Informe provisional - Informe núm. 355, Noviembre 2009

Caso núm. 2602 (República de Corea) - Fecha de presentación de la queja:: 10-OCT-07 - Cerrado

Allegations: The complainants allege that “illegal dispatch” workers, i.e. precarious workers in disguised employment relationships, in Hyundai Motors’ Corporation (HMC) Ulsan, Asan and Jeonju plants, Hynix/Magnachip, Kiryung Electronics and KM&I, are effectively denied legal protection under the Trade Union and Labour Relations Adjustment Act (TULRAA) and are left unprotected vis-à-vis: (1) recurring acts of anti-union discrimination, notably dismissals, aimed at thwarting their efforts to establish a union; (2) the consistent refusal of the employer to bargain as a result of which none of the unions representing those workers have succeeded in negotiating a collective agreement; (3) dismissals, imprisonment and compensation suits claiming exorbitant sums, for “obstruction of business” in cases of industrial action; (4) physical assaults, court injunctions and imprisonment for “obstruction of business” aimed at preventing dismissed trade union leaders from re-entering the premises of the company to stage rallies or exercise representation functions

1. 621. The Committee last examined this case at its May 2008 meeting and on that occasion presented an interim report to the Governing Body [see 350th Report, paras 627–703, approved by the Governing Body at its 302nd Session].
2. 622. The International Metalworkers’ Federation (IMF) sent new allegations in communications dated 21 November 2008 and 23 July 2009. The Korean Confederation of Trade Unions (KCTU) sent additional information in a communication dated 11 June 2009.
3. 623. The Government sent new observations in communications dated 22 May and 5 October 2009.
4. 624. 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

1. 625. At its previous examination of the case in May 2008, the Committee made the following recommendations [see 350th Report, para. 703]:
   • (a) The Committee requests the Government to keep it informed of the decision of the Supreme Court with regard to the proceedings for unfair dismissal lodged by the union of subcontracted workers in Kiryung Electronics.
   • (b) The Committee requests the Government to institute an independent investigation into the alleged acts of anti-union discrimination and interference in Hynix/Magnachip and HMC, through the termination of contracts with subcontractors in case of establishment of trade unions of subcontracted workers and, if the allegations are confirmed, to take all the necessary measures to reinstate the dismissed trade union leaders and members as primary remedy; if the judicial authority determines that reinstatement of trade union members is not possible for objective and compelling reasons, adequate compensation should be awarded to remedy all damages suffered and prevent any repetition of such acts in the future, so as to constitute a sufficiently dissuasive sanction against acts of anti-union discrimination. The Committee requests to be kept informed in this respect.
   • (c) The Committee urges the Government to take all necessary measures to promote collective bargaining over the terms and conditions of employment of subcontracted workers in the metal sector, in particular in HMC, Kiryung Electronics, KM&I and Hynix/Magnachip, including through building negotiating capacities, so that subcontracted workers in these companies may effectively exercise their right to seek to improve the living and working conditions of their members through negotiations in good faith.
   • (d) The Committee requests the Government to institute an independent investigation into the dismissals of the subcontracted workers in HMC Ulsan and Jeonju and, if these workers are found to have been dismissed only on the ground that they staged industrial action against a “third party”, i.e. the subcontracting company, to ensure that they are reinstated in their posts without loss of pay as primary remedy; if the judicial authority determines that reinstatement of trade union members is not possible for objective and compelling reasons, adequate compensation should be awarded to remedy all damages suffered and prevent any repetition of such acts in the future, so as to constitute a sufficiently dissuasive sanction against acts of anti-union discrimination. The Committee requests to be kept informed in this respect. The Committee also requests the Government to keep it informed of the Supreme Court decision on the unfair dismissal proceedings filed by three workers from the HMC Asan plant and trusts that, in rendering its decision, the Supreme Court will ensure that sanctions for strike action are imposed only where the prohibitions in question are in conformity with the principles of freedom of association.
   • (e) The Committee requests the Government to take all necessary measures without delay so as to bring section 314 of the Penal Code (obstruction of business) into line with freedom of association principles. The Committee requests to be kept informed in this respect.
   • (f) The Committee requests the Government to provide information on the specific acts for which Kaon, Sujeong; Oh, Ji Hwan; and Kim, Jun-Gyu, from HMC Asan; Choi, Byeong-Seung, from HMC Ulsan; and Park Jeong-Hun; Jo, Dae-lk; and Jeong, GyeongJin, from HMC HYSCO were convicted to imprisonment for “obstruction of business” and to indicate whether in the meantime the sentences have been served or are still in force.
   • (g) The Committee requests the Government to institute an independent investigation into allegations that Hynix/Magnachip, Kiryung Electronics and HMC use compensation suits for exorbitant amounts of money, based on “obstruction of business” provisions, as a threat to make trade unionists renounce their claims and rights (e.g. withdraw unfair dismissal claims, withdraw from unions representing subcontracted workers or drop their refusal to work overtime) and, if the allegations are confirmed, to take all the necessary measures to reinstate the dismissed trade union leaders and members as primary remedy; if the judicial authority determines that reinstatement of trade union members is not possible for objective and compelling reasons, adequate compensation should be awarded to remedy all damages suffered and prevent any repetition of such acts in the future, so as to constitute a sufficiently dissuasive sanction against acts of anti-union discrimination. The Committee requests to be kept informed in this respect.
   • (h) The Committee requests the Government to keep it informed of the decisions handed down in three cases pending before the courts with regard to compensation claims filed by Kiryung Electronics on the basis of “obstruction of business” provisions. The Committee trusts that in rendering their judgements, the courts will take due account of the industrial relations context, the need to build a constructive industrial relations climate and the allegations that these suits are used as a means to intimidate trade unionists into renouncing their rights and claims.
   • (i) The Committee expects that, in the future, when faced with requests for injunctions preventing dismissed trade union officials from entering the workplace, the courts will take duly into account the need for these workers’ representatives to enjoy the facilities necessary for the proper exercise of their functions without impairing the efficient operation of the undertaking concerned.
   • (j) The Committee requests the Government to ensure that an independent investigation is carried out into the allegations of violence by private security guards against trade unionists during rallies at HMC Ulsan and Asan and Kiryung Electronics and, if they are confirmed, to take all necessary measures to punish those responsible and compensate the victims for any damages suffered. The Committee requests to be kept informed in this respect.
   • (k) The Committee considers that violence, criminal sanctions or disproportionately heavy pecuniary penalties are not conducive to a constructive industrial relations climate, especially in the absence of affirmative measures to promote dialogue and collective bargaining. It urges the Government to promote in the future social dialogue and collective bargaining as preventive measures aimed at restoring confidence and a peaceful industrial relations climate, rather than the application of “obstruction of business” provisions with respect to non-violent acts.
   • (l) The Committee requests the Government to develop appropriate mechanisms in consultation with the social partners concerned, aimed at strengthening the protection of dispatch workers’ rights to freedom of association and collective bargaining, guaranteed to all workers under TULRAA, and preventing any abuse of subcontracting as a way to evade in practice the exercise of the freedom of association and collective bargaining rights of these workers. Such mechanisms should include an agreed process for dialogue determined in advance.
   • (m) The Committee invites the Government to have recourse to ILO technical assistance if it so wishes.

B. New allegations by the complainant organizations

1. 626. In a communication dated 21 November 2008, the IMF states that despite the Committee’s recommendations, the situation of Korean workers, especially those expressly cited in this case, has deteriorated sharply. The Government continues to deny precarious workers their fundamental trade union rights, while more than 70 trade union officials have been arrested or targeted by police inquiries and questioning.
2. 627. With regard to the legal proceedings in response to unfair dismissals instigated by the trade union representing subcontracted workers at Kiryung Electronics, the complainant organization states that the Supreme Court did not uphold the case of the subcontracted workers, not because the Court considered the dismissals justified but simply because it considered that Kiryung Electronics had no obligations as an employer to the subcontracted workers. The complainant organization also recalls, however, that according to a previous court decision, the enterprise already had been convicted for using several forms of employment considered to be illegally precarious. The complainant organization adds that, in jurisprudence, termination of precarious workers’ contracts because of union membership was considered unfair, especially when a worker had already been employed for two years.
3. 628. As regards the request for an independent investigation into the allegations of anti-union discrimination and interference at Hynix/Magnachip and at Hyundai Motors’ Corporation (HMC), through the termination of contracts with subcontractors when workers employed by the latter formed unions, the complainant organization states that the Government has still not instituted such an investigation five months after the Committee made its recommendations.
4. 629. As regards the recommendations to take all necessary measures to promote collective bargaining on terms and conditions of employment of workers hired by subcontracting enterprises in the metalworking sector, in particular at HMC, Kiryung Electronics, KM&I and Hynix/Magnachip, the complainant organization states that the precarious workers at Kiryung Electronics have been obliged to resort to extreme measures such as a 94-day hunger strike to force the enterprise to promote collective bargaining.
5. 630. With regard to the Committee’s request for an independent investigation into the dismissals of subcontracted workers at the HMC plants in Ulsan and Jeonju, the complainant organization states that the Government has still not taken any such measure five months after the Committee made it recommendations.
6. 631. As regards the Committee’s recommendations to bring section 314 of the Penal Code (“obstruction of business”) into conformity with the principles of freedom of association, the complainant organization states that the public prosecution authority has used “obstruction of business” as a pretext for breaking the strikes declared by the KMWU on 2, 8, and 10 July 2008. The complainant organization emphasizes that a number of officials of the KMWU (the president Jung Gab-deuk; the first vice-president Nam Taek-gyu; the president of the Hyundai Motors branch of the KMWU, Kim Tae-gon; and possibly the president of the Kia branch of the KMWU, Kim Sang-gu) face criminal prosecution for obstruction of business. According to the complainant organization, the public prosecutor considers that the objectives of the strike are illegal since they target employers that do not participate in sectoral negotiations at the national level, or because certain strikes concerned issues of public health, in particular the renegotiation of the terms of beef trade agreements with the United States, which have no bearing on terms and conditions of employment.
7. 632. The complainant organization states further that, with regard to the three pending court cases involving proceedings instigated by Kiryung Electronics against the trade unionists for obstruction of business, the courts concluded that the demand for compensation for damages made by the enterprise was exaggerated. The complainant organization maintains that the enterprise has nevertheless been able to obtain an undertaking from the workers to give up their union membership in return for withdrawing their complaints.
8. 633. Lastly, the complainant organization refers to the Committee’s recommendation addressed to the Government to develop appropriate mechanisms in consultation with the social partners concerned, aimed at strengthening the protection of “dispatch” workers’ rights to freedom of association and collective bargaining, guaranteed to all workers under the Trade Union and Labour Relations Adjustment (TULRAA), and preventing any abuse of subcontracting as a way of evading in practice the exercise of freedom of association and collective bargaining rights of these workers. In this regard, the complainant organization emphasizes that the cornerstone of the KMWU’s strategy is the protection of the rights of precarious workers through collective bargaining and the establishment of a national union for the industry, and by negotiating collectively at the sectoral level in order to establish standards in the metalworking sector. Nevertheless, according to the complainant organization, the KMWU leaders are currently being prosecuted on the grounds that the strike action instigated by them in order to force the employers to take part in national collective negotiations has no bearing on terms and conditions of employment and is therefore illegal. The complainant organization recalls that the law does not require employers to engage in collective talks with unions above the enterprise level. However, the law is used to deny and criminalize the exercise of the right to take collective action, thus undermining the unions’ strategy of using strike action to bring about national talks in order to protect vulnerable workers.
9. 634. The complainant organization urges the Committee to recommend an ILO fact-finding mission to the Republic of Korea to examine the violations of workers’ rights revealed in this case.
10. 635. Furthermore, in a communication dated 23 July 2009, the IMF provides a copy of the report of an international trade union mission which visited the Republic of Korea in February 2009. The report states that, despite the ILO’s recommendations for labour law reform, and in particular the recommendations made by the Committee during its previous examination of this case, the situation of trade unionists had deteriorated and the violations of trade union rights had worsened.
11. 636. In a communication dated 11 June 2009, the KCTU denounces the failure of the Government to implement the Committee’s recommendations and provides new allegations concerning cases of anti-union repression against drivers of Remicon vehicles used to transport ready-to-use cement and of tipper trucks and other heavy vehicles. These drivers cannot, in the Government’s view, be regarded as workers under the terms of the TULRAA owing to their “self-employed” status. They are thus considered not to be entitled to join a union. The KCTU maintains that, since the beginning of 2009, the Government has issued a number of official directives calling on the unions to voluntarily exclude drivers of Remicon vehicles, tipper trucks and other heavy vehicles, or face deregistration.

C. The Government’s reply

1. 637. In a communication dated 22 May 2009, the Government provides information on the Committee’s recommendations, including a number of judicial decisions in Korean, and replies to some of the new allegations made by the IMF.
2. 638. As regards the proceedings in connection with the allegedly unfair dismissals, initiated by the trade union representing workers hired by Kiryung Electronics subcontractors, the Government states that in four decisions handed down between January and June 2008, the Supreme Court rejected all the complaints filed in relation to the dismissals of the 34 workers in question, including both the contract workers directly employed by the enterprise and the subcontracted workers. The Court took the view that Kiryung Electronics, as principal contractor, had no obligation as employer towards the subcontracted workers. In the case of workers employed directly by the enterprise, the Court considered that their employment was terminated by the expiry of their contracts.
3. 639. The Government adds that it has no knowledge of the jurisprudence cited by the complainant organization, according to which the dismissal of precarious workers for forming a trade union is illegal if the workers have already been employed for at least two years. The Government explains that, in any case, an interruption in employment intended to obstruct trade union activities is an unfair work practice.
4. 640. As regards the Committee’s recommendations to hold an independent investigation into the allegations of acts of discrimination and interference at Hynix/Magnachip and at HMC, the Government refers to a decision by the High Court of Seoul, which concluded in April 2007 that the actions of Hyundai Heavy Industries to reduce or undermine trade union activities by exercising its overall control and inciting the subcontractor to close when its workers formed a union, were considered interference and unfair practice.
5. 641. As regards the Committee’s request to hold an independent investigation into the dismissals of workers hired by subcontractors at HMC Ulsan and Jeonju, the Government refers to section 81 of the TULRAA according to which discriminatory treatment such as dismissal for participating in trade union activities constitutes unfair labour practice. The Government adds that the workers can seek compensation through the Labour Relations Commission and can instigate legal action against an employer who in their view has infringed their rights.
6. 642. The Government further states that the legal actions for unfair dismissal initiated by the three workers of the HMC plant in Asan are still under way in the Supreme Court.
7. 643. As regards the recommendations made by the Committee to promote collective bargaining on the terms and conditions of employment of subcontracted workers in the metalworking sector, the Government draws attention to the advice given by some local authorities to the employers concerned:
   • – The Ulsan Labour Office of the Ministry of Labour advised HMC subcontractors to engage in negotiations in good faith with the trade unions under the terms of the TULRAA. However, given that they were unable to raise wages at their own initiative, the Ulsan Labour Office advised the HMC to intervene to resolve problems of work management in its subcontracting enterprises in a “win-win” cooperation between the principal employer and its suppliers. As a result of this, collective negotiations were concluded satisfactorily in 2008.
   • – The Director of the Industrial Relations Support Division and the labour inspectors of the Cheonan District Labour Office provided advice for the operation and management of the HMC plant in Asan and for the subcontractors, with a view to ensuring rational and cooperative labour relations.
   • – In 2008, the Gwanak District Labour Office and the Chief of the Seoul Regional Labour Office undertook mediation between the workers and management of Kiryung Electronics. However, although the workers and management succeeded in narrowing their differences, no final agreement has been concluded owing to a marked difference in views regarding the union’s development fund.
8. 644. Lastly, the Government indicates that the extreme means of action, such as the hunger strike referred to in the complainant organization’s allegations, were means of applying pressure that responded more to the union’s own internal requirements.
9. 645. As regards the Committee’s recommendation to amend section 314 of the Penal Code, the Government recalls that the question has already been considered in recommendations made by the Committee in its examination of Case No. 1865. As regards the issue raised by the complainant organizations concerning the excessive reliance on “obstruction of business” provisions as a motive for the court cases involving five KMWU officials, the Government indicates that, in the view of the public prosecutor, the strikes called by the KMWU leadership were illegal because they were motivated by a call to renegotiate the existing agreements on trade in beef products with the United States, which has nothing to do with improving terms and conditions of employment. Furthermore, according to the public prosecutor, the strike organized by the KMWU to bring about collective talks at the national and sectoral levels was unfair in that its aim was to force employers to conduct such talks, even though they are not actually required to do so. The Government confirms that the KMWU leaders Jung Gab-deuk, Nam Taek-gyu, Kim Tae-gon and Yun Hae-mo were found guilty by the lower courts of obstructing business.
10. 646. With regard to the information requested by the Committee on the offences for which Kaon Su-jeong, Oh Ji-hwan et Kim Jun-gyu, of HMC Asan; Choi Byeong-seung, of HMC Ulsan; and Park Jeong-hun, Jo Dae-ik, and Jeong Gyeong-jin, of HMC HYSCO, were sentenced to periods of imprisonment for “obstruction of economic activity”, the Government has provided the following clarification:
    • – Kaon Su-jeong, Oh Ji-hwan and Kim Jun-gyu used excessive violence towards HMC staff and guards who blocked their passage, injuring a number of them. In addition, they destroyed vehicles and roadblocks and issued threats in order to disrupt the activities of HMC and of Dong Seo Dynasty, for which acts they were sentenced to imprisonment. The Government states that none of them has served the sentence imposed.
    • – Choi Seung-byeong injured five guards between May and September 2004. He also damaged the main gate of HMC and disrupted production by issuing threats. He was sentenced to imprisonment but has not served the sentence.
    • – Park Jeong-hun wounded police officers and damaged HMC HYSCO property at a sit-in on 25 October 2005. He was found guilty of premeditated criminal action and sentenced to a term of imprisonment, which he served until May 2007.
    • – Jo Dae-ik and Jeong Gyeong-jin entered HMC premises on 1 May 2006 and wounded guards with an iron bar. They also obstructed the building of an extension over a period of ten days. Jo Dae-ik also took part in a violent demonstration that led to 105 cases of injury among the police and damage to 30 police cars. Jeong Gyeong-jin entered company premises, damaged property and disrupted operations. Both were sentenced to terms of imprisonment, which they have not served.
11. 647. As regards the decisions of the courts with regard to the three cases in which compensation is sought by Kiryung Electronics, the Government indicates that two of the complaints, one against 16 union members including Kim So-yeon, the other against 14 union members including Kang Sun-yeol, were settled through conciliation based on the recommendations of the High Court in May 2008. The third complaint, against Jeon Jae-hwan, was settled through conciliation in July 2008.
12. 648. As regards the Committee’s recommendation concerning the development of appropriate mechanisms in consultation with the social partners concerned, aimed at strengthening the protection of dispatch workers’ rights to freedom of association and collective bargaining, the Government takes the view that it cannot impose a particular method of negotiation, as this should be determined independently by workers and management in order to promote their mutual interests.
13. 649. Referring also to the allegations of the complainant organizations questioning the assumption that the employers are not legally required to carry on collective talks with unions other than those at enterprise level, the Government recalls that there is no restriction regarding the level at which unions may be formed and negotiate. Any union, whether at the enterprise or the sectoral level, may independently choose its method of negotiating with management, in the light of their mutual interests. The Government notes that in no country is a particular method of negotiation imposed by law.
14. 650. In its communications dated 5 October 2009, the Government contends that the allegations set forth in the most recent communications of the KCTU concerns the right to organize of special types of employment not related to subcontracted workers in the metal sector, as in this case. It adds that the IMF communications concerns issues already addressed in Case No. 1865.

D. The Committee’s conclusions

1. 651. The Committee recalls, firstly, that in its previous examination of the case, it noted that the allegations concerned specific obstacles to the exercise by subcontracted workers of their rights to freedom of association and collective bargaining, which should be guaranteed for them as for any other workers under the terms of the TULRAA. In its conclusions, the Committee considered that no meaningful information had been provided on the steps taken to ensure the fundamental rights of the workers in question, in respect of: (i) acts of anti-union discrimination disguised as termination of contracts with subcontractors immediately after the establishment of trade unions, which leads to the de facto dismissal of all subcontracted workers if they attempted to exercise their freedom of association and collective bargaining rights; (ii) a “catch-22” situation where the principal employer/subcontracting company refuses to negotiate with subcontracted workers, claiming that it has no employment relationship with them, while the subcontractors also refuse to negotiate, claiming that they do not control the terms and conditions of employment in the plant; (iii) the fact that industrial action can only take place at the principal employer’s/subcontracting company’s factory while, at the same time, the staging of industrial action against a “third party”, that is the principal employer/subcontracting company, is treated as an illegal act; (iv) absence of positive measures to promote constructive dialogue and negotiated resolutions to disputes in the face of mounting tensions; (v) use of “obstruction of business” provisions with respect to non-violent acts, and compensation suits for exorbitant amounts of money as a threat to make trade unionists renounce their claims and rights.
2. 652. The Committee notes that the allegations pending in this case concern the situation of subcontracted workers in the metalworking sector, in particular in the Hyundai Motors Corporation plants in Ulsan, Asan and Jeonju, at Hynix/Magnachip, Kiryung Electronics and at KM&I, who in practice have no legal protection under the terms of TULRAA and are left unprotected as regards: (1) recurrent acts of anti-union discrimination, including dismissals, which are intended to thwart their attempts to form a union; (2) the employer’s refusal to negotiate, with the result that none of the representative unions has succeeded in negotiating a collective agreement; (3) cases of dismissal, imprisonment, and demands for compensation involving exorbitant sums for “obstruction of business” in strikes; (4) physical assault, court injunctions and imprisonment of workers for “obstruction of business”, all with the aim of preventing dismissed union officials from returning to company premises to organize meetings or carry on their representative functions.
   • Right to organize without discrimination
3. 653. As regards recommendation (a) concerning the decision of the Supreme Court in the proceedings for unfair dismissal lodged by the union representing subcontracted workers at Kiryung Electronics, the Committee recalls that, according to the complainant organizations, following the establishment of the union in July 2005, union resignation forms had been distributed to employees some days afterwards, and interviews had subsequently been organized with individual workers who had remained in the union in order to persuade them to resign from the union; unionized workers had had their contracts cancelled or not renewed. Nevertheless, the Government in its reply had indicated that the investigations by the Regional Labour Office had not confirmed that such acts had taken place. Furthermore, between January and August 2006, the administrative tribunal and the High Court had rejected an appeal against unfair dismissal by the union that had brought the case before the Supreme Court. The Committee notes the information supplied by the complainant organization, according to which the Supreme Court in its decision did not in the end uphold the subcontracted workers’ case. The Committee takes note of the Government’s confirmation that, in four decisions handed down between January and June 2008, the Supreme Court rejected all appeals against unfair dismissal presented by the 34 workers, including both those directly employed by the enterprise and subcontracted workers. The Court considered that Kiryung Electronics as the principal employer was under no obligation towards the subcontracted workers. As regards the workers directly employed by Kiryung Electronics, the Supreme Court considered that their employment with the enterprise ceased when their contracts of employment expired.
4. 654. While noting the decisions handed down by the Supreme Court, the Committee is bound to recall the principles according to which all workers, without distinction whatsoever, whether they are employed on a permanent basis, for a fixed term or as contract employees, should have the right to establish and join organizations of their own choosing, and the non-renewal of a contract for anti-union reasons constitutes a prejudicial act within the meaning of Article 1 of Convention No. 98 [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 255 and 785]. The Committee considers that protection against acts of anti-union discrimination would appear to be inadequate if an employer can resort to subcontracting as a means of evading in practice the rights of freedom of association and collective bargaining. The Committee considers in this regard that, in order to guarantee effective protection against anti-union discrimination, it would be necessary to try to establish the truth of the allegations made by the complainant organizations concerning pressure to encourage workers to resign from their union and, if those allegations are found to be true, to take appropriate corrective measures. In these circumstances, the Committee requests the Government to hold an independent investigation into the allegations of pressure put on subcontracted workers at Kiryung Electronics to persuade them to leave the union, as they appear regrettably not to have been taken into consideration by the Court in its decision, and, if they are confirmed, to take any necessary measures to provide compensation for the trade unionists concerned and to prevent any recurrences of such anti-union discrimination in future.
5. 655. As regards recommendation (b) concerning an independent investigation into the alleged acts of anti-union discrimination and interference at Hynix/Magnachip and HMC, through the termination of contracts with subcontractors in the case of establishment of trade unions of subcontracted workers, the Committee notes that according to the complainant organization the Government has still not yet carried out any independent investigation five months after the Committee made its recommendations. The Committee notes that the Government refers to a decision of the Seoul High Court in April 2007 according to which the actions of Hyundai Heavy Industries to reduce or undermine trade union activities by exercising its overall control and inciting the subcontractor to close when its workers formed a union constitute interference and thus unfair labour practice.
6. 656. While noting the Government’s information that certain measures relating to the use of subcontracting were deemed by the courts to constitute unfair practice, the Committee once again requests the Government, to take the necessary measures to reinstate the dismissed union officials and members as a primary remedy. If the judicial authorities find that reinstatement is not possible for objective and compelling reasons, adequate compensation should be awarded for any damages suffered and prevent any repetition of such acts in the future, so as to constitute a sufficiently dissuasive sanction against acts of anti-union discrimination. The Committee requests the Government to keep it informed of any new developments in this respect.
   • Right to collective bargaining
7. 657. The Committee requested the Government to take all necessary measures to promote collective bargaining over the terms and conditions of employment of subcontracted workers in the metal sector, in particular in HMC, Kiryung Electronics, KM&I and Hynix/Magnachip, including through building negotiating capacities, so that subcontracted workers in these companies might effectively exercise their right to seek to improve the living and working conditions of their members through negotiations in good faith (recommendation (c)). The Committee notes that, according to the complainant organization, the precarious workers at Kiryung Electronics were obliged to resort to extreme forms of action such as a 94-day hunger strike, to force the enterprise to promote collective bargaining.
8. 658. Furthermore, the Committee notes the information supplied by the Government concerning advice provided by local offices of the Ministry of Labour for employers, including principal employers and subcontractors, and for unions on negotiation in good faith in the metalworking sector. The Committee notes that the Ulsan Labour Office of the Ministry of Labour advised HMC and the subcontractors to negotiate in good faith with the unions, in accordance with the TULRAA. The Government indicates that collective negotiations were concluded successfully in 2008. The Committee also notes the statements to the effect that the Industrial Relations Support Division and the Cheonan district labour inspectors supported the HMC plant in Asan and the subcontractors in the same way. Lastly, the Government states that the Gwanak District Labour Office and the chief of the Seoul Regional Labour Office mediated between the workers and management of Kiryung Electronics, but did not reach a definitive agreement. According to the Government, the extreme forms of action such as the hunger strike mentioned by the complainant organization are just further means of exerting pressure which respond more to the union’s own internal requirements, than to a wish to initiate collective talks.
9. 659. While noting the information supplied by the Government on the specific measures to promote collective talks on terms and conditions of employment of subcontracted workers at certain enterprises in the metalworking sector, the Committee notes the contradictory nature of the information supplied by the complainant organizations and the Government.
10. 660. The Committee requests the Government to continue to take all necessary measures, at all levels, to promote collective bargaining on terms and conditions of employment of subcontracted workers in all metalworking sector enterprises, and in particular at HMC, Kiryung Electronics, KM&I and Hynix/Magnachip, by building negotiating capacity so that unions representing subcontracted workers in these enterprises can effectively exercise their legitimate right to seek improvements in their living and working conditions through negotiations conducted in good faith. The Committee takes the view that such measures should enable the Government to ensure that the use of subcontracting arrangements is not motivated by the wish to circumvent the collective bargaining provisions contained in the TULRAA, and that the trade unions representing subcontracted workers can carry on their activities in the interests of their members.
    • Right to exercise industrial action including strikes
11. 661. With regard to the request for an independent investigation into the dismissals of the subcontracted workers in HMC Ulsan and Jeonju (recommendation (d)), the Committee notes the complainant organization’s statement to the effect that the Government has still not taken any action despite the time that has passed. The Committee furthermore notes with regret that the Government confines itself to referring to section 81 of the TULRAA, according to which dismissal for participation in trade union activities constitutes unfair labour practice, and to indicating the means of redress available to any worker wishing to take action against an employer that has infringed his or her rights.
12. 662. The Committee regrets the absence of specific information on the dismissals of subcontracted workers at the HMC plants in Ulsan and Jeonju, or on any judicial proceedings currently under way. It reiterates once again that the right to strike is one of the essential means through which workers and their organizations may promote and defend their economic and social interests; the fact that a strike is called for recognition of a union is a legitimate interest which may be defended by workers and their organization; [Digest, op. cit., paras 521 and 535]. The Committee recalls that a claim for recognition for collective bargaining purposes addressed to the subcontracting company does not render a strike illegal, and recalls furthermore that the dismissal of workers because of a strike constitutes serious discrimination in employment on grounds of legitimate trade union activities and is contrary to Convention No. 98 [Digest, op. cit., para. 661]. Lastly, the Committee considers that the trade unions must act responsibly and respect the principle that the right of assembly should be exercised peacefully.
13. 663. Consequently, the Committee again requests the Government to hold an independent investigation without delay into the dismissal of HMC subcontracted workers in Ulsan and Jeonju, and, if it is shown that these workers were dismissed solely for staging industrial action against a “third party”, namely the principal employer (subcontracting enterprise), to ensure that they are reinstated without loss of wages as a primary remedy. If the judicial authority finds that reinstatement is not possible for objective and compelling reasons, adequate compensation should be awarded to remedy all damages suffered and prevent any repetition of such acts in the future, so as to constitute a sufficiently dissuasive sanction against acts of anti-union discrimination. The Committee requests the Government to keep it informed of any developments in this regard.
14. 664. The Committee also notes the Government’s statement to the effect that the legal proceedings for unfair dismissal initiated by three workers at the HMC plant in Asan are still under way in the Supreme Court. The Committee again trusts that, in rendering its decision, the Supreme Court will ensure that sanctions for strike action are imposed only where the prohibitions in question are in conformity with the principles of freedom of association.
    • Application of “obstruction of business” provisions
15. 665. The Committee recalls that, in its previous examination of the case, it noted that, according to the allegations, “obstruction of business” provisions are systematically applied to victimize and intimidate “illegal dispatch” workers who resort to strikes, and workers are thus punished under section 314 of the Penal Code, without having carried out any acts of violence, simply for having exercised a right to which they claim entitlement as regular workers. The relevant sanctions include imprisonment, provisional seizure of assets and compensation claims for exorbitant amounts, in retaliation for the attempt to stage industrial action. Recalling that the detention of trade union leaders and members for reasons linked with their activities in the defence of workers’ interests constitutes a serious violation of civil liberties in general, and of trade union rights in particular, the Committee had requested the Government to provide information on the specific acts for which Kaon Sujeong, Oh Ji Hwan, and Kim Jun-Gyu, from HMC Asan; Choi Byeong-Seung, from HMC Ulsan; and Park Jeong-Hun, Jo Dae-ik, and Jeong Gyeong-Jin, from HMC HYSCO, were sentenced to imprisonment for “obstruction of business” (recommendation (f)). The Committee takes note of the information provided by the Government concerning the convictions and the sentences handed down:
    • – Kaon Sujeong, Oh Ji Hwan, and Kim Jun-Gyu used excessive force against staff and guards of HMC who impeded their passage, and inflicted injuries on them. In addition, they destroyed vehicles and roadblocks and issued threats to obstruct the activities of HMC and Dong Seo Dynasty. They were sentenced to two years’ imprisonment and three years suspended for such acts. According to the Government none of the workers in question has served the sentence.
    • – Choi Byeong-Seung wounded five guards between May and September 2004. He also damaged the main gate of HMC and disrupted production by issuing threats. He was sentenced to one year in prison (suspended), and has not served the sentence.
    • – Park Jeong-hun wounded police officers and damaged property of HMC HYSCO at a protest sit-in on 25 October 2005. He was found guilty of premeditated commission of a crime and sentenced to one year in prison, which he served until May 2007.
    • – Jo Dae-ik and Jeong Gyeong-jin entered HMC headquarters on 1 May 2006 and wounded a number of guards with an iron bar. Daek-ik took part in a violent demonstration which led to 105 police officers being injured and damage to 30 police cars, while Jeong Gyeong-jin entered the enterprise, damaged property and obstructed operations. Both were sentenced to two-and-a-half years’ imprisonment (suspended) and have not served the sentence.
16. 666. The Committee notes that the workers referred to above have been sentenced in connection with acts of violence, destruction and obstruction. Under these circumstances, the Committee recalls that taking part in picketing and firmly but peacefully inciting other workers to keep away from their workplace cannot be considered unlawful. The case is different, however, when picketing is accompanied by violence or coercion of non-strikers in an attempt to interfere with their freedom to work. The Committee takes the view that the principles of freedom of association do not protect abuses consisting of criminal acts while exercising their right to strike [Digest, op. cit., paras 651 and 667].
17. 667. As regards recommendation (e) concerning the need to take all necessary measures without delay so as to bring section 314 of the Penal Code (obstruction of business) into line with freedom of association principles, the Committee recalls that the question of the application of obstruction of business provisions in an occupational context has been the subject of recurring comment by the Committee in relation to its examination of Case No. 1865 involving the Republic of Korea. The Committee noted then that the legal definition of “obstruction of business” was so wide as to encompass practically all activities related to strikes, and that the charge of obstruction of business carried extremely heavy penalties (maximum sentence of five years’ imprisonment, and/or a fine of 15 million won) and had actually given rise to heavy terms of imprisonment and fines. The Committee concluded that the application of this provision was not conducive to a stable and harmonious industrial relations system and accordingly requested the Government to bring section 314 of the Penal Code into line with the more restrictive interpretation given by the Supreme Court and with freedom of association principles [see Case No. 1865, 320th Report, paras 524–526]. The Committee notes with deep concern that, in its examination of this case, it must once again call into question the application of section 314 of the Penal Code, and must in particular note that the Government has not taken any measure to revise the provision in question in such a way as to bring its application into conformity with the principles of freedom of association.
18. 668. As regards the exercise of the right to strike, the Committee reminds the Government that, in general, the occupational and economic interests which workers defend through the exercise of the right to strike do not only concern better working conditions or collective claims of an occupational nature, but also the seeking of solutions to economic and social policy questions and problems facing the undertaking which are of direct concern to the workers. Organizations responsible for defending workers’ socio-economic and occupational interests should be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and standards of living. Lastly, while purely political strikes do not fall within the scope of the principles of freedom of association, trade unions should be able to have recourse to protest strikes, in particular where aimed at criticizing a government’s economic and social policies, and the right to strike should not be limited solely to industrial disputes that are likely to be resolved through the signing of a collective agreement [Digest, op. cit., paras 526, 527, 529 and 531].
19. 669. As regards more specifically the application of section 314 of the Penal Code in relation to strike action, the Committee once again expresses its deep concern at the allegations that it was used to punish a range of collective actions, even non-violent ones, with imprisonment and fines. The Committee recalls that the authorities should not resort to arrests and imprisonment in connection with the organization of or participation in a peaceful strike; such measures entail serious risks of abuse and are a grave threat to freedom of association [Digest, op. cit., para. 671]. Furthermore, while emphasizing the importance of legitimate trade union activity being carried out peacefully, the Committee reiterates its previous statement that the criminalization of industrial relations is in no way conducive to harmonious and peaceful industrial relations [Case No. 1865, 346th Report, para. 774]. A possible first step, in the Committee’s view, would be for the Government to plan the adoption of the necessary measures, in consultation with the social partners concerned, to establish a general practice of investigation, rather than arresting strikers, and that arrests should be limited, even in the case of an illegal strike, to situations in which acts of violence have occurred. Noting also with deep concern that the Government confines itself to stating only that the question was raised in Case No. 1865, without indicating any progress or specific measures to give effect to the recommendations that have been made since 2000, the Committee reiterates its recommendation that the Government should adopt without delay all necessary measures to bring the application of section 314 of the Penal Code (concerning “obstruction of business”) into conformity with the principles of freedom of association, and to keep it informed of developments.
20. 670. The Committee had also noted, from the complainant organization’s allegations, that the “obstruction of business” provisions are used to intimidate workers by seeking from them exorbitant amounts in compensation for damages. The Committee had also noted the allegations that the employer used compensation claims to intimidate trade unionists and to force them to abandon legal challenges to unfair dismissal or to resign from their union. The Committee had requested the Government to keep it informed of any decisions concerning the three court cases relating to claims for compensation lodged by Kiryung Electronics based on “obstruction of business” provisions (recommendation (h)). The Committee notes that, according to the Government, two complaints, one against 16 union members including Kim So-yeon, the other against 14 union members including Kang Sunyeol, have been settled by conciliation procedures on the basis of the recommendations made by the High Court in May 2008. The third complaint, against Jeon Jae-hwan, was also settled through conciliation proceedings in July 2008. The Committee notes this information, requests the Government to indicate whether any of these settlements resulted in withdrawals from the union, and expects that the Government and the judicial authorities will establish adequate safeguards to avoid the possible risk of abuse of judicial proceeding for “obstruction of business” in order to intimidate workers and trade unionists, and that the courts will hand down decisions that fully take account of the need to establish a constructive industrial relations climate in the sector.
21. 671. The Committee had expressed its concern over the acts of violence perpetrated by private security guards against trade unionists during rallies at HMC plants in Asan and Ulsan and at Kiryung Electronics, and in particular at the abductions of An Ghi-ho of HMC Ulsan, and of Kwon Soo-jeon at HMC Asan, and at the violence perpetrated against workers at Kiryung Electronics. It had requested the Government to ensure that an independent investigation was held into these allegations (recommendation (j)). The Committee notes with regret that the Government provides no information on the measures taken to hold such an investigation. Recalling that a genuinely free and independent trade union movement cannot develop in a climate of violence and uncertainty [Digest, op. cit., para. 45], the Committee once again requests the Government to carry out an investigation into the acts of violence perpetrated by private security guards against trade unionists during rallies at HMC plants in Asan and Ulsan and at Kiryung Electronics and, if the allegations are confirmed, to take all necessary measures to punish those responsible and to compensate the victims for the damages suffered. The Committee requests the Government to keep it informed in this regard.
22. 672. As regards its recommendation concerning the establishment of appropriate mechanisms, in consultation with the social partners concerned, aimed at strengthening the protection of subcontracted workers’ rights to freedom of association and collective bargaining, the Committee takes note of the Government’s view that it should not impose any particular method of negotiation, that being a matter that should be determined independently by the workers and management to promote their mutual interests. The Committee takes the view that, in the light of the questions raised in this case, the Government is not being asked to undermine the principle of the autonomy of the social partners by imposing a particular form of collective bargaining but rather to adopt the measures needed to ensure above all adequate protection for subcontracted (“dispatch”) workers and their representatives in exercising the right to freedom of association and collective bargaining, and to establish mechanisms that will promote their collective bargaining capacity, in particular by taking appropriate steps to rectify the legal difficulties that have been identified. The Committee recalls that, when a State decides to become a Member of the Organization, it accepts the fundamental principles embodied in the Constitution and the Declaration of Philadelphia, including the principles of freedom of association, and that the ultimate responsibility for ensuring respect for the principles of freedom of association therefore lies with the Government [Digest, op. cit., paras 15 and 17].
23. 673. The Committee takes note of the most recent communication of the IMF dated 23 July 2009, with which it communicates the report of an international trade union mission in February 2009 in the Republic of Korea which draws attention to the deterioration in the situation of trade unionists and of violations of trade union rights, despite the recommendations made by the ILO for labour law reforms and the Committee’s most recent recommendations on this case. Furthermore, while noting the Government’s reply, the Committee also notes that, in a communication dated 17 June 2009, the KCTU also complains of the Government’s failure to take any steps to implement the Committee’s recommendations. Moreover, the Committee notes that the KCTU has submitted new allegations concerning instances of anti-union measures against a number of categories of heavy goods vehicle drivers who, according to the Government, cannot be regarded as employed workers covered by the terms of the TULRAA owing to their “self-employed” status. The KCTU maintains that, since the beginning of 2009, the Government issued a number of notices calling on the unions voluntarily to exclude all these categories of worker or face deregistration, on the grounds that they are not entitled to form unions. While observing the Government’s statement that these allegations concern the right to organize of those in special types of employment not relevant to the case at hand, the Committee observes with concern that these new allegations refer to further restrictions on trade union rights which, albeit concerning the construction sector, touch yet again upon impediments in law and in practice to the full exercise of the rights to organize on the basis of the nature of the employment relationship. In its previous examination of this case, the Committee had recalled its request to the Government to undertake further efforts for the promotion of free and voluntary collective bargaining on terms and conditions of employment in the construction sector covering, in particular, the vulnerable “daily” workers, including through building negotiating capacities of the employers and workers in that sector [see 350th Report, para. 661]. Deeply concerned by the serious nature of these new allegations, the Committee requests the Government to provide its observations thereon so that it may proceed to their examination in full knowledge of the facts.
24. 674. Despite the information provided by the Government on the development of the judicial proceedings, and on certain measures taken to promote collective bargaining and on the settlement of disputes, the Committee is bound to express its deep concern at the limited progress with regard to the substantive issues raised by this case, some of which have been the subject of specific recommendations by the Committee in relation to previous cases involving the Republic of Korea, without any action by the Government to implement them.
25. 675. Thus the Committee notes that no significant measure has been taken to remove the obstacles to the exercise by subcontracted workers of their rights to freedom of association and collective bargaining, even though those rights are guaranteed by law. The Committee notes with regret that such workers could still suffer acts of anti-union discrimination by termination of their contracts with subcontractors following the establishment of trade unions; that no law or other measure has been adopted to enable the principal employer to engage in collective talks on subcontracted workers; that organizing a strike against a “third party”, namely the principal employer, is still considered by the prosecution authorities to be an illegal act; and that no measure has been adopted to prevent the use of “obstruction of business” provisions to punish non-violent collective action, or the use of legal claims for exorbitant sums in compensation as a way of intimidating trade unionists into renouncing their demand and union membership.
26. 676. Under these circumstances, the Committee remains of the opinion that the overall climate in which subcontracted workers exercise their rights to freedom of association and collective bargaining in the Republic of Korea is unsatisfactory and needs to be improved and developed. In particular, efforts should be made to adopt mechanisms that can prevent subcontracting from being used as a way of preventing the workers concerned from exercising their trade union and collective bargaining rights. In the absence of any progress, the Committee requests the Government once again to develop appropriate mechanisms in consultation with the social partners concerned, aimed at strengthening the protection of subcontracted workers’ rights to freedom of association and collective bargaining, guaranteed to all workers under the TULRAA, and at preventing any abuse of subcontracting as a way to evade in practice the exercise by these workers of their fundamental rights. Such mechanisms should include an agreed process for dialogue determined in advance.
27. 677. The Committee recommends that the Government have recourse to ILO technical assistance.

The Committee's recommendations

1. 678. In the light of its foregoing interim conclusions, the Committee requests the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to hold an independent investigation into allegations of pressure placed on subcontracted workers at Kiryung Electronics to make them resign from their union, as they appear regrettably not to have been taken into consideration by the Court, and, if the allegations are confirmed, to take all necessary measures to compensate the trade union members concerned and to prevent any recurrence of such acts of anti-union discrimination in future.
   • (b) As regards the allegations of acts of anti-union discrimination and interference at Hynix/Magnachip and at HMC, the Committee once again requests the Government to take the necessary measures to reinstate the dismissed trade union leaders and members as a primary remedy; if the judicial authority determines that reinstatement is not possible for objective and compelling reasons, adequate compensation should be awarded to remedy all damages suffered and to prevent any repetition of such acts in the future, so as to constitute a sufficiently dissuasive sanction against acts of anti-union discrimination. The Committee requests to be kept informed in this respect.
   • (c) The Committee urges the Government to take all necessary measures to promote collective bargaining over the terms and conditions of employment of subcontracted workers in the metal sector, in particular in HMC, Kiryung Electronics, KM&I and Hynix/Magnachip, including through building negotiating capacities, so that subcontracted workers in these companies may effectively exercise their right to seek to improve the living and working conditions of their members through negotiations in good faith.
   • (d) The Committee requests the Government to institute an independent investigation without delay into the dismissals of the subcontracted workers in HMC Ulsan and Jeonju and, if these workers are found to have been dismissed solely on the grounds that they staged industrial action against a “third party, i.e. the principal employer (subcontracting company), to ensure that they are reinstated in their posts without loss of pay as a primary remedy. If the judicial authority determines that reinstatement of trade union members is not possible for objective and compelling reasons, adequate compensation should be awarded to remedy all damages suffered and prevent any repetition of such acts in the future, so as to constitute a sufficiently dissuasive sanction against acts of anti-union discrimination. The Committee requests the Government to keep it informed of developments in this regard.
   • (e) Noting further with deep concern that the Government confines itself to stating that the question was already dealt with in Case No. 1865, without indicating any progress made or any specific measures taken to give effect to the recommendations made by the Committee since 2000, the Committee reiterates its recommendation that the Government should take all necessary measures without delay so as to bring section 314 of the Penal Code (“obstruction of business”) into line with freedom of association principles, and to keep it informed in this regard. While emphasizing the importance of legitimate trade union activity being carried out peacefully, the Committee reiterated that the criminalization of industrial relations is in no way conducive to harmonious and peaceful industrial relations.
   • (f) The Committee requests the Government to indicate whether any of the settlement proceedings it refers to resulted in members’ withdrawals from the union. Moreover, the Committee expects that the Government and the judicial authorities will put in place adequate safeguards so as to avert in future the possible risks of abuse of judicial procedure on grounds of “obstruction of business” with the aim of intimidating workers and trade unionists, and that the courts in their rulings will take due account of the need to build a constructive industrial relations climate in the sector in the context of individual industrial relations.
   • (g) The Committee once again requests the Government to institute an independent investigation into the alleged acts of violence perpetrated by private security guards against trade unionists during rallies at HMC Asan and Ulsan and at Kiryung Electronics and, if they are confirmed, to take all necessary measures to punish those responsible and compensate the victims for any damages suffered. The Committee requests to be kept informed in this respect.
   • (h) The Committee notes with concern the new allegations concerning restrictions on the exercise of trade union rights based on an interpretation of the legislation, which concern a sector with regard to which the Committee has already expressed its concern regarding the denial of certain trade unions rights through the use of precarious workers. The Committee requests the Government to provide its observations to the new allegations by the IMF and KCTU so that it may examine this matter in full knowledge of the facts.
   • (i) In the absence of any progress, the Committee again requests the Government to develop appropriate mechanisms, in consultation with the social partners concerned, aimed at strengthening the protection of subcontracted (“dispatch”) workers’ rights to freedom of association and collective bargaining, guaranteed to all workers by the TULRAA, and at preventing any abuse of subcontracting as a way to evade in practice the exercise by these workers of their fundamental rights. Such mechanisms should include an agreed process for dialogue determined in advance.
   • (j) The Committee recommends that the Government have recourse to ILO technical assistance.
   • (k) The Committee draws the Governing Body’s attention to the serious and urgent nature of the present case.