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- 44. The Committee has been examining this case since its May–June 1996
meeting and on the last occasion at its March 2012 meeting [see 363rd Report, paras
42–133, approved by the Governing Body at its 310th Session]. On that occasion, the
Committee recalled that the outstanding legislative issues in this case concerned, on
the one hand, the Act on the Establishment and Operation of Public Officials’ Labor
Unions (AEOPOLU), which concerns the public sector only, and, on the other hand, the
Trade Union and Labour Relations Adjustment Act (TULRAA) and other legislation which is
generally applicable. The Committee observed a number of important amendments to the
legislation, but also requested the Government to take a number of additional measures,
including: to repeal the outstanding ban on payment of full-time union officers and to
ensure that the overall determination of wage payment to full-time union officers would
be left to free and voluntary negotiations between the parties, without legislative
interference; to provide a copy of the adopted revised TULRAA and its enforcement
decrees, as well as a copy of the Manual on the application of maximum time-off limits
as soon as possible; and to indicate whether any sanctions have been taken against
employers or unions for violations of the above provisions. The Committee further
requested the Government to take all the necessary measures to ensure that for
collective bargaining at the workplace: (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; (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; and (iii) to keep the Committee
informed of pending cases of unfair labour practices upon the introduction of the
unified bargaining channel system and to take measures for the prevention and
sanctioning of any such acts. The Government was requested 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 collective bargaining
agreements that took place in several workplaces, including Korea Railroad, National
Pension Service and Korea Gas Corporation. The Committee also requested 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
and that the establishment of minimum services be agreed in accordance with the
principles of freedom of association to bring section 314 of the Penal Code (obstruction
of business) into line with these principles, and to ensure that the legality of such
action not be dependent upon the representative status of the organization. Finally, the
Committee requested 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 (sections 2(4)(d) and 23(1) of TULRAA) and as
regards public employees, to take all possible measures with a view to achieving
conciliation between the Government and the Korean Government Employees’ Union (KGEU) so
that the latter may continue to exist and ultimately to register; 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 and 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; and to keep it informed of the situation of the public employees who
were dismissed or disciplined for participating in national rallies or for involvement
in a union ballot on integration of the unions.
- 45. In its communication dated 30 January 2013, the Government indicates
that the term “full time union official” in the Republic of Korea differs significantly
from the leadership of trade unions in other countries. The Government recalls that in
the Republic of Korea, a full-time union official refers to an employee at a workplace
who is exempted from the obligation to work and performs only union-related duties.
While in other countries, such officials are often paid from union dues, in the Republic
of Korea, the practice is that the wages of full-time union officials are paid by the
employer, thus placing a risk of the employer infringing on the autonomy of the union.
The payment of wages to full-time union officials was prohibited through the revision of
the TULRAA in 1997 but its implementation was delayed out of concern that its
enforcement would weaken trade union activity. The intention was to progressively reduce
the number of full-time union officials while the financial autonomy of trade unions was
bolstered, yet over the years the opposite occurred and there was actually an increase
in the number of full-time union officials. With the revision of the TULRAA on 1 January
2010, the ban that had been suspended for 13 years was implemented from July 2010. At
the same time, the paid time-off system was introduced to allow employers to pay for the
time necessary for union activities within certain limits. The persons eligible for paid
time off are not limited to the union leadership and workers who are not union officials
subject to paid time off may also freely carry out union activities if agreed under the
collective agreements. The paid time off can be applied to almost all union activities,
with the exception of certain activities, such as strikes. The payment of wages to a
full time union official is considered to be an unfair labour practice and it is the
employer who is penalized, not the union official. Finally, the Government provides the
requested Enforcement Decree and Manual and adds that other countries make the financial
support of employers for union officials’ wages an unfair labour practice.
- 46. As regards the bargaining representative system in the Republic of
Korea, the Government explains that it is designed to ensure that a bargaining
representative union must be selected once the process is under way for unifying the
bargaining channel and that the system requires the organizing of a joint bargaining
team even in the absence of a majority trade union. The Government also confirms that
trade unions that do not have the representative function are guaranteed the right to
perform individual trade union activities including speaking on behalf of their members
and handling grievances.
- 47. The Committee takes due note of the information provided by the
Government with respect to the implementation of the amendments made to the TULRAA.
While duly noting the explanations as to the historic context of paid full-time union
officers in the Republic of Korea, the Committee is bound once again to reiterate that,
even where the payment in such cases may come from the employer, the payment of
full-time union officers should be a matter for negotiation between the parties. As
regards the Government’s concerns relating to the autonomy of the trade union in such
circumstances, the Committee considers that, should it be found in a specific case that
the employer is interfering in the internal affairs of the trade union by financing its
members so as to bring it under the employer’s domination or control, such action should
be sanctioned on the basis of the evidence. The Committee trusts that the Government
will soon be in a position to lift the ban and to ensure that no one is sanctioned for
having entered into an agreement in this regard. In the meantime, the Committee requests
the Government to provide detailed information on the manner in which the maximum
time-off limits are applied in practice and any complaints of unfair labour practices
received.
- 48. As regards the freedom of association of public officials, the
Government confirmed that public officials of Grade VI or lower in rank at the Election
Commission and the courts are permitted to freely join unions according to the current
Act and do not fall under special service public officers prohibited from joining trade
unions. As regards the KGEU, the Government once again recalls that this organization no
longer exists due to illegitimate activities and their refusal to legitimately register
a trade union. The Government affirms that refusing to grant organizations that fail to
fulfil all conditions required of a trade union for the protection entitled under the
TULRAA is in conformity with both the rule against excessive restriction and the balance
between legal interests. The minimum requirements set out in the TULRAA and the AEOPOLU,
as confirmed by the Constitutional Court, represent an inevitable and minimal measure to
ensure the democratic and autonomous operation of trade unions. Given that the KGEU
by-laws allow dismissed workers and managerial officials among its trade union members,
the Government accordingly refused registration, a decision that was upheld at the Seoul
Administrative Court and the Seoul High Court and is currently pending before the
Supreme Court. As regards the allegations of anti-union discrimination against the KGEU,
the Government indicates that, while it did recommend that public officials avoid
attending a large-scale rally that could turn into a political rally, it did not ban
participation in a registered and legitimate rally. In addition, while it requested the
cooperation of all government institutions and agencies to prohibit access to the KGEU
website during official service hours, it did not ban access to the site outside of the
workplace, nor did it block the release of a KGEU statement. Finally, the Government
states that public officials’ trade unions are required to be politically impartial as
their politicization would exert a significant influence on the fairness of duties and
the trust of the people, but confirms that the KGEU’s registration was not refused for
this reason. The Government reaffirms the right of public officials’ trade unions to
express their views on economic and social policy issues that directly impact on their
members’ interests, but asserts that, in conformity with a Supreme Court decision in
April 2012, the expression of political views related to a specific political power in
order to exercise influence on the government’s policy making process is prohibited. As
regards the Democratic Labour Party case, the Government indicates that the court issued
a penalty of 300,000–500,000 South Korean won per person for the act of providing funds
and contributions towards party expenditures by public officials as a violation of the
Political Fund Act.
- 49. In a communication dated 11 August 2013, the International Trade
Union Confederation (ITUC) requested an urgent intervention and brought to the
Committee’s attention information concerning the Government’s refusal, for the fourth
time, to register the KGEU. The ITUC informed that the KGEU and the Government discussed
intensively the measures that the union could take, concluding with a proposal from the
KGEU to amend its constitution to insert the following clause in relation to membership,
“according to the relevant laws and regulations”. Nevertheless, the application for
registration was once again denied on the basis that its constitution could still be
interpreted to allow dismissed workers to retain membership. On 20 August 2013, the KGEU
submitted details on the efforts made and the dialogue with the Ministry of Employment
and Labour aimed at resolving this long outstanding issue which were regrettably,
unsuccessful.
- 50. In a communication dated 4 October 2013, the Government explains that
the matter of the registration of the KGEU should be determined in consideration of the
unique characteristics of the Republic of Korea Constitution and labour laws. Given that
the TULRAA bestows a number of rights, including the entitlement to collective
bargaining, a registration system was necessary to determine which labour unions are
legitimate so as to prevent unnecessary conflict. In addition, the AEOPOLU aims to
guarantee trade union activities of public officials and therefore stipulates that
public officials who are not in office (that is, have been removed, dismissed, or
discharged) are not eligible to retain membership in a labour union. The KGEU’s request
for registration was denied because article 2 of its by-laws, as amended on 22 July
2013, provided that, in case a union member is dismissed or the effectiveness of his/her
dismissal is in dispute, he/she may keep union membership according to related laws,
with the proviso that determination of his/her eligibility to join the union depends on
the central executive committee (article 27(2)(G)). The Government indicated that it
rejected the registration request because the by-laws did not comply with the Republic
of Korea Constitution or related laws and expressed its wish that the KGEU resubmit a
request and that it conduct trade union activities in accordance with related laws.
- 51. In a communication dated 1 December 2013, the ITUC, Education
International (EI), the Korean Confederation of Trade Unions (KCTU) and the Korean
Teachers and Education Workers’ Union (KTU) submitted new allegations of trade union
rights violations affecting the KTU and the KGEU. In particular, the complainants refer
to the Government’s decertification of the KTU on 24 October 2013 because it did not
amend its Constitution to ban dismissed and unemployed workers from its membership. The
complainants recall that around 60 KTU members were dismissed during the previous
Government for their activities, including expressing their opinion on the Government’s
education policy or for one-off donations to progressive political parties. While 39
were reinstated through court procedures, 21 teachers remained dismissed. In September
2013, the KTU decided to put the question of amending its by-laws to exclude dismissed
teachers to a vote of its general membership. Almost 60,000 members voted across the
nation with 68.59 per cent voting against, despite the Government’s ultimatum that the
union would be deregistered if its by laws were not amended. The KTU requested an
injunction for the suspension of the Government’s decision to cancel its registration,
which was accepted by the Seoul Administrative Court on 13 November 2013. The first
ruling on the merits is expected within six months. In the meantime, the Government
filed an immediate appeal against the injunction with the Seoul High Court. Moreover,
according to the complainants, the Ministry of Education withdrew from the ongoing
collective bargaining negotiation with the KTU in September 2013 on the ground that the
legal status of the KTU would be challenged by the Ministry of Employment and Labour.
The complainants also allege that the Government carried out a search and seizure of the
KGEU servers and announced its intention to do the same to the KTU due to the alleged
lack of political neutrality of these organizations. The complainants consider that
these acts were undertaken with the sole intention of intimidating KGEU leaders and
members and sending a clear message that the Government will take any and all steps
necessary to prohibit the exercise of freedom of association of any union, particularly
in the public sector, that opposes the anti-union policies of the Government.
- 52. In a communication dated 19 December 2013, the Government states that
the right to organize of teachers is guaranteed by the Act on the Establishment and
Operation of Trade Unions for Teachers (AEOTUT) enacted in July 1999 and which gave rise
to the operation of 11 trade unions. Establishment of a trade union accords the right to
collective bargaining and the possibility that a union request the settlement of a
labour dispute by the Labour Relations Commission (LRC). In order to be granted these
benefits and legal rights and protection, the Government follows procedures of
confirming whether a trade union meets legal requirements in addition to confirming if
members of the union are workers in need of bargaining for the improvement of their
working conditions. The AEOTUT was enacted and is applied in consideration of the duty
of teachers, keeping in mind the distinct characteristics of their status. Article 2 of
the AEOTUT provides that, in order to be a member of a teacher’s union, one must be a
current teacher or a dismissed teacher who has made an application to remedy unfair
labour practices to the LRC and who is awaiting the review decision. It has, however,
been confirmed that the KTU’s by-laws allow dismissed persons to be members and be
involved in the union’s activities. Since March 2010, the Government has urged and
guided the KTU to rectify these violations and abide by the laws. On 12 January 2012,
the Supreme Court decided that the corrective orders issued by the Government were
legitimate. Nonetheless, as the KTU continued to violate the laws, the Government issued
another corrective order on 23 September 2013 advising the KTU to correct its status. As
the KTU decided to decline the corrective orders through a vote of all its members, the
Government was obliged to give it notification of its loss of union status. The KTU can
however restore its legal status at any time when the union voluntarily corrects its
illegality by amending its by-laws and by excluding dismissed workers from the union.
The Government concludes that any amendments to related laws should only be made after
social consensus has been built among a wide range of stakeholder groups in the Republic
of Korea.
- 53. The Committee takes note with deep concern of the decertification of
the KTU, the refusal to register the KGEU for the fourth time and the allegations
relating to the searches and seizures of KGEU servers. As regards both the refusal to
register the KGEU and the decertification of the KTU, the Committee recalls that it has
consistently considered that a legislative provision prohibiting dismissed workers from
being union members is contrary to the principles of freedom of association. The
Committee has requested the Government to take the necessary measures to amend or repeal
the provisions in the TULRAA to this effect ever since they were first enacted in 1997
and observes that the AEOTUT and the AEOPOLU contain similar provisions. The Committee
deeply regrets not only that the KGEU has yet to obtain legal recognition due to this
restriction, but moreover expresses its deep concern that the application of this
restriction to teachers has now resulted in a governmental act to deregister the KTU
whose registration in July 1999 had been hailed by the Committee as a significant
development in ensuring freedom of association in the country. The Committee urges the
Government to take the necessary measures to amend the provisions restricting trade
union membership in this regard. Observing that the efforts made by the Ministry of
Employment and Labour (MOEL) to find a solution to this important matter did not in the
end bear fruit, the Committee urges the Government to pursue its efforts and to keep it
informed of all steps taken to facilitate the registration of the KGEU and ensure the
re-certification of the KTU without delay. As regards the pending court cases, the
Committee firmly trusts that the principles of freedom of association it has enunciated
over the years concerning the right of workers’ and employers’ organizations to draw up
their Constitutions and rules without interference by the public authorities will be
duly taken into account by the courts and that the legal recognition of a major trade
union organization in the education sector will not be dissolved on the basis of the
membership of a handful of dismissed teachers. Indeed, the Committee takes due note of
the Government’s emphasis on the importance of confirming if members of the union are
workers in need of bargaining for the improvement of their working conditions and
observes that nearly 60,000 teachers are expecting representation from the KTU on their
behalf. While awaiting the court judgments on this matter, the Committee trusts that the
Government will fully engage with the KTU, including on the collective bargaining
negotiations which the complainant states were forestalled in September 2013. The
Committee urges the Government to repeal the provisions in the TULRAA, the AEOTUT and
the AEOPOLU which prohibits dismissal workers from being members of the trade union and
to provide detailed information in reply to all the allegations set out in the 1
December 2013 communication. Finally, the Committee once again requests the Government
to provide full observations on the previous allegations of interference in the
negotiations between unions and employers and to indicate the reasons for the unilateral
termination of binding collective bargaining agreements that took place at Korea
Railroad, National Pension Service and Korea Gas Corporation and to indicate the steps
taken to bring section 314 of the Penal Code into line with the principles of freedom of
association.
