Demande directe (CEACR) - adoptée 2023, publiée 112ème session CIT (2024)

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - République de Corée (Ratification: 2021)

Autre commentaire sur C087

Demande directe

2023

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The Committee notes the Government’s first report. The Committee notes the observations of the Korea Enterprises Federation (KEF) communicated with the Government’s report and the Government reply thereto. The Committee also notes the observations of the Korean Confederation of Trade Unions (KCTU) and the Federation of Korean Trade Unions (FKTU) received on 2 and 8 September 2023, as well as the observations of Education International (EI), IndustriALL Global Union, and the International Trade Union Confederation (ITUC) and International Transport Workers’ Federation (ITF) received on 31 August, 1 and 27 September 2023 respectively, which concern matters examined in this comment, and the Government replies thereto. The Committee further notes that the Committee on Freedom of Association (CFA) has referred to it the legislative aspects of Case No. 1865 concerning the Republic of Korea [see 404th Report, paragraph 76], which are examined in this comment.

Civil liberties. The Committee notes the joint observations of the ITUC and ITF concerning the arrest, detention, criminal prosecution and sentencing of KCTU leaders and members in relation to their trade union activities: Mr Kim Myung-hwan and three staff members were arrested and held in pre-trial detention under criminal charges of obstruction of public duties, public traffic, trespassing, and destruction of public goods during the union mobilisations against certain amendments to labour laws in March and April 2019. Mr Kim was sentenced to two years imprisonment with four years’ suspension. During the Covid-19 pandemic Mr Yang Kyeung-soo and Mr Youn Taeg-gun were arrested and charged for violation of the Infectious Disease Control and Prevention Act, the Assembly and Demonstration Act, and the Criminal Code, in relation to trade union rallies in June and July 2021 and a general strike called by the union on 20 October 2021 to demand jobs and better working conditions in view of the impact of the pandemic. Mr Yang was sentenced to one year imprisonment (suspended) and a fine of 3 million KRW. Mr Youn was released after 94 days of detention as a court ruled that his continued detention was not justified. Many more unionists were summoned for participation in the 2021 rallies, 19 were indicted and brought to trial and 21 were under summary order. The Committee also notes the observations of EI denouncing the significant restriction of the political and civil liberties of Korean teachers in public schools and employees of the State education administration; indicating that in some instances teachers faced legal repercussions for minimal political engagement, such as liking a political post on social media. EI further states that during the election for seventeen regional education superintendents on 1 June 2022, teachers in primary and secondary education and teachers’ unions were unable to express their opinions due to legal prohibitions. The Committee notes that section 3 of the Teachers’ Trade Unions Act (TTUA), prohibits the engagement of teachers’ unions in any political activities and section 4 of the Public Officials Trade Union Act (POTUA), equally provides that a trade union and its members shall not engage in political activities. Furthermore, sections 66(1) of the State Public Officials Act (SPOA) and 58(1) of Local Public Officials Act (LPOA) provide that “no public official shall engage in any collective activity for any labour campaign, or activities, other than public services”. The Committee notes the Government’s indication that these rules intend to ensure the political impartiality of education and protect it from undue influence and interference from political forces. The Government further adds that several amendments to the SPOA are currently pending in the National Assembly. The Committee recalls the fundamental importance of civil liberties, in particular the right to freedom and security of person and freedom from arbitrary arrest and detention, freedom of opinion and expression and freedom of assembly, for the full development of freedom of association. The Committee further recalls that the CFA had requested the Government to ensure that public officials’ trade unions have the possibility to express their views publicly on the economic and social policy questions which have a direct impact on their members’ interests and no longer take disciplinary action against public servants for their individual support of a political party or expression of views about government socio-economic policy affecting workers’ interests [see Case No. 1865, 404th Report, paragraph 69(e)]. The Committee expects that these principles will be considered in the current process of review of the SPOA and requests the Government to provide information on this process and its outcome. The Committee further requests the Government to provide information on any charges pending against members of the KCTU indicted in relation to the rallies and the general strike of 2021 and the progress and outcome of the judicial process in their cases.

Article 2. The right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee notes that section 2(4)(d) of Trade Union and Labour Relations Adjustment Act (TULRAA), as revised in 2021, provides that an organization where those who are not workers are allowed to join shall not be regarded as a trade union; and that section 2(1) of the same act defines the term “worker” as “any person who lives on wages, a salary, or any other income equivalent thereto, regardless of the person’s occupation”. The Committee notes the Government’s indication that the 2021 legislative review ended the exclusion of dismissed and unemployed workers from the scope of the TULRAA and that the Supreme Court of Korea has found that the right to organize for dependent self-employed workers must also be guaranteed. The Committee also notes the observation of the KCTU that the Supreme Court criteria emphasize “economic dependence” and therefore, independent self-employed individuals, freelancers and agricultural workers find it challenging to secure recognition as workers under TULRAA. The FKTU observes the same point and adds that atypical workers such as transportation workers and platform workers in non-standard forms of employment which are becoming more prevalent are similarly not clearly covered by the TULRAA definition of worker. The Committee notes the Government’s reply that those in liberal professions and purely self-employed can enjoy freedom of association through general associations; that the July 2021 amendment of TULRAA allowed the self-employed to join trade unions and that an amendment of section 2(1) aiming at including workers in special types of employment and platform workers in the definition of “workers” is currently pending in the National Assembly. The Government adds that both the Supreme Court and administrative authorities tend to acknowledge the worker status of those in special types of employment. Recalling that independent self-employed and agricultural workers, as well as freelancers, workers in non-standard forms of employment and platform workers must be guaranteed the rights enshrined in the Convention, the Committee expects that the legislative reform process concerning the extension of coverage of the definition of “worker” in section 2(1) of the TULRAA will effectively recognize and guarantee to all these categories of workers the right to establish and join organizations and requests the Government to provide information on any progress in this respect.

Public officials. The Committee notes that pursuant to section 6(1) of the POTUA, read in conjunction with section 2 of the SPOA and sections 2(1) and 2-2 of the Foreign Service Officials Act, the following categories of public officials are excluded from the scope of the POTUA: (i) foreign service officials in positions equal to or higher than the class of counsellor prescribed by Presidential Decree and those belonging to senior executive service; (ii) public officials in political service, including those in charge of affairs regarding sophisticated policy decision-making or of assisting such affairs; and (iii) public officials in “extraordinary service”, namely those designated by statutes or regulations as in extraordinary civil service to perform such assistance duties as secretary, or to perform any specified duties. Furthermore, the Committee notes that pursuant to section 6(2) of the POTUA, the following categories are also excluded: (i) public officials who exercise the right to direct and supervise other public officials whose main jobs are different or engage in generally managing other public officials’ affairs; (ii) public officials whose main duties, such as managing personnel and remuneration or mediating and overseeing labour relations, are deemed to be incompatible with their status as members of a trade union and; (iii) public officials who engage in correction, investigation, public well-being and national security duties. The Committee notes the Government’s indication in reply to the observations of the KCTU, that restrictions on union membership of public officials who are in a de facto employer status, act on behalf of employers, or are involved in correction, investigation and other duties related to public safety and national security are intended to prevent potential interference with the autonomy and independence of trade unions. Concerning senior public officials, the Committee recalls that to bar these public servants from the right to join trade unions which represent other workers in the public sector is not necessarily incompatible with freedom of association, but on two conditions: (i) senior public officials should be entitled to establish their own organizations to defend their interests; and (ii) the legislation should limit this category to persons exercising senior managerial or policy-making responsibilities. Furthermore, the Committee has always considered that while the exclusion of the armed forces and the police from the right to organize is not contrary to the provisions of the Convention, the same cannot be said for prison staff [see the 2012 General Survey on the fundamental Conventions, paragraphs 66 and 69]. Recalling that the scope of the Convention covers all public officials, with the sole exception of the police and the armed forces, the Committee requests the Government to take the necessary measures, in full consultation with the social partners, to review the legislation and bring it into conformity with the above principles, with a view to recognising the right of the excluded categories of public officials to establish and join organizations. The Committee requests the Government to keep it informed of any measures taken in this respect.

The right to establish and join organizations without previous authorization. The Committee notes that pursuant to section 12(3)1 of the TULRAA, read in conjunction with section 2(4)d of the same act, an organization that allows persons that are not “workers” to join will not be issued a certificate of report, in other words their registration request will be rejected. The Committee notes the observations of the KCTU in this respect, indicating that in practice, the administrative agencies sometimes take a long time (several months to more than one year) to evaluate the qualifications of the applicant organization, especially when they focus on determining if the members qualify as workers. The KCTU provides the following examples: the National Insurance Salespersons’ Trade Union (one year and four months), the National Proxy Drivers’ Trade Union (one year and two months), and the Riders’ Union, organized by delivery drivers (three months). The KCTU further observes that in the case of the Korean Self-Employed Workers’ Union, organized by merchants in traditional markets and alleyway markets, the establishment report was rejected. The Committee also notes the Government’s reply according to which, as the Supreme Court and the Constitutional Court have ruled that administrative authorities do not possess any discretionary authority in processing reports on the establishment of trade unions the trade union establishment reporting system is not considered a permission system. The Government adds that upon receiving a report on union establishment, a certificate of establishment must be issued within three days and while there may be some delays exceptionally if a report on union establishment needs supplementation due to omissions or errors in the document, the certificate’s effect will retroactively apply from the time of submission once it is issued. In view of the foregoing, the Committee notes that although as a general rule the law does not require previous authorization for the establishment of organizations, and formalities of registration are not unduly complicated, in practice in certain cases concerning self-employed workers or workers in non-standard forms of employment, the authorities have taken a long time to determine whether the applicants could be qualified as “workers” under the TULRAA, and at least in one case the registration application was rejected. The Committee notes that in such cases, it may be considered that the conditions of obtention of registration have amounted to a de facto requirement of previous authorization, in absence of which legitimate trade union activities could not be exercised. The Committee notes that this issue is related to the perceived limits of the definition of “worker” in section 2(1) of the TULRAA and expects that the conclusion of the legislative review process concerning that definition will effectively resolve this matter.In the meantime, the Committee requests the Government to ensure that the administrative authorities in charge of registration of trade unions, process all applications swiftly and in accordance with the principle that registration formalities should not amount to a requirement of previous authorization. The Committee requests the Government to provide information on all cases where the question of “worker” qualification of members of the applicant organization has been raised in the process of registration, and to indicate the length and the outcome of such processes.

Article 3. The right of organizations to draw up their constitutions and rules. The Committee notes that section 21(1) and (2) of the TULRAA provide that if it is deemed that union bylaws, resolutions or measures conflict with any labour-related Act or subordinate statute, the administrative agencies may, with the resolution of the Labour Relations Commission, order the correction thereof. The order is to be performed within 30 days upon reception, which is extendable if there is a justifiable reason. The Committee further notes that section 93(2) of TULRAA provides that a person who violates such a correction order is liable to a fine not exceeding KRW 5 million. The Committee notes the Government’s reply to the KCTU observation in this respect, indicating that this is a minimal level of intervention to prevent undermining of democratic and autonomous operations of trade unions by a few members; the Government has issued corrective orders in cases where unfair practices were identified, such as the use of bylaws to prohibit collective withdrawal from higher organizations or to obstruct changes in the organizational structure of local branches and offices in violation of legal provisions guaranteeing freedom of such changes. The Government further indicates that trade unions can contest the corrective order issued by administrative agencies through an administrative appeal or administrative proceedings. Noting the information provided on the application of section 21 of the TULRAA, the Committee requests the Government to provide information on the number of corrective orders issued pursuant to section 21(1) and (2), indicating the unions concerned, the grounds on which the corrective orders were based, the number of violations, and the amounts of any fines assessed for such violations.

The right to elect representatives in full freedom. The Committee notes that sections 17(3) and 23(1) of the TULRAA, as amended in 2021, provide that the representatives and executive officers of a union organized for a business, or a place of business shall be elected from among members engaged in the relevant business or place of business. The Committee notes the observation of the KCTU in this regard, that this provision excludes non-members, job seekers, the unemployed, ex-employees, and those dismissed (excluding those awaiting reconsideration after filing for unfair labour practices with the National Labour Relations Commission) from serving as executive officers in enterprise-level unions. The Committee notes the Government’s reply indicating that given the role of enterprise-level union officials in making decisions related to working conditions at the enterprise, allowing external individuals with limited knowledge of a company’s internal operations to become union officers could potentially hinder effective bargaining as representatives of workers or compromise their ability to fully represent the interests of employed workers. The Government adds that industrial level unions are not bound by the restriction set in sections 17(3) and 23(1) and even if a trade union was initially established as an enterprise level union, it can be changed to an industrial union if the members wish to elect the dismissed or the unemployed as union officers. The Committee recalls that provisions such as sections 17(3) and 23(1) of the TULRAA infringe the right of organizations to draw up their constitutions and to elect their representatives in full freedom by preventing qualified persons (such as full-time union officers or pensioners) from being elected, or by depriving them of the experience of certain officers when they are unable to provide enough qualified persons among their own ranks. There is also a real risk of interference by the employer through the dismissal of trade union officers which deprives them of their trade union office (see the 2012 General Survey on the fundamental Conventions, paragraph 102). Therefore, the Committee requests the Government, in full consultation with the social partners, to take the necessary measures to review sections 17(3) and 23(1) of the TULRAA to ensure that enterprise-level unions’ freedom to elect their representatives is duly guaranteed, by exempting from the occupational requirement a reasonable proportion of the officers of those organizations. The Committee requests the Government to provide information on the steps taken in this respect.

Financial management. The Committee notes that section 27 of the TULRAA establishes an obligation for trade unions to make a report on the results of settlement of accounts and the status of operation of the trade union at the request of administrative agencies. The Committee notes that this provision does not determine the intervals at which such reports can be requested, or the grounds that would justify such a request, and therefore appears to give full discretion to administrative authorities in this regard. Section 12 of the Enforcement Decree of the TULRAA only provides in this respect that the administrative agencies shall demand the trade union report in writing 10 days in advance by specifying the grounds and other necessary matters. Finally, the Committee notes that section 96(1)2 of the TULRAA sanctions the failure to comply with a section 27 request by an administrative fine. The Committee notes the observations of the KCTU indicating that while in the past, section 27 was rarely applied, the practice has changed recently : on 1 February 2023 the Ministry of Employment and Labour (MOEL), invoking section 27, requested 319 unit organizations of trade unions and federations and confederations—with memberships exceeding 1,000 (comprising 240 unions in private sector and 79 public official and teacher unions) to submit self-inspection results and supporting documents to the administrative agencies within their jurisdiction by 15 February 2023. The KCTU and FKTU observe that administrative agencies are now requiring unit trade unions and associated organizations with memberships surpassing 1,000 to provide inspection results and relevant documentation, irrespective of any internal requests from the union. The KCTU indicates that itself and the FKTU were fined for having rejected the MOEL’s request. The Committee notes the Government’s reply to these observations indicating that the recent monitoring aimed to assess the trade unions’ compliance with the obligation to keep and retain documents outlined in article 14 of the TULRAA. In this context, the Government requested unions to submit a minimal set of evidence materials (one cover page, one main page), instead of requiring access to all the documents kept at their office. This aimed to ensure that the necessary documents are kept without the need for physical visits to the office. The Government further indicates that in the case of 39 trade unions which refused to submit the requested documents, administrative investigations were conducted to verify the existence of finance-related records and documents, without however confirming the details of the documents or making copies. The Committee recalls that supervision of financial management of trade unions is compatible with the Convention when it is limited to the obligation of submitting annual financial reports; verification can be carried out if there are serious grounds for believing that the actions of an organization are contrary to its rules or the law and, is limited to cases in which a significant number of workers (for example, 10 per cent) call for an investigation of allegations of embezzlement or lodge a complaint. It would be incompatible with the Convention if the law gives the authorities powers of control which go beyond these principles, for example when the law empowers the administrative authority to examine the books and other documents of an organization, conduct an investigation and demand information at any time (see the 2012 General Survey on the fundamental Conventions, paragraphs 109–110). In view of the foregoing, the Committee requests the Government, in full consultation with social partners, to review section 27 of the TULRAA and take any necessary measures to ensure that it cannot be applied in a manner so as to interfere with the functioning of trade unions in line with the principles recalled above.

Obligation to disclose financial information. Amendments of the Enforcement Decree of the TULRAA and the Enforcement Decree of the Income Tax Act. The Committee notes the observations of the KCTU, referring to amendments to the above decrees that would facilitate the publication of union settlement of account results on a public disclosure system managed by the MOLE in general and require such disclosure for unions with memberships exceeding 1’000. The Committee notes the Government reply indicating that section 11-9 of the amended Enforcement Decree of the TULRAA does not impose an obligation on trade unions to externally disclose the results of settlement of accounts. Furthermore, pursuant to section 80 of the amended Enforcement Decree of the Income Tax Act, when unions voluntarily notify their accounting to the disclosure system, they are granted tax credits for union dues. The Committee requests the Government to reply to the KCTU observation concerning the requirement that unions with memberships exceeding 1000 disclose their accounting and to provide copies of both amended enforcement decrees.

Inviolability of union premises. The Committee notes the observations of the ITUC and ITF, concerning raids on the offices of several trade unions in various cities operated by Korean Intelligence Agency (NIS) and National Police Agency on 18 and 19 January 2023. The targeted unions were the KCTU and the Korean Health and Medical Workers’ Union (KHMU), Kia Motors Workers’ Union, construction unions affiliated to the KCTU as well as the FKTU. According to the observations, the offices of the KHMU were searched by 20 NIS and NPA officials. The Committee notes the Government’s reply that the investigations were carried out on the ground of criminal charges such as threats, compulsion, unlawful assembly and violation of the “National Security Act,” and that search and seizures against union offices were carried out to the minimum extent possible based on court-issued warrants. The Committee recalls that workers’ organizations should enjoy inviolability of their premises, correspondence and communications and that searches should only be possible when a warrant has been issued for that purpose by the regular judicial authority, when the latter is satisfied that there is good reason to presume that such a search will produce evidence for criminal proceedings under the ordinary law, and provided the search is restricted to the purpose for which the warrant was issued (see the 2012 General Survey on the fundamental Conventions, paragraph 114). The Committee requests the Government to ensure that any search operations carried out on union premises are in conformity with the above principles and to provide information on the outcome of the investigation conducted against the trade unions mentioned above and send copies of any judicial rulings issued.

The right to strike. Prohibition of strikes. Public officials and teachers. The Committee notes that pursuant to section 11 of the POTUA, unions of public officials and their members shall not take any action, including strikes, work slowdowns or any other activities undermining normal business operation. Furthermore, pursuant to Section 8 of TTUA, teachers’ unions and their members shall not conduct strikes, sabotage or any other industrial actions of interfering with the normal operation of business. The Committee notes that pursuant to section 2 of TTUA, teachers include kindergarten personnel; principals, assistant principals, and teachers in elementary, medium and high schools as well as in civic, technical and special schools and; the deans, heads and faculty members of higher education institutions in both private and public sectors. The Committee further notes that section 18 of the POTUA and section 15(1) of the TTUA provide that non-compliance with the abovementioned provisions would entail imprisonment with labour not exceeding five years or a fine not exceeding KRW 50 million (US$38,000). The Committee recalls in this regard that in the view of the Committee, the maintenance of minimum services in the event of strikes should only be possible in certain situations, namely: (i) in services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (or essential services “in the strict sense of the term”); (ii) in services which are not essential in the strict sense of the term, but in which strikes of a certain magnitude and duration could cause an acute crisis threatening the normal conditions of existence of the population; and (iii) in public services of fundamental importance (see the 2012 General Survey on the fundamental Conventions, paragraph 136). In these cases, compensatory guarantees should be provided for workers who are deprived of the right to strike. The Committee notes that the Government refers to the nature of the position and duties of public officials and the significant impact of the suspension or closure of public services on the entire population as the reasons for banning strikes of public officials and also indicates that the working conditions of public officials must be determined through a democratic process not exposed to undue pressure of industrial actions. Concerning teachers, the Government indicates that their collective refusal to conduct classes can infringe the students’ right to education which is guaranteed by the Constitution. The Committee recalls that to ensure that the basic needs of the users of important public services are met, the introduction of a negotiated minimum service can be considered as an alternative to the total prohibition of strikes. By extending the strike ban to all public officials within the scope of the POTUA, regardless of their exercising authority in the name of the State, and to education sector workers in both public and private sectors, sections 11 of the POTUA and 8 of the TTUA infringe the rights of those workers and their organizations under the Convention. In view of the foregoing, the Committee requests the Government to take the necessary measures to amend section 11 of the POTUA with a view to ensuring that only public officials exercising authority in the name of the State are excluded from the right to strike: and repeal section 18 of the POTUA, as well as sections 8 and 15(1) of the TTUA with a view to bringing the legislation into conformity with the above principles. The Committee requests the Government to provide information on any steps taken in this respect.

Workers in major businesses of national defence industry and other workers excluded from the right to strike. The Committee notes section 41(2) of the TULRAA pursuant to which workers engaged in a major business of the national defence industry who are involved in production of electricity, water, or a work of mainly producing national defence goods shall not conduct industrial actions and that section 20 of the Enforcement Decree of the TULRAA provides that these workers are those engaged in the business of manufacture, processing, assembly, maintenance, reproduction, amelioration, performance test, heat treatment, painting and gas handling, etc. which are required for completion of the defence industry products. Section 88 of the TULRAA punishes violation of this prohibition by imprisonment with labour for up to five years or a fine not exceeding KRW 50 million. The Committee notes the observations of the KCTU in this respect, indicating that while the authorities have always justified the prohibition of section 41(2) with reference to the inter-Korean confrontation and national security considerations, currently a significant part of the products of the major defence corporations are exported and workers may engage in other production in parallel or be transferred to other areas. According to KCTU, some employers take advantage of this strike-free status, not responding to collective bargaining requests in good faith, and by practices such as transferring all the union members to defence production lines and moving all the non-unionized workers to commercial production line. The Committee further notes that according to the KCTU, registered security guards, special security guards in charge of security at key national establishments, and certain seafarers are prohibited from engaging in industrial action pursuant to the special laws defining their status and violations by any of these groups is subject to criminal penalties. Recalling that the exception concerning the police and armed forces should not be extended to civilian personnel (except those employed in essential services in the strict sense of the term), the Committee requests the Government to provide its comments in respect of the KCTU observations.

Restrictions to the legitimate purposes of strike action. The Committee notes that the CFA has referred to it the issue of the narrow interpretation of the legitimate goals of strike action which is limited to industrial disputes [see 404th Report, paragraphs 69(f) and 76]. The Committee notes the observation of the KCTU in this respect, referring to a 2011 ruling of the Supreme Court providing that only: (i) matters within an employer’s disposal, and (ii) subjects of collective bargaining (such as wage and working hour determination) can be deemed valid strike purposes. The KCTU adds that in this perspective not only strikes against Government economic and social policies affecting workers and sympathy strikes are excluded, but also, as the subjects of collective bargaining are narrowly defined to exclude corporate restructuring (layoffs or mergers) as the object of managerial decisions, the law leaves only few matters over which unions are permitted to have recourse to strike. The KCTU adds that the National Human Rights Commission addressed a recommendation to the speaker of the National Assembly, suggesting the expansion of the definition of labour disputes in section 2(5) of the TULRAA to encompass “management issues such as restructuring leading to altered work conditions and workers’ socioeconomic status improvement”. The Committee notes with interest that on 9 November 2023, the Korean National Assembly adopted an amendment to the definition of “industrial disputes” in section 2(5) of the TULRAA. The Committee notes the Government’s reply which does not call into question the KCTU observations and instead refers to the consequences of the expansion of the scope of industrial actions on non-participating workers, the employer and the public, and indicates that the subject can be legislated through extensive social dialogue. In view of the foregoing, the Committee notes that the narrow interpretation of the legitimate purposes of strikes entails that in the Republic of Korea, strikes relating to the Government’s economic and social policies, sympathy strikes, strikes calling for the recognition and exercise of fundamental liberties are deemed illegal. The Committee recalls that in its view, trade unions and employers organizations responsible for defending socio-economic and occupational interests should be able to use, respectively, strike action or protest action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members. Moreover, noting that a democratic system is fundamental for the free exercise of trade union rights, the Committee considers that, in a situation in which they deem that they do not enjoy the fundamental liberties necessary to fulfil their mission, trade unions and employers’ organizations would be justified in calling for the recognition and exercise of these liberties and that such peaceful claims should be considered as lying within the framework of legitimate trade union activities, including in cases when such organizations have recourse to strikes. With regard to so-called “sympathy” strikes, the Committee considers that a general prohibition of this form of strike action could lead to abuse, particularly in the context of globalization characterized by increasing interdependence and the internationalization of production, and that workers should be able to take such action, provided that the initial strike they are supporting is itself lawful (see the 2012 General Survey on the fundamental Conventions, paragraphs 124–125). While welcoming the amendment of section 2(5) of the TULRAA, which broadens the scope of legitimate purposes of strike in the framework of industrial disputes, the Committee notes that the law still does not recognize that strike action can be taken for purposes not directly related to an industrial dispute between the workers and the employer, and therefore it deprives workers and their organizations of an essential means of action to protect their legitimate interests. Therefore, the Committee requests the Government, in full consultation with the social partners, to take the necessary measures to amend the legislation in this regard and requests the Government to provide a copy of the amended section 2(5) of the TULRAA.

Subcontracted workers. The Committee notes the observations of the KCTU indicating that under the current law, subcontracted workers meet serious obstacles to the legal exercise of their right to strike, as it is considered that only disputes relating to collective bargaining are valid grounds for strike while the main contractors successfully obstruct the attempts of the organizations representing subcontracted workers to engage in bargaining, arguing that they have no obligation to bargain in the absence of a direct employment relationship. Recalling that like other workers, subcontracted workers should be able to promote and defend their economic and social interests through, among others, recourse to industrial action, the Committee requests the Government, in full consultation with the social partners, to take the necessary measures to identify the legal and practical obstacles to the effective exercise of this right and to ensure their removal. The Committee requests the Government to provide information on the steps taken in this respect.

Public sector essential services. The Committee notes that section 42-2(1) of the TULRAA defines an “essential business” as a business whose suspension or discontinuance may seriously endanger the safety of the lives, health or bodies of the public and the daily life of the public. The Committee notes that the list of essential businesses (table 1 of the Enforcement Decree of the TULRAA) includes services of railroads and urban railroads, airlines, water utilities, electricity and gas utilities, petroleum refining and supply, hospitals and blood supply, the Bank of Korea, and telecommunications businesses. The Committee further notes that strikes are not prohibited in essential businesses, but “industrial action is performed while justifiably maintaining and operating the essential business” (42-5 TULRAA), The “necessary minimum level of maintenance and operation” is defined by agreement of the parties (42-3 TULRAA), or, in absence of such agreement, by decision of the Labour Relations Commission (42-4). Finally, the Committee notes that stopping, discontinuing or impeding of the “justifiable maintenance and operation” in essential businesses is prohibited (section 42-2(2)) and punished by imprisonment with labour not exceeding three years, or a fine not exceeding KRW 50 million (89.1 TULRAA); and that the law allows the employer to replace up to 50 per cent of striking workers (43(4) TULRAA). The Committee notes the KCTU’s observation indicating that in practice, the excessively high levels defined for maintenance of essential services – averaging 70 to 80 per cent and at times almost 100 per cent – nullify the impact of the strikes and often lead to extended public sector strikes, furthermore, the high levels defined have no expiry date and no procedure exists for reviewing them. The Committee finally notes that the authorization of hiring of workers during strike in the “essential public-service businesses” and the broadness of the list of the latter are among the legislative aspects that the CFA has referred to it in its last examination of Case No. 1865 [see 404th Report, paragraphs 75-76]. The Committee recalls that essential services, for the purposes of restricting or prohibiting the right to strike, are only those “the interruption of which would endanger the life, personal safety or health of the whole or part of the population”. This concept is not absolute in its nature in so far as a non-essential service may become essential if the strike exceeds a certain duration or extent, or as a function of the special characteristics of a country (for example, an island State) (see the 2012 General Survey on the fundamental Conventions, paragraph 131). The Committee notes that Korean law does not totally prohibit strikes in these services, nevertheless it requires a level of continued maintenance and operation of business which substantially restricts the effectiveness of strikes. In addition, the Committee notes that the law further restricts the impact of the strikes in these services by allowing the employers to replace up to half of the striking workers. The Committee considers that workers should be able to organize industrial action in the banking sector, in railways, transport services and public transport, air transport services and civil aviation, as well as in fuel distribution services and the hydrocarbon, natural gas and petrochemical sector (see the 2012 General Survey on the fundamental Conventions, paragraph 134). The Committee recalls that in services which are not essential in the strict sense of the term, but in which strikes of a certain magnitude and duration can cause an acute crisis threatening the normal conditions of existence of the population, and in public services of fundamental importance, a minimum service can be defined with the participation of the parties. Such a minimum service (i) must genuinely and exclusively be a minimum service, that is limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear; and (ii) since this system restricts one of the essential means of pressure available to workers to defend their interests, their organizations should be able, if they so wish, to participate in defining such a service, along with employers and the public authorities (see the 2012 General Survey on the fundamental Conventions, paragraphs 136–137). In view of the foregoing, the Committee requests the Government to take the necessary steps to ensure that the level of minimum service in public essential services be determined with the participation of the social partners and be genuinely a minimum service in line with the principles stated above. The Committee requests the Government to provide information on the steps taken in this respect.

Quorum and majority required to call a strike. The Committee notes that section 41(1) of the TULRAA provides that industrial actions require a decision made by concurrent votes of a majority of the union members who are employed workers. Section 91 of the TULRAA punishes the violation of this rule by imprisonment with labour not exceeding one year or a fine not exceeding KRW 10 million. Noting that section 41(1) requires the concurrent vote of the majority of all union members who are employed workers, the Committee recalls that requiring a decision by over half of the workers involved in order to declare a strike is excessive and could unduly hinder the possibility of calling a strike, particularly in large enterprises. In the Committee’s view, if a country deems it appropriate to require a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast (see the 2012 General Survey on the fundamental Conventions, paragraph 147). Therefore, the Committee requests the Government, in consultation with social partners, to take the necessary measures to review section 41(1) of the TULRAA in line with the principles stated above and to provide information on the steps taken in this respect.

Civil liability and penal sanctions. The Committee notes that section 3 of the TULRAA provides that the employer who has suffered damages due to industrial action “under this Act” shall not claim damages against a trade union, and that section 4 provides that activities such as industrial actions conducted to achieve the purpose of TULRAA are considered justifiable from a criminal law perspective unless they involve violence or destruction. Nevertheless, the Committee notes the observation of the KCTU, stating that the effectiveness of section 3 is limited due to the strict interpretation of what constitutes a legitimate strike; the KCTU further states that employers have pursued compensation of damages in the billions to tens of billions of KRW against trade unions and workers for strikes and occupations to prevent layoffs, for factory occupations following workplace closures, and for strikes and occupations to demand regularization of illegal dispatches or to oppose the introduction of a performance-based salary system. The Committee notes that the KCTU states that an amendment of section 3 is pending before the National Assembly, which aims at limiting corporations’ ability to claim excessive damages from workers on strike, emphasizing the principle of individual liability and shielding guarantors from responsibility for damages arising from trade union activities. The Committee notes with interest that on 9 November 2023 the Korean National Assembly adopted the amendment to section 3 of the TULRAA. The Committee notes the Government’s reply that the Constitutional Court and the Supreme Court have clarified that there is an inherent limitation that only justifiable industrial actions arising out of Constitutional guarantee for collective action can be granted exemption. The Committee further notes that despite section 4 of the TULRAA, the penal provisions at the end of this Act provide penal sanctions for several types of strike action, regardless of their peaceful character, and that these sanctions include up to 5 years imprisonment with labour and fines amounting to KRW 50 million. The Committee further notes that in its examination of Case No. 1865, the CFA has been referring to the question of application of section 314(1) of the Penal Code, punishing the offence of “obstruction of business” to strike actions for 25 years. The Committee notes the Government’s indication that it applies section 314 of the Penal Code with caution and in accordance with the limitations set out in the case-law of the Supreme Court, namely to cases where strikes occur suddenly at a time that could have not been predicted by an employer, causing significant confusion or tremendous damages to the business operation. The Government also indicates that since 2018, there have been no cases in which it has charged individuals with the offense of obstruction of business for simply refusing to perform labour. The Committee recalls that the legitimate exercise of the right to strike may not result in sanctions of any sort and that in particular, no penal sanctions should be imposed against a worker for having carried out a peaceful strike and thus for merely exercising an essential right. Therefore, measures of imprisonment or fines should not be imposed on any account (see the 2012 General Survey on the fundamental Conventions, paragraphs 122 and 158). The Committee expects that now that the Convention is integrated into the legal order of the Republic of Korea, the Government, in consultation with the social partners, will take all necessary measures to ensure that workers and their organizations are not subject to penal sanction for their engagement in peaceful industrial action and to provide information on the steps taken in this respect. The Committee requests the Government to provide information on any cases in which workers and unions were held liable for the damages resulting from a strike or were sentenced to imprisonment for participation in a strike and to send copies of the relevant judicial decisions. The Committee finally requests the Government to send a copy of the amended text of section 3 of the TULRAA.