Rapport intérimaire - Rapport No. 346, Juin 2007

488. The Committee already examined the substance of this case at its May–June 1996, March and June 1997, March and November 1998, March 2000, March 2001, March 2002,

• May–June 2003, November 2004 and March 2006 meetings, when it presented an interim report to the Governing Body [304th Report, paras 221–254; 306th Report, paras 295–346; 307th Report, paras 177–236; 309th Report, paras 120–160; 311th Report, paras 293–339; 320th Report, paras 456–530; 324th Report, paras 372–415; 327th Report, paras 447–506; 331st Report, paras 322–356; 335th Report, paras 763–841; 340th Report, paras 693–781 approved by the Governing Body at its 266th, 268th, 269th, 271st, 273rd, 277th, 280th, 283rd, 287th, 291st and 295th Sessions (June 1996, March and June 1997, March and November 1998, March 2000, March 2001, March and June 2003, November 2004 and March 2006).
  489. 489 In a communication dated 1 September 2006, the Korean Confederation of Trade Unions (KCTU), the Korean Federation of Transportation, Public and Social Service Workers’ Unions (KPSU) and the Korean Government Employees’ Union (KGEU) submitted new allegations. In a communication dated 11 September 2006, Public Services International (PSI) associated itself with the complaint. In a communication dated 24 October 2006, the International Confederation of Free Trade Unions (ICFTU), the KCTU and the KGEU provided additional information on the complaint. Finally, the KCTU provided additional information in a communication dated 27 April 2007.
  490. 490 The Government provided its observations in communications dated 23 February 2007 and 30 April 2007.
  491. 491 The Republic of Korea has not ratified either the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 492. At its March 2006 session, in the light of the Committee’s interim conclusions, the Governing Body approved the following recommendations:
2. (a) The Committee notes with interest the adoption and entry into force of the Act on the Establishment and Operation of Public Officials’ Trade Unions; it requests the Government to give consideration to further measures aimed at ensuring that the rights of public employees are fully guaranteed by:
3. (i) ensuring that public servants at Grade 5 or higher obtain the right to form their own associations to defend their interests and that this category of staff is not defined so broadly as to weaken the organizations of other public employees;
4. (ii) guaranteeing the right of firefighters to establish and join organizations of their own choosing;
5. (iii) limiting any restrictions of the right to strike to public servants exercising authority in the name of the State and essential services in the strict sense of the term;
6. (iv) allowing the negotiating parties to determine on their own the issue of whether trade union activity by full-time union officials should be treated as unpaid leave.
7. The Committee requests to be kept informed of any measures taken or contemplated in this respect.
8. (b) As regards the other legislative aspects of this case, the Committee urges the Government:
9. (i) to take rapid steps for the legalization of trade union pluralism at the enterprise level, in full consultation with all social partners concerned, so as to guarantee at all levels the right of workers to establish and join the organization of their own choosing;
10. (ii) to enable workers and employers to conduct free and voluntary negotiations in respect of the question of payment of wages by employers to full-time union officials;
11. (iii) to amend the list of essential public services in section 71(2) of the Trade Union and Labour Relations Amendment Act (TULRAA) so that the right to strike may be restricted only in essential services in the strict sense of the term;
12. (iv) to repeal the notification requirement (section 40) and the penalties for violation of the prohibition on persons not notified to the Ministry of Labour from intervening in collective bargaining or industrial disputes (section 89(1) of the TULRAA);
13. (v) to repeal the provisions prohibiting dismissed and unemployed workers from keeping their union membership and making non-union members ineligible to stand for trade union office (sections 2(4)(d) and 23(1) of the TULRAA);
14. (vi) to bring section 314 of the Penal Code (obstruction of business) in line with freedom of association principles.
15. The Committee requests to be kept informed of the progress made in respect of all of the abovementioned matters.
16. (c) Recalling that the prohibition of third party intervention in industrial disputes is incompatible with freedom of association principles and that justice delayed is justice denied, the Committee trusts that the appeals court will render its decision on Mr Kwon Young-kil without further delay, taking into account the relevant freedom of association principles. The Committee requests the Government to provide information in this respect as well as a copy of the court judgement.
17. (d) The Committee expresses its deep regret at the difficulties faced by the 12 dismissed people connected to the Korean Association of Government Employees’ Works Councils (KAGEWC), which appear to be due to the absence of legislation ensuring their basic rights of freedom of association, in particular the right to form and join organizations of one’s own choosing, respect for which is now largely guaranteed by the entry into force of the Act on the Establishment and Operation of Public Officials’ Trade Unions. Noting that four of them have been reinstated, the Committee requests the Government to reconsider the dismissals of Kim Sang-kul, Oh Myeong-nam and Min Jum-ki in the light of the adoption of the new Act and to keep it informed in this respect. It also requests the Government to provide information on the outcome of the pending administrative litigation and requests for examination concerning the dismissals of Koh Kwang-sik, Han Seok-woo, Kim Young-kil, Kang Dong-jin and Kim Jong-yun and expresses the hope that the new legislation will be taken into consideration in rendering the relevant decisions. The Committee finally requests the Government to provide copies of the relevant decisions.
18. (e) With regard to the application of the provisions concerning obstruction of business, the Committee requests the Government: (i) to continue making all efforts to ensure a practice of investigation without detention for workers who have violated current labour laws, unless they have committed an act of violence or destruction, as indicated in its previous reports; (ii) to review the situation of Oh Young Hwan, President of Busan Urban Transit Authority Workers’ Union and Yoon Tae Soo, first Executive Director of Policy of the Korea Financial Industry Union, who appear to have been penalized under this provision for non-violent industrial action and to keep it informed in this respect; (iii) to continue to provide details, including any court judgements, on any new cases of workers arrested for obstruction of business.
19. (f) With regard to the new allegations made by the ICFTU, the Committee, recalling that the practice of arresting and prosecuting trade union leaders for their activities aimed at greater recognition of trade union rights is not conducive to a stable industrial relations system and that public servants should enjoy the right to strike as long as they are not exercising authority in the name of the State and do not carry out essential services in the strict sense of the term, requests the Government to look at the possibility of reviewing the convictions of KGEU President Kim Young-Gil and General Secretary Ahn Byeong-Soon given that they were convicted under the now repealed Public Officials Act for actions aimed at acquiring recognition, de facto and de jure, of the basic rights of freedom of association of public servants and that their sentences are subject to a two-year suspension. The Committee requests to be kept informed in this respect.
20. (g) The Committee requests the Government to refrain from any act of interference in the activities of the KGEU and to provide its comments on the ICFTU allegations of violent police intervention in rallies, injury of trade unionists, intimidation and harassment of trade union leaders and members so as to discourage their participation in the strike of 15 November 2004 and finally, the initiation of a “New Wind Campaign” by MOGAHA at the end of 2004 targeting the KGEU and promoting a “reformation of organizational culture, focusing on rearing workplace councils and healthy employee groups”.
21. (h) With regard to the new allegations made by the IFBWW, the Committee expresses its deep regret at the intervention of the police and the criminal prosecution and sentencing of officials of the Korea Federation of Construction Industry Trade Union (KFCITU) to fines and imprisonment. The Committee requests the Government to issue appropriate instructions so that all actions of intimidation and harassment against the KFCITU officials cease immediately. It requests the Government to review all convictions and prison sentences, and to compensate the KFCITU officials for any damages suffered as a result of their prosecution, detention and imprisonment. It further requests the Government to inform it of the outcome of the trial of the three officials of the Kyonggido Subu local trade union and of the current situation of Park Yong Jae, President of the Chunahn local trade union who was convicted to one year imprisonment. The Committee requests to be kept informed on all of the above.
22. (i) The Committee requests the Government to inform it of the outcome of the appeal lodged against the court decision which found that the collective agreements signed in 2004 did not apply to workers hired by subcontractors; it trusts that the appellate court will take due account of the freedom of association principles mentioned in the Committee’s conclusions.
23. B. The complainants’ new allegations
24. New allegations by the KCTU
25. 493. In a communication dated 1 September 2006, the KCTU and its affiliates, the KPSU and the KGEU, indicate that the Government is obstructing the formation of stable and democratic industrial relations and seriously represses labour rights. In particular:
26. (i) the Ministry of Government Administration and Home Affairs (MOGAHA) is trying to destroy the KGEU through its “Directives to Promote the Transformation of Illegal Organizations into Legal Trade Unions (Voluntary Withdrawal of Membership)”, requesting all the government organs, ministries and local governments to order government employees to withdraw from the KGEU;
27. (ii) the Government submitted the strike of the Korean Railway Workers’ Union (KRWU), affiliated to the KPSU, to compulsory arbitration in March 2006; KRWU President, Kim Young-hoon, was detained for “obstruction of business” and 198 union members were sued;
28. (iii) Jeon Jae Hwan, former President of the KCTU Emergency Committee and current President of the Korean Metal Workers’ Federation (KMWF) was arrested and imprisoned for “illegal demonstrations”;
29. (iv) finally, the Government continues to promote “Measures for the Advancement of Industrial Relations Laws and Systems” (so-called roadmap) despite continuous opposition from trade unions.
30. New allegations by the Korean Federation of Transportation, Public and Social Service
31. Workers’ Union (KPSU)
32. 494. In particular, according to the KPSU, on 1 March 2006, some 17,000 of the 25,000-member KRWU went on strike. The Government issued successive warrants on 1, 3 and 17 March 2006 for the arrest of a total of 29 union leaders. Moreover, to pressure the striking unionists, the Korean Railroad Corporation (KORAIL) successively suspended on 2, 3 and 22 March 2006, a total of 2,680 workers who had participated in the strike. These workers are currently undergoing formal disciplinary procedures which have caused a climate of intimidation prejudicial to trade union activity. The KRWU appealed to the Seoul Regional Labour Relations Commission that the suspensions are illegal and the decision process is ongoing. Furthermore, KORAIL lodged charges of “obstruction of business” and infraction of the Trade Unions and Labour Relations Adjustment Act (TULRAA) against 198 union officers.
33. 495. Pursuant to the issuing of the initial warrants and suspensions at the beginning of March, rumours circulated that riot police were poised to raid the five mass assembly areas where the striking workers were holding sit-ins. Thus, the striking workers were dispersed throughout the country to avoid a clash with the police. On 4 March 2006, riot police forces hunted down and forcibly arrested – not by arrest warrant but as “criminals caught in the act of a crime” – at least 401 striking railway workers in public bathhouses, mountains, union offices and wherever they were hiding, and forced the arrested strikers back to work on the railway. Thus, through concerted intimidation and coercion, the railway strike was forcibly stopped by 7 p.m. on 4 March 2006.
34. 496. On 6 April 2006, the 29 KRWU officers against whom arrest warrants had been issued, were submitted to police investigation. The police initially detained all of them, releasing most of them after two days. However, the KRWU President, Kim Young-hoon, remained in custody and was moved to the Seoul detention centre on 13 April 2006 where he remained locked up until 22 June 2006. Later, the Chairperson of irregular workers of the KRWU, Lee Chul Yee, and KRWU Seoul provincial President, Kim Jeong Min, were arrested; Kim Jeong Min remained in jail at the time of the complaint (1 September 2006). Finally, KORAIL is preparing to lodge charges against the KRWU insisting that the company incurred damages of about US$13,500,000 by the strike. The KRWU has already been sentenced by the Supreme Court to compensate the KORAIL about US$2,440,000 for damages caused by a strike in 2003.
35. 497. The Korean compulsory arbitration machinery has made it possible to prohibit virtually all industrial action that has been attempted in the essential public services to date or end those strikes quickly. In the particular case brought before the Committee, the KRWU made all efforts to arrive at a settlement through bargaining and gave management the full opportunity to bargain through successive guarantees pledging “not to go on strike” (on 25 November and 16 December). However, every time the union gave a pledge, the National Labour Relations Commission (NLRC) followed up with a notice that compulsory arbitration would also be deferred for the period of the pledge (notices of 26 November and 13 December). The NLRC notices further stated that “when there exists a strong possibility that [the union will] undertake industrial action, we will immediately refer the dispute to compulsory arbitration”, thereby revealing that the explicit intention behind imposing compulsory arbitration would be to forestall strike action.
36. 498. After six months of trying to resolve issues through good faith bargaining and with negotiations deadlocked, the union finally announced that it would go on strike at 1 a.m. on 1 March 2006. Just four hours before the strike was set to begin, the NLRC referred the dispute to compulsory arbitration as it had said it would in the formal written deferral of compulsory arbitration notices of 26 November and 19 December. As soon as the strike began, the Government declared it illegal because the dispute had been referred to compulsory arbitration, and mass suspensions, detention and criminal prosecution to stop the strike ensued as indicated above.
37. 499. This serious restriction of the right to strike and victimization of trade union leaders and members is not an isolated incident. Rather, it follows a pattern of abuse that can be seen in the following cases of industrial action in the so-called “essential” public services.
38. Strikes in “essential” public services
39. (starting date of industrial action)
40. Date compulsory arbitration was imposed
41. Seoul Subway Labour Union (SSLU)
42. (21 July 2004)
43. 20 July 2004
44. Seoul Metropolitan Rapid Transit Workers’ Union (SMR TWU) (21 July 2004)
45. 20 July 2004
46. Korean Power Plant Industry Union (KPPIU)
47. (25 February 2002)
48. 28 February 2002
49. Seoul National University Hospital Workers’ Union (SNUHWU)
50. (13 June 2001)*
51. 13 June 2001
52. * In this case, compulsory arbitration was imposed while the union was holding an extraordinary union congress.
53. 500. In each of the above cases, none of the related union activity presented “a clear and imminent threat to the life, personal safety or health of the whole or part of the population”. Instead, the actual practice in each of these cases has been the expedient and abusive use of compulsory arbitration as a means to put a blanket ban on industrial action or stop strikes quickly or, as in one case (the SNUHWU) to stop a union congress quickly.
54. 501. Compulsory arbitration machinery also contravenes the right of collective bargaining in ILO Convention No. 98 as employers feel assured that their demands can be better met through compulsory arbitration machinery than through serious bargaining with the union.
55. 502. In addition to the above, the complainant (KPSU) indicates that section 314 of the Criminal Code (obstruction of business) carries heavy penalties: up to five years’ imprisonment or a fine of up to KRW15 million. Yet, the obstruction of business clause is highly vulnerable to discretionary interpretation; empirically, obstruction of business has been interpreted such that a broad range of union activity can be constituted as criminal obstruction of business.
56. 503. With regard to the at least 401 KRWU members arrested under obstruction of business charges, the Government claims it arrested the strikers red-handed while they were obstructing business. In truth, riot police forces apprehended railway strikers while they were gathered together, or travelling, or even sleeping. All these acts were found to constitute “criminal obstruction of business” that “hampered the railway operations” simply by the fact that the unionists were not working on the railroad at the time. Thus, the KRWU case shows that the refusal of work in itself can be considered criminal obstruction of business by “threat of force”; that is, a peaceful strike in and of itself was constituted to be an “obstruction of business using threat of force”. Thus, it would be possible for the clause to be used in any strike at the discretion of the authorities.
57. 504. Together with the criminalization of strikes (and extraordinary union congresses) by compulsory arbitration, obstruction of business charges have routinely led to heavy sanctions on union activity. All the unions above were saddled with lawsuits demanding “compensation for damages”, thereby leading, in some cases, to provisional seizure of part of the union assets and funds. Retaliatory suspensions ensued which can lead to dismissal (for reason of union activity), and disciplinary measures disadvantaging workers for their legitimate union activity. In all the cases above, union officials were incarcerated and made to face penal charges (obstruction of business) and fines as a direct result of attempting to defend and promote the economic and social interests of their union members through union activity. Use of extremely serious measures, including dismissal, for having participated in a peaceful strike, has also become routine and impedes the establishment of a climate of confidence for industrial relations.
58. 505. In the cases above, as the KRWU, the SSLU, the SMR TWU, the SNUHWU and the KPPIU are all categorized as “essential” public services, the workers’ right of freedom of association and right of collective bargaining, were contravened. Thus, reducing the scope of the “essential” public services in the TULRAA is a pressing matter
59. 506. Furthermore, the KPSU alleges that although section 71 of the TULRAA does not include air transport in the list of essential public services subject to compulsory arbitration machinery, the Government achieved the same effect by reviving a dead letter of the law, the power to invoke “emergency arbitration”, which resulted in a 30-day prohibition on industrial action once invoked and ended with compulsory arbitration. The “emergency arbitration” section of the TULRAA (articles 76 to 80) is a relic from the military dictatorship period; however, even the authoritarian governments exercised greater restraint in the invocation of such powers which had only been used twice in all of Korean industrial relations history (once in 1969 at Korean Shipbuilding and a second time in 1993 at Hyundai Motors) prior to 2005. In 2005, the then labour minister invoked such powers twice in one year, for a strike at Asiana Airlines (10 August 2005), and for the Korean Airlines Flight Crew Union (KALFCU), on 11 December 2005. The complainant is concerned in particular with the latter strike.
60. 507. According to the complainant, the KALFCU bargaining began less than two months after emergency arbitration was used to break the Asiana Pilots’ Union (APU) strike. This created a climate whereby the union went from a bargaining stance of 8 per cent wage increase down to 6.5 per cent then to 3.5 per cent wage increase before resorting to industrial action, while in contrast, Korean Airlines (KAL) adopted an inflexible bargaining position. Indeed, KAL management initially suggested not bargaining with KALFCU at all, but instead applying the FKTU-affiliated Korean Airlines General Union (KAGU) contract of 2.5 per cent wage increase for KALFCU. The Construction and Transportation Minister’s calls for emergency arbitration powers to be invoked again further emboldened the KAL management to avoid serious bargaining with the union. Following the invocation of emergency mediation on 11 December 2005, the dispute was referred to compulsory arbitration on 26 December 2005. The NLRC laid down an arbitration award on 10 January 2006 along the lines of a 2.5 per cent wage increase, that is, the same level that management had suggested at the very beginning.
61. 508. Exercise of emergency arbitration powers is extremely serious in that it forcibly suspends constitutionally guaranteed rights (right of collective action). Yet, TULRAA does not strictly circumscribe the invocation of such powers. The Labour Minister can simply decide to impose emergency arbitration on a dispute (after hearing the opinion of the NLRC Chairperson) based on the following grounds: (1) if the dispute “relates to” any public services; (2) if the dispute is large in scale or has a “special” character such that the Labour Minister thinks the dispute is “likely” to make the economy “worse” or disrupt “normal life”. In reality, the issue is left to the discretionary power of the Minister of Labour.
62. 509. Thus, a mere public announcement by the Labour Minister at a 11 December 2005 press conference that “The Korean Airlines Pilots’ Union strike is causing great harm to the national economy and … [so] I invoke powers of emergency mediation” was enough to put a 30-day prohibition on the KALFCU strike that had only begun on 8 December 2005. KAL instigated the criminal prosecution of 26 union officers for obstruction of business, as well as seven unionists for “violence” even though the seven pilots had only engaged in verbal arguments with the managers who had come down to the strike area to harass them. Currently, the union officers are still being investigated by the public prosecutor. KAL punished union members who participated in the strike with prejudicial acts such as transfers to standby. As management knows, KALFCU is a young union that was only formed in the year 2000, and such KALFCU-oriented anti-union discrimination could wreak great harm.
63. 510. Emergency arbitration can function fundamentally to undermine freedom of association and right to collective bargaining along the same lines as compulsory arbitration, but with larger potential scope since an enterprise does not even need to have been designated as an “essential public service” for emergency arbitration powers to be invoked.
64. 511. The complainant expresses the concern that as Korean labour laws are being gradually reformed, the Government increasingly turns to and strengthens alternative measures, such as criminal obstruction of business clauses, to crack down on union activity; the revival of emergency arbitration powers and invocation of such powers twice in one year fall in this same pattern. Thus, the KPSU expresses an overall deep concern regarding the promotion of the “Industrial Relations Roadmap to Mature (or “Advanced”) Industrial Relations”. The bill would further extend the authorities’ discretionary intervention and the criminalization of legitimate trade union activity.
65. 512. While the government-proposed bill would eliminate the current category of so-called “essential” public services, it proposes a renewed and excessively widened “public services” category that includes what was formerly called “essential” public services as well as: suppliers of heat and steam, harbour loading and unloading, railway, freight transport, airborne freight transport (airlines), and social insurance providers. This expanded category of “public services” could be subject to emergency arbitration powers, which leads to a 30-day prohibition of a strike and, if no agreement is reached, the NLRC can refer the matter to compulsory arbitration to “resolve” the dispute. Thus, the new bill adds more sectors to the “essential” public services and could subject such sectors to the possibility of emergency arbitration (30-day prohibition of industrial action; arbitration award takes the force of a collective bargaining agreement).
66. 513. The bill also adds a minimum services obligation to this expanded form of “public services”. Questions persist as to whether the scope of the “minimum services” can be designated such that the scope would genuinely and strictly be a minimum service while maintaining the effectiveness of a strike. If the scope of “minimum services” is excessively broad, the effectiveness of the pressure to bear from a strike would be lost. However, instead of using criteria that could be compatible with freedom of association principles namely, “in the event of strikes whose scope and duration would cause an acute national crisis”, the bill uses the criteria of: acutely endangering the “normal life” of the public. This (normal life criteria) is on a completely different level than the ILO criteria of “clear and imminent threat to the life, personal safety or health of the whole or part of the population” or “acute national crisis”. Designating the scope of minimum services becomes a crucial point, but the bill provides for compulsory arbitration to resolve the scope issue should management and labour fail to conclude an agreement demarcating the scope of minimum services. Because the compulsory arbitration machinery is a familiar tool used to suppress normal trade union activity in the public sector, stipulating that compulsory arbitration can be resorted to in deciding the scope of minimum services cannot be expected to create confidence in the decision-making process. Rather, the neutrality of the process would be compromised.
67. 514. Given the Government’s record of turning to various laws to repress trade union activities in the public services, serious doubts must persist as to the intent behind legislation of minimum services. The prohibition of strikes in minimum safety services has already been incorporated into the law in TULRAA section 42 (Prohibition of acts of violence), clause 2. “Industrial actions shall not be conducted to stop, close, or interrupt the normal maintenance and operation of facilities installed to protect safety of workplaces.” Even when essential public services unions have gone on strike, non-union members continue the provision of services and the strikes have not actually come near to halting services provision. What the Government views as an “imminent threat” has an extraordinary low threshold – the powers of emergency arbitration were invoked because companies began actually feeling the effect of the strike, in which case any strike that puts effective pressure on employers could be seen as an acute threat – as can be seen in the cases covered in this complaint. Even if, for example, the Korean Airlines Pilots’ Union succeeded in the future in organizing a strike that grounded all KAL aircraft, there are numerous other carriers, such as Lufthansa, Air France and so on, that could be availed of. Likewise, truckers can transport freight in the event of an extended railway strike that could actually shut down services, and alternatives exist in other sectors as well. Given this reality, the rational question is why is the Government pursuing enactment of minimum services when minimum service levels have not been disturbed at essential public services even during a strike? The concern is that, under the guise of enacting minimum services, the Government will expand the anti-union discriminatory activities in the form of opening possibilities for replacing striking workers with replacement workers, for criminalization of any strike activity of workers performing “minimum services”, and for enhancing managerial control on the shop floor should managers be able to designate which workers (of the section considered as necessary for “minimum services” provision) should work, allowing further dismissal and victimization of workers who refuse to work.
68. 515. As concluding remarks, the KPSU alleges that in the past few years, the Government has wielded unilateral power in shedding workers and downsizing the public services. Moreover, by issuing budgetary guidelines (budget allocation to the public sector) and directives on assessment of managerial performance, the Government has been forcibly derogating from existing collective bargaining agreements voluntarily concluded between management and unions. At the same time, it denies public services workers the tools and means with which to address their social and economic interests as impacted by such policies. Thus, public sector workers are trapped in an industrial relations system that uses different components to delegitimize ordinary trade union activities, encourages routine discriminatory sanctions (disciplinary measures, dismissal and imprisonment) against union leaders and members, in which workers have no means to seek recourse owing to the effective prohibition of the right to strike. Such an industrial relations system is not sustainable.
69. New allegations by the KGEU
70. 516. In a complaint dated 7 September 2006, the KGEU alleges that the Government has launched a concerted campaign, with the coming into effect of the “Act on the Establishment and Operation, etc. of Public Officials’ Trade Unions” (hereafter, “Public Officials’ Trade Union Act”), to destroy the existing trade union of government employees in the civil service. The introduction of the new law, which is purportedly aimed at guaranteeing trade union rights of civil service government employees, is being used as the pretext for the Government’s attempt to deny the existence of the KGEU, which has a membership of 140,000. The Government is refusing to engage in any kind of dialogue with the KGEU; rather, it is intent on destroying it. Thus, the attitude and response of the Government towards trade unions of public officials are proving to be no different to what it had demonstrated in 2002, when it mobilized massive police force to disrupt the inauguration assembly of the KGEU, arresting 178 delegates attending the founding conference.
71. 517. The KGEU alleges that, on 8 February 2006, the Ministers of three government ministries – Ministry of Justice, Ministry of Government Administration and Home Affairs (MOGAHA) and the Ministry of Labour – held a joint press conference to issue an “announcement concerning illegal activities or organizations of public officials”. The joint announcement contained a declaration of the Government’s intent to take strict measures on illegal activities by illegal organizations of public officials, such as “the so-called KGEU”. The joint announcement was undertaken to “make clear that the Government is committed to bring about voluntary withdrawal of membership from illegal organizations and to respond sternly to all illegal activities”.
72. 518. The joint announcement revealed the main forms of action that the Government was planning to take: (1) disallow any collective bargaining and conclusion of collective bargaining agreement with illegal organizations engaged in trade union activities without submitting notice of establishment as a trade union pursuant to the new law; disallow release from work to serve as full-time officers of the union, disallow check-off arrangement, provision of office space, and any other facilities to illegal organizations; (2) force the leaders and public officials who are members of illegal organizations to voluntarily withdraw membership from the illegal organizations; take legal sanctions against any illegal collective activities; but extend active assistance if the currently illegal organization is intending to transform themselves into legal trade unions; and (3) undertake administrative and financial sanctions against local governments which fail to comply with the Government’s directive and engage in collective bargaining or conclude collective bargaining agreements with an illegal organization, or engage in any other actions which overlook or facilitate illegal activities by the illegal organizations; sanctions may take the form of reduction in the allocation of special revenue, exclusion from various state projects, etc.
73. 519. The Government’s joint announcement outlined its basic position in conjunction with the coming into effect, on 28 January 2006, of the Public Officials’ Trade Union Act. The announcement came soon after the election of the new leadership of KGEU on 25 and 26 January and 2 and 3 February by the vote of all the members of the union and the referendum on the affiliation to the KCTU. In the announcement, the Government stated that “the so-called Korean Government Employees’ Union has elected a person who has been decommissioned or dismissed as a result of the illegal collective action on 15 November 2004, and thus cannot be qualified to represent a public officials’ trade union as its president; it has also publicly stated that it would refuse to comply with the law and remain an illegal organization and continue to conduct intense campaigns, causing deep insecurity among the people”.
74. 520. The Government mentioned that “some public officials have formed labour organizations and have conducted activities even before the coming into effect of the law. This was deemed to be a part of preparatory activities for the establishment of a trade union. As such, the Government had respected to a certain degree these collective activities”. However, the 8 February joint announcement made clear that the Government is determined to reject the government employees who had been decommissioned or dismissed as a result of the KGEU’s strike in November 2004, the KGEU declaration on freedom of political activities in March 2004, the “collective use of annual leave” in November 2002, the founding of the KGEU in March 2002, and for the activities of the Korean Association of Government Employees’ Works Councils (KAGEWC), the predecessor organization of the KGEU, as ineligible to be representative of a public officials’ trade union. The Government is intent on denying that the above listed “events” had taken place in the course of efforts to secure the basic rights of freedom of association and bringing about changes in law to firmly establish these rights.
75. 521. Furthermore, according to the KGEU, the “Directive to Promote the Transformation of Illegal Organizations into Legal Trade Unions (Voluntary Withdrawal of Membership)”, adopted by MOGAHA, and transmitted to all government ministries, agencies, and provinces and metropolitan cities, on 22 March 2006, is a clear case of “unfair labour practice” and campaign of repression against the KGEU, not to mention serious human rights violation. The Directive clearly denotes the KGEU as an illegal organization. The government logic is simple: the establishment and operation of a public officials’ trade union is only possible pursuant to the Public Officials’ Trade Union Act – therefore, the KGEU is an illegal organization that has failed to submit notice of establishment pursuant to this law. The notice of establishment, however, is a matter that should be determined independently by a trade union; it is not a matter that the Government or an employer may order or instruct. The system of giving notice of establishment is intended to extend rights and protection to a trade union provided by the law. Therefore, it is not the case that a trade union cannot engage in activities for not having given notice of establishment. Furthermore, it is illegitimate to force the dissolution of an organization and to pressure its members to withdraw membership. The KGEU currently objects to the various problems inherent in the Public Officials’ Trade Union Act. In refusing to submit notice of establishment pursuant to this flawed law, it may not be able to enjoy the protection that may be extended from this law, but this does not make it an illegal trade union – if legal status were to be sought, the KGEU could be characterized as a trade union outside the scope of the law.
76. 522. The efforts to bring about “transformation into legal trade union”, “voluntary withdrawal of membership” and disciplinary sanctions are clear cases of unfair labour practice. Even if the KGEU has opted to remain outside the law, forgoing the protection (to claim remedy for unfair labour practice) in case of the unfair refusal by the employer to engage in collective bargaining (section 81.3 of the TULRAA), because of its objection to the extreme restrictions contained in the law concerning collective bargaining, the “Directive to Promote the Transformation of Illegal Organizations into Legal Trade Unions (Voluntary Withdrawal of Membership)”, which also contains a threat of punitive sanctions, is a clear case of unfair labour practice as stipulated by subparagraphs 1, 2 and 5 of section 81 of the TULRAA.
77. 523. The Directive issued by MOGAHA directs that “The heads of central administrative agencies and offices at all levels and the heads of local governments shall, immediately upon the receipt of this Directive, press the member staff and the workplace associations which in reality engage in activities as illegal organizations to transform themselves into legal trade unions at the earliest date as possible, and issue work order to voluntarily withdraw membership from illegal organizations in the form of official letter”. At the same time, it directs that the “work order” should “indicate clearly and in detail the disciplinary measures and disadvantages to be enforced in case of failure to comply with the order”.
78. 524. The Directive outlines detailed measures aimed at destroying the union. It calls for a “prohibition of check-off arrangement for membership due” and threatens sanctions against public officials in supervisory positions who fail to comply fully with the Directive for negligence. It spells out “heavy disciplinary penalties against leaders (exclusion from appointment)”, “forceful measures such as closure of the offices of illegal organizations”, nullification of all existing agreements and prohibition of all consultation and assistance”, “removal of the name plaque” and instructs to “secure, if necessary, the cooperation of police”. The Directive directs all government offices to establish a “man-to-man persuasion team”, and “the high-ranking official charged with responsibility” to undertake “individual (joint) contact with the target member of the leadership, visit of the family and telephone calls, to persuade the person in question and his/her family members”. They are instructed to “make clear strongly that there will be disciplinary action for failure to comply with order and other disadvantageous measures, such as punitive fines for illegal use of the term ‘trade union’ (in the case of the organization and its elected representatives)”.
79. 525. According to the complainant KGEU, the proposed “individual contacts”, “home visits” and “telephone calls” to persuade the person in question and his/her family members are serious human rights violations. The establishment of “persuasion teams” to conduct individual contacts to press for withdrawal of membership is an abuse of the state power, infringing on the freedom of conscience that lies at the heart of human dignity. The idea of visiting family members to force withdrawal of membership from a trade union is no different from threats against family, used widely in the past by military regimes in their anti-union drive. The State or local government should not collect personal information for the purposes of trade union repression, human rights violations and other illegitimate purposes. They cannot make use of the already collected information for the purposes of trade union repression, human rights violations and other illegitimate purposes. But, the Directive directs all local government authorities to collect and submit a list of the elected leaders of the KGEU branches, including those members who had been decommissioned or dismissed, in blatant violation of human rights.
80. 526. The Directive threatens that the names of the government agencies and local governments with “poor performance” shall be “made public through media release” and will be penalized in the “annual agency evaluation and other administrative and financial penalties will be applied”. The Government indicated in the Directive that it would, in April 2006, undertake a “comprehensive inspection of industrial relations in the public officials’ sector” in all “central government ministries and local governments where illegal organizations have been established”. This would be “conducted jointly by local government departments and audit departments under the coordination of the public officials’ organization supervision team of the Ministry of Government Administration and Home Affairs” with “police cooperation if necessary”. The Government also intended to hold a “public officials’ sector industrial relations countermeasure conference” to discuss “governmental-level measures for administrative and financial penalty for agencies and offices which have failed to comply with the Government’s Directive”. It intended to “hold consultation with the Office for Government Policy Coordination on penalty measures to be undertaken at each ministry”. The Government made thus clear in the Directive its intention to mobilize the whole of its resources in its union-busting drive.
81. 527. The KGEU further alleges that MOGAHA took action to implement the Directive. It sent out an official letter seeking cooperation of all government offices and organizations and the local governments in establishing and carrying out an “education plan” to press for the transformation of illegal public officials’ organizations into legal trade unions and to bring about voluntary withdrawal of membership. In its official letter, MOGAHA planned to hold education sessions at five ministries and two agencies and 14 province and metropolitan city governments, involving all of 15,519 public officials, to be completed by the end of March. The aim of the education was the same: to “press for the transformation of illegal organizations into legal trade unions and voluntary withdrawal of membership by individual public officials who were members”. The province and metropolitan city governments then proceeded to hold explanation sessions and circuit education coordinated by MOGAHA, and directed all the municipal governments and subsidiary organizations to “prohibit the check-off arrangement for the membership dues of illegal public officials’ organizations and illegal use of the term trade union”.
82. 528. The Directive of MOGAHA sent to all government ministries and province and metropolitan cities, then was sent further down the line of the government structure, to all municipal governments and lower level organizations. The Seoul Metropolitan City directed the Ku (municipality, county) office and organizations under its jurisdiction to press illegal public officials’ organizations to transform into legal trade unions and bring about voluntary withdrawal of membership by the public officials who were members of illegal public officials’ organizations in an effort to establish a sound and exemplary public officials’ industrial relations, uphold law and order, and to establish discipline in the public officialdom”. The municipal governments, thus instructed, began to carry out the Directive towards all public officials. The Directive was relayed to all lower level administrative offices at the eup, myeon, and dong levels, and all local branches of government agencies and service centres.
83. 529. The complainant annexes numerous documents in support of the above. It then goes on to describe the measures taken by public authorities (Wonju City, Gyeouggi-do Province, Cheongyang-kun County of South Choongcheong Province, the Agricultural Research and Extension Service of North Gyeongsang-do Province, the Buk-kn municipality of Dagu Metropolitan City, Wando-kun County of South Chulla Province) in order to put pressure on public officials to resign from the KGEU “voluntarily”. Resignation forms were prepared by the authorities, and resignations were preceded by official orders which on several occasions contained threats such as: “failure to comply with this order shall be subject to stern measures pursuant to the relevant laws”. On some occasions, the members who refused to fill in the application forms were met individually by higher ranking officers and were threatened with dire consequences for their continued refusal to join the new body. Other authorities, expressing concern at the lack of progress in obtaining withdrawal from the KGEU, spell out further measures to that effect, including: prohibition of check-off, closure of the office of the KGEU, nullification of all existing agreements, end to all assistance, prohibition of all dialogue and negotiations and further “stern measures” if no progress is achieved. These activities led to the formation of a Wando-kun Public Officials’ Trade Union in the Wando-kun County of South Chulla Province.
84. 530. The complainant then indicates that MOGAHA began to inspect the progress of the implementation of the Directive working on the basis of a plan which calls for “inspection of the reports submitted to the Ministry by 14 April 2006” and a second round of inspection involving “on-field verification in late April”. The Ministry had instructed all government offices to produce and submit a “checklist on the progress of transformation of illegal organizations into legal trade unions”. It planned to conduct on-field verification on the basis of an inspection of the submitted reports, after identifying those offices which failed to submit reports, those which had a poor performance record, and others which were deemed to need on-field verification. The Ministry planned to hold a government-wide “conference on countermeasures for public officials’ industrial relations”. The complainant attaches numerous inspection reports. According to the complainant KGEU, while the report contains some exaggeration to embellish the local government’s performance, it does shed light on the pressures felt by trade unions due to the Ministry’s Directive and the actions and threats of the local government authorities. The authorities seem to be aware of “confidential” plans of groups within some chapters of the KGEU which are considering transformation into legal trade union. The report shows clearly the various efforts undertaken by the authorities to undermine the KGEU, multifaceted pressures to force withdrawal of membership and to bring about a transformation into “legal trade union”. The Government’s own documents show clearly how it is going about publicly and covertly to pressure more than 140,000 members of the KGEU to withdraw membership and to join a “legal trade union”.
85. 531. According to the complainant, the actions of the Government can be seen as an effort to give legitimacy to the new Public Officials’ Trade Unions Act which has been subject to much criticism within and outside the Republic of Korea, as it fails to reflect the views of government employees and their organizations. The intention is to demonstrate that there are “legal” trade unions which accept to operate within the parameters of the new law. In doing so, it hopes to sweep away all the criticism that has pointed out the shortcomings and problems in the new law. The actions of the Government since the coming into effect of the Public Officials’ Trade Union Act, however, have demonstrated that it is not so committed to the principle of guaranteeing trade union rights of government employees in the civil service, which is the purported purpose of the new law but is, instead, intent on destroying the KGEU which has been established as an independent and democratic union. The “sound and exemplary public officials’ industrial relations” referred to in the Directive, that the Government seeks, is being established by repression and attacks on the KGEU.
86. 532. The KGEU further alleges that since May 2006, KGEU offices have been closed down by force throughout the country. The Gyeongnam Officials’ Training Institute, an affiliated agency to the provincial government, issued an official letter on 29 August informing that it would execute the administrative action to forcefully close down the KGEU’s branch office on 30 August (Gyeongnam Officials’ Training Centre official letter, Department of Education Support-1641, 29 August 2006). The warrant attached to the official letter stipulates that, according to the government instruction that prohibits providing offices to unregistered government employees’ unions by the Public Officials’ Trade Union Act, the forceful administrative action would be executed.
87. 533. Hundreds of riot police were deployed around the union office right away. KGEU members were prohibited from entering the union office except four union staff working there. The KGEU Gyeongnam Regional Branch held a rally in front of the union office building on 30 August. During the rally, all the Chairpersons from the chapters of KGEU Gyeongnam Regional Branch shaved their hair in protest. Riot police were deployed again inside and outside the office building and blocked KGEU members from entering the union office. Several union members tried to block the forceful closing down of the union office in vain. They were oppressively moved out by the police. The union office was sealed off with thick plywood with a warning sign attached. The KGEU Gyeongnam Regional Branch had been using the office in the Gyeongnam Officials’ Training Institute according to a written agreement between the union branch and the provincial government since April 2003.
88. 534. In Busan Metropolitan City, the host city of the ILO Asian Regional Meeting, official letters warned that if the KGEU Busan Regional Branch did not move out from the office in the city hall by 31 August, the union office would be forcibly closed down (Busan Metropolitan City official letter, Department of Civil Service-11316, 17 August 2006). All the municipalities under the Busan Metropolitan City had been proceeding with the same actions at the time of the complaint.
89. 535. On 7 June 2006, MOGAHA asked the local governments concerned to take disciplinary measures against the KGEU members who participated in the rally in front of the Rural Development Administration (RDA) on 25 May (MOGAHA official letter, public officials’ organization supervision team-1588, 7 June 2006). The Ministry even pointed out the KGEU members concerned with an attached list. (It is provincial or metropolitan city governments that take disciplinary measures against local government employees.) The KGEU Chapter of the RDA tackled the undemocratic management of the RDA, which promotes the promotion review, and asked to introduce a single grade system. In response to this attempt, the administrator of the RDA announced that any action, even wearing the trade union jacket, would be punished and RDA cleared the site of the demonstration by use of violence. On 25 May, members of the KGEU moved to the main gate of the RDA to participate in the KGEU rally. The police blocked the gate despite the fact that the demonstration was legally reported to the authorities in advance. Members of the KGEU protested against this and were arrested by riot police from the Suwon Jungbu police station.
90. 536. On 21 June, MOGAHA disseminated another official document calling on local governments to execute the government directives and instructions and to take stern responses to all illegal activities (MOGAHA official letter, officials’ organization supervision team-1771, 21 June 2006). During the campaign for the local elections on 31 May, several candidates answered to KGEU’s policy questionnaires that they would recognize the unions and guarantee independent trade union activities when elected. MOGAHA document asked “to discard their written pledge or promise of the governor-elected on recognition of the KGEU”. The Ministry claimed in the document that “connivance to activities of illegal organizations in discord with the Government Directive would have bad effects on establishing labour relations in the civil service”. Moreover, the Ministry warned that “the local governments that bargain or even conclude a collective agreement with illegal organizations and give any support like overlooking full-time union staff, allowing union dues check-off and providing an office to illegal organizations will be taken to administrative and financial actions government-wide for disadvantages”.
91. 537. The KGEU held a rally on 8 July 2006 in protest against the government repression. More than 2,000 KGEU members participated in the rally, which was legally notified to the police in advance and held on Saturday. However, the Ministry requested local governments and agencies to take “thorough countermeasures in advance against the KGEU rally on 8 July, for its illegal activities, violating Public Officials’ Trade Union Act stipulating prohibition of collective activities” (MOGAHA official letter, officials’ organization supervision team-1861, 29 June 2006). At the rally, several officers from MOGAHA and the police videotaped and photographed the participants. Shortly after then, MOGAHA sent local governments and agencies an official letter with the videotape and the photos, requesting a list of the KGEU members participating in the rally (MOGAHA official letter, officials’ organization supervision team-61, 11 July 2006).
92. 538. On 3 August 2006, MOGAHA issued another Directive “to take thorough countermeasures including forceful closing down of the illegal government employees’ organizations against illegal activities” (MOGAHA official letter, officials’ organization supervision team-406, 3 August 2006). The Ministry requested all the local governments, ministries and agencies to take firm action against the KGEU. It asked “to close down all the KGEU offices in government buildings nationwide by 31 August”. It asked “to exclude KGEU members from personnel committees, to actively encourage all government employees joining illegal organizations to withdraw membership, to prohibit union dues check-off system and to block any financial support like voluntary contribution or donation to the organizations”. It asked for “positive efforts to stop payment of union dues through the cash management system (CMS)”. After prohibition of union dues check-off, KGEU encouraged its members to pay union dues through CMS from the bank account. Finally, the Directive stated that the Ministry would investigate the actual process and conditions for implementing government directives and instructions together with auditing departments and would take administrative and financial action government-wide against the local governments that did not implement the Directive.
93. 539. In a further section of its complaint, the KGEU delineates the problems and shortcomings it finds in the Act on the Establishment and Operation, etc. of Public Officials’ Trade Unions. The first such problem, is according to the KGEU, the lack of democracy in the legislation process, as the Act was announced unilaterally by the Ministry of Labour in May 2003, in total disregard of the earlier promise to draft a bill “through a process of sufficient hearing of views, as the substance would be of secondary importance”. The Ministry of Labour finally tabled the bill with the National Assembly in October 2004 without a process of consultation with government employees in the civil service.
94. 540. The Council of Representatives of Workplace Associations (predecessor of the KGEU) in the Ministry of Labour, issued a statement on 27 August 2004, declaring that “the government bill allows trade unions only in name. In terms of substance, it is a product of the deceitful intent not to allow genuine trade unions of public officials. The government bill, in prohibiting the right to collective action, aims to make the trade union powerless. The government bill is one that aims to repress trade unions of public officials”. The KGEU opposed the government bill for its failure to reflect the views of the very workers it is supposed to serve, and demanded a fresh start to draft a new bill. On 19 September 2004, at a meeting with the KGEU, held to present the union’s views, the Minister of Labour declared that “there is no problem at all with the draft bill for Public Officials’ Trade Unions Act produced by the Ministry of Labour, and there is no need to talk” and left the meeting unilaterally. The Government subsequently tabled the unilaterally drafted bill with the National Assembly and forced through its passage. At the same time, the Government had violently cracked down on the KGEU’s planned vote of all its members on strike against the proposed laws. In the process, some 3,000 public officials who were members of the KGEU were subject to disciplinary action and some 400 members who were leaders of the union were dismissed following the KGEU’s strike.
95. 541. The second issue pinpointed by the KGEU concerns the right to organize of public employees. Article 5 of TULRAA states that “workers are free to establish a trade union or join it” leaving the union itself to determine the scope of membership. Subparagraph 4 of article 2 disqualifies a union if it allows as a member “an employer or other persons who always act in their employer’s interest”. The actual scope of this exclusion is set through jurisprudence. The Act on the Establishment and Operation, etc. of Public Officials’ Trade Union however denies trade union rights to the following groups of public officials:
96. – public officials of Grade 5 and higher;
97. – public officials who exercise the right to direct and supervise other public officials or engage in generally managing other public officials’ affairs;
98. – public officials, such as those performing jobs related to personnel and remuneration, who stand in the position of administrative agencies in relation to a trade union;
99. – public officials who engage in correction, investigation and other similar jobs;
100. – public officials whose main jobs, such as mediating and inspecting labour relations, are considered incompatible with their status as union members (article 6).
101. 542. MOGAHA estimated the total number of public officials eligible to be members of a trade union to be 330,000–360,000. The Ministry of Labour, following the finalization of the “Enforcement Decree” in January 2006, found that, as of November 2005, a total of 290,000 public officials out of a total of some 920,000 (excluding soldiers) would be eligible to be members of a trade union. All public officials of Grade 5 or higher are denied trade union rights, and many public officials of Grade 6 or lower are also excluded from union membership based on the eligibility criteria stipulated in the law or “Enforcement Decree”.
102. 543. Given that a significant section of public officials of Grade 5 are engaged in administrative work, they cannot be deemed to be “persons always working in the interest of their employer”. The National Human Rights Commission, in its 2004 human rights report found that “today, it is quite common that public officials who hold ranks/positions of bu-yisakwan and samukwan are, in terms of work relations, middle-level managers and are not in a position of managerial responsibility for lower rank public officials. […] It is not desirable that eligibility for union members be restricted by types of public official or excluding public officials of Grade 5 or higher in a monolithic manner”. In its rulings concerning “discrimination in retirement age according to the rank”, the National Human Rights Commission found “in actual central government industries, Grade 5 public officials are responsible for actual implementation work rather than policy and managerial and supervisory work, and in some ministries Grade 5 and Grade 6 public officials carry out same kind of work requiring deliberation and judgement. […] In central government ministries, the required period for promotion from Grade 6 to Grade 5 differs according to the actual ministries, as in the Ministry of Justice, it takes four years and five months, but in the Ministry of Education and Human Resources Development, it takes 12 years and eight months. This means that it is not possible to make a blanket statement that public officials of Grade 5 or higher always have more experience and knowledge than public officials of Grade 6 or lower.”
103. 544. Furthermore, with the introduction and expansion of the team systems which led to assignment of public officials with middle-level authorization powers who were mainly responsible for supervisory work to implementation jobs as a part of the effort to enhance work efficiency, a considerable portion of public officials of Grade 6 are assigned as team leaders. This brought about a situation where a majority of Grade 6 public officials come to fit the criteria denying eligibility to be a member of a union, that is, “exercise the right to direct and supervise other public officials” or “engage in generally managing other public officials’ affairs” (subparagraph 1, paragraph 1, article 6, Public Officials’ Trade Union Act). This has undermined the “principle” to extend trade union rights to public officials of Grade 6 and lower.
104. 545. Furthermore, the Enforcement Decree of the Public Officials’ Trade Union Act establishes further restrictions in eligibility by excluding:
105. – public officials charged with directing or supervising other public officials with authority and responsibility to manage their work (including those public officials deputizing other public officials with this responsibility) in accordance with, on the basis of a law, by-law or regulations, rules and work division authorized by a law or a by-law;
106. – public officials mainly engaged in generally directing or supervising other public officials within a department in assistance to the head of the department (including those public officials deputizing those public officials with this responsibility);
107. – public officials engaged in work concerning appointments, work assignments, disciplinary measures, appeals review, remuneration, pension and other welfare-related matters;
108. – public officials engaged in work concerning drafting and allocation of budget and execution (excluding simple executions) and work concerning the organization and staff level of an administrative agency;
109. – public officials engaged in auditing work;
110. – public officials engaged in security, maintenance of office facilities, maintenance of order, defence security of office, secretarial job or driving of automobiles.
111. 546. This means that a considerable number of not only Grade 6 public officials, but also Grade 7 public officials are excluded from joining a trade union. Thus, for example, in the case of Seo-ku Office of Pusan Metropolitan City, of the 512 public officials of Grade 6 or lower, 89 public officials are excluded due to subparagraph 1 of section 3; three due to subparagraph 2(a) of section 3; one due to subparagraph 2(b) of section 3; ten due to subparagraph 2(c) of section 3; three due to subparagraph 2(d) of section 3; 27 due to subparagraph 2(e) of section 3; and one public official due to subparagraph 4 of section 3. Some 134 public officials (26.2 per cent) out of a total of 512 public officials of Grade 6 and lower are ineligible to join a trade union. In the case of Wonju City of Kangwon-do Province, 387 public officials (43.2 per cent) out of 1,130 public officials of Grade 6 or lower are not eligible to become a member of a trade union. In the case of Haenam-kun in South Cholla Province, out of 691 public officials of Grade 6 or lower, 229 public officials (33.1 per cent) out of 691 public officials of Grade 6 or lower are prohibited from joining a trade union. In the case of Fair Trade Commission, a total of 51 out of 253 public officials of Grade 6 or lower (20.2 per cent) are not eligible to be members of a trade union. The situation is even worse in the education-related offices. There are 60,787 public officials of Grade 6 or lower in 16 education offices. Of these, 45,122 public officials work in state public schools. Most of these public officials work as administrative directors, security guards, drivers, or sanitation supervisors. As a result, the number of public officials who are not eligible to join a trade union due to the criteria set out in section 3 of the Enforcement Decree is estimated to be more than 42,550 (those working in schools are 40,609). This represents 70 per cent of the public officials of Grade 6 or lower. In the case of public officials working in schools, the ratio is close to 90 per cent. Thus, Grade 6 public officials who become ineligible to join a union amount to 30 per cent of those employed in local governments. This surpasses the 16.7 per cent anticipated by the law itself. In this regard, the National Human Rights Commission, in its 28 November 2005 ruling found the “Enforcement Decree Draft” which “excludes more than 90 per cent of Grade 6 general public officials in city, kun, ku municipalities from joining a union” is unconstitutional and illegitimate.
112. 547. The third problem raised by the KGEU concerns collective bargaining. Paragraph 1 of section 8 of the Public Officials’ Trade Union Act removes “matters concerning policy decisions the State or local governments are authorized to make by laws, etc. and matters concerning the management and operation of the organization, such as exercising the right to appointment, but not directly related to working conditions” from becoming matters for collective bargaining. However, the TULRAA which proclaims the principle of autonomy of relations between labour and management, does not stipulate that certain matters are prohibited from collective bargaining. The Act on the Establishment and Operation, etc. of Teachers’ Trade Unions is the same in this regard. There are differing views concerning whether matters related to personnel decision, financial arrangement, business decisions, reinstatement of dismissed workers, release of workers from work to devote full time to the affairs of a union are legitimate matters for collective bargaining. In any case, however, it should be possible for a union to “demand” collective bargaining on matters that are listed in article 8, paragraph 1, and the employer may possibly entertain engaging in collective bargaining on these issues. The inclusion of specific matters to be excluded from becoming subject to collective bargaining, as in the Public Officials’ Trade Union Act, is a serious infringement of the principle of autonomy of industrial relations. According to a report produced by MOGAHA, collective bargaining agreements – albeit without legal status – have been concluded in 35 cities, kuns, or ku (various levels of municipality structure) in the last three years since the formation of the KGEU in March 2002. Many of these agreements contain provisions which call for “disclosure of project facilitation expenditure by heads of the organization”, “enhancement of transparency in matters of personnel decisions”, “avoidance of discretionary contracting in engaging private contractors and strengthening of objective bidding system”. All these provisions target the problems of corruption that are prevalent in the public sector. The proviso in section 8, paragraph 1, of the new Public Officials’ Trade Union Act provides a ground for the heads of organization to reject the demand of a trade union to include these matters concerning the reform of the government services and corruption issues in collective bargaining.
113. 548. Furthermore, according to the KGEU, section 10, paragraph 1, of the Public Officials’ Trade Union Act states, “in collective agreements concluded pursuant to section 9, provisions stipulated by laws, by-laws or budget and provisions stipulated by the authority delegated by laws or by-laws shall not have the effect of collective agreements”. However, most of the matters concerning wages and working conditions of public officials, including matters of appointment, dismissal, status, salary and other remuneration, and work assignment are governed by “laws, by-laws or budget and provisions stipulated by the authority delegated by laws or by-laws”, such as the State Public Officials’ Act, State Public Officials’ Duty Regulation, the Public Officials’ Remuneration Regulation, the Local Public Officials’ Act, Local Public Officials’ Duty Regulation, Local Public Officials’ Work By-law, Local Public Officials’ Remuneration Regulation, etc. Therefore, even if a collective agreement, which has precedence over these laws, by-laws, budget and other regulations is concluded, it fails to have any effect as a collective agreement on the basis of section 10, paragraph 1, of the Public Officials’ Trade Union Act.
114. 549. MOGAHA goes even further in extending the area of exclusion in its “Work Manual concerning Public Officials’ Organizations”. It provides an interpretation that “rules that set out provisions on the basis of authority delegated by a by-law cannot be subject matters for collective agreement”. MOGAHA further undermines the effect of collective agreement by stating that “the failure to implement those matters which the Government’s bargaining representative can legitimately manage and decide on through ‘enforcement decrees’ may be a subject of moral and political burden, but not legal responsibility”. However, it is possible to uphold the efficacy of collective agreements while fully respecting the power of the National Assembly or local councils on the basis of the principle of separation of power. Formulations such as the “Government has the legal obligation to present a legislative amendment bill, a by-law amendment bill, or supplementary budget bill incorporating the requirements arising from the conclusion of a collective agreement” or “the effect of a collective agreement is conditional upon the approval of the relevant legislature”, allow a collective agreement to be reflected in laws, by-laws or the budget. The power to initiate or amend “presidential decrees” or the “measures undertaken on the basis of delegation of authority of a law or a by-law” are in the hands of the State or local governments: they are, therefore, not matters that infringe the principle of separation of powers. Despite this, the Public Officials’ Trade Union Act denies the possibility of collective bargaining on these matters.
115. 550. The effect of the proviso leads to an unacceptable situation. A collective agreement concluded, for example, in 2006, on matters for which the State or local government have legal competence to decide may end up not having any effect because it stands contrary to the substance of a pre-existing “presidential decree” or “measures undertaken on the basis of delegation of authority of a law or a by-law”, which may have been unilaterally initiated by the State or a local government in the previous year. This runs in the face of the principle of acting in “good faith”.
116. 551. The fourth matter raised by the KGEU is the right to collective action. The Act on the Establishment and Operation of Public Officials’ Trade Unions prohibits collective action by any public official. Such a blanket prohibition, on top of the severe restrictions in the right of collective bargaining and the limitation on collective agreements on matters of working conditions, reduce trade unions and their activities to a state of meaninglessness. Section 18 stipulates that “a person who engages in strikes, work slowdowns and other activities undermining normal business operation … shall be punished by imprisonment of up to five years or a fine not exceeding KRW50 million” to enforce the “prohibition of industrial action”. This provision only highlights the innate hostility held by the Government on the very idea of industrial relations and industrial action.
117. 552. The KGEU finally indicates that the Public Officials’ Trade Union Act, in stipulating [section 17(3)] that sections 88–92, and section 96(1)(3) of the Trade Union and Labour Relations Adjustment Act shall not apply to trade unions under this Act, removes penal action against an employer’s unfair labour practice. As a result, a public officials’ trade union, which does not have the right to take industrial action, has no legal means to counteract the unfair refusal of an employer to engage in collective bargaining or failure by an employer to implement a collective agreement.
118. 553. The Public Officials’ Trade Union Act also prohibits public officials’ trade unions and public officials from engaging in political activities (section 4). The current prohibition of political activities is a copy of the similar prohibition on trade unions in general in the past, reflecting the prevalent hostility to the very idea of trade union activities. Public officials are members of society, and should be able to engage in political activities, including expression of political views, at least as long as they do not infringe on the work they are responsible for as public officials. Trade unions of public officials should also be able to engage in political activities. The general prohibition of political activities, regardless of their direct links with the actual work of public officials is a gross violation of basic rights.
119. 554. In a communication dated 24 October 2006, the KGEU adds that since 3 August 2006, when MOGAHA issued a directive instructing local government agencies “to take thorough countermeasures including forceful closing down of the offices of illegal government employees’ organizations against illegal activities”, the instruction was spread out along the line of the government structure throughout the country. On 7 August 2006, the Seoul Metropolitan City held a meeting of heads of general affairs departments in its municipalities (gu or ku) and agencies (Seoul Metropolitan City, material for meeting of heads of general affairs departments of municipalities and agencies, 7 August 2006). The metropolitan Government referred again to MOGAHA Directive on 22 March 2006, and clarified its plan to give advantages and disadvantages to its municipalities in accordance with the performance results implementing the Directive. According to the plan, Songpa-gu, that had not issued work orders instructing government employees in the municipality to voluntarily withdraw from the KGEU, would face administrative measures and financial disadvantages while Eunpyeong-gu, where the KGEU chapter disaffiliated from the union, would be granted incentives like a special subsidy.
120. 555. Thus, on 28 August 2006, the Gangwon-do (province) issued an official letter instructing municipalities to “force implementation of actions including forceful closing down of the offices of illegal government employees’ organizations. The Gangwon-do provincial government instructed its municipalities “to close down the offices of the KGEU in the government buildings by 31 August 2006, as well as to encourage government employees to withdraw from illegal organizations and to prohibit them from individually paying union dues through cash management system (CMS)”.
121. 556. On 17 August 2006, the Busan Metropolitan City warned the KGEU Busan Regional Branch with an official letter that if the union did not move out of the office in the occupied city hall by 31 August 2006, the city would forcefully execute the administrative order to close down the union office. All the municipalities under the Busan Metropolitan City have been proceeding with the same actions. The Seo-gu municipal government asked for the Busan Seo-gu Government Employees’ Work Council to close down the office by 31 August 2006.
122. 557. However, as of 31 August 2006, only two KGEU local offices had been forcefully closed down. Thus, MOGAHA issued new directives on 1 and 13 September 2006, that urged all government organs “to actively force implementation of actions to forcefully close down the offices of illegal government employees’ organizations by 22 September 2006” (MOGAHA, official letter, officials organization supervision team-778 and 875. The Ministry warned that those who were adopting a lukewarm attitude would be audited and examined later on. They underlined the schedule as follows: (a) issuing warrants of administrative execution of closing down of the union office by 15 September; (b) notifying implementation of the administrative execution by 20 September; (c) implementation of administrative execution of closing down of the union office (nationwide simultaneously) by 3 p.m. on 22 September. The same directives had been delivered down to all levels of the government structure.
123. 558. From 22 September 2006, the attacks started throughout the country. Since then, almost every working day saw violent attacks on the union offices and the arrests of the union members for more than ten days. The riot police and the specially hired thugs armed with fire extinguishers, fire-fighting dust, hammers, claw hammers, hammer drills and power saws raided the union offices from dawn until midnight. Some 125 KGEU local offices have been shut down and in many cases doors and walls of union offices were broken through while doors to union offices were sealed off, in some cases even welded, with iron plates or bars. The KGEU members inside the offices were violently pulled out. More than 100 KGEU members and solidarity organizations’ members were arrested and some of them were seriously injured (pictures on forceful closure of KGEU local offices are annexed and a video clip submitted with the complaint).
124. 559. On 22 September 2006, the first attack started against the KGEU Seoul Guro-gu Chapter office. While the specially hired thugs attacked the KGEU members to move them out, the riot police remained unconcerned and instead blocked up the union office. The KGEU members inside were forcefully pulled out, and the Chairperson of the KGEU Guro-gu Chapter, Mr Heo Won Haeng, was injured on his head and fell unconscious. He was hospitalized in the emergency ward, and fortunately regained consciousness in the hospital.
125. 560. The second target was the KGEU Seoul Jongro (Jongno)-gu Chapter. The police started from outside the building, with the aim of isolating KGEU members who were inside to protect the office. Dozens of people from the KGEU and other solidarity organizations, who were protesting the police blockade and violent closing down, were rounded up and arrested. One from the KGEU, two from the Korean Public Service Union (KPSU) and three from the Democratic Labour Party (DLP) were arrested. They were released almost 12 hours later.
126. 561. At about the same time, riot police and thugs stormed into the KGEU Seoul Yeongdeungpo-gu Chapter office, while dozens of members of the KGEU and solidarity organizations, such as the KCTU and the DLP, were arranging a press conference. They were blocked off by the police and arrested.
127. 562. The KGEU Seoul Mapo-gu Chapter was also attacked. Union members and solidarity organization members barricaded the office, while another 20–30 solidarity activists warded off the hundreds of riot police who were deployed outside the compound. Tensions gradually built up and from noon, riot police started to move down into the basement where the union office was located, while the municipal management cut off electricity. Two people inside the union office were suffering from severe cases of asthma. At around 2.20 p.m., the police broke through the barricade and arrested those who were inside. The Chairperson of the Chapter, Mr Lee Jae Seop, the Chairperson of the KGEU Women’s Committee, Ms Lee Yeon Sook and the Executive Director of Politics and Reunification at the KGEU head office, Mr Kwon Jeon Hwan, were arrested with other KGEU members and solidarity organization members.
128. 563. Tensions also started to escalate from the morning at Songpa-gu, Seoul, as well, where the entrances leading to the union office were blocked and elevators stopped. The tenth floor of the municipality building, where the union office is located, was filled with riot police and specially hired thugs, and the union members inside were violently pulled out and the office was sealed off.
129. 564. In Yongsan-gu, Seoul, KGEU members had barricaded the union office. However, the municipality and the policy eventually broke into the union office. Eighteen members of the KGEU and other solidarity organizations were arrested and released an hour later. In total, 19 KGEU offices in Seoul were forcefully closed down on 22 September 2006.
130. 565. Similar scenarios took place in Yeonsu-gu, Incheon Metropolitan City, Mangdon-gu and Bupyeong-gu, Incheon, Buk-gu, Ulsan Metropolitan City, Nam-gu, and Jung-gu. In the latter case, the director of general affairs of the municipality broke the window of the union office with a claw hammer, and, as a result, several union members were injured. A piece of glass hit and injured the eye of a KCTU member who had to be hospitalized due to severe bleeding. One KGEU member was also hospitalized from injuries during the raid.
131. 566. Almost all offices at Gwang-ju Metropolitan City were forcefully closed down. At Buk-gu and Seo-gu municipalities, more than 100 KGEU, KCTU and solidarity group members gathered at each building and tried to hold off the riot police for several hours in vain. As for Daegu/Gyeonbuk branch, riot police were deployed at all municipalities. Sixteen out of 18 chapter offices were closed down.
132. 567. The situation at Busan was also serious. The Busan branch office was inside the Busan City Hall. The police raided the branch office, which can only be interpreted as an attempt to decapitate all chapter unions in the city by targeting the branch union. Seventeen union members were forcefully dragged out and arrested. Of those arrested, the Prosecutors’ Office called on the court to issue detention warrants against two local leaders, Mr Oh Bong Seop, Chairperson of the KGEU Busan Branch, and Mr Hwang Gi Joo, Director-General of the KGEU Busan Branch, but the court refused, and they were released almost two days after they were arrested. The other members were released around 26–32 hours after their arrest.
133. 568. Ten chapters out of 11 affiliated to the Chungbuk Branch were also closed down. At one of the chapters, Cheongwon, a pregnant union member fainted as riot police raided the union office.
134. 569. In Gangwon-do (province), six members from the KGEU and solidarity organizations were arrested in the morning when they came to make a protest with the Minister of MOGAHA, who happened to visit Jeongseon-gun, Gangwon-do, against repression on the KGEU.
135. 570. In Jeonbuk-do, riot police were deployed and attacks took place in almost all the KGEU local offices, which had to be forcefully closed down.
136. 571. In Gheongyang-gun (county), Chungnam-do officials from the municipality came to the union office and ordered closure of the office. However, around 70 union members and solidarity group members continued their sit-in protest, in light of which the municipal officers gave up, tore apart the official warrant for the administrative execution and promised not to attack the union office.
137. 572. In Gyeongnam-do, hundreds of riot police stormed into the KGEU Gyeongnam Jinju Chapter office and tried to forcefully close it down. More than 300 KGEU members and solidarity organization members firmly stayed around the union office. Although the first wave of the police attack on 22 September was pulled back, a much stronger one was waiting. On 28 September, the union and solidarity organization members who held a protest sit-in overnight were forcefully pulled out, one by one and the union office was taken over by the riot police and the authorities.
138. 573. On 22 September 2006, out of the 251 KGEU chapters nationwide, 81 union offices had been forcefully closed down. Some local governments that had not raided the offices on 22 September, were expected to continue.
139. 574. On 25 September 2006, the forceful closing down of the KGEU offices restarted in Boryeong, Chungnam-do (province). The KGEU Chungnam Seocheon Chapter office was sealed off. The riot police were deployed around the KGEU Chungnam Yeongi Chapter office and tried to break into the office, where the union members were holding a sit-in protest. However, the riot police began using very dangerous “weapons” – welding machines. They brought four welding machines, which they started to use on the office door, aiming to literally “melt” a hole in the door. Sparks from the welding machines constantly jumped onto electric wires, setting them on fire, and filled the entire basement, where the union office was located, with thick smoke. The riot police swept into the union office and 21 members from the KGEU and solidarity organizations were arrested. The union office was sealed off.
140. 575. The KGEU Chungnam Cheongyang-gun (county) Chapter, which made the police pull back on Friday, faced another wave of attacks. The riot police had been deployed again from 1.10 p.m. At 3.30 p.m., the union office was taken over. The KGEU Chungnam Onsan Chapter and the KGEU Chungnam Regional Branch in the same office were attacked on 25 September. The electricity was cut off and the basement where the union office was located was left in darkness. The doors were removed. A woman member was injured and bruised and 15 were arrested. They were released an hour later.
141. 576. In Buyeo-gun (county), Chugnam-do (province), the first attack to the union office was defeated but 30 minutes later the riot police began to break into the union office using a ladder truck and water cannons. They were trying to get in through the rooftop of the building spreading fire-fighting dust. The doors were broken and the union office was taken over by the riot police. Three KGEU members were arrested (Shin Dong Woo, Director-General of the KGEU Chungnam Regional Branch, Seo Jang Won, Chairperson of the KGEU Chungnam Buyeo-gun Chapter and Yoo Byeong Hwan, Chairperson of the KGEU Ghungnam Cheongyang-gun Chapter. An arrest warrant was issued against one more KGEU Chungnam Branch member who was arrested on 10 October 2006. Allegedly he was leading the struggle of the union to defend the office of the KGEU Buyeo Chapter. The Prosecutors’ Office applied for a warrant of detention to the court, but the court did not accept the application of the warrant and he was released at night on the same day.
142. 577. On 26 September 2006, the riot police began to be deployed around the KGEU Chungnam Dangjin-gun Chapter office. More than 200 of the riot police and execution officials broke into the office and sealed it off at 8.40 p.m. In Jeonnam-do, six KGEU chapters had been facing the forceful closing down of the union offices. The office was sealed off in Yeongam-gun. In Wando-gun, the municipality mobilized a mobile crane (excavator), a ladder truck and a fire extinguisher in front of the municipality building. Also in Guyre-gun, the union members were pulled out of the union office and the municipality sealed off the office.
143. 578. The main targets on 27 September 2006, were the KGEU chapters in Gyeonggi-do (province). The union members inside the office of the KGEU Gyeonggi Gwacheon Chapter were severely beaten up and arrested. Four of those were seriously injured and hospitalized. While fortunately they recovered well, one of them has still to go to hospital every day to treat his back pain. In Suwon, the riot police and the execution officials broke into the union office. Seven more KGEU chapters in Gyeonggi-do were forcefully closed down: Osan Chapter office, Hwaseong Chapter, Anyang Chapter, Goyang Chapter, Pocheon Chapter, Pyeongtaek Chapter and Icheon Chapter. The same happened to the KGEU Gyeonggi Siheung Chapter and Gwangmyeong Chapter.
144. 579. At the same time, the KGEU RDA Chapter was also being attacked. The RDA (Rural Development Administration) is a research institute under the Ministry of Agriculture and Forestry. After the Directive on 22 March 2006 by MOGAHA was issued, the new administrator had broken agreements with the union and refused any negotiations. A peaceful protest rally by the KGEU on 25 May in front of the RDA had been attacked by the riot police and hundreds of the union members had been arrested. On 8 September, the seven leaders of the KGEU RDA Chapter were dismissed.
145. 580. The only province where the wave of attacks on the KGEU local offices had not been pouring down yet was Gangwon-do (province), but this began just a few days later. On 29 September 2006, the first attack on a KGEU local office in Hwacheon-gun (county) in Gangwon-do started. At first, the municipality officials tried to forcefully close down the union office in vain. The riot police were deployed and a mobile crane (excavator) was mobilized. At last the riot police were pulled back and a meeting between the governor of the Hwacheon-gun and the KGEU Hwacheon Chapter was agreed to be held on 2 October. But, at dawn on the day when the meeting was supposed to be held, more than 350 riot policemen were deployed and swept into the union office taking it over and arresting three KGEU members.
146. 581. Following the crackdown of the KGEU Gangwon Hwacheon Chapter office, more attacks on the chapters of KGEU Gangwon Regional Branch followed on 3 October, which is a national holiday. The KGEU Chuncheon Chapter’s office was taken over by the riot police. Another attack on a KGEU local office took place in Samcheok. Two KGEU members were arrested. During the attack, two people were injured by the police violence and hospitalized. One of them was Bro Lee Sang Gyun, Chairperson of the KGEU Samcheok Chapter, who inhaled too much of the fire-fighting dust. He recovered well but had to spend six days in a hospital. The other was a KGEU member’s wife, who was also there to protect her husband and his colleagues with other KGEU members’ families. She was pulled down by the riot police and injured on her head causing a concussion. Although shortly after being hospitalized she recovered consciousness and could leave the hospital the next day, she still needs to be carefully watched.
147. 582. As of 10 October 2006, in total the local offices of 125 out of 251 KGEU chapters had been forcefully closed down. Some 101 members from KGEU and solidarity organizations were arrested and several of them were severely beaten up and hospitalized. The arrested were expected to be prosecuted, depending on the results of investigation by the police. The charge would be violation of clauses on special obstruction of performance of official duties under the Criminal Act. In cases of government employees, the violation of Public Officials’ Acts would be included in their charges. (The list of the arrested was annexed to the communication.)
148. 583. According to the complainant, besides physically and literally shutting down local KGEU union offices, the Government had also been trying to block and intervene in any activities of the KGEU. The Government instructed local governments and agencies “to obstruct KGEU’s campaign against the Republic of Korea–US Free Trade Agreement (FTA) negotiations as well as to intensify supervision of government employees to stop them from joining KGEU’s rally on 9 September” (MOGAHA, official letter, officials organization supervision team–819, 7 September 2006). The KGEU has been involved in a campaign against the Korea–US FTA with other public sector unions, like the Korean Teachers and Education Workers’ Union (KTU) and the KPSU. MOGAHA stated that KGEU members’ leafleting, hanging banners about the Korea–US FTA, publicizing and joining rallies on this question are illegal, since these activities are violating public officials’ acts and especially government employees are subject to law and order above all. The instruction was sent further down the line of the government structure, to all municipal governments and lower level organizations. Referring to the MOGAHA instruction, the Chungbuk-do (North Chungcheong Province) directed its municipalities and agencies “to thoroughly supervise and persuade government employees not to get involved in illegal activities such as collective expression of opposition to government policies” (Chungbuk-do Province, official letter, General Affairs Department–11863, 8 September 2006).
149. 584. Regarding the rally on 9 September, MOGAHA even threatened to dismiss government employees playing a leading role in the rally and apply disciplinary punishment to union members who participate in the rally, even though the rally was legally notified to the police in advance. Hundreds of KGEU members had to be stopped from joining the rally and forced to get back. Thirteen KGEU leaders were under summons by the police for such union activities. Some of them were investigated just because they read aloud a resolution or made a speech at the rally on 9 September 2006. (The list of the KGEU leaders under investigation is annexed to the complaint.) A KGEU vice-president was also investigated by the police under the National Security Law simply because the KGEU issued a statement on 17 August 2006 on a military exercise that mobilized government employees. The KGEU demanded that the military training be abolished because many government employees are mobilized in the “Ulchi Focus Lens (UFL)” exercise, causing much inconvenience to the population that government employees are supposed to give civil service to. Furthermore, claiming that a statement is violating the NSL is repression of freedom of expression. The KGEU issues more than 300 statements a year, on matters which are believed to be related to government employees. Moreover, more than 70 organizations and trade unions also issued statements on the UFL with the same demands as the KGEU. Out of these 70 organizations, the police and Government have targeted only the KGEU. Therefore, we can only conclude that this “investigation” on the KGEU under the NSL is aimed at egregiously singling out and repressing the KGEU. Also, the Government’s claim concerning the KGEU’s intervention in the issue of relocating an American military base is purposeful manipulation. The voicing of opposition to government policies that are against the interests of the people should be considered as normal trade union activity. At that time, the KGEU, together with the KCTU and many other NGOs, opposed the violent and unjust “administrative execution” against the peasants living in Pyongtek. The Government had used violence and inhumane methods against those who were demanding a stop to the “administrative execution” and expansion of the US military base. More than 600 trade unionists and NGO members were arrested and those who were seriously injured by police brutality and had to be hospitalized on that day were more than 200. Nine out of 11 KGEU members were arrested while being chased away by the military and the police. The other two were arrested while protesting against police violence. They were not using any violence. The Prosecutor’s Office requested the court to issue detention warrants against two KGEU members, but the court refused it.
150. 585. At the end of September, MOGAHA instructed “the local governments to be cooperative to constantly promote transformation of illegal organizations into legal trade unions (voluntary withdrawal of membership), to conclude forceful closing down of illegal organizations’ offices and to thoroughly monitor the offices closed down in order not to be used again” (Incehon Metropolitan City, official letter, General Affairs Department–19041, 4 October 2006). This instruction as well went down along the line of the government structure. Referring to the MOGAHA meeting and the Directive from the Seoul Metropolitan City, the Jongro-gu municipality instructed the heads of its departments “to thoroughly implement the government instruction, which are: (1) voluntary withdrawal of membership from illegal organizations; (2) prohibition of check-off of union dues (including cancellation of CMS); (3) thorough management after closing down of the KGEU office; (4) transformation and establishment of legal trade unions” (Seoul Jongro-gu Municipality, official letter, General Affairs Department–12289, 13 October 2006).
151. 586. The KGEU also refers to the report of the ICFTU/TUAC/GUFs joint mission to the Republic of Korea which took place from 24 to 26 August 2006. The mission pinpointed certain issues such as a deeply disturbing pressure on public sector workers (personal telephone calls outside working hours to the homes of KGEU members and their families; threats to local authorities that had no desire to impose restrictions on organizing, that their receipts of public funds could be at risk) and strongly condemned the violation of public servants’ right to freedom of association with the forced closure of many union offices which had accelerated in the course of 2006.
152. 587. The mission report also pointed out the informalization of the economy and the criminalization of trade unionists who attempted to organize informal sector workers. It referred in particular to the construction sector which had recently experienced a surge of incarcerations (more than 100 construction sector trade union activists imprisoned for what in other countries would be normal trade union activities, i.e. collective bargaining with main building contractors). The most serious charges construed collective bargaining with main contractors on behalf of subcontracted workers as extortion, despite the fact that the contractors had come to the table and were ready to negotiate. According to the report of the more than 2 million workers in the construction industry, 80 per cent were irregular workers. The majority of workers worked 12 hours a day, seven days a week with no suitable facilities, medical benefits, vacation or other time paid. The system of payment was such that workers were not paid until at least one or two months after they had completed work. Notwithstanding the difficulties, construction unions had been actively trying to organize workers in the industry. If unions were capable of organizing them, then there were no excuses for not negotiating better working conditions for all workers, hence the heavy repression directed towards the unions.
153. 588. According to the mission report, this situation took a tragic turn in August 2006 with the death of Ha Jeung Koon, a member of the Pohand local union of the KFCITU who died after a severe beating by riot police during one of the demonstrations organized by the union. The mission report recalled that another worker, Kim Tae-hwan, Chairperson of FKTU’s Chungju regional chapter was killed on 14 June 2005 when he was run over by a cement truck while on the picket line in front of the Sajo Remicon cement factory. The mission identified an intensifying precariousness of the workforce and accelerating attempts to weaken the principle of collective representation by the labour movement.
154. 589. Finally, the fact-finding mission was profoundly concerned at violence breaking out at peaceful rallies and demonstrations. Documented aggression had caused the deaths of two workers and injuries to many others and had led in recent months to the imprisonment of more than 100 unionists. The mission called for the immediate release of the detained trade unionists and urged the ILO and OECD to take all the appropriate steps to assist trade unions in the Republic of Korea in their legitimate claim to uphold workers’ rights: (1) the ILO should provide technical assistance in redrafting current legislation; and (2) the Committee on Freedom of Association and the OECD ELSA Committee should send a mission to the Republic of Korea to reinforce their respective monitoring process.
155. New allegations by the ICFTU
156. 590. In a communication dated 24 October 2006, the ICFTU alleges that 126 members of the KGEU were arrested during a peaceful rally on 22 June 2005 in Wonju City, Gangwon-Do Province. The purpose of the rally was to call on the local Wonju City government to stop the repression of the KGEU and start talks instead. Before the rally the KGEU had sent a letter to the mayor to call for talks concerning disciplinary measures taken against 395 local government employees (amounting to 35 per cent of all government employees in Wonju City) following the general strike on 15 November 2004. Twenty workers were dismissed before or during the month of June 2005. Furthermore, the local government withdrew from the collective agreement already signed with the KGEU Wonju Chapter and prohibited union activists and workers from holding union office. It denied the union the use of city facilities, closed the union’s office and refused to transfer union dues automatically. Hundreds of police officers surrounded the rally and used violence against the participants, despite their efforts to register the rally and its peaceful intentions to the police well in advance. All 126 unionists were released by 24 June 2005.
157. 591. Furthermore, the President of the KGEU, Kim Young-Gil, was sentenced to one year’s imprisonment on 24 June 2005. The sentence was suspended for two years, and followed his arrest on 8 April 2005 on charges related to the industrial action and ballot held in November 2004 by the KGEU. He was released after 75 days of imprisonment.
158. 592. Contrary to the observation of the Committee on Freedom of Association in its interim report (340th Report, paragraph 763), the KGEU is still considered an illegal trade union notwithstanding the entry into force of the Act on the Establishment and Operation of Public Officials’ Trade Unions on 28 January 2006. The KGEU continues to suffer repression, because it has refused to register under the new law. The ICFTU understands that if the KGEU were to register and become a legal trade union under the new law, it would have to expel present members, who are firefighters or public servants at Grade 5 or higher, or public servants exercising a number of different responsibilities. Due to the fact that the union has not been recognized as legal, it has been subject to heavy repression.
159. 593. Furthermore, on 14 May 2005, the police arrested the President of the new union Seoul-Gyeonggi-Incheon Migrant Workers’ Trade Union (MTU), Mr Anwar Hossain. Due to his long prison stay he became mentally ill and he was released temporarily for three months on 25 April 2006 on medical grounds. He was treated at a hospital in Suwon City.
160. 594. In addition to this, the Asiana Pilots’ Union (APU) went on strike on 17 July 2005 calling for participation in governing structures of the airline, more rest days, fewer flying hours and earlier retirement in order to guarantee safe flights. Management responded by trying to prevent pilots returning from flights from joining the strike by sending them to a hotel close to Incheon Airport. The APU consequently decided to go on a sit-in strike at the Sokrisan mountain youth hostel close to Incheon Airport to facilitate the participation of all pilots in the strike as no negotiation had taken place. After one week of the strike, the authorities tried to intimidate the APU to end the strike by threatening intervention. Finally, on 10 August, the Government decided to refer the dispute to emergency mediation, effectively ending the pilots’ right to strike. After the Government decided to end the strike, it deployed 1,800 riot police to the hostel where more than 400 Asiana pilots had been staying since the strike had been declared.
161. 595. However, the criteria for ordering emergency mediation under the law were not met in the pilots’ strike. Firstly, Asiana Airlines, the second biggest airline in the Republic of Korea, is a commercial airline. Commercial airlines do not come under the public service sector. Secondly, the strike did not spread to other sectors or other companies and could therefore not be considered vast under the law, and, thirdly, nothing indicated that the strike caused pronounced damage to the national economy within the 23 days that the strike lasted, or that it was endangering the daily life of the public. Using such drastic measures in this conflict seems disproportionate to the damage inflicted by the strike. The lack of proper legal basis for the Government’s decision to order emergency mediation has prompted other unions such as the pilot’s union at Korean Air to threaten solidarity strikes, and the KCTU threatened to urge its transport members to take similar action.
162. 596. Calls for including air transport under the category of essential public services were made immediately after the Asiana Airline strike. On 19 July 2005, Mokhee Lee, the fifth Chairperson of the ruling Uri Party (Our Open Party) policy coordination committee, who had previously stated that, “High-waged workers should be subject to certain limitations of their three basic workers’ rights” (the right to organize, collective bargaining and strike), stated that the ruling party would consider extending essential public services status to airlines. On 21 July 2005, the Grand National Party announced that they would draft a bill for the September session of the National Assembly, to include airlines under the definition of essential public services. On 8 August 2005, the Construction and Transportation Minister, Choo Byung-Jik, announced, “Given the economic importance of air transport and government efforts to promote the Republic of Korea as a logistics hub, we are planning to proactively look into designating the airline industry an essential public service.” Prior to 1996, the definition of public infrastructure (currently “essential public services”) included the airline industry; however, airlines were excluded from the list after the labour law revision of 1996.
163. 597. The ICFTU also alleges that on 12 April 2005, the process of collective bargaining was launched between different hospitals such as Korea University Hospital, Kyung Hee University Hospital, Ewha Hospital and their employees represented by the Korean Health Care Workers’ Union (KHWU). The employers did not bargain in good faith but awaited a government intervention. This attitude led the KHWU to announce that they would go on a one-day strike on 8 July. Despite the fact that the KHWU decided to maintain a minimum service, the Labour Relations Commission (LRC) decided to refer the dispute to ex-officio arbitration on 7 July 2005, just in time to prevent strike action from being taken. The KHWU continued to try and reach a negotiated collective bargaining agreement, but the employer only wanted to wait for the award, which was to be announced on 22 July. In response, the KHWU decided to go on strike on 20 July. Thirty-six hospitals were involved in the strike which touched all of the abovementioned hospitals. When the award was announced on 22 July, the KHWU decided to reject the award because it saw the arbitration as a way of effectively denying it the right to pursue collective bargaining and promote bargaining in good faith, a necessary prerequisite for future collective bargaining and harmonious industrial relations at the hospitals.
164. 598. Furthermore, the ICFTU alleges the harassment of union representatives during minimum wage negotiations. The minimum wage system in the Republic of Korea was first adopted in 1988. A Minimum Wage Council (MWC) was created with 27 members, of which nine members represent respectively workers’, employers, and the public interest. The latter are appointed by the government; however, the ICFTU does not have information as to whether they are appointed after consultation with employers’ and workers’ representatives. The Council members decide on the legal minimum wage on the basis of majority vote by a majority of members present, according to article 17, section 3, of the Minimum Wage Act. Furthermore, one third or more employers’ and workers’ members respectively must be present in order for the decision to be valid, unless they have failed to attend without justifiable reasons after two or more summons according to article 17, section 4, of the Act.
165. 599. MWC negotiations about a new minimum wage in 2005 remained unresolved as workers’ representatives left the meeting on 29 June because the meeting took place in a very hostile environment. Police were present on all floors of the building that holds the offices of the MWC. Furthermore, the police monitored the meeting from the room adjacent to the room in which the “negotiations” took place with open doors. The workers’ representatives felt threatened by the heavy presence of the police officers and feared arrest at any time. The heavy presence of the police led the workers to believe that no real consultation or agreement was sought by the employer and government-appointed members of the council.
166. 600. Despite the walkout of the workers’ representatives and contrary to the quorum rules in article 17 of the Minimum Wage Act governing the MWC, a minimum wage rate was decided in the absence of all nine worker members on 29 June 2005. The decision was taken immediately after their departure with only seven public interest members and nine employer members present. No summonses were issued to workers’ representatives to ensure the proper quorum.
167. 601. In view of the above, the workers’ representatives complained about the decision of the MWC on 29 June 2005, both for formal and material breaches of the Minimum Wage Act. Firstly the workers’ representatives consider the decision invalid because quorum rules were not respected; secondly because social consideration and wealth distribution were not adequately taken into consideration during the negotiations at the Council before the decision was made. Regardless of the fact that the decision of the MWC was made in breach of the law, the Ministry of Labour chose to announce the decision of the new minimum wage level and it seems that it is determined to let the invalid decision taken by the MWC in June 2005 stand, contrary to Korean law.
168. 602. In addition to the above, the ICFTU alleges that Kim Tae-Hwan, head of the FKTU’s Chungju regional chapter, was run down and killed by a cement truck during a rally in Chungju, North Chungcheong Province on 14 June 2005. He was killed while he and other labour unionists were trying to block a truck that was being driven by a replacement driver hired by Sajo Remicon, a cement company, to fill in for striking drivers.
169. 603. The workers began their protests in front of Chungju City Hall on 14 June in the afternoon and moved on to Sajo Remicon, following the instruction of the FKTU ad hoc committee to hold a rally in front of Chungju City Hall at 2 p.m. every day. They tried to prevent the trucks driven by replacement drivers from entering the company. The workers, with the help of the FKTU, had demanded the conclusion of a collective bargaining agreement and a pay rise. They also called for the Government to recognize their status as workers so that they would be covered under the labour law.
170. 604. Concrete truck workers in the Republic of Korea are not covered under labour laws because they are categorized as self-employed. The union believes that there is a misuse of the term “self-employed” under the law, and that those such as concrete truck workers are only labelled self-employed in order for their employer to avoid extending full labour rights to these workers.
171. 605. The Government of the Republic of Korea has not made any efforts to investigate the incident that led to the death of Kim Tae-Hwan. Nor has anybody been held criminally responsible for his death. The employer felt moral responsibility to a certain degree, and gave KRW100 million to the bereaved family in compensation. However, the employer has not admitted any legal responsibility and did not want to take responsibility for hiring substitute workers to fill in for the company’s striking workers. The driver was arrested on charges of violation of the Road Traffic Law. However, he was held only briefly and released on probation. The driver was subsequently sentenced to ten months’ imprisonment, suspended for two years and 120 hours of community service. The incident was considered to be a mere traffic accident and the FKTU believes that the only reason that there was a trial at all, was because of the heavy pressure from unions; however, the driver was not the sole person responsible, and the union is dissatisfied that the incident has been treated as a mere traffic accident. The two unions have called on President Roh Moo-Hyun to take political responsibility for Kim Tae-Hwan’s death and dismiss the Labour Minister and the President’s Secretariat on Labour and to immediately hold a tripartite meeting in order to conclude pending issues related to atypical workers. They also demanded that the National Assembly set up a fact-finding committee for thorough investigation into the incident. The FKTU has distributed a CD containing the scene in which the late Kim was brutally killed. The ICFTU has produced a written transcript of this video and a copy of the CD-ROM with English subtitles of the scene was forwarded with the complaint.
172. 606. Finally, the ICFTU notes that in 2004 a total of 121 workers were indicted and that in April 2004 the number of workers that requested amnesty from the Minister of Justice amounted to 2,400. These numbers along with the violations described above and the information sent to the Committee on 3 May give a picture of a general lack of respect of trade union rights in the Republic of Korea and the present situation remains a serious concern to the ICFTU and its Korean affiliates.
173. Latest allegations by the KCTU
174. 607. In its communication dated 27 April 2007, the KCTU provides the following additional information. The KCTU first indicates that Cho Ki Hyun, previous President of the Daegu local union and three other union members have been found not guilty of extortion or blackmail and bribery. The KCTU first recalls that, in 2005, the prosecution began to investigate the Daegu local union’s organizing efforts resulting in the signing of site agreements with main contractors of construction sites.
175. 608. In June 2006, the Daegu local union began a strike involving 1,500 union members. The main demand of the strike was for a wage increase. Cho Ki Hyun, then President of the local and five other union leaders and organizers were issued arrest warrants regarding the site agreements signed in 2005.
176. 609. On 30 June 2006, Cho Ki Hyun was arrested and imprisoned. On 5 July 2006, the remaining four union leaders and organizers who were issued arrest warrants voluntarily “gave themselves up” to the local authorities. In total five were arrested for charges of bribery and extortion resulting from signing site agreements and another 20 trade unionists were imprisoned for participating in the strike organized by the Daegu local union in June 2006. Cho Ki Hyun was imprisoned from 30 June 2006 to 5 April 2007. Moon Jung Woo was sentenced for a period from 5 July to 17 November 2006. Oh Sang Ryong was sentenced for a period from 2 July to 17 November 2006.
177. 610. The first preliminary trial for Cho Ki Hyun, Moon Jung Woo and Oh Sang Ryong resulted in a mixed verdict; the plaintiffs and the prosecution appealed. The trials for the other two union members (Chian Ji Baek and Kwang Yong Ha) arrested for similar charges were proceeding separately during the appeal process.
178. 611. On 5 April 2007, the Daegu High Court found Cho Ki Hyun, Moon Jung Woo and Oh Sang Ryong not guilty of bribery and extortion related to the signing of site agreements. In the charge related to obstruction of business and use of violence in relation to the strike conducted in June 2006, the judge found them guilty and sentenced them to probation.
179. 612. The Court made the following decisions of intent: (1) Even though the daily construction workers in the Daegu metropolitan area are hired by subcontractors and thus not directly employed by principal contractors overseeing construction projects, nevertheless, the main contractors are still responsible for these daily workers in the area of safety and health, workmen’s compensation, contribution to retirement insurance, etc. Thus, the principal contractor is recognized as a bargaining partner for the union in the site bargaining agreement process; (2) As a result of the unique characteristics of local and industrial level union, the Daegu Construction Workers’ Union includes the defendants as union members, who have served for the union as full-time trade union officials and have not worked at the specific construction sites. In spite of the fact that, as long as they are considered legally as workers who have the right to join the union, the issue whether the defendants can serve for the union as full-time officials should be subject to the union’s independent decision.
180. 613. As regards the alleged threats to report occupational safety and health violations, the Court found: (1) From the viewpoint of workers whose interest is in conflict with employers’, it is legitimate and natural for workers to report on any illegal actions taken by principal contractors if these actions endanger the workers. In addition, it is within the scope of the union’s normal activities for the union to request the collective agreements and pressure the principal contractor to sign collective agreements; (2) In this case, the prosecution alleged that the union had threatened to report OHS and other environmental problems at the construction site as a pressure tactic to sign collective agreements. However, it should be noted that part of trade union activities is to ensure the safety of its members and that these provisions are included in a collective bargaining agreement. Thus, it is legitimate for the union to collect necessary information and data and take pictures in an effort to pressure the employer to sign a collective bargaining agreement. Since these activities are all part of normal trade union activities and the collective bargaining process, it cannot be viewed as forcing or blackmailing its manager to sign collective agreements. In addition, payment to union officials was part of the bargaining process and the payments were agreed upon by the principal contractor and the union, and thus this cannot be viewed as a form of blackmail or extortion.
181. 614. The KCTU also refers to a recent directive from MOGAHA which calls upon local offices to take further measures to put pressure on the membership of the unregistered KGEU offices.
182. C. The Government’s reply
183. 615. In a communication dated 23 February 2007, the Government indicates that, despite the recent remarkable progress achieved by tripartite agreement (i.e. abolishment of compulsory arbitration in essential public services, repealing notification requirement for third-party intervention and related penal provision, etc.), many major misunderstandings on the Korean situation remain or continue to occur because of some trade unions’ exaggerated or false arguments. Therefore, the Government aims to provide the Committee with detailed information based on the facts so that it can have an accurate and correct understanding on the Korean situation and thus be able to reach balanced and objective conclusions.
184. I. Progress made and basic labour rights
185. 616. The Government indicates that it has made continuous efforts to respect basic labour rights and improve industrial relations’ systems and laws. The present case dates back to March 1992. Since then, despite difficult social and economic situations caused by endlessly repeated general strikes and the financial crisis of 1997, most of the outstanding issues raised in the case have been completely resolved or at least improvements have been made as a result of the Government’s consistent endeavours.
186. 617. In particular, with substantial expansion of democratization in Korean society and socio-economic development in the 1990s, workers’ rights and working conditions have consequently improved. In terms of industrial relations, most workplaces have successfully maintained win-win relations through dialogue and compromise while avoiding the past confrontations and conflicts.
187. 618. Meanwhile, political as well as social systems are being developed and improved so as to enhance social and economic gains of all workers based on dialogue and participation. Some of these examples are the following: establishment of the Korea Tripartite Commission, a presidential advisory body, in 1999; operation of the High-level Tripartite Representatives’ Meeting in 2006; institutionalization of workers’ participation, such as the Korean Confederation of Trade Unions (KCTU), in various committees (e.g. Labour Relations Commission, Workplace Safety and Insurance Board, Employment Insurance Commission, Minimum Wage Council, etc.); establishment and operation of the Regional Tripartite Council; and reinforcement of the role of labour–management council in workplaces.
188. 619. The following points are the issues that had been resolved or improved by 2005 regarding complaints against the Government of the Republic of Korea: recognition of multiple unions at national level and legalization of the KCTU in 1999; enactment of the Teachers’ Trade Union Act and legalization of the Korea Teachers’ and Educational Workers’ Union in 1999; enforcement of the Act on Establishment and Operations, etc. of Public Officials’ Trade Unions on 28 January 2006; third-party intervention in labour disputes were changed from a permit system to a notification system in 1999; and guaranteed political activities of labour organizations and reduced the list of essential public services (dropped city bus services from the list).
189. 620. Since March 2003, when consultation on measures to reform industrial relations was launched, social partners had undergone serious negotiations at numerous meetings, including the ones at the Tripartite Commission, High-level Tripartite Representatives’ Meetings (established in June 2004, with the participation of both the KFTU and the KCTU), and Ministers’/Vice-Ministers’ meetings of related ministries (33 times). These meetings and negotiations finally led to a tripartite compromise on the reform of industrial relations laws and systems on 11 September 2006. Sadly enough, and to the disappointment of all the partners involved, the KCTU refused to be a part of this historical milestone.
190. 621. The highlights of the 11 September 2006 compromise are the following:
191. – abolishment of compulsory arbitration in essential public services;
192. – abolishment of notification requirements in the case of a third party’s intervention;
193. – make recall of redundant workers compulsory for all companies;
194. – suspend multiple trade unions at the enterprise level and the ban on wage payment to full-time union officials for three years until 31 December 2009.
195. 622. The compromise marked another very important turning point in the history of Korean industrial relations and resolved long-standing issues such as the abolishment of compulsory arbitration in essential public services. The National Assembly, which decided to respect the spirit of the compromise, passed a bill containing the contents of the compromise on 22 December 2006. This development has laid a foundation for advancing industrial relations systems and laws in the Republic of Korea.
196. II. Issues relating to public officials and the KGEU
197. 623. With regard to the specific complaints concerning the freedom of association rights of public officials and the KGEU in particular, the Government indicated the following. According to the social compromise in 1998, the Government has taken measures to ensure freedom of association for public officials. Since a compromise was made in February 1998 among the tripartite partners to “establish Public Officials’ Workplace Associations as a first step and allow trade unions as a second step”, the Government enacted the Act on Establishment and Management of Public Officials’ Workplace Associations in 1999. Later, based on public opinion and negotiations held at the tripartite commission for five years, the Act on the Establishment and Operation, etc. of Public Officials’ Trade Unions designed to ensure public officials’ right to organize and the right to bargain collectively and to conclude collective agreements was enacted on 27 January 2005. The right to strike was reserved and the Act came into force on 28 January 2006.
198. 624. With the enforcement of this Act, 70 per cent of the total 900,000 public officials are able to enjoy the right to organize. As of 31 December 2006, 630 organizations (190,000 members), including labour unions and workplace associations, are active nationwide. Since the enforcement of the Act on the Establishment and Operation, etc. of Public Officials’ Trade Unions on 28 January 2006, 70 public officials’ trade unions have been established (58,836 members) as of 31 December 2006, and 46 of them have conducted collective bargaining with the Government. This clearly illustrates that public officials’ union activities in the Republic of Korea are becoming more and more active.
199. 625. The measures taken by the Government of the Republic of Korea such as closing some illegally occupied KGEU offices were the results of various illegal activities of the KGEU. During the one-year grace period between the enactment (27 January 2005) and enforcement (28 January 2006) of the Act on the Establishment and Operation, etc. of Public Officials’ Trade Unions, the Government maintained tolerance to public officials’ activities related to preparation for establishing trade unions. However, the KGEU had undertaken illegal strikes and political activities long before the enforcement of the Act. When trade union activities were finally legalized on 28 January 2006, the KGEU still did not stop illegal activities. This time, they asked for the right to strike, while announcing directives for their members to refuse to obey the new law. The Government, which has to protect the Constitution and the public interest and maintain order, urged the KGEU to adhere to legal activities but the latter refused to do so and continued to resort to illegal means. As a result, the Government took a decision to close down illegally occupied offices in government buildings by the KGEU.
200. 626. The following paragraphs illustrate the KGEU’s specific illegal actions and the reasons for government reactions. First, the KGEU went on general strike, demanding the right to strike and continued to conduct various illegal collective activities. The KGEU demanded full guarantee of labour rights (right to organize, to engage in collective bargaining and to strike). Therefore, at the representatives’ meeting on 27 August 2005, they decided to nullify the Act on the Establishment and Operation, etc., of Public Officials’ Trade Unions because it reserved the right to strike. Later on, they issued a directive to all local branches ordering non-compliance with the law and prohibiting registration as trade unions. The KGEU went on a general strike in November 2002 and again in November 2004, demanding the right to strike. In November 2006, the KGEU participated in the general strike led by the KCTU under the slogan of anti-FTA negotiations on a pretext of solidarity.
201. 627. Meanwhile, the KGEU forcibly blocked some of its branches from registering as legal entities (Gyongnam and North Daegu Provincial Government in May 2006), and expelled branches and their presidents from the membership for conducting votes on registration as legal entities. Also, KGEU members undertook other illegal collective action including refusing to work on shifts for the civil service during lunchtime in October 2004, illegally occupying the office of the Minister of Government Administration and Home Affairs, taking collective leaves, supporting a particular political party and candidates, holding rallies to oppose relocation of the United States armed forces and military exercises, preparing for national emergencies, etc.
202. 628. Many ILO member countries (including the United States, Australia, Japan, Germany, etc.) reserve the right to strike for public officials. In addition, the Committee on Freedom of Association has confirmed on many occasions that, as for public officials, the right to strike is separate from the right to organize and the right to bargain collectively and it can be limited.
203. 629. Second, the KGEU systematically and illegally interfered in political affairs by violating constitutional principles of political neutrality and related laws. Article 7 of the Korean Constitution provides that the “status and political neutrality of public officials shall be guaranteed as prescribed by the Act”, which explicitly stipulates public officials’ duty to be politically neutral. Mandated by this article, the National Election Act and the State Public Officials’ Act prescribes that “Public officials shall not participate in political activities and be neutral in elections”. Less than three years in prison or a fine is imposed on those who violate this.
204. 630. Nevertheless, the KGEU members, who have the duty above and beyond others to abide by the law as public officials, frequently violated the constitutional responsibility of maintaining political neutrality and other related laws. The KGEU publicly declared that it would intervene in politics and would support the DLP in the election of members of the National Assembly (March 2004), called a press conference to announce that they would intervene in local elections (April 2006) and participated in election campaigns for the DLP at 670 election districts nationwide.
205. 631. The principle of political neutrality of public officials has been applied to all public officials in a fair and universal manner, and it has nothing to do with trade union activities. This principle is based on a social agreement to prevent public officials from being abused by a particular political power and to maintain their status and duties impartially as servants for the general public. The Constitutional Court ruled that “if public officials participate in election campaigns, they are likely to abuse their status and authorities for the sake of a particular candidate, and work or apply related laws unfairly in favour of certain election campaigns. Thus, prohibition of public officials from participating in election campaigns is constitutional” (June 2005). The principle of political neutrality of public officials has paved the way for the democratization of the country. Violation of this constitutional principle has nothing to do with the protection of the benefits of public officials and their trade unions and is rather more of a concern for the socio-political conflict and chaos that could ensue. In short, the KGEU’s intervention in elections undermines the principle of political neutrality enshrined in the Constitution and the State Public Officials’ Act, and is a violation of other election-related laws. This is irrelevant to a “unilateral prohibition of political activities of public officials’ trade unions” as argued by the KGEU or “a general prohibition of political activities of trade unions” as stated in the Committee on Freedom of Association’s 340th Report in paragraph 763.
206. 632. Meanwhile, with regard to KGEU’s systematic political interference, the Supreme Court ruled that Mr Kim Young-Gil, the former President of the KGEU, was guilty for violation of the State Public Officials’ Act and the Election Act of 2006.
207. 633. Third, the KGEU is engaging in political struggles with a biased ideology. The KGEU has been leading protests against major diplomatic and economic policies of the Government, which are unrelated to public officials’ socio-economic benefits, and taking part in various political demonstrations by systematically mobilizing its members. In addition, the KGEU orders its members to put up various political slogans and propaganda papers in government buildings and educate public officials politically and ideologically. The Government refers to the following examples:
208. – demonstration to oppose the Iraq war and troop dispatch to Iraq (2003–present);
209. – demonstration to oppose the WTO Ministerial Meeting and negotiations (October 2003);
210. – demonstration to oppose relocation of the United States military base to Pyongtaek City and demand withdrawal of United States armed forces (March 2005–present);
211. – demonstrations to oppose the APEC Summit and the visit of the United States President, to the Republic of Korea (November 2005); and
212. – holding of a press conference to demand abolition of the annual pan-governmental preparedness exercise in case of a Korean peninsula emergency, which started in 1976 by regarding it as the “military exercise targeting North Korea” (April 2006).
213. 634. Various directives for such political struggles are delivered to all the branches under a master plan designed by the KGEU, and members of the headquarters and branches participate in them in an organized manner. For example, the struggle plan for the second half of 2005, confirmed at the 12th Representatives Meeting on 27 August 2005, set “stopping globalization and neo-liberalism” as the major objective and protest against the APEC Summit Meeting and the United States President’s visit to the Republic of Korea was launched.
214. 635. On 4 May 2006, the KGEU issued another directive to its members on a purely political issue of United States military base relocation to Pyongtaek City. According to this directive, the KGEU joined the KCTU and the South Korean Federation of University Student Councils (the leftist student organization in the Republic of Korea) to organize a sudden raid. They destroyed barbed wires, broke into the military base and attacked soldiers with bamboo pipes which are particularly lethal as they are split at the end so that they can pierce into front nets of protection gear of police or soldiers and destroy their eyes. As a result, more than 30 young soldiers were wounded and several military tents and temporary guard posts were destroyed. (The Government attaches a relevant photo and press release).
215. 636. The Government notes in this respect that in its additional allegation of 24 October 2006, the KGEU falsely insisted that the violent demonstration in Pyongtaek City was the Government’s purposeful manipulation and that the Ulchi Focus Lens (annual pan-governmental emergency exercise) and the Pyongtaek City issue caused inconvenience to the general public and went against its interests and so protesting against these issues was a perfectly normal union activity.
216. 637. Recalling paragraph 502 of the Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, the Government emphasizes that as the only divided nation in the world since the Korean War, the Republic of Korea still faces military confrontations and tension. Against this background, the KGEU led political struggles with biased ideologies which are very much likely to bring about ideological confrontation and conflicts in Korean society (KGEU directives attached). Public officials’ organized strikes opposing the Government’s political and diplomatic policies with a particular political ideology, is definitely different from the opposition by the general public or social organizations. The same standard cannot be applied to public officials’ trade union activities and those of other trade unions.
217. 638. Fourth, the Government is not obliged to offer government buildings as a hotbed for illegal activities. So far, the KGEU has been occupying and using offices in government buildings without the approval of the person in charge of the maintenance of the buildings (chief executives of local government). Furthermore, even those who are not public officials have resided in government buildings, leading various illegal activities. Meanwhile, the chief executives of the local governments can order office users to move out before a certain deadline according to the Public Property Management Act and take forceful measures in case of non-compliance. Government buildings are not private offices for KGEU members and the Government has no obligation to offer buildings run on the people’s taxes to the KGEU who conduct illegal activities. Article 8 of the ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), prescribes that “in exercising the rights provided for in this Convention, workers and employers and their respective organizations, like other persons or organized collectivities, shall respect the law of the land”.
218. 639. Fifth, the Government’s measures to shut down offices are strictly limited to KGEU branches conducting illegal activities. Those branches conducting legal activities have been excluded from the Government’s measures (ten branches, including Busan Regional Branch). In addition, as stated earlier, the Government is conducting collective negotiations at the request of many other public officials’ trade unions affiliated with the Korean Federation of Government Employees (KFGE) while guaranteeing their legitimate union activities.
219. 640. Sixth, the Government’s decision to close down KGEU offices, was implemented in a due manner according to the related laws and regulations and the KGEU refused to follow the objection procedures prescribed by law. According to the provisions and procedures of the Administrative Execution Act, the Government can execute administrative orders in case of negligence in performance of a duty. For example, the Government may issue an order of correction against illegal facilities in or unlawful occupation of state-owned properties with a certain time limit. If the order is not fulfilled, the Government itself can execute the order after warnings and notices.
220. 641. Against the Government’s warnings and notices to close down illegally occupied offices in government buildings, the KGEU could have submitted an administrative appeal or filed a lawsuit to the court to apply for interim measures to suspend the execution. If the appeal is accepted, the execution in question (in the case of the KGEU, this would be the closing down of offices) will be suspended until the closure of the lawsuit according to relevant laws. In fact, in the case of the KGEU Wonju City Branch, the shutdown of the office was reserved because of the application for interim measures to the court to suspend the execution. However, the KGEU executive members decided not to follow the objection procedure guaranteed in the law. Instead, they chose to forcefully block the execution of the government orders by mobilizing all available means. Thus, in prediction of possible physical conflict with the KGEU following the so-called “die rather than surrender struggles” of the KGEU, government agencies carried out the shutting down of the KGEU offices with the protection of the police.
221. 642. With regard to the guidelines of the Ministry of Government Administration and Home Affairs (MOGAHA) and the Act on the Establishment and Operation, etc. of Public Officials’ Trade Unions, the Government indicates that long before the enforcement of the Act on the Establishment and Operation, etc. of Public Officials’ Trade Unions, the KGEU had been more interested in political interference, such as support of a certain party, which is prohibited in the State Public Officials’ Act, rather than in its true function as a trade union. Despite the fact that trade union activities have been legalized with the enforcement of the Act on 28 January 2006, the KGEU has demanded the right to strike for public officials and refused to carry out union activities in line with the law, only to cause problems such as leading illegal strikes and demonstrations, etc.
222. 643. After enforcement of the Act on the Establishment and Operation, etc. of Public Officials’ Trade Unions, the KGFE, the other umbrella union of public officials, registered as a trade union according to the law on 4 September 2006, in order to carry out legal union activities. As of the end of December 2006, a large number of public officials in 70 trade unions conducted legitimate union activities such as registering the establishment of labour unions according to the Act on the Establishment and Operation, etc. of Public Officials’ Trade Unions and requesting collective negotiations. The KGEU, however, has refused to abide by the law and continues to resort to illegal activities.
223. 644. Because of the obligation to protect the public interest and to maintain legal order, the Government cannot simply turn a blind eye to illegal activities of the KGEU. It is inevitable for the Government to put a restraint on violations of the law, and any country would have done the same. The government “directives” aim at protecting the right to organize of most public officials by preventing illegal activities, punishing law offenders, and recommending legal and rational union activities.
224. 645. With regard to the KGEU claim that the Act on the Establishment and Operation, etc. of Public Officials’ Trade Unions limits the right to organize because a large number of public officials are excluded from joining trade unions and that the right to act collectively is limited, the Government indicates that the Act was established in careful consideration of other countries’ legislation and the peculiarity of the Republic of Korea’s public official system, so as to meet internationally accepted standards. The Act limits the right to organize of certain public officials in consideration of the particular status of public officials, the nature of their job, and the peculiar labour relations of public officials in the Republic of Korea. However, considering examples from other countries, this is not an excessive limitation as claimed by the KGEU. Joining trade unions is restricted for uniformed public officials in particular positions such as soldiers, police officers, firefighters, etc. who perform jobs related to national security and the protection of the life and safety of the people. Public officials of Grade 5 or higher are directly engaged in policy decision-making and in managerial positions. Considering this, they are excluded from joining a trade union. This follows the provisions of ILO Conventions according to which those who make policy decisions and are in the position of senior administration can be restricted from joining a trade union according to domestic laws.
225. 646. Also, some public officials of Grade 6 or lower have been excluded from joining a trade union as they work on behalf of employers: those who direct and supervise other public officials or perform jobs related to personnel and remuneration, etc. If these public officials join a trade union, they are likely to undermine its autonomy by controlling it or intervening in its internal affairs. Also, the restriction of these public officials from joining a trade union aims to guarantee a balance of power between labour and management in order to secure the collective autonomy of labour and management.
226. 647. Unlike workers in the private sector, the status of public officials is guaranteed by the Constitution and related laws and most of their working conditions such as wages are determined within the limits set by laws and the budget at the National Assembly, which represents the people. Thus, an agreement based on free collective bargaining between the Government and public officials’ trade unions cannot be regarded as a final confirmation of all the working conditions of public officials. This is the case also in France, where collective agreements are regarded as gentlemen’s agreements. Therefore, there has to be at least partial limitations on the subjects of collective bargaining or the effectiveness of collective agreements and it is not proper to regard these limitations as a fundamental restriction of the principle of labour–management autonomy. Consequently, collective agreements for public officials cannot take precedence over the law and budget and matters relating to policy decisions or appointment of officers cannot be subject to collective bargaining.
227. 648. Meanwhile, considering the uniqueness of their status, public nature of their work, the fact that working conditions are fixed by law, and the need for continued national functions, the right to collective action is limited by law. Instead, the “Labour Relations Mediation Commission for Public Officials”, a neutral organization for dispute mediation between labour and management, has been established and is in operation. There are no ILO Conventions that guarantee the right to act collectively such as the right to strike for public officials and the Committee on Freedom of Association recognizes that this right can be restricted for public officials who exercise authority in the name of the State. Furthermore, given that Japan and Germany, which have similar legal systems to the Republic of Korea, prohibit the right to act collectively for public officials, restricting this right for public officials who exercise authority in the name of the State, is not questionable.
228. 649. Meanwhile, the ICFTU’s report (attached in the KCTU/KGEU complaint of 24 October 2006) extremely distorted the facts. The Government, therefore, will concentrate on a few simple facts.
229. (a) Regarding the “Directive establishing possible prison terms for wearing a vest with trade union insignia during working hours”, practices in violation of uniform codes of public officials could be followed by disciplinary measures including warnings according to internal procedures of the institution in question, but criminal punishment cannot be carried out by the MOGAHA Directive. It is common sense that judicial measures are taken according to a court decision when there is a prosecution on a crime clearly stated in the law. The so-called MOGAHA Directive does not have the contents asserted by the ICFTU.
230. (b) Dismissal-related assertions of public officials of the RDA are unfounded. The reason for their dismissal was not their “demand for negotiations” but the fact that they violated the State Public Officials’ Act, organizing illegal collective actions and deserting their posts without leave to lead unlawful gatherings. In particular, it is argued that the Government designated them as workers in essential public services but this only proves ignorance of the facts. Essential public services are not associated with government agencies at all. Instead, some public enterprises that exert an important influence on the people’s life and safety are designated as essential public services. Thus, the issue of essential public services is not related to the public officials in the RDA, which is a government agency.
231. Meanwhile, as part of efforts to persuade illegal organizations to convert into legal labour unions, some chief executives of local governments, etc. sent staff members and their families a letter persuading them to withdraw from illegal organizations. The letter is to allow the family members to acknowledge possible domestic problems caused by illegal activities, because in struggles and demonstrations of trade unions, union members’ families are mobilized with an aim to encourage unionists to struggle for a longer period of time and to conduct propaganda. If public officials, who are heads of the household, are disadvantaged after conducting illegal collective action, their family members will have difficulty maintaining their livelihood. Thus, this is an active measure to protect union members’ families.
232. III. Issues relating to trade unions in
233. the construction industry
234. 650. The Government points out that the recent surge in the number of arrests among construction union members, has been the result of extremely violent behaviour and corruption on their part and is totally unrelated to freedom of association.
235. 651. With regard to the arrest of union members and the deaths of unionists, the Government indicates that negotiations between the local construction unions and the specialized construction companies’ council showed little progress because of issues such as giving priority to trade union members in hiring. Then the local construction unions forcibly occupied the original contractor’s office – the third party who placed the construction order – and behaved extremely violently, destroying facilities and assaulting policemen (the Government attaches a photo and press report).
236. 652. With regard to the Pohang local construction unions (July 2006) the Government indicates that 1,500 unionists broke into POSCO, the company that originally placed the construction order, temporarily confined 600 employees, occupied the company building for a period of nine days and destroyed and damaged offices and properties. They claimed that the occupation was accidental but the huge amount of prepared food and water, plus various weapons disprove their assertion. In addition, they assaulted and injured policemen by firing private made flamethrowers, pouring boiling water and wielding iron pipes, etc.
237. 653. With regard to the Daegu and Gyungbook construction unions (June 2006), the Government indicates that more than 700 unionists occupied the street in front of the police office, destroyed the civil service centre of the police station and exerted violence with iron pipes, etc. In order to put pressure on the original contractor, unrelated third party, some 70 unionists occupied the 33rd floor of an apartment building in a construction site for 12 days to go on a sit-in strike (the Government attaches photos).
238. 654. With regard to the Ulsan plant construction unions (May 2005), the Government indicates that unionists occupied an important security facility (oil refinery tower) of the SK company, the original contractor (the third party), as well as the Ulsan City Hall. In the course of trespassing into the SK plant, some 700 unionists used iron pipes and sharply filed iron spears to attack policemen who were blocking them (the Government attaches a photo). As a result, some 100 policemen were seriously wounded.
239. 655. The death of Mr Ha Jeung Koon, a member of the Pohang local union, on 16 July 2006, referred in the report of the international trade unions including the ICFTU, occurred in the chaos of extreme violence led by the Construction Confederation of the KCTU to support the Pohang local union’s forceful occupation struggle on POSCO. The prosecutors are investigating the cause of his death, and measures will be taken based on the results. Meanwhile, the violent struggle on that day was also organized on purpose; the unionists wore masks and assaulted policemen with iron pipes as soon as the assembly was over. Over 2,500 iron pipes were collected at the scene of the violence.
240. 656. The death of Mr Kim Tae Hwan, chief director of Chungbuk Province branch of the FKTU, claimed by the ICFTU, was regretful, but it was a traffic accident; Mr Kim tried to stop a car carrying goods of the company during the strike and was hit by the car. The driver of the vehicle was punished accordingly.
241. 657. With regard to the efforts undertaken by the Government to support construction workers and unions, it is indicated that in order to promote job security and the welfare of construction workers, the “Act on the Employment Improvement, etc. of Construction Workers” was enacted in February 1998, and the “Basic Plan for Employment Improvement of construction workers” was established and is now being implemented. In addition to industrial accident compensation insurance and health insurance, the coverage of employment insurance was extended to construction workers in 2004. Also, in August 2001, the coverage of social insurance and the mutual retirement aid system for construction workers was expanded, and various measures have been implemented such as support for vocational training costs and living expenses. In terms of safety at work, the “Five Year Plan for the Prevention of Industrial Accidents” has been established.
242. 658. Meanwhile, since the financial crisis in 1998, the Government has supported union projects and activities by subsidizing operating expenses for construction union job placement centres run by local construction unions and providing working expenses for construction worker training projects carried out by trade unions. Also, in regional labour administrations and local governments, the Government helped local construction unions and employers (or employers’ associations) engage in collective bargaining.
243. 659. Thus, the Government makes very clear that it has never blocked construction workers’ efforts to organize trade unions or suppress union activities, nor does it have any reason to do so. With regard to the claim that the judicial authorities are deliberately suppressing trade union activities in the absence of a complaint by the employers, the Government indicates that, as in other countries, the Republic of Korea’s judicial authorities can carry out investigations regardless of complaints. Moreover, concerning the unions’ systematic extortion in the apartment construction sites, the employers’ association clearly raised an issue and filed a complaint to the authorities concerned. In November 2005, these employers filed a complaint to the Minister of Labour against the unions’ demand for money in the name of wage payment to full-time union officers. Likewise, the employers demanded a punishment of the unionists’ illegal activities according to the law, and some companies actually declared that the collective bargaining agreements were illegal and that they would file a civil suit to claim the money paid.
244. 660. It is true that some working conditions of construction workers are relatively poorer than those of other industries. Thus, the Government has adopted additional laws for job security and welfare promotion and is now implementing comprehensive measures unlike in other industries. However, much of the unions’ claims on working hours, social security, industrial safety, statistics on non-regular workers, etc. are groundless and extremely exaggerated. This document will not try to touch upon all of the issues, but some examples are illustrated below:
245. n The main concern for construction workers is not specific working conditions, such as wages, working hours or safety at work. It is rather job precariousness because their jobs are not permanent and are unstable depending on business fluctuations and seasonal factors. As evidenced by recent labour–management conflicts (e.g. Pohang construction unions, Ulsan plant unions, and Daegu construction unions), the most outstanding issue has always been “giving priority to labour union members in hiring”.
246. n The average working hours of construction workers per week stand at 42.8 hours, and overtime premium (150 per cent) is guaranteed in the law. Health insurance and industrial accident compensation insurance is provided. One cannot say that their wages are low, although variations exist by occupation.
247. n According to the criteria agreed by the tripartite partners, non-regular workers in the Republic of Korea account for 35.6 per cent of the entire workforce, including short-term or fixed-term contract workers, part-time workers and non-standard forms of employment like dispatched workers. This range of non-regular workers is wider than that of the OECD.
248. n The unions’ claim that they cleared overdue wages of US$1.25 million in the first half of 2003 is distorted. In the Republic of Korea, labour inspectors and prosecutors take charge of the clearance of overdue wages. When the clearance is impossible due to bankruptcy, etc., the Government pays overdue wages to workers through the wage claim guarantee system. Thus, if an employer does not pay wages, construction workers and labour unions file a complaint to the regional labour offices.
249. IV. Protests and demonstrations
250. 661. With regard to measures taken against protests and demonstrations, the Government indicates that peaceful assembly and demonstration are guaranteed in the Constitution and in other laws. In 2006 alone, up until October, there were an average of 30 street assemblies and demonstrations per day (a total of 8,553 cases involving an average of 6,700 daily participants). Thus, various assemblies held by unions have become a part of daily life and, in most cases, they are held in the street illegally, causing inconvenience to citizens.
251. 662. In particular, on 22 November 2006, during the general strike led by the KCTU, the KCTU and its affiliated demonstrators opposing FTA negotiations attacked seven city halls and local government buildings across the nation, damaged properties, used violence, such as arson, and assaulted policemen who guarded government offices (the Government attached a photo). Three thousand KCTU members protested on 1 December 2006, against the passing of the Non-Regular Workers’ Protection Bill by the National Assembly. In the course of their forceful march into the National Assembly, they physically abused policemen with bamboo bars, etc. From 1 to 5 December 2006, the KCTU and the Korean Automobile Workers’ Federation (KAWF) assaulted automobile workers all over the nation, who did not participate in the strike, throwing stones at travelling trucks to damage 89 trucks, throwing Molotov cocktails and 17 trucks were burnt down. Ironically, most of the issues that the unionists asked the Government during these general strikes were to withdraw major legislations that the Government pursued for the protection of workers’ rights, which were the final products of long and difficult social dialogues and debates that accommodated most of the unions’ demands. Introduction of the five-day work-week system and the Non-Regular Workers’ Protection Act are good examples, to name a few.
252. 663. In addition, in some general strikes, political or obscure issues not related to an improvement of workers’ socio-economic benefits, such as the withdrawal of Korean troops from Iraq, termination of neo-liberalism, opposition to FTA negotiations, etc. are the main demand to the Government. Also, unions actively participate in illegal assemblies and demonstrations such as demonstrations against relocation of the United States armed forces bases, and demonstrations against the APEC Summit, etc., using violent means.
253. 664. The same goes for the Reform Measures for Advanced Industrial Relations Laws and Systems (Roadmap), and the Act on Establishment and Operations etc. of Public Officials’ Trade Unions, etc. The KCTU is claiming that the Government is pursuing these measures in a unilateral manner. However, they are refusing to participate in any dialogue, or when extreme claims (for example, complete recognition of the right to strike for public officials in general) are not met, they often make distorted assertions and refuse dialogue with the Government.
254. 665. For the past three years, 2,263 police officers were injured with Molotov cocktails, iron pipes, bamboo bars, square bars, privately made flamethrowers, etc. during unlawful violent demonstrations. People outside the Republic of Korea may often misinterpret conflicts and confrontations between the Government and the KCTU as a suppression of peaceful and legal union activities. However, this misinterpretation comes from a lack of awareness of the militant and political tendency of the KCTU. It is not proper for those who should assume the responsibility for these violent acts to condemn the Government for “using violent means on peaceful demonstrations” and “prosecuting a number of unionists”, as the ICFTU did.
255. 666. Currently, the KCTU represents less than 6 per cent of the entire wage earners. However, they are mainly composed of unions from large companies and the public sector that have big socio-economic repercussions, so their power and social responsibilities are considerable. Nevertheless, some KCTU members with much better working conditions than other workplaces have waged annual strikes. This, together with a series of recent corruption scandals involving unions, has been faced with a growing social criticism from the people. Furthermore, within the unions themselves, there is a marked increase in voices calling for self-examination of the labour movement.
256. 667. Meanwhile, their strike campaigns are led by a number of high-ranking union officials who receive full wages from employers for doing nothing for the company but only to concentrate on organizing struggles. During strikes, completely blocking the entrances into the workplace, threatening and using violence on those who do not participate in the strike and on company managers is a common occurrence. Demanding exemption from civil and penal responsibility for illegal activities and compensation of wage losses during a strike has become customary practice, in violation of the “no work, no pay” principle. Given this background, a series of withdrawals of membership from the KCTU of many leading companies, including the GS Caltex (October 2004), Hyundai Heavy Industries Co Ltd (September 2004), Hyosung (February 2002), Daerim (2006) and Kolon (end of 2006) represents the views of the people towards excessive and violent labour movements in the Republic of Korea.
257. V. Individual cases in the public service (railroad/Asiana/Korean Air/power/hospitals)
258. 668. With regard to the allegations of the KPSU of 1 September 2006, the Government indicates that compulsory arbitration in essential public services, such as the railroad, power industry and hospitals, etc., was not to undermine the right of trade unions to act collectively. It was an inevitable measure in consideration of the public interest such as people’s daily lives, safety, health and the national economy, etc. The Constitutional Court ruled with regard to compulsory arbitration in essential public services, that its legislative purpose is legitimate, and there is a balance between the public interest that it intends to protect and the private interest that is restricted, so that compulsory arbitration in essential public services is not in violation of the constitutional principle of proportionality. Thus, the Constitutional Court ruled that compulsory arbitration in essential public services was constitutional (see 2001Hun-Ka31 Decisions of the Korean Constitutional Court 2001).
259. 669. However, respecting the ILO recommendations, compulsory arbitration in essential public services has been abolished based on the social compromise of 11 September 2006, while maintaining minimum services and allowing the use of replacements in the event of a strike. (A related bill was passed in the National Assembly on 22 December 2006.) This made it possible to achieve a balance between the exercise of the right to strike and the protection of the public interest and allow disputes to be settled between trade unions and management.
260. 670. The KCTU is arguing that the Government of the Republic of Korea intends to broaden anti-union activities through expansion of the scope of essential public services, and introduction of the obligation to maintain minimum services, etc. This is not true. The ILO mentions the “minimum service” as a legislation to limit the exercise of the right to strike in public services, in cases where suspension or closure of those services manifestly endangers the daily life of the general public. The minimum services must be ensured even in the event of a strike for the protection of the public interest. In its Digest, the Committee on Freedom of Association noted that minimum services include companies’ loading and unloading services, managing port facilities, subway services, passenger and freight traffic, railroad services, mail services, etc. Thus, the scope of essential public services, subject to the requirement of the minimum service, is in line with internationally accepted standards. Also, in terms of the process for determining the minimum services, the Government only provides legal standards, while labour and management specifically agree on the details. This is in line with the basic principles of the ILO.
261. 671. In addition, reflecting the recent changes in industrial structure and lifestyle, the expansion of the scope of essential public services was agreed by labour, management and the Government for the protection of the public interest (the KCTU refused to participate in the talks). In the case of air traffic, it was considered that it bears an intimate relationship with the daily life of the general public and significantly affects the national economy, and there are limits on the replacement by other transportation means. The blood supply service was added in essential public services because it is closely related to the life and health of the general public, and was impossible to substitute with other industries (in this case, strikes are allowed, but minimum services must be maintained).
262. VI. Claims concerning the minimum wage
263. 672. With regard to the allegations of the ICFTU of 24 October 2006, the Government indicates that, in the Republic of Korea, the minimum wage is decided with the attendance of a majority of all members on the register of the Minimum Wage Council and by a concurrent vote of a majority of members present. It would have been a violation of this provision if the Council scheduled or conducted a vote without the presence of worker members. In the case of the vote on the minimum wage in 2005, although the sixth meeting (June 2005), was repeatedly suspended, it continued for a long time with the participation of worker members. When the chairperson put the bill to a vote, worker members walked out, which was considered as giving up their voting rights and abstaining from voting. In fact, in the past, when one party, be it employer members or public interest members or worker members, walked out after the declaration of the beginning of the vote, this was regarded as an abstention. Thus, the voting was conducted legitimately according to the Minimum Wage Act and established practices of the Council (the worker members have walked out five times (1988, 1993, 1994, 2003 and 2005) while the employer members have walked out three times (1989, 1991 and 1996)).
264. 673. With regard to the allegation that worker members walked out without exercising their voting rights because of threats to arrest them using police force, the Government indicates that the police were placed outside the meeting room just in case, because KCTU unionists illegally occupied the meeting room during the plenary session on the previous day (28 June) and the session was discontinued. Thus, the trade unions’ assertion that the meeting was held in threatening circumstances is false.
265. VII. The Government’s position on the 340th Report of the Committee on Freedom of Association (March 2006)
266. 674. The Government of the Republic of Korea is greatly disappointed and concerned that the 340th Report of the Committee on Freedom of Association is considerably biased and that, in some parts of the report, the Committee unilaterally accepted trade unions’ claims without providing clear evidence to support them, and criticized the Government of the Republic of Korea.
267. 675. With regard to the information requested by the Committee on the dismissed KGEU members, the Government indicates that Kim Sang-Geol, Oh Myeong-Nam, and other persons, have been found guilty in the courts. For this reason, they have been automatically retired from public service according to the Local Public Officials’ Act. With regard to the administrative lawsuits involving Ko Gwang-Sik, Han Seok-Woo, Kim Young-Gil, Kang Dong-Jin, Kim Jong-Yeon and other persons, the Government provides the following information:
268. Name (position)
269. Date of reprimand
270. Reasons for reprimand
271. Results
272. Appeals
273. Lawsuit
274. Current status
275. Han Seok-Woo
276. (Busan, Grade 7)
277. December 2002
278. Led organization of KAGEWC and illegal assembly
279. Discharged
280. Case dismissed
281. (July 2003)
282. – First trial: One-year imprisonment with a two-year suspension of execution/a fine of KRW500,000
283. (February 2003)
284. – Second trial: KRW10 million fine
285. (November 2003)
286. Dismissed
287. Ko Gawng-Sik
288. (Incheon, Grade 7)
289. December 2002
290. Led organization of KGEU
291. Discharged
292. Case dismissed
293. (March 2003)
294. – First trial: Case dismissed
295. (July 2005)
296. – Second trial: Case dismissed
297. (July 2006)
298. – Third trial: Case dismissed
299. (November 2006)
300. Dismissed
301. Oh Myeong-Nam
302. (Incheon, Grade 8)
303. December 2002
304. Led organization of KAGEWC, etc.
305. Discharged
306. Suspended from office for two months
307. (February 2003)
308. – First trial: One-year imprisonment with a two-year suspension of execution
309. (July 2003)
310. – Second trial: Case dismissed
311. (September 2003)
312. – Third trial: Case dismissed
313. (December 2003)
314. Dismissed
315. (automatic retirement)
316. Kim Jong-Yeon
317. (Gyeonggi, Grade 7)
318. 2005
319. Illegal collective actions, insubordination, abandoning of post
320. Dismissed
321. Case dismissed
322. (March 2005)
323. – First trial: Case dismissed
324. (January 2006)
325. – Second trial: Ongoing
326. Dismissed
327. Kim Sang-Geol
328. (Chungbuk, Grade 7)
329. December 2002
330. Illegal collective actions
331. Discharged
332. Case dismissed
333. (August 2003)
334. – First trial: Case dismissed
335. (July 2004)
336. – Second trial: Withdrawal
337. Dismissed
338. Min Jeom-Gi
339. (Jeonnam, Grade 6)
340. December 2002
341. Illegal collective actions
342. Discharged
343. Suspended from office for two months (September 2003)
344. – First trial: Ten-year imprisonment with a two-year suspension of execution
345. (February 2005)
346. – Second trial: Case dismissed
347. (June 2005)
348. Dismissed
349. (automatic retirement)
350. Kim Young-Gil
351. (Gyeongnam,
352. Grade 6)
353. November 2004
354. Political interference, illegal collective actions
355. Dismissed
356. Case dismissed
357. (November 2006)
358. – First trial: To be filed
359. Dismissed
360. Kang Dong-Jin
361. (Gyeongnam,
362. Grade 7)
363. January 2005
364. Illegal collective actions
365. Dismissed
366. Case dismissed
367. (October 2005)
368. – First trial: Case dismissed
369. (June 2006)
370. – Second trial: Ongoing
371. Dismissed
372. 676. Concerning the appeal case of Kwon Young-Gil, the former President of KCTU, on 11 January 2006, he was sentenced to a fine of KRW15 million. An appeal was taken to the Supreme Court and the trial is ongoing. With regard to Oh Young-Hwan (President of Busan Urban Transit Authority Workers’ Union) and Yoon Tae-Soo (First Executive Director of Policy of the Korean Financial Industry Union), the Government indicates that it respects the ILO recommendations and is making efforts to keep criminal punishment to a minimum by, for instance, minimizing arrests as much as possible, even in the case of an illegal strike, if the strike did not involve acts of violence. Oh Young-Hwan was sentenced to a fine of KRW10 million at the second trial on 18 June 2004. The fine was finally confirmed at the third trial on 15 October 2004, after his appeal filed with the Supreme Court was dismissed. Yoon Tae-Soo was sentenced to one year in prison with a three-year suspension of execution in the first trial on 2 September 2003. His appeals taken to a higher court and the Supreme Court were both dismissed and the sentence was confirmed on 12 November 2004.
373. 677. Furthermore, with regard to the KGEU, the Government expresses concern that, in its report, the Committee on Freedom of Association saw the KGEU’s illegal activities, such as strikes and political interventions, as legitimate union activities, and expressed itself as if the Government had suppressed those activities. Concerning the public officials’ right to strike (paragraph 781(a)(iii), (f), (g), and paragraphs 764 and 766 of the 340th Report of the Committee on Freedom of Association), the Government recalls that, so far, the Committee has clearly and consistently confirmed that “the right to strike can be restricted for public servants exercising authority in the name of the State”. The Government does not want to believe that the Committee has lost its consistency only in the case of the KGEU. However, unlike its stance mentioned above and unlike what it has recommended for other member countries, the Committee’s recommendation, made in the 340th Report, said that the Government of the Republic of Korea should, without exception, grant the right to strike to public officials (narrowly defined as public officials working for the Government). If not, at least the recommendation leaves such a possibility of misunderstanding wide open. Above all, it seems that the Committee’s conclusions mainly resulted from its lack of understanding of the Republic of Korea’s public officials system and the outstanding issues regarding the KGEU.
374. 678. Firstly, KGEU members are “professional government officials” and “public servants exercising authority in the name of the State”. The Korean public officials’ system is composed of professional government officials exercising authority in the name of the State, who are subject to the Public Officials’ Act. Meanwhile, according to the recent Act on Establishment and Operation of Public Officials’ Trade Unions, these government officials have come to enjoy the right to organize and the right to collective bargaining but the right to collective action has been limited. Members of the KGEU fall under this particular category of government officials and are, therefore, professional government officials, who exercise authority in the name of the State. On the other hand, the right to collective action had already been recognized for the officials engaged in manual labour and not exercising authority in the name of the State, such as those in postal services and the National Medical Center.
375. 679. Secondly, KGEU members are distinguished from government employees. In the Government, there are government employees who are not professional government officials. Even though they work in the government organization, their status is that of a civilian. Therefore, these government employees are not subject to the Public Officials’ Act as well as the Act on Establishment and Operation of Public Officials’ Trade Unions. Instead, they have already been guaranteed the three labour rights (to organize, collective bargaining, strike), including the right to collective action, in accordance with general labour laws. They have their own union and are not members of the KGEU. For example, public officials of the Ministry of Labour (union members) are subject to public officials-related laws and the Act on Establishment and Operation of Public Officials’ Trade Unions and are denied the right to collective action, while government employees (civilian status) and civilian employees working in job centres of the Ministry are guaranteed all labour rights pursuant to general labour laws (for example, the Job Counselors’ Trade Union of the Ministry of Labour went on strike and signed collective agreements with the Ministry in 2003). In relation to this, the KGEU has adopted the term “government employee” in English. But this term is misleading. If its Korean name were correctly translated, the English name would have been the “Korean Government Officials’ Trade Union”. In fact, this is exactly what the KGEU call themselves in Korean, which implies that they are differentiating themselves from the other government employees.
376. 680. Thirdly, in the Republic of Korea, the issue of essential/non-essential services is completely unrelated to the issue of government officials. In other words, only those state-run companies (power plant, railways, etc.) or private firms (hospitals, oil refineries and supply) where all three basic rights are recognized but have direct influence on people’s lives and safety, are designated as essential public services. Workers in essential/non-essential public services all have a civilian status and are subject to general labour laws, so there cannot be any KGEU members involved in essential/non-essential public services.
377. 681. Fourthly, KGEU members are public officials for whom the right to strike can be limited according to ILO standards. Therefore, the Committee’s conclusion is not correct, both in the factual and legislative contexts. Judging from the Committee’s conclusion, the Committee seems either to confuse members of the KGEU with government employees for whom the three labour rights are recognized or to consider that the KGEU’s membership covers civilians engaged in essential public services. The Committee in its report apparently describes strikes staged by the KGEU to demand the right to strike as legitimate union activities (“their activities aimed at greater recognition of trade union rights …”, “the public servants should enjoy the right to strike …” (paragraphs 766 and 781(f)) and “requests the government to refrain from any act of interference in the activities …” (paragraph 781(g)). In order to reach a conclusion like this, there must be an assumption: the right to strike must be recognized for the KGEU and the strikes by the KGEU are legitimate.
378. 682. In the case of public officials whose right to strike is restricted, their activities aimed at acquiring the right to strike, such as internally collecting opinions, externally expressing their opinions or appealing to the general public, may be allowed. However, these activities must be distinguished from industrial action.
379. 683. Meanwhile, because of the recommendations made by the Governing Body in March 2006, with which the Government of the Republic of Korea disagrees, the KGEU keeps making wrong demands that public officials, except for those who carry out essential work, must universally be given the right to collective action (strike). What they mean by essential work is clearly different from the concept of essential public services. Also, it is impossible to determine whether work performed by public officials is essential or non-essential.
380. 684. Fifthly, the Committee should provide reasons why strikes by the KGEU are legitimate. The Government takes note of paragraph 764, in particular. With regard to the legitimacy of the strike staged on 14 November 2004, the Committee seems to argue that the KGEU’s right to strike must be recognized because its members are neither public servants exercising authority in the name of the State nor are they engaged in essential public services. However, regrettably, the Committee did not provide grounds to support such arguments. The Committee, before making any conclusions on the issue of the KGEU, should have clearly stated the reasons why it saw public officials of the KGEU as public servants whose right to strike is not restricted, that is, why it did not see them as public servants acting in their capacity as agents of the public authority.
381. 685. The Government does not know the job status of each and every individual KGEU member because the latter is refusing to register itself with the authorities according to the Act on Establishment and Operation of Public Officials’ Trade Unions, demanding the recognition of its right to strike. However, based on the standards that the Committee has so far used, at least the majority of the members and its leaders at the centre of controversy over the issue of the KGEU are apparently considered public officials whose right to strike can be restricted. Even in case few, if any, members do not fall into the category of public officials whose right to strike can be restricted, the KGEU’s act of going on an all-out strike, demanding the right to strike prescribed by the Trade Union and Labour Relations Adjustment Act cannot be seen as a legitimate collective action. Therefore, the Government would like to point out that the Committee should clarify its position on the right to strike in order to prevent any more confusion.
382. 686. With regard to the nature of the KGEU, the Government recalls that, according to the Committee, the KGEU should be considered a legitimate trade union as institutional obstacles have been removed with the passage of the Act on Establishment and Operation of Public Officials’ Trade Unions, and clarifies that the KGEU can never be regarded as a legitimate trade union as long as it demands the right to strike, refuses to register itself with the authorities pursuant to the Act on Establishment and Operation of Public Officials’ Trade Unions, engages in illegal and violent political struggles and violates the principles of the Constitution, public officials-related laws and election laws. Many local chapters of the KGEU have already vowed to be engaged in legitimate activities according to laws and registered themselves with the authorities after holding a yes-or-no vote among their members, so their legitimate union activities are firmly protected according to laws and principles.
383. 687. With regard to the right to organize for firefighters and public officials of Grade 5 or above (paragraph 781(a)(i) and (ii)), the Government considers that, given their unique status, the public nature of their work and the distinctiveness of industrial relations of the Republic of Korea’s public officials, the right to organize has been restricted for certain public officials according to the Constitution and laws and along the line of international standards. The restriction is not considered excessive compared with legislative examples in other countries. It cannot be seen as excessive that special public officials, such as soldiers, policemen, firefighters, etc., who perform work critical for maintaining national functions, such as ensuring national safety, protecting people’s lives and safety, etc., and wear uniforms at work, are restricted from joining a trade union. Public officials of Grade 5 or higher tend to directly take part in major policy decision-making and usually hold a managerial post, which is a characteristic of the Republic of Korea’s strongly hierarchical public official system. Given this, they are excluded from those eligible to join a trade union. Such exclusion also conforms to the ILO Convention that allows restriction of the right to organize by national laws of “policy decision-makers or those in high-ranking managerial posts”.
384. 688. With regard to the request for a re-examination of the prosecution of Kim Young-Gil and Ahn Byeong-Soon, the Government indicates that the re-examination would be inappropriate for the following reasons. Firstly, Kim Young-Gil and Ahn Byeong-Soon fall into the category of public officials whose right to strike, like other KGEU public officials, is restricted. Both of them are responsible for planning policies for their Government agencies and exercise authority in their duties on behalf of their government agencies. Therefore, as mentioned above, the Committee’s prejudgement that KGEU members are public officials whose right to strike should be recognized is wrong in the factual and legislative contexts. Secondly, the Government of the Republic of Korea would like to point out that the Committee clearly stated in other cases that disciplinary punishment, such as dismissal, for collective action by public officials whose right to strike is restricted, do not run counter to the freedom of association principles (Case No. 1528, 277th Report). Thirdly, the Committee said that they were prosecuted for their activities aimed at acquiring recognition of their union in violation of the State Public Officials’ Act, but this is wrong in the factual and legislative contexts. They staged strikes to demand their right to strike rather than to acquire recognition of their union, which was and is apparently against public officials-related laws, and they also interfered in political activities against election laws. Although the current Act on Establishment and Operation of Public Officials’ Trade Unions was enacted in January 2005, the legislation had already been promised to the nation as a campaign pledge (guarantee of the right to organize and the right to collective bargaining) during the 2002 presidential election, and with the announcement of a related government bill in June 2003, the recognition of public officials’ right to organize was prearranged. However, even after the announcement of the bill, they committed illegal acts, such as announcing a strike, holding strike ballots and staging a strike, demanding their right to strike. Fourthly, in relation to this, the Government of the Republic of Korea requests the Committee to explain the following points. (i) Does the Committee not view Kim Young-Gil and Ahn Byeong-Soon as public officials whose right to strike is restricted? If so, what is the ground for this? (ii) If they are seen as public officials whose right to strike is restricted, is dismissing and prosecuting them for their illegal collective action, such as strikes, illegal interference in election activities, etc., considered a breach of freedom of association?
385. 689. With regard to paragraphs 781(g) and 767 of the Committee’s 340th Report which requested the Government to give its opinions on the prohibition of interference in the KGEU’s activities and the ICFTU’s claims (15 November 2004) concerning the issue of unionists on strike injured during their arrest, and the issue of the anti-union campaign by MOGAHA, the Government indicates that it has made it clear that it has neither interfered in nor obstructed legal activities by trade unions and has no intention of doing so. When the Government enforces laws to deal with illegal, violent demonstrations by some labour groups, such as the KCTU and the KGEU, some injuries may be unintentionally inflicted due to physical clashes between demonstrators and the police. But contrary to expectations, in reality, many policemen have been injured by violence committed by the demonstrators. It is not true that MOGAHA launched a “New Wind Campaign” targeted at the KGEU in late 2004 to encourage “the reform of organizational culture with a focus on fostering public officials’ workplace councils and sound labour groups”. The “Hanmadang Festival for Harmony and Understanding”, organized by the workplace council of MOGAHA, was held on 21 December 2004. This event is misunderstood as the one organized by MOGAHA that intended to bring together all government officials workplace councils across the nation.
386. 690. With regard to the Committee’s recommendations on construction workers’ unions, in particular, the arrests of some local construction workers’ union officers for blackmailing employers and extorting money, the Government provides additional information to supplement its response already submitted on 28 February 2005, and to explain its position on the 340th Report of the Committee on Freedom of Association. These union officers visited many apartment construction sites where they have no employment relationship, extorted or made an attempt to extort money under the pretext of collective agreements, and threatened project managers who refused to accept their demand. They were convicted on blackmail charges by district courts after trial, and related appeals filed with a high court are under way. Considering diverse evidence verified by the competent authorities and their acts recognized by the courts, what they did and demanded can hardly be seen as legitimate union activities and wages for union officers that can be accepted by social norms.
387. 691. The following are the reasons for punishing them on charges of blackmail:
388. (i) The union officers belonged neither to the original contractor (principal contractor) nor to any of the local subcontractors, had no employment relationship with, nor worked for, any of the workplaces. They designated themselves as union officers and visited in a group apartment building sites where they demanded the signing of collective agreements requiring some money to be paid to them in the name of activity fees.
389. (ii) When asked to show a roster of union members, the union officers failed to show it. Even when workplaces refused to give money because there were no union members, they said that regardless of whether there was a union member or not, collective agreements should be signed, and demanded the workplaces to send KRW400,000 to their bank accounts in the name of activity fees every month. They also threatened the workplaces by saying that if the workplaces refused to pay the money, they would find various violations, including lack of safety equipment, and report them to the regional labour office, along with relevant photographs.
390. (iii) The union officers, whose aim was to get money from the management, did not care much about the signing of collective agreements. Even after the signing of collective agreements, they never appeared in the workplaces to keep watch on their industrial safety, once the workplaces sent the money promised.
391. (iv) If the construction sites refused to pay money, the union officers obstructed their business by staging a sit-down protest, blocking workers’ access to workplaces or by hindering the use of machines, causing a delay in construction schedules.
392. (v) If the construction sites did not accept their demands, the union officers took a photograph of any violations, such as failure to wear safety helmets (wearing safety helmets is an obligation union officers themselves must meet), and reported them to the Ministry of Labour or other relevant organizations, or even made a false report without checking the facts, as if the workplaces had violated mandatory safety measures.
393. (vi) Some of the reported workplaces were punished for their violations after investigation by authorities. Others turned out to have been fraudulently reported so the unions were punished on charges of false accusation. Many of the workplaces accepted their demand for fear of receiving unfavourable treatment as a result of accusation, such as delay of construction or prohibition from bidding for government construction contracts, so the project managers (supervisors sent by a construction firm to oversee construction sites) or working-level managers (managers and assistant managers) signed collective agreements and sent money to their bank accounts.
394. (vii) The union officers extorted money in the name of activity fees from many of the construction sites every month regularly (some construction sites paid once). Many of the union officers used their private bank accounts to receive the money from the companies. Half of them spent the money for their personal purposes irrelevant to their union. The other half divided the money among themselves and then spent it for their personal purposes instead of for union activities. The Cheonan/Asan Construction Workers’ Union extorted KRW42.55 million (US$42,000) and attempted to extort KRW6.99 million (US$7,000) per month from 22 construction sites from December 2004 to June 2006.
395. 692. With regard to this issue, the Government of the Republic of Korea reaffirms its position expressed at the 295th Session of the ILO Governing Body and expresses its grave regret over the conclusion and recommendations made in the 340th Report. It is greatly disappointing that the Committee, which had maintained its cautious stance on the issues pending before the courts by, for instance, asking for information, recommended in paragraph 781(h) that the Government of the Republic of Korea should re-examine the prosecution and conviction of those construction union members and make compensation to them. (In the Republic of Korea the executive cannot take any administrative measures to overturn decisions made by the judiciary.) The Government would like to point out that such Committee’s recommendations, particularly over the issues currently under trial, could be considered an act of interference with the principle of democracy and the independence of the judiciary and its trials.
396. 693. Concerning the court decisions (paragraphs 706–707, 772, 781(h)(i) of the Report), the Government has already explained why trade unions’ claims are in large part groundless. In this response, additional information is given to show that unions’ assertions on court decisions related to Daejeon/Chungcheong Construction Workers’ Union (six people) and Cheonan/Asan Construction Workers’ Union (two people) are factually wrong. Their claims are quoted from the Report of the Committee (paragraphs 772 and 781(h)(i), 340th Report). Firstly, unions claimed that the Daejeon District Court had handed down a light sentence against those construction union officers on 16 February 2004, ruling that they were not personally liable because they spent “activity fees” for the purposes of their organization. However, unlike the union’s arguments, the Court had not made such a ruling. With regard to blackmail and habitual blackmail charges, the Prosecutor’s Office brought against the union officers, the Court only said that “though they (union officers) are considered guilty of blackmail charges, their extortion of money does not constitute habitual blackmail because the act was committed according to the organization’s policy rather than their person habit”. “The term ‘habitual’ is used to describe the nature of an offender. So the fact that the dependants repeated the same crime several times cannot be enough of a reason to consider their act habitual. And they demanded activity fees according to their union’s policy. Therefore, there is no ground to see their act as habitual in terms of motives, circumstances and criminal records.” [Daejeon District Court on 16 February 2004, Cheonan Branch Court, on 27 August 2004, 8.27, etc.]
397. 694. Secondly, unions claimed that the court had ruled that the collective agreement made between the original contractor and the union shall apply only to the original contractor and union members concerned. But the claim is not true. On the contrary, the court acknowledged that even when an original contractor had no direct employment relationship with daily construction workers, in certain cases, the original contractor shares the responsibility to conduct collective bargaining with them. Notwithstanding, the union officers (dependants) were declared guilty because their acts and receipt of money were considered extortion as described above. The Daejeon District Court found in particular on 15 September 2004 (2004, No. 583):
398. Despite the fact that the original contractor has no direct employment contract with the daily construction workers, if the original contractor is in a position to realistically and specifically govern basic working conditions for the said workers to the point that it can be identified with the subcontractor which is the actual employer of the workers, the original contractor can be seen as the employer of the said workers and thus is responsible as much for conducting collective bargaining with them.
399. 695. Thirdly, the ICFTU, inter alia, claimed that the Vice-President of Cheonan/Asan Construction Workers’ Union, Rho Seon-Kyun, who joined the trade union in August 2003, was mistakenly prosecuted and fined lightly for what had happened before he joined the union. Again, this is not true. The court sentenced Rho Seon-Kyun to a fine based on the judgement that he joined the trade union on 1 August 2003 and extorted KRW9.45 million from 19 construction sites between 1 August and the end of September 2003 by forcing them to send money to his own bank account. On the other hand, the President of the Union, Park Young-Jae who was charged with collective blackmail during night-time, was sentenced to one year in prison. After sentencing, he was instantly arrested in the court because, at that moment, he was serving his term of suspension of execution after having been sentenced to imprisonment of eight months with a two-year suspension of execution on different charges on 9 July 2003. Unlike other union officers, Park was sentenced to one year in prison and arrested in the court for committing another offence during his suspension of execution (see paragraph 781(h) of the Report).
400. 696. As said before, the courts at each level recognized that all the union officers were found guilty of threat and coercion charges. They were convicted on charges of blackmail, collective blackmail during night-time, attempted blackmail, etc. (not guilty of habitual blackmail charges) under the Criminal Code and the Act on Punishment of Violence, etc. All of them, except Park Young-Jae, who was arrested in the court, were either sentenced to imprisonment of eight months to one year with a suspension of execution and released or fined. Their cases are still pending before either the second instance court or the Supreme Court.
401. Daejeon/Chungcheong Construction Workers’ Union (six people)
402. – First instance (Daejeon District Court, 16 February 2004): All six, including Lee Seong-Hui, were released after being sentenced from ten months to one year in prison with a two-year suspension of execution.
403. – Second instance (15 September 2004): All six were sentenced from six to eight months in prison with a two-year suspension of execution.
404. – Third instance (25 May 2006): Appeals filed with the Supreme Court were dismissed.
405. n Cheonan/Asian Construction Workers’ Union (two people)
406. – First instance (Cheonan Branch Court, 27 August 2004): Park Young-Jae was arrested in the court after being sentenced to one year in prison. Rho Seon-Kyun was fined.
407. – The sentence was finally confirmed in the Supreme Court on 25 May 2006.
408. n Western Gyeonggi Construction Workers’ Union (nine people)
409. – First instance (Suwon District Court): Three people, including Kim Ho-Jung, were sentenced from eight months to one year in prison with a two-year suspension of execution. The remaining six were fined (KRW3 million (approximately US$3,000)).
410. – The case is pending before the second instance court.
411. 697. The Committee’s previous conclusions in this case (paragraphs 778–779 of the 340th Report) is an extreme simplification of overall circumstances and the Government cannot agree to it. Some local construction workers’ unions were organized long ago and have been up and running since then. The Government has provided support for construction workers’ unions both in their collective bargaining and in financial aspects. Therefore, there is no reason for the Government to block the establishment of such unions. The union officers were prosecuted and convicted in the courts because, given the overall circumstances, including their purpose, the circumstances of the signing of collective agreements, their behaviour and methods, etc., what they call collective bargaining, is considered a threat aimed at extorting money rather than a normal collective bargaining that can be accepted by social norms. In the three regions discussed above, or at any construction sites in other regions, there is no such practice of unions to demand money during negotiations with the employers. The union officers targeted only apartment construction sites, not only because it is relatively easy to extort money, but also because there are plenty of such construction sites so that they can collect a relatively small amount from each of them.
412. 698. In addition, as revealed during investigations and trials by the judicial authorities, the union officers refused to show a roster of union members and demanded to sign a collective agreement and pay activity fees regardless of whether there is a union member or not. This proves that their acts are only aimed at extorting money. They also reported violations committed only by workplaces refusing to pay money and did not even hesitate to make a false report. They used illegal methods, such as visiting workplaces in groups to threaten managers, blocking the entrance to workplaces, creating disturbances at offices and swearing at managers. Based on detailed information on overall circumstances, including arguments made by the union officers during the trial and the results of investigations by the competent authorities, the courts decided whether the union officers’ acts were threatening to the employers of the apartment construction projects or not. Related cases are either on trial in a higher court or were closed, so it would be desirable to leave the judgement to the independent courts.
413. 699. With regard to the legislative aspects of the case, the Government indicates that wage payment to full-time officers by employers was going to be banned from the beginning of 2007 in an effort to improve irrational practices involving full-time union officers. At the same time, determined to allow union pluralism from 2007, the Government had actively pursued it. However, the ban on wage payment to full-time union officers became a burden for unions, while union pluralism became a burden for employers. Therefore, the labour and management agreed to postpone the implementation of these two systems. Respecting the agreement between them, the Government inevitably decided to postpone the implementation.
414. 700. The ban on wage payment to full-time union officers and union pluralism at the enterprise level are issues likely to bring great changes to overall industrial relations in the Republic of Korea. In spite of this, labour and management were not sufficiently prepared to cope with the introduction of multiple unionism on 1 January 2007, the consequent adjustment of bargaining channels and the limitation on wage payment to full-time union officers, and there were still wide differences of opinions between labour and management over rational measures to implement these two systems. Therefore, it was expected that the full implementation of these systems would inevitably cause labour–management conflicts and confusion at industrial sites.
415. 701. Under the perception that stable industrial relations are important more than anything else in achieving social integration and sustainable national development, the High-level Tripartite Representatives’ Meeting agreed to give a three-year grace period before the implementation of these two systems (11 September 2006). During the grace period, the Tripartite Commission will come up with specific standards and implementation methods by setting up a framework for discussion and intensively discussing two controversial issues, such as how to minimize confusion that might be caused by the introduction of union pluralism at the enterprise level and how to make trade unions financially independent enough to pay wages to their union officers on their own.
416. 702. Furthermore, regarding the ban on third-party intervention in case of failure to notify, the Government indicates that, with the passage of the bill on advancement of industrial relations by the National Assembly on 22 February 2006, this ban was abolished to strengthen labour–management autonomy and improve laws and institutions in line with international standards.
417. 703. With regard to the union membership of dismissed and unemployed people, the Government indicates that, given that most unions are enterprise-level unions in the Republic of Korea, the courts had interpreted that the dismissed and unemployed are not workers who are eligible to join a trade union of a company in question, nor could they be elected as union officers. As the Tripartite Commission agreed to allow the unemployed to join a non-enterprise-level union in 1998, the legislative process to amend related laws was pushed for, but only to stall. The Research Committee on Advancement of Industrial Relations Systems proposed that the dismissed and unemployed should be allowed to have membership of an industry- or a regional-level union while, given the realities of the Republic of Korea’s industrial relations, in which union activities are conducted mostly at the enterprise level, membership of an enterprise-level union should be limited to employees of the enterprise concerned (industry-level unions and federations of unions autonomously decide their membership eligibility).
418. 704. Based on the results of discussions at the Tripartite Commission, the Government pushed legislation in the direction of allowing the unemployed to freely join a non-enterprise-level union and to engage in its activities, but restricting them from joining an enterprise-level union. However, at the High-level Tripartite Representatives’ Meeting held on 11 September 2006 to advance industrial relations laws and systems, tripartite parties agreed that the issue of allowing the unemployed to join a trade union and run for union officers will be excluded from the revision of related laws. Rational measures to address the issue of allowing the unemployed to join a trade union will be designed by considering court rulings and through in-depth discussion between labour, management and the Government.
419. 705. With regard to the issue of obstruction of business under the Criminal Code, the Government indicates that obstruction of business (article 314 of the Criminal Code) means “interfering with another person’s economic and social activities by spreading false information or using a deceptive scheme or by threat of force”. An obstruction of business charge can be seen as a kind or coercion charge intended to punish acts of compelling another person’s action or inaction or making another person give up exercising his/her right, against laws, in that it is intended to punish acts of interference with another person’s business using illegal force. The provision on obstruction of business is intended not to regulate industrial action itself but to punish illegal industrial action, such as refusal to work under the pretext of industrial action, which actually obstructs an employer’s business and other economic activities and causes damage to them.
420. 706. In other countries, in case a trade union obstructs non-union workers and replacement workers in performing their jobs or forces its members to participate in industrial action, it is punished on charges of coercion, etc. This is the same logic and mechanism that the provision on an obstruction of business charge in the Republic of Korea follows in its application. In many cases, strikes in the Republic of Korea involve illegal and violent methods, such as occupying workplaces to block workers’ access to workplaces, destroying facilities, physically abusing managers and policemen, and physically interfering with employers and other workers’ work. In fact, most of the reasons for the arrests of workers have been for committing violence using dangerous weapons. Even those arrested on charges of obstruction of business are mostly union officers who gathered union members in one place and operated a front-line team of unionists to prevent individual members from giving up the strike or returning to work. They also blocked union members’ return to work or occupied workplace facilities for a long period by actively exerting threat of force or committing violence with iron pipes, etc. Even by legal standards in other countries they would be subject to criminal punishment.
421. 707. In relation to this, it is stipulated in Article 8(1) of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), that in exercising the rights provided for in this Convention, workers and employers and their respective organizations, like other persons or organized collectivities, shall respect the laws and regulations of the land. The Committee on Freedom of Association also clearly stated that freedom of association principles do not protect the abuse of the right to strike, which constitutes a criminal act in exercising the right to strike (paragraph 598). Given this, punishing illegal acts according to national laws cannot be seen as against freedom of association principles. Respecting the ILO’s recommendations, the Government of the Republic of Korea is making efforts to minimize criminal punishment by refraining from making an arrest even in the case of an illegal strike, if the strike does not entail any violence.
422. 708. Finally, with regard to major institutional improvements, the Government indicates the following:
423. – Public services where the right to strike is restricted: With the enactment of the Trade Union and Labour Relations Adjustment Act in 1997, services, where the right to strike is restricted, was changed from public services to essential public services. Banks, other than the Bank of Korea, and inner city bus services, were excluded from essential public services in 2001 and since then their right to strike has not been restricted. As the revision bills to improve industrial relations laws and systems, confirmed through the Grand Tripartite Agreement of 11 September 2006, passed through the National Assembly on 22 December 2006, compulsory arbitration for disputes in essential public services where the right to strike is restricted was abolished and the requirement for maintaining minimum services and the use of a replacement workforce (the proportion should not exceed 50 per cent of strike workers), in the event of a strike, were introduced. This made it possible to achieve balance and harmony between exercising the right to strike and protecting the public interest.
424. – Union pluralism at the non-enterprise level: With the enactment of the Trade Union and Labour Relations Adjustment Act in 1997, multiple unions were recognized. However, union pluralism at the enterprise level will be allowed, beginning in 2010, according to the tripartite agreement of 11 September 2006.
425. – Third-party intervention: With the enactment of the Trade Union and Labour Relations Adjustment Act in 1997, the ban on third-party intervention was abolished and instead notification requirement for third-party assistance was introduced, under which third-party intervention not notified to the administrative authorities is subject to criminal punishment. As the revision bills to improve industrial relations laws and systems, resulting from the tripartite agreement of 22 December 2006, passed through the National Assembly, the notification requirement for third-party assistance and the related penal provisions were completely repealed.
426. – Guarantee of teachers’ right to organize: With the enactment of the Act on the Establishment and Operation, etc. of Teachers’ Trade Unions in 1999, teachers began to be guaranteed the right to organize and the right to collective bargaining. As a result, the Korean Teachers’ and Education Workers’ Union was legitimately recognized and is actively operating now.
427. – Recognition of the KCTU as a legitimate union: The KCTU has been regarded as an illegal group since its launch on 11 November 1995, because it had not satisfied the required legal standards. However, on 12 November 1999, it was legitimately recognized, making a great breakthrough in guaranteeing workers’ right to organize.
428. – Involvement of unions in political activities: In 1998, the Tripartite Commission agreed to allow labour groups to be engaged in political activities by revising election laws and political funds laws. With the revision of the Act on election for public office and election malpractice prevention in 1998, labour groups were allowed to participate in election campaigns and, in 1999, they were allowed to donate political funds. By revising the Act on election for public office and election malpractice prevention and the political funds Act in 2000, the involvement of labour groups in election campaigns was permitted and labour groups, other than enterprise-level unions, were allowed to set up a separate fund and donate political funds.
429. – Guarantee of public officials’ labour rights: In the Grand Tripartite Agreement of February 1998, tripartite representatives agreed to allow public officials’ trade unions in stages. The Act on the Establishment and Operation of Public Officials’ Trade Unions was enacted on 27 January 2005, and entered into force on 28 January 2006, after discussion at the Tripartite Commission, public hearings and in-depth discussion at the National Assembly. Thanks to this, a number of public officials’ unions at central and local government level are legitimately engaging in union activities now.
430. VIII. Additional information from the Government
431. 709. In a communication dated 30 April 2007, the Government provides the following additional information. As regards allegations from the KGEU relating to the existence of a “New Wind Campaign”, the Government indicates that initially MOGAHA stated that it had no information concerning such a campaign. However, recently MOGAHA has said that they discovered that there are documents concerning “measures to resolve the issue of the KGEU as soon as possible and stabilize and revitalize local public officialdom”. The measures mentioned above had been devised to reinvigorate and stabilize local public officialdom as soon as possible by resolving conflicts and divisions within local public officialdom due to the issue of the KGEU and by boosting sagging morale among local government employees.
432. 710. The main features include:
433. (i) pursuing sweeping organizational reform: creating a conciliatory, cooperative and joyful atmosphere in the workplace (reinforcing the horizontal network between the head, managers and general employees of each local government); and laying the foundation for being able to start in earnest the innovation of local administration (self-reflection and organizational reform for this new start);
434. (ii) creating the basis for sound union activities: forging a partnership with groups of public officials (activating dialogue and cooperation channels); and making thorough preparations for the launch of legitimate trade unions for public officials (cultivating organizations and personnel specializing in trade unions and collective bargaining);
435. (iii) striving to restore people’s trust in public officialdom.
436. 711. At present, there are 91 trade unions (83,687 union members) for public officials of which 42 are conducting collective bargaining and 15 concluded collective agreements through negotiation with the Government.
437. 712. The KFGE, since its registration in September 2006, has been preparing for negotiation with the Minister of Government Administration and Home Affairs – the bargaining representative of the Government – to discuss major working conditions for public officials, including pensions, extension of the retirement age, wages, etc. It is expected that central-level collective bargaining between the Government and public officials’ unions organized around the KFGE will take place for the first time since the establishment of the Republic of Korea.
438. 713. Even within the Korean Government Employees’ Union (KGEU), growing numbers of union members are calling for it to convert into a legitimate union and conduct union activities within the boundaries of the law, as more and more unions are organized and conduct collective bargaining according to the law.
439. 714. By 5 April 2007, a total of 23 regional chapters (11,229 union members) had withdrawn from the KGEU and converted into legitimate unions. The issue of putting to a vote its conversion into a legitimate union was placed on the agenda during its two national conventions of union delegates held in November 2006 and February 2007. The Government states, however, that some union officials thwarted the attempt to follow democratic decision-making procedures by occupying the podium and physically obstructed the process. Nevertheless, given the fact that the sentiment in favour of converting into a legitimate union is spreading among field union members, the KGEU is expected to convert into a legitimate union and carry out legitimate union activities soon, unless any big change in circumstances takes place.
440. 715. As regards the construction industry, the Government explains that labour–management conflicts are attributed to structural reasons:
441. (i) Due to its industrial characteristics, a division of labour and subcontracting is a common practice in the construction industry, which results in poor overall conditions on construction sites.
442. (ii) Construction firms which have direct employment relationships with construction workers have a limitation in improving their working conditions, including wages, through labour–management negotiation because of their lack of bargaining experiences and ability to pay.
443. (iii) In the construction industry where workers are employed on a temporary or short-term basis, there are huge swings in labour demand between high- and low-demand seasons (e.g. winter season), causing employment insecurity.
444. 716. Professional construction firms are relying on the use of foreign labourers as a way to cut costs while unions are demanding to stop bringing in foreign labourers and give preferential treatment to their members.
445. 717. Due to such structural problems in the construction industry it often happens that construction workers’ unions go on strike without sufficient negotiation, though ostensibly complaining about their working conditions, such as working hours, a guarantee of employment, etc.
446. 718. Considering professional construction firms’ lack of ability to pay, unions are calling for companies issuing the order (order issuers which have nothing to do with employment relationship with construction workers) or original contractors to directly participate in negotiation as bargaining partners. However, order issuers are usually the owners of the building, who selects a constructor (usually original contractors) and awards a construction contract, and thus cannot be a bargaining partner.
447. 719. On the other hand, original contractors make a subcontract with multiple professional construction firms and pay construction costs according to the contract, so they have no direct employment relationship with workers belonging to professional construction firms. However, in certain cases, original contractors, together with professional construction firms, can bear the responsibility for conducting collective bargaining in the capacity of an employer. In spite of this, it is not easy to see smooth bargaining in the construction industry due to lack of bargaining experiences and high labour mobility.
448. 720. Therefore, to increase the effect of their strikes, construction workers’ unions carry out activities directed at order issuers and original contractors to which their members do not directly belong, such as blocking an entrance or hindering workers from going to work, and thus are often involved in obstruction of business, and violence.
449. 721. As regards the death at POSCO of Ha Jun-Koon, the Government indicates that over 1,200 members of the KFCITU held a rally in Pohang on 16 July 2006 aimed at denouncing POSCO and desperately defending the strike by the Pohang Construction Workers’ Union in support of construction union members illegally occupying POSCO, the company that issued the construction order.
450. 722. After the rally, union members attempted to march on the streets. When the police tried to stop them, they threw stones and physically abused policemen with iron or wooden pipes, flamethrowers and boiling water, leaving 59 policemen injured. They also blocked general traffic. A total of 2,500 iron pipes were reported to have been found at the demonstration site some time between 16–19 July. In the course of this radical and violent demonstration and the police’s efforts to stop it, many people, including Ha Jung-Koon, were injured.
451. 723. The Government reiterates that Kim Tae-Hwan died after being run over by a vehicle transporting the company’s goods while he tried to stop it on 14 June 2005. The driver who caused the accident was judicially charged for violating the Act on Special Cases concerning the Settlement of Traffic Accidents.
452. 724. After the accident, the trade union, the three ready-mix truck companies and other organizations involved talked over the unit price of transport service, a guarantee of contract periods, compensation for the bereaved family members and the funeral service and reached an agreement.
453. 725. As regards the assets of construction workers, the Government recalls that, as negotiation was delayed, the construction union members occupied by force the buildings of the order issuers and original contractors, destroyed facilities, occupied roads, destroyed the facilities and properties of police stations, and occupied city halls, as acts that are beyond the boundaries of legitimate union activities.
454. 726. In addition, construction union officials in some areas visited many apartment construction sites where they had no direct employment relations, extorted or attempted to extort money under the pretext of collective agreements, and threatened project managers who refused to accept their demand. They were prosecuted on blackmail charges for committing these acts.
455. 727. As a result of trials in each district court, based on various evidence, they were convicted on charges of blackmail, attempted blackmail or night and collective blackmail under the Criminal Code or the Act on Punishment of Violence, etc. These cases either were concluded with the confirmation of sentences or are on trial in a higher court.
456. 728. The Government provides new information as regards the trial of Park Young-Jae and Rho Seon-Kyun from Cheonan Construction Workers’ Union, which it now indicates is pending before the third instance. As regards the Western Gyeonggi Construction Workers’ Union, the sentencing of the three members was upheld in the second instance court and the punishment was increased due to additional offences. Their cases are now pending before the third instance.
457. 729. In another case, eight members of the Daegu Construction Workers’ Union, including its president Cho Gi-Hyeon, were convicted and sentenced on charges of blackmail, etc. (bodily injury, violence or illegal confinement in a group or with dangerous weapons) on 17 November 2006, under the Act on Punishment of Violence in a district court. Cho Gi-Hyeon was sentenced to three years in prison, and Oh Sang-Ryong, Moon Jeong-Woo were sentenced to two and a half years in prison.
458. 730. At the first instance trial, Cho Gi-Hyeon, Oh Sang-Ryong and Moon Jeong-Woo were convicted on blackmail charges for the following reasons: (1) the three defendants failed to provide basic information on their organization, such as its composition and identity, and each construction site had only a few or even none of its members; (2) when the defendants visited construction sites, they always carried a camera to secure evidence of violations. They did report violations to the authorities but once collective agreements were signed after the reporting, they did not take any specific measures for the workplace; (3) the spread of news about their reporting activities prompted construction workplaces to conduct collective bargaining, which could be considered as an act of giving notice about danger as a means of intimidation; (4) they demanded the payment of full-time union activity fees without specifically indicating full-time union officials; (5) some workplaces transmitted certain amounts of money in the name of support fees, even though they had not signed collective agreements; (6) in many cases, they showed no interest in matters other than full-time union activity fees so that the main purpose of their collective bargaining seems to be to collect such fees; (7) aware that if an original contractor is threatened with reporting of violations, it will have no choice but to assume the defensive for fear of consequent disadvantages, they pushed original contractors into collective bargaining by threatening to report their lack of safety facilities to the authorities. This is considered as an act of giving notice about danger as a means of intimidation. In effect, the original contractors signed collective agreements that mainly concern the payment of full-time union activity fees, for fear of such danger.
459. 731. However, at the second instance trial on 5 April 2007, the High Court stated: (1) the original contractors are recognized as having the status of an employer along with their subcontractors, such as professional construction firms, because they have actual employment relations with the construction workers; (2) the act of demanding the payment of full-time union activity fees falls within the boundaries of legitimate collective bargaining activities, and in the case of a regional or industry level union, whether to regard a worker who does not belong to a specific construction site as a full-time union official should be decided autonomously by the union.
460. 732. For the following reasons, the court determined that the defendants were not guilty of blackmail charges: (1) it is seen as the natural and legitimate exercise of workers’ rights that workers warn that they will report employers’ illegal acts to the authorities, and putting pressure on employers to sign collective agreements is within the scope of normal union activities; (2) the project managers’ freedom to make and execute decisions is not considered as having been restricted or obstructed during the signing of collective agreements; (3) the amount of money described as full-time union activity fees in the collective agreements was received through bank accounts under the name of the union and spent to pay the cost of operating the union office, etc. The project managers also treated that amount as petty expenses in their account books; (4) the defendants regularly provided safety education at the construction sites; (5) it is hard to see their reporting of violations or readiness to report as the main motive behind the signing of collective agreements; (6) although the number or list of union members, full-time union officials, etc., were not specifically indicated, the project managers did not ask for such information, either.
461. 733. However, their conviction on other charges (bodily injury, violence or confinement in a group and/or with dangerous weapons), including violations of the Act on Punishment of Violence, etc., were upheld as in the previous trial.
462. 734. Concerning cases involving construction workers’ unions, court rulings are made on a case-by-case basis. Therefore, the Government thinks that it would be better to leave the decision on individual cases to the independent judgement of the courts.
463. 735. On a general note, the Government indicates that the recently elected President of the KCTU has announced that it would refrain, as much as possible, from holding a general strike and attempt to solve problems through dialogue. Tripartite dialogue is resuming as labour circles have begun to talk with business representatives and government ministers. The Government wholeheartedly welcomes such a policy line and will make continuous efforts to seek solutions on various issues through open-minded dialogue with labour circles, including the KCTU. The Government hopes that international society will continue to show support and cooperation as well as make an impartial judgement so that Republic of Korea will be able to enter a new era of cooperative and productive industrial relations.

C. The Committee’s conclusions

1. 736. The Committee recalls that it has been examining this case, which concerns both legislative and factual issues, since 1996. The Committee observes that, in the meantime, significant progress has been achieved in terms of legislation, but important problems persist with regard to the respect of freedom of association principles in practice; the mere volume of the new allegations brought to the Committee’s attention, as well as the gravity of the issues raised therein indicate that, despite considerable advances, there is still room for progress towards the establishment of a stable and constructive industrial relations system in the country.
2. Legislative issues
3. 737. The Committee recalls that the outstanding legislative issues concern, on the one hand, the Act on the Establishment and Operation of Public Officials’ Trade Unions, which concerns the public sector only, and, on the other hand, the TULRAA and other legislation which is generally applicable.
4. Public officials
5. 738. More specifically, with regard to the Establishment and Operation of Public Officials’ Trade Unions, the Committee’s previous recommendations referred to: (i) the right to organize for all public servants, including those at Grade 5 or higher and firefighters; (ii) the right to strike for public servants not exercising authority in the name of the State and not working in essential services in the strict sense of the term; (iii) leaving to public officials’ trade unions and public employers to determine on their own whether trade union activities should be treated as unpaid leave. New allegations by the KGEU concern: (i) restrictions on the scope of collective bargaining with public officials; (ii) the non-binding nature of collective agreement provisions which are regulated by laws, by-laws or the budget; (iii) the lack of legal means to counteract the unfair refusal of an employer to engage in collective bargaining or failure to implement a collective agreement; and (iv) the prohibition of political activities by public employees.
6. 739. With regard to the right to organize of public servants, the Committee notes the new allegations made by the KGEU according to which, based on estimates by the Ministry of Labour, only 290,000 public officials out of a total of 920,000 (excluding soldiers) are eligible to join a trade union as a result of exceptions introduced in the Act on the Establishment and Operation of Public Officials’ Trade Unions as well as its Enforcement Decree with regard not only to public servants at Grade 5 or higher but also a considerable number of Grade 6 and Grade 7 officials as well as those engaged in labour inspection, correctional services, firefighters, etc.; in education-related offices in particular, the number of public officials who are allegedly not eligible to join a trade union amount to 70 per cent of the officials of Grade 6 or lower and in the case of public officials working in schools, the ratio is close to 90 per cent. Moreover, Grade 6 public officials who become ineligible to join a union amount to 30 per cent of those employed in local government.
7. 740. The Committee notes that, according to the Government, 70 per cent of the total 900,000 public officials are able to enjoy the right to organize. As at 30 April 2007, 630 organizations (trade unions and workplace associations with 190,000 members) have been created; 91 public officials’ trade unions had been established (83,687 members); 42 of them were conducting collective bargaining with the Government and 15 had concluded collective agreements. The exclusion of public officials of Grade 5 and higher (which is justified according to the Government by the exclusions introduced in Convention No. 151), but also Grade 6 or lower, essentially aims at safeguarding the autonomy of the unions.
8. 741. The Committee recalls that public servants, like all other workers, without distinction whatsoever, have the right to establish and join organizations of their own choosing, without previous authorization, for the promotion and defence of their occupational interests [Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 219.] Thus, public officials of all grades (Grade 5 or higher or Grade 6 or lower), are not excluded from the scope of freedom of association principles; on the contrary, all public employees (with the sole possible exception of the armed forces and the police, by virtue of Article 9 of Convention No. 87) should, like workers in the private sector, be able to establish organizations of their own choosing to further and defend the interests of their members [Digest, op. cit., para. 220]. The exclusion found in Convention No. 151 with regard to policy decision-makers or high-ranking public officials relates to the issue of collective bargaining and not to the right to organize which should be guaranteed to all public officials without distinction. Nevertheless, as concerns persons exercising senior managerial or policy-making responsibilities, the Committee is of the opinion that while theses public servants may be barred from joining trade unions which represent other workers, such restrictions should be strictly limited to this category of workers and they should be entitled to establish their own organizations. It is not necessarily incompatible with the requirements of Article 2 of Convention No. 87 to deny managerial or supervisory employees the right to belong to the same trade unions a other workers, on condition that two requirement are met: first, that such workers have the right to establish their own associations to defend their interests and, second, that the categories of such staff are not defined so broadly as to weaken the organizations of other workers in the enterprise or branch of activity by depriving them of a substantial proportion of their present or potential membership [Digest, op. cit., paras 253 and 247]. The Committee further recalls that the functions exercised by firefighters do not justify their exclusion from the right to organize. They should therefore enjoy the right to organize. Prison staff should enjoy the right to organize. Finally, the denial of the right to organize to workers in the labour inspectorate constitutes a violation of Article 2 of Convention No. 87 [Digest, op. cit., paras 231, 232 and 234.] The Committee therefore once again requests the Government to review the exclusions from the right to organize introduced in the Act on the Establishment and Operation of Public Officials’ Trade Unions as well as its Enforcement Decree so as to ensure that public servants at all grades, including those at Grades 7, 6, 5 or higher, regardless of their tasks or functions, including firefighters, prison guards, those working in education-related offices, local public service employees and labour inspectors, have the right to form their own associations so as to defend their interests.
9. 742. With regard to section 10(1) of the Act on the Establishment and Operation of Public Officials’ Trade Unions, according to which provisions on matters stipulated by laws, by-laws or the budget or stipulated by authority delegated by laws or by-laws, shall not have binding effect when included in collective agreements, the Committee recalls that a distinction should be drawn between those public employees who are engaged in the administration of the State, who can be excluded from the scope of Convention No. 98 on the basis of Article 6, and those who are not engaged in the administration of the State and who should enjoy collective bargaining rights in accordance with Article 4 of Convention No. 98.
10. 743. The Committee would like to emphasize that those public employees and officials who are not acting in the capacity of agents of the state administration (for example, those working in public undertakings or autonomous public institutions) should be able to engage in free and voluntary negotiations with their employers; in that case, the bargaining autonomy of the parties should prevail and not be conditional upon the provisions of laws, by-laws or the budget. Most importantly, the reservation of budgetary powers to the legislative authority should not have the effect of preventing compliance with collective agreements entered into by, or on behalf of, that authority; the exercise of financial powers by the public authorities in a manner that prevents or limits compliance with collective agreements already entered into by public bodies is not consistent with the principle of free collective bargaining [Digest, op. cit., paras 1033 and 1034].
11. 744. On the other hand, with regard to those officials who are acting in the capacity of agents of the state administration (for example, those working in the ministries and other comparable government bodies) the Committee acknowledges, as the Government maintains, that Article 7 of Convention No. 151 allows a degree of flexibility in the choice of procedures to be used in the determination of the terms and conditions of employment. [see Digest, op. cit., para. 891]. In this case, and in light of the recognition of collective bargaining rights for public servants under the Act on the Establishment and Operation of Public Officials’ Trade Unions, the Committee recalls that the establishment of upper and lower limits for wage negotiations or of an overall “budgetary package” within which the parties may negotiate monetary or standard-setting clauses (for example: reduction of working hours or other arrangements, varying wage increases according to levels of remuneration, fixing a timetable for readjustment provisions) or provisions giving the financial authorities the right to participate in collective bargaining alongside the direct employer, are compatible with the Convention, provided they leave a significant role to collective bargaining.
12. 745. With regard to the alleged lack of legal means to counteract the unfair refusal of an employer to engage in collective bargaining or failure by an employer to implement a collective agreement in the public sector, especially as these agreements are often deprived of binding legal effect, the Committee underlines the importance which it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations and emphasizes that, as part of the obligation to negotiate in good faith, agreements should be binding on the parties; mutual respect for the commitment undertaken in collective agreements is an important element of the right to bargain collectively and should be upheld in order to establish labour relations on stable and firm ground [Digest, op. cit., paras 934, 939 and 940].
13. 746. The Committee therefore requests the Government to ensure that, in the case of negotiations with trade unions of public servants who are not engaged in the administration of the State, the autonomy of the bargaining parties is fully guaranteed and the reservation of budgetary powers to the legislative authority does not have the effect of preventing compliance with collective agreements. More generally, as regards negotiations on matters for which budgetary restrictions pertain, the Committee requests the Government to ensure that a significant role is given to collective bargaining and that agreements are negotiated and implemented in good faith.
14. 747. With regard to the exclusion from the scope of collective bargaining, by virtue of section 8, paragraph 1 of the Act on the Establishment and Operation of Public Officials’ Trade Unions of “matters concerning policy decisions” of the State or local government and “matters concerning the management and operation of the [public] organization, such as exercising the right to appointment, but not directly related to working conditions”, the Committee notes that, in a previous case on allegations concerning the refusal to bargain collectively on certain matters in the public sector, the Committee had recalled the view of the Fact-Finding and Conciliation Commission on Freedom of Association that “there are certain matters which clearly appertain primarily or essentially to the management and operation of government business; these can reasonably be regarded as outside the scope of negotiation”. It is equally clear that certain other matters are primarily or essentially questions relating to conditions of employment and that such matters should not be regarded as falling outside the scope of collective bargaining conducted in an atmosphere of mutual good faith and trust [Digest, op. cit., para. 920]. In the absence of a clear definition of what constitutes “policy decisions of the State” and the “management and operation of government business”, and in the light of the blanket prohibition of negotiations over these matters introduced in the Act on the Establishment and Operation of Public Officials’ Trade Unions, the Committee requests the Government to ensure that, in so far as concerns the application of the Act to public servants who cannot be properly considered as engaged in the administration of the State, the consequences of policy and management decisions as they relate to the conditions of employment of public employees, are not excluded from negotiations with public employees’ trade unions.
15. 748. In connection with the above, the Committee also observes that the Government does not provide any information in respect of the Committee’s previous request to consider further measures aimed at allowing the negotiating parties to determine on their own the issue of whether trade union activity by full-time union officials should be treated as unpaid leave. The Committee reiterates this request.
16. 749. With regard to section 4 of the Act on the Establishment and Operation of Public Officials’ Trade Unions which prohibits political activities by public officials’ trade unions – while duly noting that the status of public servants is such that certain purely political activity can be considered contrary to the code of conduct that is expected of these servants and that trade union organizations should not engage in political activities in an abusive manner and go beyond their true functions by promoting essentially political interests – the Committee recalls that a general prohibition on trade unions from engaging in any political activities would not only be incompatible with the principles of freedom of association, but also unrealistic in practice. Trade union organizations may wish, for example, to express publicly their opinion regarding the government’s economic and social policy [Digest, op. cit., paras 502 and 503]. The Committee therefore requests the Government to ensure that public officials’ trade unions have the possibility to express their views publicly on the wider economic and social policy questions which have a direct impact on their members’ interests, noting though that strikes of a purely political nature do not fall within the protection of Conventions Nos 87 and 98.
17. 750. With regard to section 18 of the Act on the Establishment and Operation of Public Officials’ Trade Unions which establishes a blanket prohibition of collective action by public officials in conjunction with penal sanctions and fines, the Committee, observing that the complainant’s allegations refer to certain public sector workers covered by the legislation which would not be considered as exercising authority in the name of the State (e.g. public officials in state public schools, such as drivers or sanitation supervisors), once again requests the Government to ensure that the restrictions of the right to strike in the Act on the Establishment and Operation of Public Officials’ Trade Unions are limited to public servants exercising authority in the name of the State and public servants who are involved in essential services in the strict sense of the term.
18. Generally applicable legislation
19. 751. With regard to the TULRAA and other generally applicable legislation, the Committee recalls that the pending issues concern the need to: (i) legalize trade union pluralism at the enterprise level; (ii) resolve the issue of payment of wages to full-time union officers in a manner consistent with freedom of association principles; (iii) amend section 71 of the TULRAA so that the right to strike may be prohibited only in essential services in the strict sense of the term; (iv) repeal the notification requirement in section 40 of the TULRAA and the penalties provided for in section 89(1) concerning the prohibition on persons not notified to the Ministry of Labour from intervening in collective bargaining or industrial disputes; (v) amend the prohibition on dismissed and unemployed workers from remaining union members or holding trade union office (sections 2(4)(d) and 23(1) of the TULRAA); and (vi) amend section 314 of the Criminal Code concerning obstruction of business to bring it into line with freedom of association principles. New allegations by the KPSU concern the introduction of a new expanded category of public services subject to a minimum service requirement and the imposition of emergency arbitration to put an end to legal strikes.
20. 752. The Committee recalls in this connection that in its previous examination of the case it requested the Government to amend the list of “essential public services” in section 71(2) of the TULRAA so that the right to strike may be restricted only in essential services in the strict sense of the term. The Committee notes with interest from the Government’s reply that the revision bills to improve industrial relations laws and systems, confirmed through the Grand Tripartite Agreement of 11 September 2006, were passed through the National Assembly on 22 December 2006; thus compulsory arbitration for disputes in essential public services, where the right to strike is restricted, was abolished and a requirement was introduced to maintain minimum services and use of replacement workers (not exceeding 50 per cent of striking workers) in the event of a strike in essential public services.
21. 753. In this respect, the Committee also notes the allegations made by the KPSU and the ICFTU according to which the new “public services” category includes what was formerly called “essential public services” (railroad services, inter-city railways, water, electricity, gas supply, oil refinery and supply services, hospital services, telecommunication services and the Bank of Korea) as well as: supply of heat and steam, harbour loading and unloading, railway, freight transport, airborne freight transport and social insurance providers; a minimum services obligation is added to the expanded list of “public services” in case where the “normal life” of the public is acutely endangered. The bill provides for compulsory arbitration machinery to resolve the crucial issue of the scope of the minimum service. The Committee notes that according to the KPSU serious doubts persist as to the intent behind legislation on minimum services; the concern is that it will serve to expand the anti-union discriminatory activities in the form of replacing striking workers, criminalizing any strike activity of workers performing minimum services and enhancing managerial control on the shop floor if managers are able to designate which workers should work.
22. 754. The Committee takes note of the Government’s reply, according to which the expansion of the scope of essential public services to include additional sectors was agreed through tripartite discussions although the KCTU refused to participate in the talks, and the details of the minimum service are to be agreed between the social partners.
23. 755. Recalling that the transportation of passengers and commercial goods is a public service of primary importance where the requirement of a minimum service in the event of a strike can be justified and that the Mint, banking services and the petroleum sector are services where a minimum negotiated service could be maintained in the event of a strike so as to ensure that the basic needs of the users of these services are satisfied [Digest, op. cit., paras 621 and 624], the Committee requests the Government to keep it informed of the specific instances in which minimum service requirements have been introduced in case of strikes in essential public services, the level of minimum service provided and the procedure through which such minimum service was determined.
24. 756. The Committee notes with regret that the Government does not provide a response to the allegations of the KPSU according to which: (i) despite the repeal of the provisions on essential public services subject to compulsory arbitration, “emergency arbitration” can still be imposed if the dispute “relates to” any public services, or if the dispute is large in scale, has a “special” character such that the Labour Minister thinks the dispute is “likely” to make the economy “worse” or disrupt “normal life” (sections 76-80 TULRAA); (ii) since 2005, the Government has begun to make use of these provisions to end strikes, notably in the airline sector (to end a strike by the Asiana Pilots’ Union on 10 August 2005 and then by the Korean Airlines Flight Crew Union (KALFCU) on 11 December 2005); (iii) thus, a mere public announcement by the Labour Minister on 11 December 2005 at a press conference that “the Korean airlines pilots’ union strike is causing great harm to the national economy and … [so] I invoke powers of emergency mediation” was allegedly enough to put a 30-day ban on the KALFCU strike that had begun three days earlier (on 8 December 2005); (iv) pursuant to this, Korean Airlines instigated criminal prosecution of 26 union officers for obstruction of business as well as seven unionists for “violence” (verbal arguments – still under investigation at the time of the complaint); (iv) as Korean labour laws are gradually reformed, the Government turns increasingly to alternative measures such as emergency arbitration or criminal obstruction of business clauses, to victimize trade unionists and crack down on union activity, raising concerns about the promotion of the “Industrial Relations Roadmap to Mature Industrial Relations”.
25. 757. The Committee recalls that a system of compulsory arbitration through the labour authorities, if a dispute is not settled by other means, can result in a considerable restriction of the right of workers’ organizations to organize their activities and may even involve an absolute prohibition of strikes, contrary to the principles of freedom of association [Digest, op. cit., para. 568]. The Committee once again emphasizes that compulsory arbitration to end a collective labour dispute and a strike is acceptable if it is at the request of both parties involved in a dispute or, if the strike in question may be restricted, even banned, i.e., in the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population [Digest, op. cit. para. 564]. Furthermore, responsibility for suspending a strike on the grounds of national security or public health should not lie with the Government, but with an independent body which has the confidence of all parties concerned [Digest, op. cit., para. 571.] Finally, the Committee recalls that the hiring of workers to break a strike in a sector which cannot be regarded as an essential service in the strict sense of the term, and hence one in which strikes might be forbidden, constitutes a serious violation of freedom of association [Digest, op. cit., para. 632]. Considering that the recent use of these provisions in the case of the airline services did not meet these criteria, the Committee requests the Government to take all necessary measures to amend the emergency arbitration provisions in the TULRAA (sections 76–80) so as to ensure that such a measure can only be imposed by an independent body which has the confidence of all parties concerned and only in cases in which strikes can be restricted in conformity with freedom of association principles.
26. 758. With regard to the issue of obstruction of business provisions in section 314 of the Penal Code, the Committee expresses its deep concern over the allegations of numerous arrests and detentions on grounds of obstruction of business after the introduction of compulsory arbitration to put an end to industrial action in the railway sector and notes that, according to the allegations, the provisions of section 314 of the Penal Code serve systematically as a means to victimize trade unionists for exercising their right to strike. The Committee will examine these allegations in the section on the factual aspects of obstruction of business. For the time being, the Committee notes with regret that in its reply the Government does not indicate any steps taken to review section 314 of the Penal Code so as to bring it into conformity with freedom of association principles, despite requests that it has been making in this respect since 2000. The Committee expresses the firm hope that the recent legislative amendments which abolished the possibility of recourse to compulsory arbitration for disputes in essential public services will lead to an attenuation of the practice of instigating criminal prosecution in relation to strikes over which compulsory arbitration has been imposed and once again requests the Government to refrain from imposing emergency arbitration in cases which fall outside those admissible under freedom of association principles. The Committee once again requests the Government to take measures so as to bring section 314 of the Penal Code (obstruction of business) in line with freedom of association principles.
27. 759. The Committee further notes with regret, from the information provided by the Government with regard to its other recommendations, that according to the Tripartite Agreement of 11 September 2006, the prohibition of wage payment to full-time officers and the introduction of trade union pluralism at the enterprise level (both of which were to be implemented in 2007) were once again postponed until 31 December 2009. The Committee once again emphasizes that the free choice of workers to establish and join organizations is so fundamental to freedom of association as a whole that it cannot be compromised by delays [Digest, op. cit., para. 312]. The Committee once again requests the Government to take rapid steps for the legalization of trade union pluralism at the enterprise level, in full consultation with all social partners concerned, so as to ensure that the right of workers to establish and join the organization of their own choosing is recognized at all levels and recalls that the question of wage payment to full-time union officers should not be subject to legislative interference and requests the Government to ensure that this matter is resolved in accordance with freedom of association principles so as to enable workers and employers to conduct free and voluntary negotiations in this regard.
28. 760. The Committee further notes with interest from the Government’s report that, with the passage of the bill on advancement of industrial relations by the National Assembly on 22 December 2006, the ban on third-party intervention in case of failure to notify and the related penal provisions were abolished.
29. 761. The Committee also notes from the Government’s reply that, despite steps taken by the Government to adopt legislation in the direction of allowing the unemployed to freely join a non-enterprise level union and to engage in its activities, the tripartite representatives decided at the meeting held on 11 September 2006, that the issue of allowing the unemployed to join a trade union and run for union office would be excluded from the revision of related laws. Rational measures to address the issue would be designed according to the Government, by considering court rulings (which had found that the dismissed and unemployed are not eligible to join enterprise trade unions or be elected as union officers) and through in-depth discussions between the social partners and the Government. The Committee once again recalls that a provision depriving workers of the right to union membership is incompatible with the principles of freedom of association since it deprives the persons concerned of joining the organization of their choice. Such a provision entails a risk of acts of anti-union discrimination being carried out to the extent that the dismissal of trade union activists would prevent them from continuing their trade union activities within their organization [Digest, op. cit., para. 268]. It therefore once again requests the Government to repeal the provisions prohibiting dismissed and unemployed workers from keeping their union membership and making non-union members ineligible to stand for trade union office (sections 2(4)(d) and 23(1) of the TULRAA).
30. 762. Noting once again that significant progress has been achieved in terms of legislation, although serious issues remain pending, the Committee urges the Government, in the interests of establishing a constructive industrial relations climate in the country, to take all possible steps to find solutions to the remaining legislative matters noted above, in full consultation with all the social partners concerned, including those not presently represented on the Tripartite Commission. The Committee requests to be kept informed in respect of all the abovementioned matters.
31. Factual issues
32. 763. The Committee recalls that the pending factual issues in this case concern: (i) the arrest and detention of Mr Kwon Young-kil, former president of the KCTU; (ii) the dismissal of leaders and members of the KAGEWC; (iii) the arrest and conviction of the KGEU President Kim Young-Gil and General Secretary Ahn Byeon-Soon; (iv) violent police intervention in KCTU and KGEU rallies; (v) interference by MOGAHA in the internal affairs of the KGEU through the initiation of a “New Wind Campaign” at the end of 2004; (vi) the criminal prosecution and imprisonment of officials of the KFCITU and restrictions over collective agreements concerning subcontracted workers in the construction sector. The Committee further notes with regret the new allegations made by the KGEU and the ICFTU, which concern notably the death of two trade unionists, the forced closure of 125 out of 251 KGEU offices nationwide, violent clashes between trade unionists and the police, and harassment of union representatives during minimum wage negotiations.
33. 764. Noting from the information provided by the Government that Kwon Young-kil, former president of the KCTU, was sentenced to a fine of 15 million won on 11 January 2006, the Committee requests the Government to keep it informed of the progress of the appeal proceedings.
34. 765. As regards the dismissals of eight public servants connected to the precursor of the KGEU, KAGEWC (the dismissals of Kim Sang-kul, Oh Myeong-nam and Min Jum-ki were final while those of Koh Kwang-sik, Han Seok-woo, Kim Young-kil, Kang Dong-jin and Kim Jong-yun were pending examination) for having committed illegal activities (attempt to establish a trade union, holding of illegal outdoor assemblies, break-in at the offices of the Minister of Government and Home Affairs (MOGAHA) and consequent damage, illegal decision to go on a general strike and taking of annual leave and absences, without permission, so as to wage that strike) the Committee notes that, according to the information provided by the Government, the dismissal of Koh Kwang-sik appears to have become final while the cases of Kang Dong-jin and Kim Jong-yun are still pending; finally, the status of the cases of Han Seok-woo and Kim Young-kil is unclear (they do not appear to have lodged an appeal). Noting with regret that the Government does not indicate any measures to reconsider the dismissals of the above public servants, the Committee once again expresses its deep regret at the difficulties faced by them, which appear to have been due to the absence of legislation ensuring their basic rights of freedom of association, in particular the right to form and join organizations of one’s own choosing, respect for which should now be guaranteed by the entry into force of the Act on the Establishment and Operation of Public Officials’ Trade Unions. The Committee therefore once again requests the Government to reconsider the dismissals of Kim Sang-kul, Oh Myeong-nam, Min Jum-ki and Koh Kwang-sik in the light of the adoption of the new Act and to keep it informed in this respect. It also requests the Government to provide information on the outcome of the pending administrative litigation and requests for examination concerning the dismissals of Han Seok-woo, Kim Young-kil, Kang Dong-jin and Kim Jong-yun and expresses the hope that the new legislation will be taken into consideration in rendering the relevant decisions. The Committee once again requests the Government to provide copies of the relevant decisions.
35. 766. With regard to Oh Young Hwan, president of Busan Urban Transit Authority Workers’ Union, and Yoon Tae Soo, first executive director of policy of the Korea Financial Industry Union who had been convicted on obstruction of business charges under section 314 of the Penal Code without having committed any violent act, the Committee notes with regret from the information provided by the Government that their convictions had already been confirmed in the final instance case and that no new steps have been taken to review their situation, despite the request made by the Committee in its previous examination. Oh Young Hwan received a fine of 10 million won on 15 October 2004 and Yoon Tae Soo was convicted to one-year imprisonment with a three-year suspension of execution on 12 November 2004.
36. 767. The Committee further notes with regret the allegations of the KPSU concerning numerous arrests and detentions under obstruction of business charges, in relation to a strike staged by the KRWU in March 2006 which was stopped through compulsory arbitration. The Committee observes that at least 401 KRWU members were allegedly arrested by riot police while they were gathered together, or traveling or even sleeping in public bathhouses, mountains, union offices and wherever they were hiding (after rumours that riot police were poised to raid the five mass assembly areas where they were holding sit-ins); all these acts were found to constitute “criminal obstruction of business” that “hampered the railway operations” simply by the fact that the unionists were not working. Thus, a peaceful strike in and of itself was constituted to be an “obstruction of business using threat of force”. Furthermore, on 6 April 2006, 29 union leaders were arrested and detained on obstruction of business charges for the above incident, including KRWU president Kim Young-hoon who remained in custody until 22 June 2006; later on, Lee Chul Yee, chairperson of irregular workers of the KRWU and Kim Jeong Min, Seoul provincial president, were arrested. The latter remained in jail at the time of the complaint (1 September 2006). Furthermore, the employer KORAIL was preparing to lodge charges of “obstruction of business” and infraction of the TULRAA against 198 union officers, claiming damages of about US$13,500,000 (the union had been recently forced to pay US$2,440,000 for a strike staged in 2003). Furthermore, the Committee notes that 26 officers of the KALFCU were prosecuted on obstruction of business charges by their employer, Korean Airlines, after the Government imposed emergency arbitration to end a strike by the union.
37. 768. The Committee notes with regret that the Government does not provide a reply on the above allegations. Although the Committee notes more generally from the Government’s reply that the Government is making efforts to minimize criminal punishment for obstruction of business by refraining from making arrests even in the case of an illegal strike if the strike does not entail any violence, it also notes that according to the allegations, obstruction of business is systematically resorted to in an effort to victimize and intimidate trade unionists who decide to go on strike. In the light of this information, the Committee must once again express its concern that section 314 of the Penal Code concerning obstruction of business, as drafted and applied over the years, has given rise to the punishment of a variety of acts relating to collective action, even without any implication of violence, with significant prison terms and fines. The Committee recalls that, in previous examinations of this case, it had noted with interest the Government’s general indication that it would establish a practice of investigation without detention for workers who violated current labour laws, unless they committed an act of violence or destruction – a statement considered to be of paramount importance, particularly in a context where certain basic trade union rights have yet to be recognized for certain categories of workers and where the notion of a legal strike has been seen as restricted to a context of voluntary bargaining between labour and management uniquely for maintaining and improving working conditions [see 331st Report, para. 348; 335th Report, para. 832]. The Committee once again urges the Government: (i) to continue making all efforts to adopt a general practice of investigation without detention of workers; (ii) to provide information on the specific grounds for the criminal prosecution of 26 KALFCU officers and 198 KRWU officers for obstruction of business in relation to strikes staged in the railroad and airlines sectors and to communicate any court judgements handed down in these cases; (iii) to inform the Committee of the current status of Kim Jeong Min, Seoul provincial president of the KRWU who was still in prison at the time of the complaint on obstruction of business charges; and (iv) to continue to provide details, including any court judgements, on any new cases of workers arrested for obstruction of business under the terms of the present section 314 of the Penal Code.
38. 769. The Committee also notes with regret the allegations of numerous suspensions, transfers and disciplinary measures against workers staging strikes which were interrupted by compulsory or emergency arbitration (2,680 KRWU members suspended by the Korean Railroad Corporation and undergoing disciplinary procedures causing a climate of intimidation prejudicial to trade union activity; KALFCU members transferred to standby by Korean Airlines causing harm to this young union). The Committee recalls that no person should be prejudiced in employment by reason of trade union membership or legitimate trade union activities, whether past or present and 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 [Digest, op. cit., paras 769 and 770]. The Committee once again urges the Government to refrain from imposing compulsory or emergency arbitration for strikes which fall outside essential services in the strict sense of the term and public servants exercising authority in the name of the State and requests the Government to keep it informed of the status of the 2,680 KRWU members suspended by the Korean Railroad Corporation and undergoing disciplinary procedures as well as any KALFCU members transferred to standby pursuant to the Government’s intervention in their industrial dispute, through compulsory or emergency arbitration.
39. 770. With regard to the arrest and conviction of the KGEU president Kim Young-Gil and general secretary Ahn Byeong-Soon under the now repealed Public Officials Act for actions aimed at obtaining a greater recognition of public servants’ freedom of association rights in the Act on the Establishment and Operation of Public Officials’ Trade Unions, the Committee observes that the Government considers that the actions of KGEU officials and the rallies, demonstrations and strike of 15 November 2004 aimed at obtaining recognition of the right to strike by public officials went beyond the scope of freedom of association principles as public servants exercising authority in the name of the State can be subject to limitations or even a prohibition of the right to strike. The Committee notes the Government’s comments to the effect that: (i) despite the passage of the Act on Establishment and Operation of Public Officials’ Trade Unions, which removed any institutional obstacles to the legalization of the KGEU, this organization can never be considered as legitimate as long as it demands the right to strike, refuses to register itself with the authorities, engages in illegal and violent political struggles and violates the principles of the Constitution, public officials’ related laws and election laws; on the contrary, the activities of those chapters of the KGEU, which vowed to engage in legitimate activities, are firmly protected; (ii) the Committee treats illegal activities by the KGEU (i.e., strikes and political interventions in favour of the Democratic Labour Party (DLP) candidates at the 17th general election) as legitimate union activities in deviation from its standard case-law; (iii) although the Government does not know the exact job status of each KGEU member because this organization refuses to register with the authorities, it considers that at least the majority of the members and its leaders at the centre of the controversy are public officials whose right to strike can be restricted; KGEU members are “professional government officials” and therefore, public servants exercising authority in the name of the State, and their status is different from that of other government employees who have civilian status and whose right to strike is guaranteed (moreover, the right to strike has already been recognized for the officials engaged in manual labour and not exercising authority in the name of the State, such as those in postal services and the National Medical Center); (iv) the Committee’s previous conclusions and recommendations seem to be based on the assumption that these government officials should have the right to strike which is not the case, although other activities short of industrial action by these officials aimed at acquiring the right to strike may be allowed; and (v) the Committee clearly stated in other cases that disciplinary punishment, such as dismissal, for collective action by public officials whose right to strike is restricted, do not run counter to the freedom of association principles (Case No. 1528, 291st Report). Thus, the Government queries: (i) are not Kim Young-Gil and Ahn Byeong-Soon public officials whose right to strike is restricted and if not, on which ground? (ii) if they are seen as public officials whose right to strike is restricted, is dismissing and prosecuting them for their illegal collective action, such as strikes, illegal interference in election activities, etc. considered a breach of freedom of association?
40. 771. Observing that the Act on the Establishment and Operation of Public Officials’ Trade Unions is not strictly limited to employees exercising authority in the name of the State (see section on legislative issue), the Committee does not have the necessary information at its disposal concerning the functions relating to the posts of Kim Young-Gil and Ahn Byeong-Soon and whether their specific right to strike can be restricted. The Committee considers, however, that even if these trade union leaders fall in their individual capacity within the category of public officials whose right to strike may be restricted, in their quality of trade union leaders they should be able to defend their members’ interests, in particular as regards the greater recognition of freedom of association rights more generally for public employees. The Committee recalls that, for the contribution of trade unions and employers’ organizations to be properly useful and credible, they must be able to carry out their activities in a climate of freedom and security. This implies that, in so far as they may consider that they do not have the basic freedom to fulfil their mission directly, trade unions and employers’ organizations would be justified in demanding that these freedoms and the right to exercise them be recognized and that these demands be considered as coming within the scope of legitimate trade union activities. Moreover, although holders of trade union office do not, by virtue of their position, have the right to transgress legal provisions in force, these provisions should not infringe the basic guarantees of freedom of association, nor should they sanction activities which, in accordance with the principles of freedom of association, should be considered as legitimate trade union activities [Digest, op. cit., paras 36 and 40].
41. 772. The Committee recalls in this respect from the KGEU allegations on the legislative aspects of this case, that the prohibition of strikes in the Act on the Establishment and Operation of Public Officials’ Trade Unions covers a large variety of public employees including for instance, those working in education-related offices and employees of local authorities, and is not limited to just those public employees exercising authority in the name of the State. The Committee recalls that in a previous case which the Government itself raises as an example of the Committee’s decisions on this question (Case No. 1528 (Federal Republic of Germany)), the Committee had found that “workers in education are not covered by the definition of essential services or of the public service exercising the powers of public authority” and should therefore have the right to strike, except for school principals and deputy principals who exercise the prerogatives of the public authority and whose right to strike can be limited [277th Report, paras 285 and 289]. The Committee recalls moreover that local public service employees should enjoy the full right to further and defend the interests of the workers whom they represent [Digest, op. cit., para. 230].
42. 773. Furthermore, the Committee considers that the criminal prosecution and conviction to imprisonment of trade union leaders by reason of their trade union activities are not conducive to a harmonious and stable industrial relations climate. In the case which the Government itself raises as an example (Case No. 1528 (Federal Republic of Germany)), the Committee had confirmed that public servants exercising authority in the name of the State may face disciplinary, but not penal, sanctions for having illegally exercised the right to strike; it is important to recall, moreover, that the sanctions in question consisted in light pecuniary fines and in no way included dismissals as indicated by the Government in its comments, much less incarceration [277th Report, para. 277(b)].
43. 774. Therefore, the Committee maintains its deep concern at the imposition of serious criminal sanctions on leaders of the KGEU on account of their trade union activities aimed at obtaining a greater recognition of public servants’ freedom of association rights, and emphasizes that the criminalization of industrial relations is in no way conducive to harmonious and peaceful industrial relations. Moreover, the Committee notes that trade union activities should be seen in the context of situations which may be especially strained and difficult, and recalls once again that it is not possible for a stable industrial relations system to function harmoniously in the country as long as trade unionists are subject to arrests and detentions [see 327th Report, para. 505; 331st Report, para. 352; and 340th Report, para. 765]. The Committee trusts that there are no further charges pending against KGEU president Kim Young-Gil and general secretary Ahn Byeong-Soon for actions aimed at acquiring recognition, de facto and de jure, of the basic rights of freedom of association of public servants and that there is no penalty remaining in relation to the previous convictions under the now repealed Public Officials Act.
44. 775. With regard to the allegations made by the ICFTU during the Committee’s last examination of this case, concerning violent police intervention in KCTU and KGEU rallies, the injury of trade unionists, and intimidation and harassment of trade union leaders and members so as to discourage their participation in a general strike to be staged on 15 November 2004 in protest at the Act on the Establishment and Operation of Public Officials’ Trade Unions, the Committee notes that further allegations are made by the ICFTU, according to which: (i) 126 members of the KGEU were arrested during a peaceful rally on 2 June 2005 in Wonju City, Gangwon-Do Province, aimed at calling on the local government to stop the repression of the KGEU and start talks instead, especially with regard to the previously adopted disciplinary measures against 395 local government employees following a general strike on 15 November 2004; (ii) on 14 May 2005, the police arrested the president of the new union Seoul Gyeonggi-Incheon Migrant Workers’ Trade Union (MTU), Anwar Hossain, who became mentally ill due to his long prison stay and was released temporarily for three months on 25 April 2006 on medical grounds; (iii) in 2004 a total of 121 workers had been indicted and in April 2004 the number of workers that had requested amnesty from the Minister of Justice amounted to 2,400. The Committee observes that further allegations in this sense are contained in the ICFTU/TUAC/GUF mission report which was brought to the Committee’s attention by the KGEU. The mission report expressed profound concern over violence breaking out at peaceful rallies and demonstrations. Aggression had caused the deaths of two trade unionists (see below) and injuries to many others and had led to the imprisonment of more than 100 unionists.
45. 776. The Committee notes with regret that the Government does not reply to the allegations concerning the imprisonment of the president of the MTU, Anwar Hossain. The Committee requests the Government to provide information on the grounds for his imprisonment and his current status in its next report.
46. 777. In reply to the allegations of violent police intervention in KCTU and KGEU rallies, the Committee notes that the Government gives a detailed account of acts of violence committed by workers during demonstrations and strikes staged by the KCTU on 26 November and 1 December 2006 (attacks against city halls and local government buildings, arson, assault against policemen using bamboo bars, etc.). The Committee notes that, according to the Government, general strikes are aimed either at the withdrawal of major legislation pursued for the protection of workers’ rights or issues not related to an improvement of workers’ socio-economic conditions such as withdrawal of Korean troops from Iraq, termination of neo-liberalism, opposition to free trade agreement negotiations, opposition to the APEC summit, opposition to the relocation of a military base, abolition of the annual pan-governmental preparedness exercise in case of a Korean Peninsula emergency, etc. The Committee notes that, according to the Government, for the past three years 2,263 police officers were injured with Molotov cocktails, iron pipes, bamboo bars, etc. during unlawful violent demonstrations.
47. 778. The Committee once again expresses deep regret and concern at the prevalent climate of violence which emerges from the allegations and the Government’s reply. It notes on the one hand, that trade unions must conform to the general provisions applicable to all public meetings and must respect the reasonable limits which may be fixed by the authorities to avoid disturbances in public places [Digest, op. cit., para. 144]. With regard to the participation by trade unions in rallies concerning wider socio-economic issues linked to globalization, the Committee notes that the fundamental objective of the trade union movement should be to ensure the development of the social and economic well-being of all workers; it is only in so far as trade union organizations do not allow their occupational demands to assume a clearly political aspect that they can legitimately claim that there should be no interference in their activities. On the other hand, it is difficult to draw a clear distinction between what is political and what is, properly speaking, trade union in character. These two notions overlap and it is inevitable, and sometimes usual, for trade union publications to take a stand on questions having political aspects, as well as on strictly economic and social questions [Digest, op. cit., paras 27 and 505.] The Committee also notes, however, in these specific circumstances regarding certain categories of public servants, that activities on issues going beyond socio-economic matters and touching upon national security issues do not fall within the scope of protection afforded by freedom of association principles.
48. 779. On the other hand, the Committee emphasizes that the authorities should resort to the use of force only in situations where law and order is seriously threatened. The intervention of the forces of order should be in due proportion to the danger to law and order that the authorities are attempting to control and governments should take measures to ensure that the competent authorities receive adequate instructions so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations which might result in a disturbance of the peace [Digest, op. cit., para. 140].
49. 780. In this context, the Committee notes with concern that, in its reply, the Government considers it appropriate to express criticism against the KCTU for staging strikes in large companies despite the fact that these companies provide much better working conditions than other workplaces, and causing large losses to them, stating moreover that “the strike campaigns are led by a number of high-ranking union officials who receive full wages from employers for doing nothing for the company but only to concentrate on organizing struggles”. The Committee considers that constructive and stable industrial relations can only emerge in a climate of mutual appreciation between the Government and the social partners and the legitimate exercise of their rights. It recalls moreover that the right to strike is one of the essential means through which workers and their organizations may promote and defend their economic and social interests [Digest, op. cit., para. 522]. While noting the Government’s comments about recent corruption scandals involving unions and growing social criticism from the people which has led to a marked increase in voices calling for self-examination of the labour movement, the Committee considers that such matters, in the absence of actual court judgements relating to illegal activities, is a matter of trade union internal affairs.
50. 781. In light of the above, the Committee calls on all sides to exercise maximum restraint so as to avoid escalating violence and to undertake genuine dialogue conducive to the establishment of a constructive and stable industrial relations climate.
51. 782. With regard to allegations concerning the initiation of a “New Wind Campaign” by MOGAHA at the end of 2004, targeting the KGEU and promoting a “reformation of organizational culture, focusing on rearing workplace councils and healthy employee groups”, the Committee notes that, according to the Government, there has been no interference or obstruction of the legal activities of trade unions and no intention to do so, whereas it has acknowledged in its latest communication that MOGAHA had issued documents concerning “measures to resolve the issue of the KGEU as soon as possible and stabilize and revitalize local public officialdom”.
52. 783. The Committee notes in this respect the new allegations made by the KGEU and the ICFTU, according to which, the Government embarked on a concerted campaign to destroy the KGEU on the pretext that the trade union is an illegal organization because it is refusing to register under the Act on the Establishment and Operation of Public Officials’ Trade Unions. The KGEU admits that it refuses to submit a notice of establishment as it currently objects to various provisions of the Act; in particular, if it were to register, it would have to expel present members who do not qualify under the Act for trade union membership. The Committee notes that, according to the KGEU, even if the union has opted to remain outside the legal framework established by the Act and thereby forego the protection afforded by its provisions, it does not constitute an “illegal” trade union as purported by the Government; if legal status was to be sought, it should be characterized as a trade union outside the scope of the law.
53. 784. The Committee notes with concern the allegations concerning numerous acts of extensive interference by the Government, in particular MOGAHA in the KGEU internal affairs, with the aim to “bring about voluntary withdrawal of membership from illegal organizations” i.e. the KGEU (joint announcement of 8 February 2006, MOGAHA Directive of 22 March 2006). The Committee notes that these acts include: (i) prohibition of collective bargaining with the KGEU, withdrawal of all trade union facilities including check-off, release from work to serve as full-time officers, provision of office space, etc.; (ii) “man-to-man persuasion teams” including “individual (joint) contact [by higher ranking officials] with the target member of the leadership, visit of the family, telephone calls, to persuade the person in question and his/her family members” and to “make clear strongly that there will be disciplinary action for failure to comply with the order and other disadvantageous measures, such as punitive fines for illegal use of the term “trade union”; (iii) the presentation of resignation forms to KGEU members along with official orders which on several occasions contained threats such as: “Failure to comply with this order shall be subject to stern measures pursuant to the relevant laws”; (iv) establishment of an “education plan” and education sessions to obtain withdrawal of membership; (v) inspection reports on the progress of the campaign which contain “confidential” information on trade union intentions to transform into a legal trade union; (vi) directives to prevent the carrying out of KGEU elections scheduled for 25–26 January and
54. 2–3 February 2006 (prevent the establishment of voting booths, prohibit voting during work hours, block traveling for voting within the office, etc.); official announcement by the Government expressing its disapproval for the election result, as the president of the KGEU had been previously dismissed pursuant to illegal collective action; (vii) active assistance to those committees who decided “to transform themselves into legal trade unions”; (viii) administrative and financial sanctions (reduction in the allocation of special revenue, exclusion from various state projects, etc.) against local governments which fail to comply with the government’s directive and engage in collective bargaining with an illegal organization or engage in any other actions which overlook or facilitate illegal activities by the illegal organizations; (ix) orders to local governments, with regard to pledges given during the local elections campaign to “discard their written pledge or promise of the governor-elect on recognition of the KGEU”, warning that “the local governments that bargain or even conclude a collective agreement with illegal organizations and give any support like overlooking of full-time union staff, allowing of union dues check-off and providing an office to illegal organizations will be taken to administrative and financial actions government-wide for disadvantages”; and (x) victimization of KGEU members who participated in rallies in May and July 2006 in protest against these practices (MOGAHA instructions to adopt disciplinary measures against participants in a rally held in front of the Rural Development Administration on 25 May 2006 and arrest of 126 KGEU members during a peaceful rally on 22 June 2005 in Wonju City, Gangwon-Do Province).
55. 785. In addition to the above, the Committee notes with regret that the acts of interference included the forced closing down of KGEU offices since May 2006 with the help of riot police; the closing down of these offices was followed closely by MOGAHA which requested all the local governments and agencies to submit weekly “performance records”. These acts were intensified in September 2006 when MOGAHA instructed local governments and agencies that all the KGEU local offices at government buildings should be closed down by 22 September 2006 and warned that those who adopted a lukewarm attitude would be audited. Thus, according to the KGEU, from 22 September 2006, its local offices nationwide were attacked by riot police and specially hired thugs armed with fire extinguishers, firefighting dust, hammers, claw hammers, hammer drills and power saws to forcefully close offices down. One hundred twenty five KGEU offices have been shut down and sealed off, in some cases even welded with iron plates or bars. The KGEU members inside the offices were violently pulled out, several were arrested (and released thereafter) and some seriously injured.
56. 786. The Committee notes that the information provided by the Government basically corroborates the facts alleged by the KGEU. The Government considers however that it is within its rights to take the above measures against the KGEU for the following reasons: (i) this trade union is an illegal organization as it has refused to register under the Act on the Establishment and Operation of Public Officials’ Trade Unions; (ii) it has engaged in general strikes, demanding the right to strike for public officials; (iii) it has systematically and illegally interfered in political affairs (support for the DLP) in violation of the constitutional principle of political neutrality of public officials and other election related laws; and (iv) it carries out political struggles with a biased ideology (leading protests against the Iraq War, the WTO Ministerial Meeting and trade negotiations, the relocation of a United States military base, the APEC Summit and the annual pan-governmental preparedness exercise in case of a Korean Peninsula emergency). The Government considers that is not obliged to offer government buildings as a seedbed for illegal activities and emphasizes that its measures to shut down KGEU offices are strictly limited to KGEU branches conducting illegal activities and implemented in a due manner according to the related laws and regulations while the KGEU refused to follow the objection procedures prescribed by law.
57. 787. In exercising freedom of association rights, workers and their organizations should respect the law of the land, which in turn should respect the principles of freedom of association. The Committee expresses its deep regret at the gravity of the allegations involving serious acts of extensive interference in the activities of the KGEU. The Committee recalls that the inviolability of trade union premises is a civil liberty which is essential to the exercise of trade union rights [Digest, op. cit., para. 178]. The Committee emphasizes that the entry by police or military forces into trade union premises without a judicial warrant constitutes a serious and unjustifiable interference in trade union activities [Digest, op. cit., para. 181]. Moreover, the Committee underlines that a genuinely free and independent trade union movement cannot develop in a climate of violence and uncertainty [Digest, op. cit., para. 45]. All appropriate measures should be taken to guarantee that, irrespective of trade union affiliation, trade union rights can be exercised in normal conditions with respect for basic human rights and in a climate free of violence, pressure fear and threats of any kind [Digest, op. cit., para. 35].
58. 788. With regard to MOGAHA directives, orders and inspection reports aimed at “voluntary withdrawal” from the KGEU and the “active assistance” of committees which decide to submit notice of registration under the Act on the Establishment and Operation of Public Officials’ Trade Unions, the Committee notes that respect for the principles of freedom of association requires that the public authorities exercise great restraint in relation to intervention in the internal affairs of trade unions. It is even more important that employers, including governments in their quality of employer, exercise restraint in this regard. They should not, for example, do anything which might seem to favour one group within a union at the expense of another [Digest, op. cit., para. 859]. Noting that the presentation of statements of resignation were accompanied by warnings of “dire consequences”, letters and telephone calls to the families of trade unionists, as well as private meetings with and home visits by hierarchical superiors, the Committee recalls that in a previous case regarding allegations of anti-union tactics aimed at union members to encourage their withdrawal from the union and the presentation of statements of resignation to the workers, as well as the alleged efforts made to create puppet unions, the Committee considered such acts to be contrary to Article 2 of Convention No. 98, which provides that workers’ and employers’ organizations shall enjoy adequate protection against any acts of interference by each other or each other’s agents in their establishment, functioning or administration [Digest, op. cit., para. 858]. The Committee further notes that the withdrawal of the check-off facility, which could lead to financial difficulties for trade union organizations, is not conducive to the development of harmonious industrial relations and should therefore be avoided [Digest, op. cit., para. 475].
59. 789. With regard to MOGAHA instructions to prevent the conduct of KGEU elections and the public disapproval expressed by the Government at the election results, the Committee notes that the right of workers’ organizations to elect their own representatives freely is an indispensable condition for them to be able to act in full freedom and to promote effectively the interests of their members. For this right to be fully acknowledged, it is essential that the public authorities refrain from any intervention which might impair the exercise of this right, whether it be in determining the conditions of eligibility of leaders or in the conduct of the elections themselves [Digest, op. cit., para. 391].
60. 790. Furthermore, with regard to the legal nature of the KGEU, the Committee recalls that as far as its own procedures are concerned, the fact that an organization has not been officially recognized does not justify the rejection of allegations when it is clear from the complaints that this organization has at least a de facto existence [Procedures for the examination of complaints alleging violations of freedom of association, para. 35].
61. 791. In light of the above, and of the new allegations concerning a recent directive from MOGAHA to follow up on the initial campaign, the Committee requests the Government to immediately cease all acts of interference against the KGEU, in particular the forced closure of its offices nationwide, the discontinuance of the check-off facility, the disallowance of collective bargaining, the pressure on KGEU members to resign from the union as well as administrative and financial sanctions against local governments which fail to comply with the Government’s directives. It further calls upon the Government to abandon these directives and to take all possible measures with a view to achieving conciliation between the Government (in particular MOGAHA) and the KGEU so that the latter may continue to exist and ultimately to register within the framework of the legislation which should be in line with freedom of association principles. The Committee requests to be kept informed in this respect.
62. 792. The Committee notes with deep regret the death of two trade unionists, Ha Jeung Koon, member of the Pohang local union of the KFCITU, who died in August 2006 allegedly after severe beating by riot police during a demonstration organized by the union, and Kim Tae-hwan, president of the FKTU Chungju regional chapter who was run over by a cement truck on 14 June 2005 while on the picket line in front of the Sajo Remicon cement factory.
63. 793. The Committee notes that, according to the Government, the death of Ha Jeung Koon occurred in the chaos of extreme violence led by the Construction Confederation of the KCTU (i.e. the KFCITU) to support the Pohang local union’s forceful occupation of offices of construction companies. The prosecutors are investigating the cause of his death and measures will be taken based on the results. However, according to the Government, the violent struggle on that day was organized purposely by unionists with masks who assaulted policemen with iron pipes (over 2,500 pipes were collected at the scene of the violence). As for Kim Tae Hwan, his death was regretful, but was a traffic accident. Mr Kim tried to stop a car carrying goods of the company during the strike and was hit by the car. The driver was punished accordingly.
64. 794. With regard to the death of Kim Tae Hwan, president of the FKTU Chungju regional chapter, the Committee observes that a reading of the relevant video transcript provided by the ICFTU demonstrates that this death was the result of not just a simple car accident, given that it took place in the context of an industrial dispute and in particular: (i) during a picket while workers were trying to stop a truck driven by a replacement worker from leaving the worksite; and (ii) in a particularly contentious situation since the police along with unidentified civilians instructed the truck driver to move forward in spite of the trade unionists standing in front of the truck. The Committee also notes that, according to the ICFTU, the employer offered pecuniary compensation to the widow of the trade union leader, without however accepting legal responsibility. The Committee recalls that the killing, disappearance or serious injury of trade union leaders and trade unionists requires the institution of independent judicial inquiries in order to shed full light, at the earliest date, on the facts and the circumstances in which such actions occurred and in this way, to the extent possible, determine where responsibilities lie, punish the guilty parties and prevent the repetition of similar events [Digest, op. cit., para. 48]. The Committee therefore expresses its deep regret at the treatment of the death of Kim Tae Hwan, president of the FKTU Chungju regional chapter, who was run over by a cement truck on 14 June 2005 while on the picket line in front of the Sajo Remicon cement factory, as a simple car accident. It requests the Government to institute an independent investigation into the circumstances of his death and in particular the role of the police and unidentified civilians, so as to shed full light onto the incident, determine where responsibilities lie, punish any guilty parties and prevent the repetition of similar events.
65. 795. With regard to the death of Ha Jeung Koon, member of the Pohang local union of the KFCITU in August 2006, the Committee recalls that in cases in which the dispersal of public meetings by the police has involved loss of life or serious injury, the Committee has attached special importance to the circumstances being fully investigated immediately through an independent inquiry and to a regular legal procedure being followed to determine the justification for the action taken by the police and to determine responsibilities [Digest, op. cit., para. 49]. The Committee requests the Government to keep it informed of the outcome of the investigation under way concerning the death of Ha Jeung Koon, and trusts that the investigation will be concluded swiftly and will determine where responsibilities lie, allowing for the guilty parties to be punished and the repetition of similar events to be prevented.
66. 796. With regard to the allegations by the IFBWW which were examined by the Committee in its previous report and concerned the criminal prosecution and imprisonment of officials of the KFCITU and restrictions over collective agreements concerning sub-contracted workers in the construction sector, the Committee takes note of the report of the ICFTU/TUAC/GUF joint mission to the Republic of Korea which was communicated with the KGEU’s complaint. The mission report refers to a surge of incarcerations in the construction sector (more than 100) for what in other countries would be normal trade union activities, i.e. collective bargaining with main building contractors. It also pinpoints a trend of informalization of the economy in general, along with a criminalization of trade unions which attempt to organize informal sector workers like, for instance, in the construction sector, where the most serious charges construed collective bargaining with main contractors on behalf of subcontracted workers as extortion, despite the fact that the contractors had come to the table and were ready to negotiate. The report also makes reference to precariousness and substandard working conditions in the construction sector, and indicates that the police crackdown aimed at preventing trade unions from organizing the irregular workers and negotiating better working conditions for them.
67. 797. The Committee also notes that, in its reply to the allegations, the Government enumerates several incidents of violent protests by construction workers’ unions, including occupations of the offices of main contractors in protest at job precariousness, with the use of iron pipes, self-made flamethrowers, etc. The Government also describes the efforts undertaken to improve the conditions of work of construction workers through legislation. With regard to the allegations concerning the penal pursuit of trade unionists from the construction sector in the absence of complaints by the contractors, the Government indicates that in November 2005 the construction industry employers’ association filed a complaint with the Minister of Labour against the union’s demand for money as wage payment to full-time union officers and some actually declared that the collective agreements had been illegal and that they were planning to file suit in the courts.
68. 798. The Committee further takes note of the additional information provided by the Government to supplement its previous response to the IFBWW allegations. The Committee notes that, according to the Government, the union officers in question visited many apartment construction sites where they had no employment relationship, extorted or made an attempt to extort money under the pretext of collective agreements and threatened project managers who refused to accept their demand. Considering the evidence verified by the competent courts, they were punished for the following: they did not belong either to the original contractor nor to any of the local subcontractors, had no employment relationship with, nor worked for any of the workplaces; when asked to show a roster of union members, they failed to produce it and insisted that collective agreements should be signed regardless of whether there were members; they demanded the employers to send 400,000 won to their bank accounts in the name of activity fees every month (approx. US$400) and threatened that, if the employer refused to pay the money, they would find various violations, including lack of safety equipment, and report them to the regional labour office, along with photos; after the signing of collective agreements and the sending of the money, they never appeared in the workplaces to keep watch on their industrial safety; if the construction sites did not accept their demand, the officers took photos of any violations, such as failures to wear safety helmets (which is an obligation even for union officers themselves) and reported them to the Ministry of Labour or even made false reports; some of the reported workplaces were punished for violations after investigation by the authorities but others turned out to have been fraudulently reported, so the unions were punished on charges of false accusation; many workplaces accepted their demand for fear of receiving unfavourable treatment as a result of accusations, such as delays in construction or prohibition from bidding for government construction contracts; the union officers extorted money either monthly or in one payment and many of them used their private bank accounts to receive the money; half of them spent the money for personal purposes irrelevant to the union and the other half divided the money among themselves and spent it for personal purposes; the Cheonan/Asan Construction Workers’ Union extorted 42.55 million won (US$42,000) and attempted to extort 6.99 million won (US$7,000) per month from 22 construction sites from December 2004 to June 2006.
69. 799. Furthermore, the Committee notes that additional information is provided by the Government to show that the allegations of the complainant IFBWW in its previous examination of the case were groundless: (i) the complainant claimed that the Daejeon District Court had handed down a light sentence against construction union officers on 16 February 2004, ruling that they were not personally liable because they spent the activity fees for the purposes of their organization; however, the Court had only said that although the union officers “are considered guilty of blackmail charges, their extortion of money does not constitute habitual blackmail because the act was committed according to their organization’s policy rather than their personal habit”; and (ii) with regard to the collective agreement made between the original contractor and the union the Court acknowledged that even when an original contractor had no direct employment relationship with daily construction workers, it might share the responsibility to conduct collective bargaining with them “if the original contractor is in a position to realistically and specifically govern basic working conditions for the said workers to the point that it can be identified with the subcontractor which is the actual employer of the workers” (Daejeon District Court Decision of 15 September 2004, No. 583); the allegation that the vice-president of Cheonan/Asan Construction Workers’ Union, Rho Seon-Kyun, was mistakenly prosecuted and fined lightly for facts which had taken place before he joined the union in August 2003, is false; the Court sentenced him to a fine for extorting 9.45 million won from 19 construction sites between 1 August and the end of September 2003; the president of the union, Park Young-Jae, who was charged with collective blackmail during nighttime, was sentenced to one year in prison. He was immediately arrested after his conviction because at that moment he was already serving his term of suspension of execution after having been sentenced to imprisonment of eight months with a two-year suspension of execution on different charges on 9 July 2003.
70. 800. The Committee therefore notes that, according to the Government, the courts found all the union officers guilty of threat, blackmail and coercion charges. Six unionists from the Daejeon/Chungcheong Construction Workers’ Union were convicted to six to eight months’ imprisonment with a two-year suspension of execution; appeals filed with the Supreme Court were dismissed on 25 May 2006; Park Young-Jae, president of the Cheonan/Asan Construction Workers’ Union, was immediately arrested after being sentenced to one year imprisonment; Rho Seon-Kyun was fined; the sentence was confirmed in the Supreme Court on 25 May 2006; of the nine trade unionists from the Western Gyeonggi Construction Workers’ Union, three, including Lee Ho-Jung, were sentenced to eight months to one year in prison with a two-year suspension of execution; the remaining six were fined 3 million won; the case is pending before the Second Instance Court.
71. 801. While observing that it does not have at its disposal the text of the court judgements in this case so as to have full knowledge of the evidence presented, the Committee notes that the Government’s reply and the complainant’s allegations represent divergent views of the facts. The Committee requests the Government to transmit all additional information in this regard, including relevant court judgements, and to keep the Committee informed of the outcome of the appeal in this case. The Committee further invites the complainant, IFBWW, to transmit any further information it considers appropriate in response to the information provided by the Government.
72. 802. In addition, the Committee notes from the new allegations and latest information provided by the Government in respect of the union officers of the Daegu Construction Workers’ Union charged with blackmail under what had been reported to be similar conditions, that the court of second instance found these not guilty. In particular, the Committee observes that the court found that: (1) original contractors are recognized as having employer status along with the subcontractors; (2) request for payment of full-time union activity is a legitimate trade union activity; (3) it is also a legitimate trade union activity to warn of possible reporting of illegal employer acts and to use this as pressure for the signing of collective agreements; (4) the money for union activity was received in a union bank account and used for union activity; and (5) the union officials regularly provided safety education at the construction sites. The Committee recalls in this respect its previous conclusions, similar to that described above, in respect of the various conflicts in the construction industry that: (1) denouncing insufficient OSH measures was a legitimate trade union activity and any warnings in this respect should not be considered to be illegal coercion; (2) the conclusion of a collective agreement with a main contractor is a viable option; and (3) a main contractor on a construction site should be able to voluntarily recognize a worker on the site as a full-time unionist even if the worker does not work directly for the main contractor. [See 340th Report, paras 774–776.] Noting, however, in this particular case, the Government’s indication that the second instance court upheld the convictions of the officials at Daegu Construction Workers’ Union on other charges, including violations of the Act on Punishment of Violence, the Committee requests the Government to provide a copy of the court judgement in question and to keep it informed of the outcome of any further appeals.
73. 803. The Committee, more generally, wishes to emphasize that these cases concern precarious and particularly vulnerable construction workers recently exercising their right to organize and bargain collectively in a complex bargaining context, involving several layers of subcontractors over which only the main contractor has a dominant position. Thus, the Committee deeply regrets the decision of those courts that had concluded that collective agreements signed by the KFCITU and the main construction company were only applicable to employees of the main company and did not apply to workers hired by subcontractors. Finally, the Committee notes that according to the Government, construction firms which have direct employment relationships with construction workers have a limitation in improving their working conditions, including wages, through labour–management negotiation because of their lack of bargaining experience. Recalling its conclusions noted above, the Committee requests the Government to undertake further efforts for the promotion of free and voluntary collective bargaining over terms and conditions of employment in the construction sector covering, in particular, the vulnerable “daily” workers. In particular, the Committee requests the Government to provide support to construction sector employers and trade unions with a view to building negotiating capacity and reminds the Government that it may avail itself of the technical assistance of the Office in this regard if it so wishes. The Committee requests to be kept informed of developments in this respect.
74. 804. Finally, with regard to the allegations of harassment of union representatives during minimum wage negotiations in June 2005, the Committee observes from the ICFTU allegations and the Government’s reply, that police forces were present outside the meeting room in which the minimum wage negotiations were taking place between representatives of employers, workers and public interest groups. The Committee considers that the presence of police forces in close proximity to the room where minimum wage negotiations take place is liable to unduly influence the free and voluntary nature of negotiations. The Committee therefore considers that any police presence in the vicinity of meeting rooms where negotiations are taking place must be strictly justified by the circumstances and requests the Government to provide details of the circumstances giving rise to the presence of the police force in this instance.
75. 805. The Committee reminds the Government of its commitment to ratify Conventions Nos 87 and 98 made to the ILO High-Level Tripartite Mission which visited the country in 1998 and was reposted to the Governing Body in March 1998 (see document GB.271/9).