Demande directe (CEACR) - adoptée 2023, publiée 112ème session CIT (2024)

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

Autre commentaire sur C098

Demande directe

2023

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The Committee notes the Government’s first report. The Committee notes the observations of the Korea Enterprises Federation (KEF) communicated with the Government’s report and the Government reply thereto. The Committee also notes the observations of the Korean Confederation of Trade Unions (KCTU) and the Federation of Korean Trade Unions (FKTU) received on 2 and 8 September 2023, as well as the observations of Education International (EI), IndustriALL Global Union, and the International Trade Union Confederation and International Transport Workers’ Federation (ITUC and ITF) received on 31 August, 1 and 27 September 2023 respectively, which concern matters examined in this comment, and the Government replies thereto. The Committee further notes that the Committee on Freedom of Association (CFA) has referred to it the legislative aspects of Case No. 1865 concerning the Republic of Korea [see 404th Report, paragraph 76], which are examined in this comment as well as in its comment concerning the application of the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87).

Articles 1–6. The personal scope of the Convention. The Committee notes that section 2(4)(d) of Trade Union and Labour Relations Adjustment Act (TULRAA), as revised in 2021, provides that an organization where those who are not workers are allowed to join shall not be regarded as a trade union. The Committee notes that according to the observations of the KCTU and the FKTU that are reproduced in detail in the Committee’s comment concerning the application of Convention No. 87) economically dependent self-employed workers are considered to be workers with the right to organize while independent self-employed individuals, freelancers and agricultural workers and atypical workers such as transportation workers and platform workers in non-standard forms of employment are not clearly covered by the TULRAA definition of worker in section 2(1). The Committee notes the Government’s reply that the July 2021 amendment of TULRAA allowed the self-employed to join trade unions and that an amendment of section 2(1) aiming at including workers in special types of employment and platform workers in the definition of “workers” is currently pending in the National Assembly. The Government adds that both the Supreme Court and administrative authorities tend to acknowledge the worker status of those in special types of employment. Recalling that independent self-employed and agricultural workers, as well as freelancers, workers in non-standard forms of employment and platform workers and their organizations should be provided adequate protection against anti-union discrimination and acts of interference, as well as the right to collective bargaining, the Committee expects that the legislative reform process concerning the extension of coverage of the definition of “worker” in section 2(1) of the TULRAA will effectively recognize and guarantee all these categories of workers and their organizations the rights enshrined in the Convention. The Committee requests the Government to provide information on any progress in this respect.

Articles 1, 2 and 3. Adequate protection against anti-union discrimination and acts of interference. The Committee notes that the TULRAA prohibits anti-union discrimination and acts of interference and provides remedial procedures and penal sanctions against such acts. The Committee notes that section 84 of the TULRAA provides that after investigation, the Labour Relations Commission (LRC) shall issue an order of remedy to the employer or dismiss the application, however, the law does not indicate the nature of the remedies that the LRC can order. Furthermore, the Committee notes that section 89 of the TULRAA provides for imprisonment with labour not exceeding 3 years or a fine of KRW 30 million for violating an order of remedy. The Committee notes that the penal sanction provided in section 90 of the TULRAA for anti-union discrimination and acts of interference is imprisonment with labour not exceeding 2 years or a fine not exceeding KRW 20 million. The Committee notes the observation of the KCTU indicating that the Supreme Court has held that the burden of proof of an employer’s unfair labour practice – including anti-union discrimination – is on the worker or trade union. It also notes that the Government confirms this point, indicating that it would be contrary to the principle of presumption of innocence to shift the burden of the proof to employers for unfair labour practices. The Committee notes that both the Government and the KCTU appear to refer to the burden of proof in penal proceedings, where the reversal of burden of proof may go against the principle of presumption of innocence. However, the Committee recalls that the argument of presumption of innocence is not receivable in the framework of the qualification of an anti-union act and the provision of a fair and dissuasive civil remedy against it. In view of the foregoing, the Committee requests the Government to indicate (i) the remedies against anti-union discrimination and acts of interference that can be ordered by the LRC; (ii) the party that bears the burden of proof in the proceedings before the Labour Relations Commission.

Anti-union discrimination at recruitment.Blacklisting. The Committee notes the observations of the KCTU, indicating that the subcontracted workers who participated in a 2019 strike calling for wage increases for paint subcontractors working in the Okpo shipyard of Daewoo Shipbuilding and Marine Engineering (DSME) are now blacklisted and suffering from employers’ refusal to hire them. The KCTU also refers to a 2017 Korean Metal Workers’ Union “Survey on Blacklisting of Subcontracted Workers in the Shipbuilding Industry,” where over 45 per cent of survey respondents selected “dismissal and blacklisting” as the number one reason why they feel they cannot join or form a trade union. According to the KCTU, the 2017 survey found that 26.5 per cent of surveyed subcontracted workers in the shipyards had directly or indirectly experienced blacklisting. Recalling that the practice of so-called “blacklists” of trade union officers, activists or members used in the context of hiring procedures is particularly incompatible with the principles of the Convention, the Committee requests the Government to provide its comments in this respect.

Article 4. Promotion of collective bargaining. Workers covered and the Level of bargaining. The Committee notes that section 30(3) of the TULRAA provides that the State and local governments shall assist the parties to labour relations in making a voluntary choice among various bargaining methods, including corporate, industrial, and regional negotiations, and shall endeavour to promote collective bargaining accordingly. The Committee also notes the observation of the KCTU, stating that as the law clearly favours enterprise-level bargaining over industry or regional bargaining, the system makes it very difficult for workers in smaller enterprises and workers in non-standard forms of employment, who often work with multiple employers to address disparities in employment or poor working conditions through collective bargaining. The KCTU adds that despite the adoption of section 30(3) in 2021, the Government has not yet proposed or implemented any substantial policies for its application. The Committee notes the Government’s reply that there is a significant difference between labour and management regarding the subject of collective bargaining and expansion of the scope of employers, therefore it is essential to build social consensus prior to any measure. The Government further indicates that nevertheless, even at present multiple employers can engage in collective bargaining through voluntary coordination and agreement among the labour and management; that in practice, non-enterprise-level bargaining is carried out, and centralized industry-specific (unified) bargaining is also taking place in certain industries (metal, health, finance), and regional or occupational levels (bus, taxi). Concerning subcontracted workers, the Committee notes the observation of the KCTU, stating that even though the main contractor has a significant impact on the conditions of work of subcontracted workers, they can refuse to engage in negotiations due to the absence of direct employment relationship with subcontracted workers. The KCTU states that the Ministry of Employment and Labour (MOEL) remains opposed to allowing subcontracted workers to engage in collective bargaining with the principal employer and the National Labour Relations Commission (NLRC) has ruled that while collective bargaining with a main contractor may be acknowledged, this can be done only as part of the bargaining between the subcontractor and the main contractor, excluding industrial action against the main contractor. The KCTU adds that a bill proposing the expansion of definition of “employer” in section 2 of the TULRAA is currently pending before the National Assembly. The proposal provides that a person in a position of de facto and specific control determining the working conditions of the worker shall be seen as an employer even if they are not party to a concluded employment contract. The Committee notes with interest that on 9 November 2023, the Korean National Assembly adopted the amendment to section 2(2) of the TULRAA concerning the definition of the employer. The Committee recalls that with the exception of organizations representing categories of workers which may be excluded from the scope of the Convention, namely the armed forces, the police and public servants engaged in the administration of the State, recognition of the right to collective bargaining is general in scope and all other organizations of workers in the public and private sectors must benefit from it [see the 2012 General Survey on the fundamental Conventions, paragraph 209]. Therefore, the Committee considers that the Government’s obligation to promote collective bargaining in accordance with Article 4 of the Convention extends also to the workers in smaller enterprises and workers in non-standard forms of employment, those working for multiple employers, and subcontracted workers. In view of the foregoing, the Committee requests the Government, in full consultation with the social partners, to take measures appropriate to national conditions, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers’ organizations and organizations representing the workers who are practically excluded from the currently prevalent enterprise-centred collective bargaining system, with a view to the regulation of terms and conditions of their employment by means of collective agreements. The Committee further requests the Government to provide information on (i) any measures taken, or policies adopted to apply section 30(3) of the TULRAA; (ii) any instances of collective bargaining between multiple employers and workers’ organizations through voluntary coordination and agreement and, (iii) the implementation of the amended section 2(2) of the TULRAA and its impact on the guarantee of the collective bargaining rights of subcontracted workers.

The subjects excluded from collective bargaining. The Committee notes that Korean law designates a set of subjects as subjects that cannot be the object of collective bargaining and agreement. Section 24(4) of the TULRAA indicates that a collective agreement or a consent by an employer that allows for wage payment to full-time union officials beyond the maximum time-off limit shall be null and void to that extent. The Committee notes that in its examination of the Case No. 1865 concerning Republic of Korea, the Committee on Freedom of Association (CFA) had several times recalled that the regulation of relations between employers and workers’ organizations and the facilities provided to the workers’ representatives fully enter in the scope of subjects covered by collective bargaining, and that the payment of full-time union officers should be a matter of free and voluntary negotiation between the workers and employers or their respective organizations. The CFA had requested the Government to lift the ban on such collective agreement provisions and to ensure that no one is sanctioned for having entered into an agreement in this regard, and to refrain from requiring the parties to collective agreements that provide for the payment of wages to full-time union officers to amend their agreement. [see 382nd Report, paragraph 47]. The Committee notes that although the law has been amended since to allow wage payment within the limits of the time-off system, it still does not allow agreement on such payment beyond those limits and recalls that in its 2021 observation concerning the application of Workers’ Representatives Convention, 1971 (No. 135), it had invited the Government to continue to consult with the most representative workers’ and employers’ organizations on ways to improve the time-off limit system so that the capacity of the social partners to freely determine through collective bargaining the facilities granted to workers’ representatives is fully recognized. The Committee also notes the observation of the KCTU, indicating that the MOEL has considered that collective agreement provisions allowing strikes due to breaches of collective bargaining agreements are illegal and has ordered rectifications. The Committee further notes that the scope of the excluded subjects is quite broad and not very clearly defined in the laws applicable to teachers and public officials not engaged in the administration of the State: sections 8(1) of the Public Officials Trade Union Act (POTUA) excludes collective bargaining on matters concerning policy decisions that may be prescribed by law, and matters concerning the management and operation of the organization, but not directly related to working conditions; and sections 10(1) of the POTUA and 7(1) of the Teachers’ Trade Unions Act (TTUA) provide that collective agreement provisions concerning such matters shall not have any effect. The Committee notes the Government’s indication in this respect that: (i) section 8 of the POTUA only designates non-bargaining subject matters that are not directly related to working conditions; collective bargaining is possible for matters that are not specified or delegated by statute and are directly related to working conditions; (ii) In the case of public officials and teachers, the main working conditions are determined in the form of laws and budgets, if the agreement is given priority over the laws and budgets, the individual labour-management agreements would infringe on the legislative and budgetary powers of the National Assembly; (iii) collective agreements reached through the voluntary bargaining between labour and management must be respected within legitimate boundaries; however, they should also remain within the boundary of domestic laws. Noting the Government’s indications, the Committee recalls that measures taken unilaterally by the authorities to restrict the scope of negotiable issues are generally incompatible with the Convention and that tripartite discussions for the preparation, on a voluntary basis, of guidelines for collective bargaining are a particularly appropriate method of resolving these difficulties and that it considers that the authorities should give preference as far as possible to collective bargaining in determining the conditions of employment of public servants. [see the 2012 General Survey on the fundamental Conventions, paragraphs 215 and 220]. The Committee notes that the terms of section 8(1), referring to matters concerning policy decisions that may be prescribed by law are quite broad and vague and may give rise to the imposition of substantial restrictions on the collective bargaining rights of public servants not engaged in the administration of the State and the teachers. In view of the foregoing, the Committee requests the Government, in full consultation with social partners, to take the necessary steps to remove the restrictions on subjects of collective bargaining provided in sections 24(4) of the TULRAA and 8(1) and 10(1) of the POTUA and 7(1) of the TTUA and to provide information on the steps taken in this respect.

Scrutiny of legality of collective agreements. Correction orders. The Committee notes that section 31(2) of the TULRAA requires the parties to a collective agreement to report to the administrative agencies within 15 days of its conclusion and 31(3) of the TULRAA provides that when a collective agreement has any unlawful contents, the administrative agencies may, with the resolution of the LRC, order to correct them. The Committee notes the Government’s indications confirming that under the TULRAA, administrative agencies have the authority to order the correction of the agreement to the parties, if the collective agreement is found to be illegitimate; that the corrective order is a minimum measure aimed at preventing harm to innocent victims and avoiding confusion or conflicts during the post-correction process by swiftly rectifying any illegitimate content in the collective agreement; they are issued after resolutions by the LRC to minimize the risk of arbitrary decisions by administrative agencies and to uphold the principle of collective autonomy. Concerning application of these provisions in practice, the Committee notes the observation of the KCTU, indicating that in May 2023, the MOEL issued a press release stating that after reviewing collective agreements and union bylaws in the public sector—including civil servants, teachers, and public institutions—they had identified numerous agreements deemed either illegal or unreasonable from the public’s perspective regarding which they plan to issue corrective orders, with the potential for criminal penalties in cases of non-compliance. The KCTU states that the bulk of these ‘illegal’ collective agreements were flagged primarily because they violated the prohibition of section 8(1) of the POTUA and section 10(1) of the same act. Accordingly, 137 out of 165 collective agreements from public employee trade unions were labelled illegal and invalid, and the Labour Relations Commission is actively working on a resolution process to issue corrective orders. According to the KCTU examples of invalid provisions include clauses requiring prior consultation with the union when undertaking work that may influence the union or its members’ working conditions and wages and benefits, since according to the MOEL, it may touch upon matters of policymaking in the future. Another example concerns clauses establishing the supremacy of the agreement over internal work instructions and personnel orders of the organization. The Ministry, assuming this could concern future statutes, found a breach of article 10(1) of the POTUA. The Committee notes that although the system of sections 31(2) and (3) of TULRAA is not a system of prior approval of collective agreements in the strict sense, it has a similar effect. The Committee notes in particular that according to the observations of the KCTU, the application of sections 8(1) and 10(1) of the POTUA in this context, gives a wide discretion to decision-makers to strike down collective agreement provisions for possible incompatibility with future policies, laws and regulations and in this way, they constitute a serious interference in the autonomy of the parties. Therefore, the Committee requests the Government, in full consultation with social partners, to take the necessary measures to review the law, with a view to restricting the possibility of discretionary interference of the authorities in the determination of the content of freely and autonomously concluded collective agreements. The Committee requests the Government to provide information on the steps taken in this respect. The Committee further requests the Government to provide information on the number of corrective orders issued based on section 31(3) of the TULRAA and on the types of collective agreement provisions considered illegal.

Collective bargaining in the public sector. Impact of Government Guidelines on collective bargaining in public institutions. The Committee notes the observations of the KCTU indicating that the collective bargaining system in the public sector does not allow the workers to negotiate with the Government, and wages, working conditions and employment are decided unilaterally by the decisions and guidelines of the Ownership Steering Committee (OSC) established under the Act on Management of Public Institutions. In this framework, Budget Guidelines”, “Management Guidelines” and “Innovation Guidelines” are adopted which are closely related to the working conditions, including wages and employment of public sector workers. They regulate labour costs (wages), budget and fund management, and rationalization of employee welfare benefit systems among other issues. These guidelines are the basis for the annual evaluations of individual public institutions by the Ministry of Economy and Finance (MOEF), which determine the differentiated performance incentives for each public institution. The KCTU states that this means that individual trade unions in public institutions cannot conclude collective agreements or labour-management agreements that differ from the requirements of the guidelines, and in practice the wages and working conditions of workers in public institutions are mostly determined unilaterally by the government. Although the guidelines have a strong influence and binding effect on collective bargaining and collective agreements between labour and management in individual public institutions, the Government has not responded to the public sector unions’ constant demands for collective bargaining, claiming that these guidelines are only recommendations and that it is up to the workers and management of individual public institutions to independently negotiate and conclude collective agreements on wages and other working conditions. As a result, public sector unions have no way of bargaining collectively with the government, the de facto employer, or even making a minimal contribution. The KCTU finally indicates that discussions are underway in the National Assembly to amend the Act on the Management of Public Institutions (AMPI) to ensure trade union participation in the OSC and to institutionalize the formation of a body where trade unions can participate in discussions with the Government before it decides on various guidelines as recommended by the CFA, and a bill to amend the AMPI will be introduced soon. The Committee notes that the FKTU transmits the observations of its affiliate, the Public Sector Trade Union Council (FKTU PSTUC) raising the same issues. The Committee notes the Government reply that the Guidelines aim at ensuring autonomous and responsible management and promoting transparency. The Budget Guidelines serve as an internal supervisory function and should not be regarded as a legal regulation that establishes specific rights or obligations for the public. Consequently, they should not be seen as encroaching upon the collective bargaining rights of trade unions. Furthermore, it’s important to note that wage negotiations and collective bargaining can still take place even if the Budget Guidelines are enacted and communicated. This is because wage determination is a decision within the purview of the public institution, and it necessitates the consent of the union. The Committee notes that the issue of the impact of Government Guidelines on collective bargaining in individual public institutions in the Republic of Korea has been the object of several CFA cases, most recently cases nos. 3430 and 3433 [see 403rd Report, paragraphs 438–495 and 404th Report, paragraphs 585–609]. The Committee notes that in those cases the CFA requested the Government to establish a regular consultation mechanism that would allow the full and meaningful participation of the organizations representing workers of public institutions in the formulation on the matters raised in the complaints, so as to ensure that the guidelines issued at central level do not effectively interfere with collective bargaining in public institutions. The Committee welcomes the indications of the KCTU concerning the imminent introduction of a bill to amend the AMPI, with a view to ensuring participation of workers’ organizations in discussions with the Government prior to the approval of the Guidelines. Expecting that adequate measures will be taken to enable the organizations representing the workers in public institutions to participate meaningfully and regularly in the process of formulation of the guidelines, the Committee requests the Government to provide information on the status of the current legislative debate and reform concerning this issue and provide a copy of the amendments once adopted.