Informe provisional - Informe núm. 371, Marzo 2014

1. 239. The Committee last examined this case at its March 2013 meeting, when it presented an interim report to the Governing Body [see 367th Report, paras 532–559, approved by the Governing Body at its 317th Session (March 2013)].
2. 240. The Government forwarded its response in a communication dated 20 February 2014.
3. 241. 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. 242. In its previous examination of the case in March 2013, the Committee made the following recommendations [see 367th Report, para. 559]:
   • (a) The Committee once again urges the Government to refrain from any measures which might involve a risk of serious interference with trade union activities and might lead to the arrest and deportation of trade union leaders for reasons related to their election to trade union office.
   • (b) The Committee expects that the relevant Supreme Court proceedings relating to Mr Catuira’s case will be concluded in an expeditious manner and requests the Government to supply the ruling as soon as it is issued. In particular, the Committee considers it necessary that the Supreme Court specifically address the question as to whether the steps to deport Mr Catuira – both in February 2011 and in April 2012 – were taken on the grounds of his legitimate trade union activities and trade union functions. Further noting that a complaint on this matter was filed with the NHRC by migrants’ rights activists on 1 May 2012, the Committee requests the Government and the complainant to keep it informed of any developments in this regard, and to provide any other information related to this case.
   • (c) The Committee once again expresses its firm expectation that the Government will proceed with the registration of the MTU without further delay, and supply full particulars in relation to this matter.
   • (d) The Committee firmly expects that the judgment concerning the MTU’s status will be rendered without further delay and once again requests the Government to ensure that the Committee’s conclusions, particularly those concerning the freedom of association rights of migrant workers, are submitted for the Supreme Court’s consideration and to provide a copy of the Supreme Court’s decision once it is handed down.
   • (e) The Committee once again requests the Government to undertake an in-depth review of the situation concerning the status of migrant workers in full consultation with the social partners concerned, so as to fully ensure and safeguard the fundamental rights to freedom of association and collective bargaining of all migrant workers, whether in a regular or irregular situation and in conformity with freedom of association principles, and to prioritize dialogue with the social partners concerned as a means to find negotiated solutions to the issues faced by these workers. The Committee once again requests to be kept informed of the progress made in this regard.

B. The Government’s reply

1. 243. In regard to Mr. Catuira’s case, the Government indicates that, on 27 September 2012, the Supreme Court turned down Mr Michel Catuira's appeal against the decision of the Seoul High Court. According to the Government, the Supreme Court stipulated in its ruling that the decision of the Seoul High Court had not been affected by any fault of going beyond the limits of the principle of free evaluation of evidence to recognize facts in violation of the principles of logic and experience or misunderstanding, or failing to consider, the legal principles of section 89(1) No. 2 of the Immigration Control Law (“Where it is found that permission, etc. had been obtained by false or other unlawful means”), the principles of trust protection in the cancellation of profitable administrative action, the legal principles related to limits to discretionary authority, workers’ right to organize and their right to collective action. The Government therefore considers that the denial of entry of Mr Catuira is legitimate based on related laws and has nothing to do with his union activities.
2. 244. Furthermore, concerning the complaint filed by Mr Catuira to the National Human Rights Commission of Korea (NHRCK) on 1 May 2012, arguing that the Immigration Office’s denial of entry constitutes a human rights violation, the Government reports that the NHRCK decided on 24 July 2012 that the case was not a matter of human rights but immigration rules and, therefore, dismissed the complaint considering that the case was pending in court.
3. 245. As to the status of the Migrants’ Trade Union (MTU), the Government indicates that the Supreme Court has yet to hand down a ruling on the case concerning the establishment of the MTU, which has been pending before the court since 23 February 2007. It is expected that the Court decision will be rendered soon as not only the parties involved, such as the Government and the MTU, but also the Committee on Freedom of Association, civic groups as well as workers’ and employers’ organizations at home and abroad are awaiting it. The Government adds that this case is related to the establishment of a trade union by foreign workers without valid working visa. The Government wishes to reiterate that foreign workers who are staying in the Republic of Korea with legitimate status are granted the same labour rights as Korean workers including the right to establish a trade union and the right to collective bargaining. For instance, in February 2011, a group of foreign English instructors in Gwangju formed a trade union, submitted a report in this regard and received a union establishment certificate.

C. The Committee’s conclusions

1. 246. The Committee recalls that this case concerns allegations that, against a background of an allegedly generalized discrimination against migrant workers intended to create a low wage and easily exploitable labour force, the Government refused to register the MTU and carried out a targeted crackdown on the MTU by successively arresting its officers and subsequently deporting many of them.
2. 247. The Committee notes that the Government indicates that: (i) on 27 September 2012, the Supreme Court turned down Mr Catuira’s appeal stipulating that the decision of the Seoul High Court had not been affected by any fault of going beyond the limits of, or failing to consider, certain principles, including the legal principles of section 89(1) No. 2 of the Immigration Control Act (permission obtained by false or other unlawful means), the legal principles related to limits to discretionary authority, the workers’ right to organize and their right to collective action; and that the denial of entry of Mr Catuira is thus legitimate and not related to his union activities; (ii) on 24 July 2012, the NHRCK also dismissed Mr Catuira’s complaint in this regard stating that the case was not a matter of human rights but immigration rules; (iii) the Supreme Court is expected to soon render a ruling on the case concerning the status of the MTU, which is related to the establishment of a union by foreign workers without valid working visa; and (iv) foreign workers with legitimate status are granted the same labour rights as Korean workers including the right to establish a trade union.
3. 248. While taking due note of the judicial developments relating to Mr Michel Catuira, former President of the MTU, the Committee recalls the overall framework of this long-standing case in which, against a background of allegedly generalized discrimination against migrant workers, the Government’s refusal to register the MTU went hand in hand with successively arresting the previous MTU Presidents and other trade union officials, and subsequently deporting many of them [see 358th Report, para. 455], including, most recently, Mr Catuira.
4. 249. With respect to the Government’s statement that the MTU case is related to the establishment of a union by foreign workers without a valid working visa, the Committee wishes to recall the complainants’ earlier allegations that the MTU is cultivating new leadership and documented migrant workers are serving as union officers, and that the antagonistic position of the Government continues to impede the union’s daily activities due to widespread fear among the membership and potential membership that active participation in the union would lead to arrest and deportation. According to the allegations, this sense of intimidation is true not only among undocumented migrant workers, but also among documented migrant workers who recognize that their legal status does not render them immune to government targeting and harassment (see 355th Report, paras. 685 and 704).
5. 250. In particular, the Committee observes, as it is already done in a previous examination of the case (see 353rd Report, para. 792), that: (i) the MTU’s first President, Mr Anwar Hossain, was arrested on 14 May 2005, eleven days after notifying the creation of the MTU with him as President to the Seoul Regional Labour Office, and after having been working in the country for almost ten years without any apparent incident; (ii) the MTU’s second President Kajiman Khapung was arrested four months after the departure of Anwar Hossain, on 27 November 2007, along with Vice President Raju Kumar Gurung and General Secretary Abul Basher Maniruzzaman (Masum), after having spent 15 years and nine months, seven years and seven months and 11 years and three months, respectively, in the Republic of Korea; they were subsequently deported to their home countries; (iii) the MTU’s third President, Torna Limbu, was arrested on 2 May 2008, along with Vice President Abdus Sabur, less than a month after their election to the leadership of the MTU and after having spent 16 years and four months and nine years and two months, respectively, in the Republic of Korea; they were subsequently deported.
6. 251. Observing that the Presidents of the MTU, along with other MTU officials, have been systematically arrested shortly after their election to trade union office and despite the fact that they had been in the country for many years, the Committee regrets that no detailed information was provided, clearly demonstrating that Mr Catuira’s deportation was unrelated to his trade union function and activities. Recalling its previous recommendation concerning Mr Catuira’s case where the Committee considered it necessary that the Supreme Court specifically address the question as to whether the steps to deport Mr Catuira were taken on the grounds of his legitimate trade union activities and trade union functions, the Committee remains concerned at what appears to have been a summary dismissal of Mr Catuira’s case by the Supreme Court without any detailed information being provided on the review and consideration of this issue. The Committee requests the Government to provide the decisions of the Supreme Court and of the National Human Rights Commission of Korea concerning the complaint filed by Mr Catuira. It also invites the complainants to provide any additional information they consider may assist the Committee’s understanding in this regard. The Committee generally once again urges the Government to refrain from any measures which might involve a risk of serious interference with trade union activities and might lead to the arrest and deportation of trade union leaders for reasons related to their election to trade union office. Moreover, the Committee considers that the general context recalled above highlights all the more the utmost importance of the determination by the Supreme Court of the status of the MTU, so as to ensure that its future trade union leaders will be adequately protected.
7. 252. In this regard, the Committee deeply regrets that the appeal filed by the Government against the Seoul High Court’s decision in favour of the MTU, is still pending before the Supreme Court, more than seven years after the appeal. The Committee once again recalls, as it had in its previous examinations of this case, the general principle according to which all workers, without distinction whatsoever, including without discrimination in regard to occupation, should have the right to establish and join organizations of their own choosing [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 216]. The Committee further recalls that when examining legislation that denied the right to organize to migrant workers in an irregular situation – a situation maintained de facto in this case – it has emphasized that all workers, with the sole exception of the armed forces and the police, are covered by Convention No. 87, and it therefore requested the Government to take the terms of Article 2 of Convention No. 87 into account in the legislation in question [see Digest, op. cit., para. 214]. The Committee also recalls the resolution concerning a fair deal for migrant workers in a global economy adopted by the ILO Conference at its 92nd Session (2004) according to which “[a]ll migrant workers also benefit from the protection offered by the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up, 1998. In addition, the eight core ILO Conventions regarding freedom of association and the right to bargain collectively, non-discrimination in employment and occupation, the prohibition of forced labour and the elimination of child labour, cover all migrant workers, regardless of status” (paragraph 12).
8. 253. In the light of the principles enunciated above, the Committee once again firmly expects that the Government will proceed with the MTU’s registration without any further delay and supply full particulars in relation to this matter. It once again firmly expects that the judgment concerning the MTU’s status will be rendered without further delay and urges the Government to ensure that the Committee’s conclusions, particularly those concerning the freedom of association rights of migrant workers, are submitted for the Supreme Court’s consideration, and to provide a copy of the Supreme Court’s decision once it is handed down.
9. 254. The Committee also urges the Government to undertake an in-depth review of the situation concerning the status of migrant workers in full consultation with the social partners concerned, so as to fully ensure and safeguard the fundamental rights to freedom of association and collective bargaining of all migrant workers, whether in a regular or irregular situation and in conformity with freedom of association principles, and to prioritize dialogue with the social partners concerned as a means to find negotiated solutions to the issues faced by these workers. The Committee once again requests to be kept informed of the progress made in this regard.