위원회와 이사회 권고 효과 - 보고서 번호 404, 2023년 10월
Effect given to the recommendations of the committee and the Governing Body - Report No 404, October 2023
참고/링크 자료 :
Effect given to the recommendations of the committee and the Governing Body - Report No 404, October 2023
Case No 1865 (Republic of Korea) - Complaint date: 14-DEC-95 - Closed
Effect given to the recommendations of the committee and the Governing Body
69. The Committee last examined this case, which has been pending since its May–June 1996 meeting, at its June 2017 meeting [see 382nd Report, paras 33–96]. On that occasion, the Committee made the following recommendations:
(a) to repeal the legal provisions that prohibited dismissed workers from being trade union members [382nd Report, para. 42];
(b) to ensure that the charges against the teachers who participated in a 27 June 2014 rally against the decertification of the teachers’ trade union be dropped [382nd Report, para. 43];
(c) to lift the ban on wage payment to full-time union officials and the paid time-off system and to ensure that no one is sanctioned for having entered into an agreement in this regard and to refrain from requiring the parties to collective agreements that provide for the payment of wages to full-time union officials to amend their agreement [382nd Report, para. 47];
(d) to provide information concerning the outcome of proceedings against 11 Korean Government Employees’ Union (KGEU) members of the National Human Rights Commission of Korea (NHRCK), who had been subject to disciplinary measures in 2011 for having protested the dismissal of the union chapter’s Vice-President [382nd Report, para. 58];
(e) to ensure that public officials’ trade unions have the possibility to express their views publicly on the economic and social policy questions which have a direct impact on their members’ interests and no longer take disciplinary action against public servants for their individual support of a political party or expression of views about government socio-economic policy affecting workers’ interests [382nd Report, para. 60];
(f) to ensure that the narrow interpretation of the legitimate goals of strike action – limited to industrial disputes – be set aside so that strike action can be carried out in relation to all social and economic matters of direct concern to the workers [382nd Report, para. 90];
(g) to submit information regarding the outcome of the administrative suits filed by 11 railway company workers, dismissed for their participation in December 2013 and February 2014 strikes [382nd Report, para. 92];
(h) to take the necessary measures to review section 314 of the Penal Code concerning the offence of “obstruction of business”, so as to ensure that it does not infringe the right of workers to exercise legitimate trade union activity [382nd Report, para. 93];
(i) to order a thorough investigation of the claims of excessive use of force and damage to property during the police operation at the headquarters of the Korean Confederation of Trade Unions (KCTU) on 22 December 2013; to take the necessary steps to hold those responsible for the violation of the premises of the KCTU to account; and to provide information on the outcome of the judicial proceedings against KCTU leaders and members indicted in relation to these events [382nd Report, para. 94];
(j) to reply to the allegations concerning the financial threat to the existence of the Korean Railway Workers’ Union (KRWU) and the intimidating effect of the civil lawsuits brought by the railway company against the union in relation to the strike actions of December 2009 and 2013 and to provide information on the outcome of the judicial proceedings [382nd Report, para. 95], and;
(k) to provide full information in relation to allegations of recourse to threats and measures of compulsion to force the union to accept the employers’ proposed revision of the collective bargaining agreement between the railway company and the KRWU in 2014 [382nd Report, para. 96].
70. The Korean Teachers and Education Workers Union (JeonGyojo, KTU) and Education International (EI) submitted follow-up information and additional allegations in a communication dated 19 February 2020. In their communication, the KTU and EI refer to the continued decertification of the KTU on the grounds that the union had allowed nine dismissed teachers to maintain their membership. They allege that following decertification, the Government cancelled the positions of 72 full-time union officials and ordered them to return to their school positions. Thirty-four union officials refused to return to their schools, were finally dismissed in 2016 and remained dismissed at the time of the communication. The KTU and EI further allege that after outlawing the union, the Government severely limited teachers’ freedom of expression by taking disciplinary measures and charging teachers, measures that were also upheld by the Supreme Court.
71. The Government sent its observations in communications dated 17 September 2020 and 28 January 2021. In its September 2020 communication, the Government indicates that in its examination of the case filed by the KTU demanding the revocation of the Government notification of its decertification, the Supreme Court of Korea declared on 3 September 2020, that the provision of the enforcement decree which regulated the notification of invalid unions was unconstitutional, and therefore null and void and sent the case back to the lower court. The Government indicates that following this Supreme Court ruling, it immediately revoked its notification and the KTU regained its status as a trade union.
72. In its January 2021 communication, the Government indicates that amendment bills of the Trade Union and Labour Relations Adjustment Act (TULRAA), the Act on the Establishment and Operation of Public Officials’ Trade Unions (AEOPOT), and the Act on Establishment and Operation of Trade Unions for Teachers (AEOTUT) were adopted by the National Assembly on 9 December 2020. The Government indicates that these amendments included the repealing of section 2.4(d) of the TULRAA, section 6(3) of the AEOPOT and section 2 of the AEOTUT which limited the union membership of the dismissed workers in private and public sectors, thereby allowing the unions to freely determine this matter in their by-laws. Furthermore, the Government indicates that the amended version of section 23 of the TULRAA, concerning election of union officers, expanded union autonomy by providing that the eligibility of officers shall be determined by the union by-laws. However, the amended law limits this autonomy by providing that in enterprise-level unions, union officers shall be elected among persons employed at the enterprise concerned. The Government indicates that this condition resulted from the process of social dialogue and the reasoning behind it was that election of persons unfamiliar with the circumstances of an enterprise may negatively impact the bargaining procedure and industrial actions there. Concerning the public sector, the Government refers to amendments to section 6(1) of AEOPOT and the insertion of section 4.2 of the AEOTUT, pursuant to which the restriction on the grade of public officials to join a union is removed, and union membership eligibility is extended to firefighters, educational officers including research assistants and retired public officials and teachers.
73. Finally, the Government indicates that section 24.2 of the TULRAA prohibiting salary payment to full-time union officers was repealed. However, the amended law maintains the time-off system, providing that the worker remunerated by the employer may engage in union affairs within the maximum time-off limit and provision of wage exceeding this limit would be an unfair labour practice. The Government concludes its observations concerning legislative reforms by indicating that it is working on improving lower statutes of the TULRAA, AEOPOT and AEOTUT and plans to publish related public relations and reference materials.
74. The Committee notes that on 21 April 2021, the Government of the Republic of Korea ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
75. The Committee further notes that, in their communication dated 15 June 2022 concerning Case No. 3430, the Korean Public Service and Transport Workers’ Union (KPTU), the KCTU and Public Service International (PSI) alleged that the Government had yet to comply with the CFA’s recommendations in the present case regarding restrictions imposed on collective actions by workers in essential public services and the Committee indicated that it would examine this matter within the framework of this case. The complainant organizations state that section 43 of the TULRAA allows employers of “essential public service businesses” to substitute up to 50 per cent of workers on strike with temporary workers drawn from outside sources, while section 71(2) of the same act, provides a too broad list of such services, including urban subway, air transportation, water, electricity, petroleum refinery and supply, hospitals, blood supply, Bank of Korea and telecommunications businesses. The Government replied in a communication dated 3 February 2023, indicating that it had introduced essential businesses in public service since 2008, after abolishing the compulsory arbitration system, so as to ensure that the exercise of the right to strike could be reconciled with the protection of public interest based on tripartite agreements. The Government considers that the scope of essential public services defined under the Republic of Korea’s circumstances and context, taking into account the impact of the strike on people’s lives and the economy does not go beyond ILO standards. Furthermore, the Government indicates that it allows the substitution of manpower only within certain limits during the period of industrial action in businesses where suspension can significantly jeopardize people’s daily lives and hinder the national economy, with a view to reconciling the protection of the right to strike with the employer’s freedom of work. Whether a business is an essential public service business is decided after comprehensive consideration of its size, replaceability in the market and other characteristics. The Government emphasizes that the essential public service business system is applied only in exceptional cases considering the impact of the strike in the business. Furthermore, opinions of workers and management were reflected in drawing up the list of essential public services.
76. The Committee notes the information submitted by the KTU and EI and the Government observations. It notes that these communications address certain legislative issues that have been the object of its recommendations under the present case. The Committee notes with interest that the legislative reforms described by the Government have given effect to several of its long-standing recommendations in the present case, notably by repealing the legal provisions that excluded dismissed workers from union membership and the lifting of the ban on wage payment to full-time union officials and the paid time-off system. The Committee nevertheless notes that certain other legislative aspects of the case, such as the narrow interpretation of the legitimate goals of strike action, application of section 314 of the Penal Code concerning the offence of “obstruction of business” to strike actions and the authorization of hiring of workers during strike in the “essential public-service businesses” and the broadness of the list of the latter remain unaddressed. In view of the ratification on 21 April 2021 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), by the Government of the Republic of Korea, the Committee recalls its previous recommendations in this respect and refers all these legislative aspects to the Committee of Experts on the Application of Conventions and Recommendations.
77. The Committee welcomes the restoration of the trade union status of the KTU following the Supreme Court decision of 3 September 2020, and trusts that the charges against the teachers who participated in a 27 June 2014 rally against the decertification of the teachers’ trade union were dropped in view of this restoration. It also firmly hopes that the Government would refrain from restraining the freedom of expression of KTU and KGEU members through imposition of disciplinary measures against them. Regarding the more specific issue of the relationship between freedom of association and freedom of expression, the Committee recalls that in the present case it has several times requested the Government to ensure that public officials’ trade unions have the possibility to express their views publicly on the economic and social policy questions which have a direct impact on their members’ interests, in reply to which the Government has referred to the duty of neutrality of public officials laid down in the State Public Officials Acts (SPOA). In view of the ratification of Convention No. 87 by the Republic of Korea, the Committee refers this aspect of the present case to the Committee of Experts.
78. Regarding the alleged violations of freedom of association in relation to the railway company strikes of 2009, 2013 and 2014 and their aftermath, including the claims of dismissal of striking workers, civil lawsuits against the railway company union (KRWU), excessive use of police force during the search operations at the KCTU headquarters, and alleged threats and measures of compulsion regarding the revision of the collective bargaining agreement at the company in 2014, the Committee notes that neither the complainants nor the Government have communicated any further information since the last examination of the present case. The Committee firmly hopes that these issues have been resolved in line with its previous conclusions and recommendations.
79. In view of the foregoing considerations, the Committee considers this case closed and will not pursue its examination.
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