위원회와 이사회 권고 효과 - 보고서 번호 371, 2014년 3월
Effect given to the recommendations of the committee and the Governing Body - Report No 371, March 2014
참고/링크 자료 :
Effect given to the recommendations of the committee and the Governing Body - Report No 371, March 2014
Case No 1865 (Republic of Korea) - Complaint date: 14-DEC-95 – Closed
Effect given to the recommendations of the committee and the Governing Body
44. The Committee has been examining this case since its May–June 1996 meeting and on the last occasion at its March 2012 meeting [see 363rd Report, paras 42–133, approved by the Governing Body at its 310th Session]. On that occasion, the Committee recalled that the outstanding legislative issues in this case concerned, on the one hand, the Act on the Establishment and Operation of Public Officials’ Labor Unions (AEOPOLU), which concerns the public sector only, and, on the other hand, the Trade Union and Labour Relations Adjustment Act (TULRAA) and other legislation which is generally applicable. The Committee observed a number of important amendments to the legislation, but also requested the Government to take a number of additional measures, including: to repeal the outstanding ban on payment of full-time union officers and to ensure that the overall determination of wage payment to full-time union officers would be left to free and voluntary negotiations between the parties, without legislative interference; to provide a copy of the adopted revised TULRAA and its enforcement decrees, as well as a copy of the Manual on the application of maximum time-off limits as soon as possible; and to indicate whether any sanctions have been taken against employers or unions for violations of the above provisions. The Committee further requested the Government to take all the necessary measures to ensure that for collective bargaining at the workplace: (i) when there is no union representing the required percentage to be designated on a representative body, collective bargaining rights are granted to all the unions in this unit, at least on behalf of their own members; (ii) minority trade unions that have been denied the right to negotiate collectively are permitted to perform their activities, to speak on behalf of their members and represent them in individual grievances; and (iii) to keep the Committee informed of pending cases of unfair labour practices upon the introduction of the unified bargaining channel system and to take measures for the prevention and sanctioning of any such acts. The Government was requested to provide full observations on the allegations of interference in the negotiations between unions and employers and to indicate the reasons for the unilateral termination of binding collective bargaining agreements that took place in several workplaces, including Korea Railroad, National Pension Service and Korea Gas Corporation. The Committee also requested the Government to take the necessary measures to ensure that strike action may be carried out beyond the limited question of industrial disputes for the signing of a collective agreement and that the establishment of minimum services be agreed in accordance with the principles of freedom of association to bring section 314 of the Penal Code (obstruction of business) into line with these principles, and to ensure that the legality of such action not be dependent upon the representative status of the organization. Finally, the Committee requested 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 TULRAA) and as regards public employees, to take all possible measures with a view to achieving conciliation between the Government and the Korean Government Employees’ Union (KGEU) so that the latter may continue to exist and ultimately to register; ensure that public officials working for the Election Commission and the courts have the right to form their own associations so as to defend their interests and 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, including during their meetings, in their publications and in the course of other trade union activities; and to keep it informed of the situation of the public employees who were dismissed or disciplined for participating in national rallies or for involvement in a union ballot on integration of the unions.
45. In its communication dated 30 January 2013, the Government indicates that the term “full time union official” in the Republic of Korea differs significantly from the leadership of trade unions in other countries. The Government recalls that in the Republic of Korea, a full-time union official refers to an employee at a workplace who is exempted from the obligation to work and performs only union-related duties. While in other countries, such officials are often paid from union dues, in the Republic of Korea, the practice is that the wages of full-time union officials are paid by the employer, thus placing a risk of the employer infringing on the autonomy of the union. The payment of wages to full-time union officials was prohibited through the revision of the TULRAA in 1997 but its implementation was delayed out of concern that its enforcement would weaken trade union activity. The intention was to progressively reduce the number of full-time union officials while the financial autonomy of trade unions was bolstered, yet over the years the opposite occurred and there was actually an increase in the number of full-time union officials. With the revision of the TULRAA on 1 January 2010, the ban that had been suspended for 13 years was implemented from July 2010. At the same time, the paid time-off system was introduced to allow employers to pay for the time necessary for union activities within certain limits. The persons eligible for paid time off are not limited to the union leadership and workers who are not union officials subject to paid time off may also freely carry out union activities if agreed under the collective agreements. The paid time off can be applied to almost all union activities, with the exception of certain activities, such as strikes. The payment of wages to a full time union official is considered to be an unfair labour practice and it is the employer who is penalized, not the union official. Finally, the Government provides the requested Enforcement Decree and Manual and adds that other countries make the financial support of employers for union officials’ wages an unfair labour practice.
46. As regards the bargaining representative system in the Republic of Korea, the Government explains that it is designed to ensure that a bargaining representative union must be selected once the process is under way for unifying the bargaining channel and that the system requires the organizing of a joint bargaining team even in the absence of a majority trade union. The Government also confirms that trade unions that do not have the representative function are guaranteed the right to perform individual trade union activities including speaking on behalf of their members and handling grievances.
47. The Committee takes due note of the information provided by the Government with respect to the implementation of the amendments made to the TULRAA. While duly noting the explanations as to the historic context of paid full-time union officers in the Republic of Korea, the Committee is bound once again to reiterate that, even where the payment in such cases may come from the employer, the payment of full-time union officers should be a matter for negotiation between the parties. As regards the Government’s concerns relating to the autonomy of the trade union in such circumstances, the Committee considers that, should it be found in a specific case that the employer is interfering in the internal affairs of the trade union by financing its members so as to bring it under the employer’s domination or control, such action should be sanctioned on the basis of the evidence. The Committee trusts that the Government will soon be in a position to lift the ban and to ensure that no one is sanctioned for having entered into an agreement in this regard. In the meantime, the Committee requests the Government to provide detailed information on the manner in which the maximum time-off limits are applied in practice and any complaints of unfair labour practices received.
48. As regards the freedom of association of public officials, the Government confirmed that public officials of Grade VI or lower in rank at the Election Commission and the courts are permitted to freely join unions according to the current Act and do not fall under special service public officers prohibited from joining trade unions. As regards the KGEU, the Government once again recalls that this organization no longer exists due to illegitimate activities and their refusal to legitimately register a trade union. The Government affirms that refusing to grant organizations that fail to fulfil all conditions required of a trade union for the protection entitled under the TULRAA is in conformity with both the rule against excessive restriction and the balance between legal interests. The minimum requirements set out in the TULRAA and the AEOPOLU, as confirmed by the Constitutional Court, represent an inevitable and minimal measure to ensure the democratic and autonomous operation of trade unions. Given that the KGEU by-laws allow dismissed workers and managerial officials among its trade union members, the Government accordingly refused registration, a decision that was upheld at the Seoul Administrative Court and the Seoul High Court and is currently pending before the Supreme Court. As regards the allegations of anti-union discrimination against the KGEU, the Government indicates that, while it did recommend that public officials avoid attending a large-scale rally that could turn into a political rally, it did not ban participation in a registered and legitimate rally. In addition, while it requested the cooperation of all government institutions and agencies to prohibit access to the KGEU website during official service hours, it did not ban access to the site outside of the workplace, nor did it block the release of a KGEU statement. Finally, the Government states that public officials’ trade unions are required to be politically impartial as their politicization would exert a significant influence on the fairness of duties and the trust of the people, but confirms that the KGEU’s registration was not refused for this reason. The Government reaffirms the right of public officials’ trade unions to express their views on economic and social policy issues that directly impact on their members’ interests, but asserts that, in conformity with a Supreme Court decision in April 2012, the expression of political views related to a specific political power in order to exercise influence on the government’s policy making process is prohibited. As regards the Democratic Labour Party case, the Government indicates that the court issued a penalty of 300,000–500,000 South Korean won per person for the act of providing funds and contributions towards party expenditures by public officials as a violation of the Political Fund Act.
49. In a communication dated 11 August 2013, the International Trade Union Confederation (ITUC) requested an urgent intervention and brought to the Committee’s attention information concerning the Government’s refusal, for the fourth time, to register the KGEU. The ITUC informed that the KGEU and the Government discussed intensively the measures that the union could take, concluding with a proposal from the KGEU to amend its constitution to insert the following clause in relation to membership, “according to the relevant laws and regulations”. Nevertheless, the application for registration was once again denied on the basis that its constitution could still be interpreted to allow dismissed workers to retain membership. On 20 August 2013, the KGEU submitted details on the efforts made and the dialogue with the Ministry of Employment and Labour aimed at resolving this long outstanding issue which were regrettably, unsuccessful.
50. In a communication dated 4 October 2013, the Government explains that the matter of the registration of the KGEU should be determined in consideration of the unique characteristics of the Republic of Korea Constitution and labour laws. Given that the TULRAA bestows a number of rights, including the entitlement to collective bargaining, a registration system was necessary to determine which labour unions are legitimate so as to prevent unnecessary conflict. In addition, the AEOPOLU aims to guarantee trade union activities of public officials and therefore stipulates that public officials who are not in office (that is, have been removed, dismissed, or discharged) are not eligible to retain membership in a labour union. The KGEU’s request for registration was denied because article 2 of its by-laws, as amended on 22 July 2013, provided that, in case a union member is dismissed or the effectiveness of his/her dismissal is in dispute, he/she may keep union membership according to related laws, with the proviso that determination of his/her eligibility to join the union depends on the central executive committee (article 27(2)(G)). The Government indicated that it rejected the registration request because the by-laws did not comply with the Republic of Korea Constitution or related laws and expressed its wish that the KGEU resubmit a request and that it conduct trade union activities in accordance with related laws.
51. In a communication dated 1 December 2013, the ITUC, Education International (EI), the Korean Confederation of Trade Unions (KCTU) and the Korean Teachers and Education Workers’ Union (KTU) submitted new allegations of trade union rights violations affecting the KTU and the KGEU. In particular, the complainants refer to the Government’s decertification of the KTU on 24 October 2013 because it did not amend its Constitution to ban dismissed and unemployed workers from its membership. The complainants recall that around 60 KTU members were dismissed during the previous Government for their activities, including expressing their opinion on the Government’s education policy or for one-off donations to progressive political parties. While 39 were reinstated through court procedures, 21 teachers remained dismissed. In September 2013, the KTU decided to put the question of amending its by-laws to exclude dismissed teachers to a vote of its general membership. Almost 60,000 members voted across the nation with 68.59 per cent voting against, despite the Government’s ultimatum that the union would be deregistered if its by laws were not amended. The KTU requested an injunction for the suspension of the Government’s decision to cancel its registration, which was accepted by the Seoul Administrative Court on 13 November 2013. The first ruling on the merits is expected within six months. In the meantime, the Government filed an immediate appeal against the injunction with the Seoul High Court. Moreover, according to the complainants, the Ministry of Education withdrew from the ongoing collective bargaining negotiation with the KTU in September 2013 on the ground that the legal status of the KTU would be challenged by the Ministry of Employment and Labour. The complainants also allege that the Government carried out a search and seizure of the KGEU servers and announced its intention to do the same to the KTU due to the alleged lack of political neutrality of these organizations. The complainants consider that these acts were undertaken with the sole intention of intimidating KGEU leaders and members and sending a clear message that the Government will take any and all steps necessary to prohibit the exercise of freedom of association of any union, particularly in the public sector, that opposes the anti-union policies of the Government.
52. In a communication dated 19 December 2013, the Government states that the right to organize of teachers is guaranteed by the Act on the Establishment and Operation of Trade Unions for Teachers (AEOTUT) enacted in July 1999 and which gave rise to the operation of 11 trade unions. Establishment of a trade union accords the right to collective bargaining and the possibility that a union request the settlement of a labour dispute by the Labour Relations Commission (LRC). In order to be granted these benefits and legal rights and protection, the Government follows procedures of confirming whether a trade union meets legal requirements in addition to confirming if members of the union are workers in need of bargaining for the improvement of their working conditions. The AEOTUT was enacted and is applied in consideration of the duty of teachers, keeping in mind the distinct characteristics of their status. Article 2 of the AEOTUT provides that, in order to be a member of a teacher’s union, one must be a current teacher or a dismissed teacher who has made an application to remedy unfair labour practices to the LRC and who is awaiting the review decision. It has, however, been confirmed that the KTU’s by-laws allow dismissed persons to be members and be involved in the union’s activities. Since March 2010, the Government has urged and guided the KTU to rectify these violations and abide by the laws. On 12 January 2012, the Supreme Court decided that the corrective orders issued by the Government were legitimate. Nonetheless, as the KTU continued to violate the laws, the Government issued another corrective order on 23 September 2013 advising the KTU to correct its status. As the KTU decided to decline the corrective orders through a vote of all its members, the Government was obliged to give it notification of its loss of union status. The KTU can however restore its legal status at any time when the union voluntarily corrects its illegality by amending its by-laws and by excluding dismissed workers from the union. The Government concludes that any amendments to related laws should only be made after social consensus has been built among a wide range of stakeholder groups in the Republic of Korea.
53. The Committee takes note with deep concern of the decertification of the KTU, the refusal to register the KGEU for the fourth time and the allegations relating to the searches and seizures of KGEU servers. As regards both the refusal to register the KGEU and the decertification of the KTU, the Committee recalls that it has consistently considered that a legislative provision prohibiting dismissed workers from being union members is contrary to the principles of freedom of association. The Committee has requested the Government to take the necessary measures to amend or repeal the provisions in the TULRAA to this effect ever since they were first enacted in 1997 and observes that the AEOTUT and the AEOPOLU contain similar provisions. The Committee deeply regrets not only that the KGEU has yet to obtain legal recognition due to this restriction, but moreover expresses its deep concern that the application of this restriction to teachers has now resulted in a governmental act to deregister the KTU whose registration in July 1999 had been hailed by the Committee as a significant development in ensuring freedom of association in the country. The Committee urges the Government to take the necessary measures to amend the provisions restricting trade union membership in this regard. Observing that the efforts made by the Ministry of Employment and Labour (MOEL) to find a solution to this important matter did not in the end bear fruit, the Committee urges the Government to pursue its efforts and to keep it informed of all steps taken to facilitate the registration of the KGEU and ensure the re-certification of the KTU without delay. As regards the pending court cases, the Committee firmly trusts that the principles of freedom of association it has enunciated over the years concerning the right of workers’ and employers’ organizations to draw up their Constitutions and rules without interference by the public authorities will be duly taken into account by the courts and that the legal recognition of a major trade union organization in the education sector will not be dissolved on the basis of the membership of a handful of dismissed teachers. Indeed, the Committee takes due note of the Government’s emphasis on the importance of confirming if members of the union are workers in need of bargaining for the improvement of their working conditions and observes that nearly 60,000 teachers are expecting representation from the KTU on their behalf. While awaiting the court judgments on this matter, the Committee trusts that the Government will fully engage with the KTU, including on the collective bargaining negotiations which the complainant states were forestalled in September 2013. The Committee urges the Government to repeal the provisions in the TULRAA, the AEOTUT and the AEOPOLU which prohibits dismissal workers from being members of the trade union and to provide detailed information in reply to all the allegations set out in the 1 December 2013 communication. Finally, the Committee once again requests the Government to provide full observations on the previous allegations of interference in the negotiations between unions and employers and to indicate the reasons for the unilateral termination of binding collective bargaining agreements that took place at Korea Railroad, National Pension Service and Korea Gas Corporation and to indicate the steps taken to bring section 314 of the Penal Code into line with the principles of freedom of association.
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