중간 보고서 번호 304, 1996년 6월
Interim Report No 304, June 1996
참고/링크 자료 :
Interim Report - Report No 304, June 1996
Case No 1865 (Republic of Korea) - Complaint date: 14-DEC-95 – Closed
C. The Committee's conclusions
242. The Committee notes that the allegations in this case concern the arrest and detention of a trade union official as well as the refusal by the Government to register a trade union confederation and a federation outside the existing structure.
243. As regards the arrest of Mr. Young-kil Kwon on 23 November 1995 and his subsequent detention, the Committee notes that the Government does not refute this allegation, but justifies it on various grounds and adds that he was released on 13 March 1996. First of all, the Government indicates that Mr. Kwon had been sought by the police since 28 June 1994 when an arrest warrant had been issued for him on charges of violating the provisions of the Labour Dispute Adjustment Act (LDAA) prohibiting third party intervention (sections 13(2) and 45(2) of the LDAA). Furthermore, he had violated other laws by obstructing the general traffic flow and intruding on to private premises (sections 185 and 319(1) respectively of the Criminal Law), as well as illegally collecting contributions (sections 3 and 11 of the Law on Prohibiting the Collection of Contributions in Cash or in Kind).
244. As regards the provisions of the LDAA prohibiting third party intervention in the settlement of disputes, the Committee would remind the Government, as it has done on previous occasions in another case concerning the Republic of Korea (286th Report (Case No. 1629), para. 564, and 294th Report (Case No. 1629), para. 259) that such a prohibition constitutes a serious restriction on the free functioning of trade unions. It therefore calls on the Government to take the necessary measures to have the provisions containing this prohibition repealed.
245. The Committee further notes with serious concern the Government's admission that Mr. Young-kil Kwon had been wanted by the police since June 1994 when an arrest warrant had been issued for him for having made several speeches supporting the strike by railway and subway workers. Thus, the violation of the prohibition of third party intervention was in effect used as the principal charge for the arrest and detention of Mr. Kwon on 23 November 1995. In this respect, the Committee recalls that the arrest and detention of trade union leaders for activities in connection with the exercise of their right to organize are contrary to the principles of freedom of association (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 69 and 70). While acknowledging the Government's statement that Mr. Kwon was released on 13 March 1996, the Committee urges the Government to do everything in its power to have the charges against Mr. Kwon dropped. It further urges it to ensure in future that trade union leaders are not arrested and detained for such activities.
246. With regard to the criminal charge of intrusion into private premises (section 319(1) of the Criminal Law), brought against Mr. Kwon for the holding of the Inaugural Congress of the KCTU at the auditorium of Yonsei University on 11 November 1995, the Government contends that the University had refused Mr. Kwon permission to use its facilities for the Congress and had even requested police protection, despite which Mr. Kwon, together with workers and students, forcibly broke into the University's premises. The Committee observes however that the KCTU makes no mention in its complaint of the presence of police or students during its Inaugural Congress; on the other hand, the KCTU emphasizes that the Congress, which went off smoothly, was attended not only by local delegates but also by about 500 international delegates and observers. In view of the differing versions by the KCTU and the Government of the holding of the KCTU Inaugural Congress at Yonsei University, the Committee would draw the attention of both the KCTU and the Government to the principle that while persons engaged in trade union activities or holding trade union office cannot claim immunity in respect of the ordinary criminal law, trade union activities should not in themselves be used by the public authorities as a pretext for the arbitrary arrest or detention of trade unionists (see Digest, op. cit., para. 83).
247. The Committee observes that both the KCTU and the Government concur that Mr. Kwon, along with workers and students, marched for about three hours to a square near the Parliament building on 12 November 1995. The Government asserts however, that Mr. Kwon and his group of 10,000 workers and students marched for approximately 6 km from Yonsei University to Yoido Square, occupying roadways to hold sit-ins and blocking traffic flow, thereby violating section 185 of the Criminal Law. The KCTU states that in fact, 50,000 workers participated in this march. In this context, the Committee reminds the KCTU 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 (see Digest, op. cit., para. 141). The Committee nevertheless recalls that the right to participate in peaceful marches and to hold sit-ins are legitimate trade union activities.
248. As for the charge brought against Mr. Kwon of illegally collecting contributions, the Committee notes the Government's argument that when an organization wants to collect contributions in cash or in kind from the general public, it must obtain the approval of the competent authorities. By placing an advertisement in a daily newspaper on 13 October 1995 and receiving contributions from three persons who were not members of the KCTU, Mr. Kwon violated section 3 of the Law on Prohibiting the Collection of Contributions in Cash or in Kind. The Committee would however draw the Government's attention to the principle that the right of workers to establish organizations of their own choosing and the right of such organizations to draw up their own constitutions and internal rules and to organize their administration and activities presuppose financial independence. Hence, provisions governing the financial operations of workers' organizations should not be such as to give the public authorities discretionary powers over them (see Digest, op. cit., paras. 428 and 430). However, in view of the fact that section 3 of the above-mentioned Law does require prior authorization from the public authorities, thereby granting them discretionary powers with respect to financial contributions from non-members of trade union organizations, the Committee requests the Government to take appropriate measures to repeal this provision in order to ensure that unions enjoy financial independence.
249. As regards the refusal by the Ministry of Labour to register the KCTU, the Committee observes that three reasons were put forward by the Ministry for returning the KCTU's establishment report on 24 November 1995. First, the objectives of the KCTU overlapped with those of the already existing confederation, the Federation of Korean Trade Unions (FKTU). This was a violation of section 3(5) of the Trade Union Act (TUA) which stipulates that "when the objectives of an organization overlap with those of an existing union, the organization shall not be recognized as a trade union". The Committee notes that this rule also applies to the registration of federations and confederations. In this respect, the Committee would draw the Government's attention to the principle that a provision authorizing the refusal of an application for registration if another union, already registered, is considered to be sufficiently representative of the interests which the union seeking registration proposes to defend, means that, in certain cases, workers may be denied the right to join the organization of their own choosing, contrary to the principles of freedom of association (Digest, op. cit., para. 297). The Committee therefore requests the Government to take the necessary steps to ensure that section 3(5) of the TUA is amended so as to enable workers to establish and join the organization of their own choosing without any restriction.
250. The Government indicates that the second reason for refusing to register the KCTU was that a number of non-union organizations were affiliated to the KCTU as members. This was in violation of section 13(2) of the TUA which provides that a national centre should be established by lawful industrial federations of trade unions or unit trade unions. The KCTU's member organizations, however, were regional business or enterprise group councils and other unions illegally established under the TUA: namely, the National Council of Subway Workers' Union; the Federation of Hyundai Group Trade Union, and the Chunkyojo, which is formed by teachers whose unionization is banned by the Public Service Law. As regards the Korean Teachers' and Educational Workers' Union (CHUNKYOJO), the Committee would emphasize that it had already concluded in Case No. 1629 that the setting up of CHUNKYOJO was a legitimate exercise of the teachers' right to organize and had called upon the Government to take the necessary measures to enable private and public schoolteachers to exercise freely the right to organize (see 286th Report, paras. 562, 563 and 569; 291st Report, para. 419; 294th Report, para. 271). The Committee reiterates its conclusions here and would remind the Government once again in this respect that while organizations should respect the law of the land, the law should respect freedom of association principles. As for the National Council of Subway Workers' Union and the Federation of Hyundai Group Trade Union, the Committee sees no reason why these two organizations are not considered to be legally established unions under Korean labour laws. It would therefore request the Government to take appropriate steps to ensure that they are granted registration so as to enable them to exercise legitimate trade union activities.
251. According to the Government, the third reason for which the KCTU was refused registration was that it violated section 23(1) of the TUA (which stipulates that union officials shall be elected from among the union members), by electing as its officials Mr. K.H. Yang and five other persons whose dismissals from their respective companies were confirmed by a Supreme Court decision, thus disqualifying them from worker status according to the current laws. As regards the right to hold trade union office, the Committee would draw the Government's attention to the general principle 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 conditions of eligibility of leaders or in the conduct of the elections themselves. More specifically, given that workers' organizations are entitled to elect their representatives in full freedom, the dismissal of a trade union leader, or simply the fact that he leaves the work which he was carrying out in a given undertaking, should not affect his trade union status or functions unless stipulated otherwise by the constitution of the trade union in question (see Digest, op. cit., paras. 353 and 373). The Committee would therefore request the Government to take steps to amend section 23(1) of the TUA in line with the above-mentioned principles.
252. As a result, the Committee feels bound to conclude that the Government's arguments for not registering the KCTU because it violated national laws are not persuasive since these laws are not in conformity with the principles of freedom of association, as illustrated in the three previous paragraphs. Consequently, the Committee would request the Government to take appropriate steps so that the KCTU is registered as a trade union confederation to enable it to exercise legitimate trade union activities, including the right of collective bargaining and participation in tripartite consultations. The Committee notes that according to the second complainant, the Korean Automobile Workers' Federation (KAWF) was refused registration for similar reasons: the KAWF has the same organizational objectives as an already existing federation, the Federation of Korean Metalworkers' Trade Unions; and the elected President of the KAWF was disqualified from trade union office under current laws because he was dismissed from his company. In view of the fact that the Government refused the KAWF registration on the basis of the same laws that were applied to the KCTU and which were in violation of freedom of association principles, the Committee considers that the conclusions that it enunciated vis-à-vis the KCTU apply, by analogy, to the KAWF. The Committee would therefore additionally request the Government to take appropriate steps so that the KAWF is registered as a trade union federation to enable it to exercise legitimate trade union activities.
253. Finally, the Committee notes the Government's statement that the Labour Laws Review Committee as well as the recently established Presidential Commission on Industrial Relations Reform (PCIR) are studying the revision of current labour laws. In view of the fact that the Labour Laws Review Committee was set up on 24 April 1992 to examine all problems arising from labour-related laws (286th Report, para. 532), the Committee urges the Government to ensure that these proposed amendments to labour-related legislation are no longer delayed. It trusts that these amendments will be in line with freedom of association principles, including those that have been enunciated in its conclusions.
The Committee's recommendations
254. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
(a) The Committee urges the Government to do everything in its power to have the charges brought against Mr. Kwon dropped. It further urges the Government to ensure in future that trade union leaders are not arrested and detained for activities in connection with the exercise of their right to organize.
(b) The Committee requests the Government to take appropriate steps to ensure that the KCTU is granted registration as a trade union confederation so as to enable it to exercise legitimate trade union activities, including the right of collective bargaining and participation in national tripartite consultation. The Committee additionally requests the Government to take appropriate steps to ensure that the Korean Automobile Workers' Federation, the National Council of Subway Workers' Union and the Federation of Hyundai Group Trade Union are granted registration so as to enable them to exercise legitimate trade union activities. The Committee requests the Government to provide information on any progress made in this regard.
(c) Reiterating that the setting up of the Korean Teachers' and Educational Workers' Union (CHUNKYOJO) is a legitimate exercise of teachers' right to organize, the Committee calls upon the Government to take the necessary measures to enable private and public schoolteachers, including those belonging to CHUNKYOJO, to exercise freely the right to organize.
(d) As regards the legislative aspects of this case, the Committee draws the Government's attention to the following:
- Reminding the Government once again that the prohibition of third party intervention in the settlement of disputes constitutes a serious restriction on the free functioning of trade unions, the Committee calls on the Government to take the necessary measures to have the provisions containing this prohibition (namely sections 13(2) and 45(2) of the Labour Dispute Adjustment Act (LDAA)) repealed.
- Recalling the principle that provisions governing the financial operations of workers' organizations should not be such as to give the public authorities discretionary powers over them, the Committee requests the Government to take appropriate measures to have section 3 of the Law on Prohibiting the Collection of Contributions in Cash or in Kind repealed in order to ensure that unions enjoy financial independence.
- The Committee requests the Government to take the necessary steps to ensure that section 3(5) of the Trade Union Act (TUA) is amended so as to enable workers to establish and join the organization of their own choosing without any restrictions.
- The Committee requests the Government to take steps to amend section 23(1) of the TUA so as to enable workers' organizations to elect their representatives, including former employees in full freedom.
(e) The Committee urges the Government to ensure that proposed amendments to labour-related legislation are no longer delayed. It trusts that these amendments will be in line with freedom of association principles, including those that are enunciated in its conclusions. It reminds the Government that the technical assistance of the Office is at its disposal in giving effect to this recommendation.
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