Allegations: Acts of anti-union discrimination, harassment and employer interference with internal trade union affairs culminating in compelling workers to unilaterally disaffiliate from the industrial union KMWU and change the union structure by establishing a breakaway management-dominated company union, which was validated by the Supreme Court albeit in violation of national law and the internal KMWU statutes
- 250. The complaint is contained in a communication from the International Trade Union Confederation (ITUC), the Korean Confederation of Trade Unions (KCTU) and the Korean Metal Workers’ Union (KMWU) dated 2 September 2016.
- 251. The Government sent its observations in a communication dated 30 May 2017.
- 252. 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
A. The complainants’ allegations- 253. In a communication dated 30 May 2017, the complainant organizations ITUC, KCTU and KMWU allege several serious acts of anti-union discrimination, harassment and employer interference with internal trade union affairs of the KMWU, culminating in compelling workers, on fear of dismissal, to unilaterally disaffiliate from the industrial union KMWU and change the union structure by establishing a breakaway management-dominated company union at Valeo Electrical Systems Korea (hereinafter: the company). In addition to being unlawful under Korean and international law, the establishment of a company union also violated the KMWU’s internal statutes, which do not permit the creation of such structures. Nonetheless, the Korean Supreme Court issued a decision in late 2015 that approved of the establishment of the company union, despite the brazen employer interference and the violation of the KMWU’s internal statutes. Thus, the Government violated the right to freedom of association by failing to sanction acts of anti-union discrimination and interference committed by management against the workers and the KMWU; and through the Supreme Court’s far-reaching opinion, which validated the establishment of a company union despite the obvious employer interference and the violation of the KMWU statutes.
- 254. The complainants indicate that the company, established in 1999 by the homonymous French mother company, is a subsidiary that assembles and supplies automotive electrical systems to the Republic of Korea’s auto sector. In February 2001, in order to increase its collective bargaining power and to better protect the independence of the labour union, the employees changed the structure of the enterprise-level union in the company, which became a unit of the KMWU.
- 255. According to the complainant organizations, in March 2009, the relationship between the local unit and the company deteriorated drastically. After having hired an outside consulting firm to advise it on union-busting, the company submitted in June 2009 demands to the union that would have had the effect of nullifying several key provisions of the then existing collective bargaining agreement (CBA). On 4 February 2010, the company unilaterally decided to outsource its security personnel and reassign the pre-existing security guards to undesirable tasks such as cleaning restrooms. The workers were also subjected to public humiliation by, for example, forcing them to sit silently by themselves in the middle of the hallway without work. The union objected to this as a breach of the CBA and demanded the reinstatement of the security guards to their original posts.
- 256. The complainants state that, on 16 February 2010, the company responded with a lockout of union members and took measures to establish an enterprise union in the company. First, management prohibited union members from entering the union office and hired 400 “thugs” to physically intimidate the union members and to block off all entrances to the plant. The union members were then placed under financial pressure by discontinuing the wages of all (illegally) locked-out workers. Furthermore, the company publicly announced that it would shut down production unless the workers disaffiliated from the KMWU, and the workers started fearing that they would lose their jobs.
- 257. The complainant organizations further allege that, during the lockout, which lasted 99 days (from 17 February to 25 May 2010), the company permitted workers to return to work if they were willing to agree to the company’s demands. The returning workers were nevertheless subjected to harsh anti-union measures, including being detained inside the plant for several days and forced to sleep next to the machinery at night. During their forced detention, the company submitted the workers to high-pressure tactics, including physical harassment and mandatory meetings during which they were coerced to disaffiliate from the KMWU and to form a new, unaffiliated enterprise-level union. Moreover, the returning workers were put through a disciplinary committee, which punished 66 workers with wage cuts, 24 workers with an official reprimand, and 173 workers with warnings. All these disciplinary measures violated the CBA.
- 258. In addition, the complainants denounce that, although the District Court deemed the lockout illegal and issued an injunction, the company continued to prevent union leaders from accessing the union office and from contacting other workers. Following the lockout, those workers who had not capitulated were subjected to more severe punishment. For example, the disciplinary committee decided to fire 37 workers and suspended 16. The company even filed a lawsuit against the union members seeking compensation for costs incurred, such as for hiring the anti-union “thugs”. The lawsuit was eventually dropped, but only after 25 union members agreed to accept unpaid leave for two-and-a-half years.
- 259. In the complainants’ view, the above union-busting tactics enabled the company to gain enough influence over the workers to manipulate the internal union affairs of the local unit. On 19 May and 7 June 2010, the company called for the establishment of a members’ assembly to vote for disaffiliation from the KMWU and to form an independent enterprise union. During the assembly, the company influenced the results by prohibiting union members from attending the meetings. In addition, the company forced the workers to vote by department and threatened that it would outsource or liquidate the department which recorded the lowest approval rate for the new union. Facing certain dismissal, it is no surprise that workers voted for the change of union structure: 517 out of 543 members (95.2 per cent) at the first voting and 536 out of 550 members (97.5 per cent) at the second voting, agreed to form an independent enterprise union, the Valeo Electrical Systems Union (VESU).
- 260. The complainant organizations highlight that the Government at that time worsened the situation of organized labour by, for example, adopting a multiple union system permitting workers to establish more than one labour group within the same company. Although this policy initially raised hopes that it would expand union organization, it became apparent that the Government intended to weaken the bargaining power of the country’s leading industrial unions. Furthermore, the President appeared in a number of press conferences and held the union responsible for causing significant delays in production and creating social chaos.
- 261. The complainants add that the KMWU has internal regulations which are essential to protecting the industrial trade union-based system, and which prohibit the formation of autonomous unions at the plant level. The local unit’s unilateral decision to disaffiliate from the KMWU and establish the VESU inevitably had a negative impact on the KMWU’s solidarity and unity. In order to protect the integrity of the KMWU and maintain its collective strength as an industrial union, the KMWU leaders brought a lawsuit seeking nullification of the VESU’s decision (albeit compelled) to disaffiliate from the KMWU.
- 262. With reference to the relevant decisions, the complainants indicate that: (i) the Seoul District Court (2010) and the Seoul High Court (2012) ruled in favour of the KMWU, holding that the local unit cannot unilaterally disaffiliate from the KMWU; (ii) the High Court affirmed the District Court’s decision that the local unit violated the Trade Union and Labour Relations Adjustment Act (hereinafter: TULRAA) when it unilaterally changed the union structure without the KMWU’s consent; (iii) the High Court further held that the local unit does not have the authority to form an independent union because the branch lacks the independence to mount collective action and has relied on the KMWU for wage negotiations; and (iv) the High Court also noted that the formation of the VESU violates the local unit’s own internal regulations, as the regulations limit the local unit’s autonomy to change the union structure and require compliance with the KMWU’s by-laws, which explicitly state that its branch or local unit does not have any authority to decide on the structural change.
- 263. The Korean Supreme Court reversed the rulings of the lower courts. With reference to the relevant decision, the complainants indicate that, according to the Supreme Court: (i) the High Court’s decision is based on an incorrect assumption that the branch or local unit of industrial unions could change their form of organization only when they could independently engage in a CBA with a company; (ii) the ability of the branch or local unit of an industrial union to independently engage in collective bargaining with a company is not dispositive of the substructure’s independence; and (iii) the branch or local unit may still be considered independent and, thus, be able to exercise its right to change the form of organization, if the unincorporated organization has the characteristics of a workers’ organization by having independent regulations and an executive body and conducting its own activity.
- 264. The complainant organizations indicate that the strong dissent in the Supreme Court decision raised the following valid points: (i) the TULRAA protects labour unions pursuant to the constitutional guarantees of workers’ collective rights, and since labour unions serve as an agent to collectively bargain and petition for unfair labour practices on behalf of individual workers, the Court must consider labour unions’ collective nature when determining the legitimacy of the workers’ decision to change the organizational form; (ii) the TULRAA was originally intended to allow enterprise unions to change their form of organization as branch or local unit in affiliation with industrial unions, and thus the Court must examine this case in ways that honour such legislative intent; (iii) as to the assessment of the local unit’s independence, the local unit’s independent regulations and executive organization alone do not suffice to conclude the union’s independence; the most important characteristic of an independent union is its ability to collectively bargain, and, if the branch or local unit of an industrial union were able to collectively bargain only through the industrial union, the branch or local unit would lack the most notable characteristic of an independent labour union; (iv) without the ability to collectively bargain, a branch or local unit does not have the capacity to be an independent labour organization, and without that kind of independence, the branch or local unit cannot change its form of organization; and (v) a Supreme Court decision recognizing the local unit’s disaffiliation from the KMWU will subject workers across the country to companies’ anti-union measures in the future and will promote the companies’ manipulation of union activities to eventually create yellow unions.
- 265. In the complainants’ view, the Supreme Court’s decision is an open invitation to employers to encourage units of industrial unions to disaffiliate and form enterprise-level unions with little to no power vis-à-vis the employer. Efforts to undermine the position of the trade union, for example through legislation, which requires unions to set up small units instead of consolidating into larger structures, are a violation of freedom of association. The Supreme Court’s decision is an invitation to further fragmentation of the trade union movement, against the policy and statutes of a union which has structured itself for maximum unity. The Supreme Court incorrectly recognized the local unit of the KMWU as an independent organization without regard for the union’s statutes and the local unit’s substantial characteristics amounting to an independent union. The structural change of the union results in fragmentation and, thus, amounts to the change of the union per se. Thus, the Court’s decision will not only undermine the position of the KMWU but also serve as a detrimental precedent for future applications against unions. Despite the precedents emphasizing the workers’ constitutionally guaranteed collective rights, the Supreme Court incorrectly favoured workers’ individual rights to the detriment of workers’ collective rights. This radical departure from precedent and constitutional authority will have serious consequences as it implies that individuals’ constitutional rights can always trump unions’ constitutional rights; moreover, it is likely to encourage the government and employer interference with internal union affairs. This will not only allow the Government to implement anti-union policies but also invite employers to disguise their interference with union organizations, and will weaken the trade union and ultimately the trade union movement as a whole. The Government should be urged to pass legislation reversing the Supreme Court decision to ensure protection of trade unions against interference by employers in internal union affairs.
- 266. The complainants conclude that, in the present case, the Government clearly and repeatedly interfered with the internal affairs of the KMWU and its local unit at the company, both directly and by failing to sanction the company’s conduct, and thereby violated its obligations under Conventions Nos 87 and 98. These violations include the repeated breach of the CBA (including outsourcing of the security work, the illegal lockout, the cessation of pay and the disciplinary/discharge actions against the union’s members), the repeated high-pressure tactics against the workers to form a union independent of the KMWU (including threat of job loss), and infringing the union’s independence and internal governance. In order to prevent the dilution of collective rights, the Constitution and labour laws strengthen the workers’ collective rights to organize and to bargain effectively. The legislature also passed laws to encourage enterprise unions to join industrial unions and to facilitate such process, thereby enhancing the trade unions’ bargaining power. The Supreme Court decision, however, narrowly interpreted the law and, thus, completely disregarded the constitutional guarantee of workers’ collective rights, and thereby may result in legislative changes that favour individual rights to the detriment of collective rights.
B. The Government’s reply
B. The Government’s reply- 267. In a communication received on 30 May 2017, the Government states that it has endeavoured to enhance the fundamental labour rights of workers, respect trade unions and regard them as partners for the advancement of labour relations. According to the Government, part of the substance of this complaint is in contradiction with the facts and, thus, may cause some misunderstandings. The case at issue is whether a local unit of an industrial trade union, if such a local unit corresponds to an independent trade union or workers’ organization, may convert its organizational structure to a company-level trade union through a resolution on structural change, as set forth in section 16(1)8 and (2) of the TULRAA. The validity of the complainants’ arguments must be considered in relation to the Constitution and the TULRAA, and the relevant ILO standards. All citizens shall enjoy freedom of association (article 21 of the Constitution), and workers shall have the right to independent association, collective bargaining, and collective action to enhance working conditions (article 33 of the Constitution). Therefore, organizations or associated organizations of workers formed in a voluntary and collective manner upon the workers’ initiative for the purpose of maintaining and improving working conditions, or improving the economic and social status of the workers, are recognized as trade unions, and workers shall freely organize trade unions (sections 2(4) and 5 of the TULRAA). The intent of the provision above is to respect the workers’ right to organize and to freely choose a form of trade union organization, the autonomy of the trade union, and its democratic operation.
- 268. The Government maintains that, when a local unit of an industrial trade union conducts its own activities as an independent organization having independent regulations and an executive body, and when such an unincorporated association possesses a status equivalent to that of a workers’ organization, then its affiliated union members are capable of deciding on the organizational structure of their trade union in a voluntary manner through a democratic decision-making process. This view may also be observed in the Supreme Court en banc Decision (20i2Da96i20) on this case. The intent of the decision recognizing the capability of the local unit having the status of an independent workers’ organization to autonomously change the organizational structure, is to respect the workers’ right to organize and freely choose to establish trade unions, as much as it values the protection of industrial trade unions. A legislation restricting the conversion of the organizational structure of a local unit of an industrial trade union to a company-level trade union, as contended by the complainant, would force trade unions to maintain specific organizational structures and infringe on the workers’ right to associate freely and decide the organizational structure of their trade union as per the Constitution, the TULRAA, and ILO standards.
- 269. As regards the capability of a local unit of an industrial trade union to convert into a company-level trade union through a resolution on structural change, the Government observes that the complainant claims that local units of industrial trade unions are merely internal branches of industrial trade unions, and therefore do not have the right to bargain collectively and conclude CBAs, which means their independence is not recognized, and they cannot change their organizational structure to a company-level trade union through a resolution on structural change. In this regard, the Supreme Court held that section 16(1)8 and (2) of the TULRAA prescribing the rules on converting organizational structures is applicable to trade unions established pursuant to the TULRAA, that is, inapplicable to a mere internal organization or entity within a trade union. However, in cases where the branch of an industrial trade union is recognized as an independent workers’ organization similar to a company-level trade union on the grounds of its substance as an unincorporated association having independent regulations and an executive body, and is capable of independently conducting collective bargaining or reaching collective agreements, thereby possessing the substance tantamount to a trade union constituted on a company level, such a local unit is de facto similar to a company-level trade union, and the entity may make a structural change to convert into a company-level trade union through a decision-making process of its union members consistent with the requirements for resolution, as set forth under section 16(1)8 and (2) of the TULRAA. In other words, the Supreme Court decided that in cases where a local unit has the substance of an unincorporated association rather than a corporate personality, whereby its independence as a workers’ organization is recognized, the union branch is capable of independent decision-making on its prerogatives apart from the industrial union, and inasmuch as it has decision-making power, the local unit may choose to change its purpose and organizational structure by means of an independent and democratic process through a general assembly consisting of its affiliated workers.
- 270. The Government deems the Supreme Court decision to be in line with the spirit of the Constitution, the TULRAA, and the ILO ensuring the workers’ freedom of association and decisions on a trade union’s structure and its establishment. Additionally, the decision recognizing the capability of converting its organizational structure is not an attempt to intentionally weaken industrial trade unions’ bargaining power but to respect the workers’ right to organize and their freedom to choose union structures as much as it values protection of industrial trade unions. The Government believes that it will be difficult for union branches, being internal organs of industrial trade unions, to become the agent of structural conversion; however, in this case, the union chapter was originally a company-level trade union, which was later incorporated into the KMWU and continued to engage in activities through its internal organs such as its general assembly and union branch head. In light of the developments surrounding its establishment, the content of its charter and by-laws, its actual management and operation, and the nature of its specific activities, this union branch was deemed to be independent, having the substance of an unincorporated association as a workers’ organization similar to a company-level trade union, which enables it to transform itself into a company-level trade union apart from an industrial trade union, and decide to terminate its status as a local unit voluntarily and convert its organizational structure into a company-level trade union through a democratic process of resolution according to section 16(2) of the TULRAA, which allows structural change with the attendance of a majority of all union members and a concurrent vote of two-thirds majority of the members present (the participation rate of members for resolution on structural change was 91.5 per cent, and the approval rate was 97.5 per cent).
- 271. In the Government’s view, prohibiting workers from changing the organizational structure by themselves contradicts the spirit of the Constitution, the TULRAA, and the ILO. Conclusively, it would be unreasonable to argue that union branches of an industrial trade union are merely internal organs of an industrial trade union, and therefore cannot convert into a company-level trade union through a resolution on structural change and that the decision recognizing structural conversion is an attempt to divide industrial trade unions and weaken bargaining power. The Government fully respects the organizational and operational principles of industrial trade unions and maintains that, in principle, a resolution on structural change is not permissible if a local unit of an industrial trade union is merely an internal organ of an industrial trade union. However, as for this case, when the entity has the substance of an unincorporated association and its independence is recognized, a structural change is permissible through a democratic decision-making process. In conclusion, the Government does not intend to generally permit the resolution on structural change by treating organizations extensively as unincorporated associations without clearly examining the substance of a union branch of industrial trade unions, but to prudently determine whether the entity has the substance of an independent trade union or a workers’ organization similar to a trade union.
- 272. As regards the allegation that the Government has clearly and repeatedly interfered with the internal union affairs of the KMWU and its union chapter at the company by not imposing any sanctions against the activities of management to form an independent union, the Government contests this allegation arguing that it has been engaging in active measures to protect trade unions from management’s unfair intervention of internal union affairs and has been actively addressing discriminatory practices by taking the following measures: (i) as to investigation into unfair labour practices, on 23 October 2012, the KMWU argued that management had coaxed the local unit into withdrawing from the industrial union, thus trying to weaken the union. To investigate the alleged unfair labour practice, the Government conducted searches and seizures at the company on 9 November 2012 and 29 April 2013, and referred the case to the prosecutors’ office for an “indictment on part of the allegation” on 26 July 2013, which is pending in court (Gyeongju Branch of Daegu District Court) since May 2017; (ii) as to the consulting firm, which provided labour consulting services for the company, the Government took administrative action against the firm for violating the Certified Public Labour Attorney Act, by cancelling its labour law firm certification and public labour attorney registration for the unfair labour practice case pending in court (Seoul Southern District Court) since May 2017; (iii) as to guidance provided to address labour relations issues, the Government called on management to comply with the decisions of the Labour Relations Commission regarding the issues of differential rates of performance-based pay, cut-off of power and water supplies, and blocking access to the union office for union members, and on the workforce to refrain from entering the workplace without due notice, excessive broadcast advertising and slandering of the CEO (on-site guidance: 23 times (1 January 2014–31 December 2015)); (iv) as to arrangements for labour–management bargaining, on 27 March 2014, the head of the Pohang Employment and Labour Office, a district branch of the Ministry of Employment and Labour, met face-to-face with the representatives of labour and management, calling for their talks, made efforts to arrange a meeting between the Gyeongju branch of the KMWU and the CEO of the company from April to June 2014, and called for labour–management bargaining through the Gyeongju Committee of Labour, Management, Civic Groups and Government from May to June 2014.
- 273. In conclusion, the Government feels that the complainants’ call for adoption of a law reversing the Supreme Court ruling to guarantee the protection of trade unions from employer interference with a union’s internal affairs, amounts to a call for the introduction of a law that restricts industry-level unions’ branches from changing their organization structures into company-level unions. Such a law cannot be accepted as it would force workers into a particular structure of organization and thus infringe on the workers’ right to organize themselves autonomously and choose the organization structures of unions under the Constitution, the TULRAA, and ILO standards. Recalling that these standards and enshrined rights were designed to respect workers’ rights to organize themselves autonomously and choose the structures of union organizations, the Government believes that a law that limits the freedom of choosing the organization structure of a union is unacceptable.
- 274. Furthermore, the Government forwards the information submitted by the Korea Employers’ Federation (KEF). According to the KEF, the complainants’ demand to pass legislation reversing the Supreme Court’s ruling denies the judicial system of the Republic of Korea, is far from the truth, and violates the workers’ right to organize as stipulated and protected by the Constitution of the Republic of Korea and the ILO. The Supreme Court decision of 19 February 2016 is a final ruling by the highest court in the Republic of Korea. The proceedings of this case were broadcast live all over the country, which means that it was open to the public, and the Supreme Court delivered its judgment after going through a prudent process with much deliberation and hearings. The KMWU can criticize it, but it is not appropriate to conclude that the Supreme Court decision is wrong and demand the Government to pass legislation reversing it.
- 275. As to the allegation that the company called for the establishment of a members’ assembly to vote for disaffiliation from the KMWU and to form an independent enterprise union on 19 May and 7 June 2010, and that the company forced the workers to vote by department, the KEF indicates that the judiciary has not acknowledged this argument throughout the trials including the Supreme Court. In the KEF’s view, this is an ungrounded opinion of the KMWU given that the Supreme Court endorsed the structural change to reconvert the local unit into the VESU through a series of general assembly meetings to pass resolutions.
- 276. With regard to the allegation that the lockout was deemed illegal and an injunction issued, while the company continued to prevent union leaders from accessing the union, the KEF contests this allegation indicating that the Daegu District Court (Gyeongju Branch) ruled the lockout legal, but to be suspended after three months (2010Kahap58, 19 May 2010), which means that a lockout for a certain period of time (less than three months) is lawful. Also, the Daegu High Court ruled that a lockout of a duration of three months is lawful for the first two months, with the third month being unlawful (Daegu High Court, 2016Nal 190).
- 277. As to the argument that the Supreme Court incorrectly favoured workers’ individual rights to the detriment of workers’ collective rights, the KEF highlights that individual rights do not always have to yield to collective rights, and that changes in workers’ collective rights as a result of securing workers’ individual rights do not mean that the former are damaged. The Supreme Court ruled that “even a subdivision, etc. of an industrial trade union may change its affiliation and convert into an independent company-level trade union through an independent, democratic process by means of a resolution on a structural change by its general assembly, as set forth under section 16(1)8 and (2) of the TULRAA, in cases where it constitutes an independent trade union notwithstanding its appearance, or an unincorporated association functioning as an independent labour organization similar to a trade union”; and that “the statutory construction of section 16(1)8 and (2) of the TULRAA reflecting the entity’s substance as a trade union or an unincorporated association is consistent with the spirit of the Constitution and the Act guaranteeing workers freedom of association and freedom to establish trade unions”.
C. The Committee’s conclusions
C. The Committee’s conclusions- 278. The Committee notes that, in the present case, the complainant organizations allege several serious acts of anti-union discrimination, harassment and employer interference with internal trade union affairs of the KMWU, culminating in compelling workers, on fear of dismissal, to unilaterally disaffiliate from the industrial union KMWU and change the union structure by establishing a breakaway management-dominated company union, which was validated by the Supreme Court albeit in violation of national law and the internal KMWU statutes.
- 279. The Committee observes the divergence of views regarding the general question as to whether the local unit of an industrial trade union at the company level, may unilaterally disaffiliate from the industrial union and convert its organizational structure to an autonomous enterprise-level trade union. On the one hand, the complainants endorse the position of the lower courts and believe that such action should not be possible under national law and that, moreover, in the present case, the action violated the KMWU’s internal statutes, and the entity lacked the independence to mount collective action and engage autonomously in collective bargaining, which might have been an argument in favour of enabling it to independently change its structure. On the other hand, the Government and the KEF endorse the position of the Supreme Court and affirm that the local plant-level entity of an industrial union should be able to exercise its right to change the form of organization, if it has the characteristics of a workers’ organization by having independent regulations and an executive body and conducting its own activity.
- 280. In this regard, the Committee generally observes that the free exercise of the right to establish and join unions implies the free determination of the structure and composition of unions, and that workers should be free to decide whether they prefer to establish, at the primary level, a works union or another form of basic organization, such as an industrial or craft union. The Committee further recalls that systems of collective bargaining with exclusive rights for the most representative trade union and those where it is possible for a number of collective agreements to be concluded by a number of trade unions within a company are both compatible with the principles of freedom of association [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 333, 334 and 950]. The Committee also notes the complainants’ argument that the local unit as such did not have an independent status so as to enable it as an entity to make autonomous decisions of withdrawal and change of organizational status. The Committee observes that the right to join an organization of one’s own choosing could indeed still be assured in such a scenario through the resignation of individual workers who might ultimately choose to set up an enterprise union. In the present case, the Committee has insufficient information at its disposal in relation to the KMWU by-laws governing the creation of local units, their status in national law, the manner in which the local KMWU unit at the company converted into an enterprise union and whether it was in conformity with the organization’s by-laws, and the impact that this had on the free exercise of freedom of association by the workers, especially in light of the other allegations in this case.
- 281. In this respect, the Committee cannot ignore the numerous allegations of anti-union discrimination, harassment and employer interference in internal trade union affairs and expresses deep concern at their seriousness. In particular, the Committee observes the following alleged acts on the side of the company: (i) in the framework of the lockout from 17 February to 25 May 2010 undertaken in response to the union’s objection to a claimed CBA breach by the company, prohibition of union members from entering the union office and hiring of 400 “thugs” to physically intimidate the union members and to block off all entrances to the plant; public announcement that production would be shut down unless the workers disaffiliated from the KMWU (threat of job loss); permission of workers to return to work on condition of agreement to the company’s demands; anti-union measures against returning workers, such as forced detention inside the plant for several days during which time they were submitted to high-pressure tactics, including physical harassment and mandatory meetings, aimed at coercing them to disaffiliate from the KMWU and form an enterprise-level union; and disciplinary measures (66 wage cuts, 24 official reprimands and 173 warnings); although the lockout was deemed illegal, continued denial of union leaders to access the union office or to contact workers and financial pressure on union members; severe sanctions after the lockout, such as disciplinary measures against those workers who had not capitulated (37 dismissals and 16 suspensions) and a lawsuit against the union members seeking compensation for costs incurred, such as for hiring the “thugs”; and (ii) in the context of the members’ assembly, the company call on 19 May (still during the lockout) and 7 June 2010 for the establishment of a members’ assembly to vote for disaffiliation from the KMWU and to form an “independent” enterprise union; prohibition of union members from attending the meetings; and forcing workers to vote by department while threatening that the department which recorded the lowest approval rate for the new union would be outsourced or liquidated.
- 282. In this regard, the Committee wishes to recall that acts of harassment and intimidation carried out against workers by reason of trade union membership or legitimate trade union activities, while not necessarily prejudicing workers in their employment, may discourage them from joining organizations of their own choosing, thereby violating their right to organize [see Digest, op. cit., para. 786]. Moreover, the Committee emphasizes that acts which are designed to promote the establishment of workers’ organizations under the domination of employers or employers’ organizations, shall be deemed to constitute acts of interference. The Committee has had occasions to examine examples of such interference and recalls that respect for the principles of freedom of association requires that the public authorities exercise great restraint in relation to intervention in the internal affairs of trade unions. It is even more important that employers exercise restraint in this regard. They should not, for example, do anything which might seem to favour one group within a union at the expense of another [see Digest, op. cit., para. 859]. Also, as regards allegations of anti-union tactics in the form of bribes offered to union members to encourage their withdrawal from the union and the presentation of statements of resignation to the workers, as well as the alleged efforts made to create puppet unions, the Committee considers such acts to be contrary to the principles of freedom of association and the right of workers’ and employers’ organizations to enjoy adequate protection against any acts of interference by each other or each other’s agents in their establishment, functioning or administration.
- 283. In the present case, the Committee considers that it is inherent to the freedom of choice of trade union structure that the determination by the workers of the trade union structure deemed most appropriate for safeguarding their occupational interests, is made freely, voluntarily and via an independent, democratic process. The Committee is of the view that the acts allegedly undertaken by the company in the run-up to and during the vote would, if found to be true, amount to pressure, intimidation and coercion, which are irreconcilable with the free exercise of the right of workers to establish a trade union of their own choosing. The Committee further observes that: (i) despite differing information, the complainants and the KEF concur that, as far as the third month and beyond is concerned, the lockout was deemed illegal by the courts; (ii) the results of the Government investigation into the unfair labour practice alleged by the KMWU (management coaxed the local unit into withdrawing from the industrial unit so as to weaken the trade union), sufficed for the case to be referred to the prosecutors’ office in July 2013, and the case is pending in the Daegu District Court (Gyeongju Branch) since May 2017; and (iii) the Government took administrative action against the consulting firm, which allegedly provided union-busting advice to the company, by cancelling its labour law firm certification and public labour attorney registration; and the related unfair labour practice case is pending in the Seoul Southern District Court since May 2017. While noting the KEF’s view that the judiciary did not acknowledge the allegation of employer interference through calling for the establishment of the members’ assembly and forcing workers to vote by department, the Committee observes that no information has been provided on the extent to which the Supreme Court, when deciding on the appeal lodged against the disaffiliation from the KMWU and the creation of the VESU, has given due consideration and inquired into each of the multiple allegations referred to above, taking into account the results of the related Government investigation conducted at the company in November 2012 and April 2013 as well as the administrative sanctions imposed against the consulting firm. Considering that the above allegations of anti-union discrimination, harassment and employer interference are intrinsically linked to the validity of the decision to disaffiliate from the KMWU and create the VESU, an independent company trade union, the Committee requests the Government to report in detail on the scope and the results of the investigation carried out in 2012 and 2013 and any imposed sanctions, to provide information on the outcome of the pending judicial proceedings concerning the unfair labour practices allegedly committed by the company and the consulting firm, and to ensure that these allegations, to the extent that they have not otherwise been investigated and given final resolution, will be the subject of a thorough inquiry and, if proven, provided with adequate redress. The Committee requests to be kept informed of any further developments of relevance to the case.
- 284. Lastly, the Committee regrets that the Government does not reply to the allegation that it directly interfered with the internal affairs of the KMWU and its local unit at the company by making official statements in public against the KMWU. In this regard, the Committee recalls that, on more than one occasion, it has examined cases in which allegations were made that the public authorities had, by their attitude, favoured or discriminated against one or more trade union organizations, for instance through pressure exerted on workers by means of public statements made by the authorities. Discrimination by such methods, or by others, may be an informal way of influencing the trade union membership of workers. The Committee recalls that “the right of organizations to carry out their activities freely and to formulate their programmes requires the public authorities to refrain from commenting on or intervening in the workings of these organizations, which is in the interests of the normal development of the trade union movement and harmonious professional relations” (see also 370th Report, Case No. 2994 (Tunisia), para. 736) and requests to ensure respect for this principle.
The Committee’s recommendations
The Committee’s recommendations- 285. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
- (a) Considering that the allegations of anti-union discrimination, harassment and employer interference are intrinsically linked to the validity of the decision to disaffiliate from the KMWU and create the VESU, an independent company trade union, the Committee requests the Government to report in detail on the scope and results of the Government investigation and any sanctions imposed, to provide information on the outcome of the abovementioned judicial proceedings concerning the unfair labour practices allegedly committed by the company and the consulting firm, and to ensure that these allegations, to the extent that they have not otherwise been investigated and given final resolution, will be the subject of a thorough inquiry and, if proven, provided with adequate redress. The Committee requests to be kept informed of any further developments of relevance to the case.
- (b) The Committee requests the Government to ensure respect for the principle that organizations shall have the right to carry out their activities freely and to formulate their programmes. In this regard, it further requests the Government to ensure that public authorities refrain from commenting on or intervening in the workings of these organizations.
