2009 Annual Survey of violations of trade union rights - Korea, Republic of
|Publisher||International Trade Union Confederation|
|Publication Date||11 June 2009|
|Cite as||International Trade Union Confederation, 2009 Annual Survey of violations of trade union rights - Korea, Republic of, 11 June 2009, available at: http://www.refworld.org/docid/4c52cae1c.html [accessed 13 December 2017]|
ILO Core Conventions Ratified: 100 – 111 – 138 – 182
South Korea has still not ratified the core ILO conventions on trade union rights and anti-union repression persists. Police violence against strikers continued, resulting in serious injuries in several cases. Two leaders of the Migrants' Trade Union were arrested and deported. Several KCTU leaders were arrested and its president remains in prison.
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 certain public servants including the army, the 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.
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 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 unionised 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 gives 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. 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 provided for the immediate establishment of 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, the formation of competing unions in workplaces was to be allowed by 2002, but then the ban was extended twice until 2009. In its June 2007 recommendations, the ILO Committee on Freedom of Association asked the government to take rapid steps to legalise trade union pluralism at the enterprise or establishment level.
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 to 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 bargain collectively, hold meetings, conduct strikes and pickets and carry out other core trade union activities. Employers also commonly used the government's prosecution of workers under this law to justify disciplinary measures, including dismissals.
Article 314 offences carry heavy penalties and 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 for 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, allow 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 2008
Background: The arrival of a conservative government led to a chilling of relations with the trade union movement.
"Illegal" strikes and police violence: Collective action often becomes "illegal", even when it is not in essential services, given the complicated legal procedures for organising a strike. The government continued to repress such action severely, including the imprisonment of hundreds of trade unionists. In the majority of cases, the principal charge was "obstruction of business". Unionists striking "illegally" often receive a one-year prison sentence or heavy fines. Imprisoned trade unionists are generally isolated from one another in order to prevent them from taking collective action while in jail.
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. Prosecutors are quick to issue arrest warrants as soon as workers go on strike, or sometimes the moment a strike is announced. Police or security agencies mount surveillance operations, some of a sophisticated nature, in order to capture the strike leaders. This surveillance is sometimes carried out on members of the trade unionists' families. Unions' offices and telecommunications are routinely monitored.
"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 the law forbids the organisation of 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.
Migrants' Trade Union still battling for recognition: The government continues to refuse to register the Migrants' Trade Union (MTU), which was founded in April 2005 and is a member of the Korean Confederation of Trade Unions (KCTU), and would not let it engage in trade union representation or bargaining. On 1 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. On 19 March 2008, the new President of South Korea, Lee Myeong-bak, stated that a trade union of illegal workers could not be tolerated (his statement was clearly referring to the MTU).
Further arrests of members of the MTU: The MTU's President, Torna Limbu, and Vice-President Abdus Sabur were arrested by police, without a warrant, on 2 May, and deported to their home countries on 15 May, in breach of normal procedures. The decision to deport the migrant workers coincided with demonstrations in Seoul, Chongju, Daegu and Busan protesting against the arrest of the two leaders.
A few months earlier, in 2007, three top leaders of this union had been sent back to their home countries, Nepal and Bangladesh, although none of the legal procedures had been respected. Since the creation of the MTU, the organisation's leaders have systematically been deported shortly after being officially appointed to their union posts.
Many arrests and sentences for trade unionists: Lee Suk-haeng was arrested for "obstruction of business" following the arrest warrants issued on 24 July against him and ten other leaders of the KCTU and its affiliate the Korean Metal Workers' Union (KMWU).
After issuing the arrest warrants, the police formed a cordon around the building housing the KCTU headquarters, proceeded to search everyone entering the building and placed the homes and family members of the KCTU leaders under surveillance. The KCTU General Secretary Mr. Lee Yong Shik and First Vice-President Ms. Jin Young Ok were arrested, then released on bail. By the end of 2008 no final ruling had been made on their case. The President of the KMWU, Mr. Jung Gab-deuk, was arrested on 20 August on charges of obstructing the proper functioning of the enterprise.
Identical warrants led to the arrest of Kim Tae-gon, First Vice-President of the KMWU branch union at Hyundai Motor, on 16 September. Other elected officials of the Hyundai Motor branch union went into hiding, while an inquiry was opened into the activities of 70 other national, regional and local KMWU leaders.
In December, the KMWU reported that Yoon Hae-mo, President of the Hyundai Motor branch union, had been found guilty of "obstruction of business" and sentenced to one year in prison.
Pressure on KGEU kept up: Even after its official registration in 2007, the Korean Government Employees' Union (KGEU) continued to face restrictions on its activities. Government departments were ordered not to recognise the union's branches, for instance. Public Services International (PSI) reports that 29 KGEU leaders were arrested in 2008, including the union's former President, Gwon Seung-bok. The public prosecutor's office also brought charges against the current KGEU President, Shon Young-tae, together with three vice-presidents, for allegedly breaching the laws governing the behaviour of local authority employees. Civil servants who join the KGEU risk dismissal (at least 70 have lost their jobs this way), being denied promotion, transferred to distant workplaces, or receiving other sanctions. At least 240 KGEU branch offices have been closed down since 22 September 2006, and the union was banned from holding its national convention on 10 July 2008.
No improvement at POSCO: Two years after the killing of Ha Joong Keun by anti-riot police during a sit-in outside the head office of POSCO (a major Korean steel producer), a full and impartial investigation has yet to be carried out. The violent repression of the demonstration left nearly 200 others injured. A hundred union members were arrested, and eight of them received heavy prison sentences. At the end of 2008, Lee Je Kyung, the former President of the Pohang Construction Plant Workers' Union (PCPWU), was still in prison, and POSCO was still refusing to allow unionised workers from one of its sub-contractors, Pohang, to enter its sites.
Strikers attacked at Kiryung: The International Metalworkers' Federation (IMF) reports that in October 12 people were arrested, one was hospitalised and many more were injured by police and the thugs hired by Kiryung Electronics (key producer of Sirius Satellite Radios, which has exclusive partnerships with major automakers including BMW, Chrysler, Daimler, Volkswagen, Ford, Volvo, and Toyota) to break a strike by the KMWU. The protest had begun three years earlier, triggered by the dismissal of women workers recruited by a temporary employment agency. They had joined the KMWU in July 2005, but the company had quickly threatened them with dismissal. The violent incidents took place in 2008, just a few months after the ILO's Committee on Freedom of Association had issued a stern recommendation to the Korean 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 at ... Kiryung Electronics."
Prison sentences for teachers' union leaders: On 15 July, a court in Seoul sentenced five leaders of the Korean Teachers and Education Workers Union (KTU) to between six and 12 months in prison for trade union action in 2006, in particular a peaceful and legal strike organised in July and November 2006. The five leaders concerned were the union's then President, Ms. Jan Hye-ok, and Vice-President, Mr. Cha Sang-chil, and three executive members, Mr. Ha Jong-su, Mr. Jang In-kwon and Mr. Jeong Jae-wook. On appeal, the Seoul High Court reduced the sentences of four of the five leaders to fines. It upheld the 12-month prison sentenced handed down to former KTU President, Ms. Jang Hye-ok, who lost her job. A total of 28 KTU members were ordered to pay fines, ranging from about 800 to 7,000 dollars, and were given pay cuts.
Violence against peaceful sit-in: On 11 March a 182-day sit-in by workers at Koskom (which distributes market data for the Korea Stock Exchange) to protest against the use of irregular workers, was violently broken up under the supervision of hundreds of anti-riot police. Several workers were seriously wounded in the attack and their tents destroyed. At the end of 2008 management reached an agreement with the union to end the labour dispute, which had lasted 475 days.
Anti-unionism at Allianz Life Korea: 850 employees at Allianz Life Korea (a subsidiary of the German insurance multinational) went on strike in February to protest about the violation of the collective agreement signed in 2006. Management reacted by imposing a lock-out. 87 sales managers were dismissed for taking part in the strike. The union's President and one of his colleagues were arrested "for obstructing Allianz's economic activities", just before they were due to go to Germany in the hope of discussing their problems at the Allianz head office. After a long struggle by the union at Allianz Life Korea and, at the international level, by UNI, a provisional agreement was reached between the union and management in September.