Demande directe (CEACR) - adoptée 2022, publiée 111ème session CIT (2023)

Convention (n° 81) sur l'inspection du travail, 1947 - République de Corée (Ratification: 1992)

Autre commentaire sur C081

Observation

Demande directe

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The Committee notes the observations of the Federation of Korean Trade Unions (FKTU), the Korean Confederation of Trade Unions (KCTU) and the Korea Enterprises Federation (KEF), communicated with the Government’s report, as well as the response of the Government.

Article 3 of the Convention. Primary functions of labour inspectors. 1. Supervision of trade union activities. In reply to the Committee’s previous comment, theGovernment indicates that the Ministry of Employment and Labour (MOEL) has taken efforts to guarantee the freedom of union activities and workers’ right to organize. The Government indicates that labour inspectors do not interfere in the internal affairs of union and with these organizations’ legitimate activities.

The Committee notes the observations of the KCTU according to which some of the administrative regulations regarding trade union activities are repealed by the current government. However, more than two-thirds of the prohibitions which are subject to criminal or administrative punishments, as provided for by the Trade Union and Labour Relations Adjustment Act (TULRAA), are applicable to trade unions and workers. Moreover, procedural issues and industrial actions are strictly regulated by the TULRAA. The KCTU states that according to the Work Guidelines for Labour Inspectors, labour inspectors are tasked to supervise the application of the TULRAA and therefore are called on to inspect trade union activities. The KCTU indicates that the Work Guidelines for Labour Inspectors have not been revised after the amendment of the TULRAA and after the ratification in 2021 of the ILO Fundamental Conventions on Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and on the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). In its reply, the Government indicates that the TULRAA primarily regulates employers’ unfair labour practices such as imposing unfair treatment on the organization or operation of a trade union, and refusal or delay in the execution of a collective agreement. The Government also indicates that statistics on cases clearly show that the penalty provisions under the TULRAA regulate employers not the unions. Out of more than 46,000 cases brought by labour inspectors in 2020, only one case concerned industrial acts by a union, whereas in more than 200 cases employers were charged with unfair labour practices against a union.The Committee requests the Government to continue to provide information on the supervision of the TULRAA by labour inspectors. It also requests once again that the Government provide information on the specific measures taken to ensure that supervision of trade union activities is carried out in relation to the protection of the rights of trade unions and their members, but does not take the form of acts of interference in their legitimate activities and internal affairs.

2. Dispute resolution. The Committee notes that in reply to its previous request, the Government indicates that labour inspectors immediately initiate investigations upon receiving complaints and issue correction orders once non-compliance is found. The Government also states, however, that when a worker autonomously settles with the employer and revokes the case, the labour inspector shall confirm the explicit will of the worker concerned. The Government indicates that, in accordance with section 109(2) of the Labour Standards Act, a public prosecution regarding the violation of payment of wages may not be raised against the clearly expressed will of the complainant. The Committee also notes the KCTU comments alleging delays in taking legal proceedings against employers regarding unfair labour practices, and the Government’s reply that a worker or labour union whose rights are violated due to unfair labour practices can apply for remedy to the Labour Rights Commission and can also request criminal punishment for the employer’s unfair labour practices or its non-compliance with an order of remedy. The Committee requests the Government to provide further information on the number of cases settled by voluntary conciliation between the concerned worker and employer, indicating the type or content of complaints involved. The Committee also requests once again the Government to provide information on the time and resources of the labour inspectorate spent on the settlement of disputes in relation to their primary duties as provided for in Article 3(1). Finally, the Committee requests the Government to provide information on how often workers or labour unions request criminal punishment and how often such punishment has been granted, including the nature of such punishments (fine, imprisonment, or both).

Articles 3(1) and 17. Activities of the labour inspectorate in the area of non-discrimination and prompt legal proceedings. In reply to the previous Committee’s comment, the Government indicates that labour inspectors particularly responsible for corrective action against discrimination are designated under each Regional Office. The Equal Treatment Team, composed of an inspector of Grade 6 and seven inspectors of Grade 7, are organized under the Regional Labour Division of Regional Offices, focusing on occasional inspections in the area of equality and non-discrimination. The Team carries out relevant inspections, issues correction orders and addresses cases to the Labour Relations Commission and court as necessary. It is also mandatory to include discrimination against temporary agency workers in the checklist of any regular inspection on illegal labour dispatch. The Committee also notes the statistical information provided by the Government in this regard. The Committee notes the Government’s information, which addresses its previous request.

Articles 5(a) and 7. Effective cooperation and adequate training. The Committee notes that in reply to its previous comment, the Government indicates that the MOEL has adjusted the internal administrative interpretations to correspond with the Supreme Court precedents. The Government also states that courses on legal interpretation of the Supreme Court precedents and case judgments relevant to labour relation laws are included in education programmes for labour inspectors. The Committee requests the Government to continue providing information on the training given to labour inspectors regarding correspondence with Supreme Court precedents, and to indicate whether internal administrative interpretations continue to be reviewed for their adherence to decisions of the judicial system.

Articles 5(a) and 17. Cooperation with other government services and judicial proceedings. In its previous comment, the Committee requested the Government to provide information concerning the outcome of the judicial proceedings for the cases referred following labour inspection. The Government indicates that cases related to law violations are subjected to correction orders or fines, or are referred to judicial proceedings following labour inspection procedures. According to the Government’s information, there were respectively 677 and 534 cases referred to judicial proceedings in 2019 and 2020 following labour inspection visits, mostly concerning violations of the Labour Standards Act. The Committee further notes that there are 3,129 cases and 4,278 cases subject to judicial actions relating to OSH violations, respectively in 2018 and 2019. The Committee requests the Government to continue to provide information on the number of cases referred to judicial proceedings. It once again requests the Government to provideinformation on the outcome of the judicial proceedings for the cases referred following labour inspections, including the nature and amount of sanctions awarded and collected.

Article 5(b). Collaboration of the labour inspection with employers and workers and their organizations. The Committee notes that, according to the observations of the KCTU, despite the requirement of the Work Guidelines for Labour Inspectors, there are cases where the participation of workers’ representatives in inspection activities are not ensured. In addition, the participation of workers in the investigation of accidents is not required by law. As a result, in practice, most enterprises exclude workers’ participation in the investigation of serious accidents. In this regard, the KCTU notes that the Labour Administration Reform Committee recommended the revision of the Work Guidelines for Labour Inspectors in 2017 without success.

In response to the observations of the KCTU, the Government refers to section 14(5) and (11) of the Work Guidelines for Labour Inspectors, which provides that inspectors shall communicate relevant information to workers’ representative, including purpose and intent of the inspection, inspection results, future plans and improvement measures. It also refers to section 27 of the Work Guidelines for Labour Inspectors, stating that workers’ participation in the investigation of accidents is ensured through the statement of concerned workers as accident witness. Noting a possible difference between receiving statements from witnesses to an accident and conducting an ongoing dialogue with workers’ representatives as part of the investigation of such an accident, the Committee requests the Government to continue to provide information on measures taken to promote collaboration between the labour inspectorate and employers and workers or their organizations, including collaboration when investigating accidents.

Articles 6 and 15(a) and (c). Independence, professional integrity of labour inspectors, and their duty of confidentiality. The Committee notes that in reply to its previous comment, the Government indicates that the Code of Conduct for MOEL officials regulates obligations such as declaration of private interests, prevention of influence peddling, prohibition of intercession and solicitation, and prohibition of receipt of money or other valuables. The Government also states that it contracts out the anonymous report system to a private agency in order to enhance the accessibility of illegal acts reporting, and that strict sanctions, including disciplinary actions and penalties as necessary, are imposed against identified violations. It further indicates that illegal acts subject to such sanctions include corruption and bribery, as well as direct engagement in related business during active service and after retirement. In addition, the Committee notes the statistical information provided by the Government regarding the application of section 104 of the Labour Standards Act and section 81(1)-(5) of the Trade Union and Labour Relations Adjustment Act, which prohibit dismissal or other unfair treatment for reporting violations to labour inspectors. The Committee notes that, according to the observations of the FKTU, from January to March 2021, 72 cases were reported in relation to the abuse of power of labour inspectors, such as unfair treatment of cases in favour of employers, requesting workers to withdraw the cases or arranging settlement and engaging in stalling tactics. The FKTU also refers to improper acts of labour inspectors in harassment cases, which may lead to secondary damage. It also states that training and education for labour inspectors need to be strengthened accordingly. In response to this observation, the Government indicates that measures have been taken to strengthen the training for labour inspectors, including courses for handling complaints, workplace harassment and unfair labour practices. It also refers to extended period of training and courses separately designed for inspectors of different levels. The Committee requests the Government to continue to provide information on the measures adopted in order to ensure that labour inspectors do not have any conflict of interest, whether direct or indirect, in the workplaces under their supervision. It also requests the Government to indicate the number of cases of violations of the Code of Conduct of MOEL officials by labour inspectors and the penalties and/or disciplinary actions applied.

Article 13. Powers of inspectors in the area of OSH. In reply to the Committee’s previous comment on the enforcement of legal provisions relating to the protection of workers engaged in multi-level subcontracting structures, the Government indicates that a wide range of provisions of the Occupational Safety and Health (OSH) Act were amended, and enforced on 16 January 2020, to enhance the accountability of a principal contractor, limit contracting for harmful works, and strengthen punishment of a business owner. The amendment focuses on expanding the scope of responsibilities of a contractee, enhancing the accountability of a person placing an order for construction works and a contractee, and extending the scope of workers under the protection of the Act. With regard to the shipbuilding industry, the Government indicates that the OSH Act introduced the evaluation of safety and health management level and utilized the results in improving the management to prevent industrial accidents. The Government additionally refers to the 2021 amendment of sentencing guidelines for violations of the OSH Act and the enactment of the Punishment of Serious Industrial Accident Act. The Government states that the sentencing guidelines are still in the early stage of enforcement, and it is thus too early to determine their effectiveness.

With regard to suspension measures, the Committee notes the Government’s indication that they may be ordered in case of a continuing dangerous situation followed by non-compliance with corrective orders, non-implementation of the Hazard Prevention Plan or serious accidents. The Committee also notes the information provided by the Government on the number of suspension orders issued following an inspection visit and those issued following an accident investigation.

Concerning these figures, the Committee notes the KCTU’s indication in its observations that suspension orders issued during inspection visits decreased from 1,029 in 2018 to 59 in 2020, while suspensions orders issued following accident investigation decreased from 645 to 595. The KCTU also refers to some cases where suspension orders were not issued in time when labour inspectors relied on the oral statement of concerned employers during the investigation of accidents. In response to the KCTU’s observation, the Government indicates that the decrease in the number of suspension orders is attributable to the new OSH Act adopted in January 2020, which provides for more strict requirements for suspension orders, including the occurrence of serious industrial accidents and non-compliance with corrective orders. The Government states that there was an overuse of suspension orders due to arbitrary interpretation of events of “imminent danger”. The Committee requests the Government to indicate the activities undertaken by labour inspectors to ensure compliance with the new provisions of the OSH Act in relation to subcontracting. It also requests the Government to provide further information on the requirements for the issuing of suspension orders by labour inspections as provided for in the 2020 OSH Act. Moreover, the Committee requests the Government to provide information on the impact of measures taken, including the number of industrial accidents reported, instances where the occurrence of industrial accidents was concealed, violations detected, the judicial actions undertaken, and the penalties imposed and collected, where possible disaggregated by the type of industry.

Article 16. Adequate frequency and thoroughness of inspections to secure compliance. 1. Follow-up visits. The Committee notes that, according to the observations of the FKTU, there is no proper system to verify if employers actually carry out corrections as ordered by labour inspectors or to collect relevant data in this regard. The FKTU indicates that follow-up inspections are performed merely based on documents presented by employers, while inspection visits are carried out only when document-check is not possible. It thus considers the reinforcement of follow-up visits necessary.

In reply to the FKTU’s observations, the Government confirms that labour inspectors first verify the results of correction via documentation, and that additional follow-up visits are carried out if necessary. The Government also indicates that comprehensive review on administrative capacity and effectiveness of inspection are needed regarding follow-up visits. The Committee requests the Government to provide information on the criteria used to determine when additional follow-up visits are necessary, and information on its review of the frequency and effectiveness of follow-up visits, including measures taken to ensure that follow-up visits are sufficiently comprehensive. In addition, the Committee requests that the Government provide information on the number of follow-up visits carried out compared to follow-ups based on documents, disaggregated by the size of employer and the type of industry where possible.

2. Self-improvements in advance and inspection later. The Committee notes the observations of the KEF, according to which, for small and micro enterprises (SME) which do not have sufficient resources for labour management and suffer from serious financial difficulties due to the prolonged COVID-19 pandemic, administrative actions including labour inspection need to focus on providing guidance and education with the aim of preventing violation of laws at workplaces. Moreover, when any violation of law is found by labour inspectors, sufficient period needs to be given for enterprises so that they can voluntarily correct the issues on their own, rather than immediately imposing penalty or judicial actions.

The Committee also notes the observation of the FKTU that a new principle is set for regular inspections in 2021, namely “self-check first and inspection later”. Accordingly, employers are given one month to make self-improvements to comply with relevant laws, a number of workplaces are then selected for inspection. The FKTU indicates that the new principle leaves room for employers to adopt stopgap measure in efforts to brace for labour inspections and is not helpful to correct problems or enable the effective enforcement of law. The FKTU considers that labour inspection should be carried out more actively in order to ensure the consistent enforcement of relevant laws and regulations.

In response to the observations of the FKTU, the Government indicates that the principle of “self-check first and inspection later” was established considering the difficulties faced by enterprises in the context of COVID-19 pandemic. The number of workplaces subject to self-improvement is three times the number of workplaces actually inspected. The Government considers that the measure is expected to further strengthen the protection of workers by encouraging more enterprises to comply with the law voluntarily. Moreover, in case of violations requiring immediate correction, on-site inspections are promptly carried out without granting self-improvement period, including through unannounced inspection visits. Therefore, the new principle does not give opportunities for employers to conceal any violations before the inspection. The Committee requests the Government to provide statistical information on the number of workplaces benefiting from the “self-check” period, the number of workplaces selected for inspection and the criteria for such selection, as well as the results of the inspection visits, including violations identified, corrective measures ordered, judicial action undertaken and sanctions imposed. Recalling that self-inspection and self-assessment should be complementary to, and not replace, labour inspection, the Committee requests the Government to indicate the measures adopted in order to ensure that workplaces are inspected as often and as thoroughly as necessary to ensure effective application of the relevant legal provisions.

Articles 20 and 21. Publication and communication to the ILO of an annual report. The Committee notes the extracts of the annual Employment and Labour White Paper provided by the Government, which contain information as required by clauses (a), (b), (d), (e), (f) and (g) of Article 21 of the Convention. However, the Committee notes that there is no information on the number of workplaces liable to labour inspection as required by Article 21(c) of the Convention. The Committee requests the Government to take the necessary measures to ensure that annual reports are published and contain information on the number of workplaces liable to labour inspection as required by Articles 20 and 21(c) of the Convention.