Rapport intérimaire - Rapport No. 306, Mars 1997

Cas no 1865 (République de Corée) - Date de la plainte: 14-DÉC. -95 - Clos

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INTRODUCTION
A. Previous examination of the case
B. The Government's reply
C. The complainant's further information
D. The Government's further reply
E. The Committee's conclusions
The Committee's recommendations
Annex I

Allegations: Arrest and detention of a trade union leader; government refusal to register newly established organizations; adoption of labour law amendments contrary to freedom of association

295. The Committee already examined the substance of this case at its May 1996 meeting, when it presented an interim report to the Governing Body (see 304th Report, paras. 221 to 254, approved by the Governing Body at its 266th Session (June 1996)).
296. In communications dated 28 December 1996 and 28 January 1997, the International Confederation of Free Trade Unions presented new allegations concerning further violations of trade union rights by the Government. The Government supplied further observations on the case in communications dated 4 November 1996 and 31 January 1997.
297. The Republic of Korea has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

298. The Korean Confederation of Trade Unions (KCTU) presented allegations to the effect that Korean labour law allowed the Government to infringe drastically the right of workers to establish and join organizations of their own choosing without previous authorization. This had been amply demonstrated by the fact that although the KCTU had sought registration on 23 November 1995 further to the holding of its Inaugural Congress, the Ministry of Labour had returned the KCTU's establishment report the next day. The KCTU further contended that it was no coincidence that its President, Mr. Young-kil Kwon, had been arrested by the police on the same day as that in which it had sought to be registered. Mr. Kwon had been charged with violating the "third party intervention" provisions of the TUA (section 12(2)) and the Labour Disputes Adjustment Act (LDAA) (sections 13(2) and 45(2)), for statements he had made during the railway and subway workers' strike in June 1994. In the KCTU's view, the legislative prohibition on "third party intervention" constituted a flagrant violation of freedom of association. The KCTU asserted that Mr. Kwon was still under detention. The Korea Automobile Workers' Federation (KAWF) made similar allegations against the Government in that it too had been refused registration by the Government.
299. In its reply, the Government indicated that the refusal to register the KCTU had been based on various provisions of the Trade Union Act (TUA). With regard to the arrest of Mr. Young-kil Kwon, the Government pointed out that Mr. Young-kil Kwon had been sought by the police since 28 June 1994 when the court had issued an arrest warrant for him on charges of violating the provisions prohibiting third party intervention (sections 13(2) and 45(2) of the LDAA). Furthermore, he had violated other laws by committing acts such as the obstruction of the general traffic flow (section 185 of the Criminal Law), intrusion on to private premises (section 319(1) of the Criminal Law) and the illegal collection of contributions (sections 3 and 11 of the Law on Prohibiting Collection of Contributions in Cash or in Kind). He had been arrested on these charges by the police on 23 November 1995 and indicted on 15 December 1995. However, on 13 March 1996, Mr. Kwon had been released on bail immediately after a decision to this effect had been handed down by the Court. Finally, the Government recognized the need for amendment of labour-related laws. To this end, "the Presidential Commission on Industrial Relations Reform (PCIR)" had been established on 9 May 1996. The PCIR was composed of 30 members representing labour, management, academia, the press and other civil societies. The PCIR would remain active until February 1998, (even after the revision of labour laws had been completed), in order to cultivate and nurture new practices and attitudes toward industrial relations among the general public. The PCIR would continue to further its efforts for this new labour-management culture to deeply ingrain itself within Korean society.
300. At its June 1996 Session, in the light of the Committee's interim conclusions, the Governing Body approved the following recommendations:
- (a) The Committee urges the Government to do everything in its power to have the charges brought against Mr. Kwon dropped. It further urges the Government to ensure in future that trade union leaders are not arrested and detained for activities in connection with the exercise of their right to organize.
- (b) The Committee requests the Government to take appropriate steps to ensure that the KCTU is granted registration as a trade union confederation so as to enable it to exercise legitimate trade union activities, including the right of collective bargaining and participation in national tripartite consultation. The Committee additionally requests the Government to take appropriate steps to ensure that the Korean Automobile Workers' Federation, the National Council of Subway Workers' Union and the Federation of Hyundai Group Trade Union are granted registration so as to enable them to exercise legitimate trade union activities. The Committee requests the Government to provide information on any progress made in this regard.
- (c) Reiterating that the setting up of the Korean Teachers' and Educational Workers' Union (CHUNKYOJO) is a legitimate exercise of teachers' right to organize, the Committee calls upon the Government to take the necessary measures to enable private and public schoolteachers, including those belonging to CHUNKYOJO, to exercise freely the right to organize.
- (d) As regards the legislative aspects of this case, the Committee draws the Government's attention to the following:
  - - Reminding the Government once again that the prohibition of third party intervention in the settlement of disputes constitutes a serious restriction on the free functioning of trade unions, the Committee calls on the Government to take the necessary measures to have the provisions containing this prohibition (namely sections 13(2) and 45(2) of the Labour Dispute Adjustment Act (LDAA)) repealed.
  - - Recalling the principle that provisions governing the financial operations of workers' organizations should not be such as to give the public authorities discretionary powers over them, the Committee requests the Government to take appropriate measures to have section 3 of the Law on Prohibiting the Collection of Contributions in Cash or in Kind repealed in order to ensure that unions enjoy financial independence.
  - - The Committee requests the Government to take the necessary steps to ensure that section 3(5) of the Trade Union Act (TUA) is amended so as to enable workers to establish and join the organization of their own choosing without any restrictions.
  - - The Committee requests the Government to take steps to amend section 23(1) of the TUA so as to enable workers' organizations to elect their representatives, including former employees in full freedom.
- (e) The Committee urges the Government to ensure that proposed amendments to labour-related legislation are no longer delayed. It trusts that these amendments will be in line with freedom of association principles, including those that are enunciated in its conclusions. It reminds the Government that the technical assistance of the Office is at its disposal in giving effect to this recommendation.

B. The Government's reply

301. In its communication of 4 November 1996, the Government refers to the Committee's above-mentioned recommendations which, in the Government's view, are directly related to the revision of Korea's labour-related laws. While acknowledging once again the need for amendment of labour-related laws, the Government reiterates that it can only abide by the current labour laws until this revision takes place.
302. In this context, the Government refers to the Presidential Commission on Industrial Relations Reform (PCIR) which was set up on 9 May 1996 and whose composition and mandate had been described in detail by the Government during the Committee's previous examination of this case. In essence, the PCIR had been set up to forge the reform of industrial relations and to issue a report to the Government on how to improve current labour laws. The Government indicates that since its establishment the PCIR, which is composed of representatives from labour, management and public interest groups, has undertaken intensive consultations on industrial relations reform. Moreover, it has exerted continuous efforts to develop a reform package. A two-month period was dedicated to the gathering of public opinions on this matter. Various discussions, including three public hearings, four workshops, two visits to worksites, and seven rounds of open discussion were conducted in a subsequent three-month period. In addition, the PCIR held ten general meetings, 30 sub-group meetings, 13 steering committee meetings, and 21 small group meetings on law revision.
303. The Government states that of the 148 issues which were under examination, the PCIR decided at its 12th general meeting on 25 October 1996 to revise or formulate 107 provisions, including the abolishment of the prohibition of political activities by trade unions. However, the PCIR failed to reach an agreement on 41 provisions, which include controversial issues such as recognizing multiple trade unions and the right to organize of public servants and teachers. Accordingly, in line with its decision reached at the 12th general meeting, the Commission is currently in the process of reviewing its final reform draft in order to have it submitted to the Government by no later than 9 November 1996.
304. The Government concludes by stating that it plans to push for the revision of the labour laws as soon as the complete reform package is submitted by the PCIR. It will report the related details of further progress on industrial relations reform to the Committee. Finally, the Government adds with regard to the Committee's previous recommendation on the detention of Mr. Young-Kil Kwon (304th Report, para. 254(a)) that Mr. Kwon was released on bail on 13 March 1996.

C. The complainant's further information

305. In its communication of 28 December 1996, the ICFTU contends that amendments to the labour laws, instead of bringing former labour legislation into compliance with international labour standards, further undermine freedom of association. The ICFTU states that earlier it had been following with great interest the work of the Presidential Commission on Industrial Relations Reform (PCIR), which had been established in early May 1996 with a mandate to produce recommendations for legal reform in the areas of both freedom of association and labour market flexibility. During its five months of existence, the PCIR achieved some progress in the area of labour market flexibility, but in the area of freedom of association key demands of the ICFTU-affiliated Federation of Korean Trade Unions (FKTU) and the Korean Confederation of Trade Unions (KCTU) were routinely opposed by representatives of the employers and the "public interests" sector, representing academics, legal experts, etc. On 11 October 1996, at the time of the Republic of Korea's accession to the OECD, the Government again undertook, as a "solemn commitment", to reform the existing laws and regulations and to bring them in line with universally accepted labour standards. However, after weeks of protracted negotiations, the PCIR announced its dissolution on 9 November 1996. In a number of messages to the Government and the Chairman of the National Assembly, the ICFTU states that it expressed its extreme concern at this development, in particular at the failure of the PCIR to agree over the changes necessary to amend Korean labour legislation in order to bring it into line with internationally agreed standards. In a letter to the Government, the ICFTU indicated that key elements of any acceptable reform, namely ILO Conventions Nos. 87 and 98, had not even been seriously considered. The ICFTU also recalled that it was on the basis of this pledge that the country had recently been granted access to the OECD. However, in spite of all previous assurances, including solemn commitments to both the ILO and the OECD, the ICFTU asserts that the Government then unexpectedly rushed its repressive labour law amendments through the National Assembly on 26 December 1996.
306. The ICFTU states that the main restrictions of the new "Trade Union and Industrial Relations Adjustment Act", which brings into a single law the former "Trade Union Act" and "Labour Dispute Adjustment Act", are the following: (a) restrictions on union pluralism shall remain in force at the industrial, federations and national centre level until the year 2000, and at the enterprise level until the year 2002. This, in essence, upholds the legal ban on the KCTU and places it leadership in grave jeopardy; (b) the prohibition on "third party intervention" has been considerably weakened and unions may receive assistance from federations or confederations to which they are affiliated. But the law places a new requirement for unions and employers to register additional persons from whom they seek assistance with the Labour Ministry; (c) striking workers can henceforth be replaced by workers from outside the enterprise and subcontracting by enterprises affected by industrial disputes is now allowed; (d) the list of essential services, in which arbitration is compulsory and industrial action thus forbidden, remains far beyond those generally accepted by the Committee on Freedom of Association. Petroleum supply and the Mint have been added to a list which includes trains, buses, water, electricity and gas supply, oil refineries, public hygiene and medical facilities, banking, broadcasting and communications; (e) dismissed workers shall lose their right to union membership, although, if a dismissal is under review of the Central Labour Relations Commission, the measure shall remain suspended until the dismissal is upheld by the Commission; (f) during industrial disputes, occupation of production lines will be forbidden; (g) it will be forbidden to pay workers while they are on strike; (h) it will be forbidden for enterprises to pay full-time union officers or award them any compensation; (i) the ban on unionization in the public sector and the teaching profession remains in place.
307. The ICFTU points out that in reaction to these measures, on 26 December 1996, and following repeated earlier warnings that a unilateral imposition by the Government of restrictive labour law provisions would be opposed by their respective organizations, the FKTU and KCTU immediately declared general strikes. The KCTU called for an indefinite general strike, while on 27 December, the FKTU extended its call for a general strike from an initial one-day action, on 26 December, to last until the end of the year. By 27 December, the KCTU indicated that over 200,000 workers belonging to 163 affiliated unions had gone on strike, while the FKTU stated that the 1.2 million members of its 5,500 affiliated unions had been called to go on strike. News reports indicated that major car-making and shipbuilding plants were paralysed, as was the Seoul subway system and numerous other enterprises throughout the land. By midday, over 350,000 workers were reported to have downed tools. Later, on 27 December, 12,000 demonstrators gathered nearby the parliament building in Seoul. They were immediately surrounded by thousands of riot police.
308. In conclusion, the ICFTU considers that the Government, by rushing through Parliament amendments to the labour legislation which violate the specific recommendations of the Committee, has deliberately reneged on its repeated promises to bring labour laws into conformity with internationally guaranteed standards.
309. In its communication of 28 January 1997, the ICFTU once again presents allegations about the following aspects of the legislation:
- - the ICFTU fears that the authorities will continue efforts to destroy the KCTU in the period up to its potential legalization in the year 2000;
- - the progress in respect of third-party intervention is more apparent than real. The KCTU, for example, will continue to fall under the ban on third-party intervention because it is still illegal. Furthermore, it is not clear whether the Minister of Labour retains powers to refuse to recognize "other parties" notified to him for the purpose of third-party intervention;
- - employers are able to replace strikers with other workers from within the business concerned. If the business is understood in the widest sense, that constitutes a very far-ranging power, given the size of conglomerates in the Republic of Korea. Moreover, in certain circumstances, employers can subcontract work during strikes, and can hire external strikebreakers;
- - the new legislation establishes a list of essential services in which disputes may be submitted, by unilateral decision of the authorities, to compulsory arbitration. This list goes well beyond the Committee's definition of essential services in the strict sense of the term;
- - the new legislation tightens the prohibition on dismissed workers from holding trade union membership and office: now the prohibition is effective once an administrative decision has been made by the Central Labour Relations Commission. This means that a significant number of dismissed KCTU leaders will be disqualified from trade union office even if the KCTU were to become legal;
- - workplace occupations during strikes is forbidden;
- - the prohibition on remuneration of workers for periods when they have been on strike prevents this issue from being the subject of collective bargaining;
- - the prohibition on employers from remunerating full-time union officers will outlaw a practice which is currently widespread in the Republic of Korea with a view to undermining the capacity of trade unions to represent their members effectively;
- - no action has been taken to remove the prohibitions on the right to organize for teachers and for 600,000 public service workers.
310. Furthermore, according to the ICFTU, other measures taken after the adoption of the new legislation constitute further violations of trade union rights. Following the issuing of summons for questioning of more than 200 trade union leaders and activists, arrest warrants were issued on 10 January 1997 against some KCTU leaders (see Annex I). In 17 of these cases, the charges brought was interference in business (section 314 of the Criminal Code). The general strike action undertaken by the FKTU and the KCTU for the withdrawal of the legislation of 26 December 1996 has been declared illegal, as legal strike action in the Republic of Korea is restricted to action taken against the direct employer over terms and conditions of employment. Thus, trade union leaders risk being sentenced to seven and a half years' imprisonment.
311. The ICFTU adds that leaders of the Halla Heavy Industry Union were arrested in the harbour city of Mokpo. Their president, Kim Byung-Soo, who was on the list of arrest warrants, had already been arrested on 14 January, while Oh Hyung-Kun, Choo In-Sang and Joo Ki-Seung, who were not on the list, were arrested on 16 January as they were leaving the office of the union, for "obstruction to business" and "violence". Convictions can lead up to five years' imprisonment, increased by 50 per cent if the offence is collective in nature. A unionist at the Manda Machinery automobile plant in Taejun was arrested on 11 January. In the city of Ulsan, police were looking for six unionists at the Hyundai plant. A financial reward was offered for information leading to their capture. Dozens of unionists, fearing arrest went underground throughout the country.
312. Subsequently, around 23 January, the unionists who had been arrested during the time of the strikes were all released. The Government then indicated that it had suspended the effect of the arrest warrants and it was later reported that the warrants had finally been withdrawn as invalid following several applications from district courts for rulings on their constitutionality. However, according to the ICFTU, no repeal of the arrest warrants had been formally issued by 28 January. The ICFTU also points out that some 30 other trade unionists who had been arrested before the strikes are still detained, and are either serving prison sentences or appear on a wanted list (see Annex II).
313. The ICFTU alleges moreover that on several occasions, including in Seoul on 11 and 15 January, riot police intervened to disperse peaceful and authorized trade union marches.
314. The ICFTU adds that it sent two delegations to the Republic of Korea. The first, which was in Seoul from 11 to 16 January, was subject to constant harassment by the authorities. In particular, the mission was openly followed by security personnel although it proceeded normally with its scheduled programme of activities. The members of the mission were threatened with deportation for violating provisions of the Immigration Law. On departure, they were informed in writing that prudent consideration would be given to permitting them to enter the country in the future. The multiple-entry visa of one of the members of the mission, Mr. Takeshi Izumi, was cancelled.
315. Finally, the ICFTU points out that on 28 January the KCTU announced that it was suspending its call on members to go on strike each Wednesday up to 18 February 1997, partly in response to a major economic and political crisis sparked off by the bankruptcy of the Republic of Korea's second-largest steel producer, which was linked to high-level corruption.

D. The Government's further reply

316. In its communication of 31 January 1997, the Government confirms that the Presidential Commission on Industrial Relations Reform reached agreement on a substantial number of issues, based on a consensus that it was essential to reform the existing system and practices of industrial relations in order to enhance workers' living standards as well as labour market flexibility. Nevertheless, representatives of labour and management failed to come to an agreement on key conflicting issues. As a consequence, the Commission wound up discussions with those key issues unresolved. It reported the outcome to the President on 12 November 1996.
317. The Government determined that a swift resolution of this important issue of national interest was imperative. It thus decided to formulate its own proposal based on the report made by the said Presidential Commission and to submit it to the National Assembly without delay. The Industrial Relations Reform Promotion Commission of the Government headed by the Prime Minister with the participation of 14 concerned Ministers, including the Minister of Labour, was established, and prepared a government proposal. Following a notification period of the enactment of legislation from 3 December to 9 December, the Government submitted the revised Bill of labour-related laws to the National Assembly on 10 December 1996.
318. After partial modification, the revised Bill was adopted on 26 December 1996 and the new legislation was promulgated on 31 December 1996. The Government believes that the revised labour-related laws are a considerable step forward towards respecting ILO standards, at the same time reflecting the Republic of Korea's economic needs and its socio-political particularities. The main objectives of the new laws are to bring the existing laws more in line with international standards, as well as to enhance the flexibility of the labour market. To that end, a number of measures have been incorporated, most notably:
- - permitting the establishment of multiple trade unions starting from the year 2000 at the national level, and 2002 at the enterprise level;
- - abolishing provisions that prohibit third-party intervention;
- - repealing restrictions on trade unions' political activities.
319. However, as strong demands to reconsider certain aspects of the new laws arose from labour organizations and some other circles of society, the heads of the ruling and opposition parties met at the Presidential Palace on 21 January 1997 and agreed to reopen debates over the labour laws at the National Assembly. Accordingly, discussions on key elements of the new laws, including freedom of association, are scheduled to resume soon at the National Assembly. Under these circumstances, the Government hopes that the examination of the case directly linked to such deliberations on the revision of labour-related laws will be adjourned until the next session of the Governing Body. The Government assures the Committee that it will be kept informed of progress in the revision process.

E. The Committee's conclusions

320. Before examining the merits of the case, the Committee takes note of the Government's request to adjourn the case. The Committee also notes the advice from the Government that agreement has been reached on the reopening of the debate in the National Assembly on the labour legislation. The Committee regards this as an important development and trusts that it will lead to further change in accordance with the recommendations it has already made.
321. The Committee further notes that the Government has not yet fully responded to the complaints lodged on 28 December 1996 and 28 January 1997 and requests the Government to do so without delay. In this respect the Committee urges the Government to provide a detailed explanation of the changes made to the legislation on 26 December and of the reasons for those changes. The Committee intends to proceed to examine the changes made to the previous legislation and the new legislation, while taking due account of the latest developments and, where necessary, of the absence of detailed information from the Government.
- Allegations of a legislative nature
322. After the completion of the work of the Presidential Commission on Industrial Relations Reform, the Government submitted draft bills to the National Assembly which adopted them. However, the Committee observes that the main legislative issues which it had raised, first, in Case No. 1629 (see 286th Report, paras. 558-575; 291st Report, paras. 416-426; and 294th Report, paras. 259-274) and then in Case No. 1865 (see 304th Report, paras. 242-254) have not been fully resolved.
323. In this respect, the Committee would recall that the following issues have been the subject of its comments in the above-mentioned reports: the prohibition of trade union pluralism; the non-recognition of the right to organize of private and public schoolteachers and of public servants; violations of the right of workers' organizations to draw up their constitutions; the right of organizations to elect their representatives in full freedom; the prohibition of third-party intervention in the settlement of disputes; interference in the financial independence of unions; the intervention of the administrative authority in collective bargaining; recourse to emergency powers to end strikes; and a very broad list of essential services where the right to strike is prohibited.
324. The Committee notes with regret that a number of provisions which are contrary to freedom of association principles do not appear to have been amended by the new legislation. In the present case, some of these provisions have been the subject of allegations by the complainants, namely the prohibition of the right to organize of private and public schoolteachers and of public servants and interference in the financial independence of trade union organizations.
325. As regards the first point, the Committee underlines the importance that it attaches to the recognition of the right to organize of workers without distinction whatsoever, including public servants and teachers. It therefore again strongly urges the Government to take the necessary measures without delay so that these categories of workers have the right to establish and join organizations of their own choosing. The application of this principle in practice implies that the Korean Teachers' and Educational Workers' Union (CHUNKYOJO) should be registered without delay so that it can legally defend and promote the interests of its members.
326. As regards interference in the financial independence of unions, the Committee recalls that section 3 of the Law on Prohibiting the Collection of Contributions in Cash or in Kind requires prior authorization from the public authorities when an organization wants to collect contributions in cash or in kind from non-members. In the absence of any information on the amendment of this provision, the Committee stresses once again that provisions governing the financial operations of workers' organizations should not be such as to give the public authorities discretionary powers over them (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 430). The Committee therefore requests the Government to take appropriate measures to repeal this provision in order to ensure that unions enjoy financial independence.
327. The Committee had commented on other provisions which have been modified. These include the prohibition on multiple trade unions, the prohibition on trade unions' political activities, the prohibition of third-party intervention in the settlement of disputes, the list of essential services in which disputes are submitted to compulsory arbitration and the impossibility of keeping trade union membership in case of dismissal.
328. As regards the prohibition on multiple trade unions, the Committee notes that this prohibition will only be lifted from the year 2000 at the industrial and national levels, and 2002 at the enterprise level. The direct consequence of upholding these prohibitions until these dates is that the KCTU cannot be registered before a period of three years. The KCTU will therefore continue to be considered as illegal, which carries the risk of sanctions being imposed on its leaders who would continue to carry out legitimate trade union activities on the organization's behalf. It is the Committee's view that such a situation is manifestly incompatible with the fundamental principle of freedom of association that workers should have the right to establish and join organizations of their own choosing. The Committee notes, moreover, that this impossibility of obtaining registration would also apply to the organizations which were mentioned in the KCTU's initial complaint, namely the Korean Automobile Workers' Federation, the National Council of Subway Workers' Union and the Federation of Hyundai Group Trade Union.
329. While, by adopting the provision in question, the Government undertakes to establish trade union pluralism in the future, the Committee cannot consider the terms of this provision to be satisfactory. In effect, the free choice of workers to establish and join organizations is so fundamental to freedom of association as a whole that it cannot be compromised by delays. The Committee therefore urges the Government to take the necessary measures to render trade union pluralism legal without delay. The application of this principle should result in the registration of the KCTU and the other trade union organizations mentioned in the preceding paragraph.
330. The Committee notes that the new provisions remove the general prohibition on trade unions' political activities. According to the texts of the main provisions transmitted by the Government, it would appear, however, that a trade union will be disqualified if its main objective lies in political or social activities. The Committee considers that the lifting of the general prohibition on political activities constitutes, without any doubt, an improvement in the application of freedom of association principles. The Committee nevertheless would need additional information on the scope of "social activities" which are mentioned in the new provision in order to be able to make an informed decision thereon. The Committee considers in effect that if this term is meant to cover all activities by organizations which are aimed at improving the general welfare of workers, then the provision in question would be in violation of the right of trade unions freely to organize their activities. The Committee requests the Government to provide information on this provision.
331. As regards the prohibition of third-party intervention in the settlement of disputes, the Committee notes that the prohibition in question has been removed. It appears, however, that employers' and workers' organizations have to notify the names of persons who could intervene as third parties with the Labour Ministry. The Committee believes that this provision would be contrary to freedom of association principles if the Minister of Labour had discretionary powers to refuse the names notified to him. The Committee considers in effect that organizations of employers and workers should have the right to choose, without any hindrance, the persons from whom they wish to seek assistance during collective bargaining and dispute settlement procedures. The Committee therefore requests the Government to confirm that such is the case within the framework of the new provisions.
332. Regarding the list of essential services enumerated in the new legislation, the Committee notes that the complainants refer to several sectors, some of which would appear to have been added to the list which had already been the subject of the Committee's previous comments. The Committee had considered previously that the law stipulated quite a broad category of public utility services which did not all constitute essential services in the strict sense of the term (see 294th Report, para. 264). The Committee notes that the Government has not dealt with the complainants' allegations on this point. In this respect, the Committee recalls that the prohibition of the right to strike should be limited to services the interruption of which would endanger the life, personal safety or health of all or part of the population (see Digest, para. 516). On the basis of this definition, the Committee considers that the Mint, transport, petroleum installations, banking, broadcasting and communications do not constitute essential services in the strict sense of the term. It therefore requests the Government to provide further information and take the necessary measures to ensure that the list of essential services is modified accordingly.
333. Concerning the right of dismissed workers to union membership, the Committee observes that any worker in this situation who appeals to the Central Labour Relations Commission will not be deprived of his union membership until the Commission hands down a final decision. The Committee must emphasize that a provision of this nature is incompatible with freedom of association principles since it deprives the person concerned of joining the organization of his choice. Moreover, the Committee considers that this provision entails the risk of acts of anti-union discrimination being carried out to the extent that the dismissal of a trade union activist would prevent him from continuing his trade union activities within his organization. The Committee therefore urges the Government to review the provision in question so that the principle of free affiliation will be respected.
334. Finally, the ICFTU mentions new provisions which, in its view, constitute serious restrictions on freedom of association. It refers in this regard to the replacement of strikers with other workers, to the prohibition on workplace occupations during strikes, to the prohibition on remuneration of workers for periods when they have been on strike and to the prohibition on employers from remunerating full-time union officers.
335. Regarding the replacement of strikers, the Committee observes that under the terms of the new legislation, employers are allowed to replace strikers with other workers from within the business concerned during industrial action. In cases where a union shop agreement exists and substitute workers cannot be found inside the business and significant business loss is expected to be incurred by industrial action, employers will be allowed to hire workers from outside the business concerned during a specified period with the permission of the Labour Relations Commission.
336. The Committee has already examined on several occasions cases relating to the hiring of workers during strike action. It has considered in this respect that the hiring of workers to break a strike in a sector which cannot be regarded as an essential sector in the strict sense of the term, and hence one in which strikes might be forbidden, constitutes a serious violation of freedom of association (see Digest, op. cit., para. 570). The Committee has also considered that if a strike is legal, recourse to the use of labour drawn from outside the undertaking to replace the strikers for an indeterminate period entails a risk of derogation from the right to strike, which may affect the free exercise of trade union rights (see Digest, op. cit., para. 571). Moreover, national legislation pertaining to trade union rights, and in this case the right to strike, should be in conformity with freedom of association principles. The Committee notes that the legislation contains a certain number of guarantees since the hiring takes place during a specified period, with the permission of the Labour Relations Commission. The Committee stresses, nevertheless, that this provision is only acceptable from the standpoint of freedom of association if it applies to essential services in the strict sense of the term.
337. As regards the complaint concerning the prohibition on workplace occupations during strikes, the Committee requests the Government to provide detailed information in response. However, the Committee draws the attention of the Government to the view it has adopted in several cases that "Regarding various types of strike action denied to workers (tools-down, go-slow, work-to-rule and sit-down strikes), the Committee considers that these restrictions may be justified only if the strike ceases to be peaceful" (see Digest, op. cit., para. 496). The Committee has also decided that taking part in picketing and firmly but peacefully inciting other workers to keep away from their workplace cannot be considered unlawful. The case is different, however, when picketing is accompanied by violence or coercion of non-strikers in an attempt to interfere with their freedom to work; such acts constitute criminal offences in many countries (see Digest, op. cit., para. 586).
338. The Committee notes that under the terms of the new legislation, the remuneration of workers for the strike period is prohibited. In this respect, the Committee requests the Government to provide information in response to this allegation so that it may be examined in full knowledge of all the facts.
339. As regards the prohibition on employers from remunerating full-time union officers, the Committee notes that this new provision will be applied from the year 2002. The Committee requests the Government to provide information in this respect so that it may examine this allegation in full knowledge of all the facts.
340. Having thus examined the provisions adopted by the National Assembly in December 1996, the Committee is bound to note that much remains to be done in order for the legislation to be brought into full conformity with freedom of association principles. In this respect, the Committee takes note of the Government's statement to the effect that after an agreement that was reached between the ruling and opposition parties, debates over the labour laws are to be reopened soon at the National Assembly. In these conditions, the Committee expresses the firm hope that a new examination of the legislation by the National Assembly will lead to the full application of freedom of association principles. It requests the Government to inform it of developments in this regard.
- Allegations of a factual nature
341. In its previous report on this case, the Committee had urged the Government to do everything in its power to have the charges brought against Mr. Kwon Young-Kil, still president of the KCTU, dropped. In its reply of November 1996, the Government merely reiterates the information that it supplied earlier, namely that Mr. Kwon was released on bail. Furthermore, far from dropping the charges brought against Mr. Kwon (namely the violation of the prohibition of third-party intervention), the authorities issued a new warrant for his arrest for "interference in business", following the general strike action taken against the adoption of the new legislation. They also issued warrants for the arrest of 19 other trade union leaders. Five trade union leaders were finally arrested.
342. The Government has not yet furnished any observations on these allegations, but even according to the ICFTU's own statements the trade union leaders who were arrested during the most recent strikes are now released. It further appears that these warrants were withdrawn although no repeal has been formally issued. The ICFTU nevertheless provides a list of trade unionists who are still detained or wanted for events that took place prior to the most recent strikes.
343. The Committee must express its serious concern at this situation. It considers that, if the Government wishes to build a new industrial relations system founded on principles of freedom of association, it must first of all, in order to establish a climate of confidence, drop the charges brought against trade unionists for pursuing their legitimate trade union activities, including strike action, and release those who are still detained. The Committee therefore urges the Government to take the necessary measures to this end without delay and to keep it informed of any progress made in this respect. It requests the Government in particular to provide detailed information on the persons mentioned in Annexes I and II of the present report.
344. The Committee notes the latest allegations presented by the ICFTU concerning police intervention in trade union marches and the harassment that an international trade union mission sent to the country was subjected to. It requests the Government to provide its observations in this regard.
345. In view of the importance of the principles which are at stake as regards the allegations both of a legislative as well as of a factual nature, the Committee considers that it would certainly be very useful for a high-level mission to be undertaken to the country as soon as possible so that the Government can take its views into account with a view to fully implementing freedom of association principles. In the particular circumstances of this case, the Committee considers that there would be advantages if this mission were tripartite. The Committee expresses the hope that the Government will respond positively to this suggestion, which has been made in a constructive spirit with a view to assisting the Government to find appropriate solutions to the existing problems.

The Committee's recommendations

346. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
- (a) As regards the legislative aspects of this case, the Committee urges the Government:
- (i) to take the necessary measures without delay so that public servants and teachers can establish and join organizations of their own choosing;
- (ii) to register without delay the Korean Teachers' and Educational Workers' Union (CHUNKYOJO) so that it can legally defend and promote the interests of its members;
- (iii) to repeal section 3 of the Law on Prohibiting the Collection of Contributions in Cash or in Kind in order to ensure that unions enjoy financial independence;
- (iv) to take the necessary measures to render trade union pluralism legal without delay;
- (v) to proceed with the registration of the KCTU as well as of the Korean Automobile Workers' Federation, the National Council of Subway Workers' Union and the Federation of Hyundai Group Trade Union;
- (vi) to provide information on the scope of the term "social activities" which could justify the disqualification of a trade union;
- (vii) to ensure that organizations of employers and workers have the right to choose, without hindrance, the persons from whom they wish to seek assistance during collective bargaining and dispute settlement procedures;
  - (viii) to provide further information on, and to take the necessary measures to modify the list of essential services where the right to strike is prohibited;
- (ix) to review the provision concerning the right of dismissed workers so that the principle of the free affiliation of workers with the trade union of their choice is respected;
- (x) to limit the hiring of workers from outside the business to replace strikers to essential services in the strict sense of the term;
- (xi) to provide detailed information in reply to the allegation concerning the prohibition on workplace occupations during strikes;
- (xii) to provide information in response to the allegation that the remuneration of workers for the strike period is prohibited;
  - (xiii) to provide information in respect of the allegation concerning the prohibition on employers from remunerating full-time union officers;
- (xiv) to inform it of developments regarding the new examination of the legislation by the National Assembly.
- (b) As regards the allegations of a factual nature:
- (i) the Committee expresses its concern over the important number of trade unionists who are still detained;
- (ii) the Committee requests the Government to drop the charges brought against trade unionists for pursuing their legitimate trade union activities including strike action and to release those who are still detained;
- (iii) the Committee urges the Government to take the necessary measures to this end without delay and to keep it informed of any progress made in this respect;
- (iv) the Committee requests the Government in particular to provide detailed information on the persons mentioned in Annexes I and II of the present report;
- (v) the Committee requests the Government to provide its observations on the allegations concerning police intervention in trade union marches and the harassment that an international trade union mission was subjected to.
- (c) The Committee requests the Government to examine the possibility of a high-level tripartite mission being undertaken to the country as soon as possible so that the Government can take its views into account with a view to fully implementing freedom of association principles.

Annex I

Arrest warrants have been issued for the following trade union leaders
Kwon, Young-kil President KCTU
Bae, Suk-bum Vice-President KCTU
Heo, Young-ku Vice-President KCTU
Kim, Young-dae Vice-President KCTU
Dan, Byung-hoe Vice-President KCTU (President, Korean
Federation of Metalworkers'
Unions - KFMU)
Park, Moon-jin Vice-President KCTU (President, Korean
Federation of Hospital Work
Unions)
Bae, Bum-sik Vice-President KCTU (President, Korean
Federation of Automobile
Workers)
Lee, Young-hee Vice-President KCTU (President, Hyundai
Trade Union Federation)
Kwak, Dae-cheun President Hyundai Mipo Shipyard Union
- KFMU
Kim, Im-shik President Hyundai Heavy Industry
Union - KFMU
Oh, Hyung-keun Research Director Halla Heavy Industry Union
- KFMU
Yoon, Bok-jung General Secretary KFMU - South Kyunggi-do
Province
Lee, Seung-kwan President Deakbn Jinheung Union
- KFMU
Jeun, Jae-hwan President Daewoo Heavy Industry Union
- KFMU
Joo, Ki-seung Director for Halla Heavy Industry Union
organizing - KFMU
Cheun, Suhk-bok Dismissed
worker from Hyundai Heavy Industry
Choo, In-sang Director for Halla Heavy Industry Union
organizing - KFMU
Sohn, Bong-hyun President Hyundai Precision Industry
Union
Heung, Kahp-deuk President Hyundai Motors Union
Annex II
Situation of imprisoned and wanted workers in the Republic of Korea
(as of 28 November 1996)
Oh, Jong-ryul
Position/organization: Former President, Kwangju District
Teachers' Union
Date of arrest: 1995
Charge: Violation of National Security Law
Lee, Seung-pil*
Position/organization: Vice-President, Korean Federation
of Metalworkers' Union
Date of arrest: 4.5.1996
Charge: Third-party intervention; strike at Hyundai Motors
in 1994
Sentence/current trial status: 10 months; pending appellate court
Hwang, Young-ho
Position/organization: President, Korea Textile Co. Trade Union
Date of arrest: 22.5.1996
Charge: Interference with business
Sentence/current trial status: 2 years; pending appellate court
Im, Je-young
Position/organization: Welfare Secretary, Korea Textile Co.
Trade Union
Date of arrest: 22.5.1996
Charge: Interference with business
Sentence/current trial status: Pending appellate court
Lee, Jeung-hoon
Position/organization: Publicity Secretary, Korea Textile Co.
Trade Union
Date of arrest: 22.5.1996
Charge: Interference with business
Sentence/current trial status: Pending appellate court
Moon, Soon-deuk
Position/organization: President, SureProducture Co. Trade Union
Date of arrest: 8.6.1995
Charge: Violation of National Security Law
Cho, Myung-lae
Position/organization: General Secretary, Kumi Regional Council,
Korea, Federation of Metalworkers' Unions
Date of arrest: 19.6.1996
Charge: Third-party intervention
Sentence/current trial status: 1 1/2 years; appellate court
Lee, Jeung-young
Position/organization: Shop steward, Shin-il Metal Trade Union
Date of arrest: 2.7.1995
Charge: Labor Disputes Adjustment Act; interference with business; strike in
1994
Hong, Yuh-po
Position/organization: President, Masan-Changwon Regional Council
of Trade Unions
Date of arrest: 5.7.1996
Charge: Interference with business; violence; interference with
law and order implementation
Sentence/current trial status: 10 months; appellate court
Park, Seung-ho
Position/organization: Dismissed worker from Hanjin Heavy
Industry Co. Trade Union
Date of arrest: 8.1996
Charge: Interference with business; Labour Disputes
Adjustment Act
Sentence/current trial status: First trial
Lee, Kyung-su
Position/organization: President, Daerim Automobile Co.
Trade Union
Date of arrest: 8.8.1996
Charge: Interference with business (wanted for arrest)
Sentence/current trial status: First trial
Kim, Pyong-ki
Position/organization: Disputes Secretary, Daerim Automobile Co.
Trade Union
Date of arrest: 8.8.1996
Charge: Interference with business (wanted for arrest)
Sentence/current trial status: First trial
Ahn, Seung-oh
Position/organization: Shop steward, Daerim Automobile Co.
Trade Union
Date of arrest: 8.8.1996
Charge: Interference with business (wanted for arrest)
Sentence/current trial status: First trial
Kim, Ki-young
Position/organization: General Secretary, Changwon Branch,
Doosan Machinery Trade Union
Date of arrest: 19.9.1996
Charge: Interference with business; violence; CBA process
Sentence/current trial status: Changwon Pol.
Kim, Ki-deuk
Position/organization: Ex-company member, Changwon Branch,
Doosan Machinery, Trade Union
Date of arrest: 19.9.1996
Charge: Interference with business; violence; CBA process
Sentence/current trial status: Changwon Pol.
Im, Young-tae
Position/organization: President, Expiaworld Trade Union
Date of arrest: 23.9.1996
Charge: Interference with business; CBA process
Kim, Sang-bum
Position/organization: Shop steward, Expiaworld Trade Union
Date of arrest: 23.9.1996
Charge: Interference with business; CBA process
Lee, Seung-hwan
Position/organization: Editor-in-chief, Korea Fukoku Trade Union
Date of arrest: 10.1996
Charge: Violence
Lee, Jae-hyung
Position/organization: Director, Education and Publicity Dept.,
Korea Fukoku Trade Union
Date of arrest: 10.1996
Charge: Violence
Im, Jin-yong
Position/organization: Dismissed worker, LG Chemical Trade Union
Date of arrest: 8.10.1996
Charge: Protest against dismissal
Lee, Kang-chil*
Position/organization: Dismissed worker, LG Chemical Co.
Date of arrest: 8.10.1996
Charge: Interference with business; protest against dismissal
Sentence/current trial status: (warrant for arrest issued)
(wanted for arrest)
Oh, Hyun-shik*
Position/organization: Dismissed worker, LG Chemical Co.
Date of arrest: 8.10.1996
Charge: Interference with business; protest against dismissal
Sentence/current trial status: (warrant for arrest issued)
(wanted for arrest)
Lee, Chul-eui
Position/organization: Chair, Committee for Democratisation
of Railway Workers' Trade Union
Date of arrest: 9.10.1996
Charge: Violation of National Security Law
Song, Ho-jun
Position/organization: Member, Committee for Democratisation
of Railway Workers' Trade Union
Date of arrest: 9.10.1996
Charge: Violation of National Security Law
Kim, Woon-chul
Position/organization: Chairperson, Pusan Committee for
Democratisation of Railway Workers' Trade
Union
Date of arrest: 9.10.1996
Charge: Violation of National Security Law
Shim, Jong-seup
Position/organization: Vice-President, Halla Heavy Industry
Trade Union
Date of arrest: 9.10.1996
Charge: Violation of National Security Law
Ahn, Ki-ho
Position/organization: President, Hyoseung Metal Industry
Trade Union
Date of arrest: 9.10.1996
Charge: Violation of National Security Law
Won, Dae-seup
Position/organization: Shop steward, Hyundai Heavy Industry
Trade Union
Date of arrest: 9.10.1996
Charge: Violation of National Security Law
Note: The imprisoned workers documented here refer only to those who are
members of the KCTU affiliated unions.
* Released on completion of the prison sentence.