Interim Report - Report No 359, March 2011

Case No 2602 (Republic of Korea) - Complaint date: 10-OCT-07 - Closed

Allegations: The complainants allege that “illegal dispatch” workers, i.e. precarious workers in disguised employment relationships, in Hyundai Motors’ Corporation (HMC) Ulsan, Asan and Jeonju plants, Hynix/Magnachip, Kiryung Electronics and KM&I, are effectively denied legal protection under the Trade Union and Labour Relations Adjustment Act (TULRAA) and are left unprotected vis-à-vis: (1) recurring acts of anti-union discrimination, notably dismissals, aimed at thwarting their efforts to establish a union; (2) the consistent refusal of the employer to bargain as a result of which none of the unions representing those workers have succeeded in negotiating a collective bargaining agreement; (3) dismissals, imprisonment and compensation suits claiming exorbitant sums, for “obstruction of business” in case of industrial action; (4) physical assaults, court injunctions and imprisonment for “obstruction of business” aimed at preventing dismissed trade union leaders from re-entering the premises of the company to stage rallies or exercise representation functions

1. 342. The Committee last examined this case at its November 2009 meeting and on that occasion presented an interim report to the Governing Body [see 355th Report, paras 621–678, approved by the Governing Body at its 306th Session].
2. 343. The Government sent its observations in a communication dated 7 October 2010 and 8 February 2011.
3. 344. 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. 345. At its previous examination of the case in November 2009, the Committee made the following recommendations [see 355th Report, para. 678]:
   • (a) The Committee requests the Government to hold an independent investigation into allegations of pressure placed on subcontracted workers at Kiryung Electronics to make them resign from their union, as they appear regrettably not to have been taken into consideration by the Court, and, if the allegations are confirmed, to take all necessary measures to compensate the trade union members concerned and to prevent any recurrence of such acts of anti-union discrimination in future.
   • (b) As regards the allegations of acts of anti-union discrimination and interference at Hynix/Magnachip and at HMC, the Committee once again requests the Government to take the necessary measures to reinstate the dismissed trade union leaders and members as a primary remedy; if the judicial authority determines that reinstatement is not possible for objective and compelling reasons, adequate compensation should be awarded to remedy all damages suffered and to prevent any repetition of such acts in the future, so as to constitute a sufficiently dissuasive sanction against acts of anti-union discrimination. The Committee requests to be kept informed in this respect.
   • (c) The Committee urges the Government to take all necessary measures to promote collective bargaining over the terms and conditions of employment of subcontracted workers in the metal sector, in particular in the Hyundai Motor Company (HMC), Kiryung Electronics, KM&I and Hynix/Magnachip, including through building negotiating capacities, so that subcontracted workers in these companies may effectively exercise their right to seek to improve the living and working conditions of their members through negotiations in good faith.
   • (d) The Committee requests the Government to institute an independent investigation without delay into the dismissals of the subcontracted workers in HMC Ulsan and Jeonju and, if these workers are found to have been dismissed solely on the grounds that they staged industrial action against a “third party, i.e. the principal employer (subcontracting company), to ensure that they are reinstated in their posts without loss of pay as a primary remedy. If the judicial authority determines that reinstatement of trade union members is not possible for objective and compelling reasons, adequate compensation should be awarded to remedy all damages suffered and prevent any repetition of such acts in the future, so as to constitute a sufficiently dissuasive sanction against acts of anti-union discrimination. The Committee requests the Government to keep it informed of developments in this regard.
   • (e) Noting further with deep concern that the Government confines itself to stating that the question was already dealt with in Case No. 1865, without indicating any progress made or any specific measures taken to give effect to the recommendations made by the Committee since 2000, the Committee reiterates its recommendation that the Government should take all necessary measures without delay so as to bring section 314 of the Penal Code (“obstruction of business”) into line with freedom of association principles, and to keep it informed in this regard. While emphasizing the importance of legitimate trade union activity being carried out peacefully, the Committee reiterated that the criminalization of industrial relations is in no way conducive to harmonious and peaceful industrial relations.
   • (f) The Committee requests the Government to indicate whether any of the settlement proceedings it refers to resulted in members’ withdrawals from the union. Moreover, the Committee expects that the Government and the judicial authorities will put in place adequate safeguards so as to avert in future the possible risks of abuse of judicial procedure on grounds of “obstruction of business” with the aim of intimidating workers and trade unionists, and that the courts in their rulings will take due account of the need to build a constructive industrial relations climate in the sector in the context of individual industrial relations.
   • (g) The Committee once again requests the Government to institute an independent investigation into the alleged acts of violence perpetrated by private security guards against trade unionists during rallies at HMC Asan and Ulsan and at Kiryung Electronics and, if they are confirmed, to take all necessary measures to punish those responsible and compensate the victims for any damages suffered. The Committee requests to be kept informed in this respect.
   • (h) The Committee notes with concern the new allegations concerning restrictions on the exercise of trade union rights based on an interpretation of the legislation, which concern a sector with regard to which the Committee has already expressed its concern regarding the denial of certain trade union rights through the use of precarious workers. The Committee requests the Government to provide its observations to the new allegations by the IMF and the KCTU so that it may examine this matter in full knowledge of the facts.
   • (i) In the absence of any progress, the Committee again requests the Government to develop appropriate mechanisms, in consultation with the social partners concerned, aimed at strengthening the protection of subcontracted (“dispatch”) workers’ rights to freedom of association and collective bargaining, guaranteed to all workers by the TULRAA, and at preventing any abuse of subcontracting as a way to evade in practice the exercise by these workers of their fundamental rights. Such mechanisms should include an agreed process for dialogue determined in advance.
   • (j) The Committee recommends that the Government has recourse to ILO technical assistance.
   • (k) The Committee draws the Governing Body’s attention to the serious and urgent nature of the present case.

B. The Government’s reply

1. 346. In its communication dated 7 October 2010, the Government explains that while owner-drivers of cargo trucks, dump trucks and ready-mixed concrete trucks (hereinafter, the “owner-drivers”) can establish and join organizations representing their interests and make demands through such organizations to the Government or relevant business organizations, they are not allowed to organize or join a trade union because owner-drivers are not employees. In January and March 2009, the Government gave the Korean Construction Workers Union (KCWU) and the Korean Transport Workers Union (KTWU) the opportunity to voluntary redress the violation. The Government indicates that while it has not yet de-registered these organizations, their persistent disregard for the Governments recommendations could lead to the cancellation of their trade union registration, which will end up hurting a large number of other union members who are employees. The Government therefore recommends that the unions take the necessary actions as soon as possible so that the members who are employees are guaranteed the right to engage in union activities, and that the owner-drivers, who are not employees, withdraw from the unions and establish an interest group of their own.
2. 347. The Government refutes the complainant argument that owner-drivers are de facto employees and states that having comprehensively considered whether there was an employee–employer relationship, the courts have considered the question whether owner-drivers had the status of employees. According to the Government, in its 11 May 2006 ruling, the Supreme Court analysed an employee–employer relationship on the grounds of the following considerations: (1) whether the persons were under the supervision or direction of their alleged employer; (2) whether they received remuneration as a reward for their services; and (3) the nature and contents of the services provided, regardless of the types of contracts they might have had (which could be anything from employment contracts to outsourcing, entrustment or atypical contract). The Government further explains that in the case of ready-mixed concrete truck owner-drivers, the courts have consistently denied them the status of employees, and have not recognized their organization as a trade union established under the Trade Union and Labour Relations Adjustment Act (TULRAA). According to the Supreme Court decision of 13 October 2006, truck owner-drivers are not considered as employees who have an employee–employer relationship with the ready-mixed concrete manufacturing and selling companies. They provide services and live on wages paid for such services. The owner-drivers, under a transport contract with a concrete manufacturing and selling company, are required to comply with transport-related instructions from that company given the nature of their contract, and thus: their work cannot be considered to have been determined unilaterally by the company; they are free to decide when and whether to return to the company; they can hire a third party to provide transport services on behalf of them; they have ownership of their trucks and manage them on their own; they are not subject to the company’s employment rules, code of conduct and personnel regulations; receive no basic or fixed pay; and each of them is registered as an independent business, and pays business income tax and value added tax. In its decision of 6 October 2000, the Supreme Court also ruled that cargo truck and dump truck owner-drivers are not considered employees under the TULRAA as they had no employee–employer relationship with their company given that they had ownership of their trucks, worked without the specific direction or supervision of the company, and bore all the costs incurred during their work. According to this Supreme Court decision, if an owner-driver is registered as an independent business under his/her name, pays business income tax, has hired a driver to operate the vehicle, does not take specific instructions concerning product transport and receives transport charges from the company on the basis of the number of actual shipments, then he/she is not considered as an employee who is under the direction and supervision of the company or works for the purpose of earning wages under an employee–employer relationship with the company.
3. 348. With regard to the complainants’ statement that the Ministry of Employment and Labour did not recognize the KCWU and KTWU as trade unions despite the fact that both unions had received union establishment certificates from the Ministry when reporting their establishment, and were legitimately engaged in union activities, the Government explains that when it received the union establishment report from the KCWU and KTWU, it did not check whether the owner-drivers were members of the trade unions due to the short processing time (three days) and issued the union establishment certificates. Later the Government discovered that those who were not employees had joined the unions and were engaged in union activities and instructed both unions not to allow those people in as members.
4. 349. In respect of the above points, the Government forwards observations of the Korea Employers Federation, which, referring to Article 8(1) of ILO Convention No. 87, states that self-employed workers, i.e. people doing business under a contract with other businesses, such as owners of truck, concrete mixer trucks or dump trucks, cannot be considered as workers under Korean labour law. Even if Convention No. 87 did apply, an organization, the majority of members of which are self-employed workers, cannot be considered as a “trade union” under the national legislation. Therefore, the two orders made by the Government in respect of the KCWU and KTWU were made in accordance with the legislation in force.
5. 350. With regard to the complainants’ argument that the KCWU and KTWU have conducted collective bargaining with their employers several times over the past ten years and that, in some cases, they signed an agreement after negotiations mediated by public officials from local labour offices, the Government explains that because it is the mediation committee of the Labour Relations Commission that is responsible for mediating a labour dispute, the organization which the complainants say conducted mediation is probably the Regional Labour Relations Commission, not local labour offices. There are a few cases where the Regional Labour Relations Commissions conducted mediations at the request of the Korean Construction Transport Workers Union (KCTWU), the forerunner of the KCWU, but on 8 September 2006, the Supreme Court ruled that it did not recognize the KCTWU as a trade union established under the TULRAA. The Government further indicates that the Korea Cargo Transport Workers Federation, affiliated with the KTWU and composed of cargo truck owner-drivers, has not signed a collective agreement. Moreover, although the construction machinery section of the KCWU, of which ready-mixed concrete truck and dump truck owner-drivers are members, has made a contract with their companies in the form of an agreement or arrangement, such contract cannot be viewed as a collective agreement under the TULRAA.
6. 351. With regard to the complainants’ argument that, on its own, the Ministry has no authority to issue correction orders or dissolve an established trade union, but that rather any such decision should be made after a deliberation by the Labour Relations Commission, the Government indicates that even a legitimately established trade union is subject to legal action under the TULRAA when a reason for disqualification arises after its establishment. The competent administrative authorities may recommend to the trade union to voluntarily eliminate the irregularities which would otherwise constitute grounds for withdrawal of trade union recognition, and if the trade union fails to comply, the authorities could notify the organization in question that it is no longer recognized as a trade union established under the TULRAA. The Government further refers to section 2(4) of the TULRAA, which stipulates that an organization shall not be regarded as a trade union if those who are not employees are allowed to join it. According to section 12(3) of the Act, in such cases, the administrative authorities shall return a “union establishment report”. Pursuant to section 9(2) of the Enforcement Decree of the TULRAA, “where, after a trade union is delivered with a union establishment certificate, there arise reasons for returning the written report of establishment …, the administrative authorities shall demand correction within the specified period of 30 days, and if the correction is not performed within this period, they shall notify the trade union in question that it shall not be regarded as a trade union as provided for under this Act”. The Government stresses that the TULRAA does not require this process to be approved by the Labour Relations Commission, as the Act stipulates that the administrative authorities shall directly notify the trade union concerned that it is not considered as a trade union established under the TULRAA.
7. 352. The Government further refers to the 2007 recommendations made by the National Human Rights Commission that those engaged in special types of work should be granted the right to organize, the right to collective bargaining and the right to collective action. In this respect, the Government points out that labour law experts have different opinions on the issue of whether those engaged in special types of work should be uniformly granted these rights. The Government considers, in particular, that due to the nature of the work performed in terms of the form and method of services provided, the degree of dependency from the company, status in the market, and the characteristics of the industries concerned, a different approach to protection of the rights of those who are engaged in these special types of work would help to expand their rights and protect their interests. When it is not determined that those engaged in special types of work are “employees” under the TULRAA, it is not desirable to grant them the right to organize, the right to collective bargaining and the right to collective action as recommended by the National Human Rights Commission.
8. 353. The Government also indicates that the Bill proposed in June 2007 to protect those engaged in special types of work was not sufficiently discussed and was scrapped upon expiration of the term of the 17th National Assembly in May 2008. Furthermore, due to the conflicting interests, no agreement has been reached on the issue of protecting those engaged in special types of work by the labour law. Thus, at the present time, it would be desirable to implement protective measures under individual and economic laws to address the difficulties experienced by those engaged in the special types of work and to carefully consider whether and when to introduce a labour legislation and its contents after hearing opinions from the parties concerned and experts as to the outcomes and limitations of those measures. As part of such individual protection measures, the Government established the Government-wide “Protection plans for those engaged in special types of work” in November 2006. Under these Plans, the Government has implemented the “Guidelines for the examination of abuses of position in making contracts with those engaged in special types of work” in relation to four occupational categories, including ready-mixed concrete truck owner-drivers and golf caddies. Other measures taken include provision of vocational training for self-employed small businesses engaged in six occupational categories, including ready-mixed concrete truck, dump truck or cargo truck owner-drivers.
9. 354. With regard to the Recommendations made in June 2008 and November 2009 by the Committee, the Government informs of the following developments. Regarding the dismissal of trade union members at the HMC Ulsan Plant in 2005, the Government indicates that the Supreme Court ruled on 22 July 2010 that the two workers of its in-company subcontractors were illegally dispatched to the HMC. Contrary to the High Court’s decision not acknowledging the subcontracted workers as dispatched workers and denying that HMC was their employer, the Supreme Court ruled that the subcontracting constituted illegal dispatch because the workers of the contracting and the subcontracted companies had worked in the same assembly lines and the contracting company had managed job assignments and working methods, and supervised the working attitude of the subcontracted workers. The Supreme Court sent the case back to the High Court for a retrial as a case involving an unfair dismissal of workers directly employed by HMC.
10. 355. This court decision caused the Government to conduct an intensive inspection from 6 September to 8 October 2010 to find out the current state of in-company subcontracting in 29 workplaces, including the HMC, in the automobile, electronics, steel, shipbuilding and IT industries which use many in-company subcontractors. The inspection will focus on whether in-company subcontracting takes the form of worker dispatch, the number of workers who are deemed to be employed or must be directly employed in the case of illegal dispatch, and whether there are any other violations of labour laws. If a violation is found as a result of the inspection, it will be dealt with in accordance with the legislation, and the employer concerned will be recommended and guided to directly employ the subcontracted workers in order to stabilize the employment of such workers.
11. 356. Regarding the unfair dismissal of three workers by the HMC Asan Plant, the Government informs that the Supreme Court handed down its decision on 25 June 2009. The Supreme Court considered that the workers’ industrial action was legitimate because it had followed the procedures under the TULRAA. The Court ruled that the act of dismissing these workers for their illegal strike constituted unfair dismissal, overturning the High Court’s decision and sending the case back to the High Court.
12. 357. Regarding compensation claims against workers by Kiryung Electronics, the Government indicates that none of the settlements resulted in members’ withdrawals from the union and provides the following details. By 9 May 2008, when the High Court recommended the parties concerned to settle their disputes through conciliation in the two compensation claims (one against 16 union members, including Kim So-yeon, and the other against 14 union members, including Kang Sun-yeol), Kiryung Electronics had already moved production lines to China. The company dropped its suits against subcontracted workers who had submitted their resignations and left the company, and gave them compensation according to its company rules. The company also paid compensation and early retirement allowances to its own workers and workers of its subcontractors when it shut down its domestic production lines. After the High Court recommended the compensation claims to be settled through conciliation, the cases were concluded with both parties agreeing to pay their respective legal costs and with the company promising not to claim compensation. Furthermore, the claim against Jeon Jae-hwan of the Federation of Korean Metal Industry Trade Union (FKMITU) was, in effect, a case filed by Kiryung Electronics against the FKMITU and not related to whether each member of the KMWF had withdrawn from the union. The representative of the defendant Jeon Jae-hwan, the then president of the FKMITU, is now serving as head of the Incheon Regional Headquarters of the KCTU.
13. 358. In a communication dated 8 February 2011, the Government informs that the Korean Metal Workers’ Union (KMWU) and management of Kiryung Electronics agreed to settle their dispute and reached a job security agreement which was signed at the National Assembly on 1 November 2010. The company agreed to hire the ten remaining union members on strike and the union promised to end their sit in.

C. The Committee’s conclusions

1. 359. The Committee recalls that the allegations pending in this case, lodged over three years ago, concern the situation of “illegal dispatch” workers in the metalworking sector, in particular in the HMC plants in Ulsan, Asan and Jeonju, at Hynix/Magnachip, Kiryung Electronics and at KM&I, who in practice have no legal protection under the terms of the TULRAA and, in particular, are left unprotected as regards: (1) recurrent acts of antiunion discrimination, including dismissals, which are intended to thwart their attempts to form a union; (2) the employer’s refusal to negotiate, with the result that none of the representative unions has succeeded in negotiating a collective agreement; (3) cases of dismissal, imprisonment, and demands for compensation involving exorbitant sums for “obstruction of business” in strikes; and (4) physical assault, court injunctions and imprisonment of workers for “obstruction of business”, all with the aim of preventing dismissed union officials from returning to company premises to organize meetings or carry on their representative functions.
2. 360. The Committee recalls from the previous examination of the case that “illegal dispatch” (a term used by both the complainants and the Government) is a form of false subcontracting which functions to disguise what is in reality an employment relationship. In this respect, the Committee notes the 22 July 2010 decision of the Supreme Court concerning the dismissal of a worker from the HMC Ulsan factory for allegedly union-related activities while working for an in-house subcontractor. In its decision, the Court held that the worker concerned was not a subcontracted worker but an “illegal dispatch” worker who must be regarded as a directly employed worker the day after he worked more than two consecutive years at the plant. The Committee notes that the Supreme Court has sent the case back to the lower court for a retrial. The Committee requests the Government to provide it with a copy of the Supreme Court’s ruling and to keep it informed of the outcome of the retrial of this case by the lower court. The Committee notes with interest the Government’s indication that this decision prompted the Government to conduct an inspection to assess the current state of in-company subcontracting at 29 workplaces including HMC, in the automobile, electronics, steel, shipbuilding and IT industries. Recalling that it had also previously examined the difficulties faced by precarious workers in disguised employment relationships in the construction industry (see Case No. 1865), the Committee expects that the Government will take all necessary measures to ensure the necessary protection against such abuses and requests it to provide information on the outcome of the inspection and on any further impact this decision has on the situation of workers in a disguised employment relationship.
3. 361. The Committee notes the Government’s indication that on 25 June 2009, the Supreme Court handed down its decision in the case of dismissal of three workers by HMC Asan Plant, and, in particular, that the Court considered that the said workers’ industrial action was legitimate because it had followed the procedures under TULRAA and that their dismissal was an unfair dismissal thereby overturning the High Court’s decision, and remanding the case back to it. The Committee requests the Government to keep it informed of the High Court decision.
4. 362. In the light of the information provided by the Government in respect of dismissal cases at HMC Ulsan factory and Asan Plant, the Committee once again urges the Government to take the necessary measures to reinstate the dismissed trade union leaders and members as a primary remedy; if the judicial authority determines that reinstatement is not possible for objective and compelling reasons, adequate compensation should be awarded to remedy all damages suffered and to prevent any repetition of such acts in the future, so as to constitute a sufficiently dissuasive sanction against acts of anti-union discrimination.
5. 363. The Committee recalls that in its previous examination of the case, it took note of a communication dated 17 June 2009 from the KCTU, in which the KCTU referred to the Government’s failure to take steps to implement the Committee’s recommendations and submitted new allegations concerning instances of anti-union measures against a number of categories of heavy goods vehicle drivers who, according to the Government, cannot be regarded as employed workers covered by the terms of the TULRAA owing to their “selfemployed” status. The KCTU alleged that, since the beginning of 2009, the Government had issued a number of notices calling on the unions voluntarily to exclude all these categories of worker or face deregistration, on the grounds that they were not entitled to form unions.
6. 364. The Committee notes that the Government refers to section 2(4) of the TULRAA, according to which, an organization shall not be regarded as a trade union if those who are not employees are allowed to join it. The Government further refers to several Supreme Court decisions in which the latter consistently denied owner-drivers the status of employees, considering them to be self-employed. According to the Government, on this basis and pursuant to section 12(3) of the TULRAA and section 9(2) of the Enforcement Decree of the TULRAA, the administrative authorities have a right to cancel a trade union certificate. The Government adds that while self-employed persons can establish their own organizations representing their interests, through which they can address their demands with the Government and business organizations, such organizations cannot be considered as trade unions. The Committee notes that the Korean Employers’ Federation concurs with the Government. At the same time, the Government indicates that when it is not determined that those engaged in special types of work are “employees” under the TULRAA, it is not desirable to grant them the right to organize, the right to collective bargaining and the right to collective action as recommended by the National Human Rights Commission in 2007. It further indicates that the idea of a labour legislation aimed at protecting those engaged in special types of work was not pursued as no agreement could be reached. The Government considers, in particular, that due to the nature of the work performed in terms of the form and method of services provided, the degree of dependency from the company, status in the market, and the characteristics of the industries concerned, a different approach to protection of the rights of those who are engaged in these special types of work would help to expand their rights and protect their interests, better achieved through individual and economic laws. In this regard, the Committee requests the Government to develop, in consultation with the social partners concerned, specific collective bargaining mechanisms relevant to the particularities of self-employed workers.
7. 365. The Committee recalls that by virtue of the principles of freedom of association, all workers, with the sole exception of members of the armed forces and the police should have the right to establish and join organizations of their own choosing. The criterion for determining the persons covered by that right, therefore, is not based on the existence of an employment relationship, which is often non-existent in the case of self-employed workers [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 254]. The Committee requests the Government to take the necessary measures to ensure that all workers, including “self-employed” workers, such as heavy goods vehicle drivers, can fully enjoy freedom of association rights with the organizations of their own choosing for the furtherance and defence of their interest and that such organizations have the right to join federations and confederations of their own choosing, subject to the rules of the organizations concerned and without any previous authorization. The Committee recalls that it is for the federations and confederations themselves to decide whether or not to accept the affiliation of a trade union, in accordance with their own constitutions and rules [see Digest op. cit., para. 722]. It requests the Government to keep it informed of the measures taken or envisaged in this respect.
8. 366. With regard to the power granted to administrative authorities by virtue of section 12(3) of the TULRAA and section 9(2) of its Enforcement Decree to cancel trade union organization’s registration, the Committee requests the Government to indicate whether national legislation provides for the right of appeal in the case of dissolution of a trade union by the administrative authority. The Committee recalls in this respect that such a measure should only be possible through judicial channels and that any legislation which accords the administrative authorities a right to cancel the registration of a trade union, without any right of appeal to the courts, is contrary to the principles of freedom of association [see Digest, op. cit., paras 687 and 689]. An appeal should lie to the courts against any administration decision concerning the registration of a trade union. Such a right of appeal constitutes a necessary safeguard against unlawful or ill-founded decisions by the authorities responsible for registration. A decision to prohibit the registration of a trade union which has received legal recognition should not become effective until the statutory period of lodging an appeal against this decision has expired without an appeal having been lodged, or until it has been confirmed by the courts following an appeal [see Digest, op. cit., paras 300–301]. If such a procedure is not provided for, the Committee requests the Government to take the necessary measures, in consultations with the social partners, to amend the provisions of the TULRAA and its Enforcement Decree, taking into account the principles above and to ensure that an administrative decision does not take effect until a final decision is handed down. It requests the Government to keep it informed in this respect.
9. 367. The Committee notes that the Government confirms that the KCWU and KTWU will be deregistered if they do not comply with the recommendation to exclude owner-drivers from their membership. In the light of the above, and particularly in view of the fact that under the existing legislation, self-employed workers do not enjoy trade union and collective bargaining rights, the Committee requests the Government to hold consultations with the parties involved with the aim of finding a mutually acceptable solution so as to ensure that, on the one hand, workers who are self-employed could fully enjoy trade union rights under Conventions Nos 87 and 98 for the purpose of furthering and defending their interest, including by the means of collective bargaining and, on the other hand, that no measures which would deprive trade union members from being represented by their respective unions are taken against the KCWU and KTWU. The Committee requests the Government to keep it informed of the outcome of such consultations.
10. 368. Deeply concerned by the absence of any action taken by the Government to implement its previous recommendations, and the situation of trade union and collective bargaining rights in the country, the Committee emphasizes that when a State decides to become a Member of the organization, it accepts the fundamental principles embodied in the Constitution and the Declaration of Philadelphia, including principles of freedom of association and that the ultimate responsibility for ensuring respect for the principles of freedom of association lies with the Government [see Digest, op. cit., paras 15 and 17]. It once again urges the Government to develop, in consultation with the social partners concerned, specific mechanisms, aimed at strengthening the protection of subcontracted (“dispatch”) workers’ rights to freedom of association and collective bargaining guaranteed to all workers by the TULRAA and at preventing any abuse of subcontracting as a way to evade in practice the exercise by these workers of their fundamental rights.. Such mechanisms should include an agreed process for dialogue determined in advance. The Committee reiterates its previous specific recommendations and expects that they will be implemented without further delay. It urges the Government to keep it informed of all measures taken in this respect. The Committee once again reminds the Government that it may avail itself of the technical assistance of the Office.
11. 369. The Committee notes the information provided by the Government with regard to Kiryung Electronics and in particular the fact that the KMWU and the manager signed an agreement on 1 November 2010 where the company agreed to hire the ten remaining striking unionists thus bringing an end to the long-standing disputes. Therefore, the Committee will not pursue its examinations of this particular aspect of this case.

The Committee's recommendations

1. 370. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee expects that the Government will take all necessary measures to ensure protection of workers’ organizational rights against abuses in relation to disguised employment relationships and requests it to provide a copy of the Supreme Court ruling of 22 July 2010 in the case of a worker dismissed from the HMC Ulsan factory in February 2005 and to provide information on the outcome of the retrial of this case by the lower court. It also requests the Government to keep it informed of the outcome of the inspection it conducted following the 22 July 2010 decision of the Supreme Court to assess the state of in-company subcontracting at 29 workplaces, and of any further impact this decision has on the situation of workers in a disguised employment relationship.
   • (b) The Committee requests the Government to take the necessary measures to ensure that all workers, including “self-employed” workers, such as heavy goods vehicle drivers, can fully enjoy freedom of association rights with the organizations of their own choosing for the furtherance and defence of their interest, including the right to join federations and confederations of their own choosing subject to the rules of the organization concerned and without any previous authorization.
   • (c) The Committee requests the Government to indicate whether national legislation provides for the right of appeal in the case of dissolution of a trade union by the administrative authority. If such a procedure is not provided for, it requests the Government to take the necessary measures, in consultations with the social partners, to amend the provisions of the TULRAA and its Enforcement Decree, so as to ensure that workers’ organizations are not liable to be dissolved by administrative authority and that an administrative decision does not take effect until a final decision is handed down. It requests the Government to keep it informed in this respect.
   • (d) The Committee requests the Government to hold consultations with all the parties involved with the aim of finding a mutually acceptable solution so as to ensure that, on the one hand, workers who are self-employed could fully enjoy trade union rights under Conventions Nos 87 and 98 for the purpose of furthering and defending their interest, including by the means of collective bargaining and, on the other hand, that no measures which would deprive trade union members from being represented by their respective unions are taken against the KCWU and the KTWU. The Committee requests the Government to keep it informed of the outcome of such consultations.
   • (e) The Committee once again requests the Government to develop, in consultation with the social partners concerned:
   • (i) appropriate mechanisms aimed at strengthening the protection of subcontracted (“dispatch”) workers’ rights to freedom of association and collective bargaining, guaranteed to all workers by the TULRAA, and at preventing any abuse of subcontracting as a way to evade in practice the exercise by these workers of their fundamental rights. Such mechanisms should include an agreed process for dialogue determined in advance; and
   • (ii) specific collective bargaining mechanisms relevant to the particularities of self-employed workers.
   • (f) The Committee once again urges the Government to carry out without delay independent investigations into:
   • (i) the dismissals of the subcontracted workers in HMC Ulsan and Jeonju and, if these workers are found to have been dismissed solely on the grounds that they staged industrial action against a “third party”, i.e. the principal employer (subcontracting company), to ensure that they are reinstated in their posts without loss of pay as a primary remedy. If the judicial authority determines that reinstatement of trade union members is not possible for objective and compelling reasons, adequate compensation should be awarded to remedy all damages suffered and prevent any repetition of such acts in the future, so as to constitute a sufficiently dissuasive sanction against acts of anti-union discrimination; and
   • (ii) the alleged acts of violence perpetrated by private security guards against trade unionists during rallies at HMC Asan and Ulsan and at Kiryung Electronics and, if they are confirmed, to take all necessary measures to punish those responsible and compensate the victims for any damages suffered.
   • (g) As regards the allegations of acts of anti-union discrimination and interference at Hynix/Magnachip and at HMC (Ulsan factory ans Asan Plant), the Committee once again urges the Government to take the necessary measures to reinstate the dismissed trade union leaders and members as a primary remedy; if the judicial authority determines that reinstatement is not possible for objective and compelling reasons, adequate compensation should be awarded to remedy all damages suffered and to prevent any repetition of such acts in the future, so as to constitute a sufficiently dissuasive sanction against acts of anti-union discrimination. The Committee also requests the Government to keep it informed of the High Court decision in the case of workers dismissed from Asan Plant.
   • (h) Regretting that the Government has not replied to its previous requests, the Committee once again urges the Government to take all necessary measures to promote collective bargaining over the terms and conditions of employment of subcontracted workers in the metal sector, in particular in HMC, KM&I and Hynix/Magnachip, including through building negotiating capacities, so that subcontracted workers in these companies may effectively exercise their right to seek to improve the living and working conditions of their members through negotiations in good faith.
   • (i) Regretting that the Government has not replied to its previous requests, the Committee once again urges the Government to take all necessary measures without delay so as to bring section 314 of the Penal Code (“obstruction of business”) into line with freedom of association principles, and to keep it informed in this regard.
   • (j) The Committee expects that the Government and the judicial authorities will put in place adequate safeguards so as to avert in future the possible risks of abuse of judicial procedure on grounds of “obstruction of business” with the aim of intimidating workers and trade unionists, and that the courts in their rulings will take due account of the need to build a constructive industrial relations climate in the context of individual industrial relations.
   • (k) The Committee expects that the above recommendations will be implemented without further delay and urges the Government to keep it informed in this respect. It once again reminds the Government that it may avail itself of the technical assistance of the Office.