중간 보고서 번호 307, 1997년 6월
Interim Report No 307, June 1997
참고/링크 자료 :
Interim Report - Report No 307, June 1997
Case No 1865 (Republic of Korea) - Complaint date: 14-DEC-95 – Closed
D. The Committee's conclusions
Allegations of a legislative nature
210 The Committee takes note of the adoption by the National Assembly of the Trade Union and Labour Relations Adjustment Act (TULRAA) and of its enactment on 13 March 1997. The Committee notes with interest that this new law contains a number of amendments which constitute progress towards acceptance of its recommendations, especially as regards the possibility of trade union pluralism at the industrial and national levels. However certain provisions that the Committee had considered to be contrary to freedom of association principles have not been amended. The Committee proposes to review, one by one, the points that it had raised during its previous examination of this case.
211 The Committee notes the Government's observations regarding the problem of the right to organize of public servants and of teachers. It observes that public servants, with the exception of those who are engaged in manual work at the Office of Railroads, the Ministry of Information and Communication and the National Medical Centre, still do not enjoy the right to organize. With regard to teachers, the Committee notes the explanations given by the Government concerning their role and status in Korean society. It notes moreover that despite the fact that teachers are viewed in a special light by the Korean people, it was possible to establish educational associations in 1991. According to the Government, these associations can discuss and negotiate working conditions with the authorities. However, it would not appear that these associations are trade unions in the true sense of the term, i.e. which are responsible for defending and promoting the interest of their members. This is reflected by the fact that the Korean Teachers' and Educational Workers' Union (CHUNKYOJO) has not been registered up to now.
212 In these conditions, the Committee must recall that public servants and teachers, like all other workers, without distinction whatsoever, have the right to form and join organizations of their own choosing, without previous authorization, for the promotion and defence of their occupational interests (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 213). The denial of the right of workers in the public sector to set up trade unions, where this right is enjoyed by workers in the private sector, with the result that their "associations" do not enjoy the same advantages and privileges as "trade unions", involves discrimination as regards government-employed workers and their organizations as compared with private sector workers and their organizations (see Digest, op. cit., para. 216). The possibility for teachers to establish only associations therefore can not be considered as satisfactory in the light of freedom of association principles.
213 In this respect, the Committee notes that the issue of the right to organize of public servants and teachers will be reviewed in the second reform phase during this year. The Committee requests the Government to take the appropriate steps so as to ensure respect for the fundamental principle of the recognition of the right to organize of workers without distinction whatsoever. The Committee therefore urges the Government to register without delay the Korean Teachers' and Educational Workers' Union (CHUNKYOJO) so that it can legally defend and promote the interests of its members. The Committee requests the Government to provide information on developments in this regard.
214 Concerning the alleged violations of the financial independence of organizations, the Committee notes the explanations given by the Government according to which trade unions can receive funds from their members but not from citizens who are non-members. The Committee stresses once again that 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., para. 430).
215 The Committee notes with interest that the possibility of trade union pluralism at the industrial and national levels has been introduced. This constitutes progress in the application of freedom of association principles. In this respect, the Committee notes that several organizations have been registered in accordance with the new law. However, in order for this progress to be really significant, it would be appropriate for the Korean Confederation of Trade Unions (KCTU), the Korean Automobile Workers' Federation (KAWF), the National Council of Subway Workers' Union (NCSWU) and the Federation of Hyundai Group Trade Union to be registered shortly as well. In this respect, the Committee notes that the Government itself indicates that, under the terms of the new law, it is possible for the KCTU, the KAWF and the NCSWU to be recognized immediately. The Committee requests the Government to provide information on the measures taken to register these organizations.
216 The Committee regrets that, in steps take to recognize trade union pluralism, the Government did not immediately consider organizations established at the enterprise level for which trade union pluralism will only be possible from the year 2002. It takes note of the arguments put forward by the Government to justify this delay, especially the instability in industrial relations which could result therefrom. The Committee is of the opinion that this additional period during which freedom of association principles will continue to be seriously infringed could be avoided by organizing without delay a stable collective bargaining system in conformity with trade union pluralism and which exists in several other countries. The Committee once again urges the Government to take the necessary measures to render trade union pluralism legal without delay at the enterprise level.
217 The Committee notes with interest that the term "social activities" has been removed as a reason for which a trade union organization could be disqualified. Thus, an ambiguous situation in respect of the right of trade unions to organize their activities freely has been removed.
218 The Committee takes note of the information furnished by the Government concerning the lifting of the ban on third-party intervention in collective bargaining. It notes in particular that the purpose of the notification of the identity of third parties to the Minister of Labour is merely to inform (section 40 of TULRAA). The Committee therefore understands that this measure does not constitute a requirement of previous authorization. It requests the Government to confirm that this is indeed the case and to indicate what are the possible sanctions in case of the failure to notify the Ministry of Labour.
219 The Committee notes that the new legislation establishes a distinction between general public services and essential public services and that recourse may be had to arbitration only for this second category of public services after a recommendation of the Special Mediation Committee to this effect (sections 71 and 74 of TULRAA). The Committee observes that the essential services are the following: railroad services, inner-city bus services, water, electricity, gas supply, oil refinery and supply services, hospital services, banking services and telecommunication services. However, the inner-city bus services and banking services (except for the Bank of Korea) will be considered as essential only until the year 2000.
220 The Committee recalls in this respect that recourse to compulsory arbitration, when this results in the prohibition of the right to strike, should be limited to services whose interruption would endanger the life, personal safety or health of the whole or part of the population (see Digest, op. cit., para. 516). The Committee considers, on the basis of this definition, that the Mint, banking services, transport services and the petroleum sector do not constitute essential services in the strict sense of the term. They do constitute, however, 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. The Committee notes, however, that under the terms of section 63 of TULRAA there does not appear to be a total prohibition of the right to strike in case of arbitration. In effect, this provision stipulates that industrial actions shall not be conducted for 15 days from the date on which they have been referred to arbitration. The Committee requests the Government to provide information on this point.
221 As regards the replacement of striking workers, the Committee notes that under the terms of the new law employers may not contract or subcontract works which have been suspended because of the industrial action concerned (section 43 of TULRAA). It would thus appear that the amendments of March 1997 have removed the possibility of hiring workers from outside the business concerned under certain conditions, a possibility which had been provided for in the legislation of December 1996 and which had been criticized by the Committee.
222 The Committee notes that the new law prohibits the occupation of the company's production facilities or other key operating facilities, blocking the entry and obstructing the work of non-striking workers (sections 38(1) and 42(1) of TULRAA). The Committee considers in this respect that certain types of strike action, such as for example workplace occupations as well as taking part in picketing, should not be considered as unlawful unless they cease to be peaceful or they interfere with the freedom to work. The compatibility of the above-mentioned provisions with freedom of association principles will thus depend on how they are interpreted by the courts. In order for such compatibility to be achieved, the action taken by strikers should not be declared unlawful unless this action is accompanied by violence or is a violation of the freedom to work of non-strikers. The Committee requests the Government to keep it informed of the application of this provision in practice.
223 The Committee understands from the Government's statement and from the legislation that the payment of wages to workers for the period when they have gone on strike is neither required nor prohibited (section 44 of TULRAA). The Committee requests the Government to confirm if this is indeed the case.
224 Concerning the denial of the right to organize of dismissed workers, the Committee notes that the workers concerned can keep their union membership until a review decision is made by the Central Labour Relations Commission (section 2(4)(d)). The Committee considers that this guarantee is insufficient to ensure that the principle of the right of workers to join organizations of their own choosing is respected. Moreover, as already pointed out by the Committee in its previous report (paragraph 333), a provision of this nature entails the risk of acts of anti-union discrimination being carried out to the extent that the dismissal of a trade union activist would prevent him from continuing his trade union activities within his organization. Furthermore, as the legislation provides that union officials shall be elected from union members (section 23(1)), which is in violation of freedom of association principles, the inability of dismissed workers to keep their union membership would also prevent them from continuing to carry out their trade union functions. These provisions taken together could even lead to the questioning of the validity of, or the refusal to register, an organization on the pretext that the persons in the executive bodies are not qualified to be members. The Committee requests the Government to quickly put an end to this situation which is in violation of freedom of association principles, by repealing the provisions in question.
225 The Committee notes that in five years' time full-time union officials will no longer be able to be paid by employers. During the transitory period, the parties will try to reduce the payment of wages of these officials and the amount of the reduction will be turned over to the unions for their financial support. The Committee further notes that once the new provision enters into force (1 January 2002) such payments will be considered as an unfair labour practice, just like the domination of, or interference with, the functioning of a trade union. The Committee notes, however, that under the terms of section 81(4), employers may provide welfare funds or office space to unions. The Committee considers that abandoning such a widespread, longstanding practice as the payment of wages of full-time union officials by employers may lead to financial difficulties for unions and entail the risk of considerably hindering their functioning.
226 Having examined the provisions which were the subject of the allegations and the amendments that have been made to them, the Committee notes that a certain number of these provisions continue to be in violation of freedom of association principles and that the compatibility of certain other provisions with these principles would depend on their application in practice. The Committee therefore insists that the revision of the legislation be undertaken shortly. It notes in this regard that a second reform will be carried out during this year. The Committee urges the Government to take into consideration the conclusions and recommendations formulated in this report so as to ensure as soon as possible the full respect of freedom of association principles. The Committee considers that it would be desirable that the proposed mission takes place before the next reform of legislation.
227 Finally, the Committee urges the Government to provide its observations on the ICFTU's new allegations according to which the Ministry of Labour has refused to register the KCTU.
Allegations of a factual nature
228 The Committee takes note of the detailed information furnished by the Government on the situation of the arrested or wanted persons mentioned by the complainants. The specific information thus provided covers all the persons who figure in the annex of the previous report. In particular, it notes with interest that the arrest warrants issued against 15 trade union leaders have been withdrawn and that four other trade union leaders arrested on this basis have been released (see Annex 1). However, it would appear that one of them, Kim Im-shik, President of the Hyundai Heavy Industry Union, was released for review of the legality of the detention. The Committee requests the Government to provide information on developments in the situation of Mr. Kim Im-shik.
229 As regards the situation of Mr. Kwon Young-kil, President of the KCTU, the Committee notes that his arrest warrant has been withdrawn, as is the case for the other trade union leaders. However, no information has been communicated on the criminal proceedings which were initiated against Mr. Kwon Young-kil in 1994 for violations of the provisions on third party intervention in the settlement of disputes. The Committee recalls that it had requested the Government to do everything in its power to have the charges against Mr. Kwon Young-kil dropped. It firmly reiterates this request especially since the Government itself states that there are no longer any obstacles under the new legislation to the intervention of third parties in the settlement of disputes. This would mean that proceedings are being taken against Mr. Kwon Young-kil under provisions which have been repealed.
230 Regarding the persons arrested and/or sentenced before the December 1996 strikes, the Committee notes that nine of them have been released either after having been granted leniency or after having served time. Moreover, the indictments of two other persons have been suspended (see Annex II).
231 However, six trade union leaders are currently being detained after having been sentenced to one to three years' imprisonment and, in the case of teachers, the suspension of their qualifications (see Annex III). These sentences were handed down for violations of the legislation on labour disputes under the Penal Code (interference with business), or of the National Security Law. However, the Government has not provided information on the specific reasons as to why which they have been thus charged. Finally, 11 other trade unionists are undergoing trial before the courts. Nine of them have been released on bail (see Annex IV).
232 The Committee must once again express its deep concern over the fact that trade union leaders and members are still detained or on trial, it would appear, for activities linked to collective labour disputes. The Committee is convinced that it will not be possible for a stable industrial relations system to function harmoniously in the country as long as trade unionists are the subject of detentions and judicial proceedings. It therefore urges the Government to take the appropriate measures so that the persons detained or on trial as a result of their trade union activities are released or that the charges brought against them are dropped. In the cases of persons charged with violence or assault, the Committee asks the Government to ensure that these charges are dealt with as soon as possible. It requests the Government to provide information concerning measures taken on all these points.
233 The Committee observes that the Government has not provided any specific information on the allegations concerning police intervention in trade union marches. The Committee recalls in this respect that trade union rights include the right to hold public demonstrations. 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 law and 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 (see Digest, op. cit., para. 137).
234 The Committee notes the explanations given by the Government on the measures taken during the visit of a delegation sent by the ICFTU in January 1997. It must recall that although the refusal to grant a visa to foreigners, or more generally the right to exclude persons from national territory, are matters which concern the sovereignty of a State, visits to affiliated national trade union organizations and participation in their meetings are normal activities for international workers' organizations (see Digest, op. cit., paras. 638 and 640). The Committee therefore asks the Government to ensure that requests for visas, which are presented in the future by representatives of international organizations of employers and workers and the relations that the authorities have with international delegations, are guided by the need to respect the right of international affiliation and to promote a climate that is conducive to harmonious relations between the Government and trade unionists.
235 The Committee notes with interest the Government's statement that, in principle, it accepts the proposal concerning the visit of a mission which was contained in the Committee's previous report. It encourages the Government to receive this mission before the next reform of legislation takes place and to hold further consultations with the Office to fix the details of such a mission.
The Committee's recommendations
236. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
(a) As regards the legislative aspects of this case, while observing with interest that the new law, the Trade Union and Labour Relations Adjustment Act (TULRAA), contains a number of amendments which constitute progress towards acceptance of the Committee's previous recommendations, the Committee urges the Government:
(i) to take the appropriate steps so as to ensure respect for the fundamental principle of the recognition of the right to organize of workers without distinction whatsoever, including public servants and teachers;
(ii) to register without delay the Korean Teachers' and Educational Workers' Union (CHUNKYOJO) so that it can legally defend and promote the interests of its members, and to provide information on developments in this regard;
(iii) to ensure that provisions governing the financial operations of workers' organizations are not such as to give the public authorities discretionary powers over them;
(iv) to register shortly, within the new context of the possibility of trade union pluralism, the Korean Confederation of Trade Unions (KCTU), the Korean Automobile Workers' Federation (KAWF), the National Council of Subway Workers' Union (NCSWU) and the Federation of Hyundai Group Trade Union. It requests the Government to provide information on measures taken to this end;
(v) to take the necessary measures to render trade union pluralism legal without delay at the enterprise level, including by establishing a stable collective bargaining system;
(vi) to confirm whether the notification to the Ministry of Labour of the identity of third parties in collective bargaining has merely the objective of informing the Ministry and does not constitute prior authorization and to indicate what are the possible sanctions in case of the failure to notify the Ministry of Labour;
(vii) to provide information on the content of section 63 of the TULRAA and on the provisions concerning arbitration and strike action;
(viii) to keep it informed of the application in practice of sections 38(1) and 42(1) of TULRAA relating to the prohibition of certain types of industrial action;
(ix) to confirm that the payment of wages to workers for the period when they have gone on strike is neither required nor prohibited;
(x) to repeal the provisions concerning the denial of the right of dismissed workers to keep their union membership and those relating to the ineligibility of non-members of trade unions to stand for office (sections 24(d) and 23(1) of TULRAA);
(xi) to take into consideration the conclusions and recommendations contained in the present report so as to ensure as soon as possible the full respect of freedom of association principles;
(xii) to provide information on the new allegations presented by the ICFTU according to which the Ministry of Labour has refused to register the KCTU.
(b) As regards allegations of a factual nature:
(i) the Committee notes with interest that the arrest warrants issued against trade union leaders during the strikes of January 1997 have been withdrawn and that certain trade unionists have been released;
(ii) the Committee requests the Government to provide information on developments concerning the situation of Mr. Kim Im-shik;
(iii) the Committee firmly insists that the Government do everything in its power to ensure the dropping of the charges made against Mr. Kwon Young-kil, President of the KCTU, before the January 1997 strikes;
(iv) the Committee expresses its serious concern over the detention of trade unionists and the judicial proceedings taken against them for, it would appear, activities linked to collective labour disputes;
(v) the Committee urges the Government to take the necessary measures so as to ensure that the persons detained or undergoing trial as a result of their trade union activities (see Annexes III and IV) are released or that the charges brought against them are dropped. In the case of persons charged with violence or assault, the Committee asks the Government to ensure that these charges are dealt with as soon as possible. It requests the Government to provide information on measures taken on all the above points;
(vi) the Committee draws the Government's attention to the importance of the respect of the right to hold public demonstrations provided there is respect of legal provisions which are intended to ensure the maintenance of public order;
(vii) the Committee requests the Government to ensure that requests for visas, which are presented in the future by representatives of international organizations of employers and workers and relations of the authorities with international delegations, are guided by the need to respect the right of international affiliation and to promote a climate that is conducive to harmonious relations between the authorities and trade unions.
(c) The Committee encourages the Government to receive the proposed mission before the next reform of legislation takes place and to continue holding consultations with the Office to fix the details of a mission to the country.
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