Informe provisional - Informe núm. 335, Noviembre 2004

1. 763. The Committee already examined the substance of this case at its May-June 1996, March and June 1997, March and November 1998, March 2000, March 2001, March 2002 and May-June 2003 meetings, when it presented an interim report to the Governing Body [304th Report, paras. 221-254; 306th Report, paras. 295-346; 307th Report, paras. 177-236; 309th Report, paras. 120-160; 311th Report, paras. 293-339; 320th Report, paras. 456-530; 324th Report, paras. 372-415; 327th Report, paras. 447-506; 331st Report, paras. 165-174; approved by the Governing Body at its 266th, 268th, 269th, 271st, 273rd, 277th, 280th, 283rd and 287th Sessions (June 1996, March and June 1997, March and November 1998, March 2000, March 2001, March and June 2003)].
2. 764. The Government provided its observations in communications dated 29 April and 16 September 2004.
3. 765. The Republic of Korea has not ratified either the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 766. At its June 2003 session, in the light of the Committee’s interim conclusions, the Governing Body approved the following recommendations:
   • (a) Noting with interest from the latest government communication an overall desire and willingness to resolve most, if not all, of the outstanding issues in this case, the Committee hopes that all the parties concerned will be able to come together to find mutually acceptable solutions to all these issues and that it will be in a position to note further significant progress made in respect of its recommendations in the near future.
   • (b) As regards the legislative aspects of this case, the Committee requests the Government:
   • (i) to take the necessary measures in the very near future so as to ensure that all public servants fully enjoy the right to establish and join trade union organizations of their own choosing;
   • (ii) to take all possible steps to speed up the process of legalizing trade union pluralism, in full consultation with all social partners concerned, in order to ensure full respect for the right of workers to establish and join the organization of their own choosing;
   • (iii) to ensure that the payment of wages by employers to full-time union officials is not subject to legislative interference;
   • (iv) to amend the list of essential public services in section 71(2) of the Trade Union and Labour Relations Amendment Act (TULRAA) so that the right to strike may be prohibited only in essential services in the strict sense of the term;
   • (v) to repeal the notification requirement (section 40) and the penalties for violation of the prohibition on persons not notified to the Ministry of Labour from intervening in collective bargaining or industrial disputes (section 89(1) of the TULRAA);
   • (vi) to repeal the provisions concerning the denial of dismissed and unemployed workers from keeping their union membership and the ineligibility of non-union members to stand for trade union office (sections 2(4)(d) and 23(1) of the TULRAA);
   • (vii) to bring section 314 of the Penal Code (obstruction of business) into line with freedom of association principles;
     • (viii) to keep it informed of the progress made in respect of all of the abovementioned matters.
     • Noting the Government’s request for advice from ILO experts in respect of the bills to be prepared by the industrial relations improvement task force, the Committee reminds the Government that the technical assistance of the Office is entirely at the Government’s disposal in this regard.
   • (c) As regards the factual aspects of this case:
   • (i) the Committee welcomes the steps taken by the Government to grant special pardons to a certain number of detained trade unionists;
   • (ii) taking due note of the indication in the Government’s communication of April 2003 that it will establish a practice of investigation without detention for trade unionists who violate current labour laws, unless they commit an act of violence, the Committee further encourages the Government to take additional steps as appropriate so that all persons still detained or on trial as a result of their trade union activities are released and that the charges brought against them are dropped. In the event of persons charged with violence or assault, the Committee asks the Government to ensure that any such charges are dealt with as soon as possible. It requests the Government to keep it informed of any measures taken in respect of the above points;
   • (iii) the Committee once again urges the Government to ensure that the charges brought against Mr. Kwon Young-kil, former president of the KCTU, in connection with his legitimate trade union activities are dropped and requests the Government to keep it informed of the outcome of his appeal;
   • (iv) noting with regret the information provided by the Government that 12 people connected to the Korean Association of Government Employees’ Works Councils (KAGEWC) had been dismissed as of January 2003 due to illegal collective actions, the Committee requests the Government to take the necessary measures to ensure that these persons are immediately reinstated in their jobs, without loss of wages. It requests the Government to keep it informed of the progress made in this regard.

B. The Government’s reply

1. 767. In its communication dated 29 April 2004, the Government presented its observations with respect to the pending recommendations. The Government confirmed its continuing efforts to improve the relevant institutions in accordance with these recommendations and referred in particular to the establishment of the Research Committee on Industrial Relations System Development, which reviewed and made valuable contributions on various issues including those raised in the recommendations.
2. 768. As regards public officials’ basic labour rights, the Government recalls that the Tripartite Commission reached an agreement on 6 February 1998 to first allow the establishment of workplace associations and then trade unions as a second step. Accordingly, the Government legislated the Act on establishment and operation of public officials’ workplace associations in 1999 and has enforced the law. Also, there have been discussions on the means to legalize public officials’ trade union activities.
3. 769. In October 2002, the Ministry of Government Administration and Home Affairs submitted a legislative bill on guaranteeing public officials’ union activities to the National Assembly, but the bill failed to pass the National Assembly due to differences in opinions.
4. 770. Since the inauguration of the new Government in 2003, the Ministry of Labour prepared a new government bill ensuring public officials’ right to associate under a wide scope. In June 2003, the Government gathered opinions from public officials’ groups and people in other areas and held consultations with related ministries. The bill guarantees public officials’ rights to establish and join unions, engage in collective bargaining with the central and local government authorities, sign collective agreements, and join umbrella unions. It does not allow public officials of certain areas, such as police officers and firefighters, to join unions. It also restricts the effects of collective agreements on matters decided by law and budget and the right to collective action of public officials , due to the public nature of the duty performed.
5. 771. A social consensus on the bill was not reached due to strong opposition from the public officials’ organization (the Korea Federation of Government Employees’ Union) demanding that the three labour rights, including the right to collective action, should all be guaranteed for public officials at once. The Government was therefore not able to submit the bill to the National Assembly in October 2003 as planned. It is, nevertheless, striving to achieve a social consensus on the bill through dialogue and consultation with public officials’ organizations and through promoting the legislation of the bill in the shortest possible time.
6. 772. As regards trade union pluralism, the current Trade Union and Labour Relations Adjustment Act (TULRAA) states that multiple trade unions at the enterprise level shall be permitted starting in 2007 with a precondition that measures to unify bargaining channels of multiple unions be developed by the end of 2006. In this regard, the labour unions have argued that multiple trade unions at the enterprise level should be permitted sooner and the method of bargaining should be left to the hands of labour and management. On the other hand, the management has strongly demanded that once multiple trade unions are permitted at the enterprise level, bargaining channels should be unified, citing the concern about the increase in bargaining costs and wages to full-time unionists. Management, in particular, prefers exclusive representation.
7. 773. The government-established Research Committee on Industrial Relations System Development (hereinafter, the Research Committee), which operated from May to November 2003, suggested that once multiple unions at the enterprise level are introduced, labour and management should autonomously unify bargaining channels. If they fail to do so, the Committee suggested that a union which represents the majority of unionists should be the bargaining representative (majority representation) or that unions form a bargaining team comprised of proportional representation among unions (proportional representation).
8. 774. The Committee’s Reform Measures for Advanced Industrial Relations Laws and Systems were submitted to the Tripartite Commission in September 2003 and are currently under discussion at the Commission. The discussion is expected to continue until the first half of 2004. As soon as the discussion at the Tripartite Commission is concluded, the Government plans to submit to the National Assembly a bill based on the outcome of these discussions.
9. 775. Under the current TULRAA, employers’ payment to full-time unionists is banned since it is considered an illegal labour practice where employers assist in the operation costs of the union. But the enforcement of the provision has been postponed to the end of 2006. Labour has demanded that the current provision be deleted and the employers’ payment to full-time unionists be left in the hands of labour and management themselves. But management argues that the provision should be enforced as planned so as to improve the practice where unions heavily depend on employers for payment to full-time unionists and even force employers to provide excessive assistance to unions.
10. 776. In 2003, the Research Committee pointed out that, given the current situation where the financial foundation of many unions is fragile and it is very common for employers to pay wages to full-time unionists, the current law that bans all employers’ assistance to full-time unionists punishes all who violate the provision and needs to be improved both because of the reality and legal logic. The Research Committee suggested that instead, the law should stipulate the minimum number of full-time unionists whose wages can be provided by employers and should punish the act of providing wages to more full-time unionists than stipulated.
11. 777. The Government’s stance is that legislative intervention is inevitable to redress the prevalent wrong practices where unions take it for granted that employers provide full-time unionists wages and even force employers to do so. The Government will promote a legislation based on the discussions at the Tripartite Commission as soon as the discussions are concluded.
12. 778. The current TULRAA states that essential public services are those whose stoppages and discontinuance may endanger the daily lives of the general public or may undermine the national economy considerably, and whose replacement is not easy (railroad services, intercity rail, water electricity, gas supply, oil refinery and supply services, hospital services, telecommunication services, the Bank of Korea).
13. 779. It may seem that the scope of essential public service is somewhat larger than the essential services suggested by the ILO. But this is because it is not easy to maintain the service to protect public interests in the event of strikes. In reality, Korean labour laws strictly restrain striker replacement and unions often do not use strikes as the last line of resort.
14. 780. Given that the ILO has stated that the scope of essential services may vary from country to country, depending on its unique situations, then the ILO should be able to see that the scope of essential public services in the Republic of Korea does not depart significantly from the essential services proposed by the ILO. For example, oil accounts for more than 50 per cent of domestic energy sources. Thus, if the oil refinery and supply services are stopped, most daily lives and production activities such as cooking, heating and electricity supply would be stopped. If the railroad and intercity railroad are stopped, the public will face great difficulty in their everyday lives, such as commuting. If the Bank of Korea goes on strike, it may endanger the daily lives of the general public and undermine the national economy considerably since the Bank of Korea makes decisions on the nation’s monetary policies and enforces them, including currency policies and interest rates.
15. 781. The Government tries to be cautious in enforcing compulsory arbitration to clear the concerns that compulsory arbitration may excessively restrict unions’ right to industrial action. Since 2003, the Labour Relations Commissions across the country have decided to refer the cases of strikes to compulsory arbitration, after judging the extent of the public interest infringed by the work stopped and whether some measures have been taken to prevent such infringement of public interest, such as maintaining the minimum level of work. As a result, only one case of strike was referred to officio arbitration in 2003.
16. 782. Taking this into account, the Research Committee suggested that for essential public services compulsory arbitration be abolished and that the law should require public services to maintain a minimum level of work during strikes. The Government plans to promote a legislation based on discussions at the Tripartite Commission, in an attempt to enlarge the scope of trade unions’ right to industrial action as well as to set up a countermeasure to protect public interests in case of industrial actions.
17. 783. Section 40 of the TULRAA says that: a trade union and an employer may be supported by industrial federations or a national confederation of which the trade union is a member; an employers’ association of which the employer is a member; and a person who has been notified to the administrative authorities by the trade union or the employer concerned to obtain support. It is not that a third party is punished for just not being notified to the Ministry of Labour. The third party is punished only when he/she intervenes in collective bargaining or industrial disputes against the will of the trade union or the employer and hinders the autonomy of the labour and management. So far no union or employer has been punished for violating section 89(1).
18. 784. In effect, employers are demanding that it should be redressed that unionists of an umbrella union who are not employees of a certain company enter the company’s workplace without prior permission to support the union of the company or infringe the employer’s right to manage the facilities of the company. The Research Committee suggested that the section on notification of third-party assistance and the penal provision should be abolished, citing that the sections are not effective any longer. Based on the result of discussions at the Tripartite Commission, the Government plans to legislate an act that recognizes the freedom of union activities and protects employers’ rights to operate their businesses and manage their facilities.
19. 785. The court has judged that, where enterprise-level trade unions account for the majority, the dismissed and the unemployed are not workers who can join trade unions or who can be elected as union executives. The Government has tried revising the related law twice since 1998 when the Tripartite Commission agreed to allow the dismissed to join non-enterprise-level trade unions. But the legislation process has been delayed due to differences of opinion.
20. 786. The Research Committee suggested that the dismissed and the unemployed should be granted the eligibility to become members of non-enterprise unions such as industry-level or regional trade unions, but that, given the current domestic industrial relations where union activities are conducted mainly by the enterprise, the eligibility of members of an enterprise-level trade union needs to be confined to employees of the enterprise. (In this case, membership and executiveship of industry-level union is open to anyone.) Based on the results of discussions of the Tripartite Commission, the Government plans to legislate an act which allows the unemployed to freely join non-enterprise-level unions but restricts them from joining enterprise-level trade unions.
21. 787. The Korean Government applies obstruction of business to workers’ collective refusal to work, which has been believed by the ILO to be an infringement on the freedom of association principle. But the Korean Government believes that the ILO’s position stems from a misunderstanding of the Korean legal system. Section 314 of the Criminal Act (Penal Code) states that a person who interferes with economic or social activities of another by circulating false facts or by the threat of force, shall be punished. Obstruction of business is a type of extortion crime that forces others to do such thing or not to do other things, or that makes others give up exercising their own rights. An act of interfering with the business of others by means of illegal threat of force is punished under section 314 of the Criminal Act.
22. 788. Section 314 thus punishes certain illegal industrial action such as refusal to work disguised as industrial action which causes damages to employers’ business activities. The section is not aimed at regulating illegal industrial action itself.
23. 789. Other countries also punish the act of unionists who obstruct non-unionists and replacement workers from working or who force other unionists to take part in industrial action. This is exactly the same as the Korean Government’s application of obstruction of business in that in both cases, the act of unfairly restricting economic activities of employers is punished. Legal strikes based on the right to collective action stipulated in the Constitution are not regarded as obstruction of business nor get punished. Obstruction of business is applied only to certain cases of strikes beyond the boundary of the three labour rights protected by the Constitution. In fact, under paragraph 1 of section 43 of the TULRAA, employers in the Republic of Korea cannot hire new employees or replace strikers to perform the work stopped by industrial action of trade unions during the period of the industrial action.
24. 790. Obstruction of business applies in cases where workers collectively refuse to work, and the work which has been done by the participants to the industrial action is being stopped by collective and coercive means (the Criminal Act describes it as “threat of force”). If such a period is prolonged, it can cause damage to the workplace which is severe enough to make it go bankrupt. But under current labour laws, employers, the victim in this case, do not have any measure against this. This is quite different from the cases in other countries where, in case of industrial action, employers are allowed to replace strikers or are given other countermeasures so that they can maintain their business activities. Thus, the damage to the company caused by industrial action is not extreme.
25. 791. Korean labour laws grant workers with a formidable right to collective action and stipulate that collective refusal to work based on this right shall not be placed under criminal punishment, while limiting the scope of the right to collective action to a certain extent, defining the ones that go beyond the limit as illegal, and punishing them on account of obstruction of business. In this context, obstruction of business is aimed not at unfairly limiting workers’ right to collective action but at creating a level playing field for both workers and employers.
26. 792. Looking at the record of application of the law, one can easily find that most of those arrested received punishment for committing violence with deadly weapons. Most of those who were arrested for obstruction of business are union officers who had prevented unionists from returning to work or occupied the overall facilities of the workplace for a long time. Such personnel get punished by laws in other countries as well. The arrested mobilized unionists, formed so-called “diehard-defence teams” to force unionists to participate in the strike and stop them from returning to work. The team committed violence, often using iron pipes.
27. 793. Article 8, paragraph 1, of Convention No. 87 states, “in exercising the rights provided for in this Convention workers and employers and their respective organisations, like other persons or organised collectivities, shall respect the law of the land”. The Digest of decisions and principles of the Freedom of Association Committee, 1996, also stipulates that freedom of association principles do not protect the abuse of the right to strike which consists of criminal activities in exercising the right to strike [para. 598].
28. 794. In conclusion, punishing the abusive right to strike can hardly be regarded as a measure against the freedom of association principle. The Korean Government will minimize the numbers of trade unionists arrested, even in the event of an illegal industrial action if it is a violence-free action and it will cautiously interpret and apply the obstruction of business charges.
29. 795. In respect of the factual matters raised, as of 1 January 2004, the number of persons arrested for illegal strikes without use of force is only one. In 2003, 28 workers were arrested for obstruction of business during illegal strikes without direct use of violence; 27 of these were all released by withdrawal of arrest of bail, or being sentenced to a light fine.
30. 796. In 2003, 137 additional workers were arrested not for carrying out trade union activities but for throwing Molotov cocktails, committing violence with iron pipes, etc. Even among them, most of them were released except for those who were arrested for violent demonstrations and assemblies such as those at a union rally on 9 November 2003.
31. 797. Mr. Kwon, Young-kil, former president of the Korean Confederation of Trade Unions (KCTU) was sentenced to ten months’ imprisonment with a two-year grace period at the first trial on 31 January 2001. The defendant, Mr. Kwon, filed an appeal which is still under way. The decision of the appeals court is scheduled to be made at the end of April 2004. Withdrawal of the prosecution against Mr. Kwon is technically impossible since the Korean law prohibits withdrawal of a prosecution during the appeal stage. Unlike what the ILO pointed out, he was not prosecuted for “legitimate trade union activities”. He was being prosecuted only for violating the Punishment of Violences, etc. Act, instigating illegal and violent demonstrations in the period from June 1994 to November 1995.
32. 798. As shown in article 33 of the Constitution, the Government considers public officials as workers and has made continuous efforts to increase their labour rights and interests by gradually recognizing a broader scope of basic labour rights of public officials, taking into account the characteristics of public officials and public sentiment. Currently, about 50,000 public officials who are manual labourers working in the areas of railroad, postal service, and medical service enjoy all three labour rights, including the right to collective action. Some 370,000 educational public officials such as teachers of primary, middle, and high schools are allowed to establish trade unions. Even among general public officials, 130,000 are members of public officials’ workplace associations. They consult with the heads of their respective authorities to improve working environment, increase rights and interests, and deal with grievances.
33. 799. The Korean Constitution states, “all public officials shall be servants of the entire people and shall be responsible to the people. The status and political impartiality of public officials shall be guaranteed as prescribed by the Act.” In fact, public officials may not be dismissed against their will, unless they are sentenced, receive disciplines, or there is good reason based on the Public Officials Act.
34. 800. As seen from this, the status of public officials is guaranteed for their lifetime by law. Nevertheless, in March 2002, they attempted to establish a trade union, an act which is illegal according to the current law. They waged a struggle against the Government, insisting that the three labour rights, including the right to collective action, should be guaranteed for them at once. In 2002, they held ten illegal out-of-door assemblies, including the ones held on 27 April, 26 May and 27 October. They refused to accept the Government’s requests not to conduct illegal activities and to hold dialogues. On 7 October 2002, they broke into the office of the Minister of Government Administration and Home Affairs, damaged the office fixtures and committed violence to MOGAHA officials. On 30 October 2002 they conducted a ballot on illegal activities and decided to go on a general strike on 1 November 2002. They waged the general strike on 4 and 5 November 2002, taking annual leave without permission and absence without any permission.
35. 801. To restore order and discipline in public service, 12 public officials who broke into the Minister’s office, designed or led the illegal assembly, actively participated in the assembly and left the designated workplace without permission were subject to punishment according to the related law, followed by the disciplinary committee’s decision. They are: Koh Kwang-shik, Hwang Ki-ju, Ahn Hyun-ho, Kim Jong-yeon, Kang Su-dong, Kang Dong-jin, Kim Young-gil, Ha Jae-ho, Han Seog-woo, Min Jeom-gi, Oh Myeong-nam, Kim Sang-geol. The Administrative litigation and request examination are under way in the court. Four of them (Ha Jae-ho, Ahn Hyun-ho, Kim Jong-yeon, Min Jeom-gi) were reinstated by request examination. Mr. Oh Myeong-nam received his final dismissal sentence from the Supreme Court.
36. 802. In its communication dated 16 September 2004, the Government provides additional information on the main contents of the Public Officials Trade Union Bill. The Bill is to be made into a special law of the TULRAA and separately provide for the establishment of public officials’ trade unions, the scope of union membership, bargaining structure, dispute mediation mechanisms, etc. As for the matters not separately stipulated for, the TULRAA will be applied.
37. 803. Regarding the extent to which three labour rights are guaranteed, the right to organize and the right to collective bargaining (including the right to sign collective agreements) will be guaranteed. However, the right to collective action (the right to strike) will not be recognized under the Bill.
38. 804. Public officials will be allowed to establish and join a union at the level of the minimum organizing entity. Examples of the minimum establishment entity are the National Assembly, court, Constitutional Court, National Election Commission, ministries, Special City, Metropolitan City, province, city, Gun, Gu and local education boards. Public officials will also be allowed to establish and join a union, a federation of unions or a confederation of unions, which has as its members, public officials from different organizing entities.
39. 805. Grade 6 or lower public officials, specific and contract public officials, and technical and employed public officials will be allowed to join a trade union. However, special public officials, such as soldiers and policemen, and politically appointed public officials will be prohibited from joining a union. Those who carry out the role of employer, such as personnel and financial administration, will also not be allowed to form a union. Currently, there are more than 910,000 public servants. Among them, the number of Grade 6 or lower officials is 880,000 (96 per cent) while Grade 5 or higher stands at 30,000 (4 per cent). [In a chart attached to the Government’s reply, this category of public servant was stated to amount to 60,000.]
40. 806. The bargaining partner from labour will be the representative of a public officials’ union and the bargaining partner from Government will be a person responsible for each constitutional agency (National Assembly, court, Ministry of Government and Home Affairs), and for each local government (mayors, governors, etc.). The bargaining agenda will be on wages, welfare and other matters related to working conditions. Management and operation issues, such as making policy decisions not related to working conditions and exercising rights to personnel administration, will be excluded from the bargaining agenda.
41. 807. The full-time union officials will be allowed to fully devote themselves to the union, but the time they spend on union activities will be treated as unpaid leave. In this case, employers should not give any unfavourable treatment on the grounds that they are full-time union officials.
42. 808. The Government adds that given the unique nature of public officials’ duty and the technicality of their industrial relations, a mediation committee for public officials will be established under the National Labour Relations Commission. After the Ministry of Labour has gathered public comments and opinions from various circles, it will submit the Bill to the National Assembly Regular Session this autumn.
43. 809. Finally, the Government recalled the proposals made by the Research Committee on all the other pending issues, which have already been set out above.

C. The Committee’s conclusions

1. 810. The Committee recalls that it has been examining this case since 1996. During its last examination of this case in May-June 2003, the Committee observed that, while important steps had been taken over the years to ensure greater conformity between the national legislation and practice and the principles of freedom of association, significant obstacles to the full implementation of freedom of association principles in both law and practice remained. The Committee had, however, noted with interest the Government’s indication of its desire and willingness to resolve most, if not all, of the outstanding issues in this case.
2. 811. The Committee notes in this respect from the Government’s communications that a Research Committee on Industrial Relations System Development was established to review the issues raised in its pending recommendations. The Government transmitted a summary of the final report of this Research Committee entitled “Reform Measures for Advanced Industrial Relations Laws and Systems”, dated 3 December 2003, to the Office.
3. 812. The Committee will proceed with its examination of the legislative aspects of this case on the basis of the information provided in the Government’s communications and the proposals made in the final report of the Research Committee.
4. * * *
5. Legislative issues
6. 813. The Committee recalls that the outstanding legislative issues concern the need to: ensure the right to organize for public servants; legalize trade union pluralism at the enterprise level; resolve the issue of payment of wages to full-time union officers in a manner consistent with freedom of association principles; amend section 71 of the Trade Union and Labour Relations Amendment Act (TULRAA) so that the right to strike may be prohibited only in essential services in the strict sense of the term; repeal the notification requirement in section 40 of the TULRAA and the penalties provided for in section 89(1) concerning the prohibition on persons not notified to the Ministry of Labour from intervening in collective bargaining or industrial disputes; amend the prohibition on dismissed and unemployed workers from remaining union members or holding trade union office (sections 2(4)(d) and 23(1) of the TULRAA); and amend section 314 of the Criminal Code concerning the obstruction of business to bring it into line with freedom of association principles.
7. 814. As regards the right of public servants to establish and join trade union organizations of their own choosing, the Committee noted in its previous examination of this case the Government’s indication that legalizing the government officials’ union had been a campaign pledge of the newly elected President. The Government had given the Ministry of Labour the authority to prepare the Public Officials’ Union Bill with a view to granting to government officials the right to organize, the right to bargain collectively and the right to conclude collective agreements. It was expected that the Bill would come into force by 2004.
8. 815. In its recent communications, the Government recalls the history of the discussions on public officials’ basic labour rights in the Tripartite Commission. The Government explains that a new Bill was drafted by the Ministry of Labour to ensure these basic rights to public officials. The Committee notes that the Bill does not allow public officials of certain areas, such as police officers and firefighters, to join unions nor, according to the Government, will public officials at Grade 5 or higher be covered by the law (a category which according to the Government covers from 30,000 to 60,000 workers). The Bill also restricts the effects of collective agreements on matters decided by law and budget and the right to collective action of public officials. Full-time union officials under the Bill will have to take unpaid leave to carry out their union activities. Due to the strong opposition from the Korea Federation of Government Employees’ Union, which also wanted the right to collective action to be legalized, the Government had not been able to submit the Bill in October 2003 as it had planned, but it was striving to achieve social consensus with a view to the Bill’s adoption in the shortest possible time.
9. 816. The Committee would recall in this respect that public servants should, like all other workers, without distinction whatsoever, have the right to form and join organizations of their own choosing, without previous authorization, for the promotion and defence of their occupational interests [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 213]. As regards public servants at Grade 5 or higher, the Committee recalls that it is not necessarily incompatible with freedom of association principles to deny managerial or supervisory employees the right to belong to the same trade unions as other workers, on condition that two requirements are met: first, that such workers have the right to form their own associations to defend their interests and, second, that the categories of such staff are not defined so broadly as to weaken the organizations of other workers in the enterprise or branch of activity by depriving them of a substantial proportion of their present or potential membership. In these circumstances, the Committee considers that the total exclusion from the legislation of public servants at Grade 5 or higher is a violation of their fundamental right to organize.
10. 817. Furthermore, while exclusions from the right to organize may be permitted for police and armed forces, the Committee considers that the right of firefighters to form and join organizations of their own choosing should also be guaranteed. As regards the right to collective action, the Committee recalls that the right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term, that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population [see Digest, op. cit, para. 526]. The Committee does acknowledge that firefighters may be considered as workers providing an essential service for the purposes of determining their right to collective action.
11. 818. As regards the provision in the Bill that states that all trade union activity by full-time union officials will be treated as unpaid leave, the Committee considers that it may be more appropriate to leave such matters for consultation between the competent minimum organizing entity and the union concerned. Finally, given that the Committee has not yet been provided with the actual draft text of the Public Officials’ Trade Union Bill, the Committee would request the Government to confirm that the Bill enables public servants to establish more than one union at the various levels, should they so desire.
12. 819. Despite the clear efforts on the part of the Government to resolve this issue, the Committee notes with concern that the right to organize of public servants has yet to be consecrated in law. It urges the Government to take the necessary measures in the very near future so as to ensure that all public servants fully enjoy the right to establish and join trade union organizations of their own choosing, bearing in mind the abovementioned principles, and requests the Government to keep it informed of the progress made in this regard.
13. 820. Regarding the issue of the legalization of trade union pluralism at the enterprise level, the Committee notes the Government’s indication of the social partners’ views on this question and the recommendations of the Research Committee that once multiple unions are introduced at the enterprise level, labour and management should autonomously unify bargaining channels. If they fail to do so, the bargaining representative should be determined either on the basis of majority representation (the union which represents the majority of unionists) or through proportional representation of all the unions on a bargaining team. As soon as the discussion in the Tripartite Commission on these recommendations has been concluded, the Government plans to submit a bill based on the outcome of these discussions to the National Assembly for adoption.
14. 821. While noting the Government’s reiteration that the Trade Union and Labour Relations Adjustment Act (TULRAA) provides for the legalization of trade union pluralism in 2007, on the condition that measures to unify bargaining channels have been developed, the Committee recalls that it has been calling for the legalization of trade union pluralism at the enterprise level ever since its first examination of this case and that it has urged the Government to speed up this process ever since the decision was taken in 2001 to delay the legalization of enterprise trade union pluralism until 2007. The Committee therefore urges the Government to take rapid steps for the legalization of trade union pluralism at the enterprise level, in full consultation with all social partners concerned, so as to guarantee at all levels the right of workers to establish and join the organization of their own choosing. It requests the Government to keep it informed of the progress made in this regard.
15. 822. As regards the prohibition of payment of wages by employers to full-time union official (currently provided in the TULRAA, but the enforcement of which has been postponed until 2007) the Committee notes the Government’s indication of the views of the social partners on this matter and the proposal made by the Research Committee that the law should stipulate the number of full-time unionists whose wages can be provided by employers, punishing the payment of wages to if it is made to any more than that number. The Government asserts, however, that legislating this matter is inevitable as unions often take for granted that employers will provide wages to full-time unionists and even force employers to do so.
16. 823. The Committee recalls its previous conclusions that such matters should not be subject to legislative interference. While mindful of the concerns raised by the Government relating to excessive pressure that might be brought to bear on employers to pay the wages of full-time union officials within an environment of multiple trade unions, the Committee believes that permitting this matter to be a subject for negotiations between the parties, coupled with any reasonable safeguards suggested by the Research Committee in this respect, should be adequate to address these concerns while ensuring respect for the free and voluntary nature of collective bargaining. The Committee trusts that the Government will bear in mind these principles when promoting any legislative changes in this respect and requests the Government to keep it informed of the progress made in this regard.
17. 824. As regards the scope of essential public services where the right to strike may be prohibited (section 71(2) of the TULRAA), the Committee notes the Government’s explanation that, while the services listed would appear to be larger in scope than the definition set out by the ILO, this is due to: the difficulty that exists in maintaining a service to protect public interests; the strict restraint placed on striker replacements; and the fact that unions often do not use strike action as a measure of last resort. The Committee further notes the Government’s indication of the difficulties that would be experienced by the public in the event of strikes in the oil sector, the railroad and intercity rail and the Bank of Korea. Nevertheless, the Government has indicated that it tries to be cautious in enforcing compulsory arbitration and refers strikes only after judging the extent of the public interest infringed and whether efforts had been made to provide a minimum service. As a result, only one case was referred to compulsory arbitration in 2003.
18. 825. Taking this into account, the Research Committee has proposed that compulsory arbitration be abolished in essential public services and that the law should provide instead for the maintenance of a minimum service during strikes. The Government has indicated its plan to promote legislation, based on discussions at the Tripartite Commission, in an attempt to enlarge the scope of trade unions’ right to industrial action, while setting up a countermeasure to protect public interests. In this respect, the Committee notes from the report of the Research Committee that it proposes to lift the restriction on striker replacements for public interest services, with a slightly expanded definition of these services.
19. 826. While noting with interest the Government’s indication that it is planning to enlarge the scope of trade unions’ rights to industrial action, the Committee wishes to recall that the hiring of workers to replace striking workers in a sector which cannot be regarded as an essential sector in the strict sense of the term, and hence one in which strikes might be forbidden, constitutes a serious violation of freedom of association. Moreover, the Committee has already considered that measures taken to mobilize workers at the time of disputes in transport companies and railways are such as to restrict these workers’ right to strike as a means of defending their occupational and economic interests [see Digest, op. cit., paras. 570 and 575].
20. 827. Recalling its previous conclusions that railroad services, intercity rail and the petroleum sector do not constitute essential services in the strict sense of the term, the Committee trusts that the abovementioned principles will be borne in mind when amending the legislation in respect of compulsory arbitration and when considering permitting the use of striker replacements in public interest services. The Committee requests the Government to keep it informed of the progress made in this regard.
21. 828. The Committee notes the explanation given by the Government concerning the notification requirement for third-party intervention in collective bargaining and industrial disputes (section 40 of the TULRAA) and the indication that no union or employer has been punished for such a violation under section 89(1). The Committee further notes the proposal of the Research Committee that the notification requirement and the penal provision be abolished and the Government’s indication that, based on the results of discussions at the Tripartite Commission, it plans to legislate an act that recognizes the freedom of union activities and protects employers’ rights to operate their businesses and manage their facilities. The Committee again requests the Government to take the necessary measures in the near future to repeal the notification requirement for third-party intervention in collective bargaining or industrial disputes (section 40) and the corresponding penalties (section 89(1)) and requests the Government to keep it informed of the progress made in this regard.
22. 829. As regards the denial of dismissed and unemployed workers from keeping their union membership and the ineligibility of non-union members to stand for trade union office (sections 2(4)(d) and 23(1) of the TULRAA), the Committee notes the proposal made by the Research Committee that dismissed and unemployed workers should be allowed to become members of non-enterprise unions, such as industry-level or regional trade unions, echoing the tripartite agreement of 1998. Recalling its previous conclusions in this respect, the Committee once again urges the Government to repeal these provisions, as recommended, and to ensure that membership in enterprise-level unions is not limited in respect of dismissed persons until their final appeal has been heard and that candidates who had previously been employed in the occupation concerned may be eligible for trade union office and a reasonable proportion of the officers of an organization may be exempt from the occupational requirement [see Digest, op. cit., para. 371]. The Committee requests the Government to keep it informed of the progress made in this regard.
23. 830. As regards the term “obstruction of business” under section 314 of the Criminal Code, the Committee takes due note of the Government’s concern that the Committee may have misunderstood the Korean legal system. The Government states that this section punishes the act of refusing to work, disguised as industrial action, but is not aimed at regulating illegal industrial action itself. The Government also refers to the punishment of acts that obstruct non-unionists and replacement workers from working or that force other unionists to take part in industrial action. Thus, according to the Government, obstruction of business applies to cases where workers collectively refuse to work and this work is stopped by collective and coercive means. The Government further raises the concern that a prolonged period of such action may lead to bankruptcy. In the Government’s opinion, obstruction of business is aimed not at unfairly limiting workers’ right to collective action, but at creating a level playing field for both workers and employers.
24. 831. The Government adds that this provision has been applied mostly in cases involving violence, the prevention of unionists from returning to work or the occupation of workplaces. The Government thus considers that the obstruction of business provision merely protects against the abusive exercise of the right to strike and cannot be regarded as a measure against freedom of association. Finally, the Government states that it will minimize the numbers of trade unionists arrested, even in the event of an illegal industrial action, if it is a violence-free action, and it will cautiously interpret and apply the obstruction of business charges.
25. 832. In its previous examination of this case, the Committee noted with interest the Government’s general indication that it would establish a practice of investigation without detention for workers who violated current labour laws, unless they committed an act of violence or destruction. The Committee considered this statement of paramount importance, particularly in a context where certain basic trade union rights had yet to be recognized for certain categories of workers and where the notion of a legal strike had been seen as restricted to a context of voluntary bargaining between labour and management for maintaining and improving working conditions [see 331st Report, para. 348].
26. 833. In its latest communication, the Government states that 28 workers were arrested in 2003 for obstruction of business during illegal strikes, without direct use of violence; 27 of these workers were released by withdrawal of arrest or bail or being sentenced to a light fine. In addition, 137 workers were arrested for violent acts in 2003 and most of these have been released with the exception of those who were arrested for violent demonstrations and assemblies, such as those at a union rally on 9 November 2003.
27. 834. The Committee must once again recall that it considers the legal definition of “obstruction of business” so wide as to encompass practically all activities related to strikes and that the charge of obstruction of business carries extremely heavy penalties (maximum sentence of five-years’ imprisonment and/or a fine of 15 million won). While taking due note of the Government’s indication that it will apply and interpret this provision cautiously but that it considers it necessary to the creation of a level playing field, the Committee is of the opinion that section 314 as drafted and applied over the years has given rise to the punishment of a variety of acts relating to collective action, even without any implication of violence, with significant prison terms.
28. 835. The Committee, therefore, once again emphasizes that it does not consider the situation created by the obstruction of business provision to be conducive to a stable and harmonious industrial relations system and requests the Government to bring section 314 of the Criminal Code in line with freedom of association principles so as to ensure that non-violent industrial action may not be penalized under this provision. The Committee requests the Government to rectify the situation of any workers who may have been penalized under this provision for non-violent industrial action. It also requests the Government to provide further details, including any court judgements, on the 28 cases of workers arrested for obstruction of business in 2003, despite the absence of any violent acts, so that it may obtain a fuller understanding of the application of this provision.
29. Factual issues
30. 836. The Committee recalls that the factual issues in this case concern the arrest and detention of Mr. Kwon Young-kil, former president of the KCTU, and the dismissal of leaders and members of the Korean Association of Government Employees’ Works Councils (KAGEWC).
31. 837. The Committee notes the information provided by the Government in respect of the appeal process of Kwon Young-kil, former president of the KCTU. Given that the Government had indicated that the decision of the appeals court was scheduled to be made at the end of April 2004, the Committee requests the Government to provide information on the outcome of his appeal, as well as a copy of the court judgement.
32. 838. As regards the dismissals of 12 people connected to the KAGEWC, the Committee takes due note of the illegal activities that the Government states these individuals have committed, including the attempt to establish a trade union, the holding of illegal outdoor assemblies, the break-in at the offices of the Minister of Government and Home Affairs (MOGAHA) and consequent damage, the illegal decision to go on a general strike and the taking of annual leave and absences, without permission, so as to wage that strike. The Government states that, in order to restore order and discipline in the public service, 12 public officials were subject to punishment according to the related law, followed by a decision by the disciplinary committee. Four of these were reinstated following a request for examination. One worker, Oh Myeong-nam, has received his final dismissal sentence from the Supreme Court. The other cases are pending administrative litigation and request for examination.
33. 839. The Committee deeply regrets that a number of the difficulties faced by these 12 public servants appear to be due to the absence of legislation ensuring their basic rights of freedom of association, in particular the right to form and join organizations of one’s own choosing, respect for which has been called for by the Committee ever since its first examination of this case. In this respect, the Committee refers to its conclusions in paragraphs 814-819 above. The Committee requests the Government to provide information on the outcome of the administrative litigation and requests for examination under way, as well as a copy of the Supreme Court judgement in the case of Oh Myeong nam.
34. * * *
35. 840. The Committee must observe with regret that, while the Government has, over recent years, been expressing its willingness to resolve the pending issues at hand in this case, no progress has actually been made in this respect since the adoption of the TULRAA. While many of the remaining issues are admittedly complex and do not lend themselves to simple resolution, the Committee is convinced that the quicker a solution can be found to these matters which is acceptable to the parties concerned and in conformity with internationally accepted freedom of association principles, the better it will be for the overall industrial relations climate in the country. The Committee therefore urges the Government to take all possible steps to accelerate this process, while ensuring full consultation throughout with all the social partners concerned, including those not represented on the Tripartite Commission.