Demande directe (CEACR) - adoptée 2024, publiée 113ème session CIT (2025)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - République de Corée (Ratification: 2021)

The Committee notes the observations of the Korean Confederation of Trade Unions (KCTU) received on 6 September and 17 October 2024, the Federation of Korean Trade Unions (FKTU) received on 5 October 2024 and the International Trade Union Confederation (ITUC) received on 17 September 2024, which concern matters examined in this comment, as well as the Government’s replies thereto.

Articles 1–6 of the Convention. The personal scope of the Convention. In its previous comment, the Committee expressed its expectation that the legislative reform process concerning the extension of coverage of the definition of “worker” in section 2(1) of the Trade Union and Labour Relations Adjustment Act (TULRAA) would effectively recognize and guarantee the rights enshrined in the Convention to all workers, including independent self-employed and agricultural workers, freelancers, workers in non-standard forms of employment and platform workers. The Committee notes the Government’s indication that, in practice, given the broad definition of workers in the TULRAA and the interpretations by the Supreme Court, freelancers or dependent self-employed workers are not excluded from the concept of workers and can engage in collective bargaining (such as golf caddies, workbook tutors, snack bar operators, car salesmen, actors). The Government adds that an amendment to the TULRAA, which aims to broaden the concept of workers by adding dependent self-employed workers and labour providers, is currently at the National Assembly. The Committee notes, however, the observations of the KCTU and the FKTU that although an amendment which would guarantee the right to organize to various categories of workers, including special employment workers and platform workers (deletion of section 2(4) of the TULRAA), was adopted by the National Assembly, the President exercised the right to veto. The KCTU also points out that, despite a court decision suggesting that collective bargaining protected by the TULRAA extends to workers beyond regular employees, restrictions on collective bargaining between subcontractors and their original contractors continue, as illustrated by the examples provided of courier service drivers and sales service workers. The Committee recalls in this regard that all workers without distinction whatsoever (with the possible exception of the police, the armed forces and public servants engaged in the administration of the State), including independent self-employed and agricultural workers, freelancers, workers in non-standard forms of employment and platform workers should be considered as workers for the purpose of application of the guarantees of the Convention and should thus be provided adequate protection against anti-union discrimination and acts of interference, as well as the right to collective bargaining. In line with the above, the Committee requests the Government to take all necessary measures to ensure that the rights enshrined in the Convention are effectively recognized and guaranteed, both in law and in practice, to all workers covered by the Convention, including the above categories of workers. The Committee requests the Government to provide information on any progress made, including any possible amendments of the TULRAA.

Articles 1, 2 and 3. Adequate protection against anti-union discrimination and acts of interference. The Committee previously requested the Government to indicate the remedies against anti-union discrimination and acts of interference that can be ordered by the Labour Relations Commission (LRC) under section 84 of the TULRAA and to clarify who bears the burden of proof in the proceedings before the LRC. The Committee notes the Government’s indication that LRC remedy orders aim to restore the situation to the original state; such orders can be categorized into orders to act (reinstate, cancel disciplinary actions, pay equivalent wages, correct disadvantaged promotions and discriminatory salary increases, accept collective bargaining requests, etc.) or orders to cease to act (cease providing financial support, prohibit interference in the distribution of union materials, prevent recurrence of similar acts, etc). The Government adds that the LRC is a quasi-judicial body and that the burden to prove the existence of unfair labour practices is on the applicant, even though the LRC can initiate ex officio investigations to secure fairness in establishing the facts, which mitigates the burden of proof for workers and trade unions. The Committee notes the observations of the KCTU in this regard that the LRC acknowledged difficulties for workers to prove unfair labour practices and commissioned a study recommending a shift in the burden of proof. The Committee recalls that placing on workers the burden of proving that the act in question occurred as a result of anti-union discrimination may constitute an insurmountable obstacle to establishing liability and ensuring an appropriate remedy and considers that provisions allowing for a reversal of the burden of proof are among the preventive mechanisms designed to afford protection against anti-union discrimination (see General Survey of 2012 on the fundamental Conventions, paragraph 192). The Committee therefore encourages the Government to engage in consultations with the social partners to assess ways of introducing a reversal of the burden of proof for incidents of anti-union discrimination, so as to increase protection against such acts.

Anti-union discrimination at recruitment. Blacklisting. In its previous comment, the Committee requested the Government to provide its comments on the observations of the KCTU regarding the “blacklisting” of subcontracted workers following their participation in a 2019 strike, as well as a survey showing the practice of blacklisting subcontracted workers in the shipyards. The Committee notes the Government’s assertion that the drafting of blacklists by employers to treat workers unfavourably at the hiring process because of their union membership (if there is intent by the employer to disadvantage the workers) constitutes an unfair labour practice and is prohibited by the TULRAA and the Labour Standards Act. The Committee notes, however, the reiterated concerns of the KCTU and the FKTU, that large-scale surveillance, collection of personal data and blacklisting, including on the basis of trade union membership, continue to be used as a tool for controlling and dismissing workers in platform companies. To illustrate this, they point to a transport company, where the personal information of over 16,540 union-affiliated workers had been collected for more than seven years, without the Government taking sufficient measures to remedy the anti-union hiring practices. The Committee notes the Government’s reply that annual labour inspections are conducted into unfair labour practices and that, following a union complaint against unfair labour practices in the above platform company, an investigation is currently ongoing. In view of continued reports of blacklisting practices,especially concerning subcontracted workers, the Committee requests the Government, in consultation with the social partners, to step up its efforts in taking measures to prevent and address such anti-union incidents and to provide information on the action taken in this regard.

Anti-union dismissals. Time-off system. The Committee notes the observations of the FKTU and the KCTU raising numerous issues in relation to the time-off system for union officials. They argue that the time-off system is becoming a new tool for suppression of unions and consider that the Government’s planned inspections of the operation of the time-off system and subsequent rectification orders, which include summoning time-off personnel for investigations into unfair labour practices, lead to unnecessary tensions and conflicts in labour relations at the workplace. The Committee notes that the KCTU and the FKTU provide examples of such investigations, including in the case of a transport enterprise where, following comprehensive investigations, which found issues such as “exceeding time-off limits” and “excessive guarantees of paid union activities”, 36 union officials and staff members were dismissed and were given an injunction from seeking employment in the public sector for three to five years. The Committee notes that the Government refutes the allegation that the time-off system is used to suppress unions and asserts that labour inspections into the time-off system and rectification orders are designed to allow employers to address any violations of the TULRAA in relation to time-off limits and to promote fair labour relations; corrective orders issued concerned, for example, cases where time-off was used for activities irrelevant to the development of sound labour relations. The Government adds that the disciplinary dismissals in the transport enterprise were not motivated by the Government’s prior investigations but were made on the basis of the enterprise’s internal audit. The Seoul Regional Labour Relations Commission found that while workers’ unauthorized absence was serious and allowed for dismissal, such disciplinary action was excessive considering the serious mismanagement of workers’ attendance by the enterprise; the adjudication continues at the National Labour Relations Commission. In view of the concerns raised and recalling that the prohibition to negotiate wage payment of full-time union officials beyond the maximum limits of the time-off system set by the legislation is not compatible with the Convention (see below), the Committee trusts that the Government will engage in consultations with the social partners to identify measures that can be taken to minimize any potential anti-union effect of Government investigations and rectification orders relating to the time-off system. The Committee also requests the Government to provide information on the outcome of the anti-union dismissal case currently before the Labour Relations Commission.

Article 4. Promotion of collective bargaining. Workers covered and the level of bargaining. The Committee previously requested the Government to take measures to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers’ organizations and organizations representing workers in small enterprises, workers in non-standard forms of employment, working with multiple employers and subcontracted workers, who were practically excluded from the prevalent enterprise-centred collective bargaining system. The Committee further requested the Government to provide information on any measures taken, or policies adopted, to apply section 30(3) of the TULRAA (assistance to parties to choose among various bargaining methods) and on any instances of collective bargaining between multiple employers and workers’ organizations through voluntary coordination and agreement. The Committee notes that the Government reiterates information provided previously on collective bargaining under the TULRAA, emphasizing that it is for the parties to determine the level of bargaining and that the Government makes effort to facilitate bargaining, including by providing dialogues and on-site guidance. The Committee notes, however, the detailed observations and concerns raised by the KCTU in relation to the continued and various challenges of certain categories of workers to engage in collective bargaining (workers in small enterprises, in non-standard forms of employment, working with multiple employers and subcontracted workers). It notes, in particular, the allegations of the KCTU, according to which: (i) the Government continues to ignore its demands to institutionalize a bargaining structure at supra-enterprise level, despite concrete proposals from the unions, which would facilitate the involvement of workers in small businesses in such bargaining; (ii) workers working in several workplaces face particular difficulties to bargain at the industry level, as in the current system, a union seeking to negotiate at the industry level must obtain the status of the most representative union through the mandatory enterprise-level bargaining channel unification process in the concerned enterprises, which is challenging to obtain with short-term workers working across multiple locations; (iii) the bargaining system leaves workers in atypical forms of employment vulnerable to the disproportionate power of employers who can in practice restrict collective bargaining through various actions (creating employer-friendly unions as the bargaining representative, postponing the signing of contracts and falsifying the number of employees, which hinders the establishment of the representative status and thus collective bargaining), as was recently the case in a construction company and a food industry company; and (iv) although several bills which would guarantee the right of non-typical workers, including subcontracted workers, to bargain collectively with the main contractors were passed by the National Assembly, the Minister of Employment and Labour expressed hostile views towards them and the President exercised the right to veto. To illustrate, the KCTU points to concrete incidents, such as the refusal of a broadcasting company to bargain with freelance TV writers, while bargaining with regular employees of the National Union of Media Workers. In reply, the Government reiterates that there is no institutional prohibition against non-enterprise bargaining as the parties may freely determine the level of bargaining appropriate for their needs. It also indicates that the relatively lower activity of non-enterprise bargaining compared to enterprise bargaining can be attributed to the unique characteristics of labour relations in Korea and that employer interference with the system, as denounced by the KCTU, can constitute unfair labour practices (the Government provides examples of court cases in this regard). The Government adds that for the purpose of establishing the representative status for collective bargaining (according to the number of members), anyone recognized as a worker, even without a formal employment contract, may be considered as an employed worker. There are also several initiatives ongoing which aim to safeguard the rights of vulnerable workers and strengthen the bargaining system. Taking note of the above and observing that despite the Government’s assurances, numerous challenges remain for specific categories of workers (workers in small enterprises, workers in non-standard forms of employment, working with multiple employers and subcontracted workers) to fully benefit from collective bargaining protected by the Convention, the Committee trusts that further measures appropriate to national conditions will be taken to ensure the full development of collective bargaining of the above categories of workers at all levels, including at supra-enterprise level. The Committee requests the Government to provide information on any concrete measures taken, or policies adopted to apply section 30(3) of the TULRAA (assistance to parties to choose among various bargaining methods).

The subjects excluded from collective bargaining. The Committee previously requested the Government to take the necessary steps to remove the restrictions on the subjects of collective bargaining provided in section 24(4) of the TULRAA, sections 8(1) and 10(1) of the Public Officials Trade Union Act and section 7(1) of the Teachers’ Trade Unions Act. The Committee recalls that these provisions exclude from the scope of collective bargaining agreements on wage payment of full-time union officials beyond the maximum limits of the time-off system, as well as matters concerning policy decisions that may be prescribed by law, and matters concerning the management and operation of the organization, but not directly related to working conditions. The Committee notes the Government’s indication that the time-off system was introduced through a tripartite agreement and aims to prevent labour-management conflicts. The Government further states that while sections 10(1) of the POTUA and 7(1) of the TTUA limit the effect of collective agreement provisions on the above matters, sections 10(2) of the POTUA and 7(2) of the TTUA stipulate that Government bargaining representatives shall endeavour to faithfully implement those matters and notify the parties about the results thereof at the next bargaining session. The Committee notes, however, the KCTU’s observations that public officials can, in practice, only bargain matters that directly affect their working conditions and that do not, in any way, relate to the public institutions’ policymaking and management. It further claims that collective agreements entered into voluntarily can be invalidated if they contain provisions pertaining to education policymaking or the operation and management of educational institutions (see below). The KCTU also points to specific incidents where negotiations of certain subjects relating to time-offs (paid time-off to union officials not employed in a given workplace and to those working at multiple locations, amount of maximum time-off) were restricted or nullified as a result of employers’ actions, thus negatively impacting the tradition of concluding voluntary agreements on these subjects with regard to day labourers in the construction sector. In light of the above, recalling that the scope of the excluded subjects in sections 8(1) and 10(1) of the POTUA and section 7(1) of the TTUA is quite broad and may give rise to the imposition of substantial restrictions on the collective bargaining rights of the workers concerned, the Committee requests the Government to engage in consultation with the social partners and take the necessary measures to remove the restrictions on the subjects of collective bargaining provided in these provisions. Further observing the link between the prohibition to negotiate the amount of wages of full-time officials beyond the maximum limits of the time-off system set by the legislation (section 24(4) of the TULRAA) and the reportedly anti-union effect of Government investigations into the time-off system, including anti-union dismissals (observed above), the Committee requests the Government, in full consultation with the social partners, to review section 24(4) of the TULRAA so as to remove these restrictions on collective bargaining and allow the social partners to freely determine through collective bargaining the facilities necessary for union officials to fully exercise their functions.

Scrutiny of legality of collective agreements. Correction orders. In its previous comment, the Committee requested the Government to take the necessary measures to review the law, with a view to restricting the possibility of discretionary interference of the authorities in the determination of the content of freely and autonomously concluded collective agreements (section 31(2) of the TULRAA requires the parties to a collective agreement to report to the administrative agencies within 15 days of its conclusion and section 31(3) enables the administrative agencies to issue corrective orders when a collective agreement has any unlawful content). The Committee further requested the Government to provide information on the number of such corrective orders issued and on the types of collective agreement provisions considered illegal. The Committee notes the Government’s indication that the purpose of corrective orders is to resolve any violations of the law contained in collective agreements, that this is a minimum measure to prevent the risk of violating the law and that administrative appeals are available against such orders. The Government indicates that 178 corrective orders were issued and provides details as to the provisions considered as unlawful. The Committee notes in this regard the concerns expressed by the KCTU and the FKTU, indicating that in 2023, the Ministry of Employment and Labour performed a total inspection of all existing collective agreements in the public sector involving public officials, teachers and public institutions and that it announced 479 agreements to be illegal, while 143 needed corrective orders, which they found excessive (most of these concerned collective agreements on non-bargainable subjects under the POTUA and the TTUA, as examined by the Committee above, provisions on changes of staff due to organizational restructuring, matters of notification of changes in union membership due to dissolution, division, merger or privatization, etc.); the unions mostly comply with these orders out of fear of penal sanctions. The Committee notes the Government’s reply that 120 collective agreements complied with the Government’s corrective orders, demonstrating that the parties recognized violations and voluntarily addressed them. The Committee recalls that interventions by the authorities which have the effect of cancelling or modifying the content of collective agreements freely concluded by the social partners would be contrary to the principle of free and voluntary negotiation under Article 4 of the Convention and would be allowed only if they correct a procedural flaw or non-conformity to the minimum standards laid down by general labour legislation. In line with the above, the Committee requests the Government once again to take the necessary measures to review the law, in full consultation with the social partners, with a view to restricting the possibility of discretionary interference by the authorities in the determination of the content of freely and autonomously concluded collective agreements. It also requests the Government to continue to provide information on the number of corrective orders issued and the types of collective bargaining provisions considered illegal.

Collective bargaining in the public sector. Impact of Government Guidelines on collective bargaining in public institutions. The Committee previously requested the Government to provide information on the status of the current legislative debate and any relevant amendments regarding the participation of organizations representing workers in public institutions in the process of formulating Government Guidelines regulating working conditions of public sector workers. The Committee notes the Government’s indication that the establishment of these Guidelines cannot be seen as a regulatory action granting rights or imposing obligations on workers, but rather an internal supervisory action between the Government and public institutions. Even where the Guidelines contain matters on wages and welfare benefits, they serve as internal recommendations and do not constitute Government intervention in collective bargaining. According to the Government, the Guidelines do not impede collective bargaining, as matters concerning working conditions are decided through consultation and negotiation between employers, workers and their trade unions. Furthermore, the Government asserts that it collected opinions of trade unions on the necessity to revise the ”Budget Operation Guidelines for Public Enterprise and Quasi-Government Institutions” and “Guidelines for Innovation at Public Institutions” and will continue to collect such opinions for further revisions of the Guidelines. It also indicates that a member representing labour already participates in the Ownership Steering Committee and that an amendment to the Act on the Management of Public Institutions (AMPI), is pending in the Economy and Finance Sub-Committee and would establish a Committee to determine Public Institutions’ Wage and Working Conditions, so as to allow workers’ representatives to participate in and deliberate on matters related to working conditions in the Ownership Steering Committee. The Committee notes in this regard the observations of the KCTU that the bill to amend the AMPI reached its expiry without any substantial debate and that Government Guidelines limit the scope of collective bargaining and even suspend the implementation of existing agreements (it provides an example of a transport company where, despite agreement of the stakeholders, the company could only minimally increase workers’ wages due to the Guidelines). The KCTU and the FKTU also consider that the 2024 budget Guidelines were not subject to actual negotiation with public sector unions, as the Government only asked for inputs using pop-up windows on the public management information disclosure system to which the unions do not have regular access. The Committee notes that the KCTU further questions the Government’s assertion that a union member is present at the Ownership Steering Committee (out of 20 members, 11 are civilians appointed by the President but the public unions or confederations were not invited or consulted on their nomination) and points to a lack of transparency of its procedures and a lack of substantial debate within the entity. The Committee notes that, in reply, the Government asserts that the Guidelines do not undermine unions’ collective bargaining rights, as determining matters related to wages and welfare benefits of public institutions requires agreement from workers’ organizations. It also indicates that the platform used to communicate the budget Guidelines is functional, recognized and accessible and is the most appropriate and effective means of collecting opinions on policies for public institutions. Taking note of the above, the Committee requests the Government to continue to provide information on the ongoing legislative debate and reform with regard to the participation of organizations of workers of public institutions in the process of formulating guidelines or other deliberations regarding working conditions of workers in public institutions.