Observation (CEACR) - adoptée 2011, publiée 101ème session CIT (2012)

Convention (n° 81) sur l'inspection du travail, 1947 - République de Corée (Ratification: 1992)

Autre commentaire sur C081

Observation

Demande directe

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The Committee takes note of the comments by the Korea Employers’ Federation (KEF) and the Federation of Korean Trade Unions (FKTU) received with the Government’s report along with the Government’s reply thereto, as well as the comments by the Korean Confederation of Trade Unions (KCTU) which were received at the ILO on 29 August 2011 and were communicated to the Government on 6 September 2011. The Committee requests the Government to make any observation it deems appropriate with regard to the comments made by the KCTU.

Article 3 of the Convention. Functions of the labour inspection system. The Committee notes that according to the FKTU, the field labour inspectors focus on subjects which should be normally left to autonomous collective bargaining, like the implementation of the provisions of the Trade Union and Labour Relations Adjustment Act (TURLAA) concerning the maximum limits imposed on paid time off for full-time union officials and the establishment of a single bargaining channel among trade unions in a framework of trade union pluralism. According to the FKTU, labour inspectors misuse their administrative capacity on pursuing government policy and neglect to inspect employers’ compliance with labour standards, occupational safety rules and collective agreements. The Government responds that labour inspectors can give guidance on collective bargaining and on preventing and settling labour disputes, as part of their duties; they thus provide guidance on the paid time-off system and the bargaining representative system for multiple unions which took effect on 1 July 2011, in order to prevent any violations.

The Committee recalls that according to paragraph 80 of its General Survey of 2006 on Labour Inspection, it is important to ensure – when the role assigned to labour inspectors in the field of industrial relations takes the form of close supervision of trade union activities so as to ensure that they do not exceed the limits laid down by legal provisions – that this supervision does not involve acts of interference in these organizations’ legitimate activities. It also recalls that the primary role of the labour inspectorate, pursuant to Article 3(1) and (2), is to monitor the conditions in which work is performed, and that any further duties which may be entrusted to labour inspectors should not be such as to interfere with the effective discharge of their primary duties or to prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers. The Committee therefore requests the Government to provide further information on the nature of the activities carried out by the labour inspectorate for the implementation of legal provisions concerning freedom of association and collective bargaining and to specify the proportion of these activities in relation to those focused on conditions of work and the protection of workers while engaged in their work.

Articles 10 and 16. Number of labour inspectors and inspection visits. The Committee notes that in reply to its previous comments, the Government provides information according to which, the number of inspection visits has continued to increase in the period 2009–10 amounting to 19,881 visits on labour matters and 27,415 visits on occupational safety and health (OSH), while the total number of labour inspectors as of 31 May 2011 was 1,413. The Government adds that the total number of workplaces and workers in 2008 amounted to 1,422,261 workplaces and 12,448,992 workers. The Committee notes that the FKTU criticizes the scarcity of inspection personnel and indicates that on the basis of the above statistics, it would take approximately 50 years to inspect all workplaces.

The Committee recalls that according to Article 10 of the Convention, the number of labour inspectors should be sufficient to secure the effective discharge of the duties of the inspectorate in light of the number of workplaces liable to inspection, the number of workers employed therein, the number and complexity of the legal provisions to be enforced as well as the material means placed at the disposal of the inspectors and the practical conditions under which visits of inspection must be carried out in order to be effective. Moreover, according to Article 16, workplaces should be inspected as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions. The Committee would be grateful if the Government would provide an evaluation of the needs of the labour inspectorate in human resources in light of the criteria provided in Article 10 of the Convention and indicate the proportion of the national budget allocated to labour inspection and the measures taken or envisaged to ensure that workplaces are inspected as often and as thoroughly as necessary. The Committee also requests the Government to provide information on the distribution of labour inspectors by region, category and level of qualification.

Article 5(a), 17, 18 and 21(e). Effective enforcement and cooperation between the labour inspection services and the justice system. The Committee notes from the Government’s report that only 127 violations of labour law and 1,782 violations of OSH legislation were brought to justice in 2010, while 16,905 and 21,298 cases respectively were treated through administrative action. It notes that the FKTU criticizes this practice as ineffective in preventing industrial accidents and states that most violations detected by the labour inspectorate are petty offences with extremely few cases of judicial treatment. The Government answers that the number of cases that go through judicial process may be low since most employers comply with the correction orders issued by labour inspectors. In cases of special inspection or when the same violation is committed again in three years, more severe actions such as immediate judicial action or imposition of negligence fines are taken. The Government indicates that it plans to reorganize the electronic document system of labour inspection so as to systematically manage the history of labour law violations by employers and allow for closer cooperation with the public prosecutors and the courts. The Committee requests the Government to provide information on the nature of the violations detected by the labour inspectors with reference to the legal provisions concerned and the types of corrective measures ordered. It would also be grateful if the Government would provide further information on the nature of the cases brought to the justice system (specifying the legal provisions concerned and the number of workers affected), as well as the duration and outcome of the judicial proceedings (convictions pronounced, penalties imposed, etc.).

The Committee also requests the Government to keep the ILO informed of progress made in setting up the electronic document system and to provide an evaluation of its impact, once it is established, on the cooperation with the justice system and the observance of the legal provisions pertaining to conditions of work and the protection of workers.

Article 5(a) and (b). Cooperation between the labour inspection services and private institutions and collaboration with employers or their organizations. The KEF refers to an “E-self Evaluation System” allowing employers to check their practices and correct any violations of legal provisions by themselves, as well as the “Self-Improving Working Condition Program” carried out in alliance with private institutions in order to enhance the effectiveness of labour inspection and encourage voluntary compliance. According to the KEF, private institutions involved in this programme measure the compliance of companies with labour laws and present ways to improve their working conditions so that small and medium-sized enterprises (SMEs) with little information on labour law can observe the laws voluntarily. The Committee requests the Government to provide further information on the operation in practice of the “Self-Improving Working Condition Program”, in particular, the procedure for the authorization by the labour inspectorate of the private enterprises which carry out the programme, the manner in which they are supervised by the labour inspectorate, their functioning (scope of activity, safeguards of independence, the costs associated with their services, their availability to small and medium enterprises, etc.) as well as their impact on increasing compliance with legislation on conditions of work and the protection of workers in individual workplaces. Please also provide details on, and indicate any assessment of the impact of the “E-self Evaluation System”.

Articles 5(b), 13 and 14. Collaboration of the labour inspection with employers and workers and their organizations in the area of OSH. The Committee notes that according to the statistical information provided by the Government, the number of industrial accidents has increased between 2008 and 2009, while the number of occupational diseases has decreased. The Committee requests the Government to provide details on the preventive activities carried out by labour inspectors in the area of OSH in line with Article 13 of the Convention including measures with immediate executory force taken in the event of imminent danger to the health or safety of the workers, and to describe the procedure in force for the recording and notification of industrial accidents and occupational diseases.

Also, recalling the indications provided in Paragraphs 4–5 of the Labour Inspection Recommendation, 1947 (No. 81) with regard to safety committees or similar bodies, the Committee requests the Government to indicate any measures taken or envisaged to reinforce the prevention of industrial accidents in cooperation with employers and workers and their organizations.

Articles 12(1)(a) and (b) and 15(c). Right of inspectors to enter workplaces freely, confidentiality of complaints, and period of time when inspections are carried out. The Committee’s previous comments concerned the need to bring section 17 of the Work Manual for Labour Inspectors, which provided that inspections should be subject to a ten-day prior notice to the employer, in line with the provisions of Article 12 of the Convention which provides that inspectors provided with proper credentials should be able to enter freely and without previous notice any workplace liable to inspection. The Committee notes that according to the FKTU, an inspection system allowing for unannounced inspections to take place without advance notice has still not been introduced in practice. It also notes that according to the Government, the Work Manual for Labour Inspectors was amended in April 2010 to allow for unannounced inspections of workplaces; as a result, currently, notice of inspection is given only for regular inspections while occasional and special inspections may be conducted without advance notice. According to the Government, in 2010, 6,294 unannounced inspections took place, on the basis of which 17,577 cases of violations were detected in 4,724 workplaces; of these workplaces, 48 were brought to justice and 4,676 received administrative action.

The Committee notes that if regular inspections are always carried out with advance notice, it is very difficult, in case of inspection visits carried out pursuant to complaints, to avoid giving any intimation to the employer of the fact that a visit takes place consequent to a complaint, as required by Article 15(c) of the Convention. The Committee therefore requests the Government to communicate the amendment to section 17 of the Work Manual for Labour Inspectors and to indicate the manner in which the confidentiality of complaints is maintained in case of inspection visits carried out pursuant to complaints. Furthermore, the Committee once again requests the Government to provide information on the percentage of unannounced inspections carried out pursuant to complaints.

The Committee also observes from the Government’s report that labour inspections normally take place during the day, and that, while inspections may be conducted at night when necessary, there are no separate statistics on these inspections. The Committee would be grateful if the Government would collect the relevant statistics and provide an indication of the percentage of labour inspection visits carried out at night.

Articles 20 and 21. Publication and communication to the ILO of an annual inspection report. The Committee notes with interest the information provided by the Government on the content of the 2009 White Paper on Employment and Labor (published in 2010) as well as its indication that an electronic register of workplaces has been set up and that it is examining the possibility of coordinating this system with the electronic document system of the Korean Worker’s Compensation and Welfare Service. The Committee would be grateful if the Government would continue to provide a summary of the information contained in the White Paper and keep the ILO informed of developments related to the creation of the electronic registry of workplaces and its impact on the work of the labour inspection.