Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 363, Mars 2012

Cas no 2602 (République de Corée) - Date de la plainte: 10-OCT. -07 - Clos

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

1. 438. The Committee last examined this case at its March 2011 meeting and on that occasion presented an interim report to the Governing Body [see 359th Report, paras 342–370, approved by the Governing Body at its 310th Session].
2. 439. The Government sent its observations in a communication dated 28 October 2011.
3. 440. The Republic of Korea has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 441. At its March 2011 session, in the light of the Committee’s interim conclusions, the Governing Body approved the following recommendations:
   • (a) The Committee expects that the Government will take all necessary measures to ensure protection of workers’ organizational rights against abuses in relation to disguised employment relationships and requests it to provide a copy of the Supreme Court ruling of 22 July 2010 in the case of a worker dismissed from the HMC Ulsan factory in February 2005 and to provide information on the outcome of the retrial of this case by the lower court. It also requests the Government to keep it informed of the outcome of the inspection it conducted following the 22 July 2010 decision of the Supreme Court to assess the state of in-company subcontracting at 29 workplaces, and of any further impact this decision has on the situation of workers in a disguised employment relationship.
   • (b) The Committee requests the Government to take the necessary measures to ensure that all workers, including “self-employed” workers, such as heavy goods vehicle drivers, can fully enjoy freedom of association rights with the organizations of their own choosing for the furtherance and defence of their interest, including the right to join federations and confederations of their own choosing subject to the rules of the organization concerned and without any previous authorization.
   • (c) The Committee requests the Government to indicate whether national legislation provides for the right of appeal in the case of dissolution of a trade union by the administrative authority. If such a procedure is not provided for, it requests the Government to take the necessary measures, in consultations with the social partners, to amend the provisions of the TULRAA and its Enforcement Decree, so as to ensure that workers’ organizations are not liable to be dissolved by administrative authority and that an administrative decision does not take effect until a final decision is handed down. It requests the Government to keep it informed in this respect.
   • (d) The Committee requests the Government to hold consultations with all the parties involved with the aim of finding a mutually acceptable solution so as to ensure that, on the one hand, workers who are self-employed could fully enjoy trade union rights under Conventions Nos 87 and 98 for the purpose of furthering and defending their interest, including by the means of collective bargaining and, on the other hand, that no measures which would deprive trade union members from being represented by their respective unions are taken against the KCWU and the KTWU. The Committee requests the Government to keep it informed of the outcome of such consultations.
   • (e) The Committee once again requests the Government to develop, in consultation with the social partners concerned:
     • (i) appropriate mechanisms aimed at strengthening the protection of subcontracted (“dispatch”) workers’ rights to freedom of association and collective bargaining, guaranteed to all workers by the TULRAA, and at preventing any abuse of subcontracting as a way to evade in practice the exercise by these workers of their fundamental rights. Such mechanisms should include an agreed process for dialogue determined in advance; and
     • (ii) specific collective bargaining mechanisms relevant to the particularities of self employed workers.
   • (f) The Committee once again urges the Government to carry out without delay independent investigations into:
     • (i) the dismissals of the subcontracted workers in HMC Ulsan and Jeonju and, if these workers are found to have been dismissed solely on the grounds that they staged industrial action against a “third party”, i.e. the principal employer (subcontracting company), to ensure that they are reinstated in their posts without loss of pay as a primary remedy. If the judicial authority determines that reinstatement of trade union members is not possible for objective and compelling reasons, adequate compensation should be awarded to remedy all damages suffered and prevent any repetition of such acts in the future, so as to constitute a sufficiently dissuasive sanction against acts of anti-union discrimination; and
     • (ii) the alleged acts of violence perpetrated by private security guards against trade unionists during rallies at HMC Asan and Ulsan and at Kiryung Electronics and, if they are confirmed, to take all necessary measures to punish those responsible and compensate the victims for any damages suffered.
   • (g) As regards the allegations of acts of anti-union discrimination and interference at Hynix/Magnachip and at HMC (Ulsan factory and Asan Plant), the Committee once again urges the Government to take the necessary measures to reinstate the dismissed trade union leaders and members as a primary remedy; if the judicial authority determines that reinstatement is not possible for objective and compelling reasons, adequate compensation should be awarded to remedy all damages suffered and to prevent any repetition of such acts in the future, so as to constitute a sufficiently dissuasive sanction against acts of anti-union discrimination. The Committee also requests the Government to keep it informed of the High Court decision in the case of workers dismissed from Asan Plant.
   • (h) Regretting that the Government has not replied to its previous requests, the Committee once again urges the Government to take all necessary measures to promote collective bargaining over the terms and conditions of employment of subcontracted workers in the metal sector, in particular in HMC, KM&I and Hynix/Magnachip, including through building negotiating capacities, so that subcontracted workers in these companies may effectively exercise their right to seek to improve the living and working conditions of their members through negotiations in good faith.
     • (i) Regretting that the Government has not replied to its previous requests, the Committee once again urges the Government to take all necessary measures without delay so as to bring section 314 of the Penal Code (“obstruction of business”) into line with freedom of association principles, and to keep it informed in this regard.
   • (j) The Committee expects that the Government and the judicial authorities will put in place adequate safeguards so as to avert in future the possible risks of abuse of judicial procedure on grounds of “obstruction of business” with the aim of intimidating workers and trade unionists, and that the courts in their rulings will take due account of the need to build a constructive industrial relations climate in the context of individual industrial relations.
   • (k) The Committee expects that the above recommendations will be implemented without further delay and urges the Government to keep it informed in this respect. It once again reminds the Government that it may avail itself of the technical assistance of the Office.

B. The Government’s reply

In-company subcontracting

1. 442. In a communication dated 28 October 2011, the Government states that the Supreme Court ruling of 22 July 2010 is expected to serve as an important basis to determine whether a case of in-company subcontracting is illegal dispatch or not. The Government further indicates that, after the Supreme Court sent the case of the Hyundai Motor Company (HMC) Ulsan factory back to the High Court, the latter upheld on 10 February 2011 the Supreme Court’s decision, acknowledging that the subcontracted workers were illegally dispatched and that an employment relationship is constituted between HMC and the workers of the in-company subcontractors who had worked there for more than two years. For that reason, the High Court revoked the decision of the retrial as well as the first instance decision of the Administrative Court, both of which were made based on the premise that HMC is not the employer of the workers. However, HMC appealed against the High Court decision on 14 February 2011, and the case is currently pending in the Supreme Court.
2. 443. According to the Government, with controversies mounting over whether in-company subcontracting is used as an illegal form of worker dispatch in large companies, inspections were conducted for 25 companies in September and October 2010; the initial plan being to inspect 29 companies but four of them refused to accept the inspection. The inspection found that the shipbuilding, electronics and IT sectors each had an illegal dispatch case. In particular, the Government reports that, in a shipbuilding company, there were no illegal dispatch cases between the contracting company and the subcontracted companies but illegal cases were identified between in-company subcontractors; following the inspection, warnings were issued to prevent any repetition of similar violations. In an electronics company, it was found that 11 workers of the subcontracted companies were illegally dispatched to the contracting company; a corrective order was issued for the contracting company to either directly employ the workers or convert the dispatch into a legitimate form. In an IT company, 18 workers of the subcontractors who had been illegally dispatched to the IT company were directly hired by the contracting company as per the corrective order of the Ministry of Employment and Labour (MOEL). Also, another company caught in the inspection for illegal dispatch of 327 workers corrected the illegal practice and employed the workers directly.
3. 444. Subcontracted workers are granted the rights to freedom of association and collective bargaining guaranteed to all workers by the Trade Union and Labour Relations Adjustment Act (TULRAA), and the trade union of the subcontracted company can perform collective bargaining with its direct employer, i.e. the subcontracted company, who determines the working conditions of the workers. In-company subcontracting is a matter of the company’s management decision and should not necessarily be seen as a way to evade the exercise by the workers of their fundamental rights.
4. 445. The Government will continue its monitoring and guidance efforts to ensure prevention of illegal subcontracting. As part of such efforts, the MOEL has released the “Guidelines for Protection of Subcontracted Workers’ Working Conditions” on 18 July 2011 for compliance by contracting and subcontracted companies, along with instructions for the guideline and the “Self-compliance Checklist for the Guideline for Subcontracted Workers”. The MOEL plans to foster an environment conducive to the compliance with the guideline by establishing a channel, called the “Illegal Subcontracting Reporting Center”, in its local offices for reporting of illegal subcontracting cases against the guideline’s legal requirements, and to run the supporters club for the improvement of the subcontracted workers’ working conditions. Furthermore, the Ministry will make sure that compliance checks are conducted during the workplace inspection, actively guide both the contracting and subcontracted companies to comply with the guideline, and identify and publish best practices to raise awareness. By promoting the guideline, the Government intends to protect subcontracted worker’s labour rights and improve their working conditions in cooperation with the contracting and subcontracted companies, thereby strengthening their business competitiveness.
5. 446. As regards Article 314 of the Penal Code, the Government refers to the provisions of the TULRAA stipulating that “no employer shall claim damages against a trade union or workers in cases where he/she has suffered damage because of collective bargaining or industrial action under the Act” (Article 3), that such justifiable acts shall not be punishable (Article 4), and that “no act of violence or destruction shall be construed as being justifiable for any ground” (Article 4). The Government concludes that justifiable industrial actions are protected whereas the trade union is held responsible in both civil and criminal terms for any illegitimate industrial actions it has taken. Any illegitimate industrial actions ruled by the court as “obstruction of business” are punishable under Article 314(1) of the Penal Code, which seeks to punish those who interfere with the business of another by circulating false facts or through fraudulent means or by the threat of force. According to the Government, the “obstruction of business” charge applies to illegal industrial actions involving acts of violence, occupation of production lines, etc., that are obviously against the Penal Code; and the “threat of force” as a means for obstruction of business refers to any influence that overwhelms the free will and judgment of another by force or threat. A labour strike staged as an industrial action may be seen as an obstruction of business if it goes beyond a simple refusal to work specified in the employment contract, influencing the employer to accept the workers’ demands by force or threat of a collective refusal to work. The Government further indicates that, recently, the Supreme Court ruled that “obstruction of business” by “threat of force” does not apply to all industrial actions but to the cases where it is deemed, based on the circumstances and developments, that such actions were committed abruptly at a time unpredictable to the employer causing serious confusion or material damage to the business operation of the employer which could overwhelm the free will and judgement of the employer as to the continuance of business (Supreme Court decision 2007Do482 of 17 March 2011). In the Government’s view, it is unlikely that the “obstruction of business” provision in the Penal Code will infringe on the freedom of association principles, since this decision clarifies that the “obstruction of business” charge will be applied only to illegal strikes with overwhelming influence on the free will and judgment of the employer as to the continuance of business.
6. 447. Lastly, the Government informs that, after the Supreme Court ruled on 25 June 2009 that workers of HMC Asan Plant had been unfairly dismissed and sent the case back to the High Court, the latter upheld on 8 December 2009 the Supreme Court’s decision and cancelled the first instance decision which had ruled otherwise. The employer appealed to the Supreme Court once again but the appeal was dismissed for lack of grounds for appeal. As a result, it was finally confirmed that the workers were unfairly dismissed.

Freedom of association of heavy goods vehicle drivers

1. 448. The Government indicates that, besides the employment contract, there are several other contracts aimed at the provision of labour such as the delegation contract, the subcontract, etc., and that the provisions of labour laws are, in principle, applicable only to the worker and his/her employer with a “contractual employment relationship” which is recognized when an “employer–employee relationship” exists between them.
2. 449. According to the Government, the Supreme Court judges that, irrespective of the type of contract, whether it be an employment contract, a subcontract or a delegation contract, the employer–employee relationship is determined based on several factors that are reflective of the actual relationship between the parties including whether the worker is under the supervision or direction of the alleged employer, whether the employer pays wages to the worker as a reward for the work performed, and the nature and specifics of the work (Supreme Court decision 2005Da20910 of 11 May 2006). When it comes to self-employed drivers of ready-mixed concrete trucks, the courts consistently denied their status as an employee (Supreme Court decision 2005Da64385 of 13 October 2006). They also did not acknowledge the organizations of ready-mixed concrete truck drivers as trade unions pursuant to the TULRAA (Supreme Court decisions 2003Du3871 of 8 September 2006 and 2004Du4888 of 30 June 2006, etc.). Along the same lines, the Supreme Court concluded that the self-employed drivers of cargo trucks and dump trucks are not considered as employees as defined by the TULRAA, citing that an employer–employee relationship does not exist between the drivers and the company they work with because the drivers have the ownership of the vehicles, work independently without specific supervision and oversight by the company and bear overall costs incurred on the job (Supreme Court decision 2000Da30240 of 6 October 2000).
3. 450. The Government concludes that, since the owner drivers of cargo trucks, dump trucks and ready-mixed concrete trucks are self-employed persons, not employees of another, they can neither organize or join a trade union, nor exercise the trade union’s right to collective bargaining. Therefore, specific collective bargaining mechanisms for these workers are not admissible under the Korean legal system. In the Government’s view, judgement on whether a worker of a specific type is an employee solely belongs to the authority of the Judiciary, and as the judicial authority concluded that the aforementioned owner drivers do not have the employee status, the administrative authority cannot take measures against the decision.
4. 451. However, the Government states that, according to the Korean Constitution that guarantees freedom of association, self-employed drivers can establish an organization to represent their interests and use it as a vehicle to convey their demands to their business counterpart. This process enables the drivers to negotiate rates and other matters with their appropriate counterpart and, ultimately, protect their own rights and interests. Nevertheless, the Government stresses that such an organization differs from the trade union defined by TULRAA and thus is not eligible for the benefits enjoyed by the trade union under the Act. According to the Government, organizations of cargo and dump truck drivers have been established and operate freely without the intervention of the Government, engaging in negotiations on rates and other matters.

Dissolution of a trade union by the administrative authority

1. 452. The Government indicates that, where, after a trade union is delivered with a union establishment certificate, there arise grounds for disqualifying the trade union under the TULRAA, the administrative authority shall demand correction within the period of 30 days. If the correction is not made within this period, the authority shall notify the trade union in question that it shall not be regarded as a trade union as provided for under the Act (article 9(2) of the Enforcement Decree of the TULRAA). According to the Government, such a notification is not an order by the administrative authority to dissolve the trade union. It does not force the dissolution of the trade union or forbid union activities. Neither does it constitute a retroactive revocation of the union establishment certificate that was issued previously, but rather a notice that the protection and benefits granted to trade unions under the Act are no longer applicable to them. The organization can still continue its activities even after the notification is issued; however, such activities will no longer be regarded as union activities but as activities by an organization organized based on the freedom of association.
2. 453. The Government further indicates that the trade union may appeal against the notification. Nevertheless, it is one of the core principles of the Korean administrative laws that an administrative decision remains in effect until and unless the court’s final ruling is delivered against it. In the Government’s view, mandating that an administrative decision based on the TULRAA does not take effect until the final court decision is handed down will therefore trigger a conflict with the principle and eventually with the entire legal framework, where this legal principle is universally applied. According to the Government, the principle is not aimed at restricting trade union rights, as it applies also in the opposite case where a trade union files for a remedy for unfair labour practices and the Labour Relations Commission issues an order to the employer to remedy, this administrative decision takes effect immediately even when the employer appeals against the decision, rather than remaining ineffective until the final ruling. The Government indicates, however, that there is a legal tool called the “suspension of execution”, a court order to temporarily suspend the execution of a decision, which can be applied in the case when irrecoverable damage could be caused by the execution of the decision. The trade union may seek a suspension of execution to make the decision unenforceable until the final decision is rendered by the court. The Government states that, in 2009, it had requested the Korean Construction Workers Union (KCWU) and the Korean Transport Workers Union (KTWU), both of which had non-employees as members, to make voluntary efforts to correct the unlawful practice; however, it did not notify them that they shall not be regarded as a trade union.

C. The Committee’s conclusions

1. 454. The Committee notes that this case concerns “illegal dispatch” workers, i.e. precarious workers in disguised employment relationships, in HMC Ulsan, Asan and Jeonju plants, Hynix/Magnachip, Kiryung Electronics and KM&I, who are allegedly denied legal protection under the TULRAA and are left unprotected vis-à-vis: (1) recurring acts of anti union discrimination, notably dismissals, aimed at thwarting their efforts to establish a union; (2) the consistent refusal of the employer to bargain as a result of which none of the unions representing those workers have succeeded in negotiating a collective bargaining agreement; (3) dismissals, imprisonment and compensation suits claiming exorbitant sums, for “obstruction of business”.
2. 455. With respect to its previous recommendation (a) relating to the Supreme Court ruling of 22 July 2010, the Committee notes the Government’s indication that: (i) the decision is expected to serve as an important basis to determine whether a case of in-company subcontracting is illegal dispatch; (ii) the High Court decision of 10 February 2011 upheld the Supreme Court’s decision acknowledging that the subcontracted workers were illegally dispatched and that an employment relationship is constituted between HMC and the workers of the in-company subcontractors who had worked there for more than two years; and HMC appealed against this High Court decision before the Supreme Court; and (iii) inspections were planned in 29 companies but four refused; the inspections conducted in 25 companies in September and October 2010 found that the shipbuilding, electronics and IT sectors each had an illegal dispatch case; and where workers of the subcontracted companies were illegally dispatched to the subcontracting company, a corrective order was issued mostly demanding the subcontracting company to directly employ the workers or sometimes leaving the option to convert the dispatch into a legitimate form. Given the apparent pervasive use of this type of employment, the Committee expresses concern at the fact that, according to the Government, some companies refused and were able to refuse inspection, and trusts that the Government will take the necessary measures to ensure that, where necessary, inspections may take place to ensure respect for freedom of association and collective bargaining principles. The Committee also requests the Government to keep it informed of the final outcome of the judicial proceedings concerning the case of a worker dismissed from the HMC Ulsan factory and any other concrete developments illustrating the impact of the Supreme Court ruling of 22 July 2010 on the situation of workers in a disguised employment relationship.
3. 456. With respect to its previous recommendations (e) (i) and (h) concerning the need to strengthen the trade union and collective bargaining rights of “ illegal dispatch” workers, the Committee notes the Government’s indication that: (i) it has released the “Guidelines for Protection of Subcontracted Workers’ Working Conditions” on 18 July 2011 for compliance by contracting and subcontracted companies, along with instructions and a “Self-compliance Checklist for the Guideline for Subcontracted Workers”, has established the channel “Illegal Subcontracting Reporting Center” for reporting of illegal subcontracting cases, will make sure that compliance checks are conducted during the workplace inspection, will actively guide all stakeholders to comply with the Guideline and will publish best practices to raise awareness; (ii) in-company subcontracting is a matter of the company’s management decision and should not necessarily be seen as a way to evade the exercise by the workers of their fundamental rights; and (iii) subcontracted workers are granted the rights to freedom of association and collective bargaining guaranteed to all workers by the TULRAA, and the trade union of the subcontracted company can perform collective bargaining with the subcontracted company who determines the working conditions of the workers.
4. 457. While welcoming the monitoring and guidance efforts made by the Government to prevent illegal subcontracting, the Committee cannot but express its concern at the continuing allegations of use of “in-company subcontracting” to evade the exercise of trade union rights. It wishes to emphasize in this regard that collective bargaining between the relevant trade union and the party who determines the terms and conditions of employment of the subcontracted/agency workers should always be possible. The Committee therefore once again requests the Government to develop, in consultation with the social partners concerned, appropriate mechanisms, including an agreed process for dialogue determined in advance, aimed at strengthening the protection of subcontracted/agency workers’ rights to freedom of association and collective bargaining, guaranteed to all workers by the TULRAA, thus preventing any abuse of subcontracting as a way to evade in practice the exercise by these workers of their fundamental rights. Moreover, deeply regretting that the Government has not replied to its previous requests, the Committee once again urges the Government to take all necessary measures to promote collective bargaining over the terms and conditions of employment of subcontracted/agency workers in the metal sector, in particular in HMC, KM&I and Hynix/Magnachip, including through building negotiating capacities, so that trade unions of subcontracted/agency workers in these companies may effectively exercise their right to seek to improve the living and working conditions of their members through negotiations in good faith. The Committee also asks the Government to provide a copy of the “Self-Compliance Checklist for the Guideline for Subcontracted Workers”.
5. 458. As regards its previous recommendation (f), the Committee notes that, according to the Government, following the Supreme Court ruling of 25 June 2009 that the strike action was legitimate and the workers of HMC Asan Plant had been unfairly dismissed and after the return of the case to the High Court, the latter upheld on 8 December 2009 the Supreme Court’s decision, the employer appealed to the Supreme Court once again, the appeal was dismissed for lack of grounds, and, as a result, it was finally confirmed that the workers were unfairly dismissed. In this regard, the Committee requests the Government to confirm the reinstatement of these unfairly dismissed workers. Moreover, deeply concerned by the absence of information concerning any action taken in relation to the workers at Hynix/Magnachip and at HMC (Ulsan factory), the Committee once again urges the Government to carry out without delay independent investigations into: (i) the dismissals of the subcontracted/agency workers in HMC Ulsan and Jeonju and, if these workers are found to have been dismissed solely on the grounds that they staged industrial action against a “third party”, i.e. the principal employer (subcontracting company), to ensure that they are reinstated in their posts without loss of pay as a primary remedy. If the judicial authority determines that reinstatement of trade union members is not possible for objective and compelling reasons, adequate compensation should be awarded to remedy all damages suffered and prevent any repetition of such acts in the future, so as to constitute a sufficiently dissuasive sanction against acts of anti-union discrimination; and (ii) the alleged acts of violence perpetrated by private security guards against trade unionists during rallies at HMC Asan and Ulsan and at Kiryung Electronics and, if they are confirmed, to take all necessary measures to punish those responsible and compensate the victims for any damages suffered.
6. 459. Deeply concerned by the absence of information concerning any action taken by the Government to implement its previous recommendation (g) concerning the allegations of acts of anti-union discrimination and interference at Hynix/Magnachip and at HMC (Ulsan factory and Asan Plant) through the termination of contracts with subcontractors in case of establishment of trade unions of subcontracted workers, the Committee once again urges the Government to take the necessary measures to reinstate the dismissed trade union leaders and members as a primary remedy; if the judicial authority determines that reinstatement is not possible for objective and compelling reasons, adequate compensation should be awarded to remedy all damages suffered and to prevent any repetition of such acts in the future, so as to constitute a sufficiently dissuasive sanction against acts of anti-union discrimination.
7. 460. As regards its previous recommendations (b), (d) and (e)(ii) concerning the need to guarantee trade union rights to “self-employed” workers such as heavy goods vehicle drivers, the Committee notes that the Government states that: (i) the provisions of labour laws are, in principle, applicable only to workers and employers with a “contractual employment relationship”; (ii) according to the Supreme Court, this necessitates an employer–employee relationship which is given if the worker is under the supervision or direction of the alleged employer, is paid wages by the employer as a reward for the work performed, and according to the nature and specifics of the work; (iii) the Supreme Court denied the employee status of drivers of ready-mixed concrete/cargo/dump trucks because the drivers have the ownership of the vehicles, work independently without specific supervision and oversight by the company and bear overall costs incurred on the job; their organizations are thus not acknowledged as trade unions pursuant to the TULRAA; (iv) in the Government’s view, the administrative authority cannot go against the judiciary’s decision, which means that these self-employed workers can neither organize or join a trade union, nor exercise the trade union’s right to collective bargaining, and specific collective bargaining mechanisms for these workers are not admissible under the Korean legal system; (v) since the Korean Constitution guarantees freedom of association, self-employed drivers can establish organizations to represent and protect their rights and interests, convey their demands to and negotiate rates and other matters with their business counterpart; however, they differ from the trade unions defined by the TULRAA and are thus not covered by the Act; and (vi) such organizations have been established and operate freely without Government intervention.
8. 461. The Committee wishes to emphasize, at the outset, that it is not taking a position as to whether the interpretation of the national legislation by the courts is founded. The mandate of the Committee consists in determining whether any given legislation or practice complies with the principles of freedom of association and collective bargaining laid down in the relevant Conventions [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 6]. In this regard, the Committee recalls that by virtue of the principles of freedom of association, all workers – with the sole exception of members of the armed forces and the police – should have the right to establish and join organizations of their own choosing. The criterion for determining the persons covered by that right, therefore, is not based on the existence of an employment relationship, which is often non-existent, for example in the case of agricultural workers, self-employed workers in general or those who practise liberal professions, who should nevertheless enjoy the right to organize [see Digest op. cit., para. 254]. The Committee considers that this principle equally applies to heavy goods vehicle drivers. Consequently, and considering that truck drivers should be able to join the organizations of their own choosing to further and defend their interests, including organizations formed under the TULRAA, the Committee once again requests the Government to take the necessary measures to: (i) ensure that “self-employed” workers, such as heavy goods vehicle drivers, fully enjoy freedom of association rights, in particular the right to join the organizations of their own choosing; (ii) to hold consultations to this end with all the parties involved with the aim of finding a mutually acceptable solution so as to ensure that workers who are self-employed could fully enjoy trade union rights under Conventions Nos 87 and 98 for the purpose of furthering and defending their interest, including by the means of collective bargaining; and (iii) in consultation with the social partners concerned, to identify the particularities of self-employed workers that have a bearing on collective bargaining so as to develop specific collective bargaining mechanisms relevant to self-employed workers, if appropriate. The Committee also recalls that it is for the federations and confederations themselves to decide whether or not to accept the affiliation of a trade union, in accordance with their own constitutions and rules [see Digest op. cit., para. 722]. The Committee therefore requests the Government to take the necessary measures to: (i) ensure that organizations established or joined by heavy goods vehicle drivers have the right to join federations and confederations of their own choosing, subject to the rules of the organizations concerned and without any previous authorization; and (ii) withdraw the recommendation made to the KCWU and the KTWU to exclude owner drivers from their membership, and refrain from any measures against these federations, including under Article 9(2) of the Enforcement Decree of the TULRAA, which would deprive trade union members of being represented by their respective unions. The Committee requests the Government to keep it informed of all measures taken or envisaged in this respect.
9. 462. In relation to its previous recommendation (c) concerning de-registration of unions by administrative decision, the Committee notes that, according to the Government: (i) the notification under Article 9(2) of the Enforcement Decree of the TULRAA does not trigger the dissolution of the trade union or forbid union activities but rather informs that the organization is no longer regarded as a union nor protected by the TULRAA; (ii) the trade union may appeal against such notification; (iii) nevertheless, it is one of the core principles of the Korean administrative laws that an administrative decision remains in effect until and unless the court’s final ruling is delivered against it; and (iv) court orders to temporarily suspend the execution of a decision can be applied in the case when irrecoverable damage could be caused by the execution of the decision.
10. 463. In this regard, the Committee considers that a notification of the loss of union status and protection under the relevant laws amounts to the suspension of the legal personality of the union and thus to a cancellation of its registration. It recalls that measures taken to withdraw the legal personality of a trade union should be taken through judicial and not administrative action to avoid any risk of arbitrary decisions. If the principle that an occupational organization may not be subject to suspension or dissolution by administrative decision is to be properly applied, it is not sufficient for the law to grant a right of appeal against such administrative decisions; such decisions should not take effect until the expiry of the statutory period for lodging an appeal, without an appeal having been entered, or until the confirmation of such decisions by a judicial authority [see Digest op. cit., paras 702–703]. While noting that trade unions could seek a suspension of execution to make the decision under Article 9(2) of the Enforcement Decree of the TULRAA unenforceable until the final decision is rendered by the court, the Committee considers that measures of suspension or dissolution by the administrative authority constitute such extreme acts of interference and serious infringements of the principles of freedom of association that they should at least be subject to appeal to a judicial authority with automatic and immediate suspensive effect. The Committee therefore requests the Government to take the necessary measures, in consultation with the social partners, to amend the provisions of the TULRAA and its Enforcement Decree, so as to ensure that workers’ organizations are not liable to dissolution or suspension by an administrative authority or at least that such an administrative decision does not take effect until a final judicial decision is handed down. It requests the Government to keep it informed in this respect.
11. 464. With respect to its previous recommendations (i) and (j) concerning Article 314(1) of the Penal Code, the Committee notes the Government’s statement that: (i) Articles 3 and 4 of the TULRAA illustrate that justifiable industrial actions are protected whereas the trade union is held responsible in both civil and criminal terms for any illegitimate industrial actions ruled by the courts as “obstruction of business” under Article 314(1), which seeks to punish those who interfere with the business of another by circulating false facts or through fraudulent means or by the threat of force; (ii) “threat of force” refers to any influence that overwhelms the free will and judgment of another by force or threat, and that a labour strike may thus be seen as an obstruction of business if it goes beyond a simple refusal to work specified in the employment contract, influencing the employer to accept the workers’ demands by force or threat of a collective refusal to work; and (iii) Article 314(1) is unlikely to infringe freedom of association principles, since a recent Supreme Court decision clarifies that the charge of “obstruction of business” by “threat of force” only applies to industrial actions where it is deemed that “such actions were committed abruptly at a time unpredictable to the employer causing serious confusion or material damage to the business operation of the employer which could overwhelm the free will and judgment of the employer as to the continuance of business”.
12. 465. The Committee recalls that the question of the application of “obstruction of business” provisions in an occupational context has been the subject of recurring comment by the Committee in relation to its examination of Case No. 1865 involving the Republic of Korea. The Committee observes that industrial action is deemed illegitimate under Article 314 when the impact of the recourse to this fundamental right amounts to obstruction of business, and that “obstruction of business” by “threat of force” is deemed given where industrial action is committed abruptly, causing serious confusion or material damage to the business operation which could overwhelm the free will and judgment of the employer. In this respect, the Committee recalls that it has always recognized the right to strike by workers and their organizations as a legitimate means of defending their economic and social interests. As regards cases in which strikes may be restricted or prohibited, the Committee has always held that, by linking restrictions on strike action to interference with trade and commerce, a broad range of legitimate strike action could be impeded [see Digest, op. cit., paras 521 and 592]. Moreover, the Committee recognizes that strikes are by nature disruptive and costly and that strike action also represents important costs for those workers who choose to exercise it as a last resort tool and means of pressure on the employer to redress any perceived injustices. The Committee is therefore bound to express once again its great concern at the excessively broad legal definition of “obstruction of business” encompassing practically all activities related to strikes (see Case No. 1865, 335th Report, para. 834). It also recalls that penal sanctions should only be imposed as regards strikes where there are violations of strike prohibitions which are themselves in conformity with the principles of freedom of association [see Digest, op. cit., para. 668]. Consequently, the Committee once again urges the Government to take all necessary measures without delay so as to bring section 314 of the Penal Code “obstruction of business” into line with freedom of association principles, and to keep it informed in this regard. The Committee also expects that the Government and the judicial authorities will put in place adequate safeguards so as to avert in future the possible risks of abuse of judicial procedure on grounds of “obstruction of business” with the aim of intimidating workers and trade unionists, and that the courts in their rulings will take due account of the need to build a constructive industrial relations climate in the context of individual industrial relations.
13. 466. Lastly, the Committee expects that the above recommendations will be implemented without further delay and urges the Government to keep it informed in this respect. It once again reminds the Government that it may avail itself of the technical assistance of the Office to this end.

The Committee’s recommendations

1. 467. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Given the apparent pervasive use of this type of employment, the Committee expresses concern at the fact that, according to the Government, some companies refused and were able to refuse inspection, and trusts that the Government will take the necessary measures to ensure that, where necessary, inspections may take place to ensure respect for freedom of association and collective bargaining principles. The Committee also requests the Government to keep it informed of the final outcome of the judicial proceedings concerning the case of a worker dismissed from the HMC Ulsan factory and any other concrete developments illustrating the impact of the Supreme Court ruling of 22 July 2010 on the situation of workers in a disguised employment relationship.
   • (b) Welcoming the monitoring and guidance efforts made by the Government to prevent illegal subcontracting, the Committee once again requests the Government to develop, in consultation with the social partners concerned, appropriate mechanisms, including an agreed process for dialogue determined in advance, aimed at strengthening the protection of subcontracted/agency workers’ rights to freedom of association and collective bargaining, guaranteed to all workers by the TULRAA, so as to prevent any abuse of subcontracting as a way to evade in practice the exercise by these workers of their trade union rights. Moreover, the Committee once again urges the Government to take all necessary measures to promote collective bargaining over the terms and conditions of employment of subcontracted/agency workers in the metal sector, in particular in HMC, KM&I and Hynix/Magnachip, including through building negotiating capacities, so that trade unions of subcontracted/agency workers in these companies may effectively exercise their right to seek to improve the living and working conditions of their members through negotiations in good faith. The Committee also asks the Government to provide a copy of the “Self-Compliance Checklist for the Guideline for Subcontracted Workers”.
   • (c) Deeply concerned by the absence of information concerning any action taken in relation to the workers at Hynix/Magnachip and at HMC (Ulsan factory), the Committee once again urges the Government to carry out without delay independent investigations into: (i) the dismissals of the subcontracted/agency workers in HMC Ulsan and Jeonju and, if these workers are found to have been dismissed solely on the grounds that they staged industrial action against a “third party”, i.e. the principal employer (subcontracting company), to ensure that they are reinstated in their posts without loss of pay as a primary remedy. If the judicial authority determines that reinstatement of trade union members is not possible for objective and compelling reasons, adequate compensation should be awarded to remedy all damages suffered and prevent any repetition of such acts in the future, so as to constitute a sufficiently dissuasive sanction against acts of anti-union discrimination; and (ii) the alleged acts of violence perpetrated by private security guards against trade unionists during rallies at HMC Asan and Ulsan and at Kiryung Electronics and, if they are confirmed, to take all necessary measures to punish those responsible and compensate the victims for any damages suffered. Moreover, following the Supreme Court ruling of 25 June 2009 and the High Court ruling of 8 December 2009, the Committee requests the Government to confirm the reinstatement of the unfairly dismissed workers of HMC Asan Plant.
   • (d) Deeply concerned by the absence of information concerning any action taken by the Government to implement its previous recommendation concerning the allegations of acts of anti-union discrimination and interference at Hynix/Magnachip and at HMC (Ulsan factory and Asan Plant) through the termination of contracts with subcontractors in case of establishment of trade unions of subcontracted workers, the Committee once again urges the Government to take the necessary measures to reinstate the dismissed trade union leaders and members as a primary remedy; if the judicial authority determines that reinstatement is not possible for objective and compelling reasons, adequate compensation should be awarded to remedy all damages suffered and to prevent any repetition of such acts in the future, so as to constitute a sufficiently dissuasive sanction against acts of anti-union discrimination.
   • (e) The Committee once again requests the Government to take the necessary measures to: (i) ensure that “self-employed” workers, such as heavy goods vehicle drivers, fully enjoy freedom of association rights, in particular the right to join the organizations of their own choosing; (ii) to hold consultations to this end with all the parties involved with the aim of finding a mutually acceptable solution so as to ensure that workers who are self-employed could fully enjoy trade union rights under Conventions Nos 87 and 98 for the purpose of furthering and defending their interest, including by the means of collective bargaining; and (iii) in consultation with the social partners concerned, to identify the particularities of self-employed workers that have a bearing on collective bargaining so as to develop specific collective bargaining mechanisms relevant to self-employed workers, if appropriate. The Committee also requests the Government to take the necessary measures to: (i) ensure that organizations established or joined by heavy goods vehicle drivers have the right to join federations and confederations of their own choosing, subject to the rules of the organizations concerned and without any previous authorization; and (ii) withdraw the recommendation made to the KCWU and the KTWU to exclude owner drivers from their membership, and refrain from any measures against these federations, including under Article 9(2) of the Enforcement Decree of the TULRAA, which would deprive trade union members of being represented by their respective unions. The Committee requests to be kept informed of all measures taken or envisaged in this respect.
   • (f) The Committee requests the Government to take the necessary measures, in consultation with the social partners, to amend the provisions of the TULRAA and its Enforcement Decree, so as to ensure that workers’ organizations are not liable to dissolution or suspension by an administrative authority or at least that such an administrative decision is subject to appeal to a judicial authority with suspensive effect. It requests the Government to keep it informed in this respect.
   • (g) Expressing once again great concern at the excessively broad legal definition of “obstruction of business” encompassing practically all activities related to strikes, the Committee once again urges the Government to take all necessary measures without delay so as to bring Article 314 of the Penal Code “obstruction of business” into line with freedom of association principles, and to keep it informed in this regard. The Committee also expects that the Government and the judicial authorities will put in place adequate safeguards so as to avert in future the possible risks of abuse of judicial procedure on grounds of “obstruction of business” with the aim of intimidating workers and trade unionists, and that the courts in their rulings will take due account of the need to build a constructive industrial relations climate in the context of individual industrial relations.
   • (h) The Committee expects that the above recommendations will be implemented without further delay and urges the Government to keep it informed in this respect. It once again reminds the Government that it may avail itself of the technical assistance of the Office to this end.