Informe provisional - Informe núm. 307, Junio 1997

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

Allegations: Arrest and detention of a trade union leader; government refusal to register newly established organizations: adoption of labour law amendments contrary to freedom of association

1. 177. The Committee already examined the substance of this case at its May 1996 and March 1997 meetings, when it presented an interim report to the Governing Body (see 304th Report, paras. 221 to 254, and 306th Report, paras. 295 to 346, approved by the Governing Body at its 266th and 268th Sessions (June 1996 and March 1997)).
2. 178. Since the most recent examination of this case, the Government forwarded its observations in a communication dated 5 May 1997. The ICFTU submitted new allegations in a communication dated 28 May 1997.
3. 179. The Republic of Korea has not ratified 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 examinations of the case

1. 180. The Korean Confederation of Trade Unions (KCTU) presented allegations to the effect that Korean labour law allowed the Government to infringe drastically the right of workers to establish and join organizations of their own choosing without previous authorization. More specifically, the law allowed the Government to refuse the KCTU's request for registration on 23 November 1995. The KCTU further alleged that its President, Mr. Kwon Young-kil, had been arrested by the police on the same day as that in which it had sought to be registered. The Korea Automobile Workers' Federation (KAWF) indicated that it too had been refused registration.
2. 181. Subsequently, the ICFTU presented a complaint in respect of the adoption of the new Trade Union and Industrial Relations Adjustment Act and, more specifically, in respect of the provisions concerning:
   • - the restrictions on trade union pluralism;
   • - the requirement to register with the Labour Ministry persons (third parties) from whom organizations of employers and workers seek assistance in the settlement of disputes;
   • - the replacement of striking workers by workers from outside the enterprise and the recourse to subcontracting in case of a labour dispute;
   • - the too broad list of essential services in which arbitration is compulsory;
   • - the loss of union membership in case of dismissal;
   • - the prohibition of the occupation of production lines during industrial disputes;
   • - the prohibition of the remuneration of strikers;
   • - the prohibition on employers from remunerating full-time union officers;
   • - the prohibition of the right to organize of public servants and of schoolteachers.
3. 182. In reaction to the adoption of this legislation, the FKTU and the KCTU called for a general strike. This strike action was declared illegal and arrest warrants were issued against KCTU leaders. Moreover, leaders of the Halla Heavy Industry Union were arrested in the harbour city of Mokpo as was a unionist at the Manda machinery automobile plant in Taejun. Subsequently, the trade union leaders who had been arrested during the time of the strikes were all released. The ICFTU had pointed out, however, that some 30 other trade unionists who had been arrested before the strikes were still detained, either serving prison sentences or appearing on a wanted list. The police had intervened on several occasions to disperse peaceful and authorized marches. Finally, the ICFTU indicated that the members of a delegation that it had sent to the Republic of Korea were subject to constant harassment, including the cancellation of a visa.
4. 183. In its replies, the Government indicated that it had wished to reform the existing industrial relations system in order to enhance workers' living standards as well as labour market flexibility. However, since representatives of management and labour within the Presidential Commission on Industrial Relations Reform had failed to come to an agreement on certain issues, the Government had submitted the revised Bill of labour-related laws to the National Assembly which adopted it on 26 December 1996.
5. 184. The Government believed that the revised labour-related laws were a considerable step forward towards respecting ILO standards, at the same time reflecting the Republic of Korea's economic needs and its socio-political particularities. The new legislation provided for, most notably:
   • - the establishment of multiple trade unions starting from the year 2000 at the national and industrial levels, and 2002 at the enterprise level;
   • - the repeal of provisions that prohibited third-party intervention;
   • - the suppression of the prohibition of political activities by trade unions.
6. 185. However, as strong demands to reconsider certain aspects of the new laws had arisen from labour organizations and some other circles of society, the heads of the ruling and opposition parties had met at the Presidential Palace on 21 January 1997 and had agreed to reopen debates over the labour laws at the National Assembly.
7. 186. At its March 1997 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 urges the Government:
   • (i) to take the necessary measures without delay so that public servants and teachers can establish and join organizations of their own choosing;
   • (ii) to register without delay the Korean Teachers' and Educational Workers' Union (CHUNKYOJO) so that it can legally defend and promote the interests of its members;
   • (iii) to repeal section 4 of the Law on Prohibiting the Collection of Contributions in Cash or in Kind in order to ensure that unions enjoy financial independence;
   • (iv) to take the necessary measures to render trade union pluralism legal without delay;
   • (v) to proceed with the registration of the KCTU as well as of the Korean Automobile Workers' Federation, the National Council of Subway Workers' Union and the Federation of Hyundai Group Trade Union;
   • (vi) to provide information on the scope of the term "social activities" which could justify the disqualification of a trade union;
   • (vii) to ensure that organizations of employers and workers have the right to choose, without hindrance, the persons from whom they wish to seek assistance during collective bargaining and dispute settlement procedures;
     • (viii) to provide further information on, and to take the necessary measures to modify the list of essential services where the right to strike is prohibited;
   • (ix) to review the provision concerning the right of dismissed workers so that the principle of the free affiliation of workers with the trade union of their choice is respected;
   • (x) to limit the hiring of workers from outside the business to replace strikers to essential services in the strict sense of the term;
   • (xi) to provide detailed information in reply to the allegation concerning the prohibition on workplace occupations during strikes;
   • (xii) to provide information in response to the allegation that the remuneration of workers for the strike period is prohibited;
     • (xiii) to provide information in respect of the allegation concerning the prohibition on employers from remunerating full-time union officers;
   • (xiv) to inform it of developments regarding the new examination of the legislation by the National Assembly.
   • (b) As regards the allegations of a factual nature:
   • (i) the Committee expresses its concern over the important number of trade unionists who are still detained;
   • (ii) the Committee requests the Government to drop the charges brought against trade unionists for pursuing their legitimate trade union activities including strike action and to release those who are still detained;
   • (iii) the Committee urges the Government to take the necessary measures to this end without delay and to keep it informed of any progress made in this respect;
   • (iv) the Committee requests the Government in particular to provide detailed information on the persons mentioned in Annexes I and II of the present report;
   • (v) the Committee requests the Government to provide its observations on the allegations concerning police intervention in trade union marches and the harassment that an international trade union mission was subjected to.
   • (c) The Committee requests the Government to examine the possibility of a high-level tripartite mission being undertaken to the country as soon as possible so that the Government can take its views into account with a view to fully implementing freedom of association principles.

B. The Government's reply

1. 187. In its communication dated 5 May 1997, the Government refers first of all to the legislative aspects of this case. Regarding the right to organize of public servants, it points out that this right has long been, and will continue to be, recognized for public servants who are engaged in manual work at the Office of Railroads, the Ministry of Information and Communication and the National Medical Centre. An intensive debate on how to extend these rights to other categories of public servants was held by the Presidential Commission on Industrial Relations Reform, but no consensus was reached. The "public interests" representatives on the Commission proposed reviewing this issue in the second reform phase during this year. The Government also recognized the need for an in-depth study of this issue and decided that it will be reviewed further in the second phase of reform. The opposition and ruling parties in the National Assembly agreed with this measure.
2. 188. Regarding the rights of teachers, the Government recalls that it enacted a "Special Act on Promoting Teachers' Status" in 1991 which allows teachers to organize educational associations and to bargain and consult over working conditions twice annually with Superintendents at the local level, or with the Minister of Education at the national level. Educational associations include the Korean Confederation of Teachers' Associations and the Federations of Teachers' Associations at the municipal and provincial levels, to which approximately 60 per cent (260,000) of the Republic of Korea's teachers presently belong as members. The Government has tried to enhance the rights and interests of teachers through regular negotiations with these organizations. Furthermore, it has established a system in which teachers can work until the retirement age of 65 and take a three-year leave for child care.
3. 189. In Korean society, teachers are viewed in a special light which is not easily understood in Western countries. Specifically, throughout the long history of the country, teachers have been respected as spiritual guides and students have always held them in great esteem. In many cases, the level of respect is the same as that reserved for parents. Teachers are looked upon as holders of special and important job rather than ordinary workers. The tradition still remains strong and teachers can exert tremendous influence over young students. In Korean culture teaching is regarded as a occupation with public responsibility. In this context, Korean people find it hard to understand why teachers, who have a high social status, would want to organize themselves into trade unions like ordinary workers. This has led to the Korean society having a strong opinion against the organization of teachers.
4. 190. In an effort to address this issue, the Government advanced proposals with allowed for the establishment of multiple teachers' associations for the purpose of bargaining and calling for consultations on working conditions. These proposals were based on the report presented by the Presidential Commission on Industrial Relations Reform. However, faced with the argument of political and academic figures and parents' associations that this issue should be discussed further within the context of the ongoing educational reform process rather than in the context of labour law reform, the Government did not submit the revision plan to the National Assembly. During the discussion on the new labour laws in the National Assembly the ruling and opposition parties agreed to further examine and review the rights of public servants and teachers. Meanwhile the Presidential Commission on Industrial Relations Reform plans to discuss this issue thoroughly with the aim of devising reasonable and improved provisions in the second reform phase during this year.
5. 191. Regarding section 4 of the Law on Regulating the Collection of Contributions in Cash or in Kind, the Government confirms that this law prohibits citizens, corporate entities and organizations from collecting undue contributions in cash or in kind. However, under the terms of section 2 of this Law, entrance fees, lump-sum allowances or membership dues are excluded from this prohibition. Nevertheless, a trade union cannot collect contributions from citizens who are not members. According to the Government, if a trade union is regarded as an exception and allowed to receive contributions from non-members, this would be in violation of the principles of equality and of the spirit of the rule of law.
6. 192. The Government indicates that the new law enacted on 13 March 1997 (Trade Union and Labour Relations Adjustment Act) allows multiple trade unions. Thus, this law grants workers the right to freely establish and to join a union of their choice. Moreover, this new law offers immediate recognition to the KCTU as a lawful upper-level trade union and allows the establishment of a second or third upper-level trade union in each industry.
7. 193. However, at the enterprise level, multiple trade unions will be allowed only after a five-year period (i.e. starting in the year 2002). Many people have expressed concern that trade union pluralism within a single company could lead to instability in industrial relations and confusion in collective bargaining. Therefore, it was decided to allow trade union pluralism at the enterprise level after concrete measures for minimizing such concerns were introduced. Appropriate methods and procedures for collective bargaining will be established by the time trade union pluralism at the enterprise level is allowed.
8. 194. At the upper level, the KCTU as well as the Korea Automobile Workers' Federation (KAWF) and the National Council of Subway Workers' Union (NCSWU) can be registered unless they are disqualified under the new labour law of 13 March 1997. Trade unions at the industrial level such as the Federation of Korean Public Service Trade Unions, the Korean Federation of Chemical Workers' Unions, the Korean Cargo Transport Workers' Federation and the Federation of Korean Facilities Management Trade Unions were established under the new law, and have been conducting trade union activities as of 28 April 1997.
9. 195. The former law disqualified trade unions whose aims were mainly directed towards political or social activities. However, there was criticism that the concept of "social activities" was too comprehensive and vague to be used as a legal term. Hence, in the new law amended on 13 March 1997, the term "social activities" has been deleted (Trade Union and Labour Relations Adjustment Act, section 2(4)(e)).
10. 196. Under the new law, the ban on third-party intervention in collective bargaining and industrial disputes was eliminated. This law stipulates that the persons and organizations from whom workers and employers can seek assistance include those notified to the Minister of Labour, besides those who are qualified pursuant to related laws and regulations. The purpose of this notification is merely to inform the Government of those persons or organizations from whom the unions and employers wish to obtain assistance.
11. 197. The Government recalls that under the former legislation, all the services defined as "public services" by law were subject to arbitration by the authorities. The new legislation however classifies public services into "general services" and "essential services" with a view to securing the right to collective action for workers employed in public services. Government arbitration is therefore limited to essential public services. Moreover, compared with the old laws, public hygiene and broadcasting services are excluded from the list of essential services, whereas banking services (except for the Bank of Korea) and bus services are categorized by the new law as essential services only until the end of the year 2000, when the expansion of the Seoul Subway Network is scheduled to be completed (Trade Union and Labour Relations Adjustment Act, section 71). The right of administrative authorities to ask for compulsory arbitration is no longer allowed. This procedure is only possible in cases where the Special Mediation Committee, composed of three representatives of "public interests", makes a recommendation to this effect. During the deliberations on the proposals, this modification was made to better reflect Korean reality, although during the law-making process, ILO standards served as a guideline.
12. 198. In the Republic of Korea, where trade unions are organized mostly at the enterprise level, the law is interpreted, in principle, as denying dismissed workers the right to union membership. However, to prevent an unfair dismissal from undermining trade union activities, dismissed workers can remain as union members under the terms of the new law until a review decision is made by the Central Labour Relations Commission (Trade Union and Labour Relations Adjustment Act, section 2-4-d).
13. 199. The new law allows the replacement of striking workers with workers from the same business, but new subcontracting during the strike period is prohibited (Trade Union and Labour Relations Adjustment Act, section 43). In the Government's view, the replacement of striking workers should be considered not only in relation to the protection of the right to industrial action, but also in relation to the employers' right to freedom of management and the employees' right to work in related enterprises. Compared with other countries where striking workers can be replaced with outside workers, the new law places very severe restrictions on the right of employers to continue business operations despite the strike.
14. 200. Moreover, the new law deals with the legitimate means whereby striking workers can seek to restrict a company's normal operations. It is generally accepted that a strike, in order to be effective, should be allowed to interrupt these operations to a limited extent. The previous rulings of the Supreme Court uphold the notion that the total occupation of production facilities and installations are not in accordance with the law. However, in the Republic of Korea, where a tradition of good labour relations has yet to be established, striking workers often resort to extreme actions. These include occupying a company's entire production facilities or using force or the threat of force to dissuade non-striking workers in an attempt to halt business operations. The previous law allowed industrial actions inside the workplace and did not provide any guidelines for the conduct of these actions. Thus, it was felt that institutional change was needed in response to these union tactics. Thus, under the new law the prohibition on industrial action outside the workplace has been abolished. To balance this change, new provisions have been enacted prohibiting strikers from occupying production and other key operating facilities, from blocking the entry of non-striking workers, and from obstructing the work of non-striking workers (Trade Union and Labour Relations Adjustment Act, section 42). The new law also prescribes that maintenance operations to prevent raw materials and other products from decaying or rotting shall be conducted, and that the normal operations of workplace security facilities should not be interrupted. Furthermore, strikes are prohibited from resorting to threats or violence during picketing and when urging, or persuading, other workers to participate in the strike. The new law aims therefore to balance the workers' right to strike with the employers' property rights. This balance is aimed at helping lawful tactics during industrial actions to take root.
15. 201. Under the new law, employers are not obligated to give wages to workers on strike, and trade unions are not allowed to carry out industrial action calling for the payment of wages of strikers (Trade Union and Labour Relations Adjustment Act, section 44). The principle of "No work, no pay" is essentially derived from employment contracts and has been internationally recognized. It was also upheld by the Supreme Court which decreed in its ruling of 21 December 1995 that "During industrial actions, workers have no right to demand wages, as their main right given in exchange for their duties of provided work". However, in the case of the Republic of Korea, such practices have long been followed, such as demands for wage payment during the period of strike, or prolongation of the dispute by demanding such payment as a precondition of reaching a settlement. As it seemed unlikely that these practices could be eliminated through the endeavours of labour and management acting on their own, the new law clarifies the legal principle that employers have no obligation to pay wages during the period of a strike, and trade unions cannot initiate or prolong a strike for this purpose.
16. 202. Under the new law, full-time union officials cannot be paid by employers. Such payment will constitute an unfair labour practice (Trade Union and Labour Relations Adjustment Act, section 24). The businesses which kept up the practice of paying full-time union officials when the new law entered into force will not be affected by the new provision until late 2001. The Government points out that it is globally recognized that payment for full-time union officials be taken care of by the trade unions concerned. But, it has been a widespread, long-standing practice for employers to pay wages to full-time union officials. This practice has led to increasing numbers of full-time union officials and conflict between labour and management over the number of full-time union officials involved in collective bargaining. Thus, the new law stipulates that the payment of wages of full-time union officials shall, in principle, be borne by the trade unions themselves. Considering, however, that such a radical change in a long-established practice could impose a heavy burden on trade unions, a five-year grace period was granted to allow unions to prepare for the change. In addition, the payment of wages could be gradually reduced through consultation between trade unions and employers. The amount of the reduction can be turned over to the unions for their financial independence. The purpose of this provision is to minimize the difficulties facing trade unions which have a weak financial basis. The Government emphasizes that the new law does not restrict the right of employers and workers to consult or bargain with each other during working hours, if mutually agreed. Nor does the new law, in any way, limit the provision of welfare funds by employers to the union or the granting of office space on company premises.
17. 203. As regards the allegations of a factual nature, the Government indicates that, as promised by President Kim Young Sam at the meeting of heads of the ruling and opposition parties on 21 January 1997, the arrest warrants and the arrests of 19 persons, including KwonYoung-kil, were cancelled. They are therefore all released despite the fact that their acts were illegal.
18. 204. With respect to those under arrest before the adoption of the new law, their situation is as follows:
    • - Lee Seung-pil and eight others were found guilty in a criminal trial. They were either granted leniency by being released on parole or served time. Lee Kang-chul and Oh Hyun-shik had their indictments suspended and were released;
    • - Oh Jong-ryul and five others are now serving their time after being found guilty in a trial;
    • - Kim Ki-young and eight others were released on bail and are now on trial free from any constraints;
    • - Lee Chul-eui and another person are currently facing their first criminal trials.
19. 205. However, eight persons including Oh Jong-ryul, broke not labour-related laws but the National Security Law by involving themselves in activities which cannot be viewed as being motivated purely by the revised labour laws. Nineteen persons, including Lee Seung-pil, hampered other's businesses with the intention of promoting causes alien to the trade union movement, or committed violent and destructive acts which cannot be condoned as fair industrial action. The release of those who were accused by their victims and are on trial or are under ongoing investigation should be decided by the independent judicial authorities.
20. 206. The Government confirms that a delegation of four trade union leaders visited the Republic of Korea from 11 to 16 January 1997 to reaffirm international solidarity with the strike action. The Government recalls that it grants full freedom to national trade unions in joining international labour organizations and in participating in international conferences. Similarly, international organizations can participate in the activities of their affiliated labour organizations in the country without any prior restriction. However, instead of carrying out a fact-finding mission to understand the domestic labour situation and the content of the new legislation, the delegation members involved themselves in political activities by joining the striking workers and instigating other workers to participate. Upon their arrival, they met with the leaders of the KCTU, held a press conference and participated in a solidarity rally with the FKTU. In a nationwide rally, called for the abolition of the labour-related laws and National Security Agency Law, they made such comments as: "The current strikes are about economic and social policies and thus justifiable"; and that "The OECD members can rightfully exert pressure for the revision of the new labour law." They encouraged further strike action which had already taken a heavy toll on the economy amid grave public concern. These actions went well beyond what is generally expected of members of international labour organizations, that is, providing advice and guidelines to affiliated organizations.
21. 207. The Government, out of concern that the delegation might be violating the Immigration Control Law by involving themselves in "political activities or other activities beyond what their visas permit", sent, on 14 January 1997, government officials to meet with them to deliver a verbal notice recalling that international trade union leaders are not allowed to participate in rallies, or to take sides. Also, the officials sought an understanding with the delegation on the Government's efforts to calm the situation. Despite that, they visited the FKTU's strike site on 15 January and continued to instigate strikers. This compelled the Government to deliver a warning to the members of the delegation that they would be expelled if they disturbed the public order and peace. The Government refers to various decisions of the Committee on Freedom of Association to show that the measures taken by it were in conformity with freedom of association principles.
22. 208. Finally, the Government states that it agrees in principle to the proposal concerning the visit of a tripartite mission. However, the details of the mission will be determined after continuous consultations between the Korean Government and the ILO.

C. The ICFTU's new allegations

1. 209. In a communication dated 28 May 1997, the ICFTU presents new allegations in which it asserts that the Ministry of Labour has refused to accept the notice of establishment filed by the KCTU on the following grounds. Some of KCTU's democratically elected officers, including its President Kwon Young-kil, are regarded as being ineligible for trade union office under Korean law. Moreover, duly established trade union organizations, which are affiliates of the KCTU, including the Korean Federation of Metalworkers' Unions, the Korean Teachers' and Educational Workers' Union and the Hyundai Group Trade Union Federation, are not regarded as trade union organizations by law.

D. The Committee's conclusions

• Allegations of a legislative nature
  210. 210 The Committee takes note of the adoption by the National Assembly of the Trade Union and Labour Relations Adjustment Act (TULRAA) and of its enactment on 13 March 1997. The Committee notes with interest that this new law contains a number of amendments which constitute progress towards acceptance of its recommendations, especially as regards the possibility of trade union pluralism at the industrial and national levels. However certain provisions that the Committee had considered to be contrary to freedom of association principles have not been amended. The Committee proposes to review, one by one, the points that it had raised during its previous examination of this case.
  211. 211 The Committee notes the Government's observations regarding the problem of the right to organize of public servants and of teachers. It observes that public servants, with the exception of those who are engaged in manual work at the Office of Railroads, the Ministry of Information and Communication and the National Medical Centre, still do not enjoy the right to organize. With regard to teachers, the Committee notes the explanations given by the Government concerning their role and status in Korean society. It notes moreover that despite the fact that teachers are viewed in a special light by the Korean people, it was possible to establish educational associations in 1991. According to the Government, these associations can discuss and negotiate working conditions with the authorities. However, it would not appear that these associations are trade unions in the true sense of the term, i.e. which are responsible for defending and promoting the interest of their members. This is reflected by the fact that the Korean Teachers' and Educational Workers' Union (CHUNKYOJO) has not been registered up to now.
  212. 212 In these conditions, the Committee must recall that public servants and teachers, like all other workers, without distinction whatsoever, have the right to form and join organizations of their own choosing, without previous authorization, for the promotion and defence of their occupational interests (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 213). The denial of the right of workers in the public sector to set up trade unions, where this right is enjoyed by workers in the private sector, with the result that their "associations" do not enjoy the same advantages and privileges as "trade unions", involves discrimination as regards government-employed workers and their organizations as compared with private sector workers and their organizations (see Digest, op. cit., para. 216). The possibility for teachers to establish only associations therefore can not be considered as satisfactory in the light of freedom of association principles.
  213. 213 In this respect, the Committee notes that the issue of the right to organize of public servants and teachers will be reviewed in the second reform phase during this year. The Committee requests the Government to take the appropriate steps so as to ensure respect for the fundamental principle of the recognition of the right to organize of workers without distinction whatsoever. The Committee therefore urges the Government to register without delay the Korean Teachers' and Educational Workers' Union (CHUNKYOJO) so that it can legally defend and promote the interests of its members. The Committee requests the Government to provide information on developments in this regard.
  214. 214 Concerning the alleged violations of the financial independence of organizations, the Committee notes the explanations given by the Government according to which trade unions can receive funds from their members but not from citizens who are non-members. The Committee stresses once again that provisions governing the financial operations of workers' organizations should not be such as to give the public authorities discretionary powers over them (see Digest, op. cit., para. 430).
  215. 215 The Committee notes with interest that the possibility of trade union pluralism at the industrial and national levels has been introduced. This constitutes progress in the application of freedom of association principles. In this respect, the Committee notes that several organizations have been registered in accordance with the new law. However, in order for this progress to be really significant, it would be appropriate for the Korean Confederation of Trade Unions (KCTU), the Korean Automobile Workers' Federation (KAWF), the National Council of Subway Workers' Union (NCSWU) and the Federation of Hyundai Group Trade Union to be registered shortly as well. In this respect, the Committee notes that the Government itself indicates that, under the terms of the new law, it is possible for the KCTU, the KAWF and the NCSWU to be recognized immediately. The Committee requests the Government to provide information on the measures taken to register these organizations.
  216. 216 The Committee regrets that, in steps take to recognize trade union pluralism, the Government did not immediately consider organizations established at the enterprise level for which trade union pluralism will only be possible from the year 2002. It takes note of the arguments put forward by the Government to justify this delay, especially the instability in industrial relations which could result therefrom. The Committee is of the opinion that this additional period during which freedom of association principles will continue to be seriously infringed could be avoided by organizing without delay a stable collective bargaining system in conformity with trade union pluralism and which exists in several other countries. The Committee once again urges the Government to take the necessary measures to render trade union pluralism legal without delay at the enterprise level.
  217. 217 The Committee notes with interest that the term "social activities" has been removed as a reason for which a trade union organization could be disqualified. Thus, an ambiguous situation in respect of the right of trade unions to organize their activities freely has been removed.
  218. 218 The Committee takes note of the information furnished by the Government concerning the lifting of the ban on third-party intervention in collective bargaining. It notes in particular that the purpose of the notification of the identity of third parties to the Minister of Labour is merely to inform (section 40 of TULRAA). The Committee therefore understands that this measure does not constitute a requirement of previous authorization. It requests the Government to confirm that this is indeed the case and to indicate what are the possible sanctions in case of the failure to notify the Ministry of Labour.
  219. 219 The Committee notes that the new legislation establishes a distinction between general public services and essential public services and that recourse may be had to arbitration only for this second category of public services after a recommendation of the Special Mediation Committee to this effect (sections 71 and 74 of TULRAA). The Committee observes that the essential services are the following: railroad services, inner-city bus services, water, electricity, gas supply, oil refinery and supply services, hospital services, banking services and telecommunication services. However, the inner-city bus services and banking services (except for the Bank of Korea) will be considered as essential only until the year 2000.
  220. 220 The Committee recalls in this respect that recourse to compulsory arbitration, when this results in the prohibition of the right to strike, should be limited to services whose interruption would endanger the life, personal safety or health of the whole or part of the population (see Digest, op. cit., para. 516). The Committee considers, on the basis of this definition, that the Mint, banking services, transport services and the petroleum sector do not constitute essential services in the strict sense of the term. They do constitute, however, services where a minimum negotiated service could be maintained in the event of a strike so as to ensure that the basic needs of the users of these services are satisfied. The Committee notes, however, that under the terms of section 63 of TULRAA there does not appear to be a total prohibition of the right to strike in case of arbitration. In effect, this provision stipulates that industrial actions shall not be conducted for 15 days from the date on which they have been referred to arbitration. The Committee requests the Government to provide information on this point.
  221. 221 As regards the replacement of striking workers, the Committee notes that under the terms of the new law employers may not contract or subcontract works which have been suspended because of the industrial action concerned (section 43 of TULRAA). It would thus appear that the amendments of March 1997 have removed the possibility of hiring workers from outside the business concerned under certain conditions, a possibility which had been provided for in the legislation of December 1996 and which had been criticized by the Committee.
  222. 222 The Committee notes that the new law prohibits the occupation of the company's production facilities or other key operating facilities, blocking the entry and obstructing the work of non-striking workers (sections 38(1) and 42(1) of TULRAA). The Committee considers in this respect that certain types of strike action, such as for example workplace occupations as well as taking part in picketing, should not be considered as unlawful unless they cease to be peaceful or they interfere with the freedom to work. The compatibility of the above-mentioned provisions with freedom of association principles will thus depend on how they are interpreted by the courts. In order for such compatibility to be achieved, the action taken by strikers should not be declared unlawful unless this action is accompanied by violence or is a violation of the freedom to work of non-strikers. The Committee requests the Government to keep it informed of the application of this provision in practice.
  223. 223 The Committee understands from the Government's statement and from the legislation that the payment of wages to workers for the period when they have gone on strike is neither required nor prohibited (section 44 of TULRAA). The Committee requests the Government to confirm if this is indeed the case.
  224. 224 Concerning the denial of the right to organize of dismissed workers, the Committee notes that the workers concerned can keep their union membership until a review decision is made by the Central Labour Relations Commission (section 2(4)(d)). The Committee considers that this guarantee is insufficient to ensure that the principle of the right of workers to join organizations of their own choosing is respected. Moreover, as already pointed out by the Committee in its previous report (paragraph 333), a provision of this nature entails the risk of acts of anti-union discrimination being carried out to the extent that the dismissal of a trade union activist would prevent him from continuing his trade union activities within his organization. Furthermore, as the legislation provides that union officials shall be elected from union members (section 23(1)), which is in violation of freedom of association principles, the inability of dismissed workers to keep their union membership would also prevent them from continuing to carry out their trade union functions. These provisions taken together could even lead to the questioning of the validity of, or the refusal to register, an organization on the pretext that the persons in the executive bodies are not qualified to be members. The Committee requests the Government to quickly put an end to this situation which is in violation of freedom of association principles, by repealing the provisions in question.
  225. 225 The Committee notes that in five years' time full-time union officials will no longer be able to be paid by employers. During the transitory period, the parties will try to reduce the payment of wages of these officials and the amount of the reduction will be turned over to the unions for their financial support. The Committee further notes that once the new provision enters into force (1 January 2002) such payments will be considered as an unfair labour practice, just like the domination of, or interference with, the functioning of a trade union. The Committee notes, however, that under the terms of section 81(4), employers may provide welfare funds or office space to unions. The Committee considers that abandoning such a widespread, longstanding practice as the payment of wages of full-time union officials by employers may lead to financial difficulties for unions and entail the risk of considerably hindering their functioning.
  226. 226 Having examined the provisions which were the subject of the allegations and the amendments that have been made to them, the Committee notes that a certain number of these provisions continue to be in violation of freedom of association principles and that the compatibility of certain other provisions with these principles would depend on their application in practice. The Committee therefore insists that the revision of the legislation be undertaken shortly. It notes in this regard that a second reform will be carried out during this year. The Committee urges the Government to take into consideration the conclusions and recommendations formulated in this report so as to ensure as soon as possible the full respect of freedom of association principles. The Committee considers that it would be desirable that the proposed mission takes place before the next reform of legislation.
  227. 227 Finally, the Committee urges the Government to provide its observations on the ICFTU's new allegations according to which the Ministry of Labour has refused to register the KCTU.
• Allegations of a factual nature
  228. 228 The Committee takes note of the detailed information furnished by the Government on the situation of the arrested or wanted persons mentioned by the complainants. The specific information thus provided covers all the persons who figure in the annex of the previous report. In particular, it notes with interest that the arrest warrants issued against 15 trade union leaders have been withdrawn and that four other trade union leaders arrested on this basis have been released (see Annex 1). However, it would appear that one of them, Kim Im-shik, President of the Hyundai Heavy Industry Union, was released for review of the legality of the detention. The Committee requests the Government to provide information on developments in the situation of Mr. Kim Im-shik.
  229. 229 As regards the situation of Mr. Kwon Young-kil, President of the KCTU, the Committee notes that his arrest warrant has been withdrawn, as is the case for the other trade union leaders. However, no information has been communicated on the criminal proceedings which were initiated against Mr. Kwon Young-kil in 1994 for violations of the provisions on third party intervention in the settlement of disputes. The Committee recalls that it had requested the Government to do everything in its power to have the charges against Mr. Kwon Young-kil dropped. It firmly reiterates this request especially since the Government itself states that there are no longer any obstacles under the new legislation to the intervention of third parties in the settlement of disputes. This would mean that proceedings are being taken against Mr. Kwon Young-kil under provisions which have been repealed.
  230. 230 Regarding the persons arrested and/or sentenced before the December 1996 strikes, the Committee notes that nine of them have been released either after having been granted leniency or after having served time. Moreover, the indictments of two other persons have been suspended (see Annex II).
  231. 231 However, six trade union leaders are currently being detained after having been sentenced to one to three years' imprisonment and, in the case of teachers, the suspension of their qualifications (see Annex III). These sentences were handed down for violations of the legislation on labour disputes under the Penal Code (interference with business), or of the National Security Law. However, the Government has not provided information on the specific reasons as to why which they have been thus charged. Finally, 11 other trade unionists are undergoing trial before the courts. Nine of them have been released on bail (see Annex IV).
  232. 232 The Committee must once again express its deep concern over the fact that trade union leaders and members are still detained or on trial, it would appear, for activities linked to collective labour disputes. The Committee is convinced that it will not be possible for a stable industrial relations system to function harmoniously in the country as long as trade unionists are the subject of detentions and judicial proceedings. It therefore 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 cases 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.
  233. 233 The Committee observes that the Government has not provided any specific information on the allegations concerning police intervention in trade union marches. The Committee recalls in this respect that trade union rights include the right to hold public demonstrations. The authorities should resort to the use of force only in situations where law and order is seriously threatened. The intervention of the forces of law and order should be in due proportion to the danger to law and order that the authorities are attempting to control and governments should take measures to ensure that the competent authorities receive adequate instructions so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations which might result in a disturbance of the peace (see Digest, op. cit., para. 137).
  234. 234 The Committee notes the explanations given by the Government on the measures taken during the visit of a delegation sent by the ICFTU in January 1997. It must recall that although the refusal to grant a visa to foreigners, or more generally the right to exclude persons from national territory, are matters which concern the sovereignty of a State, visits to affiliated national trade union organizations and participation in their meetings are normal activities for international workers' organizations (see Digest, op. cit., paras. 638 and 640). The Committee therefore asks the Government to ensure that requests for visas, which are presented in the future by representatives of international organizations of employers and workers and the relations that the authorities have with international delegations, are guided by the need to respect the right of international affiliation and to promote a climate that is conducive to harmonious relations between the Government and trade unionists.
  235. 235 The Committee notes with interest the Government's statement that, in principle, it accepts the proposal concerning the visit of a mission which was contained in the Committee's previous report. It encourages the Government to receive this mission before the next reform of legislation takes place and to hold further consultations with the Office to fix the details of such a mission.

The Committee's recommendations

1. 236. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) As regards the legislative aspects of this case, while observing with interest that the new law, the Trade Union and Labour Relations Adjustment Act (TULRAA), contains a number of amendments which constitute progress towards acceptance of the Committee's previous recommendations, the Committee urges the Government:
   • (i) to take the appropriate steps so as to ensure respect for the fundamental principle of the recognition of the right to organize of workers without distinction whatsoever, including public servants and teachers;
   • (ii) to register without delay the Korean Teachers' and Educational Workers' Union (CHUNKYOJO) so that it can legally defend and promote the interests of its members, and to provide information on developments in this regard;
   • (iii) to ensure that provisions governing the financial operations of workers' organizations are not such as to give the public authorities discretionary powers over them;
   • (iv) to register shortly, within the new context of the possibility of trade union pluralism, the Korean Confederation of Trade Unions (KCTU), the Korean Automobile Workers' Federation (KAWF), the National Council of Subway Workers' Union (NCSWU) and the Federation of Hyundai Group Trade Union. It requests the Government to provide information on measures taken to this end;
   • (v) to take the necessary measures to render trade union pluralism legal without delay at the enterprise level, including by establishing a stable collective bargaining system;
   • (vi) to confirm whether the notification to the Ministry of Labour of the identity of third parties in collective bargaining has merely the objective of informing the Ministry and does not constitute prior authorization and to indicate what are the possible sanctions in case of the failure to notify the Ministry of Labour;
   • (vii) to provide information on the content of section 63 of the TULRAA and on the provisions concerning arbitration and strike action;
     • (viii) to keep it informed of the application in practice of sections 38(1) and 42(1) of TULRAA relating to the prohibition of certain types of industrial action;
   • (ix) to confirm that the payment of wages to workers for the period when they have gone on strike is neither required nor prohibited;
   • (x) to repeal the provisions concerning the denial of the right of dismissed workers to keep their union membership and those relating to the ineligibility of non-members of trade unions to stand for office (sections 24(d) and 23(1) of TULRAA);
   • (xi) to take into consideration the conclusions and recommendations contained in the present report so as to ensure as soon as possible the full respect of freedom of association principles;
   • (xii) to provide information on the new allegations presented by the ICFTU according to which the Ministry of Labour has refused to register the KCTU.
   • (b) As regards allegations of a factual nature:
   • (i) the Committee notes with interest that the arrest warrants issued against trade union leaders during the strikes of January 1997 have been withdrawn and that certain trade unionists have been released;
   • (ii) the Committee requests the Government to provide information on developments concerning the situation of Mr. Kim Im-shik;
   • (iii) the Committee firmly insists that the Government do everything in its power to ensure the dropping of the charges made against Mr. Kwon Young-kil, President of the KCTU, before the January 1997 strikes;
   • (iv) the Committee expresses its serious concern over the detention of trade unionists and the judicial proceedings taken against them for, it would appear, activities linked to collective labour disputes;
   • (v) the Committee urges the Government to take the necessary measures so as to ensure that the persons detained or undergoing trial as a result of their trade union activities (see Annexes III and IV) 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 on measures taken on all the above points;
   • (vi) the Committee draws the Government's attention to the importance of the respect of the right to hold public demonstrations provided there is respect of legal provisions which are intended to ensure the maintenance of public order;
   • (vii) the Committee requests the Government to ensure that requests for visas, which are presented in the future by representatives of international organizations of employers and workers and relations of the authorities with international delegations, are guided by the need to respect the right of international affiliation and to promote a climate that is conducive to harmonious relations between the authorities and trade unions.
   • (c) The Committee encourages the Government to receive the proposed mission before the next reform of legislation takes place and to continue holding consultations with the Office to fix the details of a mission to the country.

Annex I

1. Information on 19 individuals for whom arrest warrants were sought after the
2. labour law revision
3. -----------------------------------------------------------------
4. Name Position/organization
5. Kwon, Y.K. President of KCTU
6. Date of arrest warrant request: 10.01.97
7. Arrest warrant execution status: Not executed
8. Charge: Interference with business
9. Reference: Arrest warrant returned 11.2.1997
10. Bae, S.B. Vice-President of KCTU
11. Date of arrest warrant request: 10.01.97
12. Arrest warrant execution status: Not executed
13. Charge: Interference with business
14. Reference: Arrest warrant returned 11.2.1997
15. Heo, Y.K. Vice-President of KCTU
16. Date of arrest warrant request: 10.01.97
17. Arrest warrant execution status: Not executed
18. Charge: Interference with business
19. Reference: Arrest warrant returned 11.2.1997
20. Kim, Y.D. Vice-President of KCTU
21. Date of arrest warrant request: 10.01.97
22. Arrest warrant execution status: Not executed
23. Charge: Interference with business
24. Reference: Arrest warrant returned 11.2.1997
25. Dan, B.H. President of KFMU
26. Date of arrest warrant request: 10.01.97
27. Arrest warrant execution status: Not executed
28. Charge: Interference with business
29. Reference: Arrest warrant returned 11.2.1997
30. Lee, Y.H. Chairperson of Hyundai Trade Union Federation
31. Date of arrest warrant request: 10.01.97
32. Arrest warrant execution status: Not executed
33. Charge: Interference with business
34. Reference: Arrest warrant returned 11.2.1997
35. Kwak, D.C. Presidient of Hyundai Mipo Shipyard Union
36. Date of arrest warrant request: 10.01.97
37. Arrest warrant execution status: Not executed
38. Charge: Interference with business
39. Reference: Arrest warrant returned 11.2.1997
40. Kim, I.S. President of Hyundai Heavy Industry Union
41. Date of arrest warrant request: 10.01.97
42. Arrest warrant execution status: Executed on 18.1.1997
43. Charge: Interference with business
44. Reference: Released for review of the legality of the detention
45. 22.1.1997
46. Oh, H.K. Research Director of Halla Heavy Industry Union
47. Date of arrest warrant request: 10.01.97
48. Arrest warrant execution status: Executed on 15.1.1997
49. Charge: Interference with business, infliction of injury
50. Reference: Arrest cancelled, released on 22.1.1997
51. Yoon, B.J. General Secretary of KFMU-South Kyunggi Province
52. Date of arrest warrant request: 10.01.97
53. Arrest warrant execution status: Not executed
54. Charge: Interference with business
55. Reference: Prior arrest warrant returned 18.2.1997
56. Lee, S.K. President of Deokbu Jinheung Union
57. Date of arrest warrant request: 10.01.97
58. Arrest warrant execution status: Not executed
59. Charge: Interference with business
60. Reference: Arrest warrant returned 18.2.1997
61. Jeun, J.W. President of Daewoo Heavy Industry Union
62. Date of arrest warrant request: 10.01.97
63. Arrest warrant execution status: Not executed
64. Charge: Interference with business
65. Reference: Prior arrest warrant returned 18.2.1997
66. Joo, K.S. Director of Halla Heavy Industry Union
67. Date of arrest warrant request: 10.01.97
68. Arrest warrant execution status: Executed on 15.1.1997
69. Charge: Interference with business, infliction of injury
70. Reference: Arrest cancelled 23.1.1997
71. Cheun, S.B. President of the association of dismissed
72. workers in Ulsan
73. Date of arrest warrant request: 10.01.97
74. Arrest warrant execution status: Not executed
75. Charge: Interference with business, assault
76. Reference: Prior arrest warrant returned 10.2.1997
77. Choo, I.S. Director of Halla Heavy Industry Union
78. Date of arrest warrant request: 10.01.97
79. Arrest warrant execution status: Executed on 15.1.1997
80. Charge: Interference with business, infliction of injury
81. Reference: Arrest cancelled 23.1.1997
82. Sohn, B.H. President of Hyundai Precision Industry Union
83. Date of arrest warrant request: 10.01.97
84. Arrest warrant execution status: Not executed
85. Charge: Interference with business
86. Reference: Prior arrest warrant returned 10.2.1997
87. Chung, K.D. President of Hyundai Motors Union
88. Date of arrest warrant request: 10.01.97
89. Arrest warrant execution status: Not executed
90. Reference: Interference with business
91. Reference: Prior arrest warrant returned 10.2.1997
92. Park, M.J. Presdient of Korean Federation of Hospital Work
93. Unions
94. Date of arrest warrant request: 10.01.97
95. Arrest warrant execution status: Not executed
96. Charge: Interference with business
97. Reference: Prior arrest warrant returned 10.2.1997
98. Bae, B.S. President of Korean Federation of Automobile
99. Workers
100. Date of arrest warrant request: 10.01.97
101. Arrest warrant execution status: Not executed
102. Charge: Interference with business
103. Reference: Prior arrest warrant returned 10.2.1997
104. -----------------------------------------------------------------
105. Annex II
106. Situation of imprisoned and wanted workers as of 12 March 1997
107. (11 released individuals)
108. -----------------------------------------------------------------
109. Name Position/ Date of Reasons for release
110. organization release
111. -----------------------------------------------------------------
112. Lee, S.P. Vice-President
113. of KCTU 03.01.97 Prison term served
114. Lee, J.Y. President of
115. Shin-il Metal TU 23.06.94 Suspended sentence
116. Hong, Y.P. Chairperson of KCTU
117. Masan and Changwon 04.01.97 Prison term served
118. Park, S.H. Hanjin Heavy
119. Industry TU 04.09.96 Suspended sentence
120. Lee, K.S. President of Daerim
121. Automobile TU 05.02.97 Suspended sentence
122. Kim, P.K. Director of Daerim
123. Automobile TU 05.02.97 Suspended sentence
124. Ahn, S.O. Daerim Automobile TU 05.02.97 Suspended sentence
125. Kim, K.D. Changwon Branch,
126. Doosan Machinery TU 23.09.96 Suspended sentence
127. Shim, J.S. Vice-President of Halla
128. Heavy Industry TU 05.02.97 Suspended sentence
129. Lee, K.C. Dismissed worker, Not 16.12.96 suspension
130. LG Chemical TU imprisoned of indictment
131. Oh, H.S. Dismissed worker, Not 16.12.96 suspension
132. LG Chemical TU imprisoned of indictment
133. -----------------------------------------------------------------
134. Annex III
135. Six individuals serving time
136. -----------------------------------------------------------------
137. Name Position/organization
138. Oh, J.R. Former President of Kwangju District
139. Teachers' Union
140. Date of arrest: 26.01.95
141. Charge: National Security Law
142. Sentence: Two-year imprisonment, one-year suspension of
143. qualification
144. Hwang, Y.H. President of Korea Textile Co. TU
145. Date of arrest: 23.05.96
146. Charge: "Interference with business" under Penal Code
147. Sentence: Two-year imprisonment
148. Im, Y.T. Welfare secretary of Korea Textile Co. TU
149. Date of arrest: 23.05.96
150. Charge: "Interference with business" under Penal Code
151. Sentence: One and a half year imprisonment
152. Lee, J.H. Member of Korea Textile Co. TU
153. Date of arrest: 23.05.96
154. Charge: "Interference with business" under Penal Code
155. Sentence: One and a half year imprisonment
156. Moon, S.D. President of Class Confederation, Seoul Chapter
157. Date of arrest: 06.06.95
158. Charge: National Security Law
159. Sentence: Three-year imprisonment, three-year suspension
160. of qualification
161. Cho, M.R. General Secretary of Kumi Regional Council,
162. Korea Federation of Metal Workers' Union
163. Date of arrest: 19.06.96
164. Charge: Labour Dispute Adjustment Act
165. Sentence: One-year imprisonment
166. -----------------------------------------------------------------
167. Annex IV
168. Eleven individuals on trial
169. -----------------------------------------------------------------
170. Name Position/organization
171. Kim, K.Y. General Secretary, Changwon Branch,
172. Doosan Machinery TU
173. Date of arrest: 19.09.96
174. Charge: Labour Dispute Adjustment Act
175. Reference: Released on bail 10.12.1996
176. Kim, S.B. Director of Expiaworld TU
177. Date of arrest: 25.06.96
178. Charge: Act concerning punishment of violent crimes
179. Reference: Released on bail 22.11.1996
180. Im, Y.T. Director of Expiaworld TU
181. Date of arrest: 25.08.96
182. Charge: Interference with business
183. Reference: Released on bail 6.12.1996
184. Lee, S.H. Editor-in-Chief, Korea Fukoku TU
185. Date of arrest: 21.10.96
186. Charge: Act concerning punishment of violent crimes
187. Reference: Released on bail 10.12.1996
188. Lee, J.H. Director of Korea Fukoku TU
189. Date of arrest: 21.10.96
190. Charge: Act concerning punishment of violent crimes
191. Reference: Released on bail 10.12.1996
192. Im, J.Y. Dismissed worker, LG Chemical TU
193. Date of arrest: 08.10.96
194. Charge: Interference with business
195. Reference: Released on bail 11.12.1996
196. Kim, W.C. Chairperson, Pusan Cmt for Democratization
197. of Railway Workers TU
198. Date of arrest: 07.10.96
199. Charge: National Security Law
200. Reference: Released on bail 14.12.1996
201. Ahn, K.H. President, Hyoseung Metal Industry TU
202. Date of arrest: 08.10.96
203. Charge: National Security Law
204. Reference: Released on bail 1.2.1997
205. Won, D.W. President, Hyoseung Metal Industry TU
206. Date of arrest: 08.10.96
207. Charge: National Security Law
208. Reference: Released on bail 1.2.1996
209. Lee, C.E. Chair, Cmt for Democratization of Railway
210. Workers TU
211. Date of arrest: 07.10.96
212. Charge: National Security Law
213. Reference: First trial
214. Song, H.J. Chair, Cmt for Democratization of Railway
215. Workers TU
216. Date of arrest: 07.10.96
217. Charge: National Security Law
218. Reference: First trial
219. -----------------------------------------------------------------