Informe provisional - Informe núm. 309, Marzo 1998

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

Visualizar en: Francés - Español

Go to:

INTRODUCTION
A. Previous examination of the case
C. The Committee's conclusions
The Committee's recommendations
Annex

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

120. The Committee already examined the substance of this case at its May 1996, March and June 1997 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 approved by the Governing Body at its 266th, 268th and 269th Sessions (June 1996, March and June 1997)).
121. Since the most recent examination of this case, the Government forwarded its observations in communications dated 15 October 1997 and 17 March 1998.
122. In December 1997, the Government agreed to receive a high-level ILO tripartite mission to the country to examine the issues raised in Case No. 1865. This mission visited the Republic of Korea from 9 to 13 February 1998. The report of the mission is annexed to this case.
123. 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 examination of the case

124. During the course of its previous examination of this case, the Committee had noted that the Trade Union and Labour Relations Adjustment Act (TULRAA), which was enacted on 13 March 1997, contained a number of amendments which constituted progress towards acceptance of its previous recommendations. However, the Committee had also noted that this new law had not amended certain other provisions which the Committee had previously considered to be contrary to freedom of association principles including those relating to the denial of the right of public servants and teachers to establish and join organizations of their own choosing, the illegality of trade union pluralism at the enterprise level, the prohibition on the right to strike in non-essential services and the denial of the right to organize of dismissed workers. Within the context of the possibility, under the new law, of trade union pluralism at the national and industrial levels, the Committee had requested the Government to register 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.
125. The case had also addressed allegations of a factual nature involving detention of trade union leaders and members as a result of their trade union activities, police intervention in trade union marches and the harassment that members of an international delegation sent to the Republic of Korea were subjected to.
126. At its June 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, 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.
B. The Government's reply
Right to organize of public servants and teachers (307th Report, paragraph 236(a)(i) and (ii))
127. In its communication dated 15 October 1997, the Government refers first of all to the legislative aspects of this case. Regarding the right to organize of public servants and teachers, the Government reiterates its previously held view that The Republic of Korea's unique situation should be fully considered. The ruling party and two opposition parties agreed to continue to study and review this issue when they were engaged in the process of drawing up the new labour laws at the National Assembly in March 1997. Therefore, the Government indicates that it is carrying out an extensive study on this matter and gathering a wide range of opinions from all the relevant parties.
Possibility of multiple trade unions under the new law, the Trade Union and Labour Relations Adjustment Act (TULRAA) (307th Report, paragraph 236(a)(iv))
128. With regard to the Committee's previous recommendation to register 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, the Government states that as of 30 September 1997, 12 federations, including the KAWF, the NCSWU and the Federation of Hyundai Group Trade Unions, have been issued certificates for registration of trade unions. The 12 federations are grouped as follows:
(Dates inside parentheses refer to the dates of issuance of the registration certificates.)
-- federations of trade unions under the Federation of Korean Trade Unions (FKTU) (2): Federation of Korean Public Service Trade Unions (28 March 1997), Korean Federation of Apartment Workers' Unions (2 July 1997);
-- federations of trade unions under the KCTU (8): Korean Federation of Chemical Workers' Union (4 April 1997), Korean Cargo Transportation Workers' Federation (10 April 1997), Korean Federation of Institution Management Trade Unions (10 April 1997), Korean Automobile Workers' Federation (25 April 1997), Korean Federation of Financial Institution Labour Unions (8 May 1997), Korean Railway & Subway Workers' Unions (10 June 1997), Korean Federation of Taxi Workers' Union (16 June 1997), Hyundai Confederation of Metal Workers' Trade Unions (12 September 1997); in the case of the Federation of Hyundai Group Trade Unions, the certificate for registration was issued 12 September 1997, under the name of "Hyundai Confederation of Metal Workers' Trade Unions";
-- federations of trade unions which are not affiliated to the KFTU nor to the KCTU (2): Korean Federation of Commercial Unions (30 April 1997), Federation of Government-Invested Corporation Labour Unions (15 May 1997). The Government adds that it expects the number of newly established organizations at the industrial and national levels to increase in the future which shows that the TULRAA has contributed to the promotion of freedom of association.
Trade union pluralism at the enterprise level (307th Report, paragraph 236(a)(v))
129. As regards the issue of rendering trade union pluralism legal without delay at the enterprise level, the Government replies that under the new laws the establishment of multiple unions at the enterprise level is to be allowed after a five-year preparatory period (hence, in the year 2002). The single union system at the enterprise level has been practised for several decades in the Republic of Korea. The five-year preparatory period is in place to address concerns that multiple trade unions within a certain company -- a major change to the current negotiation practice -- could lead to instability in industrial relations, significant confusion over collective bargaining and an increase in internal disputes among unions. The Government points out nevertheless that the new laws reflect its intention to allow multiple trade unions at the enterprise level after concrete measures have been taken to minimize the side-effects of multiple trade unions. According to the Government, appropriate methods and procedures for collective bargaining under the multiple trade unions system will be established after consulting workers' and employers' organizations and conducting adequate study and review on this issue.
Ban on third-party intervention (307th Report, paragraph 236(a)(vi))
130. The Government points out that workers and employers are allowed to receive assistance from anyone who is notified in advance to the Minister of Labour. The purpose of this notification is merely to help the Government identify those persons or organizations who assist the unions or employers. In some cases, the number of advisers reported was so large that it was hard to recognize them as acceptable in terms of common sense. For example, Dongheung Electricity Co., based in Inchon, once reported that advisers numbered 84,560 persons, while its trade union membership numbered only 330.
Reported number of advisers in labour relations (as of August 1997)
=================================================================
Total
Reported number of unions and companies 174
Reported number of advisers 675 230
===========================
Unions' side
Number of unions 171
Number of advisers 675 215
===========================
Employers' side
Number of companies 3
Number of advisers 15
=================================================================
Prohibition of industrial action during the arbitration period (307th Report, paragraph 236(a)(vii))
131. The Government indicates that the Labour Relations Commission shall conduct arbitration in the following circumstances: upon requests for arbitration by both of the parties concerned; upon requests for arbitration by one of the parties in accordance with the provisions of a collective agreement; or in cases in which a chairman of the Labour Relations Commission decides to refer a dispute in essential public services to arbitration upon the recommendation of the Special Mediation Committee which consists of three members of the Commission representing public interests.
132. The Government adds that industrial action shall not be conducted for 15 days from the date when industrial disputes have been referred to arbitration, and the arbitration award rendered by the Labour Relations Commission shall have the same effect as that of a collective agreement. Labour strikes are seen as a last resort; therefore, this measure is intended to temporarily postpone labour strikes, allowing for the reasonable and peaceful settlement of labour disputes. However, even while industrial actions are prohibited during arbitration, labour and management may settle the industrial dispute on a voluntary basis, and in case an arbitration award is not rendered during the period, labour may resume industrial actions. This means that arbitration does not undermine the right to act collectively. In addition, if the party concerned considers that an arbitration award rendered by a Regional Labour Relations Commission violates the law, or is an act beyond its authority, it may apply for a review of the case of the Central Labour Relations Commission or file an administrative suit.
Wage payment during strikes (307th Report, paragraph 236(a)(ix))
133. The Government explains that there have been quite a large number of prolonged industrial disputes because workers demanded wages during strikes or proposed the payment of wages as a prerequisite to bargaining and the settlement of disputes. As it seemed unlikely that these practices could have been eliminated through the endeavours of labour and management acting on their own, the new laws just clarify 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 payment of wages during strikes. The Government adds that according to the principle of "No Work, No Pay", wages are not paid for the period of time during which a worker is not working. This principle is essentially derived from employment contracts and has been internationally recognized as a legal norm.
Trade union membership of dismissed workers (307th Report, paragraph 236(a)(x))
134. The Government points out that in the Republic of Korea, almost all trade unions are established at the enterprise level; therefore, only workers employed by companies are considered to be qualified to join their trade unions, and the law is interpreted, in principle, to mean that a dismissed worker loses his or her union membership of the company to which he/she belonged. Moreover, the provision stipulating that trade union officials shall be elected from among the trade union members has been consistently observed since the Trade Union Act was enacted in 1953, and the practice of electing union officials from among the union members has been established in both enterprise-level trade unions and their upper-level organizations.
135. However, as a means to prevent employers from hampering union activities through discriminatory acts against unions by resorting to unfair dismissals of union members, even dismissed workers have been allowed to retain their membership and continue their union activities, given that they meet certain conditions. The new law provides that a dismissed worker, who claims that his/her dismissal is the result of an unfair labour practice and, who applies for remedy to the Labour Relations Commission (an administrative authority with judicial characteristics), may retain his/her membership until a decision is made by the Central Labour Relations Commission (CLRC). In case the CLRC determines that the dismissal constitutes an unfair labour practice, the worker concerned may retain his/her membership and carry out his/her duty as a trade union official.
Registration of the Korean Confederation of Trade Union (KCTU) (307th Report, paragraph 236(a)(xii))
136. The Government states that the TULRAA eliminated the provision banning the establishment of multiple trade unions, thus laying the legal foundation for the statutory establishment of the KCTU. The KCTU submitted its report on the establishment of trade unions to the Ministry of Labour (MOL) on 6 May 1997. But the MOL found that the KCTU report contained some legal flaws. For example, the participation of disqualified union official members in the KCTU violated section 23(1) of the TULRAA, and the affiliation to the KCTU of unlawful organizations such as the Korean Teachers' and Educational Workers' Union (Chunkyojo) violated section 10(2) of the Act. The MOL requested the KCTU to remove these illegitimate conditions by 28 May, allowing the maximum statutory make-up period of 20 days. However, since the KCTU refused to do so, the MOL had to return the KCTU's report on establishment on 30 May 1997. In response, the KCTU requested administrative appeals on 4 June 1997, in order to reverse the MOL decision. The case was referred to the Administrative Appeals Commission under the Prime Minister on 14 June, but it was rejected on 4 September. The KCTU filed an administrative suit to the Appellate Court on 28 September 1997.
137. However, although the certificate for registration was not issued to the KCTU, in fact it is playing its role as a representative organization for its member workers participating in the Presidential Commission on Industrial Relations Reform and the Labour Relations Commissions: out of members representing workers in the Labour Relations Commission, 71 members from the trade unions under the KCTU were appointed. The Government (Ministry of Labour) is willing to issue a certificate for registration to the KCTU immediately, as long as it removes the illegal conditions included in its initial report.
Information on developments concerning the situation of Mr. Kim, Im-shik (307th Report, paragraph 236(b)(iii))
138. The Government indicates that Mr. Kim, Im-shik (President of the Hyundai Heavy Industry Trade Union) led an illegal strike from 26 to 30 December 1996, hampering the operation of the Hyundai Heavy Industry Co. and causing damage worth 1.1 billion won. Mr. Kim was arrested on 18 January 1997 on charges of interference with business under the Penal Code and released on 22 January after review of the legality of the detention.
Developments concerning the situation of detained workers (307th Report, paragraph 236(b)(v))
139. The Government states that Mr. Song, Ho-jun, who was reported to be on trial (as indicated in Annex 4 to this case in the 307th Report), was released with a suspended sentence on 20 February 1997. Mr. Cho, Myung-rae and Mr. Oh, Jong-ryul, who were reported to be serving their prison terms (as indicated in Annex 3 to this case in the 307th Report), were released on 20 June and 4 September 1997 respectively with their terms served. The Government contends that whether the persons currently on trial will be released or not is a matter to be determined by the judiciary, and that it has no authority to interfere with the matter. Lastly, in a communication dated 17 March 1998, the Government indicates that Mr. Hwang, Y.H., President of the Korea Textile Company Trade Union, and Mr. Moon, S.D., President of Class Confederation, Seoul Chapter, who were listed in Annex III to this case in the 307th Report, were released from jail on 13 March 1998 by an amnesty ordered by President Kim Dae-Jung.

C. The Committee's conclusions

140. The Committee notes the report of the high-level tripartite mission which visited the Republic of Korea from 9 to 13 February 1998 and wishes to thank the members of the mission for the work accomplished. The Committee would also like to thank the President-Elect and members of his transition team, the authorities, the social partners and all the other parties with whom the members of the mission met for their high level of cooperation during the course of the mission's visit to the country. The Committee further notes the written information provided by the Government in a communication dated 15 October 1997.
141. During its previous examination of the case, the Committee had taken 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. While the Committee had noted that this new law contained a number of amendments which constituted progress toward acceptance of its previous recommendations, it had considered that certain provisions that it had deemed to be contrary to freedom of association principles had not been amended.
142. In this respect, the Committee notes from the mission report that a Tripartite Commission composed of representatives of the Government, business and the two central trade union organizations (the registered Federation of Korean Trade Unions (FKTU) and the still unregistered Korean Confederation of Trade Unions (KCTU)), as well as of Members of Parliament belonging to other political parties, was established on 15 January 1998 by the President-Elect and his transition team. The Committee notes with interest that the Tripartite Commission has agreed to a series of reforms dealing with economic and labour-related issues, including those pertaining to freedom of association. It is the Committee's understanding from the mission report that the proposed reforms relating to freedom of association issues, if adopted by the National Assembly, would bring the industrial relations system prevailing in the Republic of Korea more fully into line with freedom of association principles and the Committee's previous recommendations. Moreover, these reforms, if implemented, would necessitate the corresponding amendments to the TULRAA. The Committee proposes to review the various issues it had raised during its previous examination of this case in the light of the recent events which have taken place in the country and which are reflected in the mission report.
- Allegations of a legislative nature
143. The Committee notes with interest from the mission report that the Tripartite Agreement provides for the legalization of teachers' unions from 1 July 1999. This would be accomplished notably by amending the relevant provisions of the various Acts which currently deny private and public school teachers the right to form and join organizations of their own choosing. The Committee notes with concern, however, that some difficulties might be encountered during the process of legalizing teachers' unions due to a degree of opposition from some members of the majority Grand National Party (GNP) in the National Assembly who feel that teachers should not have the right to organize because of their special role and status in Korean society and because of the radical image of the illegal Korean Teachers' and Educational Workers' Union (CHUNKYOJO). The Committee notes nevertheless from the mission report that these parliamentarians are willing to continue negotiations on this issue and would encourage all parties concerned to do so. In this respect, the Committee must recall that teachers, like all other workers, without distinction whatsoever, should have the right to form and join organizations of their own choosing, without previous authorization, for the promotion and defence of their occupational interests. The Committee therefore requests the Government to take the appropriate steps so as to ensure that the right to organize of teachers, as enunciated in the Tripartite Agreement, is recognized as soon as possible and at the very latest within the time frame mentioned in that agreement. Moreover, while teachers have been able to establish educational associations since 1991 and can discuss working conditions with the authorities, 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 interests of their members. This is reflected by the fact that CHUNKYOJO has not been registered up to now. The Committee would therefore request the Government to register CHUNKYOJO so that it can legally defend and promote the interests of its members as soon as the right to organize of teachers is legalized.
144. With regard to the issue of the right to organize of public servants, the Committee notes with interest from the mission report that the proposal by the Tripartite Commission to grant public servants the right to form associations (workplace councils) was adopted by the National Assembly in February 1998. This means that from 1 January 1999 public servants will have the right to establish such workplace councils through which they will be able to hold discussions with the authorities on matters relating to, inter alia, the improvement of the working environment and the settlement of grievances. The Committee notes with concern, however, that large categories of public servants are excluded from joining these workplace councils. Hence, public servants from grades 1 to 5 will be excluded from workplace councils as will public servants belonging to special services, i.e. firefighters and the police. Finally, public servants involved in personnel and confidential work, budgeting and accounting, receiving and distributing goods, supervising general service staff, secretarial work, guarding security facilities and driving passenger cars or ambulances will also not be entitled to join workplace councils. In view of the restrictions on the right to associate of a wide range of public servants, the Committee would draw the Government's attention to the fundamental principle that all public service employees, with the sole possible exception of the armed forces and the police, should be able to establish organizations of their own choosing to further and defend the interests of their members (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 206). The Committee would therefore request the Government to consider extending the right of association, recognized as of 1 January 1999 for certain categories of public servants, to all those categories of public servants who should enjoy this right in accordance with freedom of association principles.
145. According to the mission report, the same categories of public servants who will have the right to form and join associations from 1 January 1999 will gradually be granted the right to form and join unions. The Government indicates that trade unions will be allowed for public servants when the country's economic situation improves and a national consensus has been reached on the matter. In this respect, the Committee would recall that the denial of workers in the public sector to set up trade unions, where this right is enjoyed by workers in the private sector, with the result that their "associations" do not enjoy the same advantages and privileges as "trade unions", involves discrimination as regards government employed workers and their organizations as compared with private sector workers and their organizations. Such a situation gives rise to the question of compatibility of these distinctions with freedom of association principles according to which workers "without distinction whatsoever" shall have the right to establish and join organizations of their own choosing without previous authorization (see Digest, op. cit., para. 216). With regard to the Government's concerns in relation to the need to maintain national security and stability, the Committee would recall that the armed forces and the police may be excluded from the right to organize. The Committee would recall further that the right to organize does not necessarily imply the right to strike which may be prohibited in public services that are essential services in the strict sense of the term, i.e. services whose interruption would endanger the life, personal safety or health of the whole or part of the population. This would, for example, be the case of fire-fighting services. Consequently, the Committee requests the Government to take steps to recognize, as soon as possible, the right to establish and join trade union organizations to all public servants who should enjoy this right in accordance with freedom of association principles.
146. With regard to the introduction by the TULRAA of the possibility of trade union pluralism at the national and industrial levels, the Committee notes with interest from the Government's reply dated 15 October 1997 that several federations, including the Korean Automobile Workers' Federation (KAWF), the National Council of Subway Workers' Union (NCSWU) and the Federation of Hyundai Group Trade Unions have been registered under the TULRAA. The Committee regrets, however, that in taking steps 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 notes the arguments put forward by the Government to justify this delay, including the instability in industrial relations and confusion over collective bargaining which could result therefrom. The Committee is nevertheless of the opinion that this additional period during which freedom of association principles will continue to be seriously infringed could be avoided by setting up a stable collective bargaining system in conformity with trade union pluralism. The Committee therefore requests the Government to speed up the process of legalizing trade union pluralism at the enterprise level and to this end promote the implementation of a stable collective bargaining system. The Committee suggests that this is a matter that should be discussed in the Tripartite Commission.
147. With regard to the lifting of the ban on third-party intervention in collective bargaining and industrial disputes, the Committee notes the information furnished by the Government to the effect that the purpose of the notification of the identity of third-parties to the Ministry of Labour under section 40(1)(3) of the TULRAA is merely to help the Government identify those persons who assist the unions or employers. The Committee further takes note of the detailed information provided by the Government on the total number of third-parties (675,230) assisting unions (171) and companies in 1997. While the number of such advisers notified is very large, the Committee notes from the mission report that the KCTU, in particular, had notified the names of many advisers to the Ministry of Labour because non-notified persons were prohibited from intervening in collective bargaining or even making any comments about an industrial dispute under the terms of section 40(2) of the TULRAA. The Committee considers the notification requirement contained in section 40(1)(3) of the TULRAA to be onerous on unions and unjustified, especially in the light of the prohibition contained in section 40(2) of the TULRAA. Moreover, it would appear to the Committee that this notification requirement is not a pure formality since non-notified persons who intervene in collective bargaining are liable to a maximum penalty of three years' imprisonment and/or 30 million won in fines (section 89(1) of the TULRAA). The Committee considers that such provisions entail serious risks of abuse and are a grave threat to freedom of association. Consequently, the Committee would request the Government to repeal the notification requirement contained in section 40 of the TULRAA as well as the penalties provided for in section 89(1) of the TULRAA for violation of the prohibition on persons not notified to the Ministry of Labour from intervening in collective bargaining or industrial disputes.
148. The Committee notes that the TULRAA establishes a distinction between general public services and essential public services and that recourse may be had to compulsory arbitration for this second category of public services only after a recommendation of the Special Mediation Committee to this effect (sections 71(2), 74(1) and 62(3) of the TULRAA). The Committee 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.
149. 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 whole or part of the population. 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 therefore would request the Government to amend the list of essential public services contained in section 71 of the TULRAA in line with the above conclusions so that the right to strike is prohibited only in essential services in the strict sense of the term.
150. The Committee notes that section 38(1) of the TULRAA regulates the picketing of workplaces by unionists, whereas section 42(1) relates to industrial action in the form of workplace occupations. According to the mission report, picketing accompanied by coercion of non-striking workers is a criminal offence whereas if those taking part in picketing do not use violence, then this action is considered to be legal. The same is not true for section 42(1) of the TULRAA which prohibits any "... occupation of production facilities or installations related to important businesses or the equivalent thereof as determined by Presidential Decree". The Committee considers in this respect that certain types of strike action, such as for example workplace occupations, should not be considered as unlawful unless they cease to be peaceful or they interfere with the freedom to work. The Committee would therefore request the Government to provide information on the application in practice of section 42(1) of the TULRAA relating to the prohibition of workplace occupations.
151. Regarding the issue of the payment of wages during the period of industrial action, the Committee notes the Government's statement to the effect that section 44 of the TULRAA stipulates that employers have no obligation to pay wages during strikes and that trade unions cannot initiate strike action for the payment of wages during strikes. This information confirms the Committee's earlier understanding that the payment of wages to workers for the period when they have gone on strike is neither required nor prohibited under the new law.
152. As regards the issue of the payment of wages to full-time union officials, the Committee notes from the mission report that section 24 of the TULRAA prohibits employers from remunerating full-time union officials as of 1 January 2002. The Committee observes that the KCTU considers that the effect of this provision will be harmful for the union movement in the Republic of Korea which is mostly characterized by small enterprise-level unions with very limited resources. The FKTU, for its part, is of the view that this provision should be repealed since this issue is a matter to be dealt with by employers and unions and not to be determined by legislation. Finally, while some management representatives appear to be unconcerned about the current practice of paying wages to full-time union officials, others have strong contrary views which are reinforced by apprehension concerning the effects of the introduction of multiple trade unions at the enterprise level in the year 2002. The Committee considers that the prohibition of the payment of full-time union officials by employers is a matter which should not be subject to legislative interference. It therefore calls upon the Government to repeal section 24(2) of the TULRAA. The Committee notes that this controversial issue will be the subject of a second round of negotiations within the Tripartite Commission. In the context of the new climate of tripartism and cooperation between the social partners prevailing in the country, the Committee trusts that discussions within the Tripartite Commission will resolve this issue by taking into consideration the legitimate concerns of all the parties concerned.
153. With regard to the provisions in the TULRAA concerning the denial of dismissed and unemployed workers to keep their union membership and the ineligibility of non-members of trade unions to stand for office (sections 2(4)(d) and 23(1), respectively, of the TULRAA), the Committee notes from the mission report that the Tripartite Agreement contains a proposal to allow unemployed (and dismissed) workers to keep their union membership at the industry-wide and regional levels. The Committee notes that although this proposal was to be adopted by the National Assembly at its special session in February 1998, members of the National Assembly decided to postpone discussion of this issue to forthcoming sessions and instead issued a resolution stating that "the National Assembly will positively consider revision of related laws". In this respect, the Committee would recall that the determination of conditions of eligibility of union membership or union office is a matter that should be left to the discretion of union by-laws and the public authorities should refrain from any intervention which might impair the exercise of this right by trade union organizations. The Committee therefore requests the Government to repeal, as provided for in the Tripartite Agreement, the provisions concerning the denial of dismissed and unemployed workers to keep their union membership and the ineligibility of non-members of trade unions to stand for office (sections 2(4)(d) and 23(1) of the TULRAA).
154. The Committee notes from the mission report that the lack of legal status of the KCTU is not such a problem in practice in terms of its organizational status or activities and that it is carrying out the functions of a national centre of trade union organizations. According to the mission report, the KCTU provides its affiliated unions with annual guidelines for collective bargaining and directly guides them at their workplaces. The KCTU has also been given exemption from civil and penal liabilities for legitimate industrial action. The Committee notes, however, that a concrete problem arising from the non-registration of the KCTU is that it is not invited by the Government to participate in the work of the 40 or so tripartite review or consultative committees on labour matters nor entitled to participate in union assistance programmes. The main obstacle to the KCTU's registration appears to be the affiliation to it of CHUNKYOJO, an illegal organization for the moment. Noting, however, that the Tripartite Agreement provides for the legalization of teachers' unions as of 1 July 1999, the Committee requests the Government to ensure that the KCTU is registered as a trade union organization as soon as possible and at the very latest within this time frame. In the interim, the Committee requests the Government to ensure that the KCTU is invited to participate in the work of the tripartite review and consultative committees on labour matters and in union assistance programmes from which it is currently excluded.
155. As regards the legislative aspects of this case, the Committee requests the Government to provide information on any measures taken to give effect to the Committee's recommendations thereon.
- Allegations of a factual nature
156. As regards the situation of Mr. Kwon Young-kil, former President of the KCTU, the Committee notes from the mission report that, although the withdrawal of the charges of third-party intervention against Mr. Kwon is expected, Mr. Kwon faces trial for the remaining charges brought against him. The Committee notes with concern that Mr. Kwon still faces charges of violating the Law on Public Assembly and Demonstration, the Traffic Law and the Law on the Collection of Contributions. Finally, a criminal charge of intrusion into private premises is pending against Mr. Kwon for the holding of the inaugural congress of the KCTU at Yonsei University on 11 November 1995. The Committee would once again firmly insist that the Government do everything in its power to ensure the dropping of all remaining charges which were brought against Mr. Kwon before the January 1997 strikes as a result of his trade union activities.
157. The Committee notes from the mission report that two trade union leaders -- Mr. Lee, C.E., Chairman of the Committee for the Democratization of the Railway Workers' Trade Union, and Mr. Kim, Im-Shik, President of the Hyundai Heavy Industry Union -- who had been the subject of this complaint have been released. The Committee further notes with satisfaction from a communication of the Government dated 17 March 1998 that two other union leaders -- also the subject of this complaint -- Mr. Hwang, Y.H., President of the Korea Textile Company Trade Union, and Mr. Moon, S.D., President of Class Confederation Seoul Chapter were released from jail on 13 March 1998 on account of an amnesty ordered by President Kim Dae-Jung. In this respect, the Committee recalls 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 judicial proceedings and detentions.
158. In this respect, the Committee is pleased to learn from the mission report that the new President is seriously considering an amnesty for all those persons detained for violations of labour-related laws. According to the mission report, a total of 29 unionists are still under detention and two of these 29 have confirmed prison sentences whereas 27 are still on trial. The Committee further welcomes the assurances given by officials from the Ministry of Justice, as reflected in the mission report, that the Ministry will try to ensure a fair and rapid investigation of another 152 unionists who, while not detained, are the subject of investigations by the Ministry. The Committee considers that, in the new climate of tripartism and cooperation between the social partners prevailing in the country, it is particularly appropriate for the authorities to pursue measures which will allow for the building of a new industrial relations system based on a climate of confidence. This would involve in particular the release of all unionists detained on account of their union activities and the dropping of charges brought because of such activities. The Committee requests the Government to keep it informed of any developments concerning an amnesty for detained trade unionists.
159. The Committee notes with interest the willingness expressed by the members of the President-Elect's transition team to ratify ILO Conventions Nos. 87 and 98 in the near future. In this respect, the Committee reminds the Government that the technical assistance of the ILO is at its disposal, if it so wishes, to assist in resolving the issues raised in this case as well as other issues related to freedom of association.

The Committee's recommendations

160. In the light of its foregoing interim conclusions, noting the progress made on freedom of association issues, and noting with satisfaction the release of the four trade union leaders who had been the subject of this complaint, the Committee invites the Governing Body to approve the following recommendations:
- (a) As regards the legislative aspects of this case, the Committee requests the Government:
- (i) to take the appropriate steps so as to ensure that the right to organize of teachers, as enunciated in the Tripartite Agreement, is recognized as soon as possible and at the very latest within the time frame mentioned in that agreement;
- (ii) to register the Korean Teachers' and Educational Workers' Union (CHUNKYOJO) so that it can legally defend and promote the interests of its members as soon as the right to organize of teachers is legalized;
- (iii) to consider extending the right of association, recognized as of 1 January, 1999, for certain categories of public servants, to all those categories of public servants who should enjoy this right in accordance with freedom of association principles;
- (iv) to take steps to recognize, as soon as possible, the right to establish and join trade union organizations for the above-mentioned public servants;
- (v) to speed up the process of legalizing trade union pluralism at the enterprise level and to this end promote the implementation of a stable collective bargaining system. The Committee suggests that this is a matter that should be discussed in the Tripartite Commission;
- (vi) to repeal section 40 of the Trade Union and Labour Relations Adjustment Act (TULRAA) relating to the requirement to notify to the Ministry of Labour the identity of third parties in collective bargaining and industrial disputes;
- (vii) to repeal 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;
  - (viii) to amend the list of essential public services contained in section 71 of the TULRAA so that the right to strike is prohibited only in essential services in the strict sense of the term;
- (ix) to provide information on the application in practice of section 42(1) of the TULRAA relating to the prohibition of workplace occupations;
- (x) considering that the prohibition of the payment of full-time union officials by employers is a matter which should not be the subject of legislative interference, to repeal section 24(2) of the TULRAA;
- (xi) to repeal, as provided for in the Tripartite Agreement, 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);
- (xii) to take the appropriate steps so that the Korean Confederation of Trade Unions (KCTU) is registered as a trade union organization as soon as possible and in the interim to ensure that it is invited to participate in the work of the tripartite review or consultative committees on labour matters and entitled to participate in union assistance programmes from which it is currently excluded;
  - (xiii) to provide information on measures taken to give effect to the above recommendations and to keep the Committee informed thereon.
- (b) As regards the allegations of a factual nature:
- (i) the Committee firmly insists that the Government do everything in its power to ensure the dropping of all remaining charges pending against Mr. Kwon Young-kil, former President of the KCTU;
- (ii) the Committee is pleased to learn that the new President is seriously considering an amnesty for those trade unionists detained as a result of their trade union activities; it requests the Government to keep it informed of any developments thereof.
- (c) Noting with interest prospects for ratification of Conventions Nos. 87 and 98, the Committee reminds the Government that ILO technical assistance is at its disposal, if it so wishes.

Annex

Report of the high-level tripartite mission to the Republic of Korea (9-13
February 1998)
Case No. 1865
I. Introduction
At its March 1997 meeting, the ILO Governing Body's Committee on Freedom of
Association requested the Government of the Republic of Korea to examine the
possibility of a high-level tripartite mission being undertaken to the country
in order to ensure that ongoing revisions to labour law were consistent with
the principles of freedom of association. The Committee's request was made in
the context of a complaint (Case No. 1865) presented to the Committee by the
Korean Confederation of Trade Unions (KCTU), the Korea Automobile Workers'
Federation (KAWF) and the International Confederation of Free Trade Unions
(ICFTU). The substance of this case, involving various allegations of
infringements of trade union rights in law and in practice, was examined by
the Committee at its June 1996, March and June 1997 meetings (see 304th, 306th
and 307th Reports of the Committee, approved by the Governing Body at its
266th, 268th and 269th Sessions respectively).
In December 1997, the Government agreed to receive a high-level tripartite
mission to examine the issues raised in Case No. 1865, as well as related
issues. This mission was composed of the following persons: Dr. L. Mishra
(Government representative, India), Mr. B. Noakes (Employer representative,
Australia) and Mr. U. Edström (Worker representative, Sweden). The mission
which visited the Republic of Korea from 9 to 13 February 1998 was accompanied
by Mr. Kari Tapiola, Deputy Director-General of the ILO; Mr. Bernard Gernigon,
Chief of the Freedom of Association Branch; Ms. Catherine Comtet, Director of
the ILO Office in Bangkok and Ms. Deepa Rishikesh, Legal Officer in the
Freedom of Association Branch.
II. Conduct of the mission
During its visit to the Republic of Korea, the mission held meetings with the
President-Elect, the Minister of Labour, the Minister of Education, the
Vice-Minister of Government Administration, the Vice-Minister of Justice, as
well as with senior officials from these ministries. Moreover, meetings were
held with the head of the Economic Division of the President-Elect's
Transition Committee, as well as with several members from the major
opposition party in the National Assembly (Parliament). The mission also met
with representatives of the Korea Employers' Federation, and with
representatives of the two workers' central organizations, the Federation of
Korean Trade Unions (FKTU), the Korean Confederation of Trade Unions (KCTU)
and the Korean Teachers and Educational Workers' Union (CHUNKYOJO).
Furthermore, the mission visited an enterprise, LG Electronics, where it met
with management and union representatives. The mission met with members of the
tripartite Korea International Labour Foundation (KOILAF) (a list of persons
the mission met with is appended to this report). Finally, the mission also
paid an official visit to Panmunjon (demilitarized zone between North and
South Korea).
III. The special context in which the mission took place
Political and economic developments
The mission visited the Republic of Korea (South Korea) at a time when the
country was in the process of undergoing major political and economic change.
Kim Dae-Jung was elected President on 19 December 1997 in the closest
political victory in the country's history. Mr. Kim's election demonstrated
for the first time since the nation was founded that an opposition candidate
had won the presidency, and came at a time when South Korea was grappling with
the consequences of a severe economic and financial crisis. It is a widely
held view that the victory of Mr. Kim's National Congress for New Politics
reflected voter dissatisfaction with the previous leadership, which was held
responsible for the nation's economic problems which included a debt crisis, a
weak banking system and problems in industrial conglomerates (chaebol).
In order to understand the complexity of the current situation, a brief
explanation of its economic and political framework is necessary. It is a
widely held view that one of the main underlying causes of the crisis lies
with several practices followed by the chaebol which account for approximately
40 to 45 per cent of the GDP. More specifically, political control of many
banks had meant that the chaebol had long enjoyed soft-budget constraints.
This, combined with the heavy concentration of management and ownership in the
hands of a few families, had slowed the adaptability of the firms to a
changing environment. Moreover, since the system was not considered to be very
transparent, it was difficult for external investors to assess the real
financial situation of these groups. Finally, many chaebol were present in a
wide variety of markets without due regard to profits, cash flow or potential
failure.
The main proximate reason for the present financial problems was the inability
on the part of the chaebol to repay foreign debt, thereby leading to a
balance-of-payments crisis. According to official figures, between 1993 (when
Kim Young-Sam became President) and 1997, total foreign debt doubled to the
equivalent of over US$140 billion. Importantly, a large part of this foreign
debt was a short-term debt, officially estimated at the end of 1997 at US$76
billion. Most of this debt was between private sector borrowers (the chaebol)
and private sector lenders (foreign private banks, in particular, Japanese
banks). The size of the debt, combined with its short-term nature and the fact
that creditors mainly consisted of private banks, meant that the economy of
the Republic of Korea was very vulnerable to a sudden shift in investors'
confidence. In retrospect, the first signs of the crisis arose in the first
few months of 1997 when a major steel company became bankrupt under US$6
billion in debt. This, however, did not affect confidence until late 1997, as
illustrated by the high rates attached to Korean debts by international credit
rating agencies. Two major conglomerates ran out of cash last summer, which
combined with the financial crisis in the region led to an outflow of capital
in October, and foreign exchange reserves quickly dropped. The IMF was asked
to provide a stand-by loan in November and a final deal of US$55 billion was
eventually signed.
Several conditions have been attached to the US$55 billion IMF loan, including
a tightening in macroeconomic policies, the liberalization of foreign
investment inflows, modification in the present system of corporate
governance, a revamp of the country's lending guidelines to the chaebol,
improved transparency in the running of the chaebol, as well as the adoption
of labour market "flexibility" measures which would facilitate lay-offs and
lead to higher unemployment.
It was brought to the attention of the mission during the course of its visit
that it may well prove difficult for the President-Elect to adopt some of the
above measures in the coming months, since his plans could be blocked or held
up by Parliament (the National Assembly). In effect, the President-Elect's
party, the National Congress for New Politics, holds just 78 seats in the
National Assembly, as opposed to 157 for the former ruling Grand National
Party (GNP). Even with the 45 seats of its allies the United Liberal Democrats
(ULD), led by Mr. Kim Jong-pil, the NCNP remains well short of a majority.
This factor highlighted the problems faced by the President-Elect's transition
team, which was making various decisions over national affairs till his
inauguration as President on 25 February 1998.
Social climate
One of the key decisions taken by the President-Elect and his transition team
during the pre-inaugural period was to establish a Tripartite Commission on 15
January 1998, which would achieve permanent status after the President-Elect
took office. This Commission was composed of representatives of Government,
business and the two main labour organizations, the registered Federation of
Korean Trade Unions (FKTU) with approximately 1.2 million members and the
still unregistered Korean Confederation of Trade Unions (KCTU) with an
approximate membership of 600,000. It was also composed of Members of
Parliament belonging to other political parties. (A detailed list of members
of the Tripartite Commission is appended to this report.) On 6 February 1998,
just before the mission's arrival in South Korea, the Tripartite Commission
agreed to a series of reforms to be implemented in the economic and
labour-related fields. These reforms targeted economic issues such as
promoting labour market flexibility through the relaxation of existing rigid
employment security laws, accompanied by the introduction of unemployment
relief programmes as well as the increase in the amount allocated thereto.
However, they also dealt with important freedom of association issues,
including the right to organize of teachers and public servants, the
legalization of political activities for trade unions and of the right to
organize and to hold union office for dismissed or unemployed workers at the
industry and regional levels. These reforms, if they are to be implemented,
would necessitate amendments to legislation currently in force and in
particular to the Trade Union and Labour Relations Adjustment Act (TULRAA).
Although the tripartite agreement was to be formally signed by all parties
during the time of the mission's visit to the Republic of Korea, this was not
to be due to an unexpected turn of events. On the night of 9 February 1998,
the leadership of the KCTU, including its acting President, which had accepted
the tripartite agreement the week before stepped down in the face of
opposition from 70 per cent of KCTU members who voted in an extraordinary
congress against the adoption of the tripartite agreement. Instead, the KCTU,
which set up an emergency task force to temporarily head it, called for
renegotiation of certain provisions of the tripartite agreement, as well as
for a public rally and an indefinite general strike to commence on the
afternoon of Friday, 13 February 1998. The KCTU's main objections to the
tripartite agreement were in relation to its provisions which eased the
conditions for laying off workers without stipulating any plans for job
creation. Furthermore, according to the KCTU, the fact that the tripartite
agreement provided for insufficient unemployment funds was dramatized by
reports that an average of 5,000 workers were already being dismissed on a
daily basis.
However, the other social partners, including the FKTU, rejected calls for
renegotiation of the tripartite agreement, maintaining that it was necessary
in view of the acute economic crisis prevailing in the country. Finally, the
emergency task force of the KCTU itself decided to call off the general strike
on the night of 12 February 1998, but continued to call for renegotiation of
certain aspects of the agreement. This decision was attributed mainly to the
fact that there was a lot of internal dissension within the KCTU with regard
to the justification of potentially disruptive strike action at that moment,
especially in the face of public opinion that such action would only
contribute to the deterioration of an already very shaky economy. Moreover,
the KCTU seemed to be taking into account the realities of transition towards
a Government which was much more committed to human and workers' rights than
earlier ones. Nevertheless, the situation was indicative to the mission of how
fragile the social peace still was. On Sunday, 15 February 1998, following the
mission's departure from South Korea, the National Assembly passed the Bill
allowing mass dismissals of workers in cases of corporate restructuring such
as mergers and acquisition, as well as Bills covering bankruptcies and
corporate liquidations, and authorized hostile takeovers of local firms by
foreigners.
IV. Information obtained during the mission
During the course of its visit to South Korea, the mission sought to obtain as
much information as possible from the various interlocutors on the following
issues which were raised during the previous examination of the complaint
pending before the Committee on Freedom of Association (Case No. 1865).
Matters of a legislative nature
Right to organize of teachers
The mission was informed by officials from the Ministry of Education that the
employment conditions of teachers were currently governed by the National
Public Officials Act, the Local Government Employees Act, the Public Education
Servants Act and the Private School Act the various provisions of which
prohibited private and public school teachers from forming and joining
organizations of their own choosing to defend their occupational interests and
to take collective action to that end. However, a Special Act on Promoting
Teachers' Status had been enacted in 1991 which allowed teachers to establish
educational associations and to discuss working conditions twice annually with
superintendents at the local level, or with the Minister of Education at the
national level. Hence, educational associations included the Korean Federation
of Teachers' Associations (KFTA) but not the Korean Teachers' and Educational
Workers' Union (CHUNKYOJO) whose registration had been requested by the
Committee on Freedom of Association on several occasions in the past few
years.
According to the Minister of Education, it was therefore very positive that
the tripartite agreement provided for the legalization of teachers' unions
from July 1999. This would be done by amending the relevant Acts at the
regular (autumn) session of the National Assembly in 1998. The mission was
informed by the President-Elect that some difficulties might be encountered
during the process of legalizing teachers' unions. This idea was facing stiff
opposition from the majority Grand National Party (GNP) in the National
Assembly due to the radical image of CHUNKYOJO. The President-Elect's point of
view was confirmed by some Members of Parliament of the opposition GNP who
indicated to the mission during a separate meeting that many members of their
party, in keeping with public opinion, did not agree with the idea that
teachers should have the right to organize. Moreover, they felt that the
adoption of legislation was the prerogative of the National Assembly. As a
result, representatives of the GNP had left the Tripartite Commission towards
the end of the negotiations although they indicated to the mission that they
were willing to continue negotiations. According to senior officials from the
Ministry of Education as well as the Minister himself, the problem of giving
the right to organize to teachers was further compounded by the special
importance attached to education by parents and the general public. The South
Korean people had a traditional concept of teachers who they held in very high
esteem. They did not understand why teachers needed to form a union since they
were not manual labourers but rather persons engaged in an intellectual
activity. Moreover, the South Korean people felt that CHUNKYOJO was
ideologically imbalanced and therefore should be denied the right to organize.
This view appeared to be somewhat contradicted by representatives of CHUNKYOJO
and of KCTU who indicated to the mission that recent public opinion polls had
shown that 70 per cent of the public and 90 per cent of teachers throughout
the country supported the legalization of teachers' unions. Moreover,
CHUNKYOJO and KCTU representatives were adamant that CHUNKYOJO's legalization
take place immediately and not in July 1999 only since the right to organize
of teachers was a fundamental and unconditional labour right which could not
be considered as a trade-off or linked to the issue of the law authorizing the
mass dismissals of workers. They were further reinforced in their view by the
fact that in the Republic of Korea teachers had been working in unsatisfactory
conditions for a long time with no means of redressing their grievances. In
addition, the previous Government had committed to granting freedom of
association to teachers upon joining the ILO and the OECD. They were
nevertheless aware that this aspect of the Tripartite Agreement would face a
degree of opposition in the National Assembly. CHUNKYOJO had therefore
declared that it would withhold its right to collective action for a certain
period of time as part of the agreement to legalize teachers' unions.
Right to organize of public servants
The mission was informed by the Ministry of Government Administration that,
under legislation currently in force, public servants did not have the right
to organize with the exception of public servants who were engaged in manual
work at the Ministry of Information and Communication, the National Railroad
Administration and the National Medical Centre. Hence, these three categories
of public servants had established trade unions at their respective workplaces
and had a total membership of 54,017.
However, the Government had decided to give a larger category of public
servants the right to form and join associations within the framework of the
Tripartite Commission which was going to propose a Bill to this effect to the
National Assembly at its September 1998 session. If the National Assembly was
to adopt this proposal, then public servants would have the right to form
associations from 1 January 1999. The mission was informed subsequently that
the National Assembly adopted this proposal at a special session on 15
February 1998. More concretely, this right of association meant that public
servants would be given the right to establish workplace councils through
which they could consult with organization heads on matters relating to the
improvement of the working environment, the enhancement of performance
efficiency, the settlement of grievances and the implementation of council
resolutions. However, only certain categories of public servants would be
allowed to join these workplace councils of which a maximum number of 14,000
would be established. Thus, public servants from grades 1 to 5 with managerial
functions would be excluded from these workplace councils and only those
public servants from grades 6 to 9 (supporting staff) would be allowed to join
them. Moreover, public servants who belonged to special services, i.e.
firefighters and the police, would not be entitled to join these workplace
councils. Finally, public servants who were involved in personnel and
confidential work, in budgeting and accounting, in receiving and distributing
goods, in supervising general service staff, in secretarial work, in guarding
security facilities and in driving passenger cars or ambulances, would be
excluded from workplace councils.
The mission was further informed that the Government would gradually grant
public servants the right to form and join unions when the country's economic
situation improved and a national consensus had been reached on the matter.
The reason why the Government could not allow trade unions for public servants
immediately was that, given the fact that Korea remained a divided nation
under a tenuous armistice, public servants had to shoulder the responsibility
for national security and stability. Moreover, given the prevailing dire
economic conditions as well as the fact that the public held the Government
responsible for the crisis, the Government was in no position to accommodate
even the most reasonable union demands.
Finally, the mission was informed by the Korean Employers' Federation (KEF),
the FKTU and the KCTU that they believed that the right to organize of public
servants should be respected.
Trade union pluralism at the enterprise level The Minister of Labour indicated
to the mission that the issue of legalizing trade union pluralism at the
enterprise level had not been raised within the Tripartite Commission due to
various other more pressing problems. Moreover, the unions had not requested
that this matter be discussed during the recent negotiations in the
Commission. He stated that the decision to delay the legalization of multiple
trade unions at the enterprise level until the year 2002 had been taken by the
Government to simplify the collective bargaining process at the enterprise
level and not to restrict it. This delay would give unions the time to adjust
to the new system of collective bargaining and thereby prevent any confusion
over collective bargaining which could arise, at least initially, from the
presence of two or more unions at the company level.
Representatives of the KEF informed the mission that the delay in legalizing
trade union pluralism at the enterprise level was based on the reality that
both management and labour needed time to adapt themselves to the new
environment in order to head off confusion and disorder, not only between
labour and management but also between the trade unions themselves. During
this preparatory period, arrangements should be made for a new collective
bargaining structure so that management could negotiate with the most
representative workers' organization. In the KEF's view, these arrangements
would be necessary in view of the current situation of turbulent industrial
relations. Trade unions at the industry and national levels were exerting
themselves to expand their respective spheres of influence at the enterprise
level. In 1997, more than 300 enterprise-based trade unions delegated their
bargaining rights to upper-level unions at industry and national levels in
order to strengthen their bargaining power. Competition at the upper level to
get more support from enterprise-based unions by committing to secure better
working conditions was undermining industrial peace through exacerbating
tensions and delaying collective bargaining processes.
According to the President of the FKTU, his organization wanted the
introduction of trade union pluralism at the enterprise level without any
delay. However, this issue had been a big source of conflict at the
Presidential Commission on Industrial Relations Reform, which had been
established on 9 May 1996 and which had been composed of representatives from
trade unions, management and public interest groups. Management in particular
had strongly objected to multiple unions at the enterprise level. He
nevertheless believed that this matter would be solved smoothly as time went
on. Representatives of the KCTU considered that there should not have been
such a delay in rendering trade union pluralism legal at the enterprise level.
However, they pointed out to the mission that the issue of such multiple
unions had arisen in the past due to doubts about true internal democracy
within the union movement which often had had close contacts with management
or the Government. The question did not arise once true internal democracy
existed within the union movement. In addition, there was a practical problem
in that unions often did not have sufficient resources to set up a union in a
company where another one already existed.
Ban on third-party intervention in industrial disputes
The mission was informed by representatives of the Ministry of Labour that the
ban on third-party intervention in collective bargaining and industrial
disputes had been lifted and that the purpose of the notification of the
identity of third parties to the Minister of Labour under section 40 of the
TULRAA was merely to inform the Government of those persons or organizations
from whom the unions and employers wished to obtain assistance.
Representatives of the KEF indicated to the mission that initially management
had opposed the lifting of the ban on third-party intervention in industrial
disputes for fear that some ideologically oriented labour activists would
become deeply involved in labour disputes and prolong industrial strife.
However, the KEF had compromised and agreed to the lifting of this ban at the
Presidential Commission on Industrial Relations Reform in 1997. Now, unions
could receive assistance from upper-level unions without any procedural
conditions and from any third party if the latter had been notified to the
Ministry of Labour by the union. Hence, any person could intervene in
collective bargaining and industrial disputes if a request to that effect was
made by a union. Many unions were excessively exploiting this law by notifying
too many persons from whom to get support for collective bargaining or
industrial action. Some 680,000 persons were notified to provide support to
unions in 170 companies in 1997, an average of 4,000 persons per company.
The President of the FKTU informed the mission that he was not concerned about
the requirement to notify the identity of third parties to the Minister of
Labour: this matter was a question of trust between the parties concerned.
While confirming that there was now only a requirement of notification to the
Minister of Labour under section 40 of the TULRAA, and that the ban on
third-party intervention had been lifted, representatives of the KCTU pointed
out that the notification requirement was subject to abuse as it opened the
avenue for arbitrary regulation by the government authorities. The continued
adherence to the notification requirement was based on a deep-seated suspicion
about industrial relations and the inherent disrespect for the autonomy of
internal union dynamics, democracy and leadership. The KCTU had notified the
names of many "advisers" to the Ministry of Labour because failure to notify
meant that non-notified persons were prohibited from making any comments or
even giving a speech about an industrial dispute under the terms of paragraph
II, section 40 of the TULRAA. Persons who were in violation of this
prohibition were liable to a maximum penalty of three years' imprisonment
and/or 30 million won in fines (section 89(1) of the TULRAA). According to the
KCTU, therefore, this new measure (adopted in March 1997) was tantamount to
maintaining the ban on third-party intervention.
Recourse to compulsory arbitration resulting in the prohibition of the right
to strike
The Minister of Labour indicated to the mission that the list of essential
public services contained in section 71(2) of the TULRAA was in effect too
broad since a dispute in any of these services could be referred to compulsory
arbitration, resulting in the prohibition of the right to strike. He affirmed
that the matter was on the agenda of the Tripartite Commission and would be
discussed during the second round of negotiations therein, which normally
would be completed within the first half of 1998. In a separate meeting with
officials from the Ministry of Justice, the mission was informed that an
impending strike by the Seoul Subway Workers' Union was considered as illegal
because the union had not respected the legal procedures and because the
strike was not being carried out to seek an improvement in the workers'
employment conditions but for broader socio-political reasons. These officials
nevertheless confirmed to the mission subsequently that the strike, which was
avoided through a compromise solution, would have been considered as illegal
in any event since the subway was an essential public service where the right
to strike was prohibited.
Representatives of the KEF pointed out to the mission that the TULRAA was an
improvement over previous labour law in that the list of essential public
services in the TULRAA where the right to strike could be prohibited had been
considerably narrowed down.
The President of the FKTU was of the view that the list of essential public
services contained in the TULRAA was too broad and should be limited to
strictly essential services. KCTU representatives were of the same view,
especially since according to them it was common union practice in the
Republic of Korea to exercise discretion during the course of a strike to
exclude the vital sections of a workplace from the effects of such a strike.
Prohibition of certain types of industrial action (sections 38(1) and 42(1) of
the TULRAA)
Section 38(1) of the TULRAA regulates the picketing of workplaces by
unionists, whereas section 42(1) relates to industrial action in the form of
workplace occupations.
The mission was informed by Ministry of Justice officials that picketing
accompanied by coercion of non-striking workers constituted interference with
business and was therefore a criminal offence. If those taking part in
picketing did not use violence, then this action was considered to be legal.
Representatives of the KEF informed the mission that the TULRAA prohibited
striking workers from occupying production lines. Moreover, strikers could not
prevent other workers from entering the workplace under this new law. They
contended that these measures were aimed at protecting production facilities
and securing the right of non-strikers to work.
Although the President of the FKTU felt that there were not many restrictions
with regard to the above forms of industrial action, representatives of the
KCTU disagreed. With regard to picketing, striking workers were not allowed to
use "physical violence" or "threats" to persuade non-striking workers to
participate in the industrial action under the terms of the new law. However,
until now, the definition of these terms was very vague. Many situations of
"violence", in their view, did not really constitute violence: for example,
unionists wearing red ribbons, or casual clothes instead of uniforms, or
scuffling with management objecting to their holding a meeting could be and
frequently were charged with obstruction of business and arrested. KCTU
representatives therefore believed that section 38(1) of the TULRAA opened
itself to abuse and arbitrary application which could only worsen industrial
relations at the workplace. With regard to section 42(1) of the TULRAA, KCTU
representatives believed that the ban on the "occupation of production
facilities or installations related to important businesses or the equivalent
thereof as determined by Presidential Decree" would make strike action within
company premises impossible. This clause would make all company premises, with
the possible exceptions of company sports grounds, dining halls and union
offices, out of bounds for industrial action. Even activities such as a
sit-down strike, work-to-rule or go-slow, which normally took place within
production facilities, could be construed as an "occupation" prohibited by
this clause. In any event, KCTU representatives pointed out that the
application in practice of the two above provisions would, in all likelihood,
lead to a drastic increase in the imprisonment of unionists for their union
activities and exercise of their right to strike since violation of these
provisions carried a maximum penalty of three years' imprisonment and/or 30
million won in fines (section 89(1) of the TULRAA).
Wage payment during strikes
Representatives of the KEF informed the mission that, under the terms of
section 44 of the TULRAA, wages for the period of a strike action could be
paid to the workers concerned if employers and unions were in agreement over
this issue. They nevertheless expressed their dissatisfaction with this
provision which they contended should be amended to prohibit payments during
the period of industrial action. According to them, the principle of "no work,
no pay" meant that any union's calls for payment of wages during strikes, as
well as an employer's payment thereof, should be prohibited by legislation;
moreover, any such payment by an employer should be punished as an unfair
labour practice.
The President of the FKTU did not foresee any problem with this new provision,
which endorsed the concept that the issue of the payment of wages during
industrial action was a matter to be discussed between the parties concerned.
He pointed out that in practice employers often provided some form of
financial assistance to the striking workers even if they did not always pay
wages. KCTU representatives were of the view that section 44(2) of the TULRAA,
which prohibited unions from taking industrial action in order to demand
payment of wages for a period of industrial action, was unacceptable. This was
a matter to be decided by the parties concerned through collective bargaining
and not something to be decided by law. The matter was made worse by the fact
that a violation of the prohibition contained in this new provision was
punishable by a maximum sentence of two years' imprisonment and/or a maximum
fine of 20 million won (section 90 of the TULRAA).
Payment of wages to full-time union officials
With regard to section 24 of the TULRAA, which prohibits employers from
remunerating full-time union officials as of 1 January 2002, the mission was
informed by officials from the Ministry of Labour that this controversial
issue would be the subject of a second round of negotiations within the
Tripartite Commission due to be completed within the first six months of 1998.
Representatives of the KEF informed the mission that currently the wages of
full-time union officers were paid by the company, and sometimes unions even
demanded overtime allowances for union activities. Moreover, the number of
full-time officials was not negligible, averaging one per 300 union members. A
concrete example was that of Hyundai Automobile Company, which employed 30,000
workers and which had 70 full-time and 100 part-time union officials. Although
employers had previously considered these payments to be inappropriate, they
had been compelled to negotiate with trade unions over the number of such
full-time union officials during collective bargaining. However, employers
were now opposed to such payments, especially with the introduction of the
multiple union system at the enterprise level in the year 2002 which would
increase employers' financial burdens with the anticipated growth (threefold)
in the number of union officials. KEF representatives did not believe this
matter could be resolved through collective bargaining, due to the imbalance
of bargaining power between management and unions in the Republic of Korea,
where the latter would insist that such payments continue.
The President of the FKTU was of the view that section 24 of the TULRAA should
be repealed since the matter of the payment of wages to full-time union
officials should be dealt with by management and labour and should not be
determined by legislation. KCTU representatives pointed out that this
provision would have a devastating impact on the current situation, where
unions in companies with less than 100 employees made up 63 per cent of all
the unions in the Republic of Korea, and where the monthly financial resources
of most of these unions were less than 1 million won. The trade union movement
was unable to accumulate a substantial financial base as all "unit" unions in
the Republic of Korea were enterprise-level unions. Each enterprise union was
an integral union with its own president and full-time union officials and had
to finance all its activities from its circumscribed membership dues.
Trade union membership and office of dismissed and unemployed workers
With regard to section 2(4)(d) of the TULRAA relating to the non-recognition
of a trade union organization if it accepted a person who was not employed as
a member as well as section 23(1) of the TULRAA stipulating that union
officials shall be elected from union members, officials from the Ministry of
Labour informed the mission that the Tripartite Commission had agreed on
considerable changes in this matter which would constitute progress towards
respect of freedom of association principles. According to the proposal
contained in the Tripartite Agreement, unemployed (and dismissed) workers
would be eligible to become or remain trade union members (and therefore stand
for trade union office) of an industry-wide or region-wide unit trade union
organization, but not of an enterprise-level trade union. This proposal by the
Tripartite Commission was expected to be adopted by the National Assembly at
its special session in February 1998. However, the mission was informed
subsequently that lawmakers had decided to discuss this matter in the coming
sessions of the National Assembly citing insufficient discussion between the
ruling and opposition parties during the special session of the National
Assembly. Instead, they issued a supplementary resolution stating "the
National Assembly will positively consider revision of related laws".
KCTU representatives indicated to the mission that the Tripartite Agreement
opened the possibility of union membership for unemployed and dismissed
workers. In such a case, an unemployed or dismissed worker was entitled to
membership of an industrial or (geographically bound) local union although not
to membership of an enterprise-level union. This represented an improvement
over current laws whereby unemployed persons and retired workers, together
with dismissed workers, could not become members of a trade union organization
at whatever level. Indeed, one of the reasons the authorities had refused to
accept the KCTU's application for registration was that some of its elected
officials were persons who had been dismissed from their respective companies,
thus disqualifying them from worker status according to the TULRAA.
Registration of the KCTU
The Minister of Labour informed the mission that the lack of legal status of
the KCTU was not such a problem in practice in terms of its organizational
status or activities. The KCTU was represented on the Tripartite Commission as
well as the Central Labour Relations Commission. The only remaining obstacle
to the KCTU's registration was the affiliation to it of CHUNKYOJO, an illegal
organization for the moment. If the KCTU decided to expel CHUNKYOJO from its
membership during the course of an extraordinary congress it was holding that
very day, then it would be granted registration immediately. If the congress
decided otherwise, then the KCTU could only be granted registration after 1
July 1999 (i.e. when CHUNKYOJO became a legal organization).
Representatives of the KEF pointed out to the mission that, in spite of its
non-registration, the KCTU was carrying out the role and functions of a
national centre of trade union organizations. The KCTU had provided its
affiliated unions with annual guidelines for collective bargaining and
directly guided them at their workplaces. It had also been given exemption
from civil and penal liabilities for legitimate industrial action.
KCTU representatives indicated to the mission that the issue of legal
recognition for the KCTU now centred around the affiliation of CHUNKYOJO and
the eligibility for trade union office of some of its elected officials. While
the second issue could eventually be resolved (especially since the Tripartite
Agreement opened the possibility of union membership for unemployed workers),
the first issue was non-negotiable. The KCTU firmly believed that teachers had
the right to establish an organization to defend their interests and that this
organization had the right to decide freely to affiliate with the KCTU. KCTU
representatives further contended that the KCTU's lack of legal status had
wide implications. For example, in terms of the KCTU's participation in
policy-making advisory bodies, the Government did not invite the KCTU to
participate in the work of such bodies. In practice, there were nearly 40
tripartite review or consultative committees on labour matters which the KCTU
did not attend. Another problem caused by the lack of legal status was that
the KCTU was deprived of a part of the Ministry of Labour's budget destined to
help unions in the form of welfare programmes, retraining and education
programmes, and so on. This financial assistance could only be distributed to
lower-level affiliates through the central organization. Since the KCTU was
illegal, however, both it and its affiliates were deprived of this form of
assistance.
Matters of a factual nature
Pending charges against Mr. Kwon Young-kil, former President of the KCTU
The mission was informed by senior officials of the Ministry of Justice that
Mr. Kwon Young-kil, former President of the KCTU, was arrested and detained on
18 December 1995 and subsequently released on 13 March 1996. Mr. Kwon had been
charged with violating the provisions of the Labour Dispute Adjustment Act
prohibiting third-party intervention, as well as with violating the Law on
Public Assembly and Demonstration, the Traffic Law and the Law on the
Collection of Contributions. While the withdrawal of the charges of
third-party intervention against Mr. Kwon was expected, Ministry of Justice
officials confirmed that Mr. Kwon still faced trial for the remaining charges
brought against him.
KCTU representatives confirmed to the mission what Ministry of Justice
officials had stated. They believed, however, that an additional criminal
charge of intrusion into private premises was pending against Mr. Kwon for the
holding of the inaugural congress of the KCTU at the auditorium of Yon Sei
University on 11 November 1995.
Developments concerning the situation of arrested or detained trade unionists
The head of the Economy II Division of the President-Elect's Transition Team
informed the mission that the issue of arrested and detained trade unionists
was not the subject of negotiations within the Tripartite Commission.
Nevertheless, the President-Elect had decided to deal with the situation with
more leniency than the previous Government. It was, therefore, very likely
that those trade unionists who were detained and charged with violating
labour-related laws would be released in the near future although it was a
different matter for those unionists who had been charged with violating the
criminal law.
Officials from the Ministry of Justice informed the mission that currently 29
unionists had been arrested and were under detention. Two out of these 29
unionists had confirmed sentences of imprisonment whereas 27 were still on
trial. A further 152 unionists were the subject of investigations by the
Ministry but had not been detained. The mission was further informed that the
President-Elect was seriously considering an amnesty for those unionists who
had their sentences confirmed by the courts. As for those unionists who were
detained but still on trial, the Ministry indicated that the matter of the
release of these persons lay within the jurisdiction of an independent
judicial authority. Furthermore, with regard to those unionists who were not
detained but the subject of investigation, the Ministry assured the mission
that it would try to ensure a fair and rapid investigation of these persons
resulting in the most lenient decision possible. Finally, with regard to the
situation of the four detained unionists mentioned in the case of the
Committee on Freedom of Association, the Ministry indicated that Mr. Lee,
C.E., Chairman of the Committee for the Democratization of the Railway
Workers' Trade Union, as well as Mr. Kim, Im-shik, President of the Hyundai
Heavy Industry Union, had been released. Only Mr. Hwan, Y.H., President of the
Korea Textile Company Trade Union, and Mr. Moon, S.D., President of Class
Confederation, Seoul Chapter, remained under detention. Finally, the Minister
of Labour informed the mission that a former detained leader of the Hospital
Workers' Union, Ms. Cha Soo Hwang (who had not been mentioned in the case of
the Committee on Freedom of Association), had recently been released.
The mission was informed by KCTU representatives that there had been some
progress over the years in the way in which the Government dealt with
industrial disputes in that the number of trade unionists who were arrested
and detained now had decreased from previous years (an overview of unionists
detained from 1988 to 1997 and provided by the KCTU is appended to this
report). They contended nonetheless that it was still quite commonplace to
arrest unionists on charges such as obstruction of business which was vague
and open to abuse and arbitrary applications and which could only worsen
industrial relations at the workplace. Finally, KCTU representatives informed
the mission that currently there was a total number of 20 KCTU unionists in
prison and two who were wanted by the police.
V. Concluding remarks
At the very outset, the members of the tripartite mission would like to thank
the President-Elect and members of his transition team, the authorities in the
Republic of Korea and especially the Minister of Labour and the Minister of
Education as well as officials from the ministries the mission met with, the
KEF, the FKTU, the KCTU and all other parties with whom the mission met for
the high level of cooperation on their part. The members of the tripartite
mission would also like to express their appreciation for the assistance
provided by all those parties in better enabling members of the mission to
fully understand the complex industrial relations situation prevailing in the
Republic of Korea during the course of discussions which were held in an
extremely positive climate. This positive climate was enhanced by the
Tripartite Agreement which had been reached just before the mission's arrival
in the Republic of Korea within the auspices of the Tripartite Commission, a
recently launched initiative of the President-Elect.
In effect, one of the most positive aspects of the Tripartite Agreement is
that it provides for the right to organize of teachers, a long-standing issue
pending before the Committee on Freedom of Association. It remains to be seen,
however, whether this proposal will be adopted by the National Assembly, a
majority of whose members from the Grand National Party would, at least for
the time being, appear to be opposed to granting the right to unionize to
teachers. It is to be hoped that ongoing negotiations between the parties
concerned will lead to a positive outcome on this issue in September 1998
especially in view of the fact that the organization most directly concerned
has committed itself not to take collective action for a certain period of
time as part of the agreement to legalize it. The legality of this
organization would also appear to be the main obstacle to the registration of
a major central organization in the country. During the transition period to
the KCTU's registration, the Government should consider inviting KCTU
representatives to participate in the work of the 40 or so tripartite advisory
committees on labour matters from which it is currently excluded.
The Tripartite Agreement also introduces the possibility for public servants
to establish associations from 1 January 1999 onwards and the Government has
expressed its intention to grant them the right to establish unions at a later
stage. It is to be welcomed that this proposal has already been adopted by the
National Assembly on 15 February 1998. The mission notes the views expressed
by the public authorities as regards national security and stability and the
situation demonstrated by its visit to Panmunjon. However, the members of the
mission consider that the right to associate (and eventually to organize) for
public servants could be considerably strengthened by allowing various
categories of public servants who are currently excluded from workplace
councils, access thereto especially since many of them do not appear to
shoulder the responsibility for national security and stability (a major
reason why public servants have been excluded from the right to organize till
now).
The members of the mission were pleased to learn that the President-Elect was
seriously considering an amnesty for those detained for violations of
labour-related laws. The fact that the Ministry of Justice plans to deal
fairly, rapidly and leniently with 152 unionists who are the subject of
investigations by the Ministry is also welcome news. In the new context of
tripartism and cooperation between the social partners, it is particularly
appropriate for the authorities to pursue measures which will allow for the
building of a new industrial relations system based on a climate of
confidence. This would involve in particular the release of all unionists
detained for their union activities.
The mission was also pleased to obtain confirmation from all parties concerned
that the payment of wages to workers for the period when they have gone on
strike is neither required nor prohibited by current legislation. Moreover,
the fact that most of the parties the mission met agreed that the list of
essential public services currently contained in legislation was too broad and
that the scope of essential public services would be discussed at the next
official agenda of the Tripartite Commission was another positive development
since members of the mission consider that the possibility of recourse to
compulsory arbitration resulting in the prohibition of the right to strike
should be limited to essential services in the strict sense of the term.
The issue of legalizing multiple unions at the enterprise level without any
further delay had not been raised as a topic of discussion within the
Tripartite Commission. Some parties the mission met with, especially the trade
unions, while concerned that multiple unions at the enterprise level would
only be allowed four years hence, nevertheless seemed to consider that this
was not the most pressing problem at hand. However, it is to be hoped that the
possibility of multiple unions at the enterprise level, a matter that should
be left at the discretion of the unions themselves, will be put into place as
soon as possible.
The same goes for the repeal of provisions in the TULRAA concerning the denial
of dismissed and unemployed workers to keep their union membership and the
ineligibility of non-members of trade unions to stand for office. Members of
the mission were apprised during the course of their visit of a proposal in
the Tripartite Agreement to allow unemployed (and dismissed) workers to keep
union membership at the industry-wide or regional level; this proposal was to
be adopted by the National Assembly at its special session in February 1998,
but members of the mission were informed subsequently that lawmakers had
decided to postpone discussion of this issue to forthcoming sessions and had
instead issued a resolution stating that "the National Assembly will
positively consider revision of related laws". It is to be hoped that revision
of the above-mentioned provisions of the TULRAA will take place in the near
future since this issue could give rise to problems from the perspective of
freedom of association.
Another controversial issue was that of the payment of wages to full-time
union officials. Under the terms of the TULRAA, employers are prohibited from
remunerating full-time union officials as of 1 January 2002. The KCTU is of
the view, however, that the effect of this provision would be devastating for
the union movement in the Republic of Korea which is mostly characterized by
small enterprise-level unions. The FKTU considers that this should be a matter
for negotiation between employers and workers. The members of the mission are
aware that this matter will be the subject of a second round of negotiations
within the Tripartite Commission. The members of the mission note that while
at least some management representatives appear to be unconcerned about the
current practice, others have strong contrary views and these are reinforced
by apprehension concerning the effects of the legalization of multiple trade
unions at the enterprise level. It is hoped that a way will be found, in the
new climate of tripartism and cooperation, to resolve the various concerns on
this issue.
While the previous ban on third-party intervention in collective bargaining
and industrial disputes has been lifted, members of the mission were apprised
of the requirement to notify the identity of third parties to the Minister of
Labour under the terms of the TULRAA. Although the number of such advisers
notified by one of the central organizations appeared to be excessive, the
members of the mission learned that failure to notify the names of such
persons meant that non-notified persons were prohibited from even making any
comments in respect of an impending industrial dispute. In the context of the
new industrial relations system, the members of the mission consider this
notification requirement to be onerous on the unions. Moreover, concern must
be expressed over the fact that violation of the prohibition on non-notified
persons to intervene in industrial disputes results in penalties of three
years' imprisonment and/or 30 million won in fines. These penalties appear to
be far too excessive and their application in practice could have very
negative connotations for industrial relations in the country.
In a general manner, it has come to the attention of the members of the
mission that certain provisions of the TULRAA carry very severe sanctions.
This is for example the case with the violation of the prohibition of certain
types of industrial action such as workplace occupations; violations thereof
are subject again to penalties of three years' imprisonment and/or 30 million
won. Other penalties include a sentence of two years' imprisonment or a fine
of 20 million won for violation of the prohibition on any union's calls for
payment of wages during strikes. These excessive penalties could constitute an
obstacle to attempts to establish a new industrial relations system founded on
a climate of confidence.
Finally, the members of the mission were able to ascertain that certain
provisions of the TULRAA appear to regulate in excessive detail matters that
should normally be left to unions to decide in their internal rules.
Alternatively, certain provisions appear to grant the authorities far too much
discretionary power in decision-making in various domains when they should
not. In this respect, the Government is reminded that the technical assistance
of the ILO is at its disposal, if it so wishes, to assist in remedying this
situation as well as the other matters raised during the course of the visit.
The members of the mission were very heartened in this respect to hear the
President-Elect and members of his transition team endorse the mission's view
that tripartism is very important at all levels. They were further encouraged
by the willingness expressed by a spokesperson for the transition team to
ratify ILO Conventions Nos. 87 on Freedom of Association and Protection of the
Right to Organise, 1948, and 98 on the Right to Organise and Collective
Bargaining, 1949, in the near future. The members of the mission are
encouraged by the progress being made on freedom of association issues and are
confident that this progress will continue and enable the industrial relations
system prevailing in the Republic of Korea to gradually be brought fully in
line with freedom of association principles. This confidence is strengthened
by the express commitment of the new President and the Government to human
rights, including freedom of association, and to social justice.
Geneva, 11 March 1998. (Signed) L. Mishra.
B. Noakes.
U. Edström.
Appendix I
List of persons the mission met with
President-Elect and members of the transition team:
His Excellency Mr. Kim Dae-Jung, President-Elect
Mr. Choi, Myung-Hun, Head of Economy II Division
Mr. Kim, Yong-Dal, Adviser to Head of Economy II Division, President-Elect's
transition team
Ministry of Labour
Mr. Lee, Ki-Ho Minister of Labour
Dr. Park, Chung-Kyu Director-General for the International
Labour Cooperation
Mr. Cho, Jeong-Ho Director-General of the International
Labour Policy Division
Mr. Chung, Jong-Soo Director-General of Labour Policy Division
Mr. Sin, Jae-Myun Director-General for Labour Management
Cooperation
Mr. Song, Bong-Keun Director of the Trade Unions Division
Mr. Chung, Hyoung-Woo Deputy Director of the International
Labour Policy Division
Mr. Lee, Dae-Joong Deputy Director of the International
Labour Cooperation Bureau
Ministry of Education
Mr. Lee, Myung-Hyun Minister of Education
Mr. Park, Chun-Bong Director-General of the Teacher Policy
Bureau
Mr. Kim, Doo-Sik Director of the Teacher Policy Bureau
Mr. Hong, Won-Il Official from the Teacher Policy
Department
Mr. Youn, Young Kyou Member of the Gwangju City Board of
Education
Ministry of Government Administration
Mr. Woo, Kun Min Vice-Minister of Government Administration
Mr. Chae, Il Byung Inspector-General of the Public Service
Department
Mr. Cheong, Sang Suok Deputy Director of the Public Service
Department
Mr. Lee, Sang Soo Management Officer of the Public Service
Department
Ministry of Justice
Mr. Won, Chung-Il Vice-Minister of Justice
Mr. Kang, Shin-Wook Assistant Minister, Office of Legal
Affairs
Mr. Lim, An-Sik Director of Human Rights Division
Mr. Shin, Dong-Hyun Deputy Director of Human Rights Division
Mr. Moon, Sung-Woo Director of Third Prosecution Division
Ms. Choi, Yoon-Hee Prosecutor, Ministry of Justice
Members of Parliament from the opposition, Grand National Party
Mr. Hong, Moon-Jong Member of the Educational Committee and
the National Assembly
Mr. Har, Kyoung-Kun Chairman of the Policy Committee, Member
of the National Assembly
Mr. Lee, Kang-Hee Member of the Labour Committee; Member
of the National Assembly
Mr. Kim, Moon-Soo Member of the Labour Committee; Member
of the National Assembly
Mr. Han, Young-Ae Deputy Floor Leader; Member of the
Environment and Labour Committee;
Member of the National Assembly
Employers' organizations
Korea Employers' Federation (KEF)
Mr. Kim, Chang-Sung Chairman
Mr. Cho, Nam-Hong Executive Vice-Chairman
Mr. Kim, Young-Vae Managing Director
Mr. Lee, Dong-Eung Director
The Federation of Korean Industries (FKI)
Mr. Sohn, Byung-Doo Executive Deputy Chairman
Workers' organizations
The Federation of Korean Trade Unions (FKTU)
Mr. Park, In-Sang President
Mr. Kim, Yoo-Koun Vice-President
Mr. Lee, Nam-Soon General Secretary
Mr. Park, Hun-Soo President of the Federation of Korean
Chemical Workers' Unions
Mr. Noh, Jin-Kwi Senior Director of the Policy Office
Mr. Lee, Kwang-Hwan Senior Director of the External
Cooperation Office
Mr. Lee, Jung-Sik Director of the Planning and Coordinating
Department
Mr. Choi, Dae-Yul Director of the Public Relations and
Information Department
Mr. Ahn, Pong-Sul Director of the International Department
The Korean Confederation of Trade Unions (KCTU)
Mr. Dan, Byung-Ho Chairperson of the Emergency Task Force
Mr. Lee, Dong-Jin Central Executive member
Mr. Yoon, Young Mo International Secretary
The Korean Teachers' and Educational Workers' Union (CHUNKYOJO)
Mr. Kim, Kui-Sik President
Mr. Lee, Dong-Jin Chairperson of the Solidarity Committee
Ms. Chung, Hae-Suk Member of the Executive Committee, Former
President
Korea International Labour Foundation
Mr. Kim, Woo-Joong (Chairman of Daewoo Group) President
Mr. Koo, Ul-Hoe Secretary General
Executives
Mr. Lee Nam-Soon (Secretary General of the Federation of
Korean Trade Unions)
Mr. Choo, Won-Suh (President of the Korean Federation of Bank
and Financial Workers' Unions)
Mr. Kang, Sung-Chun (President of the Korean Automobile and
Transport Workers' Federation)
Mr. Cho, Nam-Hong (Vice-Chairman of the Korea Employers
Federation)
Mr. Kim, Hee-Chull (Chairman of Byuck San Corporation)
Mr. Woo, Sung (Vice-Minister of the Ministry of Labor)
Mr. Park, Jeang-Kyu (Director-General, International Labor
Cooperation Officer of the MOL)
Ms. Song, Kyung-Jin (Director, International Cooperation
Department)
Appendix II
Members of the Tripartite Commission
Chairman:
Mr. Han, G.O., Vice-President, National Congress for New Politics (NCNP)
Executive Secretary:
Mr. Cho, S.J., Member of the National Assembly, NCNP
Representatives of labour:
Mr. Park, I.S., President of the Federation of Korean Trade Unions (FKTU)
Mr. Bae, S.B., First Vice-President (Acting President), Korean Confederation
of Trade Unions (KCTU)
Representatives of business:
Mr. Choi, J.H., Chairman, Federation of Korean Industries
Mr. Kim, C.S., Chairman, Korea Employers' Federation
Representatives of Government:
Mr. Lim, C.Y., Deputy Prime Minister and Minister of Finance and Economy
Mr. Lee, K.H., Minister of Labour
National Assembly (political party):
Mr. Lee, G.K., Member of the National Assembly, United Liberal Democrats (ULD)
Mr. Chung, S.G., Member of the National Assembly, NCNP
Mr. Lee, K.H., Member of the National Assembly, Grand National Party (GNP)
Appendix III
Information provided by the KCTU on an overview of unionists in prison,
1988-97
Total number of imprisoned unionists = 2,484.
Unionists imprisoned each year
=================================================================
Year 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997
-----------------------------------------------------------------
No. 80 611 492 515 275 46 161 170 95 35
=================================================================