Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 386, Junio 2018

Caso núm. 3237 (República de Corea) - Fecha de presentación de la queja:: 01-NOV-16 - Casos en seguimiento cerrados por falta de información de parte de la organización querellante o del Gobierno al término de dieciocho meses contados desde la fecha del último examen de los casos

Allegations: Unilateral imposition of changes to public sector pay structures, failure to consult with the social partners during the preparation and application of instruments governing terms and conditions of employment, restrictions on free and voluntary collective bargaining and on the right to strike, arrests and imprisonment of trade union officers and members, disciplinary actions against trade unionists, and provisional seizure of trade union assets

1. 160. The complaint is contained in a joint communication dated 1 November 2016 submitted by the Korean Confederation of Trade Unions (KCTU), the Korean Public Service Transport Workers’ Union (KPTU), the International Transport Workers’ Federation (ITF) and Public Services International (PSI).
2. 161. The Government sent its observations in a communication dated 5 February 2018.
3. 162. 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. The complainants’ allegations

1. 163. In their communication dated 1 November 2016, the KCTU, KPTU, ITF and PSI allege violations of trade union rights and, in particular, unilateral imposition of changes to public sector pay structures, failure to consult with the social partners during the preparation and application of instruments governing terms and conditions of employment, restrictions on free and voluntary collective bargaining and on the right to strike, arrests and imprisonment of trade union officers and members, disciplinary actions against trade unionists, and provisional seizure of trade union assets. The complainants refer to the following government initiatives or actions: introduction of the performance-based pay system; response to a strike in the rail sector; and response to the road haulage strike. The complainants consider that their complaint must be examined in the light of the alleged increasing use of arbitrary detention and judicial harassment against trade unionists in the Republic of Korea for organizing and participating in public rallies. It refers in this respect to the case of Cho Sung-deok, the KPTU Vice-President, who is serving a two-year sentence for the alleged offences related to the obstruction of public duty, injury to public officials, destruction of public goods, and obstruction of traffic, as well as to the observations made by the Special Rapporteur on the rights to freedom of peaceful assembly and of association following his visit to the country in 2016.

Introduction of the performance-based pay system

1. 164. The complainants explain that on 28 January 2016, the Government proposed performance incentives in public service, including a performance-based pay system. Following the announcement, the Government introduced a system of penalties and rewards to put pressure on public institutions, including state-owned enterprises, to implement the new system. The Government, which controls expenditure at all public institutions, had promised incentive bonuses in 2017 for those institutions that would introduce the system in early 2016 (the earlier the implementation, the higher the bonus) and announced that it would freeze wages at all institutions that had not introduced the new pay system by the end of the year. In addition, the failure to implement the system would lead to a lower score in the annual management evaluations for public institutions. According to the complainants, since the announcement was made, trade unions and experts have been raising concerns about the system’s discriminatory nature and potential impact on the safe and effective provision of quality services by the public institutions. Because the new pay system directly impacts on wages and working practices, the KPTU affiliates have repeatedly sought to discuss the system during collective bargaining with their respective public sector employers. The complainants point out that section 94 of the Korean Labour Standards Act (KLSA) requires employers to secure agreement from 50 per cent of employees, or from a representative union which represents at least 50 per cent of employees, before changing workplace regulations, including wage systems, work time and working conditions in a way that is disadvantageous to employees.
2. 165. The complainants allege that despite the public sector employers’ obligations under the applicable collective agreements and the KLSA, under severe pressure from the Government, state-owned enterprises and other public institutions have sought to introduce the new pay system unilaterally or through coercive measures. In some cases, public institutions have passed resolutions on the introduction of the new system through their boards of directors despite continued opposition by employees. In other cases, union representatives have been forced into consenting to the system through physical and/or psychological pressure tactics.
3. 166. The complainants consider that the unilateral imposition of the performance-based pay system is an attack on the autonomy of the bargaining partners. They further consider that in addition to being a violation of the requirement to conduct good faith bargaining, the lack of consultation on pay structures amounts to a breach of freedom of association in general.

Response to a strike in the rail sector

1. 167. The complainants indicate that in response to the unilateral imposition of the new pay system, on 27 September 2016, the KPTU, together with its 16 affiliated unions representing workers at state-owned enterprises, began an industrial action. The complainants explain that the Supreme Court of the Republic of Korea has in several rulings considered that the demands made in a strike must be related to the improvement of working conditions and be subject of collective bargaining; at the same time, managerial policy subject to managerial decision, such as layoffs or structural adjustment, cannot be subject to collective bargaining and therefore cannot be a legitimate purpose of a strike. The KPTU had therefore made it clear that its affiliates were formally striking in relation to collective bargaining with their respective public sector employers concerning the introduction of a new system and the change in the wage structure (together with other collective bargaining issues), an issue that should not be considered to be managerial policy outside the scope of collective bargaining. The complainants point out that all KPTU affiliates participating in the strike respected minimum services requirement.
2. 168. The complainants allege that the Korea Railroad Corporation (“Corporation”) had unilaterally suspended collective bargaining in relation to the performance-based pay system with the Korean Railway Workers’ Union (KRWU) and introduced the new pay system by way of a Board resolution on 30 May 2016, without the consent of the union. The union responded by declaring the breakdown of collective bargaining and sought arbitration. Following the failure to reach an agreement, the KRWU commenced an industrial action on 27 September 2016 implementing all relevant requirements for it to be legal, including by maintaining minimum services.
3. 169. The complainants allege that within 24 hours of the beginning of the strike, the Ministries of Employment and Labour and Transport declared the strike illegal purportedly because the failed negotiations on the new pay system amounted to a “managerial policy” matter falling outside the scope of collective bargaining. The Government claimed that unlike other KPTU affiliates, the KRWU was not seeking to negotiate a collective agreement, but was only concerned with the pay system.
4. 170. The complainants allege in response, that the following measures against the KRWU and its officials and members have been taken by the Government, the Corporation and the police:
   • – 19 officers (President, General Secretary, Organizing Secretary, Bargaining Secretary, five Regional Division Presidents and ten Chairs of Branch Dispute Committees) were charged with “obstruction of business” under section 314 of the Penal Code;
   • – 224 members were suspended from work;
   • – 182 members were summoned by the Corporation audit department on disciplinary grounds;
   • – the Corporation filed a 14.3 billion South Korean Won (KRW) (US$12.5 million) damages lawsuit against the KRWU and applied for a provisional seizure of KRWU assets worth KRW15.5 billion ($13.5 million);
   • – the Corporation used over 5,400 replacement workers including administrative workers, employees of its subsidiaries and subcontractors, temporary workers and interns. Over 450 train drivers and conductors have been brought in from the army special forces which led to an increase of incidents and accidents. Between 1 January and 23 October 2016, 19 per cent (43) out of a total of 232 accidents occurred between 27 September and 23 October 2016; and
   • – the Corporation sent return-to-work orders, suspension notices and SMS messages to striking workers threatening them with dismissal.
5. 171. The complainants consider that official declarations made by the Government regarding the illegality of strikes created a climate of insecurity and fear which affected the free exercise of trade union rights and hampered the due process of law which constitutes a fundamental element of freedom of association. The complainants point out in this respect that the domestic courts have ruled on several occasions against the misuse of charges of “obstruction of business” to penalize strike actions. The complainants stress that combined with the fines prescribed for under the “obstruction of business” provision, the lawsuit against the KRWU not only poses a severe financial threat to the very existence of the union, it also has an intimidating effect and inhibits legitimate trade union activities.

Response to the road haulage strike

1. 172. By way of background the complainants explain that most truck drivers in the Republic of Korea work under a form of disguised employment. They purchase their own trucks, but are in fact in a highly dependent contractual relationship with transport companies and clients (cargo owners) who contract with the transport companies. They are designated as “specially employed” and as such are not recognized as workers with rights to association, collective bargaining or collective action that are guaranteed by the Constitution.
2. 173. The complainants allege that on 10 October 2016, the KPTU-Cargo Truckers’ Solidarity Division (TruckSol) began a national strike in relation to the Government’s Plan for Development of Trucking Transport Industry, which involves market deregulation measures. In addition to demanding a halt to this policy, TruckSol has specifically demanded the introduction of standard rates, abolition of the ji-ib system and full trade union rights. The strike ended on 19 October 2016 following an announcement by the Government of compromise measures.
3. 174. The complainants indicate that the Government carried out consultations with the industry stakeholders before announcing its plan on 30 August 2016. TruckSol participated in these consultations and expressed objections to the plan as well as its opinion that the Government should keep its past promises dating back from 2008 regarding the introduction of standard rates and other improvements. On 23 August 2016, before the formal announcement of the plan was made, the Government held an Experts Forum to discuss the plan. TruckSol clearly stated its objections and intention to oppose the plan at that time.
4. 175. In October 2016, before the strike began, the Government announced the following measures in response to the upcoming strike:
   • – exemption from tolls payments for truck drivers not participating in the “collective refusal of transport”;
   • – relaxation of overloading enforcement;
   • – suspension of fuel subsidies for drivers who participated in “collective refusal of transport”, suspension or cancellation of drivers licences for workers who participated in illegal actions such as “blocking traffic” or “interfering with transport”; and
   • – criminal and civil charges against unionists for “the results of illegal collective action”.
5. 176. The complainants consider that these measures are excessive even in terms of the Korean law. They point out in this regard that the suspension of fuel subsidies to owner drivers for not engaging in transport activities was found by the Supreme Court to be inconsistent with section 43.2 of Trucking Transport Business Act in August 2016. The suspension or cancellation of drivers’ licences for simply interfering with traffic or transport activities is also inconsistent with section 92.1 of the Road Traffic Act, which stipulates grounds for licence suspension or cancellation. On 18 October 2016, the KPTU pressed charges against the Minister concerning the illegality of these actions on the grounds above. Nevertheless, as of 21 October 2016, the Ministry of Land Infrastructure and Transport had announced measures to suspend fuel subsidies against 18 TruckSol members. As of the date of the complaint, 13 TruckSol members had received notices that their fuel subsidies would be suspended.
6. 177. Following the Minister’s announcement concerning the relaxation of overloading enforcement on 3 October 2016, the Mayor of Busan had also announced that he would suspend roadside enforcement during the strike. The Government had also secured and used 800 vehicles, including 100 military container transport vehicles as substitute transport at the port of Busan, the Uiwang Inland Container Depot (ICD) and other main hubs. Since the beginning of the strike, thousands of police officers were stationed at the ICD, Busan New Port and North Port. On 11 October 2016, a police helicopter flew over the protesting drivers blaring warnings that they had left the legal protest area. On several occasions police forcibly prevented striking drivers from handing out leaflets to other drivers or used the pretext that drivers had crossed a police line, or were outside of the legal protest area, to forcibly supress the protests. On some occasions, the police blared warnings at the drivers when they sat down to rest for a few minutes during a march in a previously notified (permitted) protest area.
7. 178. The situation led to clashes in which workers and some police officers were injured. In all, 15 workers were injured of whom three had to be hospitalized due, according to the complainants, to clashes encouraged by the disproportionate use of police force. The police also arrested drivers for suspected crimes such as blocking traffic, obstruction of public business, and violations of the Act on Protest and Assembly. By the end of the strike, 89 drivers (union members and officers) had been arrested. Of these, 87 were released within days of arrest. The police applied for detention warrants for eight individuals arrested during the strike. All of these warrants, except for the one involving TruckSol President Park Wonho, were rejected by a judge for lack of sufficient grounds. The arrest warrant for President Park was accepted on 21 October 2016 and he is being detained at the Busan Detention Centre.
8. 179. The complainants believe that the disproportionate response by the Government to the TruckSol strike stems partly from its failure to implement the Committee’s recommendations in Case No. 2602 [see 363rd Report, March 2012, para. 467] regarding measures to guarantee fundamental labour rights for owner truck drivers who continue to be denied full legal rights to association, collective bargaining and industrial action.

B. The Government’s reply

1. 180. In its communication dated 5 February 2018 the Government replies to the allegations raised in this case and emphasises the new administration’s efforts to promote the fundamental rights of workers.
2. 181. Regarding the performance-based pay system in the public sector, the Government explains that to enhance productivity and efficiency of public institutions, on 28 January 2016 it issued a recommendation for a performance-based wage system in public institutions. To promote the introduction of the system, incentives and penalties were put in place. Following the recommendation, 120 public institutions and quasi-government organizations introduced the new system as of June 2016. However, some institutions did so without an agreement with employees, which caused conflicts, including legal disputes. Strikes broke out in several public institutions in September 2016.
3. 182. The new Government, which took office in May 2017, devised the following measures to expeditiously resolve conflicts occurred in the process of expanding the new system: (1) it removed the deadline for the introduction of the performance-based pay system, allowing each institution to freely decide how and when to implement the system; (2) abolished penalties, such as freezing total labour costs budget in case of a failure to adopt the new pay system within the time frame set in the guideline; and (3) deleted from the assessment index of the public institutions the introduction of the performance pay system. Public institutions which were experiencing conflicts were enabled to revise the rules related to the new pay system and return to the original remuneration system by a decision of the board of directors. Those that have adopted the performance-based pay system by a collective agreement could freely decide whether to keep or change the system.
4. 183. Regarding the KRWU strike, the Government explains that the Corporation decided to introduce the new system through a decision made by the board of directors in May 2016. In strong opposition to this, the KRWU went on strike on 27 September 2016, calling for a withdrawal of the revised remuneration provisions. The union filed a lawsuit seeking to invalidate the revised remuneration provisions in November 2016. However, following the announcement of the above Government’s measures in June 2017, the KRWU and the Corporation reached an agreement to settle their dispute over the pay system in an amicable manner on 5 November 2017. As a result, the management withdrew the revised remuneration provisions, while the KRWU dropped the lawsuit on 26 November 2017. Accordingly, the issue related to the performance-based pay system raised by the complainants has been addressed.
5. 184. The Government points out that as regards strikes, the Supreme Court concluded that such actions should aim at concluding a collective agreement on working conditions and that any legal dispute regarding interpretation and application of the rights of workers prescribed by laws, collective agreements and employment rules cannot be the subject of strikes. In conformity with this interpretation, in the Government’s view, the dispute in question was related to the interpretation and application of workers’ rights that have already been established and thus cannot be a justifiable subject of strike actions. The case as to whether or not the strike was legitimate is currently pending before the court. The incumbent Government agrees with the argument of the complainants that the Government should not restrict unions’ rights to strike based on its prejudgment that the strike is illegal. The Government indicates that it will take a cautious approach in making judgments on strikes and put more efforts into providing support to prevent and resolve conflicts.
6. 185. As to the complainants’ argument about the “obstruction of business” charges and claims for damages filed against the strike participants, the Government indicates that the Trade Union and Labour Relations Adjustment Act (TULRAA) protects all legitimate industrial actions. Thus, even if employers suffer damages, the union is not civilly and criminally liable as long as the industrial action is legitimate. This is not the case if an industrial action is illegitimate. The Government points out, however, that even in cases of illegitimate strikes merely involving refusals to work, without any acts of violence or destruction, the participants cannot be charged with the “obstruction of business”. This has been the position of the Supreme Court since its 17 March 2011 ruling. Following the Supreme Court’s position, the prosecution withdrew indictments against 95 unionists who were being tried for obstruction of business during KRWU strikes in 2013 and 2014. Furthermore, the Corporation, which accused 41 union officers of “obstruction of business” involved in the strikes of October 2016, dropped all accusations in October 2017 after taking judicial authority’s opinions into account. Thus, the union officers who led the strikes will not be punished for “obstruction of business”. The Labour Relations Commission accepted the applications from workers who were removed from their positions (270 people) and faced disciplinary action (376 people) for participating in the 2016 strike. On the basis of the Commission’s decision, these workers were reinstated without loss of benefits and the disciplinary actions were remedied. The management of the Corporation is now waiting for the court’s decision on the legitimacy of the strike.
7. 186. Regarding the claims for damages, the Government indicates that the KRWU 2016 strike, which lasted 74 days, caused a loss of KRW109.2 billion ($102 million), but only part of it (KRW40.3 billion, or $37.5 million) was claimed by the Corporation against the President of the KRWU. As indicated, this case is pending in court. Regarding the alleged seizure of the KRWU assets (KRW15.5 billion, or $14.4 million), the Government indicates that this was a result of the 2009 and 2013 strikes, which were found to be illegitimate by a court ruling. This has nothing to do with the 2016 strike, which is the subject matter of this complaint.
8. 187. Considering the issue being raised about the potential threat put on workers’ return livelihoods by civil and criminal liabilities for industrial actions interpreted as illegitimate, the Government plans to hold discussions and go through in-depth reviews on how to better protect legitimate industrial actions. If required, it will review the system with a view to improving it. Moreover, the Government plans to impose criminal punishment on employers who treat employees unfairly (e.g. dismissals) and provide administrative remedies for the employees facing unfair treatments. Anyone found to have violated the laws regarding the disciplinary measures against the KRWU unionists will be strictly punished when the pending court case is finalized.
9. 188. With regard to the return-to-duty orders issued during the strike, it has been found that the Corporation saw the strike as unjustifiable in terms of its purpose and issued a written order to the strike participants asking them to return to work immediately and not to cause any inconvenience to the general public. The Government adds that the KRWU accused the management of unfair labour practices, reporting it to the employment and labour office on 3 November 2016, but the prosecution decided not to indict the management because the union’s accusation lacked sufficient evidence.
10. 189. Regarding the use of replacement workers during the strike, the Government indicates that the TULRAA prohibits the use of replacement workers for duties suspended due to strikes but permits the use of replacement workers, subject to the limit of 50 per cent of the workforce, for businesses which, if suspended or shut down, are likely to seriously endanger the daily lives of people or seriously undermine the national economy and involve duties that are hard to replace (essential public services). The Government is of the view that it is justifiable to permit the use of replacement workers to the limit of 50 per cent, for the rail transport industry. The Government further indicates that according to the statistics provided by the Corporation, from 1 January to 31 December 2016, the total number of accidents was 304. Among them, a total of 74 accidents (24.3 per cent) took place during the 74 days of the strike period (27 September–9 December), and this is about 12 accidents less than the average over the same period in the past three years. It has been found that fewer railway accidents and service interruptions occurred during the 2016 strike. According to the Corporation, most replacement workers hired during strikes have railway work experience or related qualifications and received thorough prior education.
11. 190. Regarding the case involving TruckSol, the Government explains that the TULRAA applies only to employees. Those in special employment arrangements, including owner drivers of heavy goods vehicles (those whose trucks are registered under the name of a transport company, but owned by drivers), have the characteristics of self-employed and employees at the same time, making it difficult to consider them all to be employees. The court decides on their exact status on a case-by-case basis. While the number of those in a special employment arrangement continues to grow, they face poor working conditions with little legal protection for basic labour rights. To address this, the Government has set “guaranteeing basic labour rights for those in special employment arrangement” as one of its policy priorities and plans to establish and implement specific protective measures after broad discussions with the tripartite partners and experts.
12. 191. Following consultations with the experts and industry stakeholders, on 30 August 2016, the Government announced a Plan for the Development of the Trucking Transport Industry aiming at dealing with the changing environment, including convergence between different industries, and improving the overall cargo market system by promoting a high value-added logistics industry. TruckSol’s collective refusal to provide transport services on 10–19 October 2016 was a protest against the Plan.
13. 192. After TruckSol withdrew the collective refusal of transport services, a revised Trucking Transport Business Bill was proposed at the National Assembly in November 2016 where it is currently pending. The revised Bill includes the introduction of standard rates, which is also the Government’s priority policy. The standard rate system will be expanded step by step, starting with three limited items (containers, cement and synthetic resin) and will be introduced along with the Road Safety Transport Cost System. Under the system, the minimum freight rate necessary to prevent truck owners from overworking, speeding, or overloading, in order to secure road safety, will be added to the road safety transport cost, which will then be deliberated on and decided by the Road Safety Freight Rate Committee (to be composed of representatives of truck owners, transport companies, cargo owners and public interest as well as government officials and experts in relevant fields). Anyone who fails to comply would be subject to penal provisions. This is minimum level government intervention in the market that is necessary to address market failures, where extreme competition significantly widens the gap between appropriate freight rates reported by the businesses and the actual market price. For instance, for one-way freight shipping in a 40ft container from Busan to Uiwang as of 2016, the appropriate price declared by the transport company was KRW750,000 ($699), but the actual transaction price went down 42 per cent to merely KRW440,000 ($410) due to extreme competition among cargo truckers. The revised bill is also designed to prevent overloading, overworking and speeding by guaranteeing truckers an appropriate freight rate and will be implemented in a gradual and limited manner to minimize any shock to the market. For every 1 per cent rise in the freight rate, the chance of accidents declines by 0.72 per cent.
14. 193. The Government indicates that during the collective refusal of transport services by TruckSol in 2016, vehicles in operation or returning to operation of non-members of TruckSol were damaged or set on fire. The Government indicates in this respect that the police conducted an investigation and owners of the damaged vehicles were compensated. For truck drivers who received fuel subsidies but participated in a collective refusal of transport rally, the fuel subsidies are deemed to have been used for other purposes than freight shipping in accordance with subparagraph 3 of article 44-2(1) of the Trucking Transport Business Act. Thus, such fuel subsidies would be suspended in this case under the law. The Government secured a list of vehicles suspected of engaging in the collective refusal of transport (18 vehicles) during the protest and reported them to the relevant authorities (municipalities). Thirteen drivers found to have been engaged in collective refusal of transport rally were given prior notification of the fuel subsidy suspension and allowed to present their views. Taking the drivers’ opinions into account, the relevant authorities (municipalities) decided not to suspend fuel subsidies against these suspects on the basis that fuel subsidy payment details, the possibility of fuel subsidies being used to drive to the protest site and for the purpose of the protest, and the fact that those vehicles were merely at the protest site were insufficient as grounds for taking an administrative action.
15. 194. On 10 October 2016, TruckSol went on a collective refusal of transport services calling for the withdrawal of the Plan for Development of Trucking Transport Industry at Busan New Port and North Port, and Gyeonggi Uiwang Inland Container Depot. The TruckSol members’ actions became violent, as they threw stones or water bottles at vehicles in operation, trying to occupy the roads, attacking police officers, and trying to set themselves on fire. Twelve police officers were injured; police cars were damaged. On 11 October 2016, some 1,200 TruckSol members tried to occupy the roads used by a number of logistics freight haulers and ordinary vehicles and crossed the police line. After issuing several warnings, the police blocked TruckSol members and arrested 22 of them who crossed the police line. On the same day, more than 2,300 TruckSol members made another attempt to occupy the road at the Busan New Port three-way intersection, crossing the police line. After warning them several times, the police arrested 12 more members, following due process. On 13 October 2016 some TruckSol members used slingshots to attack cargo freight haulers on the job, leaving one of the drivers with a deep wound in his forehead. The offenders who hurt the driver using slingshots later surrendered to authorities. The police allowed the rallies to take place as planned, while dealing with obviously illegal acts (such as damaging cars, attempting to occupy the roads, and assaulting police officers) in accordance with the law.
16. 195. The refusal to provide transport services by TruckSol, which is not a recognized union under the TULRAA, is considered to be a collective action, rather than a strike. Even if this action is to be considered a strike, the Government points out that the principles of freedom of association do not protect against abuses consisting of criminal acts. Thus, the Government considers that the measures taken by the police against illegal and violent actions during the collective refusal of transport services did not constitute an infringement of principles of freedom of association. During the collective action, the police arrested 89 participants for assaulting police officers, damaging the freights of non-members who did not join the rally, blocking traffic, and thus violating the Assembly and Demonstration Act. Among the 89 arrested, 80 were released, and arrest warrants were requested for the nine people who led the violent actions. Out of nine people, arrest warrants were issued for two, including Park Wonho, and for the remaining seven, arrest warrant requests were rejected because they had been staying at a fixed residence or were deemed unlikely to destroy evidence.
17. 196. The Government concludes by stating that it disagrees with the complainants’ allegation that it had failed to protect the rights of workers and unions. Regarding the introduction of the performance pay system in the public sector, the Government considers that it has improved the system and that this reflected the stakeholders’ views. It further indicates its plans to adopt provisions under the TULRAA on criminal punishment for employers who treat employees engaging in legitimate industrial actions unfairly and setting out administrative remedies for those who were unfairly treated. Moreover, the Government is considering various measures to better protect the rights of workers and unions. As to the issue of civil and criminal liabilities for illegal industrial action threatening the workers’ livelihoods, the Government will consider improving the system if necessary, after a broad discussion and examination, to ensure that any legitimate industrial action is protected. Finally, the current Government has put “guaranteeing basic labour rights for those in special employment arrangement” on its national policy agenda and plans to develop and implement specific protective measures after fact-finding surveys and discussions involving the tripartite partners and experts. However, regardless of whether or not the collective refusal of transport by TruckSol is considered to be a strike, the Government has a responsibility to follow due process for any violence and violation of laws that takes place during strikes or collective actions.

C. The Committee’s conclusions

1. 197. The Committee observes that the complainants in this case – the KCTU, KPTU, ITF and PSI – allege the lack of consultations with the social partners on the change in the pay structures in the public sector, which resulted in the unilateral imposition of a performance-based pay system and restriction of free and collective bargaining in the public sector. The Committee notes that in response to the unilateral imposition of the new system, the KPTU and 16 affiliated unions representing workers of state-owned enterprise initiated an industrial action. The complainants refer, in particular, to a strike in the rail sector and allege, in this respect, numerous violations of the right to strike by the Government and the Corporation. The complainants also allege that due to their special employment arrangements, truck drivers continue to be deprived of freedom of association and collective bargaining. Following the announcement by the Government of its Plan for Development of Trucking Industry, to which TruckSol opposed, the latter declared a strike. The complainants allege that in response, the Government implemented excessive measures against those participating in the strike. The complainants request the Committee to consider this complaint in the light of the alleged increased use of arbitrary detention and judicial harassment against trade unionists in the Republic of Korea for organizing and participating in public rallies. They refer generally in this respect to the case of Cho Sung-deok, the KPTU Vice-President, who is serving a two-year sentence for the alleged offences related to obstruction of public duty, injury to public officials, destruction of public goods and obstruction of traffic, but do not raise any specific details relating to his case.
2. 198. The Committee notes the detailed observations of the Government on the specific allegations raised by the complainants in this case. With regard to the alleged lack of consultations on pay structures, the Committee notes that the Government only generally indicates that the reform took into account the stakeholders’ views. The Committee recalls that on numerous occasions it has emphasized the importance it attaches to the promotion of dialogue and consultations on matters of mutual interest between the public authorities and the most representative occupational organizations of the sector involved [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1523]. The Committee has further expressed the importance, for the preservation of a country’s social harmony, of regular consultations with employers’ and workers’ representatives on matters affecting their interests and rights. The complaint before it is a case in point where, indeed according to the Government, the apparent lack of full and frank consultation on the policy affecting conditions of employment had led to a situation where the new system was implemented in several public institutions and enterprises without an agreement from the public employees’ unions and had regretfully resulted in an industrial action. Noting that the Government has taken a number of steps to address these issues, the Committee encourages the Government to ensure that meaningful consultations are held in the future on all matters affecting the interests of the social partners.
3. 199. The Committee notes the complainants’ allegation that all attempts to discuss the new system with the respective public sector employers through collective bargaining have failed. Instead, according to the complainants, under the pressure of the Government, state-owned enterprises and public institutions, have introduced the new pay system unilaterally or through coercive measures. The Committee notes that the complainants allege that the Government later declared that such unilateral decisions amounted to a “managerial policy” matter falling outside the scope of collective bargaining. The complainants consider, however, that as the new pay system directly impacts on wages and working practices, it falls within the scope of collective bargaining. In this respect, they point out that section 94 of the KLSA also requires employers to secure an agreement from 50 per cent of employees, or from a representative union if it represents at least 50 per cent of employees, before changing workplace regulations, including wage systems, work time and working conditions in a way that is disadvantageous to employees.
4. 200. The Committee notes that the Government acknowledges that some of the public institutions introduced the new pay system without an agreement between unions and the management, which caused conflicts. To address this situation, in June 2017, the Government introduced the following measures: (1) it removed the deadline for the introduction of the performance-based pay system; (2) it abolished the penalties (such as freezing total labour costs budget) in the case of a failure to adopt the new system within the indicated time frame; and (3) it removed the criteria of the implementation of the new system from the assessment of public institutions index. The Government indicates that public institutions which were experiencing conflicts can now revise the rules related to the performance-based pay and return to the original remuneration system by a decision of the board of directors. Those institutions that have adopted the new system as a result of collective bargaining could freely decide whether to keep or change the system.
5. 201. The Committee welcomes the above measures. The Committee also wishes to recall that tripartite discussions for the preparation, on a voluntary basis, of guidelines for collective bargaining are a particularly appropriate method of resolving the difficulties raised in the allegations. The Committee invites the Government to take the necessary measures so that reviews of the pay system may take place through collective bargaining.
6. 202. Regarding the allegation in relation to the strike in the rail sector, the Committee notes at the outset that the Government acknowledges that the strike was declared by the KRWU to oppose the unilateral introduction of the new pay system by the Corporation’s board of directors. The Committee welcomes the Government’s indication that following the announcement of the abovementioned measures in June 2017, the KRWU and the Corporation reached an agreement to settle their dispute over the performance-based pay system in an amicable manner on 5 November 2017. As a result, the management withdrew the revised remuneration provisions on performance-based pay, while the KRWU dropped the lawsuit on 26 November 2017.
7. 203. Regarding the aim of the strike, the Committee notes the Government’s indication that the Supreme Court concluded that such actions should aim at concluding a collective agreement on working conditions and that any legal dispute regarding interpretation and application of the rights of workers prescribed by laws, collective agreements and employment rules cannot be the subject of a strike. In conformity with this interpretation, in the Government’s view, the dispute in question was related to the interpretation and application of workers’ rights that have already been established and thus cannot be a justifiable subject of a strike. The case as to whether or not the strike was legitimate is currently pending before the court. At the same time, the incumbent Government agrees with the argument of the complainants that the Government should not restrict unions’ rights to strike based on its prejudgment that the strike is illegal. The Government indicates that it will take a cautious approach in making judgments on strikes and put more effort into providing support to prevent and resolve labour–management conflicts. The Committee welcomes the approach declared by the Government and recalls that matters which might be subject to collective bargaining include the type of agreement to be offered to employees or the type of industrial instrument to be negotiated in the future, as well as wages, benefits and allowances, working time, annual leave, selection criteria in case of redundancy, the coverage of the collective agreement, the granting of trade union facilities, including access to the workplace beyond what is provided for in legislation, etc.; these matters should not be excluded from the scope of collective bargaining by law, or as in this case, by financial disincentives and considerable penalties applicable in case of non- implementation of the Code and Guidelines. It further recalls that it is for the parties concerned to decide on the subjects for negotiation [see Compilation, op. cit., paras 1291 and 1289].
8. 204. As to the application of “obstruction of business” charges and claims for damages filed against the strike participants, the Committee notes the Government’s indication that the TULRAA protects all legitimate industrial actions. Thus, even if employers suffer damages, the union is not civilly and criminally liable as long as the industrial action is legitimate. The Committee notes that the Government points out that even in cases of illegitimate strikes involving merely refusals to work without any acts of violence or destruction, the participants cannot be charged with “obstruction of business”; this has been the position of the Supreme Court since its 17 March 2011 ruling. The Committee notes with interest the Government’s indication that in October 2017, the Corporation dropped charges of “obstruction of business” against 41 union officers involved in the strike of October 2016, after taking the judicial authority’s opinion into account. Thus, the union officers who led the strikes will not be punished.
9. 205. The Committee further welcomes the Government’s indication that the Labour Relations Commission accepted the applications from workers who were removed from their positions (270 people) and faced disciplinary action (376 people) for participating in the 2016 strike. On the basis of the Commission’s decision, these workers were reinstated without loss of benefits and the disciplinary actions were remedied. The management of the Corporation is now waiting for the court’s decision on the legitimacy of the strike. On the other hand, regarding the claims for damages, the Government indicates that the 2016 strike, which lasted 74 days, caused a loss of KRW109.2 billion ($102 million), but only part of it (KRW40.3 billion, or $37.5 million) was claimed by the Corporation against the president of the KRWU. This case is pending in court. The seizure of the KRWU assets worth about KRW15.5 billion (approx. $14.4 million) mentioned by the complainant was a result of the 2009 and 2013 strikes, which were found to be illegitimate by a court ruling and is not related to the 2016 strike, which is the subject matter covered in this complaint.
10. 206. The Committee notes that in the present case, the complainants and the Government confirm that the domestic courts have ruled on several occasions against the misuse of the charge of obstruction of business to penalize strike actions. The Committee observes that the courts favour a restrictive approach to the application of obstruction of business to strike actions. The Committee welcomes the Government’s stated intention to review the system governing strike actions in consultation with the social partners and refers it to the Committee’s recommendations in Case No. 1865 in which it considers measures taken in relation to section 314 of the Penal Code.
11. 207. Noting that a court case on the legitimacy of the strike is currently pending in court, the Committee requests the Government to keep it informed of its outcome and to provide a copy thereof once it is handed down together with information on the consequences of the decision should the court consider the strike to have been illegal.
12. 208. In relation to the allegation of the use of replacement workers and the army during the strike, despite, as indicated by the complainants, the maintenance by the union of minimum services, the Committee notes the Government’s indication that the TULRAA prohibits the use of replacement workers for duties suspended due to strikes but permits the use of replacement workers, subject to the limit of 50 per cent of the workforce, for businesses which, if suspended or shut down, are likely to seriously endanger the public’s daily lives or seriously undermine the national economy and involve duties that are hard to replace (essential public services). The Government is of the view that it is justifiable to permit the use of replacement workers to the limit of 50 per cent for the rail transport industry. The Committee recalls that when a service that is not essential in the strict sense of the term but is part of a very important sector in the country is brought to a standstill, measures to guarantee a minimum service may be justified. In this respect, a certain minimum service may be requested in the event of strikes whose scope and duration would cause an acute national crisis, but in this case, the trade union organizations should be able to participate, along with employers and the public authorities, in defining the minimum service. In the absence of any agreement by the parties in this regard at the specific enterprise level, an independent body could be set up to impose a minimum service sufficient to address the concerns of the Government about the consequences of the dispute, while preserving respect for the principles of the right to strike and the voluntary nature of collective bargaining [see Compilation, op. cit., paras 868, 871 and 879]. As regards the complainants’ allegation of the use of replacement workers and army transport vehicles as substitute transport during the strike, the Committee refers to the above-cited decisions applying the principles of freedom of association governing minimum services.
13. 209. Regarding the allegations in relation to the national strike declared by TruckSol, the Committee notes that one of the demands of the truck drivers was the full recognition of trade union rights. In this respect, the complainants recall that under the current system, truck drivers are not considered to be workers. For its part, the Government indicates that those in special employment arrangements, including owner drivers of heavy goods vehicles, have the characteristics of the self-employed and employees at the same time, making it difficult to consider them all to be employees. The Government adds that while the number of those in special employment arrangement continues to grow, they face poor working conditions with little legal protection for basic labour rights. To address this, the Government has set “guaranteeing basic labour rights for those in special employment arrangement” as one of its policy priorities and plans to establish and implement specific protective measures after broad discussions with the tripartite partners and experts. The Committee notes with interest the priority attached by the Government to this matter and requests the Government to keep it informed of the measures taken in this regard. The Committee recalls that it had addressed this issue in the framework of Case No. 2602 involving the Republic of Korea on several occasions and invites the Government to refer to its recommendations in that case [see 359th Report, para. 370].
14. 210. The Committee notes with regret the complainants’ allegation that the disproportionate use of police force to supress protesting drivers and to prevent them from handing out leaflets to other drivers resulted in clashes in which workers and police officers were injured. According to the complainants, by the end of the strike, 89 drivers (union members and officers) had been arrested for suspected crimes such as blocking traffic, obstruction of public business, and violations of the Act on Protest and Assembly. Of these, 87 were released within days of arrest. The police applied for detention warrants for eight individuals arrested during the strike. All but one of these warrants were rejected by a judge for lack of sufficient grounds. The warrant for the arrest of TruckSol President Park Wonho was issued on 21 October 2016 and he is currently being detained at the Busan Detention Centre.
15. 211. The Committee notes that according to the Government, the collective action was accompanied by violent actions, with trucks of non-participants being set on fire. The intervention of the police was therefore necessary. The Committee recalls that the principles of freedom of association do not protect abuses consisting of criminal acts while exercising the right to strike. Furthermore, in cases of strike movements, the authorities should resort to the use of force only in grave situations where law and order is seriously threatened [see Compilation, op. cit., paras 965 and 932]. The Committee stresses that the right to strike is not an absolute right and that the acts of violence referred to by the Government, such as attacking police officers and damaging police cars, if proven, go beyond the limits of its protection. Noting that the Government confirms that the police arrested 89 people in connection with the collective action, that they were later released, with the exception of Park Wonho, against whom an arrest warrant was issued, the Committee requests the Government to provide up-to-date information on the situation of Mr Park Wonho.
16. 212. The Committee understands from the complainants’ allegation that while the strike ended on 19 October 2016 following an announcement by the Government of compromise measures, as of 21 October 2016, the Ministry of Land Infrastructure and Transport had announced measures to suspend fuel subsidies against 18 TruckSol members and as of 1 November 2016, 13 TruckSol members had received notice that their fuel subsidies would be suspended. The Committee notes the explanation provided by the Government that the fuel subsidies of truck drivers who participated in a rally are deemed to have been used for other purposes than freight shipping, in accordance with subparagraph 3 of article 44-2(1) of the Trucking Transport Business Act. These drivers were notified accordingly. The Committee notes with interest the Government’s indication that later on, the relevant authorities (municipalities) decided not to suspend the fuel subsidies.

The Committee’s recommendations

1. 213. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee encourages the Government to ensure that meaningful consultations are held in the future on all matters affecting the interests of the social partners.
   • (b) Noting that a court case on the legitimacy of the strike is currently pending in court, the Committee requests the Government to keep it informed of its outcome and to provide a copy thereof once it is handed down together with information on the consequences of the decision should the court consider the strike to have been illegal.
   • (c) The Committee draws the Government’s attention to the decisions applying the principles of freedom of association governing minimum services during a strike and expects that due regard will be given to them in the future.
   • (d) The Committee urges the Government to provide up-to-date information on the situation of Mr Park Wonho.