2008 Annual Survey of violations of trade union rights - Korea, Republic of
|Publisher||International Trade Union Confederation|
|Publication Date||20 November 2008|
|Cite as||International Trade Union Confederation, 2008 Annual Survey of violations of trade union rights - Korea, Republic of, 20 November 2008, available at: http://www.refworld.org/docid/4c52ca85c.html [accessed 26 May 2015]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
ILO Core Conventions Ratified: 100 – 111 – 138 – 182
The government continued its record of repressing unions. Police violence against strikers continued, resulting in serious injuries in several cases. The government's labour law reforms did not meet international standards or Korea's own commitments to the OECD. Three leaders of the Migrant Workers' Union were arrested and expelled.
Trade union rights in law
Law recognises union rights for some civil servants: According to the law on the Establishment and Operation of Public Officials' Trade Unions that went into effect on 28 January 2006, civil servants are allowed to legally organise within administrative units predefined by the law. However, there are numerous categories of public officials who are still denied union rights, including managers, human resources personnel, personnel dealing with trade unions or industrial relations and special public servants such as military, police, fire-fighters, politically-appointed officials and high level public officials. A union member can work on a full-time basis for the union but only with the authority of the employer and while taking unpaid leave. In its June 2007 report, the ILO Committee on Freedom of Association asked the government to ensure that all public servants who are entitled, based on international standards, to form their own associations to defend their interests, are granted that right. It also asks the government to allow the negotiating parties to determine on their own the issue of whether trade union activity by full-time union officials should be treated as unpaid leave.
Civil servants have the right to collective bargaining, but the subjects of negotiation are limited to matters concerning trade unions, members' pay and welfare and other working conditions. Hence, trade unions cannot address other economic and social issues. Law and budgets prevail over Collective Bargaining Agreements (CBAs), which makes it possible for the government to propose a budget that will nullify them. Trade unions can file complaints about unfair labour practices, but no sanctions for such practices are foreseen. The law maintains a ban on industrial action, such as strikes and work slow-downs.
The law also prohibits public sector unionists from engaging in "acts in contravention of their duties prescribed in other laws and regulations when doing union activities". This is a very broadly worded provision that is open to abuse. Finally, public sector unionists are not permitted to be involved in any sort of "political activities".
Law on irregular workers erodes protection: In November 2006, the government pushed through Parliament a new law that allows expanded use of temporary contracts for workers for up to two years. Such contracts deprive workers of certain rights under the law and entail less advantageous working conditions and less pay. Employers are also able to hire these contract workers without significant constraints, increasing flexibility in employment and reducing the leverage of unionised workforces to bargain effectively with their employer.
The unions are afraid that the impact of this new law will be to make temporary contracts the most widespread form of employment and to undermine existing job security. There are many examples of this trend, including in the Korea Telecom company, the hotel industry, taxi phone services for disabled people in Seoul, and the Hyundai Heavy Industries and Seoul Grand Park companies. All those companies have a large number of unionized workers, employed without contracts, whom the management has identified as union activists and whose contracts were not renewed when they expired.
Right to strike – denied to too many workers: The 1997 Trade Union and Labour Relations Adjustment Act (TULRAA) and public service legislation ban strikes by people working for the central government or local governments, and by those involved in the production of military goods. The law sets out a long list of "essential services" where the right to strike can be heavily restricted by the imposition of mandatory mediation and arbitration procedures. In its June 2007 report, the ILO Committee on Freedom of Association again asked the government to limit any restrictions of the right to strike to public servants exercising authority in the name of the State and essential services in the strict sense of the term.
By law, unions are required to go through a mandatory ten-day "mediation" period before they can take industrial action. However, for public services and services which are classified as "essential", this mediation period is 15 days.
Under the 1999 law on the establishment and operation of trade unions for teachers, members of this profession do not have the right to strike. According to the government, this restriction is based on the pretext of protecting students' right to learn.
Strikes are also illegal if they are not specifically about labour conditions such as wages, welfare and working hours. This is contrary to ILO standards.
Compulsory arbitration for disputes in essential public services has been abolished and replaced by a minimum service requirement for strikes in public services and permission to replace workers during strikes. The restrictions applying to essential public services have also been extended.
Emergency powers to impose compulsory arbitration in public services: The TULRAA also provides to the Minister of Labour extensive powers to declare a situation of "Emergency Arbitration", which immediately halts all industrial action and compels the union to enter mediation. If the mediation is unsuccessful, the Labour Relations Committee (LRC) can compel the labour dispute to enter a process of compulsory, binding arbitration. The only limitations on this power are that the dispute must be related to public services, and the Minister must decide that the nature of the disruption could make the economy worse or disrupt "normal life."
In its June 2007 report, the ILO Committee on Freedom of Association asked the government to amend the emergency arbitration provisions of the TULRAA so that emergency arbitration can only be imposed by an independent body and only in cases in which strikes can be restricted in conformity with freedom of association principles.
Right to demonstrate limited: Under the Law on Assembly and Demonstration, any gathering is banned within a hundred metres of foreign diplomatic missions. As a result, many large companies, such as Samsung, have invited embassies to rent offices in their buildings. This tactic effectively prevents workers from demonstrating in front of the company's headquarters.
Interference in internal trade union affairs: The TULRAA initially prohibited employers from remunerating union leaders from 1 January 2002. Unionists strongly protested against this restriction, stating that this matter should be left to the discretion of negotiations between the employer and union, and succeeded in delaying implementation of this provision until 2006. In a tripartite deal signed on 11 September, implementation of this provision was deferred until 2009, but there was no change made in the law to delete this measure. The ILO Committee on Freedom of Association noted in its 309th report that "the prohibition of the payment of full-time union officials by employers is a matter which should not be subject to legislative interference" and "therefore calls upon the government to repeal section 24(2) of the TULRAA".
The law also bans dismissed workers from remaining members of a union and states that non-union members are not eligible for trade union office. Under ILO standards, such matters should be left to the discretion of the trade unions' statutes. In June 2007 the ILO Committee on Freedom of Association asked the government to repeal the provisions of the law that allow this interference.
The TULRAA allowed for immediate trade union pluralism at the industrial and national level from 1997, but implementation of union pluralism at the company level has been repeatedly delayed. Originally, formation of competing unions in workplaces was to be allowed by 2002, but then the ban was extended until 31 December 2006. However, during 2006, it was again decided to push back the implementation of this provision, and the ban was extended until 2009. In its June 2007 recommendations, the ILO Committee on Freedom of Association asked the government to take rapid steps for the legalisation of trade union pluralism at the enterprise or establishment.
Third party intervention still hindered: The Ministry of Labour must be notified of the identity of third parties involved in collective bargaining and industrial disputes. Sanctions are foreseen if they intervene without the Ministry being notified. Requirements for the registration of third parties make this a very cumbersome operation.
Criminalising union activity – "Obstruction of Business" in penal code: Employers used Article 314 of the Criminal Code, which bars "Obstruction of Business", to systematically harass and seek the incarceration of union leaders and to try and bankrupt unions. Despite the abusive and discriminatory way in which Article 314 was used against workers, the government did nothing to intervene or clarify the law. The charge of "Obstruction of Business" was indiscriminately used by vengeful employers against union leaders who were seeking to collectively bargain, hold meetings, conduct strikes and pickets and carry out other basic, fundamental union activities. Employers also commonly used the government's prosecution of workers under this law to justify disciplinary measures, including termination.
Article 314 carries heavy penalties under law – a worker found guilty faces up to five years imprisonment or an exorbitant fine.
Special economic zones: The law on Special Economic Zones (SEZs) of July 2003 contains preferential provisions in relation to foreign companies investing in the SEZs. It exempts them from many national regulations on the protection of the environment and labour standards. It is feared that this will result in further violations of workers' rights and make it easy to hire "irregular" workers, who will have little or no protection.
Migrant workers: The Act on Employment of Foreign Labourers, and the Employment Permit System, allows employers to violate migrant workers' trade union rights with impunity. Migrant workers are permitted only three years' work before they must return to their own country and are strictly forbidden from changing their employer during their stay in South Korea.
Trade union rights in practice and Violations in 2007
"Illegal" strikes and police violence: Collective action often becomes "illegal", even when it takes place outside of essential services, given the complicated legal procedures for organising a strike. Such action continued to be severely repressed by the government, including the imprisonment of hundreds of trade unionists. In the vast majority of cases, the principal charge has been "Obstruction of Business", or trying to illegally organise trade unions in the public sector.
The authorities use the violence that takes place in some demonstrations and strikes to justify the detention of trade union leaders. Unions insist police action is unnecessarily provocative and disproportionately brutal. One of the many examples of excessive measures by the police took place on 12 August 2007 when a national demonstration by the Korean Federation of Private Service Workers' Unions (KFSU) supported by the Korea Confederation of Trade Unions (KCTU) ended in physical violence in some places, with the anti-riot police and strike breakers using iron bars and shields to attack workers.
Prosecutors are quick to issue arrest warrants as soon as workers go on strike, or sometimes when a strike simply is announced. Police or security agencies mount surveillance operations – occasionally sophisticated ones – in order to capture strike leaders. Unions' offices and telecommunications are routinely monitored. Unionists striking "illegally" often receive a one-year prison sentence or heavy fines.
Prison conditions: Imprisoned trade unionists are generally isolated from one another in order to prevent them from taking collective action while in jail. Like many other prisoners, they are confined to their cells 23 hours a day and are allowed only one seven minute visit from lawyers or relatives per day.
"Paper unions": In a context where trade union pluralism is prohibited by law at the plant level, many employers have resorted to creating management-controlled unions, known as "paper unions". As they are impossible to democratise from within, owing to management's hostility, and since it is legally forbidden to organise alternative unions, workers are left with few, if any, rights and cannot engage in genuine collective bargaining. The continued ban on union pluralism at the plant level reinforces the negative impact of these "paper unions" in denying workers their collective bargaining rights.
Migrant Trade Union still battling for recognition: The government continued to refuse to register the Migrant Trade Union (MTU), which was founded in April 2005 and is a member of the KCTU, and would not let it engage in trade union representation or bargaining. In February 2007 the Seoul High Court ruled that all migrant workers have the right to form and join unions, no matter what their legal status in South Korea. The Ministry of Labour appealed the decision, however.
Expulsion of Migrant Trade Union representatives: On 13 December, three top officials from the Migrant Trade Union – Kajiman Khapung, Raju Kumar Gurung and Abul Basher M. Moniruzzaman (Masum) – the organisation's President, Vice-President and General Secretary respectively, were sent back to their home countries, Nepal and Bangladesh, in breach of all legal procedures. They were arrested on 27 November, on the grounds that they were undocumented, while preparing action against proposed changes in the immigration laws. Their simultaneous arrest shows, however, that this was principally aimed at repressing the MTU. At least 20 members of the union were arrested in similar circumstances since August 2007.
The MTU and the national centre it is affiliated to, the KCTU, lodged a complaint against the government of the Republic of Korea with the ILO's Committee on Freedom of Association in December 2007. The complaint concerns the government's refusal to recognise the MTU and the arrest, detention and expulsion of the three MTU leaders.
Anti-unionism at E.Land: UNI (Union Network International) reports that the South Korean supermarket chain E.Land has been accused of seeking to destroy its union through intimidation, fear and hunger. E.Land employees went on strike following the dismissal of 1,000 part-time and contract workers, just before the introduction of new laws that would have helped them become full-time employees. Yet E.Land had bought Carrefour Korea guaranteeing job security (thanks to the continuation of the collective agreement signed under Carrefour ownership). The Labour Relations Commission ruled that the dismissals were unfair.
The strike was harshly repressed at times. On 20 July, former E.Land women employees were beaten and ejected from the company's premises in Seoul. The president of the E.Land workers' union, Kim Kyung-Wook, was arrested and charged with obstructing business. On the morning of 31 July, anti-riot police attacked E.Land strikers taking part in a sit-in in Kangham (Seoul) and took them to the police station. Two trade union leaders (the vice-president of the E.Land union, Lee Nam-Sin, and the general secretary, Madame Lee Kyung-Oak) were also arrested. And on 5 August, while 1,500 E.Land workers picketed ten of the chain's stores across South Korea, a confrontation with strike breakers employed by the company led to injuries and the hospitalisation of two former E.Land employees.
Opposition to Free Trade Agreement with the United States: The signing of the free trade agreement between South Korea and the United States (better known as KORUS-FTA) led to a strike in June, organised by the Korean Metal Workers' Union, protesting against the agreement as part of a broad coalition of Korean groups in opposition to the KORUS-FTA. The South Korean authorities again demonstrated utter intolerance of this peaceful form of expression: 27 arrest warrants were issued against KMWU leaders and 67 of the union's members were summoned by the police intelligence unit on charges of "criminal obstruction of business". One member of the KCTU, Heo Se-Wook, set himself on fire on 1 April in protest at the agreement and died of his injuries on 15 April.
Before the strike took place, the South Korean government announced that it considered it illegal, notably because it did not concern improvements in working conditions and could therefore be considered a political strike. This view was contrary to that of the ILO's Committee on Freedom of Association which, in its June 2007 report, recognised that globalisation has an impact on workers' salaries and working conditions and stated that trade unions could carry out action on "wider economic and social policy questions, linked to globalisation".
The ITUC and the Trade Union Advisory Committee (TUAC) to the OECD added their voices to that of their affiliates in Korea and the United States to express their opposition to the agreement.
Mass arrest of KGEU activists: The Korean Government Employees Union (KGEU) continued to be the target of repression, even after its official registration in October. On 21 November 12 KGEU members were arrested in Anyang, in the Gyeonggi-do province, during a peaceful sit-in outside the Dongan-gu office building, where 500 members were protesting against the manner in which high-ranking civil servants had been appointed. Two hours later the president of the KGEU Son Young Tae, along with two other KGEU members, had a meeting with the head officer of the Dongan-gu (ward) of Anyang City. During the meeting riot police stormed the room and arrested them. All 15 were held for about 30 hours, then 12 of them were released, including the union president. The remaining three appeared in court the following day. The court ruled that two Anyang KGEU leaders, Park Moon Gyu and Lee Ho Seong, should remain in detention. They were charged with "Obstruction of Performance of Official Duties" and breaching the "Prohibition of Collective Action" law.
Nine KFCITU members still in prison: Government repression against the Korean Federation of Construction and Industry Trade Union (KFCITU), affiliated to the Building and Wood Workers International (BWI), has grown steadily since the recommendations made by the ILO Committee on Freedom of Association in March 2006 concerning the BWI's complaint. The Committee expressed its concerns about the government's use of criminal law to arrest and imprison trade unionists. The government not only refused to implement the recommendations, it also chose to step up its attacks on the union. Nine members of the KFCITU are still in prison. They include Lee Ji Kyung, president of the local Pohang branch, sentenced to a heavy term of three years and six months imprisonment following a strike in 2006, and not due to be released until January 2009, and Lee Hee Man, a member of the same union, imprisoned since 26 September 2007, and not due to be released until March 2010.
Yoo Ki Soo, general secretary of the KFCITU, was, however, released on 23 May 2007 after spending nearly 10 months in prison for his part in supporting the Pohang strike. The other members of the Pohang branch union were also released.
Complaint of anti-union discrimination against contract workers: On 10 October 2007, the Korean Metalworkers' Federation (KMWF), the KCTU and the International Metalworkers' Federation (IMF) lodged a complaint with the ILO Committee on Freedom of Association. The complaint concerned anti-union practices (including physical violence and imprisonment) against workers unfairly employed on a sub-contracting basis between 2004 and 2006 in Hyundai Motors' Corporation (HMC) Ulsan, Asan and Jeonju plants, Hynix/Magnachip, Kiryung Electronics and KM&I. These companies all illegally used "dispatch" workers disguised as subcontractors to hide their real employment relationship.
Teachers call ILO to the rescue: EI (Education International) and its South Korean affiliate the KTU (Korean Teachers and Education Workers' Union) lodged a complaint with the ILO's Committee on Freedom of Association on 25 May 2007. The complaint focussed on five issues: absence of dialogue with the teacher organisation in the development and implementation of a system of teacher evaluation; prohibition of the right to assemble (the complaint cites examples from the trade union protests in 2005 and 2006); denial of the right to strike in the Teacher Union Act (on 21 November the Ministry of Education instructed school principals to deny teachers' applications for annual leave for the purpose of participating in an assembly or in collective action); imposition of disciplinary sanctions against 436 teachers who participated in a union assembly on 22 November 2006; violation of teachers' freedom of expression (on 18 January 2007, two members of the KTU, Choi Hwa-seop and Kim Maeng-gyu, were arrested and imprisoned for publishing information on North Korean politics on the internet. They were released on bail on 20 April and were due to be tried later on charges that carry a potential death penalty under the National Security Law).