complainant further alleged that the investigations were initiated and carried out by the criminal division of the police and prosecution division, which have no familiarity with labour issues and trade union activities, despite the fact that there was a specific section that addressed union activities in both divisions. Although the police and the prosecution interviewed several construction site managers as part of their investigations, the reality was that the police and the prosecution had already determined the guilt of the union officials and organizers. Several construction site managers who were witnesses for the prosecution stated that their statements during the investigations were different from what was presented at the trial. The police’s line of questioning was focused on ways to provide evidence of the “guilt” of the local union officials and organizers. In addition, the police “grilled” construction site managers, in some cases for hours, to state that they were forced by the union to sign the collective agreements. Although several construction site managers denied being forced or coerced to sign collective bargaining agreements, the police had already come prepared with written statements stating otherwise and under pressure from the police, these construction site managers felt compelled to sign these statements. The police and the prosecution deliberately jailed and sought arrest warrants for local union officials and organizers on a mass scale.
24. 706. On 16 February 2004, the trial of the six Daejeon union officials and organizers came to an end. Finding the six guilty, the judge presiding the case ruled that they did indeed use “force” to coerce the main construction company to sign collective bargaining agreements and the six received payments as a result of these agreements. However, the judge stated that since the six were implementing the national organizing programme of the KFCITU and the payments received from the collective agreements were for organizational purposes and not personal use, they were not personally liable. Consequently, the judge gave each of the accused a “light” sentence. The judge further ruled that the collective agreements signed by the union and the main construction company were only applicable to employees of the main company. According to the judge, these collective agreements did not apply to workers hired by contractors, subcontractors, sub-subcontractors, sub-sub-sub-contractors and so on. The local union appealed the verdict and the appellate court was currently reviewing the case.
25. 707. The judge presiding the case of Park Yong Jae, President of the Chunahn local union, found Park guilty and sentenced him to imprisonment for one year. In the case of Noh Sun Kyun, Vice-President of the Chunahn local union, there were serious errors in the gathering of “evidence”. Noh was elected Vice-President in September 2003 but the police accused him of signing collective agreements prior to September. After reviewing the documents, the prosecution recognized the police errors and that they did not have sufficient evidence against Noh to go to trial. Thus, they were forced to release him on 1 November 2003. Nevertheless, the prosecution proposed to fine him with 2 million Korean won. Even though the judge at the time apologized for the police error, he agreed with the prosecution’s recommendation when he announced his sentence on 27 August 2004. Thus, he was fined with 2 million Korean won.
26. 708. The six Kyonggido Subu union officials and organizers were released on bail. Kim Ho Joong, Choi Jung Chul, and Lee Young Chul were currently facing trial which had begun on 3 September 2004. The complainant concluded by indicating its belief that the police investigations were part of a campaign to intimidate and persecute union members who were carrying out legitimate trade union activities to encourage effective collective bargaining and freedom of association.
27. New allegations by the ICFTU
28. 709. In a communication dated 3 May 2005, the ICFTU submitted new allegations concerning the continued repression of the Korean Government Employees Union (KGEU), affiliated to the Korean Confederation of Trade Unions (KCTU) which is affiliated to the ICFTU. The ICFTU added that the KGEU had throughout 2005 protested against the proposed Bill on the Public Officials’ Trade Union Act owing to, inter alia, the fact that the bill did not recognize the right to strike. The bill was passed by Parliament on 31 December 2004 and was to enter into force in 2006. A positive feature of the bill was that it would allow public servants to form trade unions. However, ICFTU sources maintained that the bill was fast-tracked through official consultation procedures without regard for due process and contained unacceptable provisions that would restrict trade union rights. The complainant then presented a series of trade union rights violations which allegedly took place between April 2004 and the spring of 2005.
29. April 2004 arrests
30. 710. The complainant alleged that on 2 April 2004, arrest warrants were issued against nine KGEU leaders; the Vice-President Kim Jung-Soo was arrested on 3 April 2004, and 18 KGEU members were arrested by the police the day after at a press conference that was set up to demand the immediate release of Kim Jung-Soo. Several regional branch leaders of the KGEU had had arrest warrants issued against them, or were summoned to appear before the police during the weeks that followed the arrest. On 21 April 2004, a further six KGEU trade union leaders were arrested. They included President Kim Young-Gil, Vice-Presidents Kim Sang-Girl, Kim Jung-Soo and Kim Il-Soo, and General Secretary Ahn Byeong-Soon. While many of the other arrested unionists were quickly released, the above five KGEU leaders were kept for at least five days. On 8 June 2004, President Kim Young-Gil received a four-month prison sentence suspended for two years for violation of the Public Officials Act and an eight-month prison sentence equally suspended for two years for violations of election laws. Vice-President Kim Jung Soo and General Secretary Ahn Byeong-Soon both received on the same day a four-month prison sentence suspended for two years for violation of election laws, and a six-month prison sentence equally suspended for two years for violation of the Public Officials Act.
31. October 2004 arrests
32. 711. The complainant further alleged that in a new wave of repression, riot police were reportedly placed in front of all major universities in order to prevent the KGEU from holding a rally in order to mobilize opposition to the proposed bill on 9 and 10 October 2004. At 9 p.m., when 1,500 KGEU members, who had gathered at the subway station near Kunkook University, attempted to enter the university, the police responded violently and ten union members were injured. Another 40 members were arbitrarily detained for 20 hours. On 31 October, the Public Sector Union Solidarity (KPSU) and the KGEU jointly held another rally in Seoul. Around 10,000 public sector workers including government employees participated in the rally, but more than 6,000 riot policemen were deployed to prevent strikers from reaching the rally venue. Forty-four strikers were arrested and released 27 hours later. A KPSU member who resisted illegal questioning was reportedly beaten up by the police.
33. Arrests at the beginning of November 2004
34. 712. The complainant also alleged that during the period 6-8 November 2004 arrests took place in Gokseong-gun county, Seoul, Gangwon-do, Ulsan, Gyeongnam-do, Jeonnam and many other locations totalling around 121 arrests. The arrests were part of a government attempt to prevent nationwide rallies organized by the KCTU and the KGEU in protest at the Bill on the Public Officials’ Trade Union Act. The Government also attempted to prevent KGEU members from voting on a general strike on 15 November, and confiscated KGEU ballot boxes. Public security forces raided not only union offices but also private homes and cars of union officials and even private homes of their relatives. Union rallies were dispersed throughout the country, sometimes violently, leaving dozens of union members injured.
35. (a) In Gokseong-gun county, four members of the Gokseong-gun county section of the KGEU Jeonnam regional branch were arrested at around 10 a.m. on 6 November 2004 for organizing a vote on industrial action. The arrested trade unionists were Mr. Joh Myeong-Ik, Section Director of Planning, Mr. Kim Hee-Cheon, Section’s Assistant Director of Policy, Mr. Hwang Hee-Tae, Section’s Director of Policy, and Ms. Park In-Jah, Section’s Director of External Relations. The police also took the ballot box containing 40 members’ voting papers. Around 11 a.m., Mr. Kim Jin-Seoung, a member of the Seoguipo-si (city) section of the KGEU Jeju regional branch, was threatened with arrest if he did not help the detectives’ investigation. He was released about four hours later. Two more members were arrested while trying to join the rally. They were released hours later.
36. (b) In Seoul, the police openly threatened that all government employees who participated in the rally scheduled to take place at 3 p.m. would be arrested. Three members of the KGEU Seoul Metropolitan branch, Mr. Yoon Yong-Ho, Chairperson of the Gwanak-ku district section, Mr. Kim Joo-Hwan, Director-General of the section, and Mr. Jeh Chang-Rok, Chairperson of the Seongbuk-ku section were arrested. Before the rally, riot police blocked a district office in Incheon and investigated all government employees prone to join the rally. At or around 10 p.m., police stormed the office of the Gangseo-gu section of the KGEU’s Seoul branch with seizure and search warrants. Union computers and all material they thought related to the vote, including ballot papers and poll boxes, were confiscated.
37. (c) In Gyeongi-do province, the detectives closely followed union leaders of the branch threatening them with arrest if they tried to join the rally. Furthermore, a KGEU Gyeongi regional branch member, Mr. Yoo Je-Il was arrested close to the rally venue.
38. (d) In Gangwon-do, riot police broke into a university, initially supposed to be the rally venue, blocked the building and started investigating government employees. The members of the KGEU Gangwon regional branch then had to change the rally venue, but riot police violently dispersed KGEU members and arrested some of them. Those arrested were Mr. Kim Cheol-Gi, and Mr. Park In-Cheol from Wonju-si section, Mr. Huh Pil-Yong from Chuncheon-si section, and Mr. Gahng Gi-Mahn from Samcheok-si section. Before the rally, police had forcefully stopped KGEU section buses from departing at a number of locations throughout Gangwon region.
39. (e) In Daegu, the authorities announced that a search warrant against the regional branch office would be given to the police.
40. (f) In Ulsan, riot police also blocked the rally venue and investigated government employees. Three members, Mr. Kim Sang-Hwan from the Waterworks Facilities’ Section, Messrs. Lee Tae-Ha and Gwon Myeong-Ho from Nam-gu section, were arrested while trying to reach the rally venue. Riot police questioned all participants, though the rally was discontinued; they also tried to arrest some government employees. Mr. Lee Jae-Hak, Chairperson of Ulju-gun section and Mr. Lee Jun-Ho from Nam-gu section were arrested when leaving the rally.
41. (g) In Geongnam-do, one hour before the rally, riot police entered the venue and seized all KGEU material including the union’s flags and banners. KGEU sections buses that were departing for the rally all over the Gyeongnam region were stopped by the police. The police also detained government employees that might join the rally inside the city hall for hours. In the morning, Mr. Noh Gi-Hwan, Chairperson of Hamyang-gun section was arrested for encouraging collective activities and in Milyang-si, eight members were arrested on their way to the rally. They were released four hours later. Furthermore, four members of the KCTU were arrested and questioned while they were trying to join the rally. The KGEU Gyeongnam branch and the regional KCTU council nevertheless succeeded in starting the rally, but while the rally was in process, riot police went into action and dispersed the participants violently. Tens of KCTU members were arrested and injured.
42. (h) In Jeonnam, 78 members of Haenam-gun section of the KGEU Jeonnam regional branch, being bussed to the venue, were forced to stop by the police and all of them were arrested.
43. (i) In Jeonbuk, riot police blocked the rally causing KGEU members and KCTU members to hold separate rallies.
44. 713. The complainant added that those arrested on 6 November were all released on 8 November. In addition to this, on 7 November at 8.30 a.m., the office of Seoguipo section of the KGEU Jeju branch was raided by the police with a seizure and search warrant. The police ordered ballot papers to be surrendered. When they could not find the papers, they searched the home and car of the chairperson of the section, as well as the home of his father. At 10.30 a.m. the same day, police detectives confiscated ballot papers in the Euiryeong section of the KGEU Gyeongam branch. And at 5 p.m., the police broke into the office of the Pocheon section of KGEU’s Gyeonggi branch. Ballot papers and computers were taken by the police. They searched the Vice-Chairperson’s home and car, as well as those of the Director-General. On the same day at 9 p.m., the office of the Yeongdo section of KGEU’s Busan branch was raided by riot police. They took union posters, meeting documents and even destroyed some union documents. The office of the Dong-gu section of the union’s Busan branch was similarly raided.
45. 714. According to the complainant, police raids continued on 8 November. On this day, the police raided the office of the Gokseong section of Jeonnam branch at 11.30 a.m. Ballot papers and all material related to the vote, as well as computers were taken away. Equally at 11.30 a.m., detectives and district managers confiscated ballot papers and poll books in Guro section office of the KGEU’s Seoul branch. Riot police units were deployed around the union’s office and in other parts of the Guro-gu district. At 1.30 p.m., Sohn Dae-Hyeop, Director-General of Daiseong-gun section of Daegu/Gyeongbuk branch, was arrested when he tried to distribute ballot papers. He was allegedly treated as a criminal during his arrest; all the union’s documents were reportedly confiscated. At 6 p.m., the police broke into the office of Yeongdong section of KGEU Chungbuk branch. The Director-General of the section, who opposed police violence, was detained for several hours.
46. 715. According to the complainant, the Ministry of Government Administration and Home Affairs (MOGAHA) announced on 9 November that it had searched a total of 47 branches of the KGEU’s 207 branches and that it had pre-empted the vote of 37 branches and made 51 branches give up or voluntarily end the voting. On 9 November, the Government also confirmed that arrest warrants against KGEU President Kim Young-Gil and General Secretary Ahn Byeong-Soon were issued and several companies of riot police were deployed around the KGEU office. On 10 November, riot police were also deployed around KGEU section offices, threatening to sweep away any “illegal collective activities”.
47. 716. The complainant further indicated that another 40 trade union leaders including KGEU First Vice-President Jeong Yong-Cheon and five other Vice-Presidents had arrest warrants issued against them in order to prevent the general strike planned for 15 November. A non-exhaustive list was attached to the complaint (see Annex I). In the run-up to the general strike, a “work-to-rule campaign” had been launched, which had been declared illegal and described as dereliction of duty by the authorities. Furthermore, the MOGAHA issued a directive on “disciplinary measures concerning KGEU’s general strike” to government offices and local governments. According to the directive all means could be used to prevent the strike. This included making a blacklist of trade union activists and any employee expected to participate in collective activities, tracking mobile phones to determine the location of striking trade unionists, questioning colleagues and acquaintances, reporting about the existence of strike funds and forming special task force units to secure evidence, i.e. pictures and video of striking civil servants. In the directive, the MOGAHA also threatened to punish all who would collaborate, tolerate or be too lenient with the strikers.
48. Arrests in mid-November
49. 717. The complainant further alleged that riot police arrested around 191 unionists between 13-17 November, including several local union leaders after rallies and walkouts or in front of their trade union offices. A list of the arrests was attached to the complaint (see Annex II). Some of those arrested were questioned by the police.
50. 718. According to the complainant, before the general strike, the Government had intimidated unionists by threatening to dismiss them if they participated in the strike, which led many unionists to refrain from exercising their legitimate right to strike. Furthermore, local governments had mobilized substitute staff during the strike. A total of about 3,200 unionists were facing dismissal after the walkouts and the rallies. The MOGAHA even threatened legal action against local governments that did not dismiss all striking workers. The prosecutor promised strict punishment for all strikers and stated that no compromises or deals would be made with strikers.
51. Intimidation, harassment and interference
52. by the Government
53. 719. The complainant added that it had received reports according to which the Minister of Government Administration and Home Affairs, Huh Sung Kwan, has repeatedly announced repressive government measures, and used intimidating language towards the KGEU. It has been informed that the Minister conducted a press conference with the Chief of the National Police Agency, Ki Moon Choi, on 8 September 2004, when it was announced that all rallies and demonstrations would be banned and organizers and participants charged with criminal offences. The Minister also announced that he might withhold subsidies from local government authorities negotiating with the KGEU with a view to drawing up collective agreements, thus attempting to jeopardize collective bargaining. The Minister was also reported to have said that the Ministry would prevent KGEU from creating a struggle fund, and prosecute organizers thereof. He further issued directives on 9 and 13 September 2004 prohibiting government departments from permitting the collection of union solidarity funds and the collection of union fees for the KGEU on the grounds that it was an illegal organization. Ahead of the general strike on 15 November, the Government also intimidated unionists by threatening to dismiss them if they participated in the strike and the MOGAHA issued a directive on “disciplinary measures concerning KGEU’s general strike” as described in detail above. After the strike, the Minister Huh Sung-kwan threatened to revise the laws imposing stricter penalties on strikers; the current penalties already being one year of imprisonment or up to a 3 million Korean won (US$2,700) fine. Furthermore, the complainant had been informed that the MOGAHA had started a “New Wind Campaign” at the end of 2004 targeting the KGEU and promoting a (sic) “reformation of organizational culture, focusing on rearing workplace councils and healthy employee groups”. The complainant was very concerned at the abovementioned attempts of intimidation and interference by the MOGAHA, which could only be described as anti-union behaviour.
54. Arrests and sentences in spring 2005
55. 720. The complainant had also been informed that since arrest warrants were issued against Kim Young-Gil and Ahn Byeong-Soon on 9 November 2004, the police had been looking for the two men. Riot police had surrounded and monitored the KGEU office building since November and prevented almost every event of the union. The police finally arrested KGEU President, Kim Young-Gil at 2 a.m. in the morning of 8 April 2005. His union feared that he would be detained and imprisoned for several months. On 28 April, Kim Young-Gil was prosecuted under charges of violation of the Public Officials Act. A few weeks earlier, on 15 March, the General Secretary Ahn Byeong-Soon was also arrested. On 17 March, the courts allowed for his continued detention in Seoul prison, however, Ahn was released on 28 April after 44 days in prison. He was sentenced to an eight-month imprisonment with two years’ suspension of sentence.
56. C. The Government’s reply
57. New allegations by the IFBWW
58. 721. In its communication dated 28 February 2005 the Government indicated with regard to the new allegations made by the IFBWW that the legitimacy of the collective agreements signed by the KFCITU should be reviewed from the point of view of: (i) the parties to collective bargaining; (ii) the methods and procedures for collective bargaining; (iii) the recognition of full-time unionists and employers’ payments to them; and (iv) the conclusion of collective agreements and the methods of collecting payments to full-time unionists. With regard to (i) the Government indicated that according to the Supreme Court ruling of May 1993, an “employer” was a person who had an “employment relationship” with the workers – who had made an employment contract with workers for the purpose of receiving labour from the workers and paying wages to them in return, while directing and supervising them. With regard to construction work carried out by a subcontractor, in principle, it was the subcontractor who was the employer of the workers even if the work took place at the construction site of the original contractor. However, with exceptions, in the event that the original contractor contributed to the purchase of Industrial Accident Compensation Insurance for the daily workers hired by subcontractors, directly paid them wages daily, provided them with equipment and facilities required for the construction and supervised their work, the daily workers should be considered to have made an employment contract with the original contractor and the original contractor could be considered the “employer” of these workers (in August 1986, the Supreme Court issued a ruling to this effect). With regard to the complaint in question, the Government indicated that since subcontractors were the ones who directly hired and paid daily wages to the workers, the employer’s party to collective bargaining or agreement with the KFCITU was not the original contractors but the subcontractors.
59. 722. With regard to (ii), the Government indicated that collective bargaining should be carried out freely between a trade union and an employer. In principle, a trade union should demand collective bargaining from the representative of the workplace where the union members worked. If the workers were members of the KFCITU, the employer had a duty to bargain with the trade union. But if an original contractor hired workers who had not joined the KFCITU, it could not be easily argued that the original contractor had a duty to take part in bargaining with the KFCITU. Thus, it was not justifiable for the KFCITU to coerce an original contractor into concluding a collective agreement when there were no KFCITU members working for the original contractor or when the original contractor did not know whether the workers were members of the KFCITU (the construction site manager was not allowed to check the list of KFCITU members on the site).
60. 723. With regard to (iii), the Government indicated that the Trade Union and Labour Relations Act stipulated that a full-time unionist was one who was employed by a firm and was engaged only in trade union activities without doing work stated in an employment contract. Thus, if an executive of a trade union was not employed by a firm in charge of the construction site, he/she could not request the firm to recognize him/her as a full-time unionist. With regard to the case in the complaint, the KFCITU received money from the original contractors in the name of “activity payment” to full-time unionists. In fact, the KFCITU called upon the third party employer to give money to the trade union in the name of “activity payment” to executives of the trade union.
61. 724. With regard to (iv) the Government indicated that even if a full-time unionist was recognized and payment to him/her was to be provided as a result of collective agreements or approval from the employer, the payment should be made in a way that was universally accepted. Although a person had a right to do something, if the means and manner of exercising the right were not what was universally accepted, they could not be justified and committed an abuse of right. If a full-time unionist received money and other valuables using illegal means such as blackmail or threats, this constituted the crime of blackmail under section 350 of the Criminal Law. With regard to the specific case, union executives (who were at the time detained or wanted by the police) had visited the construction site managers of the original contractors who did not have the obligation to conclude collective agreements and coerced them to sign the agreements. When the managers refused, the union executives threatened that they would accuse the original contractors of insufficient safety measures at the construction sites (some actually did accuse and the accused original contractors immediately concluded collective agreements with the KFCITU for fear of disadvantages to come). As a result, the union executives received 60 million to 180 million Korean won from the original contractors under the pretext of “activity payment” to full-time unionists according to the collective agreements. The crime of blackmail applied in this case, since union executives threatened and received money from a person who had no duty to sign a collective agreement. The threat committed by conspiracy of two or more people constituted a violation of the Act on the Punishment of Violence.
62. 725. The Government concluded by stating that the defendants and suspects who were executives of the KFCITU were the ones who coerced people with no obligation to do so into signing collective agreements and who received money and other valuables under the pretext of “activity payments” to full-time unionists. Thus, the collective agreements concluded could not be considered legitimate. Since such acts constituted the crime of blackmail, detaining and searching for the KFCITU unionists could hardly be regarded as infringing on legitimate trade union activities or collective bargaining.
63. New allegations by the ICFTU
64. 726. In a communication dated 16 January 2006, the Government provided its comments to the allegations submitted by the ICFTU. With regard to the allegation concerning the fast-tracking of the Public Officials’ Trade Union Act, the Government indicated that after one year of discussions at the Tripartite Commission since July 2001, the Government drafted and proposed a legislative bill in 2002, which was opposed by organized public officials. So the Government accepted considerable part of their demands and redrafted a new legislative bill. In this process, the Government gathered opinions from various circles by conducting interviews and working-level consultations with organized public officials, holding an open forum (5 June 2003), and making a preliminary announcement of the legislative bill (23 June-12 July 2003).Therefore, the ICFTU’s argument that the bill was fast-tracked through official consultation procedures without regard to due process was groundless.
65. 727. The Government emphasized that the KGEU was an organization established by public officials who were not allowed to organize a trade union under the then applicable State Public Officials Act or Local Public Officials Act. Accordingly it was not a trade union protected by the Trade Union and Labour Relations Adjustment Act. In the Republic of Korea, if public officials established a trade union in an illegal manner, voted on industrial action, or refused to perform their official duties by collectively refusing to attend work, they were considered to have committed an illegal act in violation of national laws.
66. 728. The Government added that in the past, public officials in the Republic of Korea, excluding those engaging in de facto “simple labour”, were not given the right to organize in accordance with the State Public Officials Act. However, as the Public Officials’ Trade Union Act was enacted on 31 December 2004 and was due to become effective from 28 January 2006, their freedom of association was expected to be guaranteed to a considerable extent. However, under the new Act, the right to collective action is restricted to ensure that minimum services are maintained.
67. 729. With regard to the April 2004 arrests, the Government indicated that the following six KGEU leaders were arrested on charges of supporting a particular political party in relation to the 17th general election due to be held on 15 April 2004: (i) KGEU Vice-President Kim Jung-Soo was arrested on 6 April 2004 and released on 8 June 2004 after receiving a ten-month prison sentence suspended for two years; (ii) KGEU Vice-Presidents Kim Il-Soo and Ban Myung-Ja were arrested on 9 April 2004; Kim Il-Soo was released on 29 April 2004 following the decision on the arrest cancellation; Ban Myung-Ja was released on 22 April 2004 after the legality of the arrest was examined; (iii) KGEU President Kim Young-Gil, General Secretary Ahn Byeong-Soon and Vice-President Kim Sang-Girl were arrested on 23 April 2004; Kim Young-Gil was released on 8 June 2004 after receiving a one-year prison sentence suspended for two years; Ahn Byeong-Soon was released on 8 June 2004 after receiving a ten-month prison sentence suspended for two years; Kim Sang-Girl was released on 28 April 2004 after the legality of the arrest was investigated.
68. 730. According to the Government, the arrested KGEU leaders held a national convention of KGEU delegates on 23 March 2004 before the general election of 15 April 2004, decided at the convention to support the Democratic Labour Party (DLP) in the 17th general election and posted the decision on the union’s web site. On 30 March 2004, they held a press conference at which they demanded that public officials be allowed to engage in political activities and announced their decision to support the DLP. They sent KGEU members a letter in the name of the KGEU President to encourage them to vote for the DLP and declared that they would stage struggles to implement their decision by providing support and conducting a campaign to collect political funds for DLP candidates likely to be elected.
69. 731. Their acts constituted “public officials’ political movements” prohibited under section 65 of the State Public Officials Act and section 57 of the Local Public Officials Acts (punishable by imprisonment of up to one year or a fine not exceeding 3 million Korean won according to section 84 of the State Public Officials Act and section 82 of the Local Public Officials Act); and “collective acts for work other than public services” prohibited under section 66 of the State Public Officials Act and section 58 of the Local Public Officials Act (punishable by imprisonment of up to one year or a fine not exceeding 3 million Korean won according to section 84 of the State Public Officials Act and section 82 of the Local Public Officials Act). They were also considered illegal acts falling under “election campaigns by organizations prohibited from engaging in election campaigns” pursuant to section 87(1)8 of the Act on the Election of Public Officials and the Prevention of Election Malpractices (punishable by imprisonment of up to three years or a fine not exceeding 6 million Korean won according to section 255(1)11 of the same Act); “election campaigns by public officials” prohibited pursuant to section 60(1)4 of the same Act (punishable by imprisonment of up to three years or a fine not exceeding 6 million Korean won according to section 255(1)1 of the same Act); and “unlawful distribution of documents” prohibited pursuant to section 93(1) of the same Act (punishable by imprisonment of up to two years or a fine not exceeding 4 million Korean won according to section 255(2)5 of the same Act). The KGEU leaders were arrested because they were involved in organizing and leading these illegal acts. The arrest had nothing to do with establishing a trade union or engaging in union activities.
70. October 2004 arrests
71. 732. With regard to the October 2004 arrests, the Government indicated that the KGEU held a nationwide rally from 9 to 10 October 2004 and a joint rally with the Korean Federation of Transportation, Public and Social Services Workers Unions (KPSU) on 31 October 2004, both of which were illegal, demanding that public officials’ right to collective action (right to strike) be guaranteed in the bill on public officials’ trade unions, which granted public officials the right to organize, the right to collective bargaining and the right to conclude collective agreements. Though it was true that the police kept public officials from reaching the rally venues, all the public officials arrested in the process were immediately released after investigation, leaving no one detained. The ICFTU’s allegation that 44 strikers had been arrested was not factual. Their acts were considered illegal under the current Public Officials Acts prohibiting public officials from engaging in labour movements and collective acts other than public services (section 66 of the State Public Officials Act, section 58 of the Local Public Officials Act). That was why the police prevented their acts. Collective action by public officials was an illegal act not allowed even by the Public Officials’ Trade Union Act soon to be implemented after passage through the National Assembly.
72. Arrests at the beginning of November 2004
73. 733. With regard to further arrests at the beginning of November 2004, the Government indicated that the KGEU planned to go on a general strike starting from 15 November 2004 and attempted to vote on the strike in its 231 branch offices across the nation from 9 to 10 November 2004, demanding that the right to collective action (right to strike) be guaranteed in the bill on public officials’ trade unions. However, the allegation by the KGEU and ICFTU that during the period of 6-8 November 2004, arrests took place in Gokseong-gun of Jeonnam, Seoul, Gangwon-do, Ulsan, Gyeongnam, Jeonnam and many other locations totalling around 121 arrests was not true. In fact, no one had been arrested during the said period. Just one person, called Lee Chang-Hwa, Chairperson of the Goryeong-gun section of Daegu/Gyeongbuk branch, was arrested on 12 November 2004 in relation with the strike vote.
74. 734. The KGEU’s attempt to “vote on industrial action” had been blocked because it was considered an illegal act falling under “labour movements and collective acts other than public services” prohibited under the current Public Officials Acts (section 66 of the State Public Officials Act, section 58 of the Local Public Officials Act). However, Lee Chang-Hwa continued to push for a strike vote despite the interruption by the police, and took collective action, repeatedly demanding that union members be allowed to participate in the personnel committee. In addition, he, along with about ten other union members, occupied the office of the governor of Goryeong-gun. He was arrested on these charges.
75. Arrests in mid-November 2004 to spring 2005
76. 735. With regard to further arrests from mid-November 2004 to the spring of 2005, the Government indicated that the KGEU had staged a general strike in which its members collectively did not attend work and refused to perform their official duties starting from 15 November 2004, demanding that the right to collective action (right to strike) be guaranteed in the bill on public officials’ trade unions. The allegation by the KGEU and ICFTU that around 191 unionists were arrested was not true. The arrests in the spring of 2005 of President Kim Young-Gil and General Secretary Ahn Byeong-Soon who led the KGEU’s general strike were made because they had refused to appear for investigation and ran away until they were caught. KGEU General Secretary Ahn Byeong-Soon was arrested on 17 March 2005 and released after the court handed down an eight-month prison sentence suspended for two years on 28 April 2005. KGEU President Kim Young-Gil was arrested on 9 April 2005 and released after the court handed down a one-year prison sentence suspended for two years on 24 June 2005. At present, there was no union official in detention.
77. 736. The Government added that the KGEU’s general strike was considered not only an illegal act falling into the category of “labour movements and collective acts other than public services” prohibited under the abovementioned Public Officials Act but is also prohibited by the recently adopted Public Officials’ Trade Union Act. All of those arrested were union officers of the KGEU and were arrested for planning, organizing and leading these illegal acts.
78. 737. More generally, the Government considered that the Public Officials’ Trade Union Act which did not recognize the right to collective action (right to strike) for public officials, was in conformity with international standards, such as the International Covenants on Human Rights and ILO Convention No. 151 and Recommendation No. 159, which did not contain any provision clearly prescribing public officials’ right to strike. Thus, KGEU leaders and members were not arrested arbitrarily and their human rights and basic freedoms were respected in accordance with the Declaration of Human Rights and Human Rights Conventions ratified by the Republic of Korea.
79. 738. Even though it was believed by some in the international community that unionists were arbitrarily arrested even for justifiable industrial action in the Republic of Korea, this was not the case. In the Republic of Korea too, justifiable industrial action was protected by laws without being subject to criminal or civil liability (section 33 of the Constitution, sections 3 and 4 of the Trade Union and Labour Relations Adjustment Act). The KGEU union officers had been arrested because they had taken collective action not permitted by law. And other arrested union members had not engaged themselves in justifiable union activities but committed illegal acts beyond the boundary of the three labour rights protected by the Constitution. They were mostly arrested for the use of violence.
80. 739. Article 8(1) of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), stipulated that “in exercising the rights provided for in this Convention workers and employers and their respective organizations, like other persons or organized collectivities, shall respect the laws and regulations of the land.” The ILO’s Committee on Freedom of Association had also stated that “freedom of association principles do not protect abuse of the right to strike which consists of criminal activities in exercising the right to strike”. Therefore, given the ILO Conventions and Recommendations mentioned above, punishing the abuse of the right to strike according to national laws was not considered to be counter to the principle of freedom of association as long as the punishment was not excessive or contrary to the principle of imposing a punishment commensurate with the nature of the violation.
81. Legislative issues
82. 740. In its communications dated 28 February and 7 September 2005, the Government presented its observations with regard to the public officials’ basic labour rights. The Government recalled that the Tripartite Commission reached an agreement on 6 February 1998 to first allow the establishment of workplace associations and then trade unions as a second step. The Government had prepared a new bill which gave public employees greater rights to organize. After gathering opinions from various bodies and institutions, including public officials’ organizations, and holding consultations with related ministries on the bill’s content, in 2004, the Government finalized its bill which was passed by the National Assembly on 31 December 2004 and was promulgated on 27 January 2005. The Act on the Establishment and Operation of Public Officials’ Trade Unions was scheduled to take effect on 28 January 2006.
83. 741. As to the main substance of the Act on the Establishment and Operation of Public Officials’ Trade Unions, the Government indicated that: (1) the right to organize a trade union and the right to collective bargaining (including the right to conclude collective agreements) were guaranteed. But the right to collective action (right to strike) was not recognized. (2) The scope of public officials eligible to join a trade union included general public officials with Grade 6 or lower, and those with an equivalent grade in specific government services, contracted work, technical services and temporary services. Public officials of Grade 5 or higher, those who directed and supervised other public officials and were responsible for generally managing affairs for other public officials, military personnel, policemen, firefighters etc., were restricted from joining a trade union due to the nature of their jobs. The specific scope would be prescribed by Presidential Decree. (3) The minimum organizing units for the establishment of a trade union were the National Assembly, the courts, the Constitutional Court, the National Election Commission, the administration, the local governments and local education offices of special metropolitan cities, metropolitan cities and provinces. (4) Matters subject to negotiation included trade unions or union members’ pay, welfare and other working conditions. However, matters concerning policy decisions made under the authority of the State or local governments, and matters concerning management and operation, such as the exercise of the right to appointment, not directly related to working conditions, were excluded from negotiation. (5) The bargaining representatives of the Government included the administrative head of each constitutional organization, the Secretary General of the National Assembly, the Administrator of each Court, the Secretary General of the Constitutional Court, the Secretary General of the National Election Commission, the Minister of Government Administration and Home Affairs, the head of each local government and the head of each local education office. (6) From the point of view of bargaining procedure, a public officials’ trade union should organize a negotiating group composed of its representatives or members. If there were two or more trade unions demanding to negotiate with the Government’s representatives, they should be united into a single bargaining channel. (7) With regard to the effect of collective agreements, given that unlike in the private sector, working conditions for public officials were determined and affected by laws and budgets, the effect of agreements made through collective bargaining could hardly be seen as having precedence over laws and budgets. Therefore, if some matters contained in collective agreements were stipulated in laws, regulations and budgets, they were considered to have no effect. However, government representatives would establish a practice of guaranteeing the implementation of collective agreements in good faith. (8) Public officials’ trade unions and their members were prohibited from conducting any activities, such as strikes, slowdowns, etc., that might undermine normal operations, as, given the nature of their job as servants of the nation as a whole, industrial actions by public officials could interrupt administrative services, paralyse national functions and inflict damage on people. (9) In an effort to mediate and arbitrate public officials’ industrial relations in a fair manner, the “Public Officials’ Labour Relations Mediation Committee” was set up under the National Labour Relations Commission and its members were appointed. (10) A trade union member could work as a full-time union official with the consent of a person who had the authority to appoint him/her. The period during which he/she would work as a full-time union official was regarded as unpaid leave and he/she should not be given any unfavourable treatment on the grounds of his/her status as a full-time union official. (11) In order to enhance the effectiveness of guaranteeing public officials’ basic labour rights, any unfavourable treatment given on the grounds of justifiable union activities was banned according to the provisions on unfair labour practices in the Trade Union Act. Public officials or their trade unions were allowed to file a charge with a labour relations commission to remedy unfair labour practices.
84. 742. As regards trade union pluralism at the enterprise level, the Government reiterated in its communication dated 7 September 2005, the previously provided information on this point. It added that discussions at the Tripartite Commission over the recommendations of the Research Committee on Industrial Relations System Development were being stalled due to the non-participation by some labour organizations. Based on the outcomes of the discussions (to be concluded by September 2005), the Government planned to submit the bill to the National Assembly within 2005.
85. 743. As regards the payment of wages to full-time union officials, the notification requirement and the trade union membership of the dismissed and unemployed workers, the Government reiterated the previously provided information in its communication dated 7 September 2005, and noted that it would promote legislation on these issues based on the relevant discussions at the Tripartite Commission.
86. 744. On the issue of essential public services, the Government reiterated in its communication dated 7 September 2005, the previously provided information on this point. It added that it tried to be cautious in enforcing compulsory arbitration to clear the concerns that compulsory arbitration might excessively restrict unions’ right to industrial action. As a result, the number of disputes referred to compulsory arbitration was on the decrease, with only one such case in 2003 and five in 2004 from 17 and 16 cases in 2000 and 2001 respectively. The Government further indicated that pursuant to the recommendations of the Research Committee on this matter, it would cautiously operate the current system, and at the same time, prepare measures with a view towards harmonizing the guarantee of the right to industrial action for trade unions and the protection of public interests, based on discussions at the Tripartite Commission.
87. 745. On the issue of obstruction of business, the Government reiterated in its communication dated 7 September 2005, the previously provided information on this point. It added that it had made and would continue to make every effort to minimize the criminal punishment of workers and refrain from arresting workers even in the event of an illegal industrial action if it was violence-free. The Government attached to its communication a table with information on the offences and trial results of 28 workers detained on charges of obstruction of business.
88. Factual issues
89. 746. In respect of Mr. Kwon Young-kil, former president of the Korean Confederation of Trade Unions (KCTU), who was sentenced to ten months’ imprisonment with a two-year grace period at the first trial on 31 January 2001, the Government indicated in its communication dated 7 September 2005, that the decision of the appeals court was scheduled to be pronounced at the end of April 2004. However, the court ordered the reopening of the pleadings and the proceedings had therefore reconvened. At the conclusion for the hearing on 14 January 2005, the court designated 16 February 2005 as the date of pronouncement, but the proceedings reconvened on that date as the prosecutor requested the reopening of the pleadings to submit an opinion on the consultations on “third party intervention” to the court. The pleadings were scheduled to continue on 18 March 2005 but the date of pleadings was postponed as Kwon Young-kil, an incumbent lawmaker, submitted a “request for postponement of the trial date”, due to his schedule at the National Assembly. The proceedings were scheduled to take place in August 2005. Due to the abovementioned reasons, the Government could not provide the court judgement on the appeal, as it had not yet been pronounced. The judgement on the first trial was attached (in Korean).
90. 747. In respect of the dismissed 12 public servants, the Government indicated in its communication dated 7 September 2005 that nine people were reinstated following requests for examination in 2003 and 2004: Oh Myeong-nam (February 2003), Kim Jong-yun (April 2003), Ha Jae-ho (June 2003), Ahn Hyun-ho (June 2003), Hwang Gi-joo (June 2003), Min Jum-ki (September 2003), Kim Young-kil (February 2004), Kang Soo-dong (February 2004), and Kang Dong-jin (February 2004). The three others were not reinstated (Kim Sang-kul, Koh Kwang-sik, and Han Seok-woo) since their cases had been dismissed by the court. An administrative litigation for nullification of the dismissal of the last two workers was currently pending in the court. With regard to Kim Sang-kul, the sentence was confirmed via the administrative litigation on 30 July 2004. The Government attached the court judgement (in Korean). The Government added that three of the reinstated workers were dismissed again for carrying out illegal activities and their cases were currently pending examination (Kim Young-kil (November 2004), Kang Dong-jin (January 2005) and Kim Jong-yun (January 2005). Two persons received a final sentence finding them guilty and they were sentenced to ipso facto retirement by the court (Oh Myeong-nam – sentenced to one year’s imprisonment and two years’ probation in April 2005; Min Jum-ki – sentenced to ten months’ imprisonment and two years’ probation in April 2005). Oh Myeong-nam had received a sentence of dismissal on 8 February 2003 but the court decision had been nullified following a request for examination. He therefore received a mitigated punishment of two months’ suspension from office. He did not file any administrative litigation after the appeals process. However, he received his final sentence of one year’s imprisonment and two years’ probation by the Supreme Court on 11 December 2003, for a relevant criminal case. He therefore became subject to ipso facto retirement under section 61 of the Local Public Officials Act and was dismissed. According to section 61 of the Local Public Officials Act, “if a public official falls under any of the subparagraphs of section 31, he shall be subject to an ipso facto retirement”. According to section 31(3) and (4) “a person who was sentenced to a punishment heavier than imprisonment without prison labour and for whom five years have not passed since the completion of service of such sentence or since the final decision of exemption from the service of such sentence” and “a person who was sentenced to a punishment heavier than imprisonment without prison labour, but for whom two years have not passed since the expiry of the probation period” would be subject to ipso facto retirement. The judgements of the first, second and final trials of Oh Myeong-nam were attached (in Korean).

D. The Committee’s conclusions

1. 748. The Committee recalls that it has been examining this case which concerns both legislative and factual issues since 1996. The Committee observes that new allegations submitted by the International Confederation of Free Trade Unions (ICFTU) concern the Establishment and Operation of Public Officials’ Trade Unions Act which was fast-tracked through official consultation procedures without regard to due process while severe measures of repression were taken against the leaders of the Korean Government Employees Union (KGEU) who opposed the adoption of the Act and pressed for recognition of the right to strike. Moreover, new allegations submitted by the International Federation of Building and Wood Workers (IFBWW) concern the unjust prosecution and imprisonment of trade union organizers and officials from the Korean Federation of Construction Industry Trade Union (KFCITU) so as to prevent the effective organization of construction workers.
2. Legislative issues
3. 749. The Committee recalls that the outstanding legislative issues concern the need to: ensure the right to organize for public servants; legalize trade union pluralism at the enterprise level; resolve the issue of payment of wages to full-time union officers in a manner consistent with freedom of association principles; amend section 71 of the Trade Union and Labour Relations Amendment Act (TULRAA) so that the right to strike may be prohibited only in essential services in the strict sense of the term; repeal the notification requirement in section 40 of the TULRAA and the penalties provided for in section 89(1) concerning the prohibition on persons not notified to the Ministry of Labour from intervening in collective bargaining or industrial disputes; amend the prohibition on dismissed and unemployed workers from remaining union members or holding trade union office (sections 2(4)(d) and 23(1) of the TULRAA); and amend section 314 of the Criminal Code concerning the obstruction of business to bring it into line with freedom of association principles. During its last examination of this case in November 2004, the Committee had noted that a Research Committee on Industrial Relations System Development had been established to review the issues raised in its pending recommendations and had issued a final report entitled “Reform Measures for Advanced Industrial Relations Laws and Systems” on 3 December 2003.
4. 750. As regards the right of public servants to establish and join trade union organizations of their own choosing, the Committee notes with interest from the Government’s reply that the Act on the Establishment and Operation of Public Officials’ Trade Unions was passed by the National Assembly on 31 December 2004, was promulgated on 27 January 2005, and entered into force on 28 January 2006. This Act guarantees the right to form and join a trade union of their own choosing and the right to collective bargaining to public servants. It also prohibits any unfavourable treatment for justifiable union activities as an unfair labour practice. The Committee wishes to make a certain number of comments on the Act as adopted.
5. 751. The Committee recalls from its previous comments on this case that: (i) the total exclusion from the legislation of public servants at Grade 5 or higher is a violation of their fundamental right to organize; (ii) the right of firefighters to form and join organizations of their own choosing should also be guaranteed (although the right to collective action may be subject to restrictions or a prohibition); (iii) the right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term, that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 526]; (iv) it may be more appropriate to leave the issue of whether all trade union activity by full-time union officials will be treated as unpaid leave to consultations between the parties concerned.
6. 752. The Committee therefore requests the Government to give consideration to further measures aimed at ensuring that the rights of public employees are fully guaranteed by: (i) ensuring that public servants at Grade 5 or higher obtain the right to form their own associations to defend their interests and that this category of staff is not defined so broadly as to weaken the organizations of other public employees; (ii) guaranteeing the right of firefighters to establish and join organizations of their own choosing; (iii) limiting any restrictions of the right to strike to public servants exercising authority in the name of the State and essential services in the strict sense of the term; (iv) allowing the negotiating parties to determine on their own the issue of whether trade union activity by full-time union officials should be treated as unpaid leave. The Committee requests to be kept informed of any measures taken or contemplated in this respect.
7. 753. The Committee will examine the allegations concerning the context in which the Act on the Establishment and Operation of Public Officials’ Trade Unions was adopted, and in particular, the alleged absence of full consultations and severe measures of repression against trade unionists who opposed the adoption of the Act and pressed for a greater recognition of their rights, notably the right to strike, in the section concerning factual issues.
8. 754. With regard to the other pending legislative issues, the Committee notes with regret that the Government largely reiterates previously provided information, which was analysed and discussed in detail in the Committee’s previous examinations of this case. The Committee once again expresses its conviction that the quicker a solution can be found to the serious pending matters which is acceptable to the parties concerned and in conformity with internationally accepted freedom of association principles, the better it will be for the overall industrial relations climate in the country. The Committee therefore urges the Government to take all possible steps to accelerate this process, while ensuring full consultation with all the social partners concerned, including those not presently represented on the Tripartite Commission. In particular, the Committee urges the Government: (i) to take rapid steps for the legalization of trade union pluralism at the enterprise level, in full consultation with all social partners concerned, so as to guarantee at all levels the right of workers to establish and join the organization of their own choosing; (ii) to enable workers and employers to conduct free and voluntary negotiations in respect of the question of payment of wages by employers to full-time union officials; (iii) to amend the list of essential public services in section 71(2) of the Trade Union and Labour Relations Amendment Act (TULRAA) so that the right to strike may be restricted only in essential services in the strict sense of the term; (iv) to repeal the notification requirement (section 40) and the penalties for violation of the prohibition on persons not notified to the Ministry of Labour from intervening in collective bargaining or industrial disputes (section 89(1) of the TULRAA); (v) to repeal the provisions prohibiting dismissed and unemployed workers from keeping their union membership and making non-union members ineligible to stand for trade union office (sections 2(4)(d) and 23(1) of the TULRAA); (vi) to bring section 314 of the Penal Code (obstruction of business) in line with freedom of association principles. The Committee requests to be kept informed of the progress made in respect of all of the abovementioned matters.
9. Factual issues
10. 755. The Committee recalls that the pending factual issues in this case concern the arrest and detention of Mr. Kwon Young-kil, former president of the KCTU, and the dismissal of leaders and members of the Korean Association of Government Employees’ Works Councils (KAGEWC). The Committee further notes the new allegations submitted by the IFBWW and the ICFTU as well as the information provided by the Government concerning the application of the provisions concerning obstruction of business.
11. 756. The Committee notes that according to the information provided by the Government in respect of the appeal process of Kwon Young-kil, former president of the KCTU, after successive postponements the decision of the appeals court was scheduled to be made in August 2005. The Committee recalls with grave concern that the issue of Mr. Kwon Young-kil has been pending ever since the first examination of this case in 1996 and that he has been convicted in the first instance for violating the prohibition of third party intervention in industrial disputes to ten months’ imprisonment with a two-year stay of execution. Recalling that the prohibition of third party intervention in industrial disputes is incompatible with freedom of association principles and that justice delayed is justice denied [see Digest, op. cit., para. 105], the Committee trusts that the appeals court will render its decision on Mr. Kwon Young-kil without further delay, taking into account the relevant freedom of association principles. The Committee requests the Government to provide information in this respect as well as a copy of the court judgement.
12. 757. As regards the dismissals of 12 people connected to the KAGEWC for having committed illegal activities (attempt to establish a trade union, holding of illegal outdoor assemblies, break-in at the offices of the Minister of Government and Home Affairs (MOGAHA) and consequent damage, illegal decision to go on a general strike and taking of annual leave and absences, without permission, so as to wage that strike), the Committee notes that according to the Government, four of them have been reinstated. Three workers were not reinstated: Kim Sang-kul, Koh Kwang-sik and Han Seok-woo. The dismissal of Kim Sang-kul is now final while the other two cases are currently pending administrative litigation. Furthermore, Oh Myeong-nam and Min Jum-ki received final sentences finding them guilty and their dismissals are now final. In addition to this, the cases of three other workers who were initially reinstated but then dismissed once again are pending examination: Kim Young-kil, Kang Dong-jin and Kim Jong-yun.
13. 758. The Committee expresses its deep regret at the difficulties faced by these public servants which appear to have been due to the absence of legislation ensuring their basic rights of freedom of association, in particular the right to form and join organizations of one’s own choosing, respect for which is now largely guaranteed by the entry into force of the Act on the Establishment and Operation of Public Officials’ Trade Unions. The Committee requests the Government to reconsider the dismissals of Kim Sang-kul, Oh Myeong-nam and Min Jum-ki in the light of the adoption of the new Act and to keep it informed in this respect. It also requests the Government to provide information on the outcome of the pending administrative litigation and requests for examination concerning the dismissals of Koh Kwang-sik, Han Seok-woo, Kim Young-kil, Kang Dong-jin and Kim Jong-yun and expresses the hope that the new legislation will be taken into consideration in rendering the relevant decisions. The Committee finally requests the Government to provide copies of the relevant decisions.
14. 759. The Committee notes moreover that the Government provides a table with information on the offences and trial results concerning 28 workers detained on charges of obstruction of business under section 314 of the Criminal Code. The Committee notes from this table that two trade union officials were convicted without having committed any violent act. In particular, Oh Young Hwan, President of Busan Urban Transit Authority Workers’ Union, has not been accused of any other act than the fact that he went on strike, along with about 200 other union members, “in the pursuit of illegal purposes, such as demanding the company to increase its workforce, cancel the entrustment of ticket sales to a private company, withdraw from its outsourcing contracts, reinstate dismissed workers, etc. By doing so, [he] obstructed passenger transportation services”. He was sentenced to a fine of 10 million Korean won. Similarly, Yoon Tae Soo, first Executive Director of Policy of the Korea Financial Industry Union, has not been accused of any violent act but of having gone, along with approximately 5,000 other workers, “on a strike in the pursuit of illegal purposes, such as opposing the sale of the Government’s stakes in Chohung Bank pursued as a government policy, without undergoing mediation process, and [causing] 270 workers and its Computer Centre to walk out of their workplaces, thereby obstructing the bank’s loan and deposit business and payment services”. He was sentenced to one year in prison with a three-year probation period.
15. 760. The cases noted above illustrate the Committee’s concern that section 314 as drafted and applied over the years has given rise to the punishment of a variety of acts relating to collective action, even without any implication of violence, with significant prison terms and fines. The Committee recalls that in its previous examination of this case, it had noted with interest the Government’s general indication that it would establish a practice of investigation without detention for workers who violated current labour laws, unless they committed an act of violence or destruction – a statement considered to be of paramount importance, particularly in a context where certain basic trade union rights have yet to be recognized for certain categories of workers and where the notion of a legal strike has been seen as restricted to a context of voluntary bargaining between labour and management uniquely for maintaining and improving working conditions [see 331st Report, para. 348 and 335th Report, para. 832]. The Committee therefore requests the Government: (i) to continue making all efforts to ensure a practice of investigation without detention for workers who have violated current labour laws, unless they have committed an act of violence or destruction, as indicated in its previous reports; (ii) to review the situation of Oh Young Hwan, President of Busan Urban Transit Authority Workers’ Union and Yoon Tae Soo, first Executive Director of Policy of the Korea Financial Industry Union, who appear to have been penalized under this provision for non-violent industrial action and to keep it informed in this respect; (iii) to continue to provide details, including any court judgements, on any new cases of workers arrested for obstruction of business.
16. 761. The Committee notes with concern the new allegations submitted by the ICFTU according to which: (i) the proposed bill on the Establishment and Operation of Public Officials’ Trade Unions Act was fast-tracked through official consultation procedures without regard for due process; (ii) between April 2004 and April 2005, at least 34 KGEU leaders and members were arrested, including President Kim Young Gil, Vice Presidents Kim Sang Girl, Kim Jung Soo and Kim Il Soo and General Secretary Ahn Byeong-Soon, who were detained; (iii) on 8 June 2004, President Kim Young Gil, Vice President Jung Soo Kim and General Secretary Ahn Byeong Soon, all received prison sentences for violation of the Public Officials Act and election laws; (iv) in October 2004, riot police was deployed on two occasions in order to prevent strikers from holding rallies leading to violent clashes and injuries of union members; (v) forty union members were arbitrarily detained for 20 hours between 9 and 10 October, while 44 strikers were arrested on 31 October and released 27 hours later (one was reportedly beaten up by the police); (vi) from 6 to 8 November 2004, approximately 21 arrests took place throughout the country (enumerated in detail in the complaint) as part of a government attempt to prevent nationwide rallies organized by the KCTU and the KGEU in protest at the Establishment and Operation of Public Officials’ Trade Unions Act; union rallies were dispersed throughout the country, sometimes violently, leaving dozens of union members injured; those arrested were all released on 8 November 2004; (vii) in order to prevent KGEU members from voting for a general strike to be staged on 15 November 2004, the authorities made raids on union offices, private homes and cars of union officials and even the homes of their relatives, arresting one trade union official for trying to distribute ballot papers (Sohn Dae Hyeop) and confiscating all materials related to the vote as well as posters, meeting documents, computers and union documents; (viii) the authorities carried out several acts of intimidation and harassment of trade union leaders and members so as to discourage their participation in rallies and demonstrations; (ix) the Ministry of Government Administration and Home Affairs (MOGAHA) had started a “New Wind Campaign” at the end of 2004 targeting the KGEU and promoting a “reformation of organizational culture, focusing on rearing workplace councils and healthy employee groups”; (x) in November 2004, arrest warrants were issued against 40 trade union leaders including KGEU President Kim Young-Gil and General Secretary Ahn Byeong-Soon, First Vice-President Jeong Yong-Cheon and five other Vice-Presidents in order to prevent the general strike planned for 15 November 2004 (see Annex I); (xi) between 13 and 17 November 2004, riot police arrested 191 unionists including several local union leaders after rallies and walkouts (see Annex II); (xii) on 8 April 2005 at 2 a.m., the police arrested the KGEU President Kim Young-Gil (who had gone into hiding); he was prosecuted under charges of violation of the Public Officials Act on 28 April 2005; (xiii) Ahn Byeong-Soon was also arrested on 15 March 2005 and released on 28 April after 44 days in prison; he was sentenced to eight months’ imprisonment with two years’ suspension.
17. 762. The Committee takes note of the Government’s reply according to which: (1) the bill was adopted after gathering opinions from various circles by conducting interviews and working-level consultations with organized public officials, holding an open forum (5 June 2005) and making a preliminary announcement of the bill (23 June-12 July 2003); (2) the KGEU has been established by public officials who were not allowed to organize a trade union under the previously applicable State Public Officials Act or the Local Public Officials Act. Accordingly, they were considered to have committed an illegal act in violation of national laws and the KGEU was not protected by the Trade Union and Labour Relations Adjustment Act; (3) six KGEU leaders were arrested in April 2004 on charges of supporting a particular political party for the 17th general election to be held on 15 April 2004: KGEU President Kim Young-Gil was released on 8 June 2004 after receiving a one-year prison sentence suspended for two years. Vice President, Kim Jung-Soo and General Secretary Ahn Byeong-Soon were released on 8 June 2004 after receiving a ten-month prison sentence suspended for two years. Vice Presidents Kim Sang-Girl and Ban Myung-Ja were released on 28 and 22 April 2004 respectively after the legality of the arrest was investigated. Vice President, Kim Il-Soo was released on 29 April following an arrest cancellation; (4) the convictions were due to the decision of the arrested leaders (taken at the national convention of the KGEU on 23 March 2004) to support the Democratic Labour Party (DLP) at the 17th general election – a decision announced at the KGEU web site and a press conference in which it was demanded that public officials be allowed to engage in political activities. Those convicted also encouraged the KGEU members to vote for the DLP and declared that they would implement their decision by providing support and conducting a campaign to collect political funds for DLP candidates; (5) these acts are prohibited under Korean law (section 65 of the State Public Officials Act, section 57 of the Local Public Officials Act, sections 87(1)(8), 60(1)(4) and 93(1) of the Act on the Election of Public Officials and the Prevention of Election Malpractices); (6) the rallies staged on 9-10 and 31 October 2004 were illegal as they were aimed at demanding recognition of the public officials’ right to collective action in the bill; (7) although it is true that the police kept the public officials from reaching the rally venues, all those arrested in the process were immediately released after investigation. Thus, the ICFTU’s allegation that 44 strikers were arrested is not factual; (8) the KGEU attempt to vote on industrial action to be carried out on 15 November 2004 had been blocked because the strike was considered illegal even under the Establishment and Operation of Public Officials’ Trade Unions Act which recently entered into force. It also fell under the prohibition of “labour movements and collective acts other than public services” in section 66 of the Public Officials Act and section 58 of the Local Public Officials Act; (9) the allegation that arrests took place throughout the country on 6-8 November is not true. No one was arrested during this period except for one KGEU official (Lee Chang Hwa) who continued to push for a strike vote and undertook collective action by repeatedly demanding that union members be allowed to participate in the personnel committee. He also occupied the office of the governor of Goryeong-gun along with about ten other union members; (10) the allegation that around 191 unionists were arrested between 13-17 November 2004 is not true; (11) KGEU officers were arrested for planning, organizing and leading the illegal strike of 15 November 2004: President Kim Young-Gil and General Secretary Ahn Byeong-Soon who led the general strike were arrested in spring 2005; (12) Kim Young-Gil received a one-year prison sentence suspended for two years on 24 June 2005. (13) Ahn Byeong-Soon received an eight-month prison sentence suspended for two years on 28 April 2005.
18. 763. The Committee would make the following observations on these points. First, the Committee recalls the importance, for the preservation of a country’s social harmony, of regular consultations with employers’ and workers’ organizations; such consultations should take place irrespective of the philosophical or political beliefs of these organizations’ leaders. In particular, it is essential that the introduction of draft legislation affecting collective bargaining or conditions of employment should be preceded by full and detailed consultations with the appropriate organizations of workers and employers [see Digest, op. cit., para. 931]. Second, although at the time of its creation the KGEU faced legislative obstacles, the entry into force of the Establishment and Operation of Public Officials’ Trade Unions Act should normally lead to the elimination of any such obstacle, so that the KGEU may be now considered as a legitimate trade union organization. Third, the Committee has reaffirmed the principle expressed by the International Labour Conference in the resolution concerning the independence of the trade union movement that governments should not attempt to transform the trade union movement into an instrument for the pursuance of political aims, nor should they attempt to interfere with the formal functions of a trade union movement because of its freely established relationship with a political party. Thus, provisions imposing a general prohibition on political activities by trade unions for the promotion of their specific objectives are contrary to the principles of freedom of association [see Digest, op. cit., paras. 451 and 452].
19. 764. In addition to this, with regard to the legality of the strike staged on 15 November 2004, the Committee would refer the Government to the comments already made above with regard to the public servants’ right to strike which should be granted to those public servants who are not exercising authority in the name of the State or carrying out essential services in the strict sense of the term. While taking due note of the contradiction between the allegations concerning the issuing of warrants and numerous arrests aimed at preventing public servants from staging rallies and the Government’s reply, the Committee would recall that the arrest of trade unionists may create an atmosphere of intimidation and fear prejudicial to the normal development of trade union activities and workers should enjoy the right to peaceful demonstration to defend their occupational interests [see Digest, op. cit., paras. 76 and 132].
20. 765. Finally, noting with regret the convictions of KGEU President Kim Young-Gil and General Secretary Ahn Byeong-Soon to prison sentences for organizing the strike of 15 November 2004, in addition to the prison sentences they received for violating election laws, the Committee would once again recall from its previous conclusions that it is not possible for a stable industrial relations system to function harmoniously in the country as long as trade unionists are subject to arrests and detentions [see 327th Report, para. 505 and 331st Report, para. 352].
21. 766. Recalling that the practice of arresting and prosecuting trade union leaders for their activities aimed at greater recognition of trade union rights is not conducive to a stable industrial relations system and that public servants should enjoy the right to strike as long as they are not exercising authority in the name of the State and do not carry out essential services in the strict sense of the term, the Committee requests the Government to look at the possibility of reviewing the convictions of KGEU President Kim Young-Gil and General Secretary Ahn Byeon-Soon given that they were convicted under the now repealed Public Officials Act for actions aimed at acquiring recognition, de facto and de jure, of the basic rights of freedom of association of public servants and that their sentences are subject to a two-year suspension. The Committee requests to be kept informed in this respect.
22. 767. The Committee regrets that the Government has not provided any comment on the allegations of violent police intervention in rallies, injury of trade unionists, intimidation and harassment of trade union leaders and members so as to discourage their participation in the strike of 15 November 2004 and finally, the initiation of a “New Wind Campaign” by MOGAHA at the end of 2004 targeting the KGEU and promoting a “reformation of organizational culture, focusing on rearing workplace councils and healthy employee groups”. The Committee requests the Government to refrain from any act of interference in the activities of the KGEU and to provide its comments on these allegations.
23. 768. The Committee finally takes note of the new allegations submitted by the IFBWW with regard to the unjust prosecution and imprisonment of trade union organizers and officials from the KFCITU so as to prevent the effective organization of construction workers. According to the IFBWW, since September 2003, the police and prosecution have launched a series of unjust investigations specifically targeting the organizing efforts of the KFCITU local unions in an attempt to stop the union from organizing construction site workers and construction plant workers who are basically non-permanent, irregular, seasonal workers, hired by contractors and subcontractors on a daily basis and face substandard terms and conditions of employment (precariousness, excessive hours of work, very low wages, high rate of occupational accidents, etc.). The complainant attributes this situation mainly to the complex pyramid structure of South Korean construction sites which comprise one main construction company and several layers of subcontractors behind which the main construction company may “hide”. The complainant emphasizes the need to conclude an agreement with the main construction company rather than subcontractors because of the dominant position of the main construction company in terms of contributing to the national employment insurance programme and pension plan as well as ensuring that the labour laws are followed at the workplace, including with regard to OSH, exerting influence over the employment practices of the contractors and subcontractors and allowing unions access to the construction site.
24. 769. The complainant alleges that in 1999 the KFCITU received a grant from the IFBWW to increase union density which was extremely low among these workers. As a result of the campaign, a collective agreement was signed. Under the collective agreement, the main construction companies agreed to abide by South Korean labour laws and ensure respect for the rights of all workers at the construction site regardless of whether they worked directly for them or for subcontractors. In particular, the main companies agreed inter alia, to allow union activities at the construction site and meet OSH guidelines. The collective agreement led inter alia to a considerable decrease in the number of accidents through the creation of OSH committees in the construction sites, helped workers to claim their back pay (the total amount of back pay owed to construction site workers in the first half of 2003 amounted according to the complainant to US$125 million), and contributed to claiming further improvements in the terms and conditions of employment. As a result, union membership increased by more than 5,000 members.
25. 770. The complainant is of the view that the Government crackdown was an attempt to stop construction site workers from organizing. The complainant attaches a chronological table which indicates that police action and prosecution in three local regions (Daejeon, Chunahn, Kyonggido Subu) followed a pattern which amounted to a deliberate and concerted attack on union officials and organizers. In total, 14 union officials and organizers were arrested and jailed. These included six union officials and organizers in the Daejeon local union: Lee Sung Hwe, Kim Myung Hwan, Kim Wool Hyun, Cho Jung Hee, Noh Jae Dong, and Park Chung Man; two trade union officials of the Chunahn local union, Park Yong Jae and Noh Sun Kyun, President and Vice-President respectively; six union officials and organizers with the Kyonggido Subu local union: Kim Seung Hwan, Kim Kwang Won, Lee Myung Ha, Kim Ho Joong, Choi Jung Chul, and Lee Young Chul. In addition, five union organizers with the Kyonggido Subu local union (Yi Joo Mo, Ha Dong Yun, Ko Tae Hwan, Son Hyung Ho and Park Jung Soo), were on the “run” since they were wanted by the police for further questioning and had no confidence that they would be treated justly.
26. 771. According to the IFBWW, the police and prosecution accused these trade union officials of: (i) using force and coercing construction site managers who were hired by the main construction company to sign collective agreements; (ii) threatening to report OSH violations if the main construction company did not sign these agreements; (iii) extorting payments as a result of these collective bargaining agreements. The investigations were initiated and carried out by the criminal division of the police and the prosecution division which have no familiarity with labour issues and trade union activities, despite the fact that there was a specific section on union activities in both divisions. The complainant further alleges that the police’s line of questioning was focused on ways to provide evidence of the “guilt” of the local union officials and organizers in violation of due process.
27. 772. According to the complainant, on 16 February 2004 the six Daejeon union officials were found guilty of using “force” to coerce the main construction company to sign collective agreements and receiving payments as a result of these agreements. However, since they were implementing the national organizing programme of the KFCITU and the payments received were for organizational purposes and not for personal use, they were not personally liable. They therefore received light sentences (not indicated specifically). It was further ruled that the collective agreements signed by the union and the main construction company were only applicable to employees of the main company and did not apply to workers hired by subcontractors. The local union appealed the decision and the appellate court was reviewing the case at the time of the complaint. Moreover, Park Yong Jae, President of the Chunahn local union, was found guilty and sentenced to imprisonment for one year. Noh Sun Kyun, Vice-President of the Chunahn local union, was released due to lack of evidence but was fined nevertheless with two million Korean won on 27 August 2004 despite the fact that the judge had apologized earlier for the police error. Of the six Kyonggido Subu union officials and organizers who were detained and later on released on bail, three had gone on trial as of 3 September 2004 (Kim Ho Joon, Choi Jung Chul, and Lee Young Chul).
28. 773. The Committee notes that the Government justifies the action taken in this case on the basis of the following reasons: (i) since subcontractors were the ones who directly hired and paid daily wages to the workers, the employer’s party to collective bargaining or a collective agreement with the KFCITU should be the subcontractors and not the original contractors; (ii) the original contractor was not under an obligation to bargain with the KFCITU if the workers had not joined the KFCITU; however, the original contractor did not know whether the workers were members of the KFCITU as the construction site manager was not allowed to check the list of KFCITU members on the site; thus, it was not justifiable for the KFCITU to coerce an original contractor into concluding a collective agreement when there were no KFCITU members working for him or when he did not know if the workers were members of the KFCITU; (iii) the KFCITU received money from the original contractors in the name of “activity payment” to full-time unionists; however, under the Trade Union and Labour Relations Act, a full-time unionist was one who was employed by a firm; thus, if an executive of a trade union was not employed by a firm in charge of the construction site, he/she could not request the firm to recognize him/her as a full-time unionist; (iv) even if a full-time unionist was recognized and payment to him/her was to be provided as a result of collective agreements or approval from the employer, the payment should be made in a way that was universally accepted; in this case, union executives visited the construction site managers of the original contractors who did not have the obligation to conclude collective agreements and coerced them to sign the agreements, threatening them that they would accuse the original contractors of insufficient safety measures at the construction sites when the managers refused (some actually did accuse them and the accused original contractors immediately concluded collective agreements with the KFCITU for fear of disadvantages to come); as a result, the union executives received 60 to 180 million Korean won from the original contractors under the pretext of “activity payment” to full-time unionists under the collective agreements; the Government considers that if a full-time unionist receives money and other valuables using illegal means such as blackmail or threats, this constitutes the crime of blackmail under section 350 of the Criminal Law; moreover, where the threat was carried out by conspiracy of two or more people, this constitutes a violation of the Act on the Punishment of Violence. The Government thus considers that it was the KFCITU executives who coerced people with no obligation to do so into signing collective agreements and who received money and other valuables under the pretext of “activity payments” to full-time unionists. Since such acts constituted the crime of blackmail, detaining and searching for the KFCITU unionists could hardly be regarded as an infringement of legitimate trade union activities or collective bargaining.
29. 774. Firstly, the Committee expresses its deep concern at the fact that the exercise by the KFCITU of legitimate trade union activities in the defence of construction site workers, including through collective bargaining, has been perceived as criminal activity and given rise to the institution of a massive investigation and police intervention. As concerns the specific charges brought against the KFCITU officials, the Committee has difficulty in conceiving a request to an employer to either improve the OSH practices at the workplace on a voluntary basis (by concluding a collective agreement on this issue) or the matter would be reported to the competent authorities, as a matter of blackmail. The Committee recalls that according to the allegations, the collective agreement signed contained provisions on the creation of OSH committees in the workplace which contributed to the reduction of occupational accidents. It is difficult to consider such actions (this being the only specific example given by the Government) as illegal coercion or threat on the part of the union and it would seem perfectly comprehensible that the contractors would prefer to address any possible OSH issues on a voluntary basis. In any case, the Committee considers that denouncing to the competent authorities insufficient OSH measures is in fact a legitimate trade union activity and a workers’ right which should be guaranteed by law.
30. 775. In the second place, the Committee would observe that, except for the elements examined above, the Government has not provided any information indicating that the collective agreement was not voluntary. It would seem indeed from the information submitted to the Committee, that there was no complaint of coercion by any employer party to the collective agreement in question, and that the relevant investigations were carried out at the initiative of the police. Given the absence of any evidence indicating that the agreement was not voluntary, the Committee would emphasize that although an employer/main contractor may not be under an obligation to negotiate with a trade union representing workers engaged by subcontractors (or a trade union that has not demonstrated its membership among the main contractor’s workers) nothing should prevent such an employer from negotiating and concluding a collective agreement on a voluntary basis. Moreover, the trade union concerned should also be able to request negotiations with the employer of its choice, on a voluntary basis, especially as in cases such as this one, it would be impossible to negotiate with each and every one of the subcontractors. In fact, given the main contractor’s dominant position in the construction site, and the general absence of collective bargaining at the branch or industry levels, the conclusion of a collective agreement with the main contractor would appear to be a viable option allowing for effective collective bargaining and the conclusion of a collective agreement with sufficiently general scope over the construction site.
31. 776. In the third place, with regard to the payment of money by the main contractor as “activity payment” to full-time unionists under the collective agreement, the Committee observes that this payment was found by the courts to be carried out for organizational purposes and not for the personal use of the accused trade union officials. The Committee is deeply concerned that this payment for the union, which appears to be the result of voluntary negotiations, should be considered to be a criminal act. Finally, the Committee considers that a main contractor on a construction site should be able to voluntarily recognize a worker on the site as a full-time unionist even if the worker concerned does not work directly for the main contractor.
32. 777. Consequently, the Committee considers that the arguments put forward by the Government do not convincingly demonstrate that the KFCITU officials engaged in any kind of criminal activity. On the contrary, the acts which the Government states were carried out by the KFCITU officials, with the financial support of the IFBWW, would seem to be regular activities of a union in conformity with basic notions of freedom of association, in the pursuit of the legitimate trade union objective of ensuring the representation and defence of the occupational interests of a particularly vulnerable category of workers in the building industry. The Committee also notes that according to the complainant, such action had met with considerable success (signature of collective agreements, reduction of occupational accidents, increase in trade union membership, etc.), before the intervention of the police and the prosecution prevented it from having any further effect.
33. 778. The Committee recalls that the detention of trade union leaders or members for reasons connected with their activities in defence of the interests of workers constitutes a serious interference with civil liberties in general and with trade union rights in particular [see Digest, op. cit., para. 71]. The arrest of trade unionists may create an atmosphere of intimidation and fear prejudicial to the normal development of trade union activities [see Digest, op. cit., para. 76]. This intimidating effect is likely to be even stronger in the case of precarious, and therefore particularly vulnerable, workers who had just recently exercised their right to organize and bargain collectively. The Committee recalls that while persons engaged in trade union activities or holding trade union office cannot claim immunity in respect of the ordinary criminal law, trade union activities should not in themselves be used by the public authorities as a pretext for the arbitrary arrest or detention of trade unionists [see Digest, op. cit., para. 83].
34. 779. The Committee therefore expresses its deep regret at the intervention of the police and the criminal prosecution and sentencing of KFCITU officials to fines and imprisonment. The Committee requests the Government to issue appropriate instructions so that all actions of intimidation and harassment against the KFCITU officials cease immediately. It requests the Government to review all convictions and prison sentences, and to compensate the KFCITU officials for any damages suffered as a result of their prosecution, detention and imprisonment. It further requests the Government to inform it of the outcome of the trial of the three officials of the Kyonggido Subu local trade union and of the current situation of Park Yong Jae, President of the Chunahn local trade union who was convicted to one year imprisonment. The Committee requests to be kept informed on all of the above.
35. 780. The Committee further notes with regret that the courts found that the collective agreements signed by the union and the main construction company were only applicable to employees of the main company and did not apply to workers hired by subcontractors. The local union appealed the decision and the appellate court was reviewing the case at the time of the complaint. The Committee requests the Government to inform it of the outcome of the appeal lodged against the court decision which found that the collective agreements signed in 2004 did not apply to workers hired by subcontractors; it trusts that the appellate court will take due account of the freedom of association principles mentioned above.

The Committee's recommendations

1. 781. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee notes with interest the adoption and entry into force of the Act on the Establishment and Operation of Public Officials’ Trade Unions; it requests the Government to give consideration to further measures aimed at ensuring that the rights of public employees are fully guaranteed by:
   • (i) ensuring that public servants at Grade 5 or higher obtain the right to form their own associations to defend their interests and that this category of staff is not defined so broadly as to weaken the organizations of other public employees;
   • (ii) guaranteeing the right of firefighters to establish and join organizations of their own choosing;
   • (iii) limiting any restrictions of the right to strike to public servants exercising authority in the name of the State and essential services in the strict sense of the term;
   • (iv) allowing the negotiating parties to determine on their own the issue of whether trade union activity by full-time union officials should be treated as unpaid leave.
     • The Committee requests to be kept informed of any measures taken or contemplated in this respect.
   • (b) As regards the other legislative aspects of this case, the Committee urges the Government:
   • (i) to take rapid steps for the legalization of trade union pluralism at the enterprise level, in full consultation with all social partners concerned, so as to guarantee at all levels the right of workers to establish and join the organization of their own choosing;
   • (ii) to enable workers and employers to conduct free and voluntary negotiations in respect of the question of payment of wages by employers to full-time union officials;
   • (iii) to amend the list of essential public services in section 71(2) of the Trade Union and Labour Relations Amendment Act (TULRAA) so that the right to strike may be restricted only in essential services in the strict sense of the term;
   • (iv) to repeal the notification requirement (section 40) and the penalties for violation of the prohibition on persons not notified to the Ministry of Labour from intervening in collective bargaining or industrial disputes (section 89(1) of the TULRAA);
   • (v) to repeal the provisions prohibiting dismissed and unemployed workers from keeping their union membership and making non-union members ineligible to stand for trade union office (sections 2(4)(d) and 23(1) of the TULRAA);
   • (vi) to bring section 314 of the Penal Code (obstruction of business) in line with freedom of association principles.
     • The Committee requests to be kept informed of the progress made in respect of all of the abovementioned matters.
   • (c) Recalling that the prohibition of third party intervention in industrial disputes is incompatible with freedom of association principles and that justice delayed is justice denied, the Committee trusts that the appeals court will render its decision on Mr. Kwon Young-kil without further delay, taking into account the relevant freedom of association principles. The Committee requests the Government to provide information in this respect as well as a copy of the court judgement.
   • (d) The Committee expresses its deep regret at the difficulties faced by the 12 dismissed people connected to the Korean Association of Government Employees’ Works Councils (KAGEWC), which appear to be due to the absence of legislation ensuring their basic rights of freedom of association, in particular the right to form and join organizations of one’s own choosing, respect for which is now largely guaranteed by the entry into force of the Act on the Establishment and Operation of Public Officials’ Trade Unions. Noting that four of them have been reinstated, the Committee requests the Government to reconsider the dismissals of Kim Sang-kul, Oh Myeong-nam and Min Jum-ki in the light of the adoption of the new Act and to keep it informed in this respect. It also requests the Government to provide information on the outcome of the pending administrative litigation and requests for examination concerning the dismissals of Koh Kwang-sik, Han Seok-woo, Kim Young-kil, Kang Dong-jin and Kim Jong-yun and expresses the hope that the new legislation will be taken into consideration in rendering the relevant decisions. The Committee finally requests the Government to provide copies of the relevant decisions.
   • (e) With regard to the application of the provisions concerning obstruction of business, the Committee requests the Government: (i) to continue making all efforts to ensure a practice of investigation without detention for workers who have violated current labour laws, unless they have committed an act of violence or destruction, as indicated in its previous reports; (ii) to review the situation of Oh Young Hwan, President of Busan Urban Transit Authority Workers’ Union and Yoon Tae Soo, first Executive Director of Policy of the Korea Financial Industry Union, who appear to have been penalized under this provision for non-violent industrial action and to keep it informed in this respect; (iii) to continue to provide details, including any court judgements, on any new cases of workers arrested for obstruction of business.
   • (f) With regard to the new allegations made by the ICFTU, the Committee, recalling that the practice of arresting and prosecuting trade union leaders for their activities aimed at greater recognition of trade union rights is not conducive to a stable industrial relations system and that public servants should enjoy the right to strike as long as they are not exercising authority in the name of the State and do not carry out essential services in the strict sense of the term, requests the Government to look at the possibility of reviewing the convictions of KGEU President Kim Young-Gil and General Secretary Ahn Byeong-Soon given that they were convicted under the now repealed Public Officials Act for actions aimed at acquiring recognition, de facto and de jure, of the basic rights of freedom of association of public servants and that their sentences are subject to a two-year suspension. The Committee requests to be kept informed in this respect.
   • (g) The Committee requests the Government to refrain from any act of interference in the activities of the KGEU and to provide its comments on the ICFTU allegations of violent police intervention in rallies, injury of trade unionists, intimidation and harassment of trade union leaders and members so as to discourage their participation in the strike of 15 November 2004 and finally, the initiation of a “New Wind Campaign” by MOGAHA at the end of 2004 targeting the KGEU and promoting a “reformation of organizational culture, focusing on rearing workplace councils and healthy employee groups”.
   • (h) With regard to the new allegations made by the IFBWW, the Committee expresses its deep regret at the intervention of the police and the criminal prosecution and sentencing of officials of the Korea Federation of Construction Industry Trade Union (KFCITU) to fines and imprisonment. The Committee requests the Government to issue appropriate instructions so that all actions of intimidation and harassment against the KFCITU officials cease immediately. It requests the Government to review all convictions and prison sentences, and to compensate the KFCITU officials for any damages suffered as a result of their prosecution, detention and imprisonment. It further requests the Government to inform it of the outcome of the trial of the three officials of the Kyonggido Subu local trade union and of the current situation of Park Yong Jae, President of the Chunahn local trade union who was convicted to one year imprisonment. The Committee requests to be kept informed on all of the above.
   • (i) The Committee requests the Government to inform it of the outcome of the appeal lodged against the court decision which found that the collective agreements signed in 2004 did not apply to workers hired by subcontractors; it trusts that the appellate court will take due account of the freedom of association principles mentioned in the Committee’s conclusions.

Annex I

1. List of arrest warrants issued against the KGEU on 17 November 2004, provided by the ICFTU
2. KIM Young-Gil, President
3. JEONG Yong-Cheon, First Vice-President
4. AHN Byeong-Soon, General Secretary
5. KIM Jeong-Soo, Vice-President
6. MIN Jeom-Gee, Vice-President
7. KIM Sang-Girl, Vice-President
8. BAHN Byeong-Ja, Vice-President
9. KIM Il-Soo, Vice-President
10. GWON Seung-Bok, Chairperson of Anti-Corruption Campaign Committee
11. NOH Myeong-Woo, Chairperson of Seoul regional branch
12. HAN Seok-Woo, Chairperson of Busan regional branch
13. KIM Gab-Soo, Chairperson of Ulsan regional branch
14. KIM Won-Geun, Chairperson of Gyeonggi regional branch
15. KANG Yang-Hee, Chairperson of Gangwon regional branch
16. KIM Sang-Bong, Chairperson of Chungbuk regional branch
17. KIM Boo-Yoo, Chairperson of Chungnam regional branch
18. PARK Jong-Shik, Chairperson of Jeonbuk regional branch
19. KANG Ki-Soo, Chairperson of Gwangju regional branch
20. PARK Hyeong-Gee, Chairperson of Jeonnam regional branch
21. KEE Byeong-Ha, Chairperson of Gyeongnam regional branch
22. KIM Yeong-Cheol, Chairperson of Jeju regional branch
23. LEE Tae-Gee, Chairperson of Educational Administrative Organs branch
24. LEE Joon-Gee, Deputy Secretary
25. JEONG Yong-Hae, Spokesperson
26. SEO Hyeong-Taek, Policy Planning Secretary
27. LEE Ho-Seong, Organizing Secretary
28. KANG Soo-Dong, Education and Publicity Secretary
29. HYEON In-Deok, External Relations Secretary
30. LEE Byeong-Gwan, Executive Director of Organizing
31. SEO Tae-Won, Executive Director of Industrial Dispute
32. LEE Choon-Shik, Director-General of Ulsan regional branch
33. LEE Dal-Soo, Chairperson of Seoul Ganbuk-ku chapter
34. LEE Gyu-Sam, Chairperson of Gangwon Wonju-si (city) chapter
35. CHOI Seon-Jung, Director-General of Gangwon Wonju chapter
36. Eight Chairpersons of chapters in Chungbuk regional branch
37. There may be more KGEU members under arrest warrants.
38. Annex II
39. List of KGEU officials and members arrested in November 2004, provided by the ICFTU
40. 13 November 2004
41. – JEONG Woo-Wan, Executive Director of Finance: arrested when he tried to get access to his email account at an Internet cafe. Released two days later.
42. – KIM Yong-Seong, Chairperson of National Assembly branch: released two days later.
43. – GWON Jong-Mahn, Chairperson of Seoul Yeongdeungpo-gu chapter: arrested in front of his chapter office. Detained on 16 November.
44. 14 November 2004
45. – KIM Hyeong-Cheol, Chairperson of Political Empowerment Committee: arrested and detained after the KCTU’s annual workers’ rally on 14 November.
46. – NAM Hyeon-Woo, Chairperson of Seoul Gangseo-gu chapter: released two days later.
47. 15 November 2004
48. – HONG Seong-Ho, Executive Director of Bargaining: released two days later.
49. – HYEON Chang-Yo, Chairperson of Incheon Gyeoyang-gu chapter: arrested after a rally at Hanyang University on 15 November. Detention warrant claimed.
50. – LEE Deok-Woo, Chairperson of Ulsan Nam-gu chapter: arrested after a rally at Hanyang University on 15 November. Detention warrant claimed.
51. – HEO Won-Haeng, First Vice-Chairperson of Seoul Guro-gu chapter: arrested after a rally at Hanyang University on 15 November. Detention warrant claimed.
52. – KIM Bae, Chairperson of Daegu Dong-gu chapter: arrested after a rally at Hanyang University on 15 November. Detained on 17 November.
53. – 24 more arrested after a rally at Hanyang University on 15 November. Released one day later.
54. – six arrested after a rally in front of Gangnam bus depot on 15 November. Released an hour later.
55. – 19 members of Gangwon branch arrested for walkout on 15 November. Released one day later.
56. – KIM Seon-Tae, Chairperson of Jeonnam Gangjin-gun (county) chapter: arrested during walkout on 15 November. Detention warrant claimed.
57. – 48 more members of Jeonnam Gangjin-gun (county) chapter: arrested for walkout on 15 November. Released one day later.
58. – 39 members of Ulsan branch arrested for walkout on 15 November. Released one day later.
59. – KANG Dong-Jin, Director-General of Gyeongnam branch: arrested in front of his branch office. Detention warrant claimed.
60. – 19 more members of Gyeongnam branch: arrested for walkout on 15 November. Released one day later.
61. – LEE Il-Sook, Director of Women’s Activities of Gyeonggi Goyang chapter: arrested for walkout on 15 November. Released one day later.
62. – AHN Jeong-Gook, delegate, Gyeonggi Goyang chapter: arrested for walkout on 15 November. Released one day later.
63. 16 November 2004
64. – CHOI Yoon-Hwan, Chairperson of Daegu/Gyeongbuk regional branch: arrested with police questioning.
65. – PARK Joon-Bok, Chairperson of Auditing Committee: arrested with police questioning.
66. – KANG Woong-Je, Executive Director of Policy Planning: arrested with police questioning.
67. – 15 members of solidarity organizations like KCTU and DLP: arrested while joining a rally for protesting government suppression of KGEU in Wonju, Ganwon-do (province). Released hours later.
68. 17 November 2004
69. – GYEONG Gab-Soo, Chairperson of Chungbuk Jecheon chapter: arrested for KGEU’s industrial ballots.
70. – YEO Jae-Yool, Chairperson of Ulsan Buk-ku (district) chapter: arrested in front of his chapter office.
71. – KIM Boo-Hwan, Chairperson of Ulsan Jung-gu chapter.
72. – LEE Gwang-Woo, Chairperson of Gangwon Samcheok chapter.
73. – KANG Yeong-Goo, Chairperson of Incheon regional branch: arrested in a cathedral.