Interim Report - REPORT_NO358, November 2010

1. 447. The Committee examined this case on its merits at its November 2009 session, where it issued an interim report, approved by the Governing Body at its 306th Session [see 355th Report, paras 679–710].
2. 448. The Government provided observations in a communication of October 2010.
3. 449. 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. 450. In its previous examination of the case, the Committee made the following recommendations [see 355th Report, para. 710]:
   • (a) 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.
   • (b) The Committee requests the Government to undertake an in-depth 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.
   • (c) 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.

B. The Government’s reply

1. 451. In a communication of October 2010, the Government states that the Supreme Court has not yet handed down its decision on the case pending since 23 February 2007 with regard to the case concerning the Migrants’ Trade Union (MTU)’s status. As the defendant of the case, the Government is making every effort to help the Supreme Court make a decision based on sufficient information by submitting supplementary reports explaining its reasons for appeal on four occasions and the Seoul High Public Prosecutor’s Office also provided reference materials to the Supreme Court. The Government expects the decision to be handed down soon since, in addition to the parties concerned, the Committee, employers’ and workers’ organizations at home and abroad as well as civil society organizations are waiting for it.
2. 452. The Government once again emphasizes that the Supreme Court case is regarding foreign workers illegally staying in the Republic of Korea, and foreign workers who stay in the Republic of Korea with a valid working visa are granted the same labour rights as Korean citizens including the right to establish a trade union. In fact, in November 2009, a group of foreign English teachers established a trade union, submitted a union establishment report, and received a union establishment certificate from the Government.
3. 453. By revising the Foreign Workers Employment Act, the Government modified on 10 December 2009 the system of allowing foreign workers to change their workplaces in order to strengthen protection for foreign workers. Previously, a foreign worker who applied for a change of workplace had to be re-employed within two months after application. Though more than 95 per cent of applicants succeeded in finding a new job within the permitted period even under the past system, the period has been extended to three months to give foreign workers enough time to seek re-employment. In addition, when a foreign worker has to transfer to another workplace due to business suspension or closure, or other reasons not attributable to the worker him/herself, such transfer is not counted toward the total number of workplace changes. This change has made it possible for foreign workers to freely change their workplace when an inevitable reason not attributable to themselves arises.
4. 454. Moreover, in order to manage foreign workers’ health and protect them from industrial accidents, the Government is strengthening occupational safety and health education. Since July 2009, the Ministry of Employment and Labour has widely distributed health examination forms and explanations about each examination in foreign languages to workplaces employing foreign workers so that foreign workers can manage their health in appropriate ways. It provides interpreters for foreign workers during their health examination and counselling. The Government also supports the development of education materials and instructor training with a view to preventing industrial accidents among foreign workers.

C. The Committee’s conclusions

1. 455. 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 Migrants’ Trade Union (MTU) and carried out a targeted crackdown on the MTU by successively arresting its Presidents Anwar Hossain, Kajiman Khapung and Toran Limbu, VicePresidents Raj Kumar Gurung (Raju) and Abdus Sabur, and General Secretary Abul Basher Moniruzzaman (Masum), and subsequently deporting many of them.
2. 456. From previous examinations of this case, the Committee recalls the following pertinent facts: 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 did 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 was 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 has been pending before the Supreme Court ever since.
3. 457. The Committee observes from the Government’s communication of October 2010, that the case is still pending before the Supreme Court. It further notes that the Government expects the decision to be rendered soon, as many parties are waiting for it.
4. 458. In respect of migrant workers, the Committee once again recalls, as it had in its previous examination of this case [see 355th Report, para. 705], 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 of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, 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” (paragraph 12).
5. 459. The Committee deeply regrets that, although three years have elapsed since the Seoul High Court’s decision in favour of the union, no new information has been provided by the Government and the appeal is still pending before the Supreme Court, more than threeand-a-half years after the appeal. In view of the principles respecting migrant workers noted above, and recalling once again 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, the Committee once again urges the Government to proceed with the MTU’s registration without delay 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. Furthermore, it once again 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, along with other information which the Government states it has been providing. It requests the Government to provide a copy of the Supreme Court’s decision once it is handed down.
6. 460. As regards the complainants allegations concerning a generalized discrimination against and the repression of migrant workers, the Committee takes note of the new measures adopted by the Government in the revised Foreign Workers Employment Act as regards some flexibility for looking for new jobs and expects that the workers’ freedom of movement will be fully respected. The Committee wishes, however, once again to emphasize the importance of guaranteeing the right of migrant workers, both documented and undocumented, to organize. It once again requests the Government to undertake an in-depth review of the situation concerning the status of migrant workers in full consultation 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 to be kept informed of the progress made in this regard.