중간 보고서 번호 309, 1998년 3웛
Interim Report No 309, March 1998
참고/링크 자료 :
Interim Report - Report No 309, March 1998
Case No 1865 (Republic of Korea) - Complaint date: 14-DEC-95 – Closed
C. The Committee's conclusions
140. The Committee notes the report of the high-level tripartite mission which visited the Republic of Korea from 9 to 13 February 1998 and wishes to thank the members of the mission for the work accomplished. The Committee would also like to thank the President-Elect and members of his transition team, the authorities, the social partners and all the other parties with whom the members of the mission met for their high level of cooperation during the course of the mission's visit to the country. The Committee further notes the written information provided by the Government in a communication dated 15 October 1997.
141. During its previous examination of the case, the Committee had taken 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. While the Committee had noted that this new law contained a number of amendments which constituted progress toward acceptance of its previous recommendations, it had considered that certain provisions that it had deemed to be contrary to freedom of association principles had not been amended.
142. In this respect, the Committee notes from the mission report that a Tripartite Commission composed of representatives of the Government, business and the two central trade union organizations (the registered Federation of Korean Trade Unions (FKTU) and the still unregistered Korean Confederation of Trade Unions (KCTU)), as well as of Members of Parliament belonging to other political parties, was established on 15 January 1998 by the President-Elect and his transition team. The Committee notes with interest that the Tripartite Commission has agreed to a series of reforms dealing with economic and labour-related issues, including those pertaining to freedom of association. It is the Committee's understanding from the mission report that the proposed reforms relating to freedom of association issues, if adopted by the National Assembly, would bring the industrial relations system prevailing in the Republic of Korea more fully into line with freedom of association principles and the Committee's previous recommendations. Moreover, these reforms, if implemented, would necessitate the corresponding amendments to the TULRAA. The Committee proposes to review the various issues it had raised during its previous examination of this case in the light of the recent events which have taken place in the country and which are reflected in the mission report.
Allegations of a legislative nature
143. The Committee notes with interest from the mission report that the Tripartite Agreement provides for the legalization of teachers' unions from 1 July 1999. This would be accomplished notably by amending the relevant provisions of the various Acts which currently deny private and public school teachers the right to form and join organizations of their own choosing. The Committee notes with concern, however, that some difficulties might be encountered during the process of legalizing teachers' unions due to a degree of opposition from some members of the majority Grand National Party (GNP) in the National Assembly who feel that teachers should not have the right to organize because of their special role and status in Korean society and because of the radical image of the illegal Korean Teachers' and Educational Workers' Union (CHUNKYOJO). The Committee notes nevertheless from the mission report that these parliamentarians are willing to continue negotiations on this issue and would encourage all parties concerned to do so. In this respect, the Committee must recall that teachers, like all other workers, without distinction whatsoever, should have the right to form and join organizations of their own choosing, without previous authorization, for the promotion and defence of their occupational interests. The Committee therefore requests the Government to take the appropriate steps so as to ensure that the right to organize of teachers, as enunciated in the Tripartite Agreement, is recognized as soon as possible and at the very latest within the time frame mentioned in that agreement. Moreover, while teachers have been able to establish educational associations since 1991 and can discuss working conditions with the authorities, 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 interests of their members. This is reflected by the fact that CHUNKYOJO has not been registered up to now. The Committee would therefore request the Government to register CHUNKYOJO so that it can legally defend and promote the interests of its members as soon as the right to organize of teachers is legalized.
144. With regard to the issue of the right to organize of public servants, the Committee notes with interest from the mission report that the proposal by the Tripartite Commission to grant public servants the right to form associations (workplace councils) was adopted by the National Assembly in February 1998. This means that from 1 January 1999 public servants will have the right to establish such workplace councils through which they will be able to hold discussions with the authorities on matters relating to, inter alia, the improvement of the working environment and the settlement of grievances. The Committee notes with concern, however, that large categories of public servants are excluded from joining these workplace councils. Hence, public servants from grades 1 to 5 will be excluded from workplace councils as will public servants belonging to special services, i.e. firefighters and the police. Finally, public servants involved in personnel and confidential work, budgeting and accounting, receiving and distributing goods, supervising general service staff, secretarial work, guarding security facilities and driving passenger cars or ambulances will also not be entitled to join workplace councils. In view of the restrictions on the right to associate of a wide range of public servants, the Committee would draw the Government's attention to the fundamental principle that all public service employees, with the sole possible exception of the armed forces and the police, should be able to establish organizations of their own choosing to further and defend the interests of their members (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 206). The Committee would therefore request the Government to consider extending the right of association, recognized as of 1 January 1999 for certain categories of public servants, to all those categories of public servants who should enjoy this right in accordance with freedom of association principles.
145. According to the mission report, the same categories of public servants who will have the right to form and join associations from 1 January 1999 will gradually be granted the right to form and join unions. The Government indicates that trade unions will be allowed for public servants when the country's economic situation improves and a national consensus has been reached on the matter. In this respect, the Committee would recall that the denial 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. Such a situation gives rise to the question of compatibility of these distinctions with freedom of association principles according to which workers "without distinction whatsoever" shall have the right to establish and join organizations of their own choosing without previous authorization (see Digest, op. cit., para. 216). With regard to the Government's concerns in relation to the need to maintain national security and stability, the Committee would recall that the armed forces and the police may be excluded from the right to organize. The Committee would recall further that the right to organize does not necessarily imply the right to strike which may be prohibited in public services that are essential services in the strict sense of the term, i.e. services whose interruption would endanger the life, personal safety or health of the whole or part of the population. This would, for example, be the case of fire-fighting services. Consequently, the Committee requests the Government to take steps to recognize, as soon as possible, the right to establish and join trade union organizations to all public servants who should enjoy this right in accordance with freedom of association principles.
146. With regard to the introduction by the TULRAA of the possibility of trade union pluralism at the national and industrial levels, the Committee notes with interest from the Government's reply dated 15 October 1997 that several federations, including the Korean Automobile Workers' Federation (KAWF), the National Council of Subway Workers' Union (NCSWU) and the Federation of Hyundai Group Trade Unions have been registered under the TULRAA. The Committee regrets, however, that in taking steps 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 notes the arguments put forward by the Government to justify this delay, including the instability in industrial relations and confusion over collective bargaining which could result therefrom. The Committee is nevertheless of the opinion that this additional period during which freedom of association principles will continue to be seriously infringed could be avoided by setting up a stable collective bargaining system in conformity with trade union pluralism. The Committee therefore requests the Government to speed up the process of legalizing trade union pluralism at the enterprise level and to this end promote the implementation of a stable collective bargaining system. The Committee suggests that this is a matter that should be discussed in the Tripartite Commission.
147. With regard to the lifting of the ban on third-party intervention in collective bargaining and industrial disputes, the Committee notes the information furnished by the Government to the effect that the purpose of the notification of the identity of third-parties to the Ministry of Labour under section 40(1)(3) of the TULRAA is merely to help the Government identify those persons who assist the unions or employers. The Committee further takes note of the detailed information provided by the Government on the total number of third-parties (675,230) assisting unions (171) and companies in 1997. While the number of such advisers notified is very large, the Committee notes from the mission report that the KCTU, in particular, had notified the names of many advisers to the Ministry of Labour because non-notified persons were prohibited from intervening in collective bargaining or even making any comments about an industrial dispute under the terms of section 40(2) of the TULRAA. The Committee considers the notification requirement contained in section 40(1)(3) of the TULRAA to be onerous on unions and unjustified, especially in the light of the prohibition contained in section 40(2) of the TULRAA. Moreover, it would appear to the Committee that this notification requirement is not a pure formality since non-notified persons who intervene in collective bargaining are liable to a maximum penalty of three years' imprisonment and/or 30 million won in fines (section 89(1) of the TULRAA). The Committee considers that such provisions entail serious risks of abuse and are a grave threat to freedom of association. Consequently, the Committee would request the Government to repeal the notification requirement contained in section 40 of the TULRAA as well as the penalties provided for in section 89(1) of the TULRAA for violation of the prohibition on persons not notified to the Ministry of Labour from intervening in collective bargaining or industrial disputes.
148. The Committee notes that the TULRAA establishes a distinction between general public services and essential public services and that recourse may be had to compulsory arbitration for this second category of public services only after a recommendation of the Special Mediation Committee to this effect (sections 71(2), 74(1) and 62(3) of the 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.
149. 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 whole or part of the population. 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 therefore would request the Government to amend the list of essential public services contained in section 71 of the TULRAA in line with the above conclusions so that the right to strike is prohibited only in essential services in the strict sense of the term.
150. The Committee notes that section 38(1) of the TULRAA regulates the picketing of workplaces by unionists, whereas section 42(1) relates to industrial action in the form of workplace occupations. According to the mission report, picketing accompanied by coercion of non-striking workers is a criminal offence whereas if those taking part in picketing do not use violence, then this action is considered to be legal. The same is not true for section 42(1) of the TULRAA which prohibits any "... occupation of production facilities or installations related to important businesses or the equivalent thereof as determined by Presidential Decree". The Committee considers in this respect that certain types of strike action, such as for example workplace occupations, should not be considered as unlawful unless they cease to be peaceful or they interfere with the freedom to work. The Committee would therefore request the Government to provide information on the application in practice of section 42(1) of the TULRAA relating to the prohibition of workplace occupations.
151. Regarding the issue of the payment of wages during the period of industrial action, the Committee notes the Government's statement to the effect that section 44 of the TULRAA stipulates that employers have no obligation to pay wages during strikes and that trade unions cannot initiate strike action for the payment of wages during strikes. This information confirms the Committee's earlier understanding that the payment of wages to workers for the period when they have gone on strike is neither required nor prohibited under the new law.
152. As regards the issue of the payment of wages to full-time union officials, the Committee notes from the mission report that section 24 of the TULRAA prohibits employers from remunerating full-time union officials as of 1 January 2002. The Committee observes that the KCTU considers that the effect of this provision will be harmful for the union movement in the Republic of Korea which is mostly characterized by small enterprise-level unions with very limited resources. The FKTU, for its part, is of the view that this provision should be repealed since this issue is a matter to be dealt with by employers and unions and not to be determined by legislation. Finally, while some management representatives appear to be unconcerned about the current practice of paying wages to full-time union officials, others have strong contrary views which are reinforced by apprehension concerning the effects of the introduction of multiple trade unions at the enterprise level in the year 2002. The Committee considers that the prohibition of the payment of full-time union officials by employers is a matter which should not be subject to legislative interference. It therefore calls upon the Government to repeal section 24(2) of the TULRAA. The Committee notes that this controversial issue will be the subject of a second round of negotiations within the Tripartite Commission. In the context of the new climate of tripartism and cooperation between the social partners prevailing in the country, the Committee trusts that discussions within the Tripartite Commission will resolve this issue by taking into consideration the legitimate concerns of all the parties concerned.
153. With regard to the provisions in the TULRAA concerning the denial of dismissed and unemployed workers to keep their union membership and the ineligibility of non-members of trade unions to stand for office (sections 2(4)(d) and 23(1), respectively, of the TULRAA), the Committee notes from the mission report that the Tripartite Agreement contains a proposal to allow unemployed (and dismissed) workers to keep their union membership at the industry-wide and regional levels. The Committee notes that although this proposal was to be adopted by the National Assembly at its special session in February 1998, members of the National Assembly decided to postpone discussion of this issue to forthcoming sessions and instead issued a resolution stating that "the National Assembly will positively consider revision of related laws". In this respect, the Committee would recall that the determination of conditions of eligibility of union membership or union office is a matter that should be left to the discretion of union by-laws and the public authorities should refrain from any intervention which might impair the exercise of this right by trade union organizations. The Committee therefore requests the Government to repeal, as provided for in the Tripartite Agreement, the provisions concerning the denial of dismissed and unemployed workers to keep their union membership and the ineligibility of non-members of trade unions to stand for office (sections 2(4)(d) and 23(1) of the TULRAA).
154. The Committee notes from the mission report that the lack of legal status of the KCTU is not such a problem in practice in terms of its organizational status or activities and that it is carrying out the functions of a national centre of trade union organizations. According to the mission report, the KCTU provides its affiliated unions with annual guidelines for collective bargaining and directly guides them at their workplaces. The KCTU has also been given exemption from civil and penal liabilities for legitimate industrial action. The Committee notes, however, that a concrete problem arising from the non-registration of the KCTU is that it is not invited by the Government to participate in the work of the 40 or so tripartite review or consultative committees on labour matters nor entitled to participate in union assistance programmes. The main obstacle to the KCTU's registration appears to be the affiliation to it of CHUNKYOJO, an illegal organization for the moment. Noting, however, that the Tripartite Agreement provides for the legalization of teachers' unions as of 1 July 1999, the Committee requests the Government to ensure that the KCTU is registered as a trade union organization as soon as possible and at the very latest within this time frame. In the interim, the Committee requests the Government to ensure that the KCTU is invited to participate in the work of the tripartite review and consultative committees on labour matters and in union assistance programmes from which it is currently excluded.
155. As regards the legislative aspects of this case, the Committee requests the Government to provide information on any measures taken to give effect to the Committee's recommendations thereon.
Allegations of a factual nature
156. As regards the situation of Mr. Kwon Young-kil, former President of the KCTU, the Committee notes from the mission report that, although the withdrawal of the charges of third-party intervention against Mr. Kwon is expected, Mr. Kwon faces trial for the remaining charges brought against him. The Committee notes with concern that Mr. Kwon still faces charges of violating the Law on Public Assembly and Demonstration, the Traffic Law and the Law on the Collection of Contributions. Finally, a criminal charge of intrusion into private premises is pending against Mr. Kwon for the holding of the inaugural congress of the KCTU at Yonsei University on 11 November 1995. The Committee would once again firmly insist that the Government do everything in its power to ensure the dropping of all remaining charges which were brought against Mr. Kwon before the January 1997 strikes as a result of his trade union activities.
157. The Committee notes from the mission report that two trade union leaders -- Mr. Lee, C.E., Chairman of the Committee for the Democratization of the Railway Workers' Trade Union, and Mr. Kim, Im-Shik, President of the Hyundai Heavy Industry Union -- who had been the subject of this complaint have been released. The Committee further notes with satisfaction from a communication of the Government dated 17 March 1998 that two other union leaders -- also the subject of this complaint -- Mr. Hwang, Y.H., President of the Korea Textile Company Trade Union, and Mr. Moon, S.D., President of Class Confederation Seoul Chapter were released from jail on 13 March 1998 on account of an amnesty ordered by President Kim Dae-Jung. In this respect, the Committee recalls that it is not possible for a stable industrial relations system to function harmoniously in the country as long as trade unionists are the subject of judicial proceedings and detentions.
158. In this respect, the Committee is pleased to learn from the mission report that the new President is seriously considering an amnesty for all those persons detained for violations of labour-related laws. According to the mission report, a total of 29 unionists are still under detention and two of these 29 have confirmed prison sentences whereas 27 are still on trial. The Committee further welcomes the assurances given by officials from the Ministry of Justice, as reflected in the mission report, that the Ministry will try to ensure a fair and rapid investigation of another 152 unionists who, while not detained, are the subject of investigations by the Ministry. The Committee considers that, in the new climate of tripartism and cooperation between the social partners prevailing in the country, it is particularly appropriate for the authorities to pursue measures which will allow for the building of a new industrial relations system based on a climate of confidence. This would involve in particular the release of all unionists detained on account of their union activities and the dropping of charges brought because of such activities. The Committee requests the Government to keep it informed of any developments concerning an amnesty for detained trade unionists.
159. The Committee notes with interest the willingness expressed by the members of the President-Elect's transition team to ratify ILO Conventions Nos. 87 and 98 in the near future. In this respect, the Committee reminds the Government that the technical assistance of the ILO is at its disposal, if it so wishes, to assist in resolving the issues raised in this case as well as other issues related to freedom of association.
The Committee's recommendations
160. In the light of its foregoing interim conclusions, noting the progress made on freedom of association issues, and noting with satisfaction the release of the four trade union leaders who had been the subject of this complaint, the Committee invites the Governing Body to approve the following recommendations:
(a) As regards the legislative aspects of this case, the Committee requests the Government:
(i) to take the appropriate steps so as to ensure that the right to organize of teachers, as enunciated in the Tripartite Agreement, is recognized as soon as possible and at the very latest within the time frame mentioned in that agreement;
(ii) to register the Korean Teachers' and Educational Workers' Union (CHUNKYOJO) so that it can legally defend and promote the interests of its members as soon as the right to organize of teachers is legalized;
(iii) to consider extending the right of association, recognized as of 1 January, 1999, for certain categories of public servants, to all those categories of public servants who should enjoy this right in accordance with freedom of association principles;
(iv) to take steps to recognize, as soon as possible, the right to establish and join trade union organizations for the above-mentioned public servants;
(v) to speed up the process of legalizing trade union pluralism at the enterprise level and to this end promote the implementation of a stable collective bargaining system. The Committee suggests that this is a matter that should be discussed in the Tripartite Commission;
(vi) to repeal section 40 of the Trade Union and Labour Relations Adjustment Act (TULRAA) relating to the requirement to notify to the Ministry of Labour the identity of third parties in collective bargaining and industrial disputes;
(vii) to repeal the penalties contained in section 89(1) of the TULRAA for violation of the prohibition on persons not notified to the Ministry of Labour from intervening in collective bargaining or industrial disputes;
(viii) to amend the list of essential public services contained in section 71 of the TULRAA so that the right to strike is prohibited only in essential services in the strict sense of the term;
(ix) to provide information on the application in practice of section 42(1) of the TULRAA relating to the prohibition of workplace occupations;
(x) considering that the prohibition of the payment of full-time union officials by employers is a matter which should not be the subject of legislative interference, to repeal section 24(2) of the TULRAA;
(xi) to repeal, as provided for in the Tripartite Agreement, the provisions concerning the denial of the right of dismissed and unemployed workers to keep their union membership and the ineligibility of non-members of trade unions to stand for office (sections 2(4)(d) and 23(1) of the TULRAA);
(xii) to take the appropriate steps so that the Korean Confederation of Trade Unions (KCTU) is registered as a trade union organization as soon as possible and in the interim to ensure that it is invited to participate in the work of the tripartite review or consultative committees on labour matters and entitled to participate in union assistance programmes from which it is currently excluded;
(xiii) to provide information on measures taken to give effect to the above recommendations and to keep the Committee informed thereon.
(b) As regards the allegations of a factual nature:
(i) the Committee firmly insists that the Government do everything in its power to ensure the dropping of all remaining charges pending against Mr. Kwon Young-kil, former President of the KCTU;
(ii) the Committee is pleased to learn that the new President is seriously considering an amnesty for those trade unionists detained as a result of their trade union activities; it requests the Government to keep it informed of any developments thereof.
(c) Noting with interest prospects for ratification of Conventions Nos. 87 and 98, the Committee reminds the Government that ILO technical assistance is at its disposal, if it so wishes.
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