Rapport définitif - Rapport No. 393, Mars 2021

Cas no 3371 (République de Corée) - Date de la plainte: 16-OCT. -19 - Clos

Allegations: The complainant denounces the refusal by the Ministry of Employment and Labour to issue the registration of establishment of the Korean Fixed-Term Teachers’ Union and alleges that the registration system in the country is in violation of the principles of freedom of association

1. 267. The complaint is contained in a communication dated 16 October 2019 from the Korean Fixed-Term Teachers’ Union (KFTTU).
2. 268. The Government provides its observations in communications dated 10 February and 11 September 2020 and 29 January 2021.
3. 269. The Republic of Korea has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 270. In its communication dated 16 October 2019, the complainant denounces the refusal by the Ministry of Employment and Labour (MOEL) to issue the registration of establishment of the KFTTU and alleges that the registration system in the country is in violation of the principles of freedom of association as it excludes from the definition of trade unions those organizations that allow dismissed workers and workers seeking employment to become their members.
2. 271. The complainant indicates that the KFTTU is a nationwide organization established in January 2018 with the aim to protect and promote the interests of teachers and their working conditions and currently has 112 active members. KFTTU members – teachers with fixed-term contracts – are often under short-term contracts for a particular semester or two, mostly less than a year, or on temporary terms, meaning that their contracts are expected to terminate at a defined term. Workers with such fixed-term contracts work over consecutive periods, with likelihood of unemployment between jobs. They are often dismissed from work when teachers with permanent contracts return to their jobs and are exposed to discrimination over a number of employment conditions. Despite the union’s efforts to improve job security of these workers, the insecurity of contracts is used as a justification by the MOEL to deprive the union of its legitimate status and the workers of the right to freely join the trade union of their choice.
3. 272. In July 2018, the KFTTU filed a registration to the MOEL for the authorization to establish in accordance with the formalities required by section 14 of the Trade Union and Labor Relations Adjustment Act (TULRAA). The complainant alleges that this request was rejected by the MOEL on the ground that the labour contract of the representative of the union, Hyeseong Park, was found dismissed and the representative could not be considered as an active worker, thus disqualifying the organization from being considered as a trade union under the legislation, since section 2(4)(d) of the TULRAA provides that “an organization shall not be regarded as a trade union … where those who are not workers are allowed to join it”. The MOEL also justified the rejection of the union’s establishment by stating that article 6(2) of its by-laws, which allows membership to teachers and prospective teachers whose labour contracts had been terminated, who had been dismissed or are seeking employment, is contrary to section 2 of the Act on the Establishment, Operation, etc. of Teachers’ Unions (AEOTUT), since it allows a teacher who is not defined as a teacher under the AEOTUT to become a member of the union. In May 2019, the KFTTU filed again a registration for the authorization of establishment to the MOEL, which once again rejected to issue the certification for the same reasons. Similarly, in 2013, the Korean Teachers and Education Workers Union was also rejected under the same justification, namely that its by-laws allowed membership for workers whose labour contracts had been terminated, who had been dismissed or who were seeking employment.
4. 273. According to the complainant, the refusal by the MOEL to issue a certification to the KFTTU and thus to grant it any rights under the relevant legislations amounts to a violation of Article 2 of Convention No. 87 as it limits the right to organize by imposing a previous authorization by the State. The complainant also argues that section 2(4)(d) of the TULRAA which excludes from the definition of “trade unions” organizations that allow dismissed workers to become their members, is in violation of Article 2 of Convention No. 87 as it discriminates between workers with an active labour contract and dismissed workers, as a result of which trade unions are restricted from accepting dismissed workers in order to maintain their status as legitimate trade unions and exercise their full trade union rights. The complainant alleges that the TULRAA and the relative state authorities are prohibiting dismissed workers from joining trade unions and exercising their trade union rights and asserts that the legislation that serves as a justification for the refusal to authorize the KFTTU as a legitimate trade union is incompatible with the ILO Conventions and the core principles of freedom of association. In this regard, the complainant points to Case No. 1865, where the Committee had recommended the State to abolish section 2(4)(d) of the TULRAA due to its incompatibility with the principles of freedom of association.

B. The Government’s reply

1. 274. In its communications dated 10 February and 11 September 2020, the Government asserts that the registration system is not designed to infringe on any specific union’s rights but rather to protect the rights of legitimately established unions and that the purpose and content of the registration system are in conformity with the principle of freedom of association. It also maintains that the refusal to register the KFTTU is a legitimate act under the current law, which is in conformity with ILO principles.
2. 275. Concerning the registration system, the Government in its first communications explains in detail why it considers that the registration system is not in breach of the Conventions on freedom of association. With regard to the criteria of trade union recognition (i), the Government indicates that it officially recognizes an organization as a trade union by issuing a certificate of registration. In line with sections 10 and 12 of the TULRAA, anyone who wants to establish a union is required to submit a registration form on its establishment and its by-laws to the competent administrative office, which issues a certificate of registration within three days unless the organization has any grounds for disqualification under section 2(4) of the same Act. Upon issuance of the certificate, the organization is recognized as a legitimate trade union and is guaranteed statutory rights, including the right to collective bargaining and collective action. The prescribed grounds for disqualification under the TULRAA are designed to protect the right to organize of legitimate unions and special provisions are in place to provide strong protection of the right to collective bargaining and collective action, including criminal punishment on any employer who rejects a bargaining request from a legitimately established union without a proper reason or hires workers to replace striking employees. Therefore, it is essential to verify if there are any grounds for disqualification in the process of establishing a trade union. Otherwise, employers would have to go to court whenever they had doubts about the union’s eligibility, which could hinder the right to establish and would run counter to the principles of freedom of association. Considering that the Government officially recognizes legitimately established unions through legal registration by issuing a certificate, the union establishment registration system is not in violation of the principle of freedom of association.
3. 276. As to the determination of the grounds for disqualification (ii), the Government indicates that the administrative offices do not have discretion to decide if a union falls under any of the grounds for disqualification since these are very specifically prescribed by the law. Under section 2(4) of the TULRAA, the grounds for disqualification of a union are: where an employer or other persons who always act in the interest of the employer are allowed to join it; where most of its expenditure is supported by the employer; where its activities are only aimed at mutual benefits, moral culture and other welfare undertakings; where those who are not workers are allowed to join it (provided that a dismissed person shall not be regarded as a person who is not a worker until a review decision is made by the National Labour Relations Commission when an application has been made to the Commission for remedies for unfair labour practices); and in case where its aims are mainly directed at political movements. The Government states that all these reasons for disqualification can be clearly verified through the union’s registration and by-laws, including the one invoked by the KFTTU (whether or not a specific worker is unemployed or dismissed), leaving no room for the administrative office’s discretion to intervene. This means that the union establishment registration system is not in violation of the principle of freedom of association.
4. 277. Concerning the right to appeal any administrative decision (iii), the Government states that anyone who has an objection can appeal to the court when a report on union establishment has been rejected and can seek its withdrawal. If the court recognizes that the action of the Government is illegitimate, the administrative office is required to issue a certificate on the establishment of the union as per the binding effect of the court decision. Since the administrative decision may be subject to judicial review by the court, the establishment registration system does not go against the principle of freedom of association.
5. 278. The Government further indicates that the Constitution and the TULRAA grant fundamental labour rights to workers and ensure that they may exercise the independent and democratic right to associate. As for teachers, given their distinctive status as civil servants and the nature of their duties, a separate law – the AEOTUT – regulates their right to organize, collective bargaining and collective agreements, section 2 of which limited union membership to teachers who are currently employed, since these teachers are the very persons who are directly and practically subject to provisions on employment conditions, whereas those who are not currently employed have no employment conditions to improve through collective bargaining.
6. 279. The Government therefore indicates that the rejection of the registration of the KFTTU was not a result of the Government’s arbitrary judgment but a legitimate action taken in accordance with the law in force, which in its view was consistent with ILO principles. The Government explains that since the KFTTU is composed above all by teachers under section 19(1) of the Elementary and Secondary Education Act, the KFTTU is subject to the AEOTUT. However, the union’s representative is a retired teacher and its by-laws recognize trade union membership to fixed-term teachers in search of jobs after the termination of their contract or their dismissal. These persons were not considered as teachers under the AEOTUT, which meant that the union allowed ineligible people to join as members, in violation of the law. As a result, the KFTTU could not be deemed a legitimate union and its establishment registration was therefore rejected in July 2018, indicating that the reason for disqualification was allowing union membership to those who are not teachers. The Government asserts that even though the union had around ten months to amend and supplement its establishment form, it submitted a second establishment registration in May 2019 without any modification, which was again refused.
7. 280. In its communication dated 29 January 2021, the Government adds that it has been working to meet international labour standards, setting the ratification of fundamental Conventions as one of the tasks to achieve and improving domestic laws and measures to ratify Conventions Nos 87 and 98. Reflecting the results of discussions at the Economic, Social and Labour Council, ILO recommendations and the opinions of various stakeholders, the Government submitted several legislative amendment bills to the National Assembly in October 2019 and June 2020, including amendments to the TULRAA, the AEOTUT and the Act on the Establishment and Operation, etc., of Public Officials’ Trade Unions. Following the Government’s efforts to facilitate discussions within the National Assembly, the integrated amendment bills were adopted in December 2020, promulgated in January 2021 and will enter into force in July 2021. The main changes introduced concern the ability for unions, through their by-laws, to autonomously determine membership eligibility of dismissed teachers. In particular, the new section 4(2) of the AEOTUT provides that the scope of persons eligible to join a labour union shall be any person who is a teacher or was appointed and worked as a teacher and meets the membership eligibility prescribed in the by-laws of a trade union. The Government asserts that the controversy involving membership eligibility of dismissed teachers has thus been resolved and they will be guaranteed their basic labour rights, including the right to organize. Since the amended laws guarantee the right to organize for dismissed and retired fixed-term teachers, the Government plans to issue a certificate of registration to the KFTTU, should it submit its report on establishment once the amended laws enter into force.

C. The Committee’s conclusions

1. 281. The Committee observes that this case concerns allegations of the refusal by the Ministry of Employment and Labour (MOEL) to issue the registration of establishment of the Korean Fixed-Term Teachers’ Union (KFTTU) and allegations that the registration system in the country is in violation of the principles of freedom of association as it excludes from the definition of trade unions those organizations that allow dismissed workers and workers seeking employment to become their members.
2. 282. The Committee notes, in particular, the complainant’s allegations that following the submission of the registration form in July 2018 and in May 2019, the registration of establishment of the KFTTU was refused both times on the ground that the labour contract of its representative had been dismissed and the representative could not be considered as an active worker, thus disqualifying the organization from being considered as a trade union, and that the union’s by-laws allowed membership to persons who were not considered as teachers under the legislation (prospective teachers whose labour contracts had been terminated, who had been dismissed or who were seeking employment). The Committee observes that while the complainant alleges that the refusal by the MOEL to register the KFTTU as a legitimate union amounts to a previous authorization by the State and deprives the union of any rights provided by the legislation, the Government explained that the refusal to issue a certificate of establishment to the KFTTU was a legitimate act, based on an established ground for disqualification in the legislation, and was conducted without any discretion of the administrative authorities. The Committee further notes that, according to the complainant, the registration system in the country at the time of the complaint was in violation of the principles of freedom of association as it excluded from the definition of trade unions those organizations that allowed dismissed workers and workers seeking employment to become their members (section 2(4)(d) of the TULRAA and section 2 of the AEOTUT).
3. 283. While noting the views of the Government at the time of the complaint, justifying the refusal to register the KFTTU on the basis of the non-conformity of its by-laws with section 2 of the AEOTUT, the Committee must recall that this provision deprives a certain category of workers (dismissed and currently unemployed workers) from the right to join the organization of their own choosing and also unduly affects the ability of organizations whose members include dismissed or unemployed workers to obtain a certification of registration. The Committee also observes that this restriction posed particular problems in the present case, where the majority of KFTTU members are teachers employed on fixed-term contracts who, by the very nature of their contractual situation, are likely to alternate between periods of employment and unemployment, thus potentially depriving such union members of the possibility to be represented in a stable manner.
4. 284. The Committee recalls that it has previously examined the alleged restrictions on the right to organize of dismissed and unemployed workers, as well as restrictions on the right to elect representatives in full freedom, in the framework of Case No. 1865, where it has been requesting the Government for a number of years to take the necessary measures to amend or repeal the provisions of the TULRAA and the AEOTUT that prohibit dismissed and unemployed workers from being trade union members and that make non-union members ineligible to stand for trade union office [see Case No. 1865, 382nd Report, June 2017, para. 42 and 353rd Report, March 2009, para. 720]. More specifically, the Committee recalls that all workers, regardless of their status, should be guaranteed their freedom of association rights so as to avoid the possibility of having their precarious situation taken advantage of. A provision depriving dismissed workers of the right to union membership is incompatible with the principles of freedom of association since it deprives the persons concerned of joining the organization of their choice. Such a provision entails the risk of acts of anti-union discrimination being carried out to the extent that the dismissal of trade union activists would prevent them from continuing their trade union activities within their organization [see Compilation of the decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 329 and 410].
5. 285. In this regard, the Committee welcomes the Government’s latest information that integrated amendment bills to the AEOTUT, the TULRAA and the Act on the Establishment and Operation, etc., of Public Officials’ Trade Unions were adopted in December 2020 and will enter into force in July 2021. It observes, in particular, that the amended laws will enable trade unions, through their by-laws, to autonomously determine membership eligibility of dismissed and retired teachers and workers. The Committee also observes, from publicly available information, that in February 2021, the National Assembly passed motions to ratify Conventions Nos 87 and 98 and welcomes this legislative development. In these circumstances, the Committee trusts that the legislative amendments will effectively ensure that all workers, including dismissed and temporarily unemployed workers, will be able to join organizations of their own choosing, both in law and in practice, subject only to the union by-laws, and that membership of such workers in a trade union will not deprive it of its legitimate trade union status and statutory rights. Considering that the current legislative provisions used to justify the refusal to issue a certificate of establishment to the KFTTU in July 2018 and May 2019 are themselves incompatible with the principles of freedom of association and have been amended, and in view of the Government’s assurance that it plans to issue a certificate of registration to the KFTTU if it submits a report on establishment once the amended laws enter into force, the Committee trusts that the Government will ensure that the KFTTU will be registered as soon as the new laws enter into force and the request for registration is resubmitted.

The Committee’s recommendations

1. 286. In the light of its foregoing conclusions, which do not call for further examination, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Welcoming the adoption of the amended labour bills, which will allow unions, through their by-laws, to autonomously determine membership eligibility of dismissed and retired teachers and workers and welcoming the ratification of Conventions Nos 87 and 98 in the national assembly, the Committee trusts that these legislative amendments will effectively ensure that all workers, including dismissed and temporarily unemployed workers, will be able to join organizations of their own choosing, both in law and in practice, subject only to the union by-laws, and that membership of such workers in a trade union will not deprive it of its legitimate trade union status and statutory rights.
   • (b) The Committee trusts that the Government will ensure that the KFTTU will be registered upon submission of its new request for registration in line with the amended laws as soon as they enter into force.