중간 보고서 번호 311, 1998년 11월
Interim Report No 311, November 1998
참고/링크 자료 :
Interim Report - Report No 311, November 1998
Case No 1865 (Republic of Korea) - Complaint date: 14-DEC-95 – Closed
D. The Committee's conclusions
329. During its previous examination of this case, the Committee had recalled that while the Trade Union and Labour Relations Adjustment Act (TULRAA) which was enacted on 13 March 1997 contained a number of amendments which constituted progress towards acceptance of its previous recommendations, certain provisions that the Committee had deemed to be contrary to freedom of association principles had not been amended. In this respect, the Committee had noted with interest that a Tripartite Commission composed of representatives of the Government, business and the two central trade union organizations (FKTU and KCTU), as well as of Members of Parliament belonging to other political parties, had been established on 15 January 1998 to deal with a series of reforms on labour-related issues, including those relating to freedom of association, and that these reforms, if implemented, would necessitate the corresponding amendments to the TULRAA. The Committee notes the Government's statement that a second Tripartite Commission with more or less the same composition and mandate as the first, was established in June 1998. One of this Commission's subcommittees, the Subcommittee on Industrial Relations, is mandated to deal with a series of issues including those raised by the Committee during its previous examination of this case.
Allegations of a legislative nature
330. The Committee recalls that the issues of a legislative nature that were raised during its previous examination of this case related to the legalization of teachers' unions, the right to organize of public servants, trade union pluralism at the enterprise level, the lifting of the ban on third-party intervention in collective bargaining and industrial disputes, the right to strike in non-essential public services, industrial action in the form of workplace occupations, the payment of wages to full-time union officials, 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 and the lack of legal status of the KCTU. The Committee reiterates its earlier conclusions in respect of all of the above issues (see 309th Report, paras. 143 to 154). It firmly hopes that these issues will be resolved as soon as possible within the framework of the second Tripartite Commission in a manner that will ensure full compliance with the Committee's previous recommendations on these issues which were the following:
(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.
The Committee requests the Government to keep it informed of the outcome of the deliberations within the second Tripartite Commission on all these issues.
331. 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
332. As regards the situation of Mr. Kwon Young-kil, former President of the KCTU, the Government states that the charges pending against him for violation of the Law on the Collection of Contributions are going to be dropped. The Committee notes with concern, however, that Mr. Kwon still faces charges of violating the Law on Public Assembly and Demonstration and the Traffic Law, and that a criminal charge of intrusion into private premises is still pending against him 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.
333. During its previous examination of this case, the Committee had noted that the new President was seriously considering an amnesty for all those persons detained for violations of labour-related laws (see 309th Report, para. 158). The Committee now notes the Government's reply that all the 29 unionists who had been detained were released. Seven were released by the special amnesty on 13 March 1998; 11 had their sentences suspended; nine were released on bail; one had the indictment suspended; and one had completed his prison term.
334. As regards the KCTU's more recent allegation that in July 1998, the management of Hyundai Motors Co. delivered termination notices to some 1,600 workers including elected union officials as part of a plan to destroy the Hyundai Motors Workers' Union, an affiliate of the KCTU, the Government states that originally management had planned to dismiss 1,538 workers as part of a redundancy plan. However, following an agreement reached between the union and management, the number of workers to be laid off was subsequently reduced to 277. The Committee nevertheless notes that the Government does not refute the allegation that elected union officials including 15 full-time union officers, 89 elected union delegates and 11 union branch officers were on the management's original list of workers to be laid off. In this regard, the Committee would remind the Government that in cases of staff reductions, it has drawn attention to the principle contained in the Workers' Representatives Recommendation, 1971 (No. 143), which mentions amongst the measures to be taken to ensure effective protection to these workers, that recognition of a priority should be given to workers' representatives with regard to their retention in employment in case of reduction of the workforce (Article 6(2)(f)) (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 960).
335. With regard to the KCTU's allegations that 57 trade union leaders were arrested and imprisoned for legitimate trade union activities and that arrest warrants were issued for 13 other KCTU leaders for the same activities, the Committee notes the Government's statement that in fact 53 KCTU leaders have been imprisoned and arrest warrants have been issued against 11 others. The Committee also notes that the reasons given by the KCTU and the Government respectively for these detentions and arrest warrants widely differ. According to the KCTU, these arrests and detentions took place for participation in a May Day rally and two general strikes organized by the KCTU which had complied with all the procedural conditions prescribed by the law. The Government however contends that the trade union leaders concerned were either imprisoned or had arrest warrants issued against them for having committed criminal offences in violation of the Penal Code. The Committee notes that the KCTU does not deny that clashes did occur during the May Day rally. It insists however that these clashes were provoked by the riot police who tried to prevent the march from taking place by repeatedly firing tear gas into the crowd. A number of trade unionists who reacted to the police violence were subsequently arrested. The KCTU nevertheless points out that the Government later committed itself to withdraw all charges against persons either arrested or wanted for arrest for the May Day rally in an agreement reached between the KCTU and government representatives on 5 June 1998.
336. The Committee observes that the Government has not provided any information on this agreement of 5 June 1998 and would therefore ask it to do so. The Committee further observes that the Government has not provided any specific information concerning the police intervention during the May Day rally. 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).
337. The Committee must 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. The Committee considers that, in the new climate of tripartism prevailing in the country, it would be particularly appropriate for the authorities to pursue measures which would allow for the building of a new industrial relations system based on a climate of confidence. The Committee therefore urges the Government to take the appropriate measures so that the persons detained or on trial or for whom arrest warrants have been issued as a result of their trade union activities are released or that the charges brought against them are dropped or that the arrest warrants are withdrawn. 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 concerning measures taken on all these points.
338. With regard to the alleged dismissal of two public servants, Lee Seung-Chan and Kim Dong-Il, for their involvement in the "Public Servants' Work Council Preparation Committee", a body responsible for organizing preparatory activities for the establishment of public servants' works councils, the Government confirms that these two officials were indeed dismissed by the competent disciplinary committees for having violated the current service regulations of public servants. The Committee must express its concern over these developments since it has reminded the Government on several occasions -- first, in Case No. 1629 (see 286th Report, paras. 558-575; 291st Report, paras. 416-426; and 294th Report, paras. 259-275) and then in Case No. 1865 (see 304th Report, paras. 242-254; 306th Report, paras. 295-346; 307th Report, paras. 177-236; and 309th Report, paras. 120-160) -- that current legislation governing public servants which denies them the right to organize is contrary to freedom of association principles. Moreover, while noting the Government's statement that the Act on the Establishment and Operation of Workplace Associations for Public Officials, scheduled to be effective from 1 January 1999, will ensure the right of association of public servants, the Committee fails to see how these work councils can become truly operational on that date if public servants are prohibited from providing and/or receiving information and assistance for the establishment and operation of such work councils within the framework of the Preparation Committee. Regretting this serious setback for the recognition of the right to associate (and gradually of the right to unionize) of public servants, the Committee urges the Government to take the necessary measures to ensure that these two public servants, Lee Seung-Chan and Kim Dong-Il, are immediately reinstated in their jobs. It requests the Government to keep it informed of progress made in this regard.
The Committee's recommendations
339. 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, 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 the requirement, contained in section 40 of the TULRAA, to notify to the Ministry of Labour the identity of third parties in collective bargaining and industrial disputes as well as 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;
(vii) to amend the list of essential public services contained in section 71 of the Trade Union and Labour Relations Adjustment Act (TULRAA) so that the right to strike is prohibited only in essential services in the strict sense of the term;
(viii) to provide information on the application in practice of section 42(1) of the TULRAA relating to the prohibition of workplace occupations;
(ix) 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;
(x) to repeal 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);
(xi) 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 and to provide concrete information thereon;
(xii) to keep the Committee informed of the outcome of the deliberations within the second Tripartite Commission on the above issues, which the Committee firmly hopes will be resolved as soon as possible in a manner that will ensure full compliance with the Committee's recommendations;
(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, 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.
(c) As regards the KCTU's new allegations contained in communications dated 18 August and 9 September 1998, respectively:
(i) the Committee requests the Government to provide information on the agreement reached between the KCTU and government representatives on 5 June 1998 in which the Government allegedly committed itself to withdraw all charges against KCTU leaders either arrested or wanted for arrest for the May Day rally;
(ii) the Committee urges the Government to take the appropriate measures so that the persons detained or on trial or for whom arrest warrants have been issued (see Appendix 2) as a result of their trade union activities are released or that the charges brought against them are dropped or that the arrest warrants are withdrawn. 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 concerning measures taken on all these points;
(iii) the Committee urges the Government to take the necessary measures to ensure that the two public servants, Lee Seung-Chan and Kim Dong-Il, are immediately reinstated in their jobs. It requests the Government to keep it informed of progress made in this regard.
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