Rapport définitif - Rapport No. 324, Mars 2001

1. 416. The International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers' Associations (IUF), filed the present complaint on behalf of its affiliate the Korean Federation of Tourism Workers' Union (KFTWU) against the Republic of Korea in a communication of 17 July 2000.
2. 417. The Government submitted its observations in a communication dated 19 October 2000.
3. 418. The Republic of Korea has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 419. In its communication of 17 July 2000, the IUF states on behalf of the KFTWU that following the expiration of a previous collective bargaining agreement in May 2000, the Lotte Hotel Workers' Union, affiliated to the KFTWU, attempted to negotiate a successor agreement. Rather than enter into good faith negotiations, the hotel management declared a deadlock and invoked a compulsory arbitration clause contained in the expired agreement, which had been negotiated when the union belonged to a different labour federation. The arbitration board set up by the Seoul Labour Relations Commission (LRC) ruled that there should be no change in the previous agreement. The union was thereby deprived of its rights to collective bargaining under ILO Convention No. 98 since it was saddled, without remedy, with the terms of an expired collective agreement it had not negotiated.
2. 420. Under the expired collective bargaining agreement, hotel management deprived an ever?growing number of its employees of their rights to freedom of association and collective bargaining by falsely labelling all newly hired employees as "temporary", thereby excluding them from the terms of the collective agreement and denying their right to union membership. The Government, acting through the arbitration board of the Seoul Labour Relations Commission, has prevented the union from ending this discriminatory practice through collective bargaining.
3. 421. The union went on strike to pursue its legitimate aims. On 29 June and again on 10 July striking union members were subjected to brutal police interventions leading to mass injuries and arrests. These Government actions are effectively denying the union members their right to freedom of association under ILO Convention No. 87, and to collective bargaining under ILO Convention No. 98.

B. The Government's reply

1. 422. In its communication of 19 October 2000, the Government states, as regards the decision of the Seoul LRC, that article 62 of the Trade Union and Labour Relations Adjustment Act (TULRAA) provides that the Commission shall conduct an arbitration, inter alia "at the request of one of the parties, in accordance with the provisions of a collective agreement" which was the case at Lotte Hotel. This was not a case of compulsory arbitration, which can only take place in disputes concerning essential public services. In fact, arbitration requests are made far more frequently by trade unions than by employers. For instance in 1999, out of 199 such requests, 187 were made by unions and 12 by employers.
2. 423. As regards the particular case of the Lotte Hotel, the collective agreement had been concluded with an expiry date of 31 May 2000. Article 32(3) of the TULRAA provides that "if a new collective agreement has not been concluded at the expiry date of the existing agreement, even though the parties concerned continued to conduct collective bargaining with a view to coming up with a new collective agreement, the existing collective agreement shall remain effective for another three months after its expiry date, except that there exists a separate agreement". In addition, Addendum 2 of the Lotte Hotel collective agreement states that "if a new collective agreement has not been concluded between management and labour, the existing agreement shall remain effective for 90 days after its expiration".
3. 424. The hotel management applied for arbitration on 8 June 2000 (i.e. before 30 August, the expiry date of the existing agreement) and the Seoul Labour Relations Commission ruled on 20 June 2000. Therefore, considering the provision of the TULRAA and the collective agreement of the Lotte Hotel, and the dates of application and ruling, the Government considers that the decision was legitimate.
4. 425. Concerning the IUF's argument that the arbitration award was unjust because it was based on a collective agreement negotiated when the Lotte Hotel trade union belonged to a different labour federation, the Government states that collective agreements concluded between employers and trade unions are effective as long as they are in force. Thus, the Lotte Hotel's collective agreement should remain effective regardless of the fact that the union leadership had changed, or that the trade union did not belong to the former federation any more.
5. 426. As regards the allegation that the Seoul Labour Relations Commission ruled that there should be no change in the previous agreement, the Government points out that, in fact, the Commission issued its arbitration award as a mediator, taking into account the opinions of labour and management. For instance, the Commission decided to raise wages by 8 per cent despite management's reluctance to negotiate wages. In relation to the issue of retirement, the Commission adjusted the retirement age upward to 56 and decided to allow retired personnel to work another year on a contract basis, while the management demanded to maintain retirement age at 55.
6. 427. Regarding the allegation that police intervention in the legal strike violated workers' rights to freedom of association and collective bargaining, the Government recalls the chronology of events. After a preliminary meeting on 12 May 2000, the Lotte Hotel trade union and the management entered into a first bargaining round on 25 May 2000, but made no progress. The union held strike votes from 3 to 5 June and launched the strike on 9 June. The trade union did not participate in four rounds of arbitration meetings held from 13 June. From 22 June, union members began to camp in a ballroom of the hotel. On 20 June, the Seoul Labour Relations Commission ruled according to clauses of the Lotte Hotel collective agreement, after accepting the request from the management (the arbitration award is effective from 20 June 2000 to 31 May 2002).
7. 428. The strikes which started from 9 June, after the case was referred to arbitration on 8 June, violated article 63 of the TULRAA which prescribes that industrial actions shall not be conducted for 15 days from the date when industrial disputes have been referred to arbitration. Moreover, strikes after arbitration awards are against the obligation of peace imbedded in the nature of collective agreements, because arbitration awards have the same effect as collective agreements.
8. 429. The Lotte Hotel trade unions were involved in the following illegal activities during strikes. Union members assaulted police officers after dragging them to protest sites. A group of about 200 protesters destroyed a reservation room door on the third floor of the hotel and stopped the duty-free shop business, by occupying it and swearing and yelling at shoppers. About 100 union members made a protest visit to the welfare department of the hotel, used violence against officials and destroyed facilities. They also threatened high-ranking officials to kneel down and write a statement, and to beat them.
9. 430. As violence against the management continued, a warrant was issued and the police tried twice to arrest attackers at the hotel on 28 June, but failed. On 29 June, the police entered the protest site to implement requests by the management for protection of the premises, and to execute the arrest warrants. Before entering, the police took all safety measures such as preparing fire engines, mattresses, nets and ambulances and dispatching 150 female police officers, and did all it could do to prevent violent clashes. Yet the moment the police entered the hotel, 1,000 unionists strongly resisted, throwing dishes, glasses and knives and spraying fire-extinguishing chemicals from behind barricades erected with a piano and chairs in the corridors of the 36th and 37th floors. During the process, 15 police officers and 35 union members were injured.
10. 431. Other incidents occurred on 10 July while police were dispersing crowds gathered at an unreported and violent rally. From 10 a.m. to 6.30 p.m., 700 unionists tried to ram through the hotel, despite repeated warnings of the police to break up. The police responded to protesters who were engaged in violence, wielding wooden pipes. Thirteen law enforcers and five union members were injured until the strike ended around 6.30 p.m. Thirty people were arrested but all were released. The Government finds it very unfortunate to see clashes between the police and union members during protests, but the measures the police took were inevitable to maintain social order and protect citizens' safety.
11. 432. The Government adds that it made all efforts to settle the dispute. Collective bargainings were encouraged through frequent dialogues with leaders of the KFTWU and the management and labour of the hotel since the start of the strike on 9 June. The Government urged the management to engage in good faith collective bargaining, and the trade union to stop violent protests. It maintained a non-interventionist approach which indicates its respect for the principle of a voluntary dispute settlement between management and labour. Despite these efforts, the management insisted on not being involved in collective bargaining, citing the decision of the Commission, while the union did not stop striking, reasoning that the decision was not acceptable.
12. 433. The basic position of the Government is that legitimate collective bargaining and strikes are fully allowed, but illegal ones accompanied by violence and destruction will be punished according to the law. The hotel management demanded police protection for hotel facilities and safety of foreign guests during the strikes. There were violent actions against law enforcers and management, which called for police intervention to protect the lives and properties of citizens. The Government recognizes its responsibility to protect labour rights guaranteed by the Constitution. However, collective actions involving violence do not constitute justifiable collective actions.
13. 434. The Government adds that, due to its continued efforts as a mediator to bring both sides to the table, the labour and management of the hotel signed an agreement on 21 August. This agreement settles contentious issues, such as the elimination (effective from June 2002) from the existing collective agreement of the clause on arbitration requested by one of the parties, a wage increase and the shift of status of atypical workers into that of regular employees. With this agreement, the trade union and management withdrew all complaints and accusations which occurred during the strikes, thereby completely ending the disputes.

C. The Committee's conclusions

1. 435. The Committee notes that this case concerns the alleged refusal of an employer to negotiate a successor agreement, as well as police intervention and arrests of trade unionists during a violent strike.
2. 436. As regards the parties' attitude in bargaining, the violence that erupted during the strike and the intervention of police forces, the Committee observes that the competent authorities tried, without success, on the one hand to persuade the hotel management to adopt a more conciliatory approach towards collective bargaining rather than insisting strictly on the application of the previous collective agreement and, on the other hand, to convince the union to stop violent protests. Noting that such entrenched positions often result in more or less violent confrontations, the Committee recalls that while the question as to whether or not one party adopts an amenable or uncompromising attitude towards the other party is a matter for negotiation between the parties, both employers and trade unions should bargain in good faith, making every effort to reach an agreement [Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 817].
3. 437. The Committee further recalls that while workers and their organizations have an obligation to respect the law of the land, the intervention by security forces in strike situations should be limited strictly to the maintenance of public order and that such intervention should be in proportion to the threat to public order [Digest, op. cit., paras. 581 and 582].
4. 438. The Committee notes that, with the help of official mediation services, the management of the hotel and the trade union representing the workers signed in August 2000 an agreement which ended completely the dispute, including the removal from the collective agreement of the compulsory arbitration clause which, it seems, was a paramount factor in triggering the conflict in the first place. Taking into account that the parties came to an agreement and that both of them withdrew all complaints and accusations made during the strike, the Committee considers that this case does not call for further examination.