Informe definitivo - Informe núm. 384, Marzo 2018

1. 286. The complaint is contained in a communication dated 16 January 2017 from the International Union of Food Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Association (IUF).
2. 287. The Government sent its observations in a communication dated 28 September 2017.
3. 288. The Republic of Korea has not ratified 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. The complainant’s allegations

1. 289. In its communication dated 16 January 2017, the IUF alleges that the amendments to the Trade Union and Labour Relations Adjustment Act (TULRAA), which came into effect in July 2011, while lifting the enterprise-level ban on multiple trade unions, they granted employers discretionary powers which, in conjunction with the absence of enforcement provisions to guarantee effective representation and bargaining rights and protection against acts of discrimination for minority unions and their members, prevent workers from enjoying their freedom of association and collective bargaining rights.
2. 290. According to the complainant, the developments at the Sejong Hotel (hereinafter: the hotel) make evident these obstacles to freedom of association and collective bargaining and the effective protection of trade union rights. The complainant explains that the Sejong Hotel Labor Union (SHLU) was established in 1975. It is affiliated to the IUF through its membership in the Korean Federation of Service Workers’ Unions. The IUF indicates that until 2011, the SHLU regularly negotiated and renewed a two-year collective agreement with the management of the hotel. The IUF alleges that following the amendment of the TULRAA, the management of the hotel began to actively undermine the SHLU by discriminating against its leaders and members and supporting a rival organization.
3. 291. The complainant alleges that, soon after the wage negotiation formally began on 21 June 2011, union members were informed by their managers that a new union was being established and were urged to join the new organization. According to the complainant, on 1 July 2011, the Sejong United Union (SUU) held a founding congress in the hotel, an event which could only have taken place at the venue with the explicit approval of the management. The complainant alleges that, on 5 July 2011, the hotel management unilaterally ended the bargaining process with the SHLU. On 11 July 2011, 120 out of the 207 SHLU members resigned from the union. The union believes that the withdrawals were in response to pressure from the management.
4. 292. The complainant indicates that the management’s unilateral termination of ongoing negotiations was successfully contested in the Seoul Central District Court, which on 12 November 2011 confirmed the SHLU’s role as a bargaining representative on the basis that negotiations had begun before 1 July 2011. Following the court decision, the bargaining resumed but had quickly deadlocked, prompting the SHLU to hold a legally authorized 38 day strike beginning on 2 January 2012. The strike ended following an agreement with the management. The IUF indicates that, in the run-up to the strike, 12 SHLU members had resigned from the union citing pressure from the management. The complainant alleges that SHLU members and officers have received no legal protection under the new legislation.
5. 293. The complainant further denounces punitive transfers and demotion of SHLU members. It alleges, in particular, that six SHLU members, including Vice-President Jubo Cho, were transferred or demoted in September 2011 after the union had contested discrimination against precarious room attendants and unilateral changes to allowances paid to sales employees. The complainant indicates that, on 29 November 2011, the Seoul Regional Labour Relations Commission rejected the union’s claim that the transfers of Jubo Cho and other workers were unfair and constituted unfair labour practices. The complainant alleges that this decision opened the door for more pressure on the union.
6. 294. The complainant further alleges that, despite the no-reprisals agreement with the management which ended the strike, Jubo Cho and the union organizing officer Gwanghyeon Baek were suspended from work in February 2012 for six and one months, respectively. The complainant adds that SHLU members Junsu Park and Dujin Oh were unfairly transferred in April and May 2012, respectively, and that the following month, the management unilaterally terminated the employment contract with Yunhui Yu after refusing to convert her status to permanent. The complainant alleges that the pressure on the SHLU continued in 2013 when the management unfairly transferred Yonggi Kim and Hyeongrae Kim, active SHLU members who took part in the strike. The complainant adds that the management also transferred Dongsin Lee, Jubo Cho’s wife from finance department to room cleaning. The SHLU believes this transfer to be retaliatory. The complainant also alleges that in 2014 two SHLU members, Hyeongrae Kim and Seunghyeop Lee, were transferred and that Mr Kim returned to his original job only after leaving the union at the end of 2014.
7. 295. According to the complainant, the management profited from the union’s declining membership and the prevailing atmosphere of intimidation to come to an agreement with the SUU in June 2014 which nullified the job security agreement negotiated with the SHLU. The IUF alleges that a revised collective bargaining agreement negotiated in August 2014 with the SUU imposed limitations on union membership by excluding section chiefs, including SHLU members, and thus further restricting eligibility in the bargaining unit.
8. 296. The complainant further denounces a series of unfair practices and transfers of SHLU members:
   • ■ 12 January 2015: transfer of SHLU President, Jinsu Ko, Jubo Cho and former SHLU President, Sangjin Kim.
   • ■ 16 January 2015: Daeyeol Chang was compelled to resign after his salary was dramatically reduced.
   • ■ 1 June 2015: transfer of Gwanghyeon Baek and Jubo Cho, who also received, in July 2015, a four-month pay cut for supporting an ongoing union protest.
   • ■ 20 August 2015: transfer of Gisu Kim.
9. 297. The complainant alleges that the management escalated the pressure on the SHLU on 19 September 2015 by taking a legal action against its members Yunhui Yu and Dongsin Lee, who had filed civil lawsuits to invalidate their dismissals. The complainant explains that when the court failed to uphold their complaints of unjust dismissal, the hotel claimed the cost of procedure and seized Yunhui Yu’s bank account and prepared to seize the account of the other plaintiff. The union decided to bear the cost of the procedure.
10. 298. The IUF further alleges that, in April 2016, former SHLU President, Sangjin Kim, was dismissed. Kim had been the President of the union from February 2006 through December 2014 and returned to his original job when he relinquished the office. On 12 January 2015 he was transferred to the position of a waiter, a job he had never performed. After 15 months of resisting the transfer and continuing to defend the rights of SHLU members he was terminated on disciplinary grounds. The union filed a complaint with the Seoul Regional Labour Relations Commission on 19 July 2016 alleging unfair dismissal and unfair labour practices. The Commission rejected the complaint on 19 September 2016 and the National Labour Relations Commission rejected the union’s request for a retrial on 11 January 2017.
11. 299. The complainant alleges that the management has consistently rejected collective bargaining with the SHLU, which the law in principle allows, arguing that the union minority status gives the management a discretionary authority under the TULRAA to negotiate solely with the SUU which was established on the same day the new legislation took effect. The IUF further adds that, on 26 August 2015, the SHLU called on the management to resolve the long series of disputes through collective bargaining and submitted its proposals. The management had rejected the request, arguing that negotiations would breach the single bargaining channel established by the TULRAA. The management had also failed to reply to a second request for collective bargaining on 15 September 2015.
12. 300. The IUF alleges that the chronicle of events described in its complaint demonstrates that the amended TULRAA, which in principle should have removed long-standing obstacles to freedom of association and brought about a more robust collective bargaining environment, has instead produced the opposite result at the hotel, owing to deficiencies in the law itself and a permissive legal system which has not effectively protected the rights of the union and its members. The complainant adds that the hotel management has availed itself of these weaknesses to unilaterally exclude a representative union from the collective bargaining process and to harass, transfer, intimidate and dismiss union members and officers. The IUF further alleges that with the support of a compliant organization, which the management sponsors and supports, the latter has substantially reduced remuneration for many categories of workers (in some cases by as much as by 10–30 per cent) while increasing employment insecurity through the expansion of “irregular” employment contracts. The complainant alleges that the number of directly employed workers at the hotel has decreased from 250 in 2011 to 140 in 2016 which raised new obstacles to union organization and bargaining. In the complainant’s opinion, while the 2011 law allows for the unions to agree on a joint bargaining representation, the amendments leave the management unacceptable latitude to unilaterally determine its bargaining partners. It alleges that where the management can establish a compliant union to generate instantaneous “multiple unions”, agreement on joint bargaining remains purely theoretical.
13. 301. The IUF calls on the Committee to urge the Government to review the TULRAA amendments to fully guarantee representation rights to all unions and their members, and to ensure adequate protection against acts of anti-union discrimination. The IUF considers that the Government should be requested to take all necessary measures to ensure that the management of the hotel enters into good faith negotiations with the SHLU to resolve all outstanding issues, including through compensation of trade union members who have suffered from the loss of employment or degradation of working conditions.

B. The Government’s reply

1. 302. By a communication dated 28 September 2017 the Government transmits its observations on the allegations in this case and emphasizes its continuous efforts to promote workers’ fundamental labour rights and indicates that it respects all workers’ organizations, including the SHLU, as partners in the effort to enhance labour relations. The Government disputes the facts as presented by the IUF and relates its views as follows.
2. 303. With regard to the allegation that the single bargaining channel system introduced under the revised TULRAA has caused a series of problems, the Government explains that the system was designed to allow only one representative bargaining union designated, according to the prescribed procedures, to be in charge of the collective bargaining at each enterprise where there are at least two unions established by workers. It further explains that this system was introduced to protect the working conditions of all union members, including members of minority unions, to guarantee workers’ rights to freely establish unions at the enterprise level and to address any side effects of union pluralism, such as higher bargaining costs. It further states that under this system, minority unions that have not been able to become representative are not allowed to have exclusive collective bargaining rights. In the Government’s view, this is an inevitable aspect of collective bargaining rights in practice. In this respect, it refers to the situation in other countries where different bargaining channels are unified and a representative bargaining union has an exclusive right to bargain with the employer at the enterprise level. The Government explains that the TULRAA allows minority unions to participate in the process of deciding the representative bargaining union, from autonomous unification of different channels to the composition of the bargaining representatives, ensuring that the representative bargaining union stands on equal footing with the employer. The Government also indicates that the law recognizes minority unions as an important part of the representative bargaining union, allowing them to enjoy the outcomes achieved by the representative bargaining union.
3. 304. Furthermore, the Government states that it has been implementing various supplementary measures to address problems that might arise from the single bargaining channel system. It explains, in particular, that under the TULRAA, although the single bargaining channel system should be applied in principle, autonomous bargaining (not going through the single bargaining channel system) is also permitted with the employer’s consent. If there is any need for multiple bargaining channels due, for example, to a huge gap between unions in working conditions, the single bargaining channel may be divided into multiple channels under the Act. Moreover, to protect minority unions, the employer and the representative bargaining union are obligated to fulfil the duty of fair representation (which prohibits them from discriminating against any union which participates in the process of unifying bargaining channels or any member of such a union). The Government believes that this system is in conformity with the relevant freedom of association principles and indicates that it is working to ensure that the new system takes root in order to protect collective bargaining rights of minority unions and build win-win labour–management relations based on dialogue.
4. 305. As regard unfair transfers, dismissals and practices alleged by the complainant, the Government indicates that two members of the SHLU, Yoo and Lee, filed a lawsuit demanding that their dismissals be nullified. In May 2015, in its final judgment, the Seoul High Court rejected the plaintiffs’ demands. The Government also indicates that the former leader of the SHLU, Kim, requested a second trial by the National Labour Relations Commission, seeking remedies against the employer’s alleged unfair labour practices and dismissals. In January 2017, the Commission ruled that the employer dismissed the workers for their long term absence without notice in response to the employer’s reasonable transfer decisions and that such disciplinary dismissals cannot be seen as unfair dismissals or unfair labour practices. The Government indicates that, since 27 February 2017, this decision is pending in appeal before an administrative court.
5. 306. The Government adds that it will take the necessary measures, such as implementing on-site guidance and inspections, and make institutional improvements to prevent the adverse effects (unfair dismissals, unfair labour practices and discrimination against minority unions) of the single bargaining channel system.
6. 307. The Government transmits the observations of the Korea Employers Federation (KEF) on the issues raised in this case. In its observations, the KEF considers that the unified bargaining channel system corresponds to the ILO standards as the bargaining rights are granted to a representative trade union while operations of minority trade unions are guaranteed. It indicates that the Constitutional Court of the Republic of Korea ruled that the unified bargaining channel system is constitutional. The KEF considers that if the unified bargaining channel system is abolished and a free/voluntary bargaining system is introduced, there would be confusion in industrial sites and the position of minority trade unions would be weakened due to the power struggles.
7. 308. The KEF provides the observations of the Sejong Investment Development Inc. (hereinafter; the company) on the allegations involving the hotel. At the outset, the company points out that the allegations submitted to the Committee have also been examined by the Court of the Republic of Korea and the Labour Commission, which rejected the SHLU’s claims. Referring to the experience in various countries, it further points out that the ILO acknowledges that both multiple individual bargaining systems and exclusive negotiation by a representative trade union are in accordance with freedom of association. It adds that the most representative trade union should be selected in practice in order to promote cooperative collective bargaining and prevent conflicts, and that the Government has to make neutral rules to select a representative trade union. The company is of the view that the unified bargaining channel system is highly necessary, in particular in countries which have recently introduced multiple trade union systems in order to prevent confusion.
8. 309. Regarding the allegation that the TULRAA fails to guarantee effective representation, bargaining rights and protection against acts of discrimination for minority trade unions and their members, the company considers that the TULRAA bans employers from dominating or interfering in the organization or operation of trade unions. It refers in this respect to sections 81.4 and 90 of the TULRAA which stipulate that “employers shall not conduct any act of domination or interference in the organization or operation of a trade union by workers” and that “a person who violates sections 44(2), 69(4), 77 or 81 shall be punished by imprisonment of not more than two years or by a fine not exceeding KRW20 million”. Furthermore, according to section 29-2 of the TULRAA, a representative trade union is selected based on a democratic process and employers do not have discretionary authority to select a representative trade union to bargain with. The company further points out that the Court of the Republic of Korea considers discrimination between multiple trade unions to be an unfair labour practice (domination or interference in the organization or operation of a trade union). It refers in this respect to section 29-4 of the TULRAA which stipulates that “a representative bargaining trade union and an employer shall not discriminate against trade unions …”
9. 310. Regarding the allegation of anti-union actions against the SHLU, the company explains that the SHLU, affiliated to the Korean Confederation of Trade Unions (KCTU), used to be the only trade union in the hotel. However, as a multiple trade union system was introduced on 1 July 2011, another trade union, the SUU, was established under the Federation of Korean Trade Unions (FKTU). The SUU became the majority trade union as well as a representative trade union since members from the SHLU joined the SUU. The company argues that it is hard to tell the relationship between the SHLU and the SUU, but the majority of the SHLU members seemed tired of struggles and decided to withdraw from the union. The company indicates in this respect that the Court of the Republic of Korea and the Labour Relations Commission (on 29 November 2011 and 3 Avril 2015, respectively) rejected the SHLU’s claim that the management carried out unfair labour practices in order to weaken the SHLU.
10. 311. Concerning the allegation of unilateral termination of ongoing negotiations between the management and the SHLU, the company confirms that the management had stopped collective bargaining with the SHLU after the establishment of the SUU and once the Ministry of Employment and Labour (MOEL) made a decision that the SHLU was no longer representative and therefore did not have the right to collective bargaining with the management. The company argues that section 4 of the addenda to the revised TULRAA stipulates that “a trade union which is under collective bargaining at the time this Act enters into force shall be deemed a representative trade union under this Act”. The MOEL interpreted the wording “at this time this Act enters into force” to mean “this Act shall enter into force on 1 January 2010”, pursuant to section 1 of the addenda of the revised TULRAA. Hence, according to the administrative interpretation, the SHLU was not a representative trade union bargaining collectively with the hotel at the time the revised TULRAA entered into force on 1 January 2010. Collective bargaining between the hotel and the SHLU was initiated on 21 June 2011. The hotel had to stop collective bargaining with the SHLU because the union was no longer a representative trade union pursuant to the revised TULRAA. Afterwards, the Court of the Republic of Korea confirmed the SHLU’s role as bargaining representative on the basis that negotiations had begun before 1 July 2011. The bargaining resumed following the court decision. The company further explains that most companies in the country were in a similar situation where they could only rely on the administrative interpretation of the MOEL before the Court ruled on the interpretation of section 4 of the revised TULRAA. Therefore, the fact that the company stopped the collective bargaining with the SHLU based on the administrative interpretation of the MOEL was not an anti-union action.
11. 312. Regarding the 38-day strike by the SHLU which began on 2 January 2012 and ended through an agreement with the management, the company argues that it was illegal because the purpose of the strike was to demand withdrawal of non-regular employment and job transfers, which cannot be the subject of collective bargaining. It refers in this respect to the 1999 Supreme Court’s ruling which considered that “industrial actions are legitimate only when it is authorized by an established labour union in accordance with the regulations of the Labour Union Act. However, industrial actions are not legitimate if they are conducted by a group of employees not yet established as a labour union. Industrial actions are designed to accomplish their claims concerning working conditions by executing collective bargaining agreements. Industrial actions by persons not subject to collective bargaining (e.g., a temporary body for industrial actions) cannot be allowed in order to provide assistance in the settlement of industrial disputes. Accordingly, it is necessary to prevent any irresponsible industrial action by such a group”.
12. 313. Concerning the allegations of unfair suspension of union leaders Jubo Cho and Gwanghyeon Baek on 12 February 2012, the company states that disciplinary actions were carried out because the workers refused to follow the transferring orders before the strike and thus, the disciplinary actions had nothing to do with the above mentioned action. Regarding Ms Yunhui, whose employment contract was terminated, the company states that her work performance was poor and thus, she could not be converted to regular status. The Court of the Republic of Korea considered that the management’s decision not to convert her employment to regular status was appropriate due to her poor work performance and had nothing to do with the participation in the strike.
13. 314. Regarding the allegations that the management unfairly transferred members of the SHLU in order to weaken the union, the company argues that the hotel transferred workers regardless of their union membership to maximize the efficiency of its HR management. In this regard, on 29 November 2011, the Seoul Regional Labour Relations Commission rejected the union’s claim that the transfers of Jubo Cho and other workers were unfair and constituted unfair practices. The Seoul High Court ruled on 13 May 2015 that the transfer of Dongsin Lee was rather beneficial for her because the hotel intended to give her work that a physically disadvantaged worker can do, and therefore the transfer was appropriate.
14. 315. Concerning the allegation of unfair dismissal of the former SHLU President, Sangjin Kim, the company indicates that both the Seoul Regional Labour Relations Commission and the National Labour Relations Commission on 19 September 2016 and 11 January 2017, respectively, rejected the complaint of unfair dismissal and unfair practices and ruled that his transfer was appropriate.
15. 316. As regards the allegation that Jubo Cho and Gwanghyeon Baek were forcibly transferred on 1 June 2015 and that in July 2015 Mr Cho received a pay cut for supporting ongoing union protest, the company indicates that the Seoul Regional Labour Relations Commission made a decision on 19 May 2017 that the management’s adjustment of wages for the SHLU members was not a discrimination, nor an unfair labour practice.
16. 317. Concerning the allegations that the hotel refused to bargain collectively with the SHLU on 26 August 2015, the company argues that according to the TULRAA, an employer can only bargain with a representative trade union.
17. 318. With regard to the allegation that the management supported the SUU to undermine the SHLU and degraded the working conditions at the hotel by reducing the number of regular workers, the company states that the number of regular workers decreased due to their voluntary resignation to move to other hotels and advised resignation in the wake of managerial difficulties in the company.

C. The Committee’s conclusions

1. 319. The Committee notes that the complainant in this case alleges that the TULRAA, as amended in 2010, restricts the collective bargaining rights of minority unions thereby leaving employers discretionary powers as to which union to negotiate with and leads to discrimination of and pressure on members of minority trade unions. To illustrate its allegation, the complainant refers to the situation at the hotel.
2. 320. The Committee notes the Government’s reply on the allegations in this case and the observations of the KEF, which also outlined the views of the company which owns the hotel, transmitted by the Government.
3. 321. Regarding the allegation pertaining to the amended TULRAA, the Committee notes that, as indicated by both the complainant and the Government, while the TULRAA opened the way for trade union pluralism at the enterprise level, it conferred exclusive bargaining rights to a representative union. The autonomous bargaining, that is when all unions bargain on behalf of its members, remains possible, but the employer’s consent is required. The Government considers that this is in conformity with the principles of freedom of association and collective bargaining. In this respect, the Committee recalls that systems of collective bargaining with exclusive rights for the most representative trade union and those where it is possible for a number of collective agreements to be concluded by a number of trade unions within a company are both compatible with the principles of freedom of association [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 950]. The Committee therefore considers that a system granting exclusive collective bargaining rights to a representative trade union currently provided for by the TULRAA is compatible with the principles of freedom of association. The Committee recalls that in Case No. 1865 concerning the Republic of Korea it had examined the amended TULRRA and on that occasion welcomed the introduction of trade union pluralism at the enterprise level. The Committee understood that in introducing pluralism, the Government had sought to implement a system that would bear in mind the particularities of the Korean situation and that consultations had taken place with the social partners for over a decade on the type of system to be introduced, even though not all partners may be satisfied with the results. With regard to the provisions of the revised TULRAA concerning the unification of the bargaining channel, the Committee requested the Government to take all the necessary measures to ensure that 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. While noting with concern the numerous and detailed allegations of unfair labour practices upon the introduction of the unified bargaining channel system, the Committee welcomed the Government’s indication of its zero tolerance policy and the establishment of an Internet reporting centre (see Case No. 1865, 363rd Report, paras 115–117).
4. 322. The Committee notes that the complainant considers that the new system has facilitated anti-union discrimination and interference in internal trade unions affairs and leads to the violation of trade union rights in practice. The complainant refers in this respect to the situation of the SHLU. According to the complainant, following the entry into force of the amended TULRAA, the hotel management promoted the establishment and functioning of a “compliant” union – the SUU – at the expense of the SHLU; and pressured the SHLU members to change their trade union affiliation by using unfair labour practices (transfers, pay cuts and dismissals), which led to the decline of union membership and resulted in the situation where the employer could legally refuse and did refuse to bargain collectively with the SHLU.
5. 323. Regarding the first allegation, the Committee understands from the information available to it that the SUU, affiliated to the FKTU, was established on 1 July 2011, that is the date on which the amended TULRAA entered into force and allowed the creation of multiple trade unions at the enterprise level. According to the complainant, the fact that the SUU held its founding meeting at the hotel premises indicates the approval and favouritism of the new union by the management. It contends that the ensuing unfair labour practices were designed to weaken the SHLU. The complainant refers to a collective agreement signed with the SUU which allegedly imposed limitations on union membership by excluding section chiefs and thus further weakened the SHLU membership. While the Committee observes that the Government did not provide its observations on this particular allegation, it understands from the explanation provided by the KEF that the Court of the Republic of Korea and the Labour Relations Commission (on 29 November 2011 and 3 Avril 2015, respectively) rejected this claim. Unless further information is provided by the complaint regarding the effects of above mentioned collective agreement, the Committee will not pursue its examination of this matter.
6. 324. The Committee notes the following allegations of unfair labour practices (transfers, demotions, suspensions, pay cuts and dismissals) against its members and leaders:
   • ■ Transfers of six SHLU members, including Vice-President, Jubo Cho in September 2011. On 29 November 2011, the Seoul Regional Labour Relations Commission rejected the claims that these transfers constituted unfair labour practices.
   • ■ Suspension for six and one months, respectively, of Jubo Cho and organizing officer of the union, Gwanghyeon Baek, in February 2012.
   • ■ Transfer of Junsu Park and Dujin Oh in April and May 2012.
   • ■ Unilateral termination of contract with Yunhui Yu after refusing to convert her employment to permanent in June 2012. The Committee notes the KEF’s indication that the court has considered the management’s decision to be appropriate based on her poor work performance.
   • ■ Transfer of Yonggi Kim and Hyeongrae Kim in 2013 for their participation in a strike.
   • ■ Transfer of Dongsin Lee. The Committee notes the KEF’s indication that the Seoul High Court ruled on 13 May 2015 that her transfer was appropriate as it took into account her “physical disadvantage”.
   • ■ Transfer of Hyeongrae Kim and Seunghyeop Lee in 2014. According to the complainant, Mr Kim returned to his original job only after leaving the union at the end of 2014. According to the Government, the Seoul High Court rejected Lee’s demand to annul the dismissal.
   • ■ Transfer of SHLU President, Jinsu Ko, Jubo Cho and former SHLU President, Sangjin Kim on 12 January 2015.
   • ■ Daeyeol Chang was compelled to resign after his salary was dramatically reduced on 16 January 2015.
   • ■ Transfer of Gwanghyeon Baek and Jubo Cho on 1 June 2015.
   • ■ Four-month pay cut received by Jubo Cho for supporting an ongoing union protest in July 2015. The Committee notes that according to the KEF, in its 19 May 2017 decision, the Seoul Regional Labour Relations Commission considered that the management’s adjustment of wages of SHLU members was neither discrimination nor an unfair labour practice.
   • ■ Transfer of Gisu Kim on 20 August 2015.
   • ■ Dismissal of former SHLU President, Sangjin Kim, in April 2016. The Committee notes that, according to the complainant, the Seoul Regional Labour Relations Commission dismissed his complaint alleging unfair dismissal and unfair labour practices. The National Labour Relations Commission rejected the union’s request for a retrial on 1 January 2017. According to the Government, the decision is now pending in appeal before an administrative court.
7. 325. At the outset, the Committee recalls that anti-union discrimination is one of the most serious violations of freedom of association, as it may jeopardize the very existence of trade unions. No person shall be prejudiced in employment by reason of trade union membership or legitimate trade union activities, whether past or present. It further recalls that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions [see Digest, op. cit., paras 769, 770 and 799].
8. 326. The Committee further recalls that respect for the principles of freedom of association clearly requires that workers who consider that they have been prejudiced because of their trade union activities should have access to means of redress which are expeditious, inexpensive and fully impartial [see Digest, op. cit., para. 820]. The Committee observes that mechanisms to examine complaints of anti-union discrimination exist in the country and have been used by the SHUL to contest dismissals, transfers and pay cuts referred to in this case.
9. 327. The Committee observes that all of the above alleged acts of anti-union discrimination took place rapidly after the entry into force of the amendments to the TULRAA allowing for pluralism at the enterprise level and which gave rise, in the case at hand, to the immediate creation of a new union in the hotel and recalls that acts of harassment and intimidation carried out against workers by reason of trade union membership or legitimate trade union activities, while not necessarily prejudicing workers in their employment, may discourage them from joining organizations of their own choosing, thereby violating their right to organize [see Digest, op. cit., para. 786]. In view of the information available, the Committee does not consider that it has sufficient information to conclude that the trade union rights of the SHUL members were not respected.
10. 328. Nevertheless, regarding these allegations and those of the refusal of the management to negotiate with the SHUL, the Committee notes the Government’s indication that it is conscious of the difficulties such a system may have in practice. The Committee notes with interest the Government’s statement that it will take the necessary measures, such as implementing on-site guidance and inspections, and make institutional improvements to prevent the adverse effects (unfair dismissals, unfair labour practices and discrimination against minority unions) of the single bargaining channel system. The Committee therefore encourages the Government to examine, in consultations with the social partners, the effect of the current collective bargaining system in practice with a view to providing for preventive measures against any adverse effects resulting in violation of freedom of association.