Workers' Representatives Convention, 1971 (No. 135) - Republic of Korea (RATIFICATION: 2001)

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The Committee notes the observations from the Federation of Korean Trade Unions (FKTU), the Korean Confederation of Trade unions (KCTU) and the Korea Enterprises Federation (KEF), which were received with the Government’s report on 8 September 2021, as well as the Government’s reply to them. The Committee recalls that it previously noted the observations received on 1 September 2014 from the International Trade Union Confederation (ITUC) alleging violations of trade union rights in practice, including anti-union dismissals affecting the Korean Government Employees Union and the Korean Railway Workers’ Union. The Committee takes note of the Government’s reply thereto, in particular the information on the process of resolution of the conflicts in both cases and the reinstatement of dismissed union members.

Article 2 of the Convention. Facilities granted to workers’ representatives. In its previous comments, the Committee had questioned a number of provisions of the Trade Union and Labour Relations Adjustment Act (TULRAA) prohibiting as an unfair labour practice the payment of wages by an employer to full-time trade union officials, and had requested the Government to take measures to amend them in a way which allowed the parties to determine through free and voluntary negotiation the issue of the payment of wages to full-time trade union officials. The Committee notes with interest that the TULRAA was amended on 5 January 2021 with the deletion of such provisions. Additionally, the Time-off System Deliberation Committee was transferred to the Economic, Social and Labour Council (ESLC), where members representing public interest are not recommended by the Government, thus strengthening the representation of the labour and management in the determination of the time-off system. The Time-off System Deliberation Committee decided that the time-off limit would vary according to the size and geographical distribution of a trade union. Each workplace would ultimately fix the wage within the set time-off limit. The Committee notes the observations of the KEF indicating that, with the revised TULRAA, the union activities subject to the paid time-off are now determined by collective bargaining agreements. Those activities include consultation and negotiation with employers, grievance settlement, and industrial safety activities prescribed by the TULRAA and other labour laws, as well as affairs of maintaining and managing a trade union to develop healthy labour management relations.

The Committee further notes the observations from the FKTU and the KCTU raising some concerns in relation to the operation of the time-off system despite the recent amendment of the TULRAA enabling trade union officers to perform trade union duties during a pre-determined maximum working hours without loss of wage. The trade unions regret in particular the imposition of a maximum time-off limit, and the fact that paying wages exceeding this maximum time-off limit may be punished as an unfair labour practice according to the law. In the trade unions’ view, as such, the system still goes against the principle of autonomous decision and self-regulation by labour and management. In addition, the KCTU points out that recent changes on legislation, notably on safety in the workplace or on the prohibition against harassment at the workplace, has widened the scope of activities of workers’ representatives. Consequently, the time-off system should be redesigned to take into account activities that should be performed during working hours by workers’ representatives. In conclusion, in the trade unions’ view, the system needs to be improved to let labour and management freely and voluntarily determine the maximum time-off limit.

While noting the positive developments in this regard, the Committee invites the Government to continue to consult with the most representative workers’ and employers’ organizations on ways to improve the time-off limit system, including on the concerns raised by the FKTU and the KCTU, so that: (i) the facilities afforded to workers’ representatives enable them to carry out their functions promptly and efficiently; and (ii) the capacity of the social partners to freely determine through collective bargaining the facilities granted to workers’ representatives is fully recognized . The Committee requests the Government to provide information on any developments in this respect. In the meantime, the Committee requests the Government to provide practical information on the manner in which the maximum time-off limits are applied under the new system, on the number of complaints of unfair labour practices for payment of wage exceeding the maximum time-off limit, and the sanctions imposed.

Furthermore, the Committee notes that, according to the FKTU, the workers’ representative system is characterized by the absence of regulations and sanctions concerning the method and procedure for the election of workers’ representatives, the legal status and authority of workers’ representatives, or concerning employers’ interference in elections and activities of workers’ representatives. The FKTU indicates that the Government and the social partners have agreed to improve the related laws and institutions under the Committee for the Improvement of Laws, Measures, and Practices for Labour Relations Development under the Economy, Society, and Labour Council. The Committee notes, from the Government’s report, that it is committed to sustain its efforts to strengthen the protection of the rights and protection of workers’ representatives, including through the Tripartite Agreement on Improving the Workers’ Representative System (19 February 2021). The Government asserts in particular that a bill reflecting the results of discussion has been submitted and that the new legislation will include matters regarding the election of workers’ representatives via direct, secret, and unsigned voting, the recognition of hours dedicated to union activity as working hours, and establishing a three-year term for workers’ representatives. Welcoming the indication that a new legislation will specify the facilities and protection afforded to workers’ representatives and hoping that such legislation will enable them to carry out their functions promptly and efficiently, the Committee requests the Government to continue providing information on any developments in this regard.

Lastly, the Committee notes with interest the ratification 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), registered in April 2021. The Committee is hopeful that the ratification of these fundamental Conventions will contribute positively to the implementation of the present Convention.

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The Committee notes the observations received on 1 September 2014 from the International Trade Union Confederation (ITUC) alleging numerous violations of trade union rights in practice, including anti-union dismissals affecting the Korean Government Employees Union and the Korean Railway Workers’ Union. The Committee requests the Government to provide its comments in this respect.

The Committee further notes the observations from the Federation of Korean Trade Unions (FKTU) as well as the Government’s comments thereon, both received on 4 September 2014.

Article 2 of the Convention. Facilities granted to workers’ representatives. The Committee notes that the FKTU denounces in particular that the current paid time-off system aims at decreasing the number of existing full-time union officials, has reduced the room for autonomous bargaining and retains the legislative restrictions to the wage payment for full-time union officials; and that the introduction of the system went hand in hand with excessive administrative intervention, inspections and corrective orders. The Committee also notes the Government’s indications that the maximum time-off limit was expanded for small unions which might have seen a considerable weakening of their union activities after the introduction of the new system; that the maximum time-off limit is granted taking into account the travel time of union officials whose workplaces are dispersed across the country; and that while giving workers paid time off to engage in union activities is not considered an unfair labour practice under section 81(4) of the Trade Union and Labour Relations Adjustment Act (TULRAA), collective agreements requiring employers to pay wages to full-time officials other than giving them paid time off to engage in union activities or to support the union’s operating costs beyond providing office space, is deemed illegal (section 31(3)).

In its previous comments, noting that sections 24(2), 81(4) and 90 of the TULRAA prohibited as an unfair labour practice the payment of wages by an employer to full-time trade union officials, the Committee had requested the Government to take all necessary measures to amend those provisions in a way which allowed the parties to collective bargaining to determine freely the issue of the payment of wages to full-time trade union officials. The Committee notes with regret that the Act revised in 2010 retains the ban on the payment of wages to full-time trade union officials and the penal sanctions against employers and unions in case of non-compliance. It reiterates that the payment of full-time union officers should be a matter for free and voluntary negotiation between the parties. The Committee invites the Government to engage in consultations with the most representative workers’ and employers’ organizations on these issues and to provide information on any developments in this respect. In the meantime, the Committee requests the Government to provide practical information on the manner in which the maximum time-off limits are applied, complaints of unfair labour practices received, sanctions imposed, etc.

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The Committee notes the information supplied by the Government in its report.

Article 1 of the Convention. In its last comments, the Committee had requested the Government to provide information on the nature of the remedies which may be ordered under section 84 for acts of anti-union discrimination against trade union officials and other workers’ representatives. In this respect, the Committee notes that the Government’s report indicates that the nature of orders for remedy vary depending on the type of acts of anti-union discrimination and can include measures for reinstatement, financial compensation and prevention or suspension of employers’ dominance over or in trade union activities, as well as dissuasive sanctions.

Article 2. In its last comments, the Committee had noted that sections 24(2), 81(4) and 90 of the Trade Union and Labour Regulations Adjustment Act (TULRAA) prohibit as an unfair labour practice the payment of wages by an employer to full-time trade union officials and requested the Government to take all necessary measures so as to amend those provisions in a way which allows the parties to collective bargaining to determine freely the issue of the payment of wages to full-time trade union officials. The Committee notes from the Government’s report that the "Research Committee on Advancement of Systems of Industrial Relations", set up in 2003 at the request of the Minister of Labour, considers that sections 24(2), 81(4) and 90 of the TULRAA are causing legal problems and suggested, as an alternative, to stipulate in the law the number of full-time union officials who are eligible to receive financial assistance from an employer and restrain the employer from paying wages to more full-time union officials than stipulated. The Committee also notes that the Government indicates that the Tripartite Commission is expected to have discussions on the suggestion made by the Research Committee and that, based on the results of that discussion, the Government will improve the labour laws and institutions. The Committee considers that the suggestion made by the Research Committee is in line with the Convention.

Article 5. In its last comments, the Committee had requested the Government to indicate whether, in cases where the trade union does not represent the majority of workers in a unit, trade union officials have a right to stand for election as worker members of the Labour-Management Council. In this regard, the Committee notes from the Government’s report that section 3(2) of the Enforcement Decree of the Act concerning the promotion of worker participation and cooperation states that anyone who has been recommended by ten or more workers of the workplace where he/she works can run as a candidate for worker member of the Labour-Management Council.

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The Committee takes note of the Government’s first report. The Committee also takes note of the observations communicated by the Federation of Korean Trade Unions (FKTU) along with the Government’s report.

Article 1 of the Convention. Protection of workers’ representatives against anti-union discrimination. The Committee notes that sections 81(1) and (5), 83, 84 and 90 of the Trade Unions and Labour Relations Adjustment Act prohibit acts of anti-union discrimination including dismissals against all workers including trade union officials, and establish a rapid procedure before the Labour Relations Commission for investigating related grievances without delay. The Committee notes that this procedure may lead to an order for remedy under section 84 and the imposition of sanctions upon the employer in the form of imprisonment and fines (section 90). The Committee requests the Government to provide information on the nature of the remedies which may be ordered under section 84 for acts of anti union discrimination against trade union officials and other workers’ representatives and in particular, to indicate whether these remedies include compensation and/or reinstatement or other measures.

Article 2. Facilities to be afforded to workers’ representatives. The Committee notes that sections 24(2) and 81(4) of the Trade Union and Labour Relations Adjustment Act prohibit as an unfair labour practice the payment of wages by the employer to full-time trade union officials, an act which is punished by a fine or imprisonment under section 90 of the Act. In this respect, the Committee takes note of the observations communicated by the FKTU according to which the payment of wages to full-time trade union officials should be left to the union and the employer to determine autonomously. The Committee also takes note of the Supreme Court ruling of 28 May 1991 (No. 6392), cited by the FKTU, according to which: "if a trade union secured a paid exemption from provision of labour for full-time officials of the union as a result of its struggle, then it cannot be deemed to be in infringement of the principle of autonomy of trade unions". Recalling that the Convention requires that facilities in the undertaking are afforded to workers’ representatives in order to enable them to carry out their functions promptly and efficiently, the Committee requests the Government to take all necessary measures so as to amend sections 24(2), 81(4) and 90 of the Trade Union and Labour Relations Adjustment Act in a way which allows the parties to collective bargaining to determine freely the issue of the payment of wages to full-time trade union officials.

Article 5. Measures to ensure that the existence of elected representatives is not used to undermine the position of the trade unions. The Committee notes that under section 6(2) of the Act concerning the Promotion of Worker Participation and Cooperation, the worker members of the Labour-Management Council, who are normally elected by the workers of the undertaking, shall consist of trade union representatives or those recommended by the trade union in cases where the trade union members constitute the majority of workers in the unit. The Committee also notes that according to section 3(1) of the Enforcement Decree of the Act concerning the Promotion of Worker Participation and Cooperation, the worker members of the abovementioned Council shall be elected by secret vote in a business or workplace where a trade union consisting of a majority of workers has failed to be organized. The Committee requests the Government to indicate whether, in cases where the trade union does not represent the majority of workers in a unit, trade union officials have a right to stand for election as worker members of the Labour-Management Council.