Interim Report - REPORT_NO355, November 2009

1. 679. The Committee examined this case on its merits at its March 2009 session, where it issued an interim report, approved by the Governing Body at its 304th Session [see 353rd Report, paras 750–795].
2. 680. The Korean Confederation of Trade Unions (KCTU) submitted additional information in support of its allegations in a communication dated 21 July 2009.
3. 681. The Government transmitted its observations in a communication dated 5 October 2009.
4. 682. The Republic of Korea has not ratified either 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. 683. In its previous examination of the case, the Committee made the following recommendations [see 353rd Report, para. 795]:
   • (a) As regards the refusal of the authorities to acknowledge the establishment of the MTU and grant it trade union status, the Committee notes that this aspect of the case is pending before the Supreme Court and requests the Government to communicate this judgement as soon as it is rendered so that the Committee may examine this aspect of the case in full knowledge of the facts. The Committee intends to examine this issue in any event at its November 2009 meeting.
   • (b) The Committee requests the Government to avoid in the future measures which involve a risk of serious interference with trade union activities such as the arrest and deportation of trade union leaders shortly after their election to trade union office and while legal appeals are pending.

B. The complainant’s new allegations

1. 684. In its communication of 21 July 2009, the complainant KCTU states that, on 25 September 2008, the South Korean “Committee on Strengthening National Competitiveness”, a committee initiated and overseen by President Lee Myeong-bak, issued a report entitled “Plan for Improving Policy on the Unspecialized Foreign Labor Force”. This report outlined several policy reforms, to be implemented in 2009, which are aimed at cutting the costs incurred by employers who employ legal migrant workers and strengthening the crackdown against undocumented migrant workers. The report made specific reference to the Migrants’ Trade Union (MTU) and characterized “the establishment of a union by illegal foreigners” as part of a “tendency towards disregard for the law”. It announced the Government’s intention to “strengthen the crackdown against those who participate in and support [the MTU’s] illegal union activities and protests”, and cited the past arrest and deportation of MTU leaders as examples of the types of measures used for strengthening this crackdown against the union.
2. 685. The complainant indicates that the Government’s past targeting of MTU leaders and its clear intention to continue this attack has had a significant impact on union activities. The MTU has had to go without an official leadership, operating with an emergency structure in which decisions are made by an emergency leadership committee, but without publicly visible representatives. Thus, while there have been no further targeted arrests of leaders, this is because there has been no one to target. At the same time, the antagonistic position of the Government continues to impede the union’s daily activities due to widespread fear among the membership and potential membership that active participation in the union would lead to arrest and deportation. This sense of intimidation is true not only among undocumented migrant workers, but also among documented migrant workers who recognize that their legal status does not render them immune to government targeting and harassment. Moreover, the Government has called the MTU’s activities in opposition to government policy “illegal”, and has used this as part of its justification for continued repression against the union while failing to acknowledge that the opposition to such measures as the crackdown and restrictions on free employment for documented workers under the Employment Permit System (EPS) arises from the MTU’s objective of improving migrant workers’ working conditions.
3. 686. According to the complainant, the position taken by the Government is a further deterrent to potential members, documented and undocumented, whose right to join the MTU and use it as a vehicle to voice legitimate criticisms of policies that lead to exploitation and discrimination is being infringed upon. The continued denial of the MTU’s legal status has also greatly obstructed union activities. The case concerning the MTU’s status has been pending before the Supreme Court for over two years; during this time the MTU has been unable to carry out collective bargaining and related activities, which has obviously impacted upon its ability to work for the improvement of its members’ labour conditions. The MTU’s lawyers believe the process is being delayed in order to avoid having to either provide union recognition or risk stimulating negative public opinion with a ruling against the MTU. In the meantime, the MTU’s members continue to be denied the full exercise of their labour rights due to the union’s ambiguous status.
4. 687. The complainant indicates that the MTU has, since its founding, been open to all migrant workers in the Seoul-Gyeonggi-Incheon area, documented and undocumented. According to article 2 of its rules and regulations, the MTU aims to “oppose crackdowns (against undocumented migrant workers), improve migrant workers’ working conditions and rights and gain legalization for the freedom of migrant workers to work”. The MTU’s opposition to immigration crackdowns comes from concern over the violations of rights that occur in raids and detention; its support for a programme of legalization stems from recognition that undocumented workers are particularly vulnerable to exploitation and that this, in turn, has an effect on the entire labour force. This is a position shared by unions in countries with large undocumented migrant populations who naturally organize undocumented migrant workers as members. For example, members of the American labour movement such as the American Federation of Labor and Congress of Industrial Organizations (AFL–CIO) and Change to Win Federation recently released a “Framework for Comprehensive Immigration Reform” which recognizes that “rounding up and deporting” the millions of undocumented migrant workers in the US labour force is “not a realistic solution” and calls for an amnesty programme as a means to prevent employers from using the exploitation of undocumented labour to drive down wages overall. The framework also calls for a system that prevents employers from using immigration status to deny labour rights. The MTU’s goal of “improving migrant workers’ working conditions” of course applies to documented, as well as undocumented, workers and has lead it to take a critical stance with regards to the EPS.
5. 688. The complainant indicates that, despite the challenges it faces due to government repression, the MTU has continued to carry out daily operations including counselling and assistance to members and non-members concerning workplace-related problems (unpaid wages and overtime, industrial accidents, etc.), labour rights education for members and non-members and recruitment of new members. The MTU is also cultivating new leadership and union officers. Since the MTU was founded it has sought to represent the interests of both documented and undocumented migrants. However, the short-term (three-year) visas granted under the EPS has meant that until recently most documented migrant workers had not been in the Republic of Korea long enough to gain the experience working in South Korean society necessary to be able to play a union leadership role. Thus few documented migrant workers participated in the MTU’s founding and early stages. As more documented workers get to the latter part of their visa terms or renew their visas for a second three-year term, more and more have joined and taken leadership positions in the union. Many of MTU’s newer members are documented and documented migrant workers are now serving as union officers.
6. 689. The complainant adds that the deportation of MTU President Kajiman Khapung, Vice-President Raju Kumar Gurung (Raju) and General Secretary Maniruzzaman (Masum) took place on 13 December 2007, and not 11 December 2007 as indicated in the complainant’s communication of 18 December 2007. Finally, the complainant requests the Committee to issue conclusions on the present case in as timely a manner as possible, given that a Supreme Court decision on the official union status of the MTU is pending.

C. The Government’s reply

1. 690. In its communication of 5 October 2009, the Government states that the report referred to by the KCTU, the “Improvement Plan for Unskilled Foreign Labor Force Management”, was not intended to target and attack the MTU’s leaders, but was prepared rather with the aim of efficiently supplying foreign workers to areas suffering from labour shortages, given the supply and demand of domestic labour, and to minimize social costs. The report includes the following plans: a plan to receive foreign workers according to a mid- and long-term vision, and control the number of overseas Koreans employed and the industries they are employed in so as to fill job vacancies in the Republic of Korea; a plan to bring in the necessary workforce volume, simplify the employment procedure, and provide more stable employment conditions for foreign workers in order to meet companies’ demands; and a plan to expand public services relating to the employment and travel of foreign workers, strengthen post-employment services reflecting the characteristics of each industry, and create a comfortable and hospitable environment to stay so as to provide demand-oriented support for the employment and travel of foreign workers. It also includes measures to reduce illegal foreigners by putting in place a government-wide system of managing illegal foreign residents, preventing the illegal stay of foreigners, and cracking down on illegal foreigners.
2. 691. The Government states that the MTU’s questioning of its foreign workforce policy could be construed as excessive meddling in a sovereign country’s immigration policy, and reiterates that the MTU leaders were deported not because they were union leaders but because they were illegally staying in South Korea.
3. 692. The Government indicates that the MTU was denied trade union status for the following reasons. First, the MTU refused to accept the Government’s request for further information to determine whether it comprised multiple unions or not. Second, it was not possible for the MTU to establish legitimate labour relationships and engage in collective bargaining in the future as its members were illegally staying in the Republic of Korea. Third, by opposing crackdowns on illegal foreign residents, the MTU claimed to be pursuing purposes running counter to law and order in a sovereign country and beyond the scope of the purposes of a trade union recognized as legitimate under the TULRAA.
4. 693. As concerns the restrictions on changing workplaces in the EPS, the Government maintains that such restrictions are generally used by countries which have adopted an employment permit system. The intent of the EPS is not to give work permits which allow migrant workers to be free to find jobs in the Republic of Korea but to give employment permits which allow migrant workers to work in workplaces where workers are needed. Nevertheless, a migrant worker is allowed to move to another workplace up to four times if the conditions for a change of workplace, which take into account the human rights of migrant workers, are satisfied. More than 90 per cent of migrant workers applying to move to another workplace have been permitted to do so; in 2008, such permission was granted in 26,164 cases.
5. 694. As concerns crackdowns on foreigners illegally staying in the Republic of Korea, the Government indicates that such crackdowns are conducted to establish order in immigration control. Arresting illegal foreigners according to the immigration control law and deporting them to their home countries is a country’s right and thus has nothing to do with the rights of foreign workers to engage in union activities. Even a union leader can legitimately be arrested and deported if he or she has violated the immigration control law, and opposing this kind of arrest and deportation amounts to opposing a country’s border control measures.
6. 695. The Government states, in respect of the pending Supreme Court decision, that the MTU defence lawyer’s speculation that the Supreme Court might be delaying its ruling to avoid the risk of stirring up negative public opinion is inappropriate, and merely represents a personal opinion. The Government indicates that it too wishes the ruling to be handed down as soon as possible and stresses that, as the Supreme Court is a strictly independent body, speculation as to the reasons for delays in its rulings should be refrained from.
7. 696. The Government states that it has put into place various legal and institutional devices to eliminate discrimination against foreign workers and protect their rights and interests. Foreigners legally staying in the Republic of Korea can work legitimately pursuant to the Foreign Workers Employment Act, are subject to the Labour Standards Act and are granted basic labour rights. In addition, to prevent infringements on foreign workers’ human rights, government officials visit workplaces with foreign workers to provide counselling and other necessary services to solve their difficulties. With a view to helping foreign workers to adapt smoothly to life in the Republic of Korea, the Government has set up foreign worker support centres that provide interpretation, opportunities to learn Korean, counselling to address grievances, and other services. As of July 2009 such centres were operating in five cities, including Seoul, Ansan and Gimhae where foreign workers are concentrated. Both the number of support centres and the programmes they provide will be increased; additionally 100 shelters for foreign workers are operated, mainly by private organizations. Finally, the Government states that it recognizes cultural diversity among foreign workers and helps them to adapt well to life in the Republic of Korea by organizing such events as cultural festivals.

D. The Committee’s conclusions

1. 697. The Committee recalls that this case concerns allegations that, against a background of an allegedly generalized discrimination against migrant workers intended to create a low-wage and easily exploitable labour force, the Government refused to register the MTU and carried out a targeted crackdown on the MTU by successively arresting its Presidents Anwar Hossain, Kajiman Khapung and Toran Limbu, Vice-Presidents Raj Kumar Gurung (Raju) and Abdus Sabur and General Secretary Abul Basher Moniruzzaman (Masum), and subsequently deporting many of them.
2. 698. The Committee recalls, from its previous examination of this case, that the facts that emerged from the complainant’s previous allegations and the Government’s previous reply were the following: on 3 May 2005, the MTU sent a notification of its establishment to the Seoul Regional Labour Office. On 3 June 2005, the Seoul Regional Labour Office rejected the notification essentially on the following grounds: (i) the union failed to produce documents to prove that its establishment does not violate the provisions of the Trade Union and Labour Relations Adjustment Act (TULRAA) upholding trade union monopoly at the enterprise level; and (ii) the union was composed mainly of illegally employed foreigners “who do not have the right to join labour unions” and its officers are foreigners without legal right of residence and employment. On 14 June 2005, the MTU filed an administrative suit against the Seoul Regional Labour Office which was rejected by the courts essentially on the grounds that: (i) the union was under an obligation to produce documents proving that the provisions of the TULRAA on trade union monopoly are not violated; and (ii) since illegal residents are strictly banned from employment under the Immigration Control Act, they are not vested with the legal right to seek to improve and maintain their working conditions and to improve their status; such rights are given on the assumption that legitimate employment relations will continue; thus, illegal migrant workers are not eligible to establish a trade union. The MTU appealed against this decision and the Seoul High Court decided on 1 February 2007 in favour of the union on the following grounds: (i) there was no need to produce documents to ensure application of the provisions of the TULRAA upholding trade union monopoly, since these provisions apply in specific circumstances at the enterprise level while the MTU was established above that level; (ii) irregular migrant workers qualify as workers under the Constitution and the TULRAA and, therefore, they are vested with legally protected basic labour rights; they are workers allowed to set up trade unions as long as they actually provide labour services and live on wages, salaries or other equivalent income paid for their service; and (iii) the restrictions on the employment of illegal migrant workers under the Immigration Control Act are not intended to prohibit foreign workers from forming a workers’ organization to improve their working conditions. As a result, the High Court found that it is against the law to request a list of union members with the only purpose of checking whether they hold legal residence status. The Government appealed against this decision and the case is pending before the Supreme Court. In the meantime, several leaders of the MTU have been arrested in successive crackdown operations and, in certain cases, deported.
3. 699. As regards the refusal of the authorities to acknowledge the establishment of the MTU and grant it trade union status, the Committee recalls that this aspect of the case was pending before the Supreme Court and that it had requested the Government to communicate this judgement as soon as it was rendered. The Committee notes with regret that over two years have elapsed since the Seoul High Court’s decision in favour of the union, without any judgement yet being handed down by the Supreme Court in respect of that decision’s appeal and without the granting of injunctive relief for the MTU. In these circumstances, and as announced in its previous conclusions, the Committee will proceed with its examination of this aspect of the case.
4. 700. The Committee recalls the complainant’s prior indications regarding the authorities’ refusal to acknowledge the MTU and grant it trade union status, in particular the following: (i) that, as acknowledged by the High Court, the Seoul Regional Labour Office should not have rejected the notification of the MTU’s establishment, as verification of the residence status of migrant workers is not a prerequisite for the establishment of a trade union under the Constitution and the TULRAA; and (ii) that there was no need to verify the observance of enterprise-level trade union monopoly in the circumstances of this case, since the MTU is established above the enterprise level.
5. 701. The Committee further notes, in this respect, that the Government reiterates that the MTU leaders were deported not for their union activities, but for having illegally stayed in the country, and that it has no obligation to issue a report certificate and endow legal privileges to a trade union that: (1) had as its head an offender illegally staying in the Republic of Korea; (2) had declared in its by-laws its opposition to crackdowns on illegal foreign residents, a purpose that runs counter to the laws of the country; (3) could not establish legitimate labour relationships and engage in collective bargaining as its members were illegally staying in the Republic of Korea; and (4) had refused the Government’s request for the submission of complementary documents.
6. 702. As regards the Government’s objections to the MTU’s by-laws, the Committee recalls that, as it has found in the past, workers should have the right to establish the organizations that they consider necessary in a climate of complete security irrespective of whether or not they support the social and economic model of the Government, including the political model of the country [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 213] or, as in this case, the Government’s migration policy. The Committee recalls that, to guarantee the right of workers’ organizations to draw up their constitutions and rules in full freedom, national legislation should only lay down formal requirements as regards trade union constitutions, and the constitutions and rules should not be subject to prior approval by the public authorities [see Digest, op. cit., para. 371].
7. 703. With regard to the failure to produce documents ensuring the application of provisions of the TULRAA on union monopoly, the Committee recalls that it has been calling for the legalization of trade union pluralism at the enterprise level ever since its first examination of Case No. 1865 and that it has urged the Government to speed up this process ever since the decision was taken in 2001 to delay the legalization of enterprise trade union pluralism. The Committee has therefore urged the Government on many occasions to take rapid steps for the legalization of trade union pluralism at the enterprise level, in full consultation with all social partners concerned, so as to guarantee at all levels the right of workers to establish and join the organization of their own choosing [335th Report, para. 821, and 346th Report, para. 806(c)(1)]. In any event, the Committee understands from the complainant’s allegations that the MTU was established above enterprise level.
8. 704. As regards the status of the MTU’s officers, the Committee has considered that legislation should be made flexible so as to permit the organizations to elect their leaders freely and without hindrance, and to permit foreign workers access to trade union posts, at least after a reasonable period of residence in the host country [see Digest, op. cit., para. 420]. Thus, the concerns expressed by the Government in this regard would not appear to be contrary to the principles of freedom of association. The Committee further observes that it may be difficult in the current context to establish a reasonable residency requirement before migrant workers may run for trade union office, given the complainant’s allegations that, while the MTU is cultivating new leadership and documented migrant workers are serving as union officers, the three-year limit on workers’ legal residency both limits the union’s capacity for long-term leadership and places pressure on relatively inexperienced migrant workers to assume leadership roles with little to no protection against dismissal or deportation. Additionally, the Committee notes with concern the complainant’s allegation that the lack of a Supreme Court decision on the MTU’s status has greatly obstructed the latter’s activities and its ability to further the interests of its members.
9. 705. In respect of migrant workers, the Committee once again recalls, as it had in its previous examination of this case [see 353rd Report, para. 788], the general principle according to which all workers, without distinction whatsoever, including without discrimination in regard to occupation, should have the right to establish and join organizations of their own choosing [see Digest, op. cit., para. 216]. The Committee further recalls that when examining legislation that denied the right to organize to migrant workers in an irregular situation – a situation maintained de facto in this case – it has emphasized that all workers, with the sole exception of the armed forces and the police, are covered by Convention No. 87, and it therefore requested the Government to take the terms of Article 2 of Convention No. 87 into account in the legislation in question [see Digest, op. cit., para. 214]. The Committee also recalls the resolution concerning a fair deal for migrant workers in a global economy adopted by the ILO Conference at its 92nd Session (2004) according to which “[a]ll migrant workers also benefit from the protection offered by the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up (1998). In addition, the eight core ILO Conventions regarding freedom of association and the right to bargain collectively, non-discrimination in employment and occupation, the prohibition of forced labour and the elimination of child labour, cover all migrant workers, regardless of status” [para. 12]. In these circumstances, and in light of the recent information provided by the complainant as to the documented status of its officers and many of its members, the Committee requests the Government to proceed with the MTU’s prompt registration and to ensure that national decisions concerning the MTU’s application for registration recognize the principle that all workers may be guaranteed the full exercise of their freedom of association rights. It further requests the Government to ensure that the Committee’s conclusions, particularly those concerning the freedom of association rights of migrant workers, are submitted for the Supreme Court’s consideration and to provide a copy of the Supreme Court’s decision once it is handed down.
10. 706. The Committee notes that the complainant reiterates its previous allegation of generalized discrimination against and repression of migrant workers. The Committee considers that it is precisely for this reason that all workers, regardless of their status, should be guaranteed their freedom of association rights so as to avoid the possibility of having their precarious situation taken advantage of. In light of the above, and emphasizing the importance of guaranteeing the right of migrant workers, both documented and undocumented, to organize, the Committee requests the Government to undertake an indepth review of the situation concerning the status of migrant workers along with the social partners concerned, so as to fully ensure and safeguard the fundamental rights to freedom of association and collective bargaining of all migrant workers, whether in a regular or irregular situation and in conformity with freedom of association principles, and to prioritize dialogue with the social partners concerned as a means to find negotiated solutions to the issues faced by these workers. The Committee requests the Government to keep it informed of the progress made in this regard.
11. 707. The Committee recalls that it had previously expressed deep concern over the coincidental timing of the arrest and deportation of MTU leaders with the trade union activities of those long-standing workers [see 353rd Report, paras 790–793]. In this connection, the Committee notes the government report entitled the “Improvement Plan for Unskilled Foreign Labor Force Management”, which according to the complainant makes specific reference to the MTU, characterizes “the establishment of a union by illegal foreigners” as part of a “tendency towards disregard for the law”, and declares the Government’s intention to “strengthen the crackdown against those who participate in and support [the MTU’s] illegal union activities and protests” while citing the past arrest and deportation of MTU leaders as examples of the types of measures to be employed.
12. 708. While noting the Government’s statement that the report was not intended to target and attack the MTU’s leaders, but was prepared rather with the aim of efficiently supplying foreign workers to areas suffering from labour shortages and minimizing social costs through the provision of services, the Committee observes that the Government confirms that the plan outlined in the report includes measures to reduce illegal foreigners by putting in place a government-wide system of managing illegal foreign residents, preventing the illegal stay of foreigners, and cracking down on illegal foreigners.
13. 709. The Committee takes note, finally, of the complainant’s allegation that following the arrest and deportation of several MTU leaders, the union has had to go without an official leadership and operates with an emergency structure in which decisions are made by an emergency leadership committee – but without publicly visible representatives. In view of these indications, the Committee once again requests the Government to refrain from taking measures which involve a risk of serious interference with trade union activities, such as the arrest and deportation of trade union leaders for reasons related to their election to trade union office and while legal appeals are pending.