Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 363, Marzo 2012

Effect given to the recommendations of the Committee and the Governing Body

1. 42. The Committee has been examining this case since its May–June 1996 meeting and on the last occasion at its March 2009 meeting [see 353rd Report, paras 584–749, approved by the Governing Body at its 304th Session].
2. 43. In communications dated 14 June 2010 and 29 October 2011, the Korean Confederation of Trade Unions (KCTU) and the Korean Government Employees’ Union (KGEU) submitted additional allegations. The KCTU also submitted additional information in communications of December 2010 and 31 October 2011.
3. 44. The Government provided its observations in a communication dated 1 February 2011, in reply to the additional information submitted on 14 June 2010 by the complainants, and in communications dated 19 December 2011 and 6 February 2012.
4. 45. At its March 2009 session, the Committee called the Governing Body’s attention to this case because of the serious and urgent matters therein and made the following recommendations:
   • (a) With regard to the Act on the Establishment and Operation of Public Officials’ Trade Unions and its Enforcement Decree the Committee requests the Government to give consideration to further measures aimed at ensuring that the rights of public employees are fully guaranteed by:
     • (i) ensuring that public servants at all grades, regardless of their tasks or functions, including firefighters, prison guards, those working in education-related offices, local public service employees and labour inspectors, have the right to form their own associations to defend their interests;
     • (ii) ensuring that any restrictions of the right to strike may only be applicable in respect of public servants exercising authority in the name of the State and essential services in the strict sense of the term; and
     • (iii) allowing negotiation on the issue of whether trade union activity by full-time union officials should be treated as unpaid leave.
   • The Committee requests to be kept informed of any measures taken or contemplated in this respect.
   • (b) The Committee requests the Government to ensure that the following principles are respected in the framework of the application of the Act on the Establishment and Operation of Public Officials’ Trade Unions:
     • (i) that in the case of negotiations with trade unions of public servants who are not engaged in the administration of the State, the autonomy of the bargaining parties is fully guaranteed and the reservation of budgetary powers to the legislative authority does not have the effect of preventing compliance with collective agreements; more generally, as regards negotiations on matters for which budgetary restrictions pertain, to ensure that a significant role is given to collective bargaining and that agreements are negotiated and implemented in good faith;
     • (ii) that the consequences of policy and management decisions as they relate to the conditions of employment of public employees are not excluded from negotiations with public employees’ trade unions; and
     • (iii) that public officials’ trade unions have the possibility to express their views publicly on the wider economic and social policy questions which have a direct impact on their members’ interests, noting though that strikes of a purely political nature do not fall within the protection of Conventions Nos 87 and 98.
   • The Committee requests to be kept informed in this respect.
   • (c) As regards the other legislative aspects of this case, the Committee urges the Government:
     • (i) to take rapid steps to continue and undertake full consultations with all social partners concerned with a view to the legalization of trade union pluralism at the enterprise level, so as to ensure that the right of workers to establish and join the organization of their own choosing is recognized at all levels;
     • (ii) to expedite the resolution of the payment of wages by employers to full-time union officials so that this matter is not subject to legislative interference, thus enabling workers and employers to conduct free and voluntary negotiations in this regard;
     • (iii) to ensure that, in issuing decisions determining the minimum service, the Labour Relations Commission takes due account of the principle according to which a minimum service should be confined to operations that are strictly necessary to avoid endangering the life or normal living conditions of the whole or part of the population and to continue to keep it informed of the specific instances in which minimum service requirements have been introduced, the level of minimum service provided and the procedure through which such minimum service was determined (negotiations or arbitration);
     • (iv) to amend the emergency arbitration provisions of the TULRAA (sections 76–80) so that emergency arbitration can only be imposed by an independent body which has the confidence of all parties concerned and only in cases in which strikes can be restricted in conformity with freedom of association principles;
     • (v) to repeal the provisions prohibiting dismissed and unemployed workers from keeping their union membership and making non-union members ineligible to stand for trade union office (sections 2(4)(d) and 23(1) of the TULRAA); and
     • (vi) to bring section 314 of the Penal Code (obstruction of business) in line with freedom of association principles.
   • The Committee requests to be kept informed of the progress made in respect of all of the abovementioned matters.
   • (d) The Committee requests the Government to keep it informed of the progress of the appeal proceedings in respect of Kwon Young-kil.
   • (e) The Committee once again requests the Government to reconsider the dismissals of Kim Sang-kul, Oh Myeong-nam, Min Jum-ki and Koh Kwang sik Han Seok-woo, Kim Young-kil, Kang Dong-jin and Kim Jong yun in the light of the subsequent adoption of the Act on the Establishment and Operation of Public Officials’ Trade Unions. The Committee requests to be kept informed in this respect.
   • (f) With regard to section 314 of the Penal Code on obstruction of business, the Committee once again urges the Government to consider all possible measures, in consultation with the social partners concerned, so as to revert to a general practice of investigation without detention of workers and of refraining from making arrests, even in the case of an illegal strike, if the latter does not entail any violence. The Committee requests to be kept informed in this regard, including by providing copies of court judgements on any new cases of workers arrested for obstruction of business under the terms of the present section 314 of the Penal Code.
   • (g) The Committee requests the Government to keep it informed of the outcome of the appeal filed by Choi Seong-jin against his dismissal for having participated in a strike staged by KALFCU in 2005.
   • (h) Recalling that the death of Kim Tae Hwan, President of the FKTU Chungju regional chapter, took place in the context of an industrial dispute, the Committee requests the Government to provide a copy of the relevant investigation report.
   • (i) The Committee urges the Government to take all necessary measures to ensure that the investigation under way concerning the death of Ha Jeung Koon, member of the Pohang local union of the KFCITU, is concluded without further delay so as to determine where responsibilities lie, allowing for the guilty parties to be punished and the repetition of similar events to be prevented. The Committee requests to be kept informed in this respect.
   • (j) The Committee requests the Government to take all necessary measures for the effective recognition of the right to organize of vulnerable “daily” workers in the construction sector, notably by refraining from any further acts of interference in the activities of KCFITU affiliates representing such workers, to keep it informed of the outcome of proceedings pending at the final instance with regard to the Daegu Construction Workers Union, and to review the convictions of the members and officials on grounds of extortion, blackmail and related crimes, for what appears to be ordinary trade union activities. The Committee requests to be kept informed of developments in this respect.
   • (k) The Committee once again requests the Government to undertake further efforts for the promotion of free and voluntary collective bargaining over terms and conditions of employment in the construction sector covering, in particular, the vulnerable “daily” workers. In particular, the Committee requests the Government to provide support to construction sector employers and trade unions with a view to building negotiating capacity and reminds the Government that it may avail itself of the technical assistance of the Office in this regard if it so wishes. The Committee requests to be kept informed of developments in this respect.
   • (l) The Committee recalls the Government’s indication of its willingness to ratify Conventions Nos 87 and 98, in the near future, which it made to the ILO High-level Tripartite Mission in 1998 and which was reported to the Governing Body in March 1998 (see document GB.271/9) and requests the Government to keep it informed of developments in this respect.
   • (m) The Committee calls the Governing Body’s attention to this serious and urgent case.
5. 46. In a communication dated 14 June 2010, the KCTU and KGEU provided additional information concerning acts of interference in the activities of the KGEU. The complainants indicate that the KGEU was divided in two by the Government’s repression, and merged again in September 2009. According to the complainants, in response to the KGEU’s decision to affiliate with the KCTU, the Government reinforced its repression. The Ministry of Labour refused to accept the registration of KGEU three times. Also, there were numerous closures of branch and chapter offices, as well as seizure and search of KGEU’s headquarters.
6. 47. Repression on participants at the 19 July national rally and on those who published a newspaper advertisement. According to the complainant, the Government is severely repressing the public officials’ unions. The Government sued and reprimanded public officials who participated in a rally for “Restoring Democracy and Improving People’s Livelihood”, in which the main opposition, the Democratic Party and three other major opposition parties, participated. In addition, public officials who published a newspaper advertisement under the title “We want to become civil servants of the people” were persecuted. The Government sued 16 union members and directed Governmental bodies, to which concerned officials belong, to discipline 105 public officials (so far 57 disciplined, including 18 dismissed).
7. 48. Oppression of KGEU with regard to the general ballot. According to the complainants, the Government has mobilized the Ministry of Public Administration and Security (MOPAS), State and Local Governments and the National Intelligence Service to interfere in the process of integration among three public officials’ unions and their accession to the KCTU. In this regard, the Government instructed several governmental organizations to discipline 29 union officials (among them, eight faced heavy discipline) because of their involvement in the advertising of a union ballot on the integration of the three unions. Moreover, the Government made a request to reprimand the former president of the steering committee of the Korean Unified Government Employees’ Union, an integrated union, for having a “People’s Ceremony”, to pay tribute to democracy martyrs, instead of the usual national ceremony that takes place in union meetings.
8. 49. Closures of KGEU offices. MOPAS and the Ministry of Employment and Labour (MOEL) are keeping the public officials’ union unrecognized and powerless by coercing 95 of the union’s regional offices to close.
9. 50. MOEL’s request to supplement the report on the establishment (ROE) of KGEU, convene a general meeting and submit subordinate rules. On 4 December 2009, MOEL returned the application to register the KGEU. The KGEU understands that MOEL unlawfully exerted approval authority by forcing the KGEU to complement the application when usually registration itself is sufficient. However, the KGEU decided to reapply for registration after complementing it with additional documents to avoid unnecessary conflicts with the Government and to stabilize the public officials’ community.
10. 51. In order to make sure that the KGEU’s statute was in line with MOEL’s requirements, should the Government once again reject the registration, the KGEU revised its statutes through a general direct ballot of its members on 23 and 24 February 2010 (68.5 per cent went to the ballot and 91 per cent voted in favour). The revised statute was submitted to MOEL on 25 February 2010. However, the registration was returned again on 3 March 2010, on the basis that dismissed workers as well as those in grade 6 in semi-managerial positions were still members of the union.
11. 52. Interference in KGEU’s inauguration assembly. On 24 March 2010, MOPAS ruled that the KGEU was an illegal organization, on the basis of its inauguration rally that took place on 20 March. It also indicated that public officials who had participated in the rally would be identified and given heavy disciplinary sanctions. It also declared that all activities performed in the name of the union would be declared illegal. In this regard, the following measures were put in place: removal of all KGEU’s signboards; removal and ban of all KGEU’s banners and posters; blocking the access to the KGEU’s website and interruption of the connection to the intranet and external networks; prohibition of all union activities in the name of the KGEU, including issuing labour union newsletters, picketed rallies, labour union official elections, retreats, inauguration rallies of branches and chapters, meetings and demonstrations, and refusing accommodation requests for events in the name of the KGEU. The Government also prevented delegates from Public Services International, Asia–Pacific (PSI–AP) from entering the Republic of Korea, in order to hinder KGEU’s inauguration rally on 20 March 2010.
12. 53. Prosecution of union officials. Lately, the police and intelligence officials illegally hacked the website of the Korean Democratic Labour Party, and illegally traced individual bank accounts, emails and cellular phones, and on the authority of this information, the Government charged 90 KGEU officials and was about to dismiss them for violation of the Political Party Act and the Political Fund Act.
13. 54. The Government also conducted an investigation based on the information illegally hacked in January 2010, to press charges on 293 labour union officials of the KGEU and the KTU (KGEU 103, KTU 190). On 2 March 2010, 284 labour union officials’ cases were sent to the public prosecutor’s office and were under investigation and on 6 May 2010, 273 labour union officials have been charged (KGEU 90, KTU 183).
14. 55. Interference in the Gwangju Rally. The KGEU decided to have a “Gwangju Pilgrimage” to celebrate the 30th anniversary of the “Gwangju Democratisation Movement” with members and their families. On 6 May 2010, MOPAS stressed that the KGEU was an illegal organization, that they considered this event to be an illegal union action, and indicated that heavy disciplinary measures would be taken against the participants. In this respect, all Government offices gathered the projected participants list with their photos and reported to MOPAS. On the day of the event, 350 officers of MOPAS were present to identify all the KGEU members.
15. 56. Legislative issues. According to the complainants, the Government announced that it will revise the Government Employees’ Work Regulation so that any comment made by public officials on the web, including on the KGEU website, that are deemed to violate Government employees’ obligation to stay politically neutral will be banned. Already, on 24 November 2009, the Cabinet meeting issued a bill to revise the Government Employees’ Work Regulation stipulating that “public officials are banned on opposing to government policies”. In December 2009, the cabinet meeting also issued a bill to revise the Government Employees’ Remuneration Regulation to strengthen the provision on deduction of union dues from pay checks. In addition, a legislation to prohibit public officials in the National Election Commission and the courts from joining and forming unions is under consideration.
16. 57. Revision of the Trade Union and Labour Relations Adjustment Act (TULRAA). In a communication dated December 2010, the KCTU provides additional information with regard to the revision of TULRAA and more particularly concerning the ban on wage payment for full-time union officials and the introduction of a maximum time-off limit. According to the complainant, these revisions were unilaterally made by the Government on 1 January 2010, despite strong disagreement from unions and opposition parties, and are invalid. Under the pretext of this revision, the Government went further and adopted measures that were outside the boundaries of what was allowed by law – limiting the role of full-time union officials and capping the number of full-time officials. According to the complainant, these additional measures clearly violate the law.
17. 58. The amendments of TULRAA enforce a ban on payment of wages to full-time union officials and punishment for employers who do not comply. According to the complainant, this amendment is in direct contradiction with the ILO’s repeated recommendations to the Government that payment of wages to full-time union officials should not be subject to legislative interference. Furthermore, through the introduction of the time-off system, paid full-time union work will be allowed only within the limits set by MOEL, based on the agreement with the employers. Full-time union work will be limited to activities related to bargaining and consulting with employers, grievance handling, occupational safety and health, and basic maintenance and operation of unions for development of sound industrial relations. Activities related to industrial action, political empowerment of workers, solidarity of the broader working class, work related to affiliated federation or confederation, etc., will be disallowed. In other words, according to the complainant, paid full-time union work will only be allowed for “union duties” – those performed as a part of company’s labour/HR management – and not for independent “union activities”, thus negating the principle of freedom of association.
18. 59. Moreover, TULRAA’s revision of 1 January 2010 delays the adoption of union pluralism for another year and a half, while enforcing unification of bargaining channels. According to the complainant, even when union pluralism will take effect, the exercise of the fundamental labour rights will be hindered since employers will be able to utilize various means to evade negotiations with unions.
19. 60. Manual on the application of maximum time-off limits. Just before 1 July 2010, when the revised TULRAA was about to come into force, MOEL published the Manual on the application of maximum time-off limits (Manual), which includes provisions that override the boundaries of the revised TULRAA, thereby seriously undermining union activities. In the Manual, the Ministry introduced the concept of “time off for union officials”, under which not only full-time union officials but also part-time officials would become subject to the time-off limits. Furthermore, union activities that are supposed to be paid as guaranteed by TULRAA and other laws would also be subject to the time-off system, constraining the scope of union activities. Moreover, although the revised TULRAA regulates only the total number of hours under the time-off system – so that within the hours stipulated, there will be no loss of pay for union work – the enforcement decree and the Manual added a limitation on the number of persons eligible to use the time-off system. According to the complainant, these provisions are illegal in the sense that they do not have any basis in the main law.
20. 61. According to the complainant, MOEL has also limited the scope of full-time union work without any legal basis. Such actions undermine free and voluntary activities of unions and can be interpreted as attempts to reduce the types of work subject to paid time off. According to the complainant, despite the fact that types of union activities eligible for time off should be decided voluntarily by unions, MOEL limits the scope of eligibility to those in which “labour and management have common interests”. It goes further to say that “time-off officials” should primarily perform union work during time off. However, this interpretation of law is illegitimate. Moreover, MOEL states that labour and management should decide upon the criteria and procedure of setting the number of union officials subject to time off, and claims that unions must submit to employers beforehand the names of fixed time-off union officials.
21. 62. Finally, according to the complainant, the Manual should be considered illegal because the Time-off Deliberation Committee has ignored all legal procedures.
22. 63. In addition, under the pretext of the revised TULRAA, collective bargaining agreements (CBAs) have been unilaterally terminated in many workplaces including Korea Railroad, National Pension Service and Korea Gas Corporation. Such cancellations are particularly widespread among public corporations.
23. 64. The KCTU believes that the recent series of labour repression are being carried out under explicit and implicit consent between the Government and employers, based on the revised TULRAA. According to KCTU, the biggest problem is that the revised TULRAA, which is the source of the repression, is in direct confrontation with ILO Conventions. In particular, after the revised TURAA took effect, free and voluntary industrial relations have been undermined by distortion or misinterpretation of the revised law. MOEL has also recently been issuing rectification orders that instigate unfair labour practices. Such rectification orders include issues in CBAs unrelated to payment of wages to full-time union officials, such as those related to provision of facilities and conveniences, membership eligibility, limitations in terminating CBAs, etc. These actions clearly show the repressive intentions of the Government. Even if labour and management come to an agreement, this kind of attitude on the part of MOEL undermines confidence on whether the agreement will actually be able to have effect. It also explicitly and implicitly limits the ability of unions and management to come to a free and voluntary agreement, thus stimulating further industrial disputes. It has resulted in employers becoming irresponsive to bargaining, showing insincerity in the bargaining process or resorting to unfair labour practices. In addition, with the revised TULRAA, the Government has started to excessively intervene in industrial relations at the company level by exerting control over issues that were previously left to the discretion of labour and management, thereby seriously eroding fairness and trust, which are core values in labour administration. Distrust towards labour administration will deteriorate not only industrial relations but also labour–Government relations. According to the complainant, all this conflicts with ILO Conventions Nos 98 and 154.
24. 65. The revision of TULRAA also includes the lifting of a ban on union pluralism, on the condition of unifying the bargaining channel. The introduction of union pluralism will take effect on 1 July 2011, after having been postponed for another one-and-a-half years. According to the complainant, during the lull, freedom of association will, de facto, be limited. Furthermore, in 2011, after the adoption of union pluralism, bargaining channel can be unified by force if the employer does not agree to voluntary negotiations. According to the complainant, this forced unification restricts rights to bargaining and collective action of minority unions. The Government has allowed union pluralism under the pressure from the international community, but has done so in a way that minority unions in practice will not be able to exercise their fundamental labour rights.
25. 66. According to the complainant, the revised TULRAA also stipulates that supra-enterprise unions are subject to the unification of bargaining channels, which will eviscerate industrial bargaining while rooting down enterprise bargaining. Specifically, not only will cross-bargaining in certain workplaces affiliated to an industrial union be impossible, but minority unions will not be able to participate in industrial bargaining. Even unions currently participating in industrial bargaining can be deprived of their right to participate later on, if that union loses its majority status. The Government and employers’ organizations argue that such unification will save costs, however, the short-term effects of saving costs and downgrading working conditions by forcing a single bargaining channel will fall far short of the mid and long-term effects of stable industrial bargaining.
26. 67. According to the KCTU, the revised TULRAA’s provisions on the unification of bargaining channel gives bargaining representatives the authority not only to bargain, but also to sign CBAs and file complaints in cases of non-compliance on the part of employers, and all rights and powers pertaining to industrial relations and guarantee of union activities are devoted to them. Therefore, rights of minority unions including their right to seek relief in cases of unjust labour practices and their right to industrial actions, including strikes, will, de facto, be denied. In other words, this provision will seriously violate the fundamental labour rights of minority unions and their members, and is therefore unconstitutional. The Government has said that it will minimize the side effects by enforcing a “duty of fair representation” by the majority union; however, this measure will not be legally binding and will not be able to play a substantive role.
27. 68. According to the complainant, with the revised TULRAA, industrial actions shall be decided only through direct secret vote of all members of all unions that have participated in bargaining through the unified channel. This means that unions that do not have bargaining representatives or unions who do have bargaining representatives but are not the majority will not be able to exercise their right to strike, if other unions are unwilling to strike. Furthermore, in reality, even unions that do have the majority status and the bargaining representatives will only be able to strike if members of other unions agree to it. Under these circumstances, not only will minority unions lose their right to strike, but cooperative unions or “yellow” unions, even if they constitute the minority, will be able to incapacitate the right to industrial action of all trade unions in that workplace. As a result, under the proposed union pluralism, trade unions’ right to collective action will, de facto, be deprived, leading to serious infringement of constitutional fundamental labour rights.
28. 69. In their communication of 29 October 2011, the KCTU and the KGEU provide additional detailed information on the continuing acts of repression and denial of the KGEU’s request for registration, the devastating results of the ban on check-off and refers to another prosecution of 1,600 Government employees due to small contributions. The KCTU, in its communication dated 31 October 2011, further denounces the practical application of the recent amendments to TULRAA which it states give rise to systemic unfair labour practices and evasion of collective bargaining responsibilities. The KCTU refers to a number of specific enterprises in both the private and public sector where it alleges that yellow unions have been formed under the system of enterprise pluralism, disciplinary punishment taken against union members, including dismissal.
29. 70. In its communication dated 4 February 2011, the Government indicates that the actions it has taken are to ensure political impartiality of public officials as defined under the Constitution, and are by no means intended to suppress public officials’ trade unions as the complainants argue. According to the Government, the KGEU clearly violated the duty of political impartiality under the laws and therefore, it cannot be qualified as a legitimate trade union under the laws. Therefore, the Government’s actions against the KGEU are lawful administrative measures in due compliance with Convention No. 87.
30. 71. Alleged repression on participants at the 19 July national rally and on those who published a newspaper advertisement. Article 7 of the Constitution requires political impartiality on all public officials. Therefore, public officials’ involvement in political activities, taking part in and supporting political rallies or expressing political views in newspaper advertisements, defies the spirit of the Constitution. Moreover, such engagements constitute illegal collective activities under both article 66 of the State Public Officials Act (SPOA) and article 58 of the Local Public Officials Act (LPOA); and they do not fall within the justified collective activities allowed under article 3(1) of the Act on the Establishment, Operation, etc., of Public Officials’ Trade Unions (APOTU). Henceforth, it was the rightful action of MOPAS to prosecute 16 leaders who participated in the Rally, violating the relevant laws and regulations, and to request the competent authorities to take disciplinary actions against 105 participants.
31. 72. Allegation of oppressing KGEU with regard to the general ballot. According to the Government, it was found that some union members in local governments made themselves available, through false reports of having business trips or being absent without leave, in their efforts to encourage more participation of union members in the ballot voting. The Government directed and requested disciplinary actions against the 29 union leaders who engaged in these unlawful activities with the objective of preventing the recurrence of such incidents.
32. 73. Allegation of barring public officials from countering Government policies. On grounds of article 21(1) of the Constitution, the spirit of the LPOA, the duty of fidelity under the Act, the Supreme Court ruled on 15 October 2004 that the prohibition of collective activities under article 66 of the SPOA and article 58 of the LPOA are intended to ban collective activities of public officials that are sought to serve private interests against the common interests, which obstruct faithful pursuance of public officials’ duty as being servants to the population.
33. 74. Closures of KGEU offices. On 20 October 2009, MOEL notified its decision of confirming the KGEU as an unauthorized organization, thus being disqualified from being a legitimate trade union under APOTU, on the ground that dismissed employees, i.e. non public officials, were allowed to hold membership in the organization. Accordingly, upon receiving MOEL’s notification, MOPAS directed ministries and Government agencies to reclaim offices once awarded to the KGEU in accordance with article 81(4) of TULRAA as the KGEU was no longer entitled to such benefits after losing its qualification as a trade union. A total of 96 offices previously used by the KGEU were returned to the Government as of 4 December 2009.
34. 75. KGEU’s inauguration assembly. The Government decided not to qualify the KGEU as a legitimate trade union established under the law as it carried out political and collective actions, which violate the duties specified under the SPOA and LPOA. For instance, participants at the assembly explicitly opposed to the Government’s policies and condemned the Government.
35. 76. Inspection carried out by the Government in March 2010. From the period of 15–26 March 2010, a field inspection on trade unions in a total of 58 Government’s agencies and institutions was conducted. The inspection led to finding that illegal and unfair practices such as agencies neglecting to condemn unlawful practices, including union activities carried out during the official service hours. In this regard, according to the Government, the complainant’s allegation of awarding incentives to Government agencies that suppress trade unions is unjustified and does not stand to reason.
36. 77. Donation to the Democratic Labour Party. According to the law, public officials shall not make donations (membership fees) to any political party or to their supporters’ association. Therefore, the 90 indicted KGEU members violated the SPOA, LPOA, PFA, and PPA when they joined the Democratic Labour Party, a registered political party under the PPA and made donations either in the name of the party’s membership fee or the supporters’ association membership fee. MOPAS directed disciplinary actions against 89 public officials on the grounds of the prohibition of political activities clauses under the SPOA and LPOA as they joined a political party and/or the party supporters’ association and donated political funds.
37. 78. The Gwangju Rally. According to the Government, the KCFU rally is a political gathering as it carries participants’ views on the Government. Therefore, prior to 15 May 2010, MOPAS informed all Government agencies that public officials’ collective action in association with the political rally would be deemed illegal.
38. 79. MOEL’s request to supplement the ROE of the KGEU, convene a general meeting and submit subordinate rules. When the KGEU submitted the ROE on 1 December 2009 to MOEL, some mandatory contents were missing. MOEL did not accept the ROE documents after due deliberation and requested the KGEU to resend them with the required information no later than 4 December 2009. MOEL requested the KGEU: (1) to clarify the membership status of dismissed workers; (2) to verify the union by-law being instituted at a general meeting; (3) to prove that union representatives were being elected via a direct secret ballot by and of all members concerned; and (4) to revise provisions in by-laws that promote members’ political activities and to delete provisions that allow the dismissed to join the union. However, the KGEU failed to resubmit the ROE documents by the specified date, and MOEL returned KGEU’s ROE documents accordingly.
39. 80. A revised ROE was delivered to MOEL on 25 February 2010. It, however, turned out that eight managerial officials as well as the dismissed ones, in other words non-public officials, who are disqualified to form or join the public officials’ trade union, held membership in the concerned organization. Again, it failed to meet the qualification to be a registered trade union. Hence, MOEL returned the documents on 3 March 2010, in accordance with article 12(3) of TULRAA. The latest ruling by the Seoul Administrative Court, delivered on 23 July 2010, reconfirms its historical standing by citing MOEL’s decision to decline KGEU’s ROE being legitimate and lawful. Therefore, all circumstances and rulings suggest that MOEL’s return of KGEU’s ROE and request for supplements were legitimate and necessary in due course of law enforcement.
40. 81. According to sections 16 and 17 of TULRAA, a trade union cannot legally come into existence without a union by-law that prescribes its scope, composition, and other procedural matters. In the KGEU’s case, however, the initial union by-law of the KGEU was established at a delegation meeting instead of at a general meeting, which clearly runs against TULRAA. According to the Government, a general meeting does not necessarily require a huge venue where all members can gather under one roof. Members can cast their votes at their workplace via predetermined procedure without visiting a separate place for a general meeting. Appropriate arrangements can be designed to reflect direct voices of members.
41. 82. Organizations shall submit the ROE and the by-laws to the competent authority in order to be duly recognized as a trade union. The subordinate rules of the by-laws are also part of the by-laws. Article 11 of the TULRAA mandates to incorporate substantive information such as the purpose, members and election procedures into the union by-law for the sake of an autonomous and democratic operation of the trade union. However, the submitted KGEU by-laws did not touch upon such matters as honorary members, accounting and audit committee, and elections management. Rather, it refers such matters to be discussed under its subordinate rules, which were not delivered to MOEL. Accordingly, MOEL requested the KGEU to submit the said “subordinate rules” which are supposed to present the mandatory information needed to complete the ROE, and which was missing in the KGEU’s by-laws.
42. 83. Legislation to ban public officials of the Election Commission and the courts from joining a trade union. The bill suggests classifying public officials in charge of election management at the Election Commission as special service officers whose duties and rights present unique features that mark them off from the general service officials, and accordingly institute some restrictions on their right to join trade unions. The captioned initiative was pursued at the National Assembly, which has nothing to do with the Government’s intention. Anyhow, the bill as of January 2011 was still pending at the National Assembly.
43. 84. Union dues deduction. The Government revised the Government Employees’ Work Regulation in December 2009, which added new provisions of banning any dues from being withheld unless otherwise stated under the law. Or when deemed necessary, the accounting department shall obtain employee’s prior written consent before withholding his/her dues or other fees of such kind. This explains that the revision primarily aims to protect public officials’ property rights by mandating a prior written consent of the person concerned for the withholding of any type of contribution under various names and labels including the union due.
44. 85. In its communications dated 19 December 2011 and 6 February 2012, the Government replies to the January and October 2011 KCTU communications largely relating to the criticisms of the revisions of TULRAA. In the first instance, the Government explains that the unified bargaining channel was introduced as a solution to the institutional obstacles relating to the need to bring into force provisions for enterprise pluralism. The Government states that the contents of the revised act were developed through tripartite discussions and the Federation of Korean Trade Unions (FKTU) and the Korean Employers’ Federation (KEF) reached an agreement on 4 December 2009. The Government emphasizes that its labour laws provide strong safeguards against unjust dismissals.
45. 86. Paid time-off system. The Government recalls that the issue of full-time union officials has been a serious problem. It emphasizes that full-time union officials should not be dependent on the employer for their wage payment as this would undermine their independence and maintain the vested interests of the union leadership. Nearly 20 per cent of all labour disputes in the country related to the supply of facilities to trade unions, including approval of full-time union officials. Many full-time union officials never return to work creating a higher number of officials in relation to the number of employees. Regulations against these unreasonable practices were necessary and the National Assembly had already prohibited such payments in 1997, while providing for a grace period before the provision would come into effect. The prohibition was suspended for 13 years, while during this time, labour has neither downsized the number of full-time officials nor made efforts to establish their own financing.
46. 87. The revised TULRAA specifies the paid time-off system. While prohibiting the payment of wages to full-time union officials on the basis that it is an unfair labour practice, it permits an exception for a certain amount of time that may be compensated by the employer. Had this system not been put in place, the earlier amendment would have come into force merely prohibiting all payment of union officials. In addition, the system provides for a wide range of activities that may be covered by the paid time-off system: consultation and bargaining with the employer; grievance handling; occupational safety activities; and functions of maintaining and managing the trade union for sound development of industrial relations. It can be applied to most union activities except certain activities, such as strikes. With the introduction of the system, it was necessary to prohibit the employer from paying wages to full-time union officials for activities not covered by the system. As regards the allegations made by the KCTU in relation to the Manual issued by MOEL, the Government states that such a publication was clearly within its responsibility and was aimed at preventing abuses of the system by instructing that activities that are in the mutual interest of labour and management should be carried out by union officials eligible for paid time off. As regards the question of officials dispatched to an affiliated association, the Government states that it would not be right to make the employer pay for such an official who is not an employee in the enterprise. In conclusion, the Government considers that the paid time-off system that it has developed is, compared to other advanced nations, relatively generous and flexible.
47. 88. Bargaining representative system. This system was necessary to reduce the side effects of multiple unions, such as overlapping bargaining and excessive bargaining costs, and aimed at promoting the creation of consistent working conditions in one workplace. In addition, it increases unions’ bargaining power. The Government recalls that many collective bargaining systems provide for exclusive representation and adds that the system under the revised TULRAA permits unions first to determine the bargaining representative autonomously and if they fail, the union having a majority of the membership of all the unions in the enterprise becomes the representative. If there is no such majority union, a joint bargaining team is organized. Multiple unions may bargain individually if the employer agrees.
48. 89. In reply to the allegation that the bargaining representative system constrains industry-level bargaining, the Government states that, while industry-level bargaining is possible under the system, there is no obligation to impose industry-level bargaining and it should only be carried out by agreement between labour and management. Industry-level bargaining is fully available upon agreement between labour and management, the only difference is that the industrial trade union should obtain the bargaining representative status at the enterprise level. Allowing an exception to the unified bargaining channel for industry-level bargaining would be unfair to unions that are not organized at the industry level and would give rise to multiple collective agreements which would undermine the consistency of working conditions.
49. 90. The Government refutes the allegation that the system erodes minority unions’ bargaining rights, as all unions are involved in determining the representative union where there is no majority union and with the introduction of union pluralism such unions can exist where they could not have been formed previously. In addition, the revised TULRAA prohibits undue discrimination against minority unions by imposing the duty of fair representation on the bargaining representative union. The limitations that may exist are an inevitable part of union pluralism and given that representative status is only granted for a two-year term, the minority union will always have a chance to leave the representative union at a later date.
50. 91. The Government believes that consolidating the bargaining power through the representative union has practical benefits for the promotion of collective bargaining. The fundamental source of bargaining power is unity and solidarity. Also, when there is a representative union, the employer would feel more willing to participate in bargaining to set working conditions that are consistently applicable enterprise wide. In addition, individual bargaining is not necessarily advantageous for workers as it weakens the unions’ bargaining power as a whole.
51. 92. As regards restrictions on industrial action, the Government states that the revised TULRAA provides that only the representative union can lead industrial action, with the approval of a majority of all the members involved in the procedure. This is a reasonable principle as strikes are just a means to accomplish an end in the bargaining process and not an end in themselves. Strikes have a great impact on the other union members and the company and should be resorted to as a last resort and exercised prudently. The Government asserts that the KCTU’s allegation that the bargaining representative cannot take industrial action without consent from other unions is not true as it needs only the approval of its own members if it is a majority of all the participating unions.
52. 93. As regards the allegation of the ban on striker replacements, the Government states that this ban still applies although it has been relaxed to some degree for essential public services. As for the question of obstruction of business, the Government states that the precedent whereby the Supreme Court had ruled that any illegal strike, even where peaceful, is considered the collective threat of force in itself and therefore constitutes obstruction of business has now been altered by a full bench decision of 17 March 2011. As a consequence, strikes that are simply workers’ peaceful refusal to work, not involving the illegal occupancy of the workplace, interference with business operations, etc., have almost no chance of being penalized on charges of obstruction of business. Since the change, there have been no court decisions placing obstruction of business charges on workers for their passive refusal to work, even if the strike was not legitimate.
53. 94. As regards the allegation of lack of protection against unfair labour practices, the Government emphasizes that yellow-dog contracts, unfavourable treatment due to union membership, domination over or interference with a trade union or financial support for a trade union all constitute unfair labour practices and are prohibited and subject to a penalty of up to two years imprisonment or a fine of up to 20 million Korean (South) won (KRW). An employer’s refusal to bargain collectively is also an unfair labour practice and the Labour Relations Commission, a tripartite body, will conduct mediation and arbitration with the agreement of the parties. The employer must implement the Commission’s order and if he or she refuses to implement a judicially confirmed order he or she will face criminal punishment or imprisonment or a fine.
54. 95. The Government asserts that is has steadfastly maintained a “zero tolerance” policy on unfair labour practices. It investigates not only legal complaints and petitions about unfair labour practices but also alleged cases of such practices collected in various ways. In this regard, the Government set up an “Internet Report Centre” in July 2011 at the outset of the introduction of the enterprise-level multiple unions system to receive reports, including anonymous ones, of unfair practices related to multiple unions. Any report, complaint or petition received by the Centre is followed up on thoroughly for strict review and measures.
55. 96. The KCTU’s allegation that the number of “yellow unions” and unfair labour practices surged right after the enterprise-level bargaining channel unification system entered into force is groundless. The cases of trade unions that disaffiliated with the KCTU or of multiple unions that were newly formed in companies with KCTU unions following the introduction of the multiple union system, prominently concern labour relations characterized by conflict and confrontation. Indeed, the phenomenon is driven by the KCTU members who are opposed to the KCTU’s line.
56. 97. Since the multiple unions system was enforced, only 34 reports on 24 firms were filed at the Internet Report Centre by 30 January 2012. Three companies are facing judicial action as their unfair labour practices were confirmed; 15 were cleared without charges. Investigation is in progress for two of the six cases (Yusung Enterprise and Korea Western Power) and the remaining four cases (Central, Korea East–West Power, Yusung Rivera, KEC) went through an exhaustive investigation process, including seizure and search, and was handed over to the prosecutor’s office with the opinion of indictment.
57. 98. The Government confirms that 85.9 per cent of the trade unions newly created after the introduction of the multiple unions system were registered as non-affiliated unions, but asserts that this is the extension of a trend that began before the bargaining channel unification system was launched on 1 July 2011.
58. 99. The bargaining channel unification system was designed to facilitate reasonable bargaining practices between labour and management under the new multiple unions system. Two people or more can form a trade union whenever they want, and the employer has the responsibility to accept a trade union’s request for bargaining. Any violation in this regard is punished as an unfair labour practice. Therefore, it would be unrealistic to require the employer to negotiate with every individual trade union under such circumstances where multiple unions can be established without limit.
59. 100. In conclusion, the Government states that, as of the end of December 2011, in 96.1 per cent of the enterprises with multiple unions where bargaining is in progress, the representative union selection process has been completed. Specifically, 95.2 per cent of enterprises with KCTU unions and 95.3 per cent of enterprises with FKTU unions completed the process. Meanwhile, the proportion of unions that concluded wage negotiations with employers was 82.2 per cent, up by 13 per cent from 69.2 per cent a year earlier. This illustrates how smoothly unions and companies have been adapting to the new process of collective bargaining since the introduction of the multiple unions system. It also shows that the KCTU’s allegation that the bargaining channel unification system is undermining promotion of collective bargaining totally lacks empirical evidence. Moreover, at the end of July 2011, 93.3 per cent of all workplaces had introduced the paid time-off system and 99.4 per cent were abiding by the maximum limits. About 80 per cent of workplaces were complying with the procedure for selecting a bargaining representative. The Government asserts that the bargaining channel unification system is completely consistent with the Constitution and is not contrary to ILO standards.
60. 101. The Committee recalls that it has been examining this case, which concerns both legislative and factual issues, since 1996. The Committee observes from its previous conclusions and the information before it that although significant progress has been achieved in terms of the steps taken to revise the legislation, allegations remain concerning the practical implementation of the legislation and the measures appropriate to promote a stable and constructive industrial relations system in the country.
61. 102. The Committee recalls that the outstanding legislative issues concern, on the one hand, the Act on the Establishment and Operation of Public Officials’ Trade Unions, which concerns the public sector only, and, on the other hand, TULRAA and other legislation which is generally applicable.
62. 103. With regard to TULRAA and other generally applicable legislation, the Committee recalls that the pending issues concerned the need to: (i) legalize trade union pluralism at the enterprise level; (ii) resolve the issue of payment of wages to full-time union officers in a manner consistent with freedom of association principles; (iii) ensure that, in issuing decisions determining the minimum service, the Labour Relations Commission takes due account of the principle according to which a minimum service should be confined to operations that are strictly necessary to avoid endangering the life or normal living conditions of the whole or part of the population; (iv) amend the emergency arbitration provisions of TULRAA (sections 76–80) so that it can be imposed only by an independent body which has the confidence of all parties concerned and only in cases in which strikes can be restricted in conformity with freedom of association principles; (v) repeal the provisions prohibiting dismissed and unemployed workers from keeping their union membership and making non-union members ineligible to stand for trade union office (sections 2(4)(d) and 23(1) of TULRAA); and (vi) amend section 314 of the Criminal Code concerning obstruction of business to bring it into line with freedom of association principles.
63. 104. When it last examined the case, the Committee recalled that the question of wage payment to full-time union officers should not be subject to legislative interference and should be left to free and voluntary negotiations between the parties. It had therefore requested the Government to expedite the resolution of this matter, in accordance with freedom of association principles so as to enable workers and employers to conduct free and voluntary negotiations in this regard.
64. 105. The Committee notes from the KCTU’s new allegations that amendments to TULRAA concerning the ban on wage payment for full-time union officials and the introduction of a maximum time-off limit were unilaterally adopted by the Government on 1 January 2010, despite strong disagreement from unions and opposition parties. This amendment came into force on 1 July 2010. The Committee further notes that the TULRAA revision of 1 January 2010 delayed the adoption of pluralism for another year and a half, while imposing the unification of the bargaining channel.
65. 106. The Committee notes the strong disagreement of the KCTU concerning these amendments and the extensive arguments they have presented to illustrate how they violate their freedom of association. With regard to the ban on wage payment for full-time union officials and the introduction of a maximum time-off limit, the Committee notes that according to the KCTU: (i) the time-off system contains a dual restriction on both activities covered and maximum time limits; (ii) the revised law stipulates that union activities which are guaranteed by the CBAs shall be treated as unpaid time off and will therefore make union activities in the broad meaning such as opinion collecting, union education, policy-related activities, and activities for federations and confederations impossible. If paid time off is granted for these union activities in a CBA, it would be a violation of TULRAA and the administrative offices could order to correct the relevant CBA (article 31.3 TULRAA); (iii) the majority union will monopolize the paid-time off; and (iv) the method of using time off violates the autonomy of unions, the right to decide how those hours will be used and by whom should be reserved for unions.
66. 107. According to the Government: (1), while prohibiting the payment of wages to full-time union officials on the basis that it is an unfair labour practice, the revised TULRAA permits an exception for a certain amount of time that may be compensated by the employer; (2) the system provides for a wide range of activities that may be covered by the paid time-off system applicable to most union activities except certain activities, such as strikes; (3) the Manual issued by MOEL was aimed at preventing abuses of the system by instructing that activities that are in the mutual interest of labour and management should be carried out by union officials eligible for paid time off; and (4) it would not be right for an employer to have to pay for officials who have been dispatched to an affiliated association.
67. 108. The Committee notes that the maximum time-off limits (by Notification No. 2010-39 of the Ministry of Labour), attached to the KGTU’s communication dated December 2010, are the following:

    • Maximum time-off hours
      Size of membership (unit: person)	Decision made by the deliberation
      	Maximum time-off hours (number of full-time union officials)		Maximum limit (converted into person)
      50 or less	1 000 (0.5)	** Part-time union officials cannot exceed three times the number of full-time union officials.	1–3
      50 ~ 99	2 000 (1.0)		1.9
      100 ~ 199	3 000 (1.5)
      200 ~ 299	4 000 (2.0)
      300 ~ 499	5 000 (2.5)	*** Part-time union officials cannot exceed two times the number of full-time union officials.	3–7
      500 ~ 999	6 000 (3.0)
      1 000 ~ 2 999	10 000 (5)		24.1
      3 000 ~ 4 999	14 000 (7)
      5 000 ~ 9 999	22 000 (11)
      10 000 ~ 14 999	28 000 (14)
      15 000 or more	Until June 30, 2012: 28 000 hours (i) 2 000 hours; (ii) additional for every 3 000 members
      	Effective from 1 July 2012: maximum 36 000 hours (18)
      * Membership means the total number of union members of a business or workplace.
      ** The calculation of one full-time union official comes from 2,000 work hours based on a 40-hour work week multiplied by 52 weeks per year.

      >
68. 109. The Committee notes with regret that despite its previous repeated recommendations, the amendments to TULRAA retain the enforcement of a ban on the payment of wages to full time officials and provides for sanctions against employers and unions who do not comply (articles 24(2), 81(4), 90 and 92). The Committee notes, however, that according to the new amendments: (i) the identity of full-time union officials is to be decided through the voluntary collective bargaining between labour and management (article 24(1) and (3)); (ii) the wage payment for full-time union officials may be allowed exceptionally within the maximum time-off limit to carry out functions prescribed by TULRAA or other acts, including consultation and bargaining with the employer, grievance handling and occupational safety activities, and the functions of maintaining and managing the trade union for the sound development of industrial relations, if it is stipulated in the collective agreement or consented by the employer (article 24(4)); and (iii) the employers may allow the workers to carry out activities referred to in article 24(4) during working hours, may provide subsidies for the welfare of the workers, or for the prevention and relief of financial difficulties and other disasters, and may provide union offices.
69. 110. The Committee recalls from its previous examination of this case that the question of wage payment to full-time union officers should not be subject to legislative interference and should be left to free and voluntary negotiations between the parties. The Committee understands the historical complexity of this issue in the Republic of Korea and the Government’s intention to strike a balance by providing limits to the amount of paid full-time union officials in a new context of trade union pluralism. The Committee regrets, however, that in so doing, the Government has retained the overall ban on such payments which are subject to sanctions and that, according to the allegations, resources of the labour inspectorate are devoted to investigating whether the provisions on the maximum limit have been exceeded. In addition, the Committee expresses concern at the legislative interference into the type of activities that may be carried out by a full-time union officer and the apparent restriction that labour-management relations should only be handled by such officers and not simply the appropriate person designated by the union. As regards the Government’s indication that activities, such as strikes, should not be covered by such payments, the Committee, while agreeing that salary deductions for days of strike give rise to no objection from the point of view of freedom of association principles [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 654], considers more generally that paid full-time union officers should be able to carry out their trade union duties in accordance with the rules of their organization without having to account for each activity to the management. Such activities should include educational activities, activities carried out under the aegis of the relevant federation or confederation and those related to the preparation of action on a collective dispute.
70. 111. In light of the above considerations, the Committee trusts that the Government will be in a position in the very near future to repeal the outstanding ban on payment of full-time union officers and, while it may be appropriate to provide guidance in terms of the number of paid union officials in relation to the workforce, the overall determination of wage payment to full-time union officers will be left to free and voluntary negotiations between the parties, without legislative interference. The Committee requests the Government to keep it informed of developments in this respect and to provide a copy of the adopted revised TULRAA and its enforcement decrees as well as a copy of the Manual as soon as possible. The Committee also requests the Government to indicate whether any sanctions have been taken against employers or unions for violations of the above provisions.
71. 112. As regards the long-awaited introduction of enterprise pluralism, the Committee notes the concerns raised by the complainant in relation to the elaboration of a unified bargaining channel. In particular, the complainant maintains that: (i) the unified bargaining channel under union pluralism will restrict rights to collective bargaining and collective action of minority unions; (ii) in supra-enterprises, minority unions will not be able to participate in industrial bargaining; (iii) the revised TULRAAs provisions on unification of bargaining channels, delegates to bargaining representatives the authority not only to bargain, but also to sign CBAs and file complaints in case of non-compliance on the part of employers, and all rights and powers pertaining to industrial relations and guarantees of union activities are devoted to them; rights of minority unions including their right to seek relief in case of unjust labour practices and their right to industrial action including strikes, de facto, will be denied; (iv) unions that do not have bargaining representatives or unions who do have bargaining representatives but are not the majority will not be able to exercise their right to strike, if other unions are unwilling to strike. Even unions that do have the majority status and bargaining representatives will only be able to strike if the members of other unions agree to it; and (v) TULRAA limits bargaining unit separation among unions which have different working conditions.
72. 113. The Committee notes the observations made by the Government that: (1) the unified bargaining channel system was necessary to reduce the side effects of multiple unions and aimed at promoting consistent working conditions in one workplace; (2) multiple unions may bargain individually if the employer agrees; (3) an exception for industry-level bargaining would be unfair to other non-affiliated unions and would undermine consistent working conditions; (4) minority unions have a say in the bargaining representative where there is no majority union and are protected by the duty of fair representation; (5) the procedure for industrial action led by the representative union and supported by a majority of all union members is reasonable; and (6) national legislation provides adequate safeguards against employer interference and unfair labour practices.
73. 114. With regard the method and procedure of the bargaining channel’s unification, the Committee notes that TULRAA provides for the following steps: (1) voluntary unification among unions; (2) if voluntary unification fails within a certain period, the majority union becomes the representative union; (3) in case of no majority union, a joint representative body should be established of unions whose members make up more than 10 per cent of the workforce; and (4) if a joint representative body fails to be established, proportional representation should be established. With regard to the bargaining unit, the Committee notes that a majority union can be established through the association of more than two unions and that the Labour Relations Commission has the authority to determine whether the division of the bargaining unit is appropriate, taking into account the difference of working conditions, employment type, bargaining practice, etc.
74. 115. Firstly, the Committee welcomes the long-awaited introduction of trade union pluralism at the enterprise level. The Committee understands that in introducing pluralism, the Government has sought to implement a system that would bear in mind the particularities of the Korean situation and that consultations have taken place with the social partners for over a decade on the type of system to be introduced, even though not all partners may be satisfied with the results. In this regard, the Committee recalls that systems of collective bargaining with exclusive rights for the most representative trade union and those where it is possible for a number of collective agreements to be concluded by a number of trade unions within a company are both compatible with the principles of freedom of association. Recognizing the possibility of trade union pluralism does not preclude granting certain rights and advantages to the most representative organizations. However, the determination of the most representative organization must be based on objective, pre established and precise criteria so as to avoid any possibility of bias or abuse, and the distinction should generally be limited to the recognition of certain preferential rights, for example, for such purposes as collective bargaining, consultation by the authorities or the designation of delegates to international organizations. Where, under a system for nominating an exclusive bargaining agent, there is no union representing the required percentage to be so designated, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members. Minority trade unions that have been denied the right to negotiate collectively should be permitted to perform their activities and at least to speak on behalf of their members and represent them in the case of an individual claim [Digest, op. cit., paras 354, 359, 950 and 976].
75. 116. With regard to the provisions of the revised TULRAA concerning the unification of the bargaining channel, the Committee requests the Government to take all the necessary measures to ensure that: (i) when there is no union representing the required percentage to be designated on a representative body, collective bargaining rights are granted to all the unions in this unit, at least on behalf of their own members; and (ii) minority trade unions that have been denied the right to negotiate collectively are permitted to perform their activities, to speak on behalf of their members and represent them in individual grievances.
76. 117. The Committee further notes with concern the numerous and detailed allegations of unfair labour practices upon the introduction of the unified bargaining channel system and the absence of a Government reply in this regard. The Committee welcomes the Government’s indication of its zero tolerance policy and the establishment of an Internet reporting centre. It requests the Government to keep it informed on the remaining pending cases identified and to review the specific allegations raised by the complainant with all social partners concerned with a view to ensuring the prevention or sanction of any such acts. It requests the Government to keep it informed of the steps taken in this regard.
77. 118. The complainant further alleges that the revised TULRAA stipulates that industrial actions like strikes shall be decided only through direct secret vote of all members of all unions that have participated in bargaining through the unified channel, thereby preventing unions who do not have bargaining representatives or unions who do have bargaining representatives but are not the majority from exercising their right to strike. The Committee recalls that the right to strike should not be limited solely to industrial disputes that are likely to be resolved through the signing of a collective agreement; workers and their organizations should be able to express in a broader context, if necessary, their dissatisfaction as regards economic and social matters affecting their members interests. The fact that a strike is called for recognition of a union is a legitimate interest which may be defended by workers and their organizations [Digest, op. cit., paras 531 and 535]. The Committee requests the Government to take the necessary measures to ensure that strike action may be carried out beyond the limited question of industrial disputes for the signing of a collective agreement, in accordance with these principles, and that the legality of such action is not dependent upon the representative status of the organization.
78. 119. The Committee notes that the revised TULRAA stipulates that in the case of a strike in an essential public service, the employer and the union have to indicate the ratio of members of each union to guarantee a minimum service. The Committee recalls its previous observations in this regard and once again requests the Government to take the necessary measures to ensure that the Labour Relations Commission, in issuing decisions determining the minimum service, takes due account of the principle according to which a minimum service should be confined to operations that are strictly necessary to avoid endangering the life or normal living conditions of the whole or part of the population and to continue to keep it informed of the specific instances in which minimum service requirements have been introduced, the level of minimum service provided and the procedure through which such minimum service as determined (negotiations or arbitration) [see 353rd Report, para. 711].
79. 120. The Committee notes that according to the complainant, under the pretext of the revised TULRAA, CBAs have been unilaterally terminated in many workplaces including Korea Railroad, National Pension Service and Korea Gas Corporation and that such cancellations are particularly widespread among public corporations. In addition, after the revised TURAA took effect, free and voluntary industrial relations have been undermined by distortion or misinterpretation of the revised law. MOEL has also been issuing rectification orders that instigate unfair labour practices. Such rectification orders include issues in CBAs unrelated to payment of wages to full-time union officials, such as those related to provision of facilities and conveniences, membership’s eligibility, limitations in terminating CBAs, etc. The Committee further notes that according to the complainant, it also explicitly and implicitly limits the ability of unions and management to come to a free and voluntary agreement, thus stimulating further industrial disputes. It has resulted in employers becoming irresponsive to bargaining, showing insincerity in the bargaining process or resorting to unfair labour practices. The Committee recalls that the right to bargain freely with employers with respect to conditions of work constitutes an essential element in freedom of association, and trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade unions represent. The public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof. Any such interference would appear to infringe the principle that workers’ and employers’ organizations should have the right to organize their activities and to formulate their programmes. The Committee also recalls that agreements should be binding on the parties [Digest, op. cit., paras 881 and 939]. The Committee requests the Government to provide full observations on the allegations of interference in the negotiations between unions and employers and to indicate the reasons for the unilateral termination of binding CBAs that took place in several workplaces, including Korea Railroad, National Pension Service and Korea Gas Corporation.
80. 121. With regard to the legislation to ban public officials of the Election Commission and the court from joining a trade union, the Committee notes that the Government indicates that the bill suggests to classify public officials in charge of election management at the Election Commission as special service officers whose duties and rights present unique features that mark them off from the general service officials, and accordingly institutes some restrictions on their right to join trade unions. The bill, which was not initiated by the Government, was still pending at the National Assembly. As concerns persons exercising senior managerial or policy-making responsibilities, the Committee is of the opinion that while these public servants may be barred from joining trade unions which represent other workers, such restrictions should be strictly limited to this category of workers and they should be entitled to establish their own organizations [Digest, op. cit., para. 253]. The Committee therefore requests the Government to ensure that public officials working for the Election Commission and the courts have the right to form their own associations so as to defend their interests.
81. 122. With regard to the bill to revise the Government Employees’ Work Regulation to strengthen the provision on check-off deduction of union dues, the Committee notes the Government’s indication that the revision primarily aims to protect public officials’ property rights by mandating a prior written consent of the person concerned for withholding of any type of contribution under various names and labels including union dues. The Committee observes however that the Employees’ Work Regulation Bill provides for the banning of check-off of union dues unless otherwise stated under the law or when deemed necessary. The Committee recalls that the withdrawal of the check-off facility, which could lead to financial difficulties for trade union organizations, is not conducive to the development of harmonious industrial relations and should therefore be avoided. The deduction of trade union dues by employers and their transfer to trade unions is a matter which should be dealt with through collective bargaining between employers and all trade unions without legislative obstruction [Digest, op. cit., paras 475 and 481]. While observing that the requirement of written consent for dues check-off would not be contrary to the principles of freedom of association, the Committee requests the Government to ensure respect for the abovementioned principles and ensure that any legal provisions regulating check-off will not hinder the right to address this matter through collective bargaining.
82. 123. When it last examined the case, the Committee expressed deep regret at the gravity of the allegations involving serious acts of extensive interference in the activities of the KGEU and requested the Government to immediately cease all acts of interference, in particular the forced closure of KGEU offices nationwide, the unilateral discontinuance of the check off facility, the disallowance of collective bargaining, the pressure on KGEU members to resign from the union as well as administrative and financial sanctions against local governments which fail to comply with the Government’s directive. It further called upon the Government to abandon these directives and to take all possible measures with a view to achieving conciliation between the Government (in particular the Minister of Government and Home Affairs (MOGAHA)) and the KGEU so that the latter may continue to exist and ultimately to register within the framework of the legislation which should be in line with freedom of association principles. The Committee requested to be kept informed in this respect [see 353rd Report, para. 588].
83. 124. The Committee deeply regrets that MOEL has not yet accepted the registration of the KGEU and has requested it to supplement the report on establishment on three new occasions, to convene a general meeting and to submit subordinate rules. The registration was returned to the KGEU on 3 March 2010, on the basis that: (i) dismissed workers as well as those in grade 6 in semi-managerial positions were still members of the union; (ii) the initial union by-law of the KGEU was established at a delegation meeting; and (iii) the KGEU by-law and subordinate rules did not indicate the honorary members, accounting and audit committee and elections management.
84. 125. The Committee recalls that the formalities prescribed by law for the establishment of a trade union should not be applied in such a manner as to delay or prevent the establishment of trade union organizations. Any delay caused by authorities in registering a trade union constitutes an infringement of Article 2 of Convention No. 87. National legislation providing that an organization must deposit its rules is compatible with Article 2 of Convention No. 87 if it is merely a formality to ensure that those rules are made public. However, problems may arise when the competent authorities are obliged by law to request the founders of organizations to incorporate in their constitution certain provisions which are not in accord with the principles of freedom of association [Digest, op. cit., paras 279–280].
85. 126. The Committee recalls that when it last examined the case, it urged the Government to repeal the provisions prohibiting dismissed and unemployed workers from keeping their union membership and making non-union members ineligible to stand for trade union office (section 2(4)(d) and 23(1) of TULRAA) [see 353rd Report, para. 749(c)(iv)]. Noting with regret that the Government has not repealed these provisions, the Committee once again urges the Government to do so and to take all possible measures with a view to achieving conciliation between the Government and the KGEU so that the latter may continue to exist and ultimately to register within the framework of the legislation, which should be in line with freedom of association principles.
86. 127. The Committee also deeply regrets the new allegations of: acts of interference in the activities of the KGEU; the hindrance of the freedom of expression and opinion of its members; and anti-union discrimination in the form of disciplinary measures against its members.
87. 128. The Committee notes with regret that on 24 March 2010, MOPAS once again ruled that the KGEU was an illegal organization and that all activities performed in the name of the union would be branded illegal, on the basis of its inauguration rally on 20 March 2010. It also said that public officials who had participated in the rally would be identified and given heavy disciplinary measures. In this regard, the Committee deeply regrets the allegations that the Government has requested the removal of the KGEU’s signboard, the removal and ban on putting up of the KGEU’s banners and posters, the blocking of access to the KGEU’s website and the prohibition of all union activities in the name of the KGEU, including the issuance of labour union newsletters, picketing rallies, labour union official elections, retreats, inauguration rallies of branches and chapters, meetings and demonstrations.
88. 129. The Committee notes the Government’s indication that these actions were taken to ensure the political impartiality of public officials as defined under the Constitution, and were by no means intended to suppress public officials’ trade union as the complainants argue. According to the Government, the KGEU clearly violates the duty of political impartiality under the law and cannot therefore be qualified as a legitimate trade union. Therefore, all the actions taken by the KGEU’s members, such as rallies, publications, ballots, inauguration assemblies, donations, and more, are considered as illegal collective activities under articles 7 and 21(1) of the Constitution, article 66 of the SPOA, article 58 of the LPAC and article 3(1) of APOTU and henceforth, it was the rightful action of MOPAS to prosecute people who participated therein.
89. 130. In its previous examination of the case, the Committee had noted that section 4 of the Act on the Establishment and Operation of Public Officials’ Trade Unions prohibits political activities by public officials and that according to the Government, the status of public servants is such that certain purely political activity can be considered contrary to the code of conduct that is expected of these servants and that trade union organizations should not engage in political activities in an abusive manner and go beyond their true functions by promoting essentially political interests. The Committee notes that according to the Government, publics officials’ involvement in political activities, such as taking part and supporting political rallies, expressing political views in newspaper advertisements, countering Government policies, making donations to any political party and joining a political party defies the spirit of the nation’s Constitution and constitutes illegal activities.
90. 131. The Committee recalls that provisions imposing a general prohibition on political activities by trade unions for the promotion of their specific objectives are contrary to the principles of freedom of association. A general prohibition on trade unions from engaging in any political activities would not only be incompatible with the principles of freedom of association, but also unrealistic in practice. Trade union organizations may wish, for example, to express publicly their opinion regarding the Government’s economic and social policy [see Digest, op. cit., paras 500 and 503]. The full exercise of trade union rights calls for a free flow of information, opinions and ideas, and to this end workers, employers and their organizations should enjoy freedom of opinion and expression at their meetings, in their publications and in the course of other trade union activities. Nevertheless, in expressing their opinions, trade union organizations should respect the limits of propriety and refrain from the use of insulting language [Digest, op. cit., para. 154].
91. 132. In light of the abovementioned principles, the Committee once again requests the Government to ensure that public officials’ trade unions have the possibility to express their views publicly on the wider economic and social policy questions which have a direct impact on their members’ interests, including during their meetings, in their publications and in the course of other trade union activities.
92. 133. In this regard, noting that 57 public officials were disciplined, including 18 dismissed due to their participation at the 19 July national rally and/or their publication of a newspaper advertisement; 29 union officials were disciplined (among them, eight faced heavy discipline) because of their involvement in the advertising of a union ballot on the integration of the unions; 90 KGEU officials were charged and about to be dismissed for their violation of the Political Party Act and the Political Fund Act; and that charges were brought against 273 labour union officials (KGEU 90, KCTU 183) following an investigation conducted by the Government during the month of January 2010, the Committee recalls from the previous examination of this case its statement that the criminalization of industrial relations is in no way conducive to harmonious and peaceful industrial relations [see 346th Report, para. 774]. The Committee requests the Government and the complainants to keep it informed of the situation of these employees and of any appeal filed against these decisions before the courts.