Interim Report - Report No 327, March 2002

Case No 1865 (Republic of Korea) - Complaint date: 14-DEC-95 - Closed

Allegations: Arrest and detention of trade union leaders and members; government refusal to register newly established organizations; adoption of labour law amendments contrary to freedom of association

1. 447. The Committee already examined the substance of this case at its May 1996, March and June 1997, March and November 1998, March 2000 and March 2001 meetings, when it presented an interim report to the Governing Body [304th Report, paras. 221-254; 306th Report, paras. 295-346; 307th Report, paras. 177-236; 309th Report, paras. 120-160; 311th Report, paras. 293-339; 320th Report, paras. 456-530; 324th Report, paras. 372-415; approved by the Governing Body at its 266th, 268th, 269th, 271st, 273rd, 277th and 280th Sessions (June 1996, March and June 1997, March and November 1998, March 2000 and March 2001)].
2. 448. The Korean Confederation of Trade Unions (KCTU) provided new allegations in communications dated 2 March and 8 June 2001. The Government provided its observations in a communication dated 10 January 2002.
3. 449. The Republic of Korea has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 450. During its previous examination of this case, the Committee had noted that the case addressed allegations both of a legislative and factual nature. With regard to the issues of a legislative nature, the Committee had recalled that they related to the right to organize of public servants, the right to strike in non-essential public services, trade union pluralism at the enterprise level, the prohibition of payment of wages to full-time union officials, the lifting of the ban on third-party intervention in collective bargaining and industrial disputes, the trade union membership and office of dismissed and unemployed workers and the very broad interpretation of "obstruction of business" under section 314 of the Penal Code. The Committee had expressed the firm hope that these issues would be resolved quickly in accordance with freedom of association principles and had requested the Government to keep it informed of the deliberations within the Tripartite Commission on all these issues.
2. 451. Regarding the allegations of a factual nature, the Committee had urged the Government to drop the charges against the former KCTU president, Mr. Kwon Young-kil Young-kil, concerning events that had occurred before the January 1997 strikes as a result of his trade union activities. The Committee had also requested the Government to ensure in future cases that the four-step plans it adopted in April 1999 to minimize the arrest and detention of trade unionists was effectively implemented, and that police intervention in labour disputes was strictly limited to situations where law and order was seriously threatened, so that in the future trade unionists were no longer arrested, detained or charged for legitimate trade union activities.
3. 452. At its March 2001 session, in the light of the Committee’s interim conclusions, the Governing Body approved the following recommendations:
   • (a) The Committee reiterates its call, on all the parties, to act in good faith and expresses its firm hope that tripartite dialogue will continue on all issues it raised.
   • (b) As regards the legislative aspects of this case, the Committee:
   • (i) requests the Government, once again, to take concrete steps as soon as possible to extend the right of association, and to recognize the right to establish and join trade union organizations, for all public servants who should enjoy these rights, in accordance with freedom of association principles;
   • (ii) regretting that an additional delay of five years has now been imposed as regards the legalization of trade union pluralism at the enterprise level, requests the Government to provide its observations on the KCTU’s allegations of February 2001, and urges it, once again, to speed up that process with a view to promoting the implementation of a stable collective bargaining system;
   • (iii) notes with regret that the Government did not provide information on the other outstanding legislative issues (notification of the identity of third parties in collective bargaining and industrial disputes, and repealing of penalties related thereto; refusal to allow dismissed workers to maintain trade union membership, and ineligibility of non-members of trade unions to stand for office), reiterates its previous requests in these respects, and urges the Government to provide as soon as possible its observations on these issues;
   • (iv) noting that the legal definition of the infraction of "obstruction of business" under section 314 of the Penal Code is so wide as to encompass practically all activities related to strikes, requests the Government to bring this provision in line with the narrower interpretation given to it by the Supreme Court as well as with freedom of association principles, and recommends that this matter be discussed by the Tripartite Commission with a view to making formal proposals;
   • (v) asks the Government to repeal section 40(2) of the TULRAA in conformity with freedom of association principles;
   • (vi) urges the Government to speed up the work of the Tripartite Commission and to keep it informed of the outcome of the deliberations within the Tripartite Commission or the National Assembly on all the above issues, which the Committee firmly hopes will be examined and resolved quickly in accordance with freedom of association principles; and
   • (vii) requests the Government to keep it informed on all measures taken to give effect to the above recommendations.
   • (c) As regards the factual aspects of this case:
   • (i) noting with deep concern that Mr. Kwon Young-kil has received a suspended sentence of ten months of imprisonment for violation of a provision which is incompatible with freedom of association principles, the Committee regrets that the Government would continue to press charges against Mr. Kwon Young-kil Young-kil, urges it to drop the charges concerning his legitimate trade union activities, and requests the Government to keep it informed of the outcome of pending trials, including Mr. Kwon Young-kil’s appeal against the judgement of the Seoul District Court of 31 January 2001;
   • (ii) the Committee requests the Government to keep it informed of developments concerning the 70 KCTU leaders and members, including judicial decisions, if any;
   • (iii) the Committee requests the Government to ensure in future cases that the four-step plan it adopted in April 1999 to minimize the arrest and detention of trade unionists be effectively implemented, and that police intervention in labour disputes be strictly limited to situations where law and order are seriously threatened, so that in future trade unionists are no longer arrested, detained or charged for legitimate trade union activities;
   • (iv) the Committee calls on all parties to exercise restraint in pursuing activities linked to labour relations disputes; and
   • (v) the Committee requests the Government to keep it informed of the outcome of the appeals lodged against the judgements of the courts of the first instance regarding the dismissal of 182 workers at the Sammi Specialty Steel Company and of six workers at the Dong-hae Company, and urges the Government to pursue its efforts towards maintaining social dialogue between labour and management on these issues.

B. The Government's reply

• Legislative aspects of the case
• Developments concerning the Tripartite Commission
  453. 453 In its communication dated 10 January 2002, the Government indicates that the Third Session of the Tripartite Commission, which was launched on 1 September 1999, is composed of the General Committee, the Standing Committee, four special committees (public sector, financial sector, working-hour reduction and non-regular workers), and two subcommittees (industrial relations, and economic and social). Each committee has been involved in in-depth discussions on pertinent labour issues and institutional reforms.
  454. 454 The subcommittee on industrial relations has had working-level consultations on essential public services on six occasions. It discussed the concept, criteria and scope of essential public services, and procedures and requirements where essential public services are referred to compulsory arbitration, as well as the appropriateness in designating hospitals, the oil industry and city railways as essential public services. Moreover, the subcommittee on the Basic Labour Rights of Public Officials has been newly set up and has had discussions on how to guarantee basic labour rights of public officials.
• Right to organize of public servants
  1. 1 The right to join the Public Officials’ Workplace Associations (POWAs) for certain categories of public servants
  455. 455 The Government states that in accordance with the agreement at the first Tripartite Commission of 6 February 1998 to recognize public officials’ rights to organize in phases, the POWA, has been operating since 1 January 1999. As of the end of December 2001, a total of 333 POWAs had 78,000 members, up 70 per cent from 41,000 in the same period of the previous year. The increase was due to the measures the Government took to revitalize POWAs’ activities. On 24 April 2000, it revised "The Work Guideline on the POWAs", so that heads of organizations could allow a team leader of level six public officials at the position of supervision and management, administrative officials at bureaus and departments, and public officials in charge of guidance and regulation to join the POWAs. The Government will continue to expand the eligibility scope of the POWA within the context of its objective, reflecting opinions of public officials at the lower level. Yet, public officials in charge of personnel, budget and confidential documents, etc., are restricted from joining the POWA according to the Act on the establishment and operation of the POWA. These restrictions were made for the following reasons: management-level officials are assigned to dictate and supervise, and thus participate in consultations in the same capacity as employers. This restriction on the participation of workers in charge of personnel, budget, and confidential documents, etc., at the POWA is to ensure the efficiency of the work of organizations and the independence of the POWA.
  2. 2 The recognition of the Public Officials' Union (POU)
  456. 456 The Government indicates that, under the basic principle agreed upon in February 1998 at the Tripartite Commission to allow the POU in phases, the Tripartite Commission set "Measures to Protect the Basic Labour Rights of Public Officials" as the discussion agenda for the year 2001. Relevant persons of the POWAs and the Ministry of Government Administration and Home Affairs (MOGAHA) were consulted twice on 16 and 30 March 2001 about the issue. Surveys were conducted on laws of other countries during the period of 1 May to 30 June 2001. "The Subcommittee on Basic Labour Rights of Public Officials", formed on 17 July 2001 at the Tripartite Commission, has discussed POWA problems, how to resolve them, forms and contents of legislation concerning the POU and timing for introduction of the POU. The Government firmly believes that the right of public officials to organize should be guaranteed as a basic labour right in line with international standards. However, opposing views exist on when and how to recognize this right. Thus, the Government will make a careful decision, considering general public opinion as well as the results of the discussions at the abovementioned subcommittee of the Tripartite Commission.
• Legalization of trade union pluralism at the enterprise level and establishment of a stable collective bargaining system
  457. 457 The Tripartite Commission on 9 February 2001 decided to put off the implementation of multiple trade unions at the enterprise level to the year 2007. The main reason for postponement was to have full preparation time. There was also some apprehension that a hasty enforcement of the system yet to be agreed by labour and management would cause confusion. The Government indicates that during this five-year period, it will make efforts to improve awareness and practices regarding multiple unions, and develop a bargaining system which is in line with internationally accepted standards and which fits with domestic labour and management relations, through discussions using various channels, including the Tripartite Commission. Moreover, the Commission will conduct research and surveys from 2002 on how to develop a new collective bargaining system under union pluralism while continuing the discussion. If tripartite agreement is reached on a new collective bargaining system, multiple unions may be introduced before 2007.
• Ban on the payment of wages to full-time union officials
  458. 458 With regard to section 24 of the Trade Union and Labour Relations Adjustment Act (TULRAA), which prohibits employers from remunerating full-time union officials as of 1 January 2002, the Government states that the entry into force of this provision, which is closely linked to the issue of legalizing trade union pluralism at the enterprise level, is also deferred for a period of five years. At the end of this five-year period, unions would, in principle, pay their full-time officials. In the meantime, the Government would form a fact-finding mission comprised of outside experts to conduct surveys from January to June 2002 on the number of union officials and the financial capacity of these unions. The Tripartite Commission’s subcommittee on labour relations would also discuss practical ways to improve the financial capacity of unions during this interim period.
• Right to strike in non-essential public services
  459. 459 The Government indicates that, a dispute in any of the essential public services contained in section 71(2) of the TULRAA could be referred to compulsory arbitration, resulting in the prohibition of the right to strike in that service. This does not mean, however, that all disputes in such services are automatically referred to compulsory arbitration. Moreover, inner-city bus services and banking services had been removed as of 1 January 2001 from this list of essential public services. Consequently, the remaining public services where the right to strike could be prohibited included railroad services (including intercity rail), water, electricity, gas supply, oil refinery and supply services, hospital services and telecommunications services. Discussions would continue in the Tripartite Commission’s Subcommittee on Labour and Management Relations on further modifying the scope of essential public services in line with ILO principles on freedom of association. However, according to the Government, it is improbable that services such as "oil refinery and supply services" will be removed from the list of essential public services in view of the impact that these services have on national security and the economy.
• Denial of dismissed and unemployed workers to keep their union membership and the ineligibility of non-members of trade unions to stand for office
  1. 1 On the recognition of the right of dismissed and unemployed workers to keep their union membership
  460. 460 The Tripartite Commission agreed on 28 September 1998 to recognize the right of displaced workers to join non-enterprise-level unions. The Government prepared a revised legislative bill and pushed forward legislation, but differences in opinions between relevant ministries delayed the legislation. Discussion has continued at meetings between the ruling party and the Government and with relevant ministers as well as the Tripartite Commission. But no agreement has been reached. The Government will work diligently to come up with an agreement through in-depth discussion and coordination between relevant ministries, and take subsequent measures following the agreement.
  2. 2 On the ineligibility of non-members of trade unions to stand for office
  461. 461 Article 23(1) of the TULRAA prescribes that union officials shall be elected among union members. The eligibility is restricted in order to ensure independence and the democratic operation of trade unions. The Tripartite Commission has discussed the issue of recognizing the right of displaced workers at non-enterprise-level unions to lower eligibility for members of industrial and regional trade unions to stand for office. The Government will review the issue based on input from the Tripartite Commission.
• The repeal of provisions concerning "Obstruction of business (section 314 of the Criminal Act)"
  462. 462 The Criminal Act of the Republic of Korea stipulates that those who interfere with the business of others by means of circulating false facts or threat of force shall be punished (section 314). The Supreme Court and the Constitutional Court ruled as follows in relation to industrial actions: collective action could be regarded as "threat of force". However, industrial action such as strikes do not fall under the definition of "obstruction of business" once they are conducted legally and peacefully in accordance with purposes, procedures, methods and means provided by labour laws with a view to conducting voluntary bargaining between labour and management for maintaining and improving working conditions. In these cases, the parties involved in industrial action will not be accountable for civil liability and their acts will not constitute "obstruction of business" under the Criminal Code. Illegal actions of union members subject to obstruction of business have not always been strictly punished. Each case was dealt with flexibly depending on the severity of violations. In particular, for cases of simple "obstruction of business" without violence, the accused is investigated without detention unless the case is exceptional in that a life or lives are harmed, personal safety or health is threatened, or the national economy is greatly influenced. At the same time, authorities have responded sternly to violent strikes which involve such acts as the destruction of production facilities, physical assault on workers not joining their action, illegal occupation of traffic roads, throwing of Molotov cocktails, or attacking police officers. These acts have been dealt with strictly in the name of keeping law and order since the majority of the public would otherwise suffer from the damages entailed; sovereign credibility and the national economy would also be badly affected. Even in cases of illegal actions, the Government has generously treated the accused under the principle of minimizing imprisonment by investigating those who simply joined the action without keeping them under detention and or booking them, as long as they are not the main instigators or players of the action.
• Repeal of section 40 of the TULRAA relating to the requirement to notify the Ministry of Labour the identity of third parties involved in collective bargaining and industrial disputes and the repeal of penalties contained in section 89(1) of the TULRAA for violation of the prohibition on persons not notified to the Ministry of Labour from intervening in collective bargaining or industrial disputes
  463. 463 The notification requirement is provided to prevent unjust interference by an unwanted third party and to guarantee voluntary problem-solving between trade unions and employers by clearly identifying which party will offer support. There have been no cases of penalties imposed under article 89 of the TULRAA. Moreover, the labour sector has not raised any issue about the provision recently. The discussion on the revision of the provision has therefore not proceeded. However, the Tripartite Commission will adopt the issue on its agenda and discuss it to respect ILO standards and recommendations. The Government will review relevant provisions of the law on the basis of discussion results.
• Joint research project with the ILO envisaged by the Government
  464. 464 The Government indicates that it plans to carry out a joint project with the ILO to come up with practicable and reasonable alternatives regarding institutional revision in industrial relations such as multiple unions at the enterprise level, payment of wages to full-time union officials, and the recognition of the right of dismissed and unemployed workers to keep their union membership.
• Factual aspects of the case
• Withdrawal of charges against Mr. Kwon Young-kil Young-kil, former KCTU president
  465. 465 Mr. Kwon Young-kil Young-kil, the former president of the Korean Confederation of Trade Unions (KCTU), was prosecuted for illegal intervention in industrial action such as the strike by the Seoul Metropolitan Subway Corporation Trade Union from June 1994 to November 1995. He was also charged with staging illegal and violent strikes including occupying traffic roads. At the Seoul District Court trial on 31 January 2001, he was sentenced to ten months’ imprisonment with a two-year stay of execution for violation of the Punishment of Violence Act, etc. The case is currently under trial on an appeal. Under the Korean Criminal Procedure Act, withdrawal of charges is only possible before the first sentence. Therefore, withdrawal of the charges against Mr. Kwon Young-kil Young-kil is technically impossible since his case has already passed the stage of the first trial.
• Outcome of appeals lodged against the judgements of the courts of first instance regarding the dismissal of 182 workers at the Sammi Specialty Steel Company and of six workers at the Dong-hae Company
  1. 1 Information of workers at the Dong-hae Company
  466. 466 When OMRON Automotive Electronics Korea took over part of Dong-hae Company on 20 March 1998, 176 out of 192 workers of the acquired company were employed by the acquiring company, seven remained at the parent company Dong-hae Inc., and the remaining nine demanded employment succession. On 30 September 1998, the nine workers applied for relief, based on unfair labour practices and unfair dismissal; six of whom were found to be dismissed unfairly, while three were found to be fairly dismissed. On 21 September 1999, OMRON Automotive Electronics Korea filed an appeal to the Seoul Administration Court after the National Labour Relations Commission’s ruling but lost suit. The company then appealed to the higher court on 28 September 2000, but lost the case. The case is pending at the Supreme Court after the company entered the final appeal. The Government has arranged meetings between labour and management to resolve the matter. The Government will continue to encourage labour and management to resolve this matter through dialogue before the court ruling is rendered. If agreement between the two sides is not reached, the Government will follow the court decision.
  2. 2 Information on workers at the Sammi Specialty Steel Company
  467. 467 The Supreme Court ruling on 27 July 2001 overturned the original verdict. The Supreme Court found that it was difficult to view Changwon Specialty Steel Company’s takeover of Sammi Specialty Steel Company’s Changwon plant as a business transfer or succession where a company’s personnel and resources are comprehensively transferred to another company. Thus, Changwon Specialty Steel Company has no obligation to succeed employment, though it has the obligation to pay Sammi Specialty Steel Company’s Changwon plant debt. By winning the case, Changwon Specialty Steel Company has no obligation to succeed employment of Sammi Specialty Steel Company’s Changwon plant workers.

C. The KCTU’s new allegations

1. 468. In a communication dated 8 June 2001, the KCTU asserts that the Government adopted the goal of "flexibilization of the labour market" which included efforts to scale back or repeal various welfare benefits at enterprise levels. In order to obtain the changes it had set as its goal, the Government began to intervene in the collective bargaining process, especially in the public sector. As a result, issues of working conditions, which should be concluded through collective bargaining between trade unions and employers, were dictated by the Government.
2. 469. In many public sector entities, such as government-owned utilities, government-funded bodies, government-invested enterprises or undertakings, the Government has used the power of budget allocation and supply or remittance of operational funds to circumvent or circumscribe the collective bargaining process or forced and pressured the parties (especially the trade union which represent the workers) to the collective bargaining process to "accept" retreats in working and employment conditions which are regulated through collective bargaining agreement. The KCTU asserts that government interference took the form of "directives" from the Ministry of Planning and Budget which is responsible for budgetary policies, including the management of various statutory funds, institutional innovation, budget formulation and execution, and reform of financial and administrative conduct of the public sector. The Ministry issues guidelines to all government-controlled, government-funded, government-invested entities for budget formulation. Each entity develops a budget plan based on the guidelines. These are adjusted, modified or refined by the Ministry for tabling at the National Assembly. The management of these entities draws up its budget, including those elements that directly affect working conditions without any consultation with trade unions. These entities hold the guidelines issued by the Ministry in higher authority than collective agreements adopted between unions and managements. This is rooted in the governmental institutional practice where the managers and the entities are penalized or reprimanded by the Ministry for failure to comply with the guidelines for budget formulation.
3. 470. The unilateral and coercive adjustment of working conditions by the direct order of the Government violates the domestic laws which guarantee the right to bargain collectively over working conditions. The action of the Government in withholding budget allocation to those entities which "refuse" or "fail" to comply with the directive (due to the trade unions’ success in upholding the collective bargaining agreement), resulting in non-payment of wages, is a serious infringement of the right to bargain collectively. These measures of the Government aim at two goals: achieving structural adjustment objectives and disempowering the trade unions. In fact, these two goals are intrinsic to the "labour market flexibility" agenda of the Government’s "reform" programme. The KCTU then proceeds to give detailed examples of infringements of the right to bargain collectively in workplaces under the jurisdiction of the Korean Federation of Transportation, Public and Social Services Workers’ Union, the Korean Health and Medical Industry Union, the Korean Teachers and Educational Workers’ Union (CHUNKYOJO), as well as the Korean Federation of Clerical and Financial Workers.
4. 471. The KCTU then alleges that the Government continues to deny government employees their trade union rights. More specifically, the KCTU explains that government employees’ works councils (Public Officials’ Workplace Associations -- POWAs) having decided to form a national federation, held an inaugural conference on 24 March 2001 to launch the Korean Association of Government Employees’ Works Councils (KAGEWC).
5. 472. According to the KCTU, the Government responded to the efforts of government employees with an all-out effort to thwart the initiative of the works councils. On 21 March, the Ministry of Government Administration and Home Affairs sent a letter to the management of the Yonsei University where the conference was planned to be held, requesting the management to "disallow the holding of the conference as it deemed the conference to be an activity of illegal organization". As a result, the Yonsei University withdrew its permission for the use of its auditorium just one day before the scheduled conference. Due to the sudden cancellation of the use of the auditorium at Yonsei University, the inaugural conference had to seek a new venue. When the conference began in an auditorium at the Seoul National University, obtained through the support of the student union, university officials under pressure from the officials of the Ministry of Government Administration and Home Affairs, cut off the electricity. The general secretary of Public Services International, who attended the inaugural conference in solidarity, had to shout his message in darkness under candlelight. The inaugural conference, which brought together 115 delegates from 72 "works councils", adopted a constitution. The constitution, which stipulates the aims, composition, organs, officers, duties and membership dues, sets the Association towards eventual unionization. The constitution outlines the basic areas of the Association’s work: (i) policy development and a campaign for the reform of the public service; (ii) promotion of the role of government officials for the development of the nation, society and community; (iii) improvement of the rights and welfare of government employees through securing basic labour rights and democratic rights; (iv) consolidation of organization and capacity; (v) education, publicity and publication activities; (vi) other activities needed to realize the aim of the organization. On the basis of article 5 of the constitution, the Association is composed of "government employees’ works councils" set up pursuant to section 2 of the "Act on the establishment and operation of Public Officials Workplace Associations". At the time of the formation, some 170 "works councils" were members of the Association, with a total membership of some 70,000 government employees. The inaugural conference elected the officers of the Association. Prior to the inaugural conference, the representatives of the works councils debated on the "structure" of the leadership of the organization and concluded that a unified leadership structure should be established to provide the Association with a clear mandate. The conference elected Cha Bong-cheun (representative of the works council at the National Assembly Secretariat) as its president.
6. 473. The KCTU asserts that the successful inaugural conference to form the KAGEWC was followed by a more shrill response from the Government. On 30 March 2001, the Ministry of Government Administration and Home Affairs sent a directive to all government offices to seek punishment of "those representatives of the works councils who have participated actively in planning and organizing the formation of the Association, including those who have been elected as officers or delegates to the Association" (a copy of this directive is attached to the complaint). Following the directive to the government offices, subpoenas were issued by the police against the leadership of the Association, including the elected officers and delegates. The subpoenas were issued on the basis of legal action initiated by the heads of government offices. The Government has publicly announced that all the leading members of the Association will be dismissed from their positions.
7. 474. Finally, the KCTU points out that a directive delivered on 29 December 2000 to all government offices from the Ministry of Government Administration and Home Affairs, belies the real attitude the Government has towards the works councils and their gradual transition to unionization (a copy of this directive is attached to the complaint). The directive identifies the examples and scope of "legal" and "illegal" activities, and those activities which should be encouraged. Legal activities, defined in the Act itself (article 5), are limited to "issues concerning the improvement of work environment", "issues concerning the improvement of work efficiency", "work-related individual complaints", and "other issues concerning the improvement of the work of the office". The first on the list of "illegal" activities is "lecture programmes or discussion fora on issues of unionization and other non-official work-related issues undertaken in the name of the research group in conjunction with trade union movement organizations". What is clear is that, the Government is "committed" to preventing the "works councils" themselves to undertake the efforts to prepare and build unions. The government employees and the works councils should refrain from efforts to prepare the introduction of government workers’ unionization. Initiatives taken by them will be deemed and punished as "illegal" activities.
8. 475. Regarding illegal strikes and the arrest and detention of trade unionists, the KCTU asserts that the number of trade unionists imprisoned over the three-and-a-half years that the Kim Dae-jung Government has been in office (528) easily surpasses the number imprisoned by the previous Government during its five years in office (507). As of 29 May 2001, the number of unionists held in prison was 50. True to a recognized pattern, the arrest, imprisonment, trial and release of trade unionists has been a fast "revolving door". Of the 89 unionists arrested and imprisoned up to 29 May 2001, almost half were released within five months of being arrested. This testifies to the fact that the Government uses this "legal repression"of trade unionists as a "quick fix" for solving its industrial disputes and structural adjustment problems.
9. 476. According to the KCTU, a unique feature of the arrest and imprisonment of trade unionists in 2001 is the inclusion of key leaders of non-KCTU trade unions, notably the Korean Financial Industry Workers’ Union (KFIU) which is affiliated to the Federation of the Korean Trade Unions (FKTU). KFIU president Lee Yong-deuk, and eight other leaders of the federation are serving two-and-a-half years to one-year prison terms for the strike in December 2000 against the government-led amalgamation of two major city banks.
10. 477. Another pronounced feature of the arrest and imprisonment of unionists this year is the frequent use of the charge "obstruction of business" (section 314 of the Criminal Code) against trade unionists. Of the 89 trade unionists arrested, charged and imprisoned this year, 60 per cent, that is, 53, were charged with obstruction of business which was the result, and not the cause of an illegal strike. However, nearly any industrial action could be determined to be illegal under Korean law. For example, the law stipulates that industrial action can only take place on issues related to working conditions such as wages, working hours and so on. Hence, if a union declares a strike even on matters closely related to these issues, this action is necessarily illegal thereby resulting in the charge of obstruction of business. The KCTU points out that most of the arrests of trade unionists -- leading to their imprisonment -- were undertaken in the context of disagreement between the Government, management and workers over the issue of restructuring.

D. The Government’s reply

1. 478. As regards the alleged infringement of public sector workers’ right to bargain collectively, the Government states that it is strongly pushing for reforms in all sectors of society -- including the corporate, finance and labour sectors -- based on the belief that enhancing national competitiveness is the utmost priority to overcome the economic difficulties that led to the IMF bailout fund. The Government adds that the reform drive in the public sector has continued through restructuring and management innovation with comparable force as with the private sector, with a view to making a small and efficient government. These efforts have led the majority of public corporations and government-subsidized entities to take specific measures such as abolishing the cumulative retirement allowance and the paid leave system, and improving the welfare and benefits system. However, some entities are under harsh criticism for their lax management in the retirement allowance, paid leave and welfare and benefits system. The Government is responsible for managing and supervising public corporations and state institutions funded by tax payers with a view to ensuring that funds are not wasted, management is improved and operations are efficient.
2. 479. In this context, as regards the allegation that the Ministry of Budget and Planning issued directives to government-subsidized entities relying on government budget outlays and that these measures negate trade unions’ rights to collective bargaining, the Government points out that these directives are purely meant to guide negotiations between labour and management and encourage employers to improve management, and not to directly decide on working conditions. In fact, working condition matters such as wage increases and the change in the welfare and benefits system have been concluded by collective agreements between labour and management. Under this practice, government-funded agencies have revised their systems through consultations between labour and management, which is clear evidence that the right to bargain collectively and conclude agreements will not be restricted or denied. Moreover, if a budget outlay proposed by the Ministry of Budget and Planning is not in line with a collective agreement concluded between labour and management of a government-funded agency, the collective agreement has priority over the budget plan. Employers who violate this principle are subject to penalties, a measure to ensure the effectiveness of collective agreements. The legitimacy of the Ministry’s directive on budget outlays was upheld by a Constitutional Court ruling: on the constitutional complaint of Ministry-issued guidelines on designing the budget, the Constitutional Court ruled that issuing guidelines is merely a supervisory function, not one intended to directly intervene or exercise force on collective bargaining. The Court also stated that, although the guidelines may indirectly influence the claimant, their issuance was only an exercise of the authority mandated to the Ministry.
3. 480. Regarding the allegation that the Government continues to deny government employees their trade union rights and that it obstructed the conference to launch the Korean Association of Government Employees’ Works Councils (KAGEWC), the Government contends that banning this conference, which was held on 24 March 2001, was inevitable and legitimate. The Government points out that members of KAGEWC decided, on 3 February 2001, to form a national federation of Public Officials Workplace Associations (POWAs) prohibited under the Act on the establishment and operation of the Public Officials Workplace Association, ignoring the discussion about the introduction of a trade union for government employees taking place at the Tripartite Commission, the established discussion channel. On 24 March 2001, members of the KAGEWC were engaged in collective action at Seoul National University in alliance with private organizations and labour unions. This action violates section 66 of the Act on public officials which strictly prohibits the collective action of public servants. The collective action of public officials has been punishable as an act disrupting social order in the Republic of Korea where tensions exist between North and South. Before the conference was held, the Government invited participants to restrain from illegal collective action a number of times, but never threatened them or thwarted the attempt by demanding the presence of police officers. Despite this call, participants pushed forth on holding the conference. On 24 March 2001, the Government asked Yonsei University to exercise prudence in allowing the rally based on the decision that droves of public officials breaching laws may negatively impact the maintenance of national order. Seoul National University initially allowed the conference to be held because it assumed it would be a students’ rally. When it belatedly realized the conference was an illegal rally, it switched off electricity supplies. It is noteworthy that the Government reported 12 KAGEWC leaders to authorities, not because they argued for the establishment of a public officials’ trade union, but because they violated the provision banning the collective action of public officials.
4. 481. As regards imprisoned trade unionists in the Republic of Korea, the Government states that, first of all, it should not be concluded that the Government has taken a hard-line attitude towards labour circles just because of an increase in the number of workers arrested. All factors, aspects and circumstances leading up to the arrests should be comprehensively considered, including modes, severity of offences and frequency of illegal industrial action. The Government points out that most of the arrested workers committed violent acts, resisted restructuring in the wake of the economic crisis or conducted radical, violent demonstrations by illegally occupying traffic roads, throwing Molotov cocktails or assaulting the police on official duty. Respecting the principle of minimizing arrests and imprisonment, the Government has taken lenient measures such that those joining the demonstrations, but neither leading violent nor committing radical acts, have been investigated without being detained or even charged.
5. 482. With respect to the allegation that most of the arrested workers were charged with "obstruction of business" under section 314 of the Criminal Code and that of the 89 unionists arrested this year, 53 (60 per cent) were dealt with by this provision. The Government states that it has rarely arrested workers for simple illegal strikes, provided there were no exceptional grounds which would entail causing direct damage or having significant impact on related industries. Of the 190 workers arrested up to September 2001, 16 workers were arrested for leading illegal strikes and violating the "obstruction of business" provision of the Criminal Code after consideration of the size of concerned workplaces and the negative effect these strikes would have on the national economy, even though violent acts were not committed. The remaining 174 workers were arrested for staging illegal strikes by occupying and destroying production facilities or conducting illegal, violent demonstrations by occupying downtown traffic roads, throwing Molotov cocktails and physically assaulting the police on official duty. Obstruction of business was only a part of their charges. Finally, regarding current developments in respect of the 50 arrested workers presented by the KCTU, the Government explains that of the four workers arrested before 2001, two were imposed a final sentence and are currently in jail (one of whom violated the National Security Law), and the remaining two were released either on parole or at the end of their prison terms. Of the 46 workers arrested in 2001: 33 were released on bail, had their sentence suspended or were fined (one of whom was released at the end of the prison term); four were imposed a final sentence and are currently in jail; the remaining nine are on trial (six of whom are in the first instance, two in the second instance and one in the Supreme Court).

E. The Committee's conclusions

1. 483. During its previous examination of the case, the Committee had reiterated its call, on all the parties, to act in good faith and expressed its firm hope that tripartite dialogue would continue on all the issues raised by it. The Committee would once again reiterate its call in this regard. The Committee proposes to review these various issues in light of the information provided by the Government.
   • Legislative issues
2. 484. With regard to the issue of the right to organize of public servants, the Committee notes that due to the measures taken by the Government to revitalize the activities of Public Officials’ Workplace Associations (POWAs), the latter had 78,000 members as of December 2001, up from 41,000 members in the same period of the previous year. While noting this information, the Committee observes that POWAs have been set up at only 333 offices out of 2,400 eligible workplaces. The Committee also refers to its previous comments on this subject [see 320th Report, para. 509; 324th Report, para. 402] i.e. that only 338,000 public servants out of a total of 930,000 are eligible to join these associations. As regards the Government’s contention that management-level officials are excluded from joining the POWAs because of the supervisory functions, the Committee is of the opinion that while public servants exercising senior managerial or policy-making responsibilities may be barred from joining organizations which represent other workers, such restrictions should be strictly limited to this category of workers and they should be entitled to establish their own organizations [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 230]. The Committee recalls however, that not only are public servants exercising managerial responsibilities prohibited from establishing their own organizations but that large categories of public servants are excluded from joining POWAs. In effect, the Committee had previously noted with concern [see 309th Report, para. 144; 320th Report, paras. 509 and 510] that in addition to public servants from grades 1 to 5, public servants involved in personnel and confidential work, budgeting and accounting, receiving and distributing goods, supervising general service staff, secretarial work, guarding security facilities and driving passenger cars or ambulances were excluded from joining POWAs. In view of the restrictions on the right to associate of a wide range of public servants, the Committee would, once again, draw the Government’s attention to the fundamental principle that all public service employees, with the sole possible exception of the armed forces and the police, should be able to establish organizations of their own choosing to further and defend the interests of their members [see Digest, op. cit., para. 206]. The Committee would therefore request the Government to continue to extend the right of association to all those categories of public servants who should enjoy this right in accordance with freedom of association principles.
3. 485. Furthermore, the Committee notes the Government’s statement that the right to organize of public servants was one of the issues on the agenda of the Tripartite Commission for discussion during the year 2001. Accordingly, the Subcommittee on the Basic Labour Rights of Public Officials was established on 17 July 2001 to discuss the form and contents of legislation concerning the Public Officials’ Union (POU) as well as the timing for the introduction of the POU. The Committee further notes that while the Government firmly believes that the right of public officials to organize should be guaranteed as a basic labour right, opposing views exist on when and how to recognize this right. Hence, the Government will make a careful decision, taking into account general public opinion as well as the outcome of the discussions at the abovementioned Subcommittee. In this respect, the Committee would recall that the denial of workers in the public sector to set up trade unions, where this right is enjoyed by workers in the private sector, with the result that their "associations" do not enjoy the same advantages and privileges as "trade unions", involves discrimination as regards government-employed workers and their organizations as compared with private sector workers and their organizations. Such a situation gives rise to the question of compatibility of these distinctions with freedom of association principles according to which workers "without distinction whatsoever" shall have the right to establish and join organizations of their own choosing without previous authorization [see Digest, op. cit., para. 216]. The Committee would recall further that the right to organize does not necessarily imply the right to strike which may be prohibited in the public service for public servants exercising authority in the name of the State or in essential services in the strict sense of the term, i.e. services whose interruption would endanger the life, personal safety or health of the whole or part of the population. Consequently, the Committee requests the Government to continue to take steps to recognize, as soon as possible, the right to establish and join trade union organizations for all public servants who should enjoy this right in accordance with freedom of association principles.
4. 486. Regarding the issue of the legalization of trade union pluralism at the enterprise level, the Committee had deeply regretted during its previous examination of the case that the Government had postponed the recognition of trade union pluralism for an additional five years until the year 2007 [see 324th Report, para. 403]. The Committee notes the Government’s statement that this decision was taken in view of the fact that both workers and employers in the country were not fully prepared to have trade union pluralism at the workplace from 2002, as had been originally planned, in the absence of agreement on the introduction of a suitable collective bargaining system. In this regard, the Government indicates that it intends, during this five-year period, to make efforts to improve awareness of practices in other countries regarding multiple unions and develop a bargaining system which is both in line with internationally accepted standards and which fits with domestic constraints. If tripartite agreement is reached on a new collective bargaining system, then multiple unions may be introduced before 2007. In this regard, the Committee notes that the Government plans to carry out a joint research project with the ILO to come up with practicable alternatives regarding institutional revision in industrial relations such as multiple unions at the enterprise level. The Committee requests the Government to speed up the process of legalizing trade union pluralism at the enterprise level with a view to promoting the implementation of a stable collective bargaining system.
5. 487. As regards the prohibition of payment by employers of wages to full-time union officials, the Committee notes the Government’s statement that this ban, which is closely linked to the issue of legalizing trade union pluralism at the enterprise level and which was initially planned to come into force as of 1 January 2002, has also been deferred for a period of five years. At the end of this five-year period, unions would in principle pay their full-time officials. Recalling that the payment of wages to full-time union officers by employers should not be subject to legislative interference, the Committee requests the Government to ensure that this matter is resolved in conformity with freedom of association principles.
6. 488. Regarding the scope of essential public services, currently listed in section 71(2) of the TULRAA, where the right to strike could be prohibited, the Committee notes with interest that inner-city bus services and banking services were removed from this list as of 1 January 2001. Consequently, the remaining public services where the right to strike could be prohibited include railroad services (including intercity rail), water, electricity, gas supply, oil refinery and supply services, hospital services and telecommunications services. The Committee considers that railroad services, the subway and the petroleum sector which remain on this list do not constitute essential services in the strict sense of the term whose interruption would endanger the life, personal safety or health of the whole or part of the population. They constitute, however, in the circumstances of this case, public services where a minimum service which is negotiated between the trade unions, the employers and the public authorities 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. Noting the Government’s statement that discussions will continue in the Tripartite Commission on further modifying the scope of essential public services in line with ILO principles on freedom of association, the Committee would request the Government to further amend the list of essential public services contained in section 71 of the TULRAA so that the right to strike may be prohibited only in essential services in the strict sense of the term.
7. 489. With regard to the lifting of the ban on third-party intervention in collective bargaining and industrial disputes, the Committee notes the information furnished by the Government to the effect that the purpose of the notification of the identity of third parties to the Ministry of Labour under section 40(1)(3) of the TULRAA is merely to assist the Government identify those persons who assist the unions or employers. This provision was designed to ensure the autonomous settlement of disputes by excluding third parties whose intervention was not wanted either by labour or management. Moreover, while section 89(1) of the TULRAA did subject non-notified persons to criminal sanctions, this provision had not been applied in practice. In this respect, the Committee would recall that it had previously considered the notification requirement contained in section 40(1)(3) of the TULRAA to be onerous on unions and unjustified, especially in the light of the prohibition contained in section 40(2) of the TULRAA on non-notified persons from intervening in collective bargaining or even making any comments about an industrial dispute [see 309th Report, para 147; 320th Report, para. 511]. Moreover, it had appeared to the Committee that this notification requirement was not a pure formality since non-notified persons who intervened in collective bargaining were liable to a maximum penalty of three years’ imprisonment and/or 30 million won in fines (section 89(1) of the TULRAA). The Committee had considered that such provision entailed serious risks of abuse and were a grave threat to freedom of association. The Committee deplores that no measures have been taken to give effect to the Committee’s recommendation in this matter. In this respect, the Committee notes the Government’s statement that it will ensure that this issue is put on the agenda of the Tripartite Commission and discussed in the light of the ILO’s recommendations. Noting that the Government will review the relevant provisions of the law on the basis of the results of that discussion, the Committee once again requests the Government to repeal the notification requirement contained in section 40 of the TULRAA as well as the penalties provided for in section 89(1) of the TULRAA for violation of the prohibition on persons not notified to the Ministry of Labour from intervening in collective bargaining or industrial disputes.
8. 490. With regard to the provisions in the TULRAA concerning the denial of the dismissed and unemployed workers to keep their union membership and the ineligibility of non-members of trade unions to stand for office (sections 2(4)(d) and 23(1), respectively, of the TULRAA), the Committee considers that the determination of conditions of eligibility of union membership or union office is a matter that should be left to the discretion of union by-laws and the public authorities should refrain from any intervention which might impair the exercise of this right by trade union organizations. The Committee, noting that the legislative process concerning the issue of dismissed trade union officials maintaining their membership is on hold, requests the Government to repeal the provisions concerning the denial of dismissed and unemployed workers to keep their union membership and the ineligibility of non-members of trade unions to stand for office (sections 2(4)(d) and 23(1) of the TULRAA).
9. 491. As regards the term "obstruction of business" under section 314 of the Criminal Code, the Committee had previously noted that the legal definition of this term was so wide as to encompass practically all activities related to strikes [see 324th Report, para. 405]. The Committee notes the Government’s statement that strikes do not fall under the definition of obstruction of business "once they are conducted legally and peacefully in accordance with the purposes, procedures, methods and means provided by labour laws with a view to conducting voluntary bargaining between labour and management for maintaining and improving working conditions" (emphasis added). In this respect, the Committee notes that the KCTU alleges that nearly any industrial action could be determined to be illegal under Korean law which stipulates that industrial action can only take place on issues related to working conditions such as wages, working hours and so on. Hence, if a union declares a strike even on matters closely related to theses issues, this action is necessarily illegal thereby resulting in the charge of obstruction of business. In this regard, the Committee notes that the Government does acknowledge that certain workers were arrested for leading illegal strikes and violating section 314 of the Criminal Code, taking due account of the size of the workplaces concerned and the negative impact on the national economy, even though violent acts were not committed.
10. 492. In this regard, the Committee is bound to recall, as it has done previously [see 320th Report, para. 526], that the occupational and economic interests which workers defend through the exercise of the right to strike do not only concern better working conditions or collective claims of an occupational nature, but also the seeking of solutions to economic and social policy questions and problems facing the undertaking which are of direct concern to the workers. Organizations responsible for defending workers’ socio-economic and occupational interests should be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and standards of living. Hence, the right to strike should not be limited solely to industrial disputes that are likely to be resolved through the signing of a collective agreement; workers and their organizations should be able to express in a broader context, if necessary, their dissatisfaction as regards economic and social matters affecting their members’ interests [see Digest, op. cit., paras. 479, 480 and 484]. Recalling that the charge of obstruction of business carries extremely heavy penalties (maximum sentence of five-years’ imprisonment and/or a fine of 15 million won), the Committee emphasizes that such a situation is not conducive to a stable and harmonious industrial relations system and once again requests the Government to bring section 314 of the Criminal Code in line with freedom of association principles.
11. 493. As regards developments in the Tripartite Commission, the Committee notes that discussions took place in the Commission or various subjects and that the Subcommittee on Labour Relations selected as items for discussion for its 2001 agenda some issues which have been the object of its previous comments. The Committee notes however, that some progress has been made only in respect of one of these issues, namely the amendment of the scope of essential public services. The Committee firmly hopes that the Tripartite Commission will accelerate its work and will come up rapidly with concrete proposals, in line with freedom of association principles, on all these outstanding issues. It requests the Government, once again, to keep it informed of the outcome of the deliberations within the Tripartite Commission.
12. 494. Related to the immediately preceding point and recalling that, as early as June 1996 [see 304th Report, para. 254(e)], it had requested the Government to ensure that proposed amendments to labour-related legislation no longer be delayed, the Committee once again requests the Government to speed up the legislative process with a view to amending all the provisions mentioned above in line with freedom of association principles. The Committee reminds the Government in this regard that it may avail itself of the technical assistance of the Office. The Committee requests the Government to provide information on any measure taken to give effect to the Committee’s recommendations on the legislative aspects of this case.
    • Factual issues
13. 495. The Committee notes with regret that the Government states that it is not possible to drop the charges pending against Mr. Kwon Young-kil, former President of the KCTU. During its previous examination of this case [see 324th Report, para. 409], the Committee had deeply regretted to note that the Government continued to press charges against Mr. Kwon Young-kil who was convicted by the Seoul District Court for violating the prohibition of third party intervention in industrial disputes and was sentenced to ten months imprisonment with a two-year stay of execution. Recalling that the prohibition of third party intervention in industrial disputes is incompatible with freedom of association principles, the Committee once again urges the Government to ensure the dropping of all charges brought against Mr. Kwon Young-kil, concerning events that occurred before the January 1997 strikes as a result of his trade union activities. It requests the Government to keep it informed of the outcome of Mr. Kwon’s appeal against the judgment issued by the Seoul District Court.
14. 496. Regarding the alleged unfair dismissal of 182 workers at the Sammi Specialty Steel Company, the Committee notes that the Supreme Court ruled on 27 July 2001 that the Changwon Specialty Steel Company’s takeover of the Sammi Specialty Steel Company’s Changwon plant did not constitute a "merger and acquisition" and therefore did not trigger employment succession obligations on the part of the Changwon Company. The Committee takes note of this information.
15. 497. As regards the alleged unfair dismissal of six workers at the Dong-hae Company, the Committee notes that the competent courts ruled that the takeover by OMRON Automotive Electronics Korea part of Dong-hae company constituted a "merger and acquisition", triggering employment succession obligations on the part of the Omron company. The case is pending at the Supreme Court after the company entered the final appeal. The Committee further notes the initiatives taken by the Government in this context, including its attempts at maintaining social dialogue between labour and management, and encourages it to continue pursuing its efforts in this direction. The Committee requests the Government to keep it informed of the outcome of the appeal lodged by the OMRON company to the Supreme Court.
    • The KCTU’s new allegations
16. 498. The Committee notes that the KCTU’s new allegations concern infringements of public sector workers’ right to bargain collectively, the continuing denial of trade union rights for government employees as well as the arrest and detention of trade union leaders and activists.
17. 499. As regards alleged infringements of public sector workers’ right to bargain collectively, the KCTU asserts that in many public sector entities, such as government-owned utilities, government-funded bodies, government-invested enterprises or undertakings, the Government has used the power of budget allocation and supply or remittance of operational funds to pressure the parties to the collective bargaining process to "accept" retreats in working and employment conditions which are normally regulated through collective bargaining. According to the KCTU, government interference takes the form of "directives" from the Ministry of Planning and Budget which issues guidelines to all government-controlled and government-funded entities for budget formulation. The KCTU alleges that the management of these entities draws up its budget, including those elements that directly affect working conditions without any consultation with the unions. This is due to the fact that the managers and the entities are penalized by the Ministry for failure to comply with the Ministry’s guidelines for budget formulation. The KCTU contends that the action of the Government in withholding budget allocation to those entities which fail to comply with the Ministry’s directive (due to the trade unions success in upholding the collective bargaining agreement), resulting in non-payment of wages, is a serious infringement of the right to bargain collectively.
18. 500. The Committee notes that the Government refutes these allegations, indicating that these directives are purely meant to guide negotiations between labour and management and encourage employers to improve management, and not to directly decide on working conditions. In fact, working condition matters such as wage increases and the change in the welfare and benefits system have been concluded by collective agreements between labour and management. Under this practice, government-funded agencies have revised their systems through consultations between labour and management, which is clear evidence that the right to bargain collectively and conclude agreements have not been restricted or denied. Moreover, if a budget outlay proposed by the Ministry of Budget and Planning is not in line with a collective agreement concluded between labour and management of a government-funded agency, the collective agreement has priority over the budget plan. Employers who violate this principle are subject to penalties, a measure to ensure the effectiveness of collective agreements. Finally, the Government states that the legitimacy of the Ministry’s directive on budget outlays was upheld by a Constitutional Court ruling: on the constitutional complaint of Ministry-issued guidelines on designing the budget, the Constitutional Court ruled that issuing guidelines is merely a supervisory function, not one intended to directly intervene in collective bargaining.
19. 501. The Committee, for its part, notes that there is a glaring contradiction between the KCTU’s and the Government’s description of public sector collective bargaining in Korea. In view of this discrepancy, the Committee would recall the following principles. The Committee recalls that all public service workers other than those engaged in the administration of the State should enjoy collective bargaining rights and priority should be given to collective bargaining as the means to settle disputes arising in connection with the determination of terms and conditions of employment in the public service. However, the Committee is aware that collective bargaining in the public sector calls for verification of the available resources in the various public bodies or undertakings, that such resources are dependent on State budgets and that the period of duration of collective agreements in the public sector does not always coincide with the duration of the state Budgetary Law -- a situation which can give rise to difficulties. Irrespective of any opinion expressed by the financial authorities, the bargaining parties should be free to reach an agreement of their own choosing; if this is not possible, any exercise by the public authorities of their prerogatives in financial matters which hampers the free negotiation of collective agreements is incompatible with the principle of freedom of collective bargaining. In the light of the above, provision should be made for a mechanism which ensures that, as regards the collective bargaining process in state-owned enterprises, both the trade union organizations and employers are adequately consulted and may express their points of view to the financial authority responsible for the wage policy of state-owned enterprises [see Digest, op. cit., paras 893 and 898].
20. 502. With regard to the allegation that the Government continues to deny government employees their trade union rights and that it obstructed the conference to launch the Korean Association of Government Employees’ Works councils (KAGEWC), the Committee notes that the Government does not dispute this allegation. Rather the Government contends that banning this conference, which was held on 24 March 2001, was inevitable and legitimate. The Government points out that it deemed the holding of the inaugural conference to be the activity of an illegal organization since it violated the Act on public officials. The Committee must express its concern over these developments since it has reminded the Government on several occasions -- first, in Case No. 1629 [see 286th Report, paras. 558-575; 291st Report, paras 416-426; and 294th report, paras. 259-275] and then in Case No. 1865 [see 304th Report, paras. 242-254; 306th Report, paras. 295-346; 307th Report, paras. 177-236; 309th Report, paras. 120-160; and 311th Report, paras. 293-339] -- that current legislation governing public servants which denies them the right to organize is contrary to freedom of association principles. Furthermore, from the aforementioned events, as well as two Directives issued by the Ministry of Government Administration and Home Affairs (MOGAHA) (see Appendices I and II), it is clear to the Committee that the KAGEWC is deemed to be illegal by the Government because one of its aims, as set forth in its constitution, is unionization. Regretting this serious setback for the recognition of the right to unionize of public servants, the Committee urges the Government to ensure that KAGEWC’s activities are no longer hindered in future. Furthermore, the Committee notes the allegations -- to which the Government does not respond -- that on 30 March 2001, MOGAHA sent a directive (see Appendix II) to all Government offices to seek reprisals against those representatives of KAGEWC who actively participated in planning and organizing its formation. The Committee requests the Government to indicate whether any KAGEWC leaders or members were dismissed and/or sanctioned pursuant to its formation as alleged, and if so, to take the necessary measures to ensure that they are immediately reinstated in their jobs. The Committee asks the Government to keep it informed of progress made in this regard.
21. 503. As regards the arrest and detention of trade unionists, the Committee notes that 89 unionists were arrested and imprisoned up to May 2001 and that, as of 29 May 2001, the number of unionists held in prison was 50 (see Appendix III). The Committee notes although the Government does not deny the arrest and detention of these 50 unionists, it indicates that a total of 190 workers were arrested and detained as of September 2001. The Committee notes with serous concern that since the presentation of the KCTU’s new allegations dated 8 June 2001 (and according to which 89 unionists were arrested), an additional 101 unionists appear to have been arrested and detained as of September 2001. The Committee requests the Government to indicate the total number of unionists who were arrested and detained in 2001 as well as the charges brought against them.
22. 504. The Committee also notes that the reasons given by the KCTU and the Government respectively for the arrests and detentions of the 50 unionists (see Appendix III) as of 29 May 2001, widely differ. According to the KCTU, the arrests of trade unionists leading to their imprisonment – were undertaken in the context of disagreement between the Government, management and workers over the issue of restructuring. The Government contends, however, that the majority of the 190 unionists were arrested and detained for staging illegal strikes by occupying production facilities or conducting illegal demonstrations by obstructing traffic, or physically assaulting the police on duty. According to the Government, obstruction of business was only a part of their charges.
23. 505. In this regard, the Committee must note with serous concern that it has examined the phenomenon of police intervention in activities linked to collective labour disputes -- on grounds of defending national law and order as well as the national economy -- leading to the large-scale arrest and detention of workers on various occasions in the past in the Republic of Korea. While noting that reliance on police intervention in labour disputes is the result of the Government placing a heavy emphasis on the security and stability of the country, the Committee is of the view that this sort of action only serves to aggravate industrial disputes. This point of view appears to be borne out by the complainant’s assertion which is not disputed by the Government that the number of unionists arrested or detained in 2001 has increased dramatically in comparison to previous years. The Committee is convinced that it will not be possible for a stable industrial relations system to function harmoniously in the country as long as trade unionists are the subject of arrests and detentions. In view of the deteriorating social climate prevailing in the country, the Committee believes it would be particularly appropriate for the authorities to pursue measures which would allow for the building of an industrial relations system based on a climate of confidence. The Committee therefore urges the Government to take the appropriate measures so that the persons detained or on trial, as a result of their trade union activities, are released or that the charges brought against them are dropped. In the case of persons charged with violence or assault, the Committee asks the Government to ensure that these charges are dealt with as soon as possible. It requests the Government to provide information concerning measures taken on all these points.

The Committee's recommendations

1. 506. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) As regards the legislative aspects of this case, the Committee requests the Government:
   • (i) to continue to extend the right of association to all those categories of public servants who should enjoy this right in accordance with freedom of association principles;
   • (ii) to continue to take steps to recognize, as soon as possible, the right to establish and join trade union organizations for all public servants who should enjoy this right in accordance with freedom of association principles;
   • (iii) to speed up the process of legalizing trade union pluralism at the enterprise level with a view to promoting the implementation of a stable collective bargaining system;
   • (iv) to ensure that the payment of wages to full-time union officers by employers is not subject to legislative interference;
   • (v) to further amend the list of essential public services contained in section 71 of the Trade Union and Labour relations Adjustment Act (TULRAA) so that the right to strike is prohibited only in essential services in the strict sense of the term;
   • (vi) to repeal the requirement, contained in section 40 of the TULRAA, to notify to the Ministry of Labour the identity of third parties in collective bargaining and industrial disputes as well as the penalties contained in section 89(1) of the TULRAA for violation of the prohibition on persons not notified to the Ministry of Labour from intervening in collective bargaining or industrial disputes;
   • (vii) to repeal the provisions concerning the denial of the right of dismissed and unemployed workers to keep their union membership and the ineligibility of non-members of trade unions to stand for office (sections 2(4)(d) and 23(1) of the TULRAA);
     • (viii) to bring section 314 of the Penal Code (obstruction of business) in line with freedom of association principles;
   • (ix) to speed up the work of the Tripartite Commission and to keep the Committee informed of the outcome of the deliberations within the Tripartite Commission on all the above issues, which the Committee firmly hopes will be examined and resolved quickly in accordance with freedom of association principles;
   • (x) to speed up the legislative process with a view to amending all the provisions mentioned above in line with freedom of association principles. The Committee reminds the Government in this regard that it may avail itself of the technical assistance of the Office. The Committee requests the Government to provide information on measures taken to give effect to the above recommendations and to keep the Committee informed thereon.
   • (b) As regards the factual aspects of this case:
   • (i) the Committee once again urges the Government to ensure the dropping of charges brought against Mr. Kwon Young-kil, former president of the KCTU, in connection with his legitimate trade union activities, and requests it to keep it informed of the outcome of Mr. Kwon Young-kil’s appeal against the judgment issued by the Seoul District Court;
   • (ii) the Committee requests the Government to keep it informed of the outcome of the appeal lodged by OMRON Automotive Electronics Korea to the Supreme Court regarding the dismissal of six workers at the Dong-hae Company, and encourages the Government to continue pursuing efforts towards maintaining social dialogue between labour and management on this issue.
   • (c) As regards the KCTU’s new allegations contained in a communication dated 8 June 2001:
   • (i) the Committee urges the Government to ensure that the activities of the Korean Association of Government Employees’ Works Councils (KAGEWC) are no longer hindered in future. The Committee requests the Government to indicate whether any KAGEWC leaders or members were dismissed pursuant to its formation, as alleged, and if so, to take the necessary measures to ensure that they are immediately reinstated in their jobs. The Committee asks the Government to keep it informed of progress made in this regard;
   • (ii) the Committee requests the Government to indicate the total number of unionists who were arrested and detained in 2001 as well as the charges brought against them. The Committee urges the Government to take the appropriate measures so that the persons detained or on trial as a result of their trade union activities, are released, or that the charges brought against them are dropped. In the case of persons charged with violence or assault, the Committee asks the Government to ensure that these charges are dealt with as soon as possible. It requests the Government to provide information concerning measures taken on all these points.
   • (d) The Committee once again reiterates its call, on all the parties, to act in good faith and expresses its firm hope that tripartite dialogue will continue on all issues raised in this case. The Committee calls on all parties to exercise restraint in pursuing activities linked to collective labour disputes.

Appendix I

1. Ministry of Government Administration and Home Affairs
2. Ref.: Bokjo 12140-340
3. Date: March 21, 2001
4. To: President, Yonsei University
5. C.C.: Director, Student Welfare Office; Manager, Student Support Division
6. Re.: Request to prohibit the use of facilities by an illegal organization
7. 1. We express our gratitude for your cooperation in the promotion of the state policies.
8. 2. While many people of the country are concerned about illegal collective mass action by some groups, some public officials are intent on forming an organisation that is prohibited by the law and are showing signs of undertaking illegal collective activities such as calling for the introduction of trade unions for public officials. As a result, there is a need to prevent this and establish a strong discipline within the government offices.
9. 3. The government, therefore, is undertaking all that is possible to prevent the undertaking of illegal activities by some public officials; but despite this, an organisation in the name Korean Association of Government Employees Works Councils is reported to be planning to hold an illegal gathering in the Main Auditorium of the College of Commerce and Economics of your university to propose the labour movement of public officials.
10. 4. We call on your cooperation in prohibiting the use of your facilities and preventing the entry of related persons so that the sacrosanct space of a university is not used for such illegal activities.
11. Minister, Ministry of Government Administration and Home Affairs
12. Appendix II
13. Ministry of Government Administration and Home Affairs
14. Ref.: Bokjo 12140-386
15. Date: March 30, 2001
16. To:
17. C.C.: Manager, Administration Division
18. Re.: Cooperation in undertaking measures in response to the formation of the Korean Association of Government Employees Works Councils
19. 1. This is related to the previous directives in Bokjo 12140-286 ( Feb. 26, 2000), Bokjo 12140-1270 (Sept. 20, 2000), Bokjo 12140-1736 (Dec. 29, 2000), and Bokjo 12140-270 (March 3, 2001).
20. 2. Despite the directive to undertake administrative measures including disciplinary actions in relation to the decision of some of ten representatives of Public Officials Workplace Associations on February 3 at the constitutional Government Centre of the national Assembly, representatives of some workplace associations gathered in a large auditorium in the College of Natural Sciences, Seoul National University on March 24 to form the Korean Associations of Government Employees Works Councils, and elected a president and a number of vice-presidents and are set on pushing ahead with illegal activities like calling for unionisation.
21. 3. These activities, which corrupt the discipline within the government offices and damage public interest, are in violation of the provisions prohibiting collective action except for the conduct of public duty (Article 66, State Public Officials Act, and Article 58, Local Public Officials Act) and the provision prohibiting the formation of amalgamated association (Article 2, Enforcement Decree of the Act on the Establishment and Operation of Public Officials Workplace Associations) and are thus subject to administrative and legal measures.
22. 4. Thus, the heads of unit offices are directed to undertake disciplinary actions and other necessary measures against the representatives of Public Officials Workplace Associations who have actively engaged in the planning and organising of the Korean Association of Government Employees Works Councils, including being elected as officers or delegates.
23. Enclosed: List of leading members in the organisation of the Korean Association of Government Employees Works Councils.
24. Minister, Ministry of Government Administration and Home Affairs
25. Appendix III
26. List of Trade Unionists Held in Detention (Awaiting Trial) and Imprisoned (Serving Prison Sentence) as of 29 May 2001 provided by the KCTU
27. Detained before 2001
28. Name Position/Union Accused of/charged with Date and length of sentence upon conviction
29. Kim Kyung-hwan KPU, Monthly Mahl NSA 4 yr. 6 mth.
30. Chu Young-ho KWWF, fmr President Daewoo Motors Workers Union Strike, OB 1 yr. 6 mth.
31. Kim Han-sang KPSU, National Social Insurance Strike, OB 4 yrs.
32. Kang Jin-Kwon KCTU Seoul Council North District Solidarity demonstration, OB 1 yr.
33. Detained in 2001
34. Name Position/Union Accused of/charged with Date and length of sentence upon conviction
35. Kim Chul-hong FKTU-KFIU, Housing and Commercial Bank Pres. Strike, OB 2yr. 6 mth.
36. Lee Kyung-soo FKTU-KFIU, Kookmin Bank Strike, OB 1 yr.
37. Yoon Jin-yeul Samsung Dismissed Workers Group Solidarity demonstration, LAD Trial
38. Kim Jae-wook Community Organizer, KCTU National Workers Rally LAD Trial
39. Lee Jeong-lim Organizing Director, KCTU Daegu Council LAD Trial
40. Hwan Kyu-seup KPSU-Korea Science and Technology Institute Strike, OB 1 yr. 6 mth.
41. Jeong Sang-Cheul KPSU-Korea Science and Technology Institute Strike, OB 1 yr. 6 mth.
42. Kim Kwong-je KMWF-Daewoo Motors Strike, OB 1 yr. 6 mth.
43. Lee Beum-yeun KMWF-Daewoo Motors Strike, OB 1 yr.
44. Namkung Won Daewoo Taskforce, Daewoo solidarity LPUMC Trial
45. Kim Dong-kwon KPSU-KT Atypical Workers Daewoo solidarity, LAD, LPUMC Trial
46. Noh Eui-hak KFCWU-Daegu Textile Workers Union Daewoo Solidarity, LPUMC 1 yr. 6 mth.
47. Lee Yong-deuk FKTU-KFIU President Strike, OB 2 yr. 6 mth.
48. Hong Joon-pyo KPSU-KT Atypical Workers Strike 2 yr. 6 mth.
49. Shin Kwong-hoon KPSU-National Health Insurance March 31 workers rally, OPLE Trial
50. Jeung Doh-Keun Construction worker March 31 Workers rally, OPLE Trial
51. Jang Byung-je KMWF-Daewoo Motors Strike, OPLE-trying to enter union office Trial
52. Seung Sam-yong KMWF-Daewoo Motors Strike OPLE-trying to enter union office Trial
53. Yoo Beum-hyun Plus Co., International Socialists case NSA Trial
54. Yang Kyu-heon KCTU, former vice president 3rd Party 1 yr.
55. Kim Dong-mahn FKTU-KFIU Organizing and Action Director Strike, OB 1 yr.
56. Deek Dae-jin FKTU-KFIU Housing and Commercial Bank Vice-President Strike, OB 01, 2 yr.1 yr. 2 mth.
57. Park Dae-joon FKTU-KFIU Housing and Commercial Bank Org. Director Strike, OB. 1 yr. 6 mth.
58. Seo Seung-bong FKTU-KFIU Housing and commercial Bank Strike, OB. 1 yr. 6 mth.
59. Nah Kyung-hoon FKTU-KFIU Housing and Commercial Bank Strike OB 2 yr.
60. Kim Ki-joon FKTU-KFIU General Secretary Strike, OB 1 yr.
61. Nam Kyu-won KCTU-Dismissed Workers Committee Demonstration Trial
62. Hong Seok-hoon KFCIU Construction Transportation Workers Union Demonstration Trial
63. Park Hyun-jung KFCWU Hyoshung president CBA strike Trial
64. Kim Pil-ho KFCWU Hyoshung first vice-president CBA strike Trial
65. Kim Choong-yeul KFCWU Hyoshung vice-president CBA strike Trial
66. Lee Kyung-seok KMWF carrier Atypical Workers Union, president Strike, OB Trial
67. Kim Nam-kyun KMWF carrier Atypical Workers Union, education director Strike, OB Trial
68. Lee Shi-young KMWF Carrier Atypical Workers Union, organising director Strike, OB Trial
69. Kim Kyung-min KMWF Daewoo Maintenance Daewoo solidarity, strike LPUMC Trial
70. Noh Chang-yong KMWF Daewoo Maintenance Daewoo solidarity, strike LPUMC Trial
71. Kim Jae-seong KMWF Daewoo Maintenance Daewoo solidarity, strike LPUMC Trial
72. Kim Ho-kyun KMWF Daewoo Maintenance Daewoo solidarity, strike LPUMC Trial
73. Kim Seok KMWF Carrier Atypical Workers Union Strike, OB Trial
74. Shin Kun-seok KMWF Carrier Atypical Workers Union Strike, OB Trial
75. Koh Kwong-san KMWF Carrier Atypical Workers Union Strike, OB Trial
76. Lee Neung-bok Solidarity action in support of Carrier Atypical Workers Union Trail
77. Shin Cheun-seup KMWF Korean metal Workers Union Tong-il Heavy Industry Daewoo solidarity, OPLE Trial
78. Moon kyung-keun KMWF Lotte Machine Engineering Daewoo solidarity, strike LPUMC Trial
79. Song Jin-woo KMWF Lotte Machine Engineering Daewoo solidarity, strike LPUMC Trial
80. Kwon Ho-chul KMWF Daewoo Strike Trial
81. Acronyms
82. A. Organizations
83. KPU Korean Press Industry Workers Union (KCTU)
84. KMWF Korean Metal Workers Federation (KCTU)
85. KPSU Korean Federation of transportation, Public and Social Services Unions (KCTU)
86. KCTU Korean Confederation of Trade Unions
87. FKTU Federation of Korean Trade Unions
88. KFIU Korean Financial Industry Workers Unions (FKTU)
89. KFCIU Korean Federation of Construction Industry Workers Unions (KCTU)
90. KFCWU Korean Federation of Textile and Chemical Workers Unions (KCTU)
91. B. Laws
92. NSA National Security Act
93. OB "Obstruction of Business" (section 314, Criminal code)
94. LAD Law on Assembly and Demonstration
95. LPUMC Law on Punishment of Use of Molotov Cocktail
96. OPLE "Obstruction of Public Law Enforcement" (section 136, Criminal Code)
97. Third Party "Prohibition of Third Party Intervention" (a provision of now non-existent Labour Disputes Adjustment Act, revised and incorporated into the new Trade Union and Labour Relations Adjustment Act)
98. C. Others
99. KT Korea Telecom
100. CBA Collective Bargaining Agreement