Informe provisional - Informe núm. 331, Junio 2003

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

Allegations: The complainants’ allegations concern the arrest and detention of trade union leaders and members; government refusal to register newly established organizations; the dismissal of unionists at Dong-hae Company; and the non-conformity of several provisions of the labour legislation with freedom of association principles.

1. 322. The Committee already examined the substance of this case at its May 1996, March and June 1997, March and November 1998, March 2000, March 2001 and March 2002 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; approved by the Governing Body at its 266th, 268th, 269th, 271st, 273rd, 277th, 280th and 283rd Sessions (June 1996, March and June 1997, March and November 1998, March 2000, March 2001 and March 2003)].
2. 323. The Government provided its observations in communications dated 18 February and 30 April 2003, as well as an additional information note which was received on 16 May 2003.
3. 324. 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. 325. At its March 2002 session, in the light of the Committee’s interim conclusions, the Governing Body approved the following recommendations:
   • (a) As regards the legislative aspects of this case, the Committee requests the Government:
   • (i) to continue to extend the right of association to all those categories of public servants who should enjoy this right in accordance with freedom of association principles;
   • (ii) to continue to take steps to recognize, as soon as possible, the right to establish and join trade union organizations for all public servants who should enjoy this right in accordance with freedom of association principles;
   • (iii) to speed up the process of legalizing trade union pluralism at the enterprise level with a view to promoting the implementation of a stable collective bargaining system;
   • (iv) to ensure that the payment of wages to full-time union officers by employers is not subject to legislative interference;
   • (v) to further amend the list of essential public services contained in section 71 of the Trade Union and Labour Relations Adjustment Act (TULRAA) so that the right to strike is prohibited only in essential services in the strict sense of the term;
   • (vi) to repeal the requirement, contained in section 40 of the TULRAA to notify the Ministry of Labour of the identity of third parties in collective bargaining and industrial disputes, as well as the penalties contained in section 89(1) of the TULRAA for violation of the prohibition on persons not notified to the Ministry of Labour from intervening in collective bargaining or industrial disputes;
   • (vii) to repeal the provisions concerning the denial of the right of dismissed and unemployed workers to keep their union membership and the ineligibility of non-members of trade unions to stand for office (sections 2(4)(d) and 23(1) of the TULRAA);
     • (viii) to bring section 314 of the Penal Code (obstruction of business) into line with freedom of association principles;
   • (ix) to speed up the work of the Tripartite Commission and to keep the Committee informed of the outcome of the deliberations within the Tripartite Commission on all the above issues, which the Committee firmly hopes will be examined and resolved quickly in accordance with freedom of association principles;
   • (x) to speed up the legislative process with a view to amending all the provisions mentioned above in line with freedom of association principles. The Committee reminds the Government in this regard that it may avail itself of the technical assistance of the Office. The Committee requests the Government to provide information on measures taken to give effect to the above recommendations and to keep the Committee informed thereon.
   • (b) As regards the factual aspects of this case:
   • (i) the Committee once again urges the Government to ensure the dropping of charges brought against Mr. Kwon Young-kil, former president of the KCTU, in connection with his legitimate trade union activities, and requests it to keep it informed of the outcome of Mr. Kwon Young-kil’s appeal against the judgement issued by the Seoul District Court;
   • (ii) the Committee requests the Government to keep it informed of the outcome of the appeal lodged by OMRON Automotive Electronics Korea to the Supreme Court regarding the dismissal of six workers at the Dong-hae Company, and encourages the Government to continue pursuing efforts towards maintaining social dialogue between labour and management on this issue.
   • (c) As regards the KCTU’s new allegations contained in a communication dated 8 June 2001:
   • (i) the Committee urges the Government to ensure that the activities of the Korean Association of Government Employees’ Works Councils (KAGEWC) are no longer hindered in future. The Committee requests the Government to indicate whether any KAGEWC leaders or members were dismissed pursuant to its formation, as alleged, and if so, to take the necessary measures to ensure that they are immediately reinstated in their jobs. The Committee asks the Government to keep it informed of progress made in this regard;
   • (ii) the Committee requests the Government to indicate the total number of unionists who were arrested and detained in 2001 as well as the charges brought against them. The Committee urges the Government to take the appropriate measures so that the persons detained or on trial as a result of their trade union activities, are released, or that the charges brought against them are dropped. In the case of persons charged with violence or assault, the Committee asks the Government to ensure that these charges are dealt with as soon as possible. It requests the Government to provide information concerning measures taken on all these points.
   • (d) The Committee once again reiterates its call, on all the parties, to act in good faith and expresses its firm hope that tripartite dialogue will continue on all issues raised in this case. The Committee calls on all parties to exercise restraint in pursuing activities linked to collective labour disputes.

B. The Government’s replies

1. 326. In its communication dated 18 February 2003, the Government indicated that it has continued efforts to improve the related systems in accordance with the Committee’s recommendations. A bill on the establishment and operation of public officials’ union has been submitted to the National Assembly. In addition, the Government has made profound consultations with the members of the ILO advisory mission, has co-hosted an international seminar with the ILO in November 2002 and has engaged in intense discussion on the related labour issues at the Tripartite Commission.
2. 327. The Government then indicates the state of developments on these issues as of January 2003 and adds that any new improvement or change under the new Government, which will take office on 25 February 2003, will be provided in due time. The Government indicates that, aside from the government-led initiative to submit a bill on the establishment and operation of public officials’ association, two other bills were before the National Assembly on its own initiative: (1) a revision bill for the Trade Union and Labour Relations Adjustment Act (TULRAA) which would guarantee the three labour rights of public servants (to organize, to bargain collectively and to strike); and (2) a bill on the establishment and operation of trade unions for public officials recognizing the right to organize and to bargain collectively.
3. 328. As concerns the list of essential services in section 71 of the TULRAA, the Government indicated that, in order not to restrict the right to strike in essential public services excessively, it made all efforts to minimize the cases where strikes in such services were referred to arbitration. As of November 2002, the Labour Relations Committee has referred 22 of the 62 conciliations to arbitration. The Government plans to review the issues of adjusting the scope of essential public services taking into account domestic industrial relations practices, the contents of labour-related laws and the characteristics of the national economic structure. The Government’s position on the other legislative aspects of the case was similar to that presented to the Committee at its last examination of the case in March 2002.
4. 329. As concerns the arrest and detention of trade unionists, the Government states that Mr. Kwon Young-kil, former president of the Korea Confederation of Trade Unions (KCTU), was sentenced in 2001 to ten months’ imprisonment with a two-year stay of execution. According to the Government, the prosecution of Mr. Kwon cannot be withdrawn since the case is still under appeal. As concerns the appeal lodged by OMRON Automotive Electronics Korea regarding the dismissal of six workers at the Dong-hae Company, the Government indicates that the Supreme Court dismissed the appeal by OMRON on 29 March 2002 and ruled that Hee-young Lee and five others were fired unfairly. Accordingly, five were reinstated in service on 22 July 2002. One decided not to return to his/her former position.
5. 330. As concerns the situation of the leaders and members of the Korean Association of Government Employees’ Works Councils (KAGEWC), the Government indicates that, as of January 2003, 12 people were dismissed due to illegal collective actions, such as leading, planning and participating at illegal assemblies and walking out on their job without permission.
6. 331. Finally, as concerns the total number of unionists arrested or detained in 2001, the Government indicates that, as of January 2003, 221 were arrested and four were imprisoned. Sixty-three unionists were arrested during the period from January to April 2002, only two of whom were in prison as of January 2003. Eight public servants involved in the public officials’ union were arrested in 2002 and their trials or appeals are still pending. The Government annexes lists of all those arrested with the status of their trials.
7. 332. In its reply dated 30 April 2003, the Government indicates that the new Government that took office in February 2003 is firmly committed to building industrial relations for social integration by balancing power between labour and management. Toward the end, the Government will reform the labour laws to meet global standards and harmonize with domestic reality.
8. 333. In order to have a comprehensive review of all the institutions previously raised by labour and management, including the CFA recommendations, the Government will start operating the industrial relations improvement task force. The task force will devise detailed plans for improving the institutions by next year. Before completing amendment by 2005, the Government will also gather opinions through social dialogue at the Tripartite Commission. The Government would like ILO experts to provide necessary advice on the bills which will be prepared by the industrial relations improvement task force.
9. 334. Legalizing the government officials’ union was a campaign pledge of President Roh. Toward the end, the Government gave the Ministry of Labour (MOL) the authority of preparing the Public Officials’ Union Bill, which was previously handled by the Ministry of Government Administration and Home Affairs (MOGAHA). With a view to granting government officials the rights equivalent to those of teachers, the Government is revising the bill that was submitted to the National Assembly in October 2002 and promoting the enforcement of the new legislation by 2004. The new bill would allow using the title of trade union and grant the right to organize, the right to bargain collectively, and the right to conclude collective agreements except for those affected by the budget and legal issues.
10. 335. In preparation for the overall granting of trade union pluralism at the enterprise level in 2007, the Government plans to prepare necessary measures for unifying the bargaining channels. It will also map out measures to amend the legal provisions that can cause controversies, inter-union conflicts and conflicts between labour and management when multiple unions are allowed at a single enterprise.
11. 336. The Government states that it is planning to reasonably adjust the scope of essential public services that can be subject to arbitration by authority in the process of industrial disputes, taking into account the global standards and domestic reality.
12. 337. The Government indicates that it will also come up with reasonable measures for improvement on other issues raised by labour and management, including a provision of report for third party assistance in case of collective bargaining and labour disputes and the right to join trade unions for the unemployed or the dismissed.
13. 338. Finally, the Government indicates that it will establish a practice of investigation without detention for union workers who violate current labour laws, unless they commit an act of violence or destruction. The Government adds that the KCTU president, Mr. Dan Byung-ho, was released on the expiration of his prison term on 3 April 2003.
14. 339. On 16 May 2003, the Government transmitted an information note on the current situations of trade unionists imprisoned in the Republic of Korea. On 30 April 2003, the Korean Government decided to grant special pardons and reinstate 1,424 convicts, including 568 who violated labour laws, in an attempt to make a new start with regard to establishing industrial relations for a social integration of tolerance and reconciliation, with the launch of the new Government. However, in an effort to fully respect the judicial authority, only those who had served a certain period after their sentencing were granted pardons. In that context, those whose stay of execution was finalized after 1 October 2002 were excluded from the pardon. In addition, those who have been granted a pardon since 2000 and have since committed a second offence were also not granted a pardon this time.
15. 340. As a result, all the trade union officials who were reported to be in jail by the Government in January 2003 were released. Among them, Mr. Kang Sung-chul (executive of the KCTU), was released from prison by an exemption of the execution of his remaining sentence. Mr. Dan Byung-ho (Chairman of the KCTU), Mr. Kim Byung-hak (Taekwang Industry Union official), and Mr. Han Seok-ho (Organization Chief of the KMWF), who had been released by finishing their terms of sentence but were under various legal restrictions for a certain period, were reinstated and are now able to perform their full rights as citizens. Mr. Ku Jae-bo was released, having served two years in prison with a three-year stay of execution, and Mr. Lee Hae-nam was released, having served three years in prison with a four-year stay of execution. In addition, Lee Yong-deuk (Chairman of the KFBU), Lee Kyung-soo (Chairman of Kookmin Bank Union), and Kim Cheol-hong (Chairman of the Housing and Commercial Bank Union), were also reinstated their civil rights.

C. The Committee’s conclusions

1. 341. The Committee recalls that it has been examining this case since 1996, and while important steps have been taken over the years to ensure greater conformity between the national legislation and practice and the principles of freedom of association, most notably in the recognition of trade union pluralism at the national level and the recognition of the right to organize for teachers, significant obstacles to the full implementation of freedom of association principles remain. These obstacles can be found both in the legislation and in the practical approach to industrial relations within the country.
2. 342. This being said, the Committee notes with interest the latest government communications which have indicated not only an overall desire and willingness to resolve most, if not all, of the outstanding issues in this case, but have also demonstrated concrete progress made in achieving a positive framework for the promotion of harmonious industrial relations through a certain number of special pardons granted to imprisoned trade unionists. The Committee is convinced that such an attitude will greatly facilitate the search for solutions to the complex issues involved in this case. The Committee hopes that all the parties concerned will be able to come together to find mutually acceptable solutions to all these issues and that it will be in a position to note further significant progress made in respect of its recommendations in the near future. The Committee takes due note of the Government’s request for advice from ILO experts in respect of the bills to be prepared by the industrial relations improvement task force and reminds the Government that the technical assistance of the Office is entirely at the Government’s disposal in this regard.
   • Legislative issues
3. 343. 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 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.
4. 344. As concerns the Committee’s previous recommendation that steps be taken to recognize, as soon as possible, the right to establish and join trade union organizations for all public servants who should enjoy this right, in accordance with freedom of association principles, the Committee notes with interest that, according to the Government’s latest reply, legalizing the government officials’ union was a campaign pledge of the newly elected President. The Government has now given the Ministry of Labour the authority to prepare the Public Officials’ Union Bill, which was previously handled by the Ministry of Government Administration and Home Affairs (MOGAHA), with a view to granting to government officials the right to organize, the right to bargain collectively and the right to conclude collective agreements, with the exception of those who are affected by the budget and legal issues. The Committee welcomes these developments and noting that the Government intends to promote enforcement of the new legislation by 2004, trusts that the necessary measures will be taken 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. It requests the Government to keep it informed of the progress made in this regard.
5. 345. Regarding the issue of the legalization of trade union pluralism at the enterprise level, the Committee notes from the latest information provided by the Government that it plans to prepare the necessary measures for unifying the bargaining channels and addressing other related areas of concern in preparation to the legalization of enterprise pluralism in 2007. While taking due note of the complexity arising from a number of issues interrelated to the introduction of pluralism at the enterprise level, the Committee trusts that the Government will take all possible steps to speed up the process of legalizing trade union pluralism, in full consultation with all social partners concerned, thereby ensuring full respect for the right of workers to establish and join the organization of their own choosing. Further noting that the prohibition of payment by employers of wages to full-time union officials (presently also deferred to 2007) is also closely linked to this issue, the Committee recalls its previous conclusions that such matters should not be subject to legislative interference and requests the Government to ensure that this matter is resolved in conformity with freedom of association principles. It requests the Government to keep it informed of the progress made on these matters.
6. 346. As regards the scope of essential public services currently listed in section 71(2) of the TULRAA, where the right to strike may be prohibited, the Committee notes with interest the Government’s indication that it is planning to adjust reasonably the scope of essential public services that can be subject to arbitration, taking into account the global standards and domestic reality. The Committee recalls in this regard its previous conclusions in which it indicates that railroad services, intercity rail and the petroleum sector do not constitute essential services in the strict sense of the term the interruption of which would endanger the life, personal safety or health of the whole or part of the population. The Committee has, however, considered that they may, in the circumstances of this case, constitute public services where a minimum service, negotiated between the trade unions, the employers and the public authorities, may be maintained in the event of a strike so as to ensure that the basic needs of the users of these services are satisfied [see 327th Report, para. 488]. The Committee therefore trusts that these principles will be borne in mind when reviewing the scope of essential public services and requests the Government to keep it informed of the progress made in restricting the list in section 71(2) to essential services in the strict sense of the term.
7. 347. The Committee further notes the latest indication by the Government that, more generally, steps will be taken to come up with reasonable measures for the improvement of other matters, including the notification requirement for third-party intervention in collective bargaining and industrial disputes and the denial of dismissed and unemployed workers from keeping their union membership and the ineligibility of non-union members to stand for trade union office. Recalling its previous conclusions in this respect, the Committee once again requests the Government to repeal the notification requirement (section 40), 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)) and the provisions concerning the denial of dismissed and unemployed workers from keeping their union membership and the ineligibility of non-union members to stand for trade union office (sections 2(4)(d) and 23(1) of the TULRAA). It requests the Government to keep it informed of the progress made in this regard.
8. 348. As regards the term obstruction of business under section 314 of the Criminal Code, the Committee recalls from its previous examination of this matter that the Government had stated that certain workers had been arrested for leading illegal strikes and violating this section, taking due account of the size of the workplaces concerned and the negative impact on the national economy, even though violent acts were not committed. The Committee notes with interest the Government’s general indication in its most recent reply that it will establish a practice of investigation without detention for workers who violate current labour laws, unless they commit an act of violence or destruction. The Committee considers that this statement is 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 for maintaining and improving working conditions [see 327th Report, paras. 491-492].
9. 349. Recalling that the legal definition of “obstruction of business” is so wide as to encompass practically all activities related to strikes and that the charge of obstruction of business carries extremely heavy penalties (maximum sentence of five years’ imprisonment and/or a fine of 15 million won), the Committee once again emphasizes that such a situation is not conducive to a stable and harmonious industrial relations system and requests the Government to bring section 314 of the Criminal Code into line with freedom of association principles. In the meantime, the Committee hopes that, in accordance with the Government’s indication, means of detention will not be used against union members for the exercise of their trade union activities, unless they have committed violent acts.
   • Factual issues
10. 350. The Committee recalls that the factual issues in this case concern: the arrest and detention of Mr. Kwon Young-kil, former president of the KCTU; the arrest and detention of hundreds of trade unionists in 2001; the dismissal of six workers at the Dong-hae Company; the alleged dismissal of leaders and members of the Korean Association of Government Employees’ Works Councils (KAGEWC) and the obstacles placed in the way of the association’s activities.
11. 351. While welcoming the release of KCTU president, Mr. Dan Byung-ho, communicated in the Government’s latest reply, the Committee nevertheless regrets that he was obliged to serve his full term of imprisonment. The Committee further notes the Government’s indication in its communication of February 2003 that 221 trade unionists were arrested or detained in 2001, four of whom are in prison, while those remaining, as well as the 63 unionists, two of whom are in prison, and eight public servants (who the Government acknowledged were arrested in the first part of 2002) are awaiting the final judgements in their cases. Finally, the Committee notes with regret that there have been no new developments in respect of Mr. Kwon Young-kil, whose case is still under appeal.
12. 352. Recalling its previous conclusion that it is not possible for a stable industrial relations system to function harmoniously in the country as long as trade unionists are the subject of arrests and detentions [see 327th Report, para. 505], the Committee welcomes the steps taken by the Government to grant special pardons to a certain number of detained trade unionists. The Committee further considers that the indication in the Government’s communication of April 2003 that it will establish a practice of investigation without detention for trade unionists who violate current labour laws, unless they commit an act of violence, is an important step towards building a climate of confidence necessary to stable and harmonious industrial relations. It would therefore further encourage the Government to take additional steps as appropriate so that all persons still detained or on trial as a result of their trade union activities are released and that the charges brought against them are dropped. In the event of persons charged with violence or assault, the Committee asks the Government to ensure that any such charges are dealt with as soon as possible. It requests the Government to keep it informed of any measures taken in respect of the above points.
13. 353. The Committee also recalls its previous conclusions in respect of Mr. Kwon Young-kil, former president of the KCTU, and once again urges the Government to ensure that the charges brought against him in connection with his legitimate trade union activities are dropped and requests the Government to keep it informed of the outcome of his appeal.
14. 354. As concerns the activities of the KAGEWC and possible measures of reprisal against its leaders and members, the Committee notes with regret the information provided by the Government that 12 people had been dismissed as of January 2003 due to illegal collective actions. Recalling its conclusions above with respect to the right of public servants, as other workers, to establish and join organizations of their own choosing in the furtherance and defence of their members’ interests, the Committee, in keeping with its previous recommendation [see 327th Report, para. 506(c)(i)], requests the Government to take the necessary measures to ensure that these persons are immediately reinstated in their jobs, without loss of wages. The Committee requests the Government to keep it informed of the progress made in this regard.
15. 355. Finally, as concerns the six workers dismissed from the Dong-hae Company, the Committee notes with interest that the Supreme Court has ruled that these workers were fired unfairly and that five of them were reinstated in July 2002, the sixth choosing not to return to his/her former position.

The Committee's recommendations

1. 356. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Noting with interest from the latest government communication an overall desire and willingness to resolve most, if not all, of the outstanding issues in this case, the Committee hopes that all the parties concerned will be able to come together to find mutually acceptable solutions to all these issues and that it will be in a position to note further significant progress made in respect of its recommendations in the near future.
   • (b) As regards the legislative aspects of this case, the Committee requests the Government:
   • (i) 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;
   • (ii) to take all possible steps to speed up the process of legalizing trade union pluralism, in full consultation with all social partners concerned, in order to ensure full respect for the right of workers to establish and join the organization of their own choosing;
   • (iii) to ensure that the payment of wages by employers to full-time union officials is not subject to legislative interference;
   • (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 prohibited only in essential services in the strict sense of the term;
   • (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);
   • (vi) to repeal the provisions concerning the denial of dismissed and unemployed workers from keeping their union membership and the ineligibility of non-union members to stand for trade union office (sections 2(4)(d) and 23(1) of the TULRAA);
   • (vii) to bring section 314 of the Penal Code (obstruction of business) into line with freedom of association principles;
     • (viii) to keep it informed of the progress made in respect of all of the abovementioned matters.
     • Noting the Government’s request for advice from ILO experts in respect of the bills to be prepared by the industrial relations improvement task force, the Committee reminds the Government that the technical assistance of the Office is entirely at the Government’s disposal in this regard.
   • (c) As regards the factual aspects of this case:
   • (i) the Committee welcomes the steps taken by the Government to grant special pardons to a certain number of detained trade unionists;
   • (ii) taking due note of the indication in the Government’s communication of April 2003 that it will establish a practice of investigation without detention for trade unionists who violate current labour laws, unless they commit an act of violence, the Committee further encourages the Government to take additional steps as appropriate so that all persons still detained or on trial as a result of their trade union activities are released and that the charges brought against them are dropped. In the event of persons charged with violence or assault, the Committee asks the Government to ensure that any such charges are dealt with as soon as possible. It requests the Government to keep it informed of any measures taken in respect of the above points;
   • (iii) the Committee once again urges the Government to ensure that the charges brought against Mr. Kwon Young-kil, former president of the KCTU, in connection with his legitimate trade union activities are dropped and requests the Government to keep it informed of the outcome of his appeal;
   • (iv) noting with regret the information provided by the Government that 12 people connected to the Korean Association of Government Employees’ Works Councils (KAGEWC) had been dismissed as of January 2003 due to illegal collective actions, the Committee requests the Government to take the necessary measures to ensure that these persons are immediately reinstated in their jobs, without loss of wages. It requests the Government to keep it informed of the progress made in this regard.