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

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - République de Corée (Ratification: 2021)

Civil liberties. In its previous comment, in view of the significant restrictions on the political and civil liberties of public employees in the education sector, the Committee expressed its expectation that trade unions of public officials would be allowed to express their views publicly on the economic and social policy questions, which have a direct impact on the interests of their members, and that no sanction could be imposed on individual members for their support of a political party or expression of views on such issues. The Committee expected that these matters would be addressed in the ongoing review of the State Public Officials Act (SPOA). The Committee notes the Government’s views on the importance of ensuring neutrality of public employees and its indication that an amendment to the SPOA and related laws was proposed to the current session of the National Assembly, with the aims of easing restrictions on basic political rights of public officials by allowing them to join political parties or organizations and only prohibiting political acts using their status in an election. In view of the reiterated concerns of the Korean Confederation of Trade Unions (KCTU) and the Federation of Korean Trade Unions (FKTU) that the severe restrictions on the political freedoms of public employees and teachers, as well as legal penalties even for minor political expressions, cause a chilling effect on teachers, the Committee trusts that the SPOA will be amended to ease these restrictions and requests the Government to provide information on this process and its outcome.

Labour law reform. The Committee notes that, with regard to several points examined below, the Government indicates that amendments of the law are pending at the National Assembly. The Committee notes, however, the concerns expressed in this regard by the KCTU and the FKTU that several bills, which would have improved the compatibility of the law with the Convention, were passed by the National Assembly but were later vetoed by the President after objections from the Government. The Committee further notes that the Government asserts that most of the issues subject to amendment require in-depth social discussions and broad consensus. In view of the Government’s concerns regarding the need for social dialogue and consensus, the Committee expects measures to be taken to engage in full consultations with the social partners on the controversial points, if any, with a view to allowing the necessary amendments to be adopted without delay so as to ensure compatibility of the national legislation with the Convention, in line with the comments below.

Article 2. The right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee previously expressed its expectation that the legislative reform process concerning the extension of coverage of the definition of “worker” (section 2(1) of the Trade Union and Labour Relations Adjustment Act (TULRAA)) would recognize and guarantee the right to establish and join organizations to all categories of workers, including independent self-employed and agricultural workers, as well as 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 already establishing their own trade unions (parcel deliverymen, horse jockeys, bicyclists, water purifier sales and maintenance personnel, workbook tutors, actors, golf caddies, snack bar operators, car salesmen and platform workers, such as drivers). The Government adds that an amendment to the TULRAA, which aims to broaden the concept of workers in the law by adding dependent self-employed workers and labour providers, is currently before the National Assembly. The Committee notes, however, the observations of the FKTU that although an amendment which would have guaranteed 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 Committee further notes in this regard the KCTU and the FKTU observations, pointing to rejection of unions’ application for certification, one of which included platform workers, while the other was composed of ready-mix concrete truck owners-operators (the authorities did not consider them as workers under the TULRAA). The KCTU adds that the Fair Trade Commission (FTC) views a number of trade unions of cargo truck owners-drivers, members of the Korean Public Service and Transport Workers’ Union (KPTU), as organizations representing business owners subject to the regulatory scrutiny of the Fair Trade Act (this led to an on-site inspection and later prosecution of union members for interfering with FTC investigation). The Government indicates that organizations, which allow non-workers, such as truck drivers who are independent contractors, to be members, cannot be considered as unions under the TULRAA and that an administrative lawsuit is currently pending on this issue at the Seoul Administrative Court. The Committee recalls in this respect that the Committee on Freedom of Association noted the continuous denial to recognize as trade unions, organizations of “especially employed” or “self-employed” truck drivers-owners and urged the Government to take all the necessary measures that these workers can fully exercise their freedom of association rights (Case No. 3439, 405th Report, March 2024, paragraph 555). Further recalling that independent self-employed and agricultural workers, as well as 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 enjoy the right to organize, the Committee requests the Government to take all necessary measures to effectively recognize and guarantee this right, both in law and in practice. The Committee requests the Government to provide information on any progress made, including any possible amendments of the TULRAA.

Public officials. The Committee previously requested the Government to take the necessary measures to review the applicable legislation (sections 6(1) and (2) of the Public Officials Trade Union Act (POTUA), and sections 2(1) and 2-2 of the Foreign Service Officials Act), with a view to recognising the right of the categories of public officials excluded from the scope of the POTUA to establish and join organizations (see enumeration in the previous comment). The Committee notes that the Government reiterates that prison staff are excluded from the right to organize due to their involvement in public security service and that where union membership is restricted for public officials, it is done in a reasonable manner, excluding those in a de facto employer position or acting on behalf of an employer, so as not to undermine the autonomy and independence of trade unions. While taking note of the above, the Committee recalls that the scope of the Convention covers all public officials, with the sole possible exception of the police and the armed forces and that even where senior public officials can be barred from joining unions of other workers from the public sector, this must be limited to those exercising senior managerial or policy-making responsibilities and they must be allowed to establish their own organizations. The Committee therefore reiterates its previous request to the Government to take necessary measures, in full consultation with the social partners, to review the legislation with a view to recognising the right to organize to all public officials covered by the Convention. The Committee requests the Government to provide information on any measures taken in this respect.

The right to establish and join organizations without previous authorization. The Committee previously noted that, in some cases concerning self-employed workers or workers in non-standard forms of employment, the practice of the authorities when assessing registration requests amounted to a de facto authorization due to prolonged period of time the authorities took to determine whether all applicants could be qualified as “workers” under the TULRAA. The Committee expressed trust that the legislative review process concerning the definition of “worker” in section 2(1) of the TULRAA would resolve this matter. The Government provides detailed information about the registration system in the country, which, it asserts, does not amount to previous authorization and considers that whether or not members of a union are considered as workers requires a highly normative judgment so there may be cases where processing is inevitably delayed due to fact-checking. The Committee notes that the KCTU provides examples of cases where registration of unions was delayed over the question of whether all members were workers as defined by law. Recalling that a considerable delay in assessing the application for registration can amount to “a previous authorization”, the Committee refers to its comment above in relation to the definition of “worker” and trusts that any measures the Government will take in this regard will also address the issue of prolonged registration delays of organizations of self-employed workers and workers in non-standard forms of employment.

Article 3. The right of organizations to draw up their constitutions and rules. The Committee previously requested the Government to provide information on the number of orders to correct union bylaws, resolutions or measures conflicting with any labour-related law, issued pursuant to section 21(1) and (2) of the TULRAA. The Government reiterates that corrective orders under section 2 of the TULRAA constitute minimal interventions in trade union affairs, indicating that between 2019 and 2023, 11 such orders were made, all on the basis of complaints from the unions or their members. In the public sector, only two corrective orders were made according to a 2023 survey. The Committee also notes the information provided by the KCTU that a corrective order was filed regarding the Korean Metal Workers’ Union (KMWU) membership processing rules and that investigations are ongoing with respect to the alleged violations of corrective orders by the KMWU, the Korean Finance and Service Workers Union (KFSU), the Korean Government Employees’ Union (KGEU) and the Korean Chemical, Textile and Food Workers’ Union (KCTFU). The Committee trusts that any corrective orders issued are strictly limited to verifying that union rules follow a democratic process or are in line with national law, which itself is in conformity with the Convention.

The right to elect representatives in full freedom. The Committee previously requested the Government to take the necessary measures to review sections 17(3) and 23(1) of the TULRAA, which exclude non-members, job seekers, the unemployed, ex-employees and those dismissed from the position of executive officers in enterprise-level unions, so as to ensure that unions can elect their representatives in full freedom. The Committee notes the Government’s indication that the limitation on non-workers to be elected as union officials is only applicable at the enterprise level and unions can thus change their structure to industry-level to allow non-employees to serve as union officers. The Government adds that the TULRAA also protects union officers from immediately losing eligibility as an officer during the determination of the legitimacy of the dismissal (section 5(3)). The Committee considers, however, that this would be insufficient to prevent interference in the election of representatives and observes that the Government does not elaborate on any other measures taken to review the above provisions. In view of the above and of the reiterated concerns of the KCTU and the FKTU that non-working union members are prohibited from being elected as union officials, the Committee reiterates its request.

Financial management. In its previous comment, in view of the concerns raised at an increased use of section 27 of the TULRAA (an obligation for trade unions to make a report on the results of settlement of accounts and the status of operation of the trade union at the request of administrative agencies), the Committee requested the Government to review this provision and take any necessary measures to ensure that it cannot be applied in a manner to interfere with the functioning of trade unions. The Government informs that the monitoring aims at avoiding and disclosing embezzlement of union funds, which is a continuing issue in the country but that section 27 of the TULRAA is not used on a regular basis (out of 48 complaints filed from unions between 2013 and 2022, the administrative authorities requested to disclose materials only in 12 cases). The Committee notes in this regard the observations of the KCTU, which considers that embezzlement of union funds is not a routine occurrence in the country and that the records requested by the Government in February 2023 related to all 319 unit and confederate unions with more than 1,000 members, which the judiciary recently found was an exercise of the Ministry’s general and comprehensive supervisory powers rather than motivated by specific reasons that could require investigation. The KCTU adds that any embezzlement related to its members was brought to public attention by the unions themselves through internal audits, rather than by use of section 27 of the TULRAA. While acknowledging the importance of ensuring that trade union funds are not misused, the Committee recalls that broad supervision of financial management of trade unions, including legislation that empowers administrative authorities to examine the books and other documents of an organization, are not compatible with the Convention and that verification should be carried only if there are serious grounds for believing that the actions of an organization are contrary to its rules or the law. Accordingly, the Committee requests the Government, in full consultation with the social partners, to review section 27 of the TULRAA and take necessary measures to ensure that it is not applied in a manner which can interfere with the functioning of trade unions.

Obligation to disclose financial information. Amendments of the Enforcement Decree of the TULRAA and the Enforcement Decree of the Income Tax Act. In its previous comment, the Committee requested the Government to reply to the KCTU observations that amendments to the above decrees require public disclosure of union accounting for unions with memberships exceeding 1,000 and to provide copies of both amended enforcement decrees. While noting the Government’s reiteration that the amendments aim at providing benefits to trade unions and ensuring their financial transparency and that union accounting can be disclosed through the public disclosure system, the Committee observes that the Government does not address the underlying issue reported by the KCTU that such disclosure of financial information is obligatory for trade unions with more than 1,000 members. The Committee further notes the KCTU and FKTU observations that they, as well as 90 per cent of their affiliates, have been using the system but that this is motivated by concerns that non-disclosure through the public system may disadvantage the unions or their affiliates (unions that do not use the public disclosure system may not deduct membership fees from taxes). The FKTU also highlights that employers’ organizations are exempt from such disclosure obligations, thus leading to an unequal treatment. The Government replies that, in addition to trade unions, public interest organizations are also required to disclose certain financial information and that employers’ organizations, due to their different characteristics and legal basis, have different and often stricter financial obligations. It also asserts that the financial information disclosure system is gradually being established as practice, that the deduction of taxes, in case of disclosure of financial information is a benefit, rather than an entitlement, and that non-disclosure does not entail any disadvantages. In view of the above, the Committee requests the Government to clarify whether public disclosure of accounting is obligatory for unions with membership exceeding 1,000 and to take necessary measures to ensure that these requirements are not applied in a manner to interfere with the functioning of trade unions.

Inviolability of union premises. The Committee previously requested the Government to provide information on the outcome of the investigation conducted against the KCTU, the Korean Health and Medical Workers’ Union (KHMU), Kia Motors Workers’ Union, construction unions affiliated to the KCTU and the FKTU following raids on their premises. The Committee notes the Government’s assurances that any search or seizure have been and will be conducted on the basis of a judicial warrant, using legitimate methods and only to the extent necessary for investigations, but that the requested information on the outcome of the above investigations is not available (the Government does not keep such information and confidentiality applies to it). The Committee further notes that the KCTU highlights the disproportionate involvement of the police regarding the investigation of one individual in the KCTU premises (while five police investigators performed the search and seizure, over 700 police officers and fire trucks were based around the KCTU premises and a journalist was brought in to report on the incident, causing disruption and creating an impression that the union itself was under investigation). Recalling that the inviolability of union premises is an essential aspect of trade union rights protected under the Convention and that any search operations carried out on union premises should only be possible with a judicial warrant where there is good reason to presume that the search will produce evidence in criminal proceedings and where it is restricted to the purpose for which the warrant was issued, the Committee expects all measures to be taken to ensure that any search operations carried out on union premises are conducted in conformity with these principles, using legitimate methods and only to the extent necessary for the investigations.

The right to strike. Prohibition of strikes. Public officials and teachers. The Committee previously requested the Government to take the necessary measures to amend section 11 of the POTUA (prohibition of strikes of public officials) and repeal section 18 of the POTUA (sanctions for non-compliance), as well as sections 8 and 15(1) of the Teachers’ Trade Unions Act (TTUA) (prohibition of industrial action of teachers and sanctions for non-compliance). The Committee notes the Government’s reiteration that strikes by public officials and teachers conflict with their role as servants of all citizens and with the right to education and that the ban on strikes was approved by the Constitutional Court. It further indicates that there are bills proposed in the National Assembly regarding the right to strike for public officials and teachers and that these matters should be reasonably decided through discussions and social consensus. The Committee trusts that the necessary amendments will be made to bring the above provisions into conformity with the freedom of association principles announced in detail in its previous comment and requests the Government to provide updates on any progress made in this regard.

Workers in major businesses of national defence industry and other workers excluded from the right to strike. The Committee requested the Government to provide its comments in respect of the KCTU observations on the prohibition to strike of workers in major businesses of national defence industry, registered security guards, special security guards at key national establishments and certain seafarers. The Committee notes that according to the Government: (i) among all workers in major businesses of national defence, only those engaged in the production of electricity, water or works listed by Presidential Decree, that is, production of military supplies, are excluded from the right to strike, which was also considered as constitutional by the Constitutional Court; (ii) special security guards at national security establishments (airports, ports, nuclear power plants) have similar characteristics than the police and the prohibition of industrial action promotes safety and normal functions of these establishments; and (iii) seafarers can engage in industrial actions but some restrictions are imposed in specific circumstances (in a foreign port, with passengers aboard, transport of dangerous articles, navigating under the command and steering by a captain) or when it could cause remarkable harm to the safety of people or the ship (section 25 of the Seafarers Act). The Committee notes that according to the KCTU, a case is currently under review at the Constitutional Court on the question of constitutionality of section 41(2) of the TULRAA, which excludes employees of major defence businesses from the right to strike. The KCTU indicates that transfer of union members from private-sector production lines to defence production lines in companies involved in both businesses remains an issue and is exacerbated by criminal prosecution of unionists for violation of section 41(2) of the TULRAA, even for conducting general assemblies, which were considered as unlawful industrial action. The Committee notes from the Government’s reply that the Labour Relations Commission did not consider the above transfers as unfair labour practices and the courts found that the instances of organizing general assemblies in companies producing national defence goods, were in fact industrial actions or had the effect of interfering with the normal operations of business. The Committee recalls that while the right to strike can be prohibited or restricted for the police and the armed forces, such restriction should not be extended to civilian personnel in military institutions except those employed in essential services in the strict sense of the term, which include the security forces, water and electricity services or prison services. However, transport services, maintenance of ports and airports and port services and authorities are not considered as essential services. In line with the above, the Committee requests the Government to take all necessary measures to ensure that civilians working in military institutions, besides those engaged in essential services in the strict sense of the term, as outlined above, can effectively exercise their right to strike and are not arbitrarily transferred between services to avoid the exercise of this right.

Restrictions to the legitimate purposes of strike action. The Committee previously noted that the legislation did not allow strikes for purposes other than those directly related to an industrial dispute and requested the Government to take the necessary measures to amend the legislation in this regard. The Committee notes the Government’s indication that expanding the scope of industrial action to include strikes related to social and economic issues, Government policies and sympathy strikes can cause confusion in labour-management relations, is highly contentious and requires sufficient social dialogue. It adds that a proposal to amend the TULRAA to expand the scope of industrial actions is before the National Assembly. The Korea Employers’ Federation (KEF) similarly asserts that expanding the purpose of legitimate labour disputes will cause confusion in workplaces. The KCTU points out, however, that the restrictive approach to the legitimate purpose of strikes has implications on freedom of association, as illustrated by the example of disciplinary actions taken against unionists leading a strike concerning government policies on railways privatization. The Committee further notes the KCTU indication that although a bill amending section 2(5) of the TULRAA passed the plenary session, it was vetoed by the President. While taking note of the Government’s and KEF’s concerns, the Committee recalls that limiting the legitimate purpose of strikes to issues directly related to an industrial dispute deprives workers and their organizations of an essential means of action to protect their legitimate interests. The Committee therefore requests the Government to take the necessary measures, in full consultations with the social partners, to ensure that strike action can be used in situations others than those directly related to an industrial dispute, including in relation to the Government’s economic or social policies or in the form of sympathy strikes.

Subcontracted workers. The Committee previously requested the Government to take the necessary measures to identify and remove the legal and practical obstacles to the effective exercise of the right to strike by subcontracted workers. The Committee notes the Government’s indication that while trade unions of subcontracted workers have the right to take collective action against their employers, the Supreme Court denied the employer status to primary contractors, indicating that an explicit or implicit employment contract relationship was required. The Government further asserts that an amendment to the TULRAA which would broaden the scope of employers to include those who are in the position to effectively and specifically control and determine working conditions even if they are not direct parties to the employment contract, is abstract, vague and may lead to legal uncertainties; it thus would not be in line with the national legal framework. Sharing the Government’s views, the KEF states that an expanded definition of employers would severely oppress the free form of contract and the right to decision-making. The KCTU indicates that a bill which proposed to expand the definition of employer passed the plenary session at the National Assembly but was once again vetoed by the President and emphasizes that the lack of action to protect the right to strike of subcontracted workers, including their replacement by contractors who are not considered as employers, often leads to violent clashes. The KCTU also points to a lower court decision which considered the original contractor as the de-facto employer of the subcontracted workers; the decision is currently pending at the Supreme Court in appeal. In view of the above, the Committee requests the Government to engage in full consultations with the social partners with a view to clearly identifying and removing the legal and practical obstacles to the effective exercise of the right to strike of subcontracted workers. The Committee requests the Government to provide information on any progress made in this regard.

Public sector essential services. The Committee previously noted that national legislation did not totally prohibit strikes in essential services but required a level of continued maintenance and operation of business which substantially restricted the effectiveness of strikes. The Committee requested the Government to take the necessary steps to ensure that the level of minimum service in public essential services be determined with the participation of the social partners and be genuinely a minimum service. The Committee notes that according to the Government, the determination of the minimum level of maintenance is done by workers and employers of each workplace and, if no agreement can be reached, by the Committee on Special Conciliation of the National Labour Relations Commission (NLRC), which is an independent quasi-judicial body and in which the parties participate by providing opinions and determining the validity of any agreement reached. The Committee notes, however, the concerns raised by the KCTU that, according to a report of the Korean Society of Labour Law, the minimum service is generally determined by the NLRC due to employers’ refusal to accept autonomous collective bargaining and that members of its decision-making task force are government-appointed only, with workers and employers participating as direct parties but not in decisions. It also argues that the possibility to replace striking workers in practice results in employers replacing 90 to 100 per cent of the workers, as was the case of the 2016 strike in the railways sector, thus neutralizing the effect of strikes. The Government replies that the study was only conducted in eight workplaces, where the retention rate (minimum work rate maintained during the industrial action) varied between 30 and 100 per cent. In view of the above, the Committee reiterates its request to the Government to take necessary measures to ensure that the level of minimum service in public essential services is genuinely a minimum service (limited to the operations which are strictly necessary while maintaining the effectiveness of the pressures brought to bear) and that the parties can actively engage in its determination.

Quorum and majority required to call a strike. The Committee previously noted that industrial action required the vote of a majority of union members, which was excessive, and requested the Government to take the necessary measures to review section 41(1) of the TULRAA. The Committee notes that, according to the Government, the requirement of a majority approval from union members employed has been maintained during past revisions of the applicable regulations on the basis of social dialogue between workers, employers and the Government; setting a quorum for voting for or against an industrial action based on the votes cast, rather than union members employed, can distort the will of all union members and therefore requires careful consideration and social consensus among the stakeholders. Recalling once again that requiring a decision by over half of the workers involved in order to declare a strike is excessive, the Committee requests the Government, in full consultation with the social partners, to take necessary measures to review section 41(1) of the TULRAA to ensure that, if a vote by workers is required before a strike can be held, account should only be taken of the votes cast.

Civil liability and penal sanctions. In its previous comment, the Committee noted that despite protection against penal sanctions for peacefully exercising the right to strike (section 4 of the TULRAA), both the Penal Code and the TULRAA allowed for penal sanctions for several types of strikes. The Committee notes that the Government reiterates that legitimate industrial action is granted civil and criminal immunities, but if it is accompanied by violence, destruction or full-scale workplace occupation, there can be penal sanctions. In particular, it informs that section 4 of the TULRAA only provides criminal immunity for legitimate trade union activities, which do not involve obstruction of business, but clarifies that the offence is only applicable in cases of violence or destruction (since 2017 there has been no prosecution for obstruction of business for the simple refusal to provide labour). While taking note of the above, the Committee observes that, according to the KCTU, the concept of “obstruction of business by the threat of force” (forcibility) in section 314 of the Penal Code is so broad as to curtail workers’ legitimate exercise of the right to strike and that, contrary to the Government’s indication, the Constitutional Court upheld the application of section 314 to peaceful strikes. In this regard, the Government refers to the case law of the Supreme Court, upheld by the Constitutional Court, which narrowed down the concept of “forcibility” of the crime of obstruction of business by using the criteria of suddenness (could not have been predicted) and severity (causes serious disruption or enormous damage to business operations). The Committee notes from the KCTU observations that a legislative amendment concerning the grounds for exemption from civil liability, such as strikes in response to unlawful or illegal practices of the employers, passed at the National Assembly but was vetoed by the President. The Committee also recalls that the final provisions of the TULRAA set out penal sanctions for several types of strikes regardless of their peaceful character. While emphasizing that the principles of freedom of association do not protect violent industrial action or action which breaches national legislation (as long as the legislation itself is in conformity with the Convention), the Committee recalls that no penal sanctions should be imposed against a worker for having carried out a peaceful strike; therefore, measures of imprisonment or fines should not be imposed on any account. Accordingly, the Committee requests the Government, in consultation with the social partners, to take all necessary measures, including legislative, to ensure that workers and their organizations are not subject to penal sanctions for their engagement in peaceful industrial action and to provide information on the steps taken in this respect.

The Committee also requested the Government to provide information on any cases in which workers and unions were held liable for the damages resulting from a strike or were sentenced to imprisonment for participation in a strike. The Committee notes the Government’s indication that it does not possess information on cases where unionists were sentenced to imprisonment for participation in strikes. It further informs that the Ministry of Employment and Labour conducted a survey on damage claim lawsuits filed against trade unions: between 2009 and 2022, there were 151 lawsuits, out of which 142 concerned claims in workplaces affiliated to the KCTU; one of the major reasons for the lawsuits was the suspension of production lines due to workplace occupation, which was often accompanied by the threat of force or physical assaults and injuries. The Government adds that there is currently a proposal at the National Assembly to amend the TULRAA with an objective to limit claims for damage compensation by prohibiting such claims under certain conditions, as well as prohibiting excessive claims and setting thresholds for damage compensation amount. The KEF considers that the amendment proposal overly protects certain unions and would only encourage illegal strikes. The KCTU indicates that a study of almost 200 court decisions ordering strike-related compensation found that the reasons for strikes were in most cases employers’ refusal to participate in collective bargaining, unlawful dismissals or dispatches of workers, destruction of unions and other violations, showing insufficient protection of the right to strike and collective bargaining. The Committee requests the Government to provide information on any progress in the amendment of the TULRAA regarding civil claims for damage compensation and to send a copy of the amended law.