Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 357, Junio 2010

Caso núm. 2707 (República de Corea) - Fecha de presentación de la queja:: 08-ABR-09 - Cerrado

Allegations: The complainant and its affiliate, the Korean Professors Trade Union, allege that the national legislation restricts the right to organize of university professors

1. 373. The complaint is contained in a communication from the Korean Confederation of Trade Unions (KCTU), and its affiliate, the Korean Professors Trade Union (KPU), dated 8 April 2009.
2. 374. The Government forwarded its response to the allegations in a communication received 18 May 2010.
3. 375. The Republic of Korea has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 376. In a communication dated 8 April 2009, the complainant organizations denounce the serious violation of the Preamble of the ILO Constitution, the Declaration of Philadelphia, ILO Conventions Nos 87, 98 and 151, and the Declaration on Fundamental Principles and Rights at Work, through laws which provide for criminal punishment and disciplinary action to be taken against trade unionists and the non-recognition of the KPU.
2. 377. The complainants indicate that the right to organize of government officials and teaching personnel is strictly forbidden since the military regime of 1961. Thus, the Government Officials Act and the Local Officials Act prohibited the establishment of trade unions by public service personnel, except the ones working in the labour section (article 66 of the Government Officials Act and article 58 of the Local Officials Act). Articles 78 and 84 of the Government Officials Act and articles 69 and 82 of the Local Officials Act imposed disciplinary action and criminal punishment on public service employees and tax-paid teachers exercising the right to organize. Furthermore, the Private Schools Act prohibited the right to organize of private school teachers by applying the provisions for public schools (article 55) and imposing punishment for any violation (article 61).
3. 378. According to the complainants, the total prohibition of the right to organize was internationally unprecedented, and led to recommendations being formulated by the ILO and other international organizations to the effect that the Government should reform labour laws in line with international labour standards. The complainant organizations allege that the progress made in guaranteeing the right to organize to public officials and teachers is limited. The Korea Tripartite Commission agreed to the guarantee of the right to organize for government officials and teachers in February 1998. Accordingly, the Act on the Establishment and Operation of Teachers’ Trade Unions (Teachers’ Union Act, effective as of 1 July 1999), and the Act on the Establishment and Operation of Public Officials’ Trade Unions (Public Officials Trade Union Act, effective as of 28 January 2006), provide, in an incomplete and limited manner, for the right to organize and the right to bargain collectively of public officials and teachers. The complainants point out, however, that university professors were excluded from the Teachers’ Union Act (article 2), and public education personnel was ruled out from the Public Officials Trade Union Act (article 6), which meant that the right to organize of public and private university professors remains prohibited and sanctioned, under the above laws.
4. 379. The complainants state that it was against this background that, in November 2001, the KPU was established and the bill of the union’s establishment was submitted to the Government, which turned it down based on the laws above. According to the complainants, the fact that the KPU has not been recognized by law, results in the denial of the right to organize to more than 70,000 Korean professors.
5. 380. The complainant organizations further indicate that the Constitution of the Republic of Korea stipulates that: “To enhance working conditions, workers shall have the right to independent association, collective bargaining and collective action”. The Labour Standards Act states that “a worker” “refers to the person who offers personal labour to business premises to get wages regardless of the kind of work”. The Trade Union and Labour Relations Adjustment Act (TULRAA) stipulates that “Workers refer to those who live with wages or salary regardless of the kind of job”. In the complainants’ view, these legal provisions clearly illustrate that university professors who are under the nation’s and private school corporation’s supervision and guidance are wage workers entitled to enjoy basic labour rights.
6. 381. With reference to the ILO Constitution and the Declaration of Philadelphia, as well as the ILO Declaration on Fundamental Principles and Rights at Work, 1998, the complainants consider that the right to organize and the right to bargain collectively are basic rights of labour, and all member nations including the nations that did not ratify the relevant Conventions relating to freedom of association are under an obligation to comply with the ILO Constitution.
7. 382. The complainant organizations further refer to Articles 2, 9(1) and 11 of Convention No. 87, Articles 1 and 4 of Convention No. 98, Articles 1(2), 4 and 7 of Convention No. 151. In light of these principles and standards regarding the right to organize and the right to bargain collectively, the complainants conclude that public and private university professors are entitled to these rights, and that the actions of the Government (i.e. denial of the right to organize in the Government Officials Act, the Local Officials Act and the Private Schools Act; and non-recognition of the KPU), are in clear violation of ILO standards.
8. 383. The complainant organizations also indicate that, recently, the National Human Rights Commission took up the issue and requested the National Assembly to take action. The Commission stated on 27 March 2006 that “The National Assembly needs to take legislative measures appropriately to guarantee the right to work of university professors in accordance with the Constitution and International Human Rights Law. The range of guarantee can be adjusted considering the necessity of respecting the right to study of students and particularity of official and legal position of university professors, unless the essential subject matters of the right to work are not violated”.
9. 384. According to the complainants, however, the Government still takes a passive or negative stand regarding legislative measures to guarantee the right to organize of university professors, which explains the failure of efforts to revise the relevant laws in September 2004 and November 2005. Government, members of the National Assembly and university authorities, argued that it was difficult to treat university professors as general workers due to the working relations, particularity of legal positions, social positions, and law sentiment of the people. The complainants criticize the reasons invoked as unwarranted prejudice and a mere excuse to prohibit the right to organize of university professors.
10. 385. The complainants indicate that the National Human Rights Commission also concluded that the objections were unjustified based on the following considerations: (i) the Constitution guarantees the three basic labour rights of university professors, which cannot be limited due to the particularity of work as educators; (ii) it is not justified to limit the three basic labour rights of university professors, only because their academic freedom is highly guaranteed and they can participate in management of university through university autonomy; (iii) while the limitation of the right to labour on certain conditions, which is the guarantee of the right to have lessons, is a separate discussion, an overall limitation of the right to work cannot be justified; (iv) the guarantee of the political participation of university professors is the guarantee of the political basic legal rights and therefore it is not the basis for the overall prohibition of the exercise of the basic right to work. External value judgement without law such as the sentiment of people, social atmosphere, or an appropriate time cannot deny the guarantee of the basic right to work, because value judgement within law is a priority; (v) there is a limitation in the improvement of the working conditions by voluntary association and this cannot be the basis of the overall denial of the right to work of university professors; (vi) based on article 31(6) of the Constitution, overall denial of the basic right to work of university professors is contradictory to the ideology of the maximum guarantee of the Constitution.
11. 386. According to the complainants, the ILO has already drawn attention to the fact that “workers can establish and join the organizations having a free choice to protect their interests, regardless of the particular positions under domestic law without any discrimination”, and has been urging the Government to “take steps for public service personnel and public and private school teachers to exercise the right to organize”. The fact that the Government did not take the legal steps required to guarantee the right to organize for university professors illustrates, in the complainants’ view, a lack of will to meet the relevant ILO obligations.
12. 387. Furthermore, the complainant organizations indicate that, due to the recent change of social and economic conditions and university policies, the public interest and democracy of university education have been disappearing, university professors are insecure about their employment, working conditions are getting worse, and the teachers’ authorities and privileges are frequently violated, due to the one-sided policy of the Government to incorporate national universities and restructuring and arbitrary management of private universities. The complainants condemn the fact that, under these circumstances, the right to organize, which is the effective and justifiable means for university professors to act against the Government, is fundamentally blocked, and that, although the KPU is established and conducting normal trade union activities, it cannot organize and bargain collectively and is under constant threat of disciplinary and criminal punishment, in breach of ILO principles and standards.
13. 388. The complainants therefore consider that the provisions of the relevant laws such as the Government Officials Act, the Local Officials Act, and the Private School Act, which forbid and restrict basic labour rights of university professors, should be revised or abolished in line with international labour standards, and legislative measures should urgently be taken so as to guarantee the right to organize for university professors in accordance with ILO standards. The complainants hope that the Committee on Freedom of Association will examine this case carefully and contribute to the progress of the labour rights situation and democratic industrial relations of university professors in the Republic of Korea.

B. The Government’s reply

1. 389. In its reply, the Government indicates that, in January 1999, the Act on the Establishment, Operation, etc., of Trade Unions for Teachers was enacted, thereby guaranteeing basic labour rights of teachers including university part-time lecturers. In the course of the discussion on the Act, the tripartite parties agreed to exclude full-time lecturers and professors from the Act and to later decide on ways to guarantee their rights. In 2001, the Tripartite Commission placed the issue of the basic labour rights of full-time lecturers and professors on the agenda. From February 2001 to February 2002, the Commission heard the opinions from interested parties, examined similar cases in other countries and conducted surveys. However, the parties failed to reach an agreement, and their discussions came to a halt in February 2002. In November 2005, lawmakers proposed a bill which would allow the establishment of a trade union of professors by extending the application of the Act on the Establishment, Operation, etc., of Trade Unions for Teachers to all university teachers. In April 2007, the Environment and Labour Committee of the National Assembly deliberated on the bill, but no agreement was reached. With the end of the 17th Session of the National Assembly in April 2008, the bill was automatically scrapped.
2. 390. The Government further indicates that, according to 2001–07 surveys, while labour circles and professors’ organizations demanded that professors be allowed to establish a trade union, employers, including the Ministry of Education, took on a cautious attitude and opinion polls showed that opposing opinions prevailed.
3. 391. The Government believes that the various discussions on the establishment of a professors’ trade union mainly carried out at the National Assembly suggest that neither a social agreement nor a public consensus has yet been reached. The prevailing opinion is that a careful approach should be taken in deciding whether to allow professors to establish a trade union given the unique nature of their job and status, and the general perception that professors enjoy a higher social and economic status. The Government is of the view that it would be desirable to carefully review the issue of a professors’ trade union after a social consensus has been reached by narrowing the differences of opinion among interested parties, such as universities, professors, parents and students.

C. The Committee’s conclusions

1. 392. The Committee notes that, in the present case, the complainant organizations allege that the national legislation restricts the right to organize of university professors.
2. 393. The Committee notes from the complainants’ allegations that, while the Teachers’ Union Act (1999) and the Public Officials Trade Union Act (2006) now provide for the right to organize and the right to bargain collectively of public officials and teachers to a limited degree, the national legislation still prohibits more generally the establishment of trade unions by public service personnel (article 66 of the Government Officials Act and article 58 of the Local Officials Act) and by private school teachers (article 55 of the Private Schools Act), and imposes disciplinary action and criminal punishment in this respect (articles 78 and 84 of the Government Officials Act, articles 69 and 82 of the Local Officials Act; article 61 of the Private Schools Act). Thus, since university professors are excluded from the Teachers’ Union Act (article 2), and public education personnel is not covered by the Public Officials’ Trade Union Act (article 6), the right to organize of public and private university professors remains prohibited.
3. 394. The Committee also notes the complainants’ indication that, in November 2001, the KPU was established and the bill of the union’s establishment was submitted to the Government, which refused to recognize the union based on the aforementioned laws. In the complainants’ view, this results in the denial of the right to organize of more than 70,000 Korean professors.
4. 395. Furthermore, the Committee notes from the complainants’ allegations that the National Human Rights Commission recommended on 27 March 2006 that the National Assembly take the appropriate legislative measures to guarantee the three basic labour rights (to organize, strike and bargain collectively) of university professors in accordance with the Constitution and international human rights law, taking into account the right to study of students and the particularity of the official and legal position of university professors. The Committee notes that, according to the complainants, the Government still takes a passive or negative stand in this regard, arguing that it is difficult to treat university professors as general workers due to their working relations, the particularity of their legal and social position and the law sentiment of the people. The Committee notes the complainants’ indication that the National Human Rights Commission concluded that the objections invoked by the Government were not justified, inter alia, because the particularity of work as educators, the academic freedom of university professors, their participation in the management of the university through university autonomy and their political participation could not provide the basis for a total denial of the right to organize.
5. 396. The Committee notes from the Government’s reply that various discussions have been held in the past at national level on a trade union of professors but that so far no agreement has been reached at the National Assembly to extend the application of the Act on the Establishment, Operation, etc., of Trade Unions for Teachers to all university teachers. Noting the Government’s indication that opposing opinions prevailed as shown by the positions of the various stakeholders and opinion polls, the Committee observes that, in the Government’s view, given the general perception that professors enjoy a higher social and economic status and given the unique nature of their job and status, it would be desirable to carefully review the issue of a professors’ trade union after a social consensus has been reached by narrowing the differences of opinion among interested parties, such as universities, professors, parents and students.
6. 397. The Committee wishes to recall that public servants, like all other workers, without distinction whatsoever, have the right to establish and join organizations of their own choosing, without previous authorization, for the promotion and defence of their occupational interests [Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 219]. Thus, university professors are not excluded from the scope of freedom of association principles. On the contrary, all public employees (with the sole possible exception of the armed forces and the police, by virtue of Article 9 of Convention No. 87) should, like workers in the private sector, be able to establish organizations of their own choosing to further and defend the interests of their members [Digest, op. cit., para. 220]. As regards teachers in particular, the Committee has always considered that teachers should have the right to establish and join organizations of their own choosing, without previous authorization, for the promotion and defence of their occupational interests [Digest, op. cit., para. 235].
7. 398. The Committee considers that neither the objections invoked by the Government nor any negative opinion polls should have any effect on the fundamental right to organize which should be guaranteed to all public officials without distinction, including university professors. The Committee underlines that the National Human Rights Commission has itself considered the objections unfounded and made recommendations to remedy the situation.
8. 399. The Committee, noting the above, requests the Government to take all necessary measures within its remit to ensure: (i) that the relevant provisions of the Government Officials Act, the Local Officials Act and the Private Schools Act, which deny the right to organize to university professors in the public and private sector, are abrogated without delay; and (ii) that the exclusions from the right to organize introduced in the Act on the Establishment and Operation of Public Officials’ Trade Unions as well as its Enforcement Decree, and in the Act on the Establishment and Operation of Teachers’ Trade Unions as well as its Enforcement Decree, are revised so as to ensure that university professors in the public and private sector have the right to establish and join organizations of their own choosing so as to defend their interests. The Committee also urges the Government to recognize and register the KPU without delay and requests to be kept informed in this regard.

The Committee's recommendations

1. 400. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee, in line with the recommendation of the National Human Rights Commission, requests the Government to take all necessary measures within its remit to ensure that:
   • (i) the relevant provisions of the Government Officials Act, the Local Officials Act and the Private Schools Act, which deny the right to organize to university professors in the public and private sector, are abrogated without delay; and
   • (ii) that the exclusions from the right to organize introduced in the Act on the Establishment and Operation of Public Officials’ Trade Unions as well as its Enforcement Decree, and in the Act on the Establishment and Operation of Teachers’ Trade Unions as well as its Enforcement Decree, are revised so as to ensure that university professors in the public and private sector have the right to establish and join organizations of their own choosing so as to defend their interests.
   • (b) The Committee also urges the Government to recognize and register the KPU without delay.
   • (c) The Committee requests to be kept informed in this regard.