위원회가 지속해서 진행 상황을 요청한 보고서 - 보고서 번호 353, 2009년 3월
Report in which the committee requests to be kept informed of development - Report No 353, March 2009
참고/링크 자료 :
Report in which the committee requests to be kept informed of development - Report No 353, March 2009
Case No 1865 (Republic of Korea) - Complaint date: 14-DEC-95 - Closed
D. The Committee’s conclusions
694. The Committee recalls that it has been examining this case, which concerns both legislative and factual issues, since 1996. The Committee observes from its previous conclusions and the information before it that although significant progress has been achieved in terms of legislation, there is still room for progress towards the establishment of a stable and constructive industrial relations system in the country.
Legislative issues
695. The Committee recalls that the outstanding legislative issues concern, on the one hand, the Act on the Establishment and Operation of Public Officials’ Trade Unions, which concerns the public sector only, and, on the other hand, the Trade Union and Labour Relations Amendment Act (TULRAA) and other legislation which is generally applicable.
Public officials
696. With regard to the Act on the Establishment and Operation of Public Officials’ Trade Unions, the Committee notes that the issues previously raised concern the need to: (a) recognize the right to organize for all public servants at all grades without exception and regardless of their tasks or functions, including firefighters, prison guards, public service workers in education-related offices, local public service employees and labour inspectors; (b) limit any restrictions of the right to strike to public servants exercising authority in the name of the State and essential services in the strict sense of the term; (c) leave to public officials’ trade unions and public employers to determine on their own whether trade union activities by full-time union officials should be treated as unpaid leave; (d) take into account the following in the framework of the application of the Act on the Establishment and Operation of Public Officials’ Trade Unions: (i) that in the case of negotiations with trade unions of public servants who are not engaged in the administration of the State, the autonomy of the bargaining parties is fully guaranteed and the reservation of budgetary powers to the legislative authority does not have the effect of preventing compliance with collective agreements; more generally, as regards negotiations on matters for which budgetary restrictions pertain, to ensure that a significant role is given to collective bargaining and that agreements are negotiated and implemented in good faith; (ii) that the consequences of policy and management decisions as they relate to the conditions of employment of public employees are not excluded from negotiations with public employees’ trade unions; and (iii) that public officials’ trade unions have the possibility to express their views publicly on the wider economic and social policy questions which have a direct impact on their members’ interests, noting though that strikes of a purely political nature do not fall within the protection of Conventions Nos 87 and 98.
697. With regard to the right to organize of public officials, the Committee notes that according to the Government the exclusion from the right to organize of public officials at grade V or higher is justified by the fact that most of them hold a managerial position and their exclusion from the right to organize is allowed under Convention No. 151; certain public officials with hierarchical authority below grade 5 (grade 5 to 10) can also be excluded from the right to organize to ensure the independence of trade unions.
698. The Committee is bound to recall once again that public servants, like all other workers, without distinction whatsoever, have the right to establish and join organizations of their own choosing, without previous authorization, for the promotion and defence of their occupational interests [Digest, fifth edition, 2006, para. 219]. All public employees (with the sole possible exception of the armed forces and the police, by virtue of Article 9 of Convention No. 87), regardless of the grade, should, like workers in the private sector, be able to establish organizations of their own choosing to further and defend the interests of their members [Digest, op. cit., para. 220]. The exclusion in Convention No. 151 cannot be seen as restricting in any way, the right to organize, as guaranteed under Convention No. 87. Nevertheless, as concerns persons exercising senior managerial or policy-making responsibilities, the Committee is of the opinion that while these public servants may be barred from joining trade unions which represent other public servants, such restrictions should be strictly limited to this category of workers and they should, nevertheless, be entitled to establish their own organizations to defend their interests as workers. The Committee recalls that it is not necessarily incompatible with the requirements of Article 2 of Convention No. 87 to deny managerial or supervisory employees the right to belong to the same trade unions as other workers, on condition that two requirement are met: first, that such workers have the right to establish their own associations to defend their interests and, second, that the categories of such staff are not defined so broadly as to weaken the organizations of other workers in the enterprise or branch of activity by depriving them of a substantial proportion of their present or potential membership [Digest, op. cit., paras 253 and 247]. The Committee further recalls that the functions exercised by firefighters do not justify their exclusion from the right to organize and they, as well as prison staff should enjoy this right. Finally, the denial of the right to organize to workers in the labour inspectorate constitutes a violation of Article 2 of Convention No. 87 [Digest, op. cit., paras 231, 232 and 234]. The Committee therefore once again requests the Government to review the exclusions from the right to organize in the Act on the Establishment and Operation of Public Officials’ Trade Unions as well as its Enforcement Decree so as to ensure that public servants at all grades, regardless of their tasks or functions, including firefighters, prison guards, those working in education-related offices, local public service employees and labour inspectors, have the right to form their own associations so as to defend their interests.
699. With regard to the right to strike, the Committee notes that according to the Government, all public officials exercise authority in the name of the State and therefore their right to collective action is inevitably restricted. The Committee recalls that its previous comments related to section 18 of the Act on the Establishment and Operation of Public Officials’ Trade Unions which establishes a blanket prohibition of collective action by public officials in conjunction with penal sanctions and fines, even with regard to certain public sector workers who do not exercise authority in the name of the State including for instance, public officials in state public schools, such as drivers or sanitation supervisors, those working in education-related offices and employees of local authorities [346th Report, paras 750 and 772]. The Committee therefore once again requests the Government to ensure that the restrictions on the right to strike in the Act on the Establishment and Operation of Public Officials’ Trade Unions may only be applicable in respect of public servants exercising authority in the name of the State and public servants who are involved in essential services in the strict sense of the term.
700. Furthermore, with regard to the right to strike, the Committee takes note of the comments made by the KCTU with regard to minimum services to be ensured in case of “public services” under section 42 of the TULRAA as well as the Government’s reply which will be examined below.
701. With regard to whether trade union activities by full-time union officials should be treated as unpaid leave, the Committee notes that according to the Government, the payment of wages to full-time union officials should rest with the union concerned so as to ensure the financial independence of trade unions. The Committee once again emphasizes that this issue should be up to the parties to determine and once again requests the Government to consider further measures aimed at allowing negotiation on the issue of whether trade union activity by full-time union officials should be treated as unpaid leave.
702. With regard to the issue of collective bargaining with public officials the Committee notes from the Government’s report that the Act on the Establishment and Operation of Public Officials’ Trade Unions not only recognized public officials’ right to conclude collective agreements but also imposes an obligation on the Government’s bargaining representative to make efforts to implement the collective agreements in good faith. It notes the Government’s indication that it has engaged in good faith bargaining with public officials’ trade unions in a total of 118 workplaces and 69 workplace collective agreements had been concluded as of April 2008. Central-level negotiations were concluded on 14 December 2007 with regard to the terms and conditions affecting all public officials, such as remuneration, retirement age, etc. The Government adds that it has implemented the agreements in good faith.
703. While taking due note of this information, the Committee notes that it does not address the issue of the legal provisions applicable to those public servants who are not engaged in the administration of the State. The Committee recalls that under section 10(1) of the Act on the Establishment and Operation of Public Officials’ Trade Unions, provisions on matters stipulated by laws, by-laws or the budget or stipulated by authority delegated by laws or by-laws, shall not have binding effect when included in collective agreements, and once again emphasizes that those public employees and officials who are not acting in the capacity of agents of the state administration (for example, those working in public undertakings or autonomous public institutions) should be able to engage in free and voluntary negotiations with their employers; in that case, the bargaining autonomy of the parties should prevail and not be conditional upon the provisions of laws, by-laws or the budget. Most importantly, the reservation of budgetary powers to the legislative authority should not have the effect of preventing compliance with collective agreements entered into by, or on behalf of, that authority; the exercise of financial powers by the public authorities in a manner that prevents or limits compliance with collective agreements already entered into by public bodies is not consistent with the principle of free collective bargaining [Digest, op. cit., paras 1033 and 1034]. The Committee once again requests the Government to ensure that in the case of negotiations with trade unions of public servants who are not engaged in the administration of the State, the autonomy of the bargaining parties is fully guaranteed and the reservation of budgetary powers to the legislative authority does not have the effect of preventing compliance with collective agreements.
704. With regard to the exclusion from the scope of collective bargaining, by virtue of section 8, paragraph 1 of the Act on the Establishment and Operation of Public Officials’ Trade Unions of “matters concerning policy decisions” of the State or local government and “matters concerning the management and operation of the [public] organization, such as exercising the right to appointment, but not directly related to working conditions”, the Committee notes that according to the Government, matters concerning policy decisions or personnel appointments are excluded from those subject to collective bargaining because they constitute the Government’s managerial prerogatives. The Committee once again recalls that, in a previous case on allegations concerning the refusal to bargain collectively on certain matters in the public sector, the Committee had recalled the view of the Fact-Finding and Conciliation Commission on Freedom of Association that “there are certain matters which clearly appertain primarily or essentially to the management and operation of government business; these can reasonably be regarded as outside the scope of negotiation”. It is equally clear that certain other matters are primarily or essentially questions relating to conditions of employment and that such matters should not be regarded as falling outside the scope of collective bargaining conducted in an atmosphere of mutual good faith and trust [Digest, op. cit., para. 920]. In the absence of a clear definition of what constitutes “policy decisions of the State” and the “management and operation of government business”, and in the light of the blanket prohibition of negotiations over these matters introduced in the Act on the Establishment and Operation of Public Officials’ Trade Unions, the Committee once again requests the Government to ensure that, in so far as concerns the application of the Act to public servants who cannot be properly considered as engaged in the administration of the State, the consequences of policy and management decisions as they relate to the conditions of employment of public employees, are not excluded from negotiations with public employees’ trade unions.
705. With regard to section 4 of the Act on the Establishment and Operation of Public Officials’ Trade Unions which prohibits political activities by public officials’ trade unions, the Committee notes that the Government does not provide any information. While duly noting from its previous examination of this provision that the status of public servants is such that certain purely political activity can be considered contrary to the code of conduct that is expected of these servants and that trade union organizations should not engage in political activities in an abusive manner and go beyond their true functions by promoting essentially political interests – the Committee once again requests the Government to ensure that public officials’ trade unions have the possibility to express their views publicly on the wider economic and social policy questions which have a direct impact on their members’ interests, noting though that strikes of a purely political nature do not fall within the protection of Conventions Nos 87 and 98.
706. The Committee requests to be kept informed in respect of all the above.
Generally applicable legislation
707. With regard to the TULRAA and other generally applicable legislation, the Committee recalls that the pending issues concern the need to: (i) legalize trade union pluralism at the enterprise level; (ii) resolve the issue of payment of wages to full-time union officers in a manner consistent with freedom of association principles; (iii) amend the emergency arbitration provisions of the TULRAA (sections 76–80) so that it can be imposed only be an independent to body which has the confidence of all parties concerned and only in cases in which strikes can be restricted in conformity with freedom of association principles; (iv) repeal the provisions prohibiting dismissed and unemployed workers from keeping their union membership and making non-union members ineligible to stand for trade union office (sections 2(4)(d) and 23(1) of the TULRAA) and (v) amend section 314 of the Criminal Code concerning obstruction of business to bring it into line with freedom of association principles.
708. The Committee had noted with interest during the previous examination of this case that draft amendments to the TULRAA would abolish compulsory arbitration for disputes in essential public services and introduce a requirement to maintain minimum services and use of replacement workers (not exceeding 50 per cent of striking workers) in the event of a strike in essential public services. It had also noted allegations according to which the new “public services” category would include what was formerly called “essential public services” (railroad services, inter-city railways, water, electricity, gas supply, oil refinery and supply services, hospital services, telecommunication services and the Bank of Korea) as well as: supply of heat and steam, harbour loading and unloading, railway, freight transport, airborne freight transport and social insurance providers; a minimum services obligation would be added to the expanded list of “public services” in case where the “normal life” of the public was acutely endangered and compulsory arbitration machinery would be introduced to resolve the crucial issue of the scope of the minimum service.
709. The Committee notes from the KCTU’s new allegations that the amendment to the TULRAA was passed into law on 30 December 2006 so as to introduce several levels of limitations to the right to strike which in the end all but wipe out the potential effect of abolishing compulsory arbitration. These limitations are the possibility of emergency arbitration, minimum services and replacement workers. According to the KCTU, instead of guaranteeing negotiations over minimum services, the Government enumerates these services in the enforcement decree of the TULRAA in a way which negates negotiations over the issue. In a context where any agreement between workers and employers is nearly impossible, the Labour Relations Commission has the power to reach a decision on the scope of minimum services through compulsory arbitration. The KCTU alleges that already employers (e.g. the Seoul Metro, Korea Railways, Korea Power Plants and others) have preferred to avoid negotiations on determining the minimum service and apply to the Labour Relations Commission which has issued decisions establishing an excessively high minimum service, thus rendering any strike ineffective. For example, in the case of the Seoul Metropolitan Rapid Transit Corporation, the Labour Relations Commission determined on 31 January 2008 the minimum service as 100 per cent of operation during rush hour, 79.8 per cent during Saturdays and weekdays and 50 per cent on Sundays; also, jobs that must be maintained include almost all jobs except cleaning and ticketing. The KCTU further objects to the possibility of using replacement labour in these circumstances and specifies that the Labour Relations Commission has decided that 50 per cent is the minimum service for public services when replacement labour can be introduced and 100 per cent when such workers cannot be introduced (Busan Labour Relations Commission, 14 May 2008). As a result, according to the KCTU, trade unions are faced with a dilemma of either continuing an ineffective lawful strike or resorting to an illegal strike by refusing to provide the required minimum service. In other words, the new law forces upon trade unions a decision between giving up basic labour rights or proceeding with an illegal strike. Finally, the law introduces individual criminal responsibility and civil liability of the workers who refuse to provide the minimum service.
710. The Committee takes note of the Government’s reply according to which, since 1 January 2008 when the amendment entered into force until 31 December 2008, a total of 113 workplaces had signed an agreement on minimum services and only 25 relied on the Labour Relations Commission’s decisions. The decision of the Seoul Regional Labour Relations Commission on the level at which the Seoul Metropolitan Rapid Transport Corporation should maintain operations indicated that at least 38.6 per cent of total union members on weekdays and 37.1 per cent on weekends should provide minimum services. Thus, 61.4 per cent of total union members on weekdays and 62.9 per cent on weekends could stage industrial action.
711. The Committee recalls in the first place, that the transportation of passengers and commercial goods is a public service of primary importance where the requirement of a minimum service in the event of a strike can be justified. Similarly, the Mint, banking services and the petroleum sector are 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 [Digest, op. cit., paras 621 and 624]. The Committee also notes, however, that a minimum service should be confined to operations that are strictly necessary to avoid endangering the life or normal living conditions of the whole or part of the population. In this regard, the Committee notes that the parties communicate contradictory information as to the decisions of the Labour Relations Commission on the minimum level of service. With regard to the possibility of having recourse to replacement labour, the Committee recalls in general that, if a strike is legal, recourse to the use of labour drawn from outside the undertaking to replace the strikers for an indeterminate period entails a risk of derogation from the right to strike, which may affect the free exercise of trade union rights [Digest, op. cit., para. 633]. The Committee therefore requests the Government to ensure that, in issuing decisions determining the minimum service, the Labour Relations Commission takes due account of the principle according to which a minimum service should be confined to operations that are strictly necessary to avoid endangering the life or normal living conditions of the whole or part of the population and to continue to keep it informed of the specific instances in which minimum service requirements have been introduced, the level of minimum service provided and the procedure through which such minimum service was determined (negotiations or arbitration).
712. With regard to the possibility of imposing “emergency arbitration”, with the possibility of hiring replacement labour, if a dispute “relates to” any public services, or if the dispute is large in scale, has a “special” character such that the Labour Minister thinks the dispute is “likely” to make the economy “worse” or disrupt “normal life” (sections 76–80, TULRAA), the Committee notes that according to the Government, such arbitration is in conformity with freedom of association principles according to which “what is meant by essential services in the strict sense of the term depends to a large extent on the particular circumstances prevailing in a country” [Digest, op. cit., para. 582]. Emergency arbitration is invoked very rarely, as an exception rather than the rule in the Republic of Korea, and was applied only in 1969, 1993 and 2005. The Government states that it will continue to apply emergency arbitration carefully, after weighing the risks to people’s safety, so as to respect freedom of association principles; thus, the Government has no plan to revise the current system.
713. The Committee once again recalls that a system of compulsory arbitration through the labour authorities, if a dispute is not settled by other means, can result in a considerable restriction of the right of workers’ organizations to organize their activities and may even involve an absolute prohibition of strikes, contrary to the principles of freedom of association [Digest, op. cit., para. 568]. The Committee once again emphasizes that compulsory arbitration to end a collective labour dispute and a strike is acceptable if it is at the request of both parties involved in a dispute or, if the strike in question may be restricted, even banned, i.e. in the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population [Digest, op. cit., para. 564]. Furthermore, responsibility for suspending a strike on the grounds of national security or public health should not lie with the Government, but with an independent body which has the confidence of all parties concerned [Digest, op. cit., para. 571]. The Committee therefore once again requests the Government to take all necessary measures to amend the emergency arbitration provisions in the TULRAA (sections 76–80) so as to ensure that such a measure can only be imposed by an independent body which has the confidence of all parties concerned and only in cases in which strikes can be restricted in conformity with freedom of association principles.
714. With regard to the issue of obstruction of business provisions in section 314 of the Penal Code, which as previously alleged by the complainants, have served systematically as a means to victimize trade unionists for exercising their right to strike, through prison sentences and heavy fines, the Committee notes with regret that once again, the Government’s reply does not indicate any steps taken to review section 314 of the Penal Code so as to bring it into conformity with freedom of association principles, despite requests that this Committee has been making to this effect since 2000; on the contrary, the Government indicates that this provision is not intended to regulate industrial action itself, but to punish illegal action in case it causes damage by interfering with an employer’s economic activity.
715. The Committee emphasizes that no one should be deprived of their freedom of be subject to penal sanctions for the mere fact of organizing or participating in a peaceful strike [Digest, op. cit., para. 672]. The Committee has found in another case concerning limitations on strikes based on interference with trade or commerce, that by linking restrictions on strike action to interference with trade and commerce, a broad range of legitimate strike action could be impeded. While the economic impact of industrial action and its effect on trade and commerce may be regrettable, such consequences in and of themselves do not render a service “essential”, and thus the right to strike should be maintained [Digest, op. cit., para. 592]. The same applies in this case where the law imposes criminal punishment and heavy fines for strikes on the ground that they limit economic activities.
716. Nevertheless, noting from the Government’s reply that many strikes in the Republic of Korea involve illegal and violent means such as blocking access to the workplace, forceful occupation, destruction of facilities and physical abuse of policemen and managers, the Committee notes that penal sanctions should only be imposed if, in the framework of a strike, violence against persons and property or other serious violations of the ordinary criminal law are committed, and this, on the basis of the laws and regulations punishing such acts. In particular, the Committee recalls that the exercise of the right to strike should respect the freedom of work of non-strikers, as established by the legislation, as well as the right of the management to enter the premises of the enterprise. Taking part in picketing and firmly but peacefully inciting other workers to keep away from their workplace cannot be considered unlawful. The case is different, however, when picketing is accompanied by violence or coercion of non-strikers in an attempt to interfere with their freedom to work; such acts constitute criminal offences in many countries [Digest, op. cit., paras 651 and 652].
717. In light of the above, the Committee once again requests the Government to take measures so as to bring section 314 of the Penal Code (obstruction of business) fully in line with freedom of association principles.
718. The Committee notes with regard to steps to introduce trade union pluralism at the enterprise level, which has been postponed, for the second time, until 31 December 2009, that the Government will actively push for legislation concerning measures to establish a single bargaining channel so as not to postpone the enforcement date of the related provisions any further. The Tripartite Commission organized a group of experts from labour, management the Government and public interest groups, in order to share the results of discussions and research conducted so far (October 2007–March 2008). The Committee once again emphasizes that the free choice of workers to establish and join organizations is so fundamental to freedom of association as a whole that it cannot be compromised by delays [Digest, op. cit., para. 312]. The Committee once again requests the Government to take rapid steps to continue and undertake full consultations with all social partners with a view to the legalization of trade union pluralism at the enterprise level so as to ensure that the right of workers to establish and join the organization of their own choosing is recognized at all levels.
719. With regard to the Committee’s request for the Government to lift the prohibition of wage payment to full time union officials which was introduced in 1997 but has not yet entered into force (its implementation has been postponed twice and linked to the issue of recognition of trade union pluralism) the Committee notes that according to the Government, the prohibition of such payments will safeguard the independence of the trade union movement and rationalize the relationship between employers and trade unions, as it is contradictory to operate in opposition to employers and yet receive payments from them. The Committee recalls from the previous examination of this case that the question of wage payment to full-time union officers should not be subject to legislative interference and should be left to free and voluntary negotiations between the parties. It therefore requests the Government to expedite the resolution of this matter, in accordance with freedom of association principles so as to enable workers and employers to conduct free and voluntary negotiations in this regard.
720. With regard to the issue of allowing the unemployed to freely join a trade union and engage in its activity, the Committee notes from the Government’s reply that even though the tripartite representatives decided in 2006 to exclude this issue from the legislative reform, in recent years, trade unions have been organized above the enterprise level, e.g. at the industry, sector or regional levels, and unemployed or dismissed workers were able to join some of them and engage in their activities. The Government adds that given all these elements, at present it has no specific plan to make institutional improvements in the near future. While noting this development with interest, the Committee once again notes that a provision depriving workers of the right to union membership is incompatible with the principles of freedom of association since it deprives the persons concerned of joining the organization of their choice. Such a provision entails a risk of acts of anti-union discrimination being carried out to the extent that the dismissal of trade union activists would prevent them from continuing their trade union activities within their organization [Digest, op. cit., para. 268]. It therefore once again requests the Government to repeal the provisions prohibiting dismissed and unemployed workers from keeping their union membership and making non-union members ineligible to stand for trade union office (sections 2(4)(d) and 23(1) of the TULRAA).
721. The Committee urges the Government, in the interests of establishing a constructive industrial relations climate in the country, to continue all efforts to find solutions to the remaining legislative matters noted above, in full consultation with all the social partners concerned, including those not presently represented on the Tripartite Commission. The Committee requests to be kept informed in respect of all the above.
Factual issues
722. The Committee recalls that the pending factual issues in this case concern: (i) the arrest and detention of Mr Kwon Young-kil, former president of the KCTU; (ii) the dismissal of leaders and members of the KAGEWC; (iii) the arrest and conviction of the KGEU President Kim Young-Gil and General Secretary Ahn Byeon-Soon; (iv) violent police intervention in KCTU and KGEU rallies; (v) interference by MOGAHA in the internal affairs of the KGEU through the initiation of a “New Wind Campaign” at the end of 2004; (vi) the criminal prosecution and imprisonment of officials of the Korean Federation of Construction Industry Trade Unions (KFCITU) and restrictions over collective agreements concerning subcontracted workers in the construction sector; (vii) the death of two trade unionists; (viii) the forced closure of 125 out of 251 KGEU offices nationwide and violent clashes between trade unionists and the police; (ix) and harassment of union representatives during minimum wage negotiations.
723. With regard to the sentencing of Kwon Young-kil, former president of the KCTU, to a fine of 15 million won on 11 January 2006, the Committee notes from the Government’s report that an appeal is pending before the Supreme Court and that having steadily engaged in political activities, Kwon Young-kil was elected to the National Assembly in 2008. The Committee requests the Government to keep it informed of the progress of the appeal proceedings concerning Kwon Young-kil.
724. As regards the dismissals of eight public servants connected to the precursor of the KGEU, KAGEWC (the dismissals of Kim Sang-kul, Oh Myeong-nam, Koh Kwang-sik and Min Jum-ki were final, those of Kang Dong-jin and Kim Jong-yun were pending examination while Han Seok-woo, Kim Young-kil did not appear to have lodged an appeal) for having committed illegal activities (attempt to establish a trade union, holding of illegal outdoor assemblies, break-in at the offices of MOGAHA and consequent damage, illegal decision to go on a general strike and taking of annual leave and absences, without permission, so as to wage that strike) the Committee notes that, according to the Government, their cases were handled in accordance with the law in force and there is no possibility of considering their reinstatement. The Committee once again expresses its deep regret at the difficulties faced by these public servants, which appear to have been due to the absence of legislation ensuring their basic rights of freedom of association, in particular the right to form and join organizations of one’s own choosing, respect for which should now be guaranteed by the entry into force of the Act on the Establishment and Operation of Public Officials’ Trade Unions. The Committee also deeply regrets that the Government has provided copies of the relevant decisions only for two of these workers (Kim Sang-kul and Koh Kwang-sik), despite previous requests to this effect. The Committee therefore once again requests the Government to reconsider the dismissals of Kim Sang-kul, Oh Myeong-nam, Min Jum-ki and Koh Kwang-sik Han Seok-woo, Kim Young-kil, Kang Dong-jin and Kim Jong-yun in the light of the adoption of the new Act and to keep it informed of any developments in this respect.
725. The Committee recalls its previous recommendations concerning numerous arrests and detentions under obstruction of business charges to which the Government had not provided a reply. According to these allegations, pursuant to a strike staged in March 2006, which was stopped through compulsory arbitration, at least 401 members of the KRWU were arrested by riot police. Although the strike was peaceful, it was considered by the police to constitute in and of itself an “obstruction of business using threat of force”. Moreover, 29 union leaders were arrested and detained on 6 April 2006 on obstruction of business charges for the above incident, including KRWU president Kim Young-hoon who remained in custody until 22 June 2006; later on, Lee Chul Yee, chairperson of irregular workers of the KRWU and Kim Jeong-min, Seoul provincial president, were arrested. The latter remained in jail at the time of the complainant’s communication (1 September 2006). Furthermore, the employer KORAIL was preparing to lodge charges of “obstruction of business” and infraction of the TULRAA against 198 union officers, claiming damages of about US$13,500,000 (the union had been recently forced to pay US$2,440,000 for a strike staged in 2003). Furthermore, 26 officers of the KALFCU were prosecuted on obstruction of business charges by their employer, Korean Airlines, after the Government imposed emergency arbitration to end a strike by the union. According to the allegations, obstruction of business is systematically resorted to in an effort to victimize and intimidate trade unionists who decide to go on strike.
726. The Committee notes that according to the Government, Kim Jeong-min, President of the Seoul Regional Chapter of the KRWU was sentenced to ten months’ imprisonment with two years’ probation in the second instance court on 20 September 2006. The charges against 26 KALFCU officers were dropped due to insufficient evidence. With regard to new cases of workers arrested for obstruction of business, the Government indicates that Chung Gapdeuk and two other workers were prosecuted for obstruction of business on 10 December 2007 and sentenced to two years’ imprisonment with three years’ probation on 8 January 2008.
727. The Committee regrets to note that the Government fails to provide information on the specific grounds for the criminal prosecution of 198 KRWU officers and to attach relevant court decisions as previously requested. The Committee observes that although the large majority of KRWU members who were dismissed for their participation in the strike of March 2006 were reinstated following court rulings to this effect, Kim Jeong-min, President of the Seoul Regional Chapter of the KRWU, was convicted for obstruction of business and sentenced to ten months imprisonment with two years probation in the second instance court on 20 September 2007. The Committee notes however from that court decision, which was attached to the Government’s report, that the court found the strike action in question to be relatively peaceful and that the parties subsequently reached an agreement. It also notes with regard to the new case of conviction of Chung Gap-deuk, President of a metal workers’ union, and two other workers to two years imprisonment with three years’ probation for obstruction of business on 8 January 2008, that according to the court decision, which was attached in the Government’s report, no violence had been involved in their activities.
728. The Committee finally notes with regret that in reply to the allegations concerning the systematic resort to obstruction of business charges to intimidate trade unionists, the Government indicates that collective action falling outside the legal confines, exclusively consisting of acts seriously violating an employer’s freedom to operate a business, is carefully assessed and becomes subject to obstruction of business charges. The Committee notes that this statement constitutes a departure from the Government’s previous assurances that it is making efforts to minimize criminal punishment for obstruction of business by refraining from making arrests even in the case of an illegal strike if the strike does not entail any violence. It recalls that the authorities should not resort to arrests and imprisonment in connection with the organization of or participation in a peaceful strike; such measures entail serious risks of abuse and are a grave threat to freedom of association [Digest, op. cit., para. 671]. The Committee recalls from the previous examination of this case its statement that the criminalization of industrial relations is in no way conducive to harmonious and peaceful industrial relations [346th Report, para.774]. The Committee further recalls that, in previous examinations of this case, it had noted with interest the Government’s previous general indication that it would establish a practice of investigation without detention for workers who violated current labour laws, unless they committed an act of violence or destruction – a statement considered to be of paramount importance, particularly in a context where certain basic trade union rights have yet to be recognized for certain categories of workers and where the notion of a legal strike has been seen as restricted to a context of voluntary bargaining between labour and management uniquely for maintaining and improving working conditions [see 331st Report, para. 348; 335th Report, para. 832].
729. In the light of the above, the Committee must once again express its deep concern that section 314 of the Penal Code concerning obstruction of business, as drafted and applied over the years, has given rise to the punishment of a variety of acts relating to collective action, even without any implication of violence, with significant prison terms and fines. The Committee once again urges the Government to consider all possible measures, in consultation with the social partners concerned, so as to revert to a general practice of investigation without detention of workers and of refraining from making arrests, even in the case of an illegal strike, if the latter does not entail any violence. The Committee requests to be kept informed in this regard, including by providing copies of court judgements on any new cases of workers arrested for obstruction of business under the terms of the present section 314 of the Penal Code.
730. The Committee recalls that during the previous examination of this case it had noted allegations of numerous suspensions, transfers and disciplinary measures against workers staging strikes which had been interrupted by compulsory or emergency arbitration (2,680 KRWU members suspended by the Korean Railroad Corporation and undergoing disciplinary procedures causing a climate of intimidation prejudicial to trade union activity; KALFCU members transferred to standby by Korean Airlines causing harm to this young union). The Committee notes that according to the Government, of the 2,823 workers relieved of duties following a strike by the KRWU on 1 March 2006, 2,754 filed a request seeking remedy with the Regional Labour Relations Commission which ruled in favour of 1,498 but against 1,256. A total of 2,730 filed an appeal with the National Labour Relations Commission. Out of them 2,540 won their case but 189 were turned down because of the deadline. The workers who won the case were all reinstated. Regarding disciplinary measures such as suspension, against KALFCU members in 2005, these were taken against 26 union members according to the company’s regulations. The case was closed as no suit was brought against these measures. However, Choi Seong-jin, the only dismissed union member, filed a suit seeking to invalidate the dismissal which is now before the court of appeal. The Committee requests the Government to keep it informed of the outcome of the appeal filed by Choi Seong-jin against his dismissal for having participated in a strike staged by KALFCU in 2005.
731. The Committee recalls that its previous recommendations concerned widespread acts of interference with the activities of the KGEU based on directives issued by the MOGAHA. The Committee had requested the Government to immediately cease all acts of interference against the KGEU, in particular the forced closure of its offices nationwide, the discontinuance of the check-off facility, the disallowance of collective bargaining, the pressure on KGEU members to resign from the union as well as administrative and financial sanctions against local governments which failed to comply with the Government’s directives. It further called upon the Government to abandon the MOGAHA directives and to take all possible measures with a view to achieving conciliation between the Government (in particular MOGAHA) and the KGEU so that the latter might continue to exist and ultimately to register within the framework of the legislation which should be in line with freedom of association principles.
732. The Committee notes from the Government’s report that by April 2008, since the enforcement of the Act on the Establishment and Functioning of Public Officials carried out on the basis of the MOGAHA directives, 199,613 or 68 per cent of public officials eligible to join a trade union joined a trade union of their own choosing and have engaged in trade union activities. There are now 99 public officials’ trade unions, including the Korean Federation of Government Employees (KFGE, registered on 4 September 2006 with a membership of 58,184), the Korea Democracy Government Employee Union (KDGEU registered on 10 July 2007 with a membership of 50,542) and the Korean Government Employees Union (KGEU registered on 17 October 2007 with a membership of 42,490), which are registered legitimately and are carrying out union activities within the legal boundaries. In particular, since its registration on 17 October 2007, the KGEU has delegated bargaining authority to its local chapters across the nation. These local chapters have conducted collective bargaining with over 70 local governments. With no intervention or restriction by the Government, they are actively engaging in union activities and some of them have already concluded collective agreements.
733. While noting with interest that three trade unions of public servants had been registered until April 2008, including the KGEU, the Committee regrets the manner in which the KGEU’s previous refusal to register under the Act on the Establishment and Functioning of Public Servants’ Trade Unions so as to avoid expelling members who did not qualify for trade union membership under the Act has been handled. The Committee deeply regrets in particular the extensive acts of interference and the forceful closing down of 125 KGEU offices which were sealed off, in some cases even welded with iron plates or bars.
734. With regard to the Committee’s previous request for information on the imprisonment of the president of the Migrants’ Trade Union (MTU), Anwar Hossain, the Committee notes that the Government provides information which is also furnished in the framework of Case No. 2620 which focuses on migrant workers. The Committee will further examine this information in that framework.
735. With regard to the Committee’s previous request for an independent investigation into the death of Kim Tae Hwan, president of the FKTU Chungju regional chapter, who was run over by a cement truck on 14 June 2005 while on the picket line in front of the Sajo Remicon cement factory, the Committee notes that although the Government expresses its regret at the accident, it makes a general reference to an investigation by an independent government agency which was concluded through an agreement on compensation. Recalling that the death of Kim Tae Hwan took place in the context of an industrial dispute, the Committee requests the Government to provide a copy of the relevant investigation report.
736. With regard to the request for information on the outcome of the investigation into the death of Ha Jeung Koon, member of the Pohang local union of the KFCITU in August 2006, the Committee notes that according to the Government, this case is still under investigation at the Daegu District Public Prosecutor’s Office and the Committee will be informed of developments, if any. The Committee deeply regrets the delay in investigating the circumstances surrounding the death of Ha Jeung Koon especially as the complainant’s (BWI) allegations and the Government’s reply demonstrate that there are differing views on the events which led to the death of this trade unionist and it is important in such circumstances to shed full light into the matter. It once again recalls that in cases in which the dispersal of public meetings by the police has involved loss of life or serious injury, the Committee has attached special importance to the circumstances being fully investigated immediately through an independent inquiry and to a regular legal procedure being followed to determine the justification for the action taken by the police and to determine responsibilities [Digest, op. cit., para. 49]. The Committee urges the Government to take all necessary measures to ensure that the investigation under way concerning the death of Ha Jeung Koon is concluded without further delay so as to determine where responsibilities lie, allowing for the guilty parties to be punished and the repetition of similar events to be prevented. The Committee requests to be kept informed in this respect.
737. With regard to the allegations by the IFBWW (now BWI) and the Government’s reply concerning the criminal prosecution and imprisonment of members and officials of the regional branches of the Korea Federation of Construction Industry Trade Unions (KFCITU) and restrictions over collective agreements with subcontracted workers in the construction sector, the Committee recalls that during its previous examination it (i) noted that the Government’s reply and the complainant’s allegations represented divergent views of the facts and that it did not have at its disposal the text of the relevant court judgements so as to have full knowledge of the evidence; (ii) requested the Government to transmit all additional information, including relevant court judgements, and to keep the Committee informed of the outcome of the appeal in this case; (iii) invited the complainant to transmit any further information it considered appropriate in response to the information provided by the Government; (iv) requested the Government to undertake further efforts for the promotion of free and voluntary collective bargaining over terms and conditions of employment in the construction sector covering, in particular, the vulnerable “daily” workers; in particular, the Committee requested the Government to provide support to construction sector employers and trade unions with a view to building negotiating capacity.
738. The Committee notes that the BWI provides detailed information aimed at countering the information previously provided by the Government. According to the BWI, the Government distorted the facts and made unfounded allegations against the KFCITU. The prosecutions against the trade union officers in question were aimed at obstructing the activities of regional construction unions, in particular strikes, and not at addressing criminal activity as indicated by the Government; the whole process was based on the premise that trade union activities were in themselves illegal “extortion” and “coercion” as illustrated in the language used in the Government’s report, e.g. instead of saying that the employer refused to conclude a collective agreement, indicating that the employer refused “money payments”; the investigation itself was carried out by departments charged with investigating and prosecuting organized crime which shows the mind frame applied to the case. Moreover, the investigation and prosecution were tainted with numerous irregularities aimed at fabricating false charges against the trade union officials in question. The BWI provides details on prosecution statements and charges which had to be abandoned during the trials as they were unsubstantiated and were not confirmed by prosecution witnesses (e.g. that the union threatened site managers and forced them into concluding collective agreements; that union officials’ wages were used for personal purposes; that the union had no affiliated members in the region; that the union committed violent acts and that it was inactive after the conclusion of a collective agreement). According to the BWI, several site managers indicated at the trial either that their actual statements were different from what was being presented by the prosecution or that they had felt compelled to sign prepared statements under pressure from the police; several witnesses for the prosecution were not even working at the construction sites during the relevant period while one organizer identified by the police as a suspect was not active as an organizer at the construction site during the time frame of the allegations and the court had to revoke his arrest warrant The BWI further indicates the following:
(i) With regard to the Government’s statement that union officials who were not employed by any company demanded collective agreements that contained payments of wages for trade union officials, the BWI indicates that due to the short-term contracts of construction workers, the latter are organized into regional level industrial unions, and have been legally recognized by the government in such form. There is no regulation in the labour law that requires one to be employed in a specific worksite in order to be a union official. Court rulings have also found that payment of wages for union officials do not presuppose employment relations and can be decided through collective agreement, and that the question of who becomes a paid union official is up to the union to decide. Also, the collective agreements in question refer to a variety of issues like “safety education, employer-employee consultations, employment insurance, pension deduction schemes”, but the Government singles out the wage payments, intentionally omitting the other elements of the agreements and thereby distorting the efforts of the construction union.
(ii) With regard to the Government’s statement that the union did not respond to requests to furnish the union member list and demanded payments under the collective agreement although it did not have any members on site, threatening to file complaints if the company refused, the BWI indicates that presenting the list of members is not a precondition for the conclusion of a collective agreement and that the refusal to produce a list of members does not run counter to any legal provision. This refusal is due to the need to protect members from anti-union discrimination as in the construction sector layoffs due to union membership are common. Furthermore, most of the provisions of a collective agreement do not apply only to members but to the entire staff as they reflect basic labour rights guaranteed to all workers by law; low levels of compliance with basic rights in the construction industry, have led to collective agreements functioning as a vehicle for ensuring adherence with the law. The Government’s report distorts this reality and presents the construction union as a group of common thieves.
(iii) With regard to the Government’s statement that the sole objective of the construction union officials was to receive money from employers and not the conclusion of a collective agreement, the BWI indicates that this statement is not supported by any evidence. According to trial records many construction site managers testified during the investigation and trial that when they offered money to the union in exchange for not entering into a collective agreement, they met with fierce protests and refusals.
(iv) With regard to the Government’s statement that union officials ceased to appear at construction sites after collective agreements were concluded and the money was sent, the BWI indicates that this is a serious misrepresentation of the fact. According to trial records, construction site managers testified that after the conclusion of the collective agreement, activities such as “regular worker-employer consultations on problems at the work site, prevention of industrial accidents, monthly safety education” took place. The activities of the Daejon regional construction union have been selected as a model-case of industrial accident prevention. The Kyonggi Subu union has, through direct vote by its members and collective bargaining, obtained two days off a month. The Kyonggido union has formed a total of 60 industrial safety and health committees at its construction sites from 2002 to 2006, and 300 workers have been elected as members to these committees which meet every one to three months to discuss and implement projects for industrial accident prevention. This union has also raised wages for its members, and has been active in improving their working conditions. Regional unions in general have been active at the construction sites, in areas ranging from installing bathrooms and checking safety measures, to managing employment insurance for members. All the above activities have been reported in the press.
(v) With regard to the Government’s statement that sit-ins took place at building sites where payments were refused, the BWI indicates that this is a misrepresentation of trade union activities by equating refusal to make money payments to refusal to implement the provisions of a collective agreement. The sit-ins were due to a failure of the employers to implement the contents of a collective agreement which aimed to ensure adherence to labour laws.
(vi) With regard to the Government’s statement that those companies that refused payments would face false complaints regarding safety helmets for which the union has been punished on libel charges, the BWI indicates that in sites where a collective agreement was concluded there was a willingness to work together with the union to address safety and health issues, and therefore the union reacted to violations of the law by first requesting redress at the company level and then filing a complaint if the request was not met; however, when the company refuses to negotiate a collective agreement, this is tantamount to not recognizing the union; requests for changes go unanswered, and therefore the only option is to file a complaint. The Government’s report does not describe the problems on the ground (lack of basic protective equipment such a safety helmets and boots, high levels of industrial accidents) and has given the impression that the unionists were filing complaints for their own irresponsible acts. Also, the Ministry of Labour, based on fabricated documents from employers, has recklessly issued no-fault decisions to companies that have faced complaints on OSH violations. This has resulted in an abnormally high number of industrial accidents due to the absence of basic safety measures: 3,000 workers die from industrial accidents a year in the Republic of Korea, while only ten employers have been arrested. The Ministry needs to present proof that the unions have filed false complaints, since the union has not been found guilty of libel charges. The Choongnam union still faces this charge but the trial is underway. Even in this case the Ministry of Labour confirmed that the industrial safety law had been violated.
(vii) With regard to the Government’s statement that wages were received by union officials in their personal accounts and used for personal purposes, the BWI indicates that this constitutes an insult to the activists who have engaged in organizing and collective bargaining over the years, receiving only US$500–1,000 a month in order to improve working conditions at construction sites and measures will be taken to counter such insults (Note: The minimum wage is approximately US$3.8 per hour). The issue of the use of wages has already been cleared by the domestic courts. Wiring wages for union officials to personal accounts was due to the fact that site managers would refuse to send the money to the union account. Regardless of the account, the wages were managed by the union and this has been confirmed in court decisions. The Ministry of Labour needs to provide exact proof of the assertion that “about half of the wages were used for personal purposes, unrelated to union activities, and the other half was shared among union officials and used at their discretion, not for the union”.
739. The Committee also notes that according to the BWI, the Daegu High Court found on appeal that Cho Ki Hyun, former President of the Daegu/Kyungbuk regional construction union and three other union members were not guilty of extortion or blackmail and bribery and that furthermore, it is legitimate to report illegal actions by the principal contractors, like occupational safety and health violations, if these endanger the workers; the making of such reports falls within the scope of ordinary trade union activities and does not constitute coercion or extortion even if it takes place during the collective bargaining process. The Court also confirmed the first instance decision that the principal contractor should be recognized as a party to negotiations because it controls the issues of compensation, safety and health industrial accident insurance, pension contributions etc. at the worksite, and that full-time union officials do not have to be employees of the contractor and may receive wages as trade union officials if this is agreed between the parties. The BWI adds however, that trials are ongoing with regard to the Kyunggi Subu and Chunan regional construction unions. In respect of the latter, the BWI indicates that although the Committee’s recommendations were submitted to the courts, and the collective agreements and payment of wages for union officials were recognized as lawful, the officials have still been found guilty of extortion.
740. Furthermore, the BWI indicates that the Government has continued to arrest trade union officials of Kyonggi, Chungnam and Daegu/Kyungbuk regional construction unions, arresting in total 18 trade unionists; several union officers from the Daegu/Kyungbuk, Kyonggi and Chungnam construction unions were undergoing trials. As a result of these attacks on the trade unions, their activities have been seriously impaired.
741. The Committee notes that according to the Government, the current status of the court cases involving construction workers’ unions is as follows:
– The members and officials of the Daegu Construction Workers’ Union who were initially found not guilty by the first and second instance courts (the Committee understands that they were found not guilty of the charges of extortion while they were convicted for obstruction of business to three years’ imprisonment), had their not guilty verdict reversed by the third-instance court. Their case was remanded to the second instance court which convicted them to eight months’ imprisonment with two years of probation. Their case is pending before the third-instance court.
– The members and officials of the Daejeon/Chungcheong Construction Workers’ Union were sentenced at the final instance to ten months’ imprisonment with two years of probation.
– The members and officials of the Cheonan/Asan Construction Workers’ Union were sentenced at the final instance to one-and-a-half years in prison with two years of probation.
– The members and officials of the Western Gyeonggi Construction Workers’ Union were sentenced to one-and-a-half years in prison with two years of probation at the final instance.
742. The Committee notes that the Government attaches to its report the court decisions concerning the construction trade unions in Daejeon/Chungcheong, Cheonan/Asan, Western Gyeonggi and Daegu. The Committee notes from these court decisions that all the trade union officers in question have been convicted of extortion, blackmail and related crimes, because they put pressure on employers/contractors to conclude collective agreements by threatening to denounce to the authorities occupational safety and health violations at the worksite; the collective agreements in question contained clauses on the payment of trade union wages over which there is no legal obligation to agree. The Courts accepted that these acts could be part of trade union activities, that they were carried out in the framework of efforts to conclude collective agreements, that there was probably no criminal motivation and that the extortion was not “habitual”. The courts also accepted that the payment of trade union wages was not carried out in seeking the individual interest of the officials, but rather, in the interests of the trade union. The amounts paid ranged from US$200 to US$1,000. In the case of the Daegu Construction Workers’ Union for instance, the court of first instance convicted the defendants for being paid about US$200,000 from 37 companies, which according to the annex to the case, corresponded to payments of about US$200–700 under collective agreements (the minimum wage in the Republic of Korea is approxrimately US$3.8 per hour). The Court found this to constitute a “severe” crime. Even though the court of second instance reversed this decision, ruling that these activities were ordinary trade union activities and did not constitute extortion, the court of third instance ruled that the second instance court had misunderstood the concept of legitimate trade union activities and reverted to the decision of the first instance court. Thus, all the trade union officials in question were sentenced to prison sentences ranging from six months to three years with periods of probation of up to four years. The Committee notes that according to the Government, their case is pending at the final instance.
743. In these conditions, the Committee reiterates its deep concern noted in its previous examination of this case that the exercise by the KFCITU of legitimate trade union activities in the defence of construction site workers, including through collective bargaining, has been perceived as criminal activity and given rise to the institution of a massive investigation and police intervention. Again the Committee considers that it is a legitimate trade union activity to request that OSH practices at the workplace be included in a collective agreement, and if not, the matter will be reported to the competent authorities. As regards to the payment of money by the main contractor as “activity payment” to full-time unionists under the collective agreement, the Committee had observed that this payment was found by the courts to be carried out for organizational purposes and not for the personal use of the accused trade union officials. The Committee remains deeply concerned that such payment should be considered to be a criminal act. The Committee had observed the acts carried out by the KFCITU officials, with the financial support of the IFBWW, appeared to be regular union activities in conformity with basic notions of freedom of association and in the pursuit of the legitimate trade union objective of ensuring the representation and defence of the occupational interests of a particularly vulnerable category of workers in the building industry. These activities had met with considerable success (signature of collective agreements, reduction of occupational accidents, increase in trade union membership, etc.), before the intervention of the police and the prosecution prevented it from having any further effect [see 340th Report, paras 774–777]. The Committee also recalls from Cases Nos 2602 and 2620 concerning the Republic of Korea, that various additional categories of vulnerable workers, i.e. migrants and subcontracted workers, also face obstacles in their efforts to organize and engage in collective bargaining.
744. The Committee emphasizes once again that the detention of trade union leaders or members for reasons connected with their activities in defence of the interests of workers constitutes a serious interference with civil liberties in general and with trade union rights in particular [Digest, op. cit., para. 64]. The arrest of trade unionists may create an atmosphere of intimidation and fear prejudicial to the normal development of trade union activities [Digest, op. cit., para. 67]. This intimidating effect is likely to be even stronger in the case of precarious, and therefore particularly vulnerable, workers who had just recently exercised their right to organize and bargain collectively. The Committee recalls 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 [Digest, op. cit., para. 72].
745. The Committee requests the Government to take all necessary measures for the effective recognition of the right to organize of vulnerable “daily” workers in the construction sector, notably by refraining from any further acts of interference in the activities of KCFITU affiliates representing such workers, to keep it informed of the outcome of proceedings pending at the final instance with regard to the Daegu Construction Workers’ Union and to review the convictions of the members and officials on grounds of extortion, blackmail and related crimes, for what appears to be ordinary trade union activities. The Committee requests to be kept informed of developments in this respect.
746. Noting moreover that the Government has provided no substantive information in reply to the Committee’s previous request for measures to promote collective bargaining between construction sector employers and trade unions, in particular with regard to the terms and conditions of employment of vulnerable “daily” workers, the Committee once again requests the Government to undertake further efforts for the promotion of free and voluntary collective bargaining over terms and conditions of employment in the construction sector covering, in particular, the vulnerable “daily” workers. In particular, the Committee requests the Government to provide support to construction sector employers and trade unions with a view to building negotiating capacity and reminds the Government that it may avail itself of the technical assistance of the Office in this regard if it so wishes. The Committee requests to be kept informed of developments in this respect.
747. With regard to the Committee’s previous request for details on the circumstances which gave rise to the presence of the police force in close proximity to the room where minimum wage negotiations were taking place in June 2005, the Committee notes that according to the Government, at around 1.20 p.m. on 28 June 2005, the day before the statutory deadline for closing discussions on the minimum wage, 25 union members, discontented with the discussion process, broke into the room where the Minimum Wage Committee was holding the meeting. They occupied the place and staged an overnight sit-in protest. As a result, the Minimum Wage Committee had to proceed with the meeting on 29 June, the last day of the discussion period. With some union members continuing their sit-in in the corridor in front of the meeting room and over 300 union members holding a rally outside of the building, the Minimum Wage Committee inevitably had to call the police to protect its facilities in case of emergency. The police forces just stood guard in the vicinity of the meeting room, having no influence on the meeting. The Committee takes note of this information and recalls that acts of disruption are inconsistent with and do not engender confidence in an orderly system of industrial relations.
748. With regard to the Committee’s previous statement reminding the Government of its commitment to ratify Conventions Nos 87 and 98 made to the ILO High-Level Tripartite Mission which visited the country in 1998 (see document GB.271/9), the Committee notes the Government’s indication that paragraph 159 of document GB.271/9 reads: “[t]he Committee [on Freedom of Association] 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”; according to the Government, the formulation made by the Committee in its last examination of this case does not correspond and therefore needs to be modified. The Government further adds that the issue is beyond the Committee’s competence according to paragraphs 13 and 16 of the Procedure for the examination of complaints alleging violations of freedom of association [Digest, op. cit., Annex I, paras 13 and 16]. The Committee recalls that the function of the International Labour Organization in regard to freedom of association and the protection of the individual is to contribute to the effectiveness of the general principles of freedom of association, as one of the primary safeguards of peace and social justice [Digest, op. cit., para. 1]. It was within this spirit that the Committee recalled the Government’s indication of its willingness to ratify Conventions Nos 87 and 98 in the near future which it made to the ILO High-level Tripartite Mission in 1998 and requests the Government to keep it informed of any developments in this respect.
The Committee's recommendations
749. In light of its foregoing conclusions, the Committee requests the Governing Body to approve the following recommendations:
(a) With regard to the Act on the Establishment and Operation of Public Officials’ Trade Unions and its Enforcement Decree the Committee requests the Government to give consideration to further measures aimed at ensuring that the rights of public employees are fully guaranteed by:
(i) ensuring that public servants at all grades, regardless of their tasks or functions, including firefighters, prison guards, those working in education-related offices, local public service employees and labour inspectors, have the right to form their own associations to defend their interests;
(ii) ensuring that any restrictions of the right to strike may only be applicable in respect of public servants exercising authority in the name of the State and essential services in the strict sense of the term; and
(iii) allowing negotiation on the issue of whether trade union activity by fulltime union officials should be treated as unpaid leave.
The Committee requests to be kept informed of any measures taken or contemplated in this respect.
(b) The Committee requests the Government to ensure that the following principles are respected in the framework of the application of the Act on the Establishment and Operation of Public Officials’ Trade Unions:
(i) that in the case of negotiations with trade unions of public servants who are not engaged in the administration of the State, the autonomy of the bargaining parties is fully guaranteed and the reservation of budgetary powers to the legislative authority does not have the effect of preventing compliance with collective agreements; more generally, as regards negotiations on matters for which budgetary restrictions pertain, to ensure that a significant role is given to collective bargaining and that agreements are negotiated and implemented in good faith;
(ii) that the consequences of policy and management decisions as they relate to the conditions of employment of public employees are not excluded from negotiations with public employees’ trade unions; and
(iii) that public officials’ trade unions have the possibility to express their views publicly on the wider economic and social policy questions which have a direct impact on their members’ interests, noting though that strikes of a purely political nature do not fall within the protection of Conventions Nos 87 and 98.
The Committee requests to be kept informed in this respect.
(c) As regards the other legislative aspects of this case, the Committee urges the Government:
(i) to take rapid steps to continue and undertake full consultations with all social partners concerned with a view to the legalization of trade union pluralism at the enterprise level, so as to ensure that the right of workers to establish and join the organization of their own choosing is recognized at all levels;
(ii) to expedite the resolution of the payment of wages by employers to fulltime union officials so that this matter is not subject to legislative interference, thus enabling workers and employers to conduct free and voluntary negotiations in this regard;
(iii) to ensure that, in issuing decisions determining the minimum service, the Labour Relations Commission takes due account of the principle according to which a minimum service should be confined to operations that are strictly necessary to avoid endangering the life or normal living conditions of the whole or part of the population and to continue to keep it informed of the specific instances in which minimum service requirements have been introduced, the level of minimum service provided and the procedure through which such minimum service was determined (negotiations or arbitration).
(iv) to amend the emergency arbitration provisions of the TULRAA (sections 76–80) so that emergency arbitration can only be imposed by an independent body which has the confidence of all parties concerned and only in cases in which strikes can be restricted in conformity with freedom of association principles;
(v) to repeal the provisions prohibiting dismissed and unemployed workers from keeping their union membership and making non-union members ineligible to stand for trade union office (sections 2(4)(d) and 23(1) of the TULRAA); and
(vi) to bring section 314 of the Penal Code (obstruction of business) in line with freedom of association principles.
The Committee requests to be kept informed of the progress made in respect of all of the abovementioned matters.
(d) The Committee requests the Government to keep it informed of the progress of the appeal proceedings in respect of Kwon Young-kil.
(e) The Committee once again requests the Government to reconsider the dismissals of Kim Sang-kul, Oh Myeong-nam, Min Jum-ki and Koh Kwangsik Han Seok-woo, Kim Young-kil, Kang Dong-jin and Kim Jongyun in the light of the subsequent adoption of the Act on the Establishment and Operation of Public Officials’ Trade Unions. The Committee requests to be kept informed in this respect.
(f) With regard to section 314 of the Penal Code on obstruction of business, the Committee once again urges the Government to consider all possible measures, in consultation with the social partners concerned, so as to revert to a general practice of investigation without detention of workers and of refraining from making arrests, even in the case of an illegal strike, if the latter does not entail any violence. The Committee requests to be kept informed in this regard, including by providing copies of court judgements on any new cases of workers arrested for obstruction of business under the terms of the present section 314 of the Penal Code.
(g) The Committee requests the Government to keep it informed of the outcome of the appeal filed by Choi Seong-jin against his dismissal for having participated in a strike staged by KALFCU in 2005.
(h) Recalling that the death of Kim Tae Hwan, President of the FKTU Chungju regional chapter, took place in the context of an industrial dispute, the Committee requests the Government to provide a copy of the relevant investigation report.
(i) The Committee urges the Government to take all necessary measures to ensure that the investigation under way concerning the death of Ha Jeung Koon, member of the Pohang local union of the KFCITU, is concluded without further delay so as to determine where responsibilities lie, allowing for the guilty parties to be punished and the repetition of similar events to be prevented. The Committee requests to be kept informed in this respect.
(j) The Committee requests the Government to take all necessary measures for the effective recognition of the right to organize of vulnerable “daily” workers in the construction sector, notably by refraining from any further acts of interference in the activities of KCFITU affiliates representing such workers, to keep it informed of the outcome of proceedings pending at the final instance with regard to the Daegu Construction Workers Union, and to review the convictions of the members and officials on grounds of extortion, blackmail and related crimes, for what appears to be ordinary trade union activities. The Committee requests to be kept informed of developments in this respect.
(k) The Committee once again requests the Government to undertake further efforts for the promotion of free and voluntary collective bargaining over terms and conditions of employment in the construction sector covering, in particular, the vulnerable “daily” workers. In particular, the Committee requests the Government to provide support to construction sector employers and trade unions with a view to building negotiating capacity and reminds the Government that it may avail itself of the technical assistance of the Office in this regard if it so wishes. The Committee requests to be kept informed of developments in this respect.
(l) The Committee recalls the Government’s indication of its willingness to ratify Conventions Nos 87 and 98, in the near future, which it made to the ILO High-level Tripartite Mission in 1998 and which was reported to the Governing Body in March 1998 (see document GB.271/9) and requests the Government to keep it informed of developments in this respect.
(m) The Committee calls the Governing Body’s attention to this serious and urgent case.
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| • 개인 통보 |
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| • 최종 견해 |
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