Definitive Report - REPORT_NO377, March 2016

1. 289. The Committee last examined this case at its March 2015 meeting, when it presented an interim report to the Governing Body [see 374th Report, paras 286–305, approved by the Governing Body at its 323rd Session].
2. 290. The Government sent its observations in a communication dated 18 September 2015.
3. 291. 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. 292. At its March 2015 meeting, the Committee made the following recommendations [see 374th Report, para. 305]:
   • (a) Deploring that the Government’s appeal against the Seoul High Court’s decision in favour of the MTU’s registration is still pending more than eight years after it was lodged, the Committee once again firmly expects that the Supreme Court judgment concerning the MTU’s status will be rendered without further delay and will duly take into account the allegations that the failure to register the MTU has been accompanied by a targeted crackdown against its leaders and members. In the meantime, the Committee once again urges the Government to ensure that the Committee’s conclusions, particularly those concerning the freedom of association rights of migrant workers, are submitted for the Court’s consideration, and to provide a copy of the Supreme Court’s decision once it is handed down.
   • (b) The Committee once again expresses its firm expectation that the Government will make every effort to proceed with the registration of the MTU without further delay and requests it to provide full particulars in this regard.
   • (c) The Committee once again urges 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 once again requests to be kept informed of the progress made in this regard.
   • (d) The Committee invites the complainants to provide any additional information they consider may assist the Committee’s understanding of the current functioning of the MTU.
   • (e) The Committee reminds the Government that, if it so wishes, it may avail itself of technical assistance from the Office in relation to the matters raised by this case.

B. The Government’s reply

1. 293. In its communication dated 18 September 2015, the Government indicates that on 25 June 2015, the Supreme Court handed down a judgment related to the rejection of the registration of the Migrants’ Trade Union (MTU). According to the Government, the Supreme Court decided en banc that “persons living on wages, salary or other equivalent form of income earned in pursuit of any type of job constitute workers under the Trade Union and Labour Relations Adjustment Act (TULRAA), and even if he/she is a foreigner not eligible for employment, he/she cannot be seen as being beyond the scope of workers as prescribed by the TULRAA, and thus a foreign worker who does not have the status of sojourn eligible for employment may organize or join trade unions”. The Government states that the Supreme Court also specified in its judgment that allowing foreign workers without legitimate sojourn status to join trade unions does not mean that permission for employment was granted or that their stay in the Republic of Korea was legalized. A press release on the decision, prepared by the Supreme Court Public Relations Bureau, is attached to the Government’s report. The Government further provides that, after the ruling, it examined whether the new bylaw submitted by the MTU was in conformity with the TULRAA and issued a certificate of registration on 20 August 2015. It further asserts that since the MTU became a legal trade union by registration, further review of the complaint was no longer necessary.

C. The Committee’s conclusions

1. 294. The Committee recalls that this case concerns allegations that the Government refused to register the MTU and carried out a targeted crackdown on the MTU by successively arresting its officers and subsequently deporting many of them, against a background of allegedly generalized discrimination against migrant workers.
2. 295. With regard to recommendation (a), the Committee welcomes the long-awaited judgment rendered by the Supreme Court on 25 June 2015, in which it dismissed the Government’s appeal against the Seoul High Court decision in favour of the MTU’s registration and ruled that a foreign worker who does not have the status of sojourn may organize or join trade unions. In particular, the Committee notes with interest the following extracts of the Supreme Court Public Relations Bureau press release: (i) “persons living on wages, salary or other equivalent form of income earned in pursuit of any type of job constitute workers under the Trade Union and Labour Relations Adjustment Act (TULRAA), and even if he/she is a foreigner not eligible for employment, he/she cannot be seen as being beyond the scope of workers as prescribed by the TULRAA, and thus a foreign worker who does not have the status of sojourn eligible for employment may organize or join trade unions”; and (ii) “the act of organizing or joining a trade union cannot be prohibited simply because the person concerned is a foreign worker who does not have legitimate status of sojourn”. The Committee further notes that the Supreme Court differentiates between “applying laws on immigration control and employment of foreigners, such as carrying out employment restriction or deportation on foreigners ineligible for employment” and “ensuring workers’ rights under the TULRAA”, and observes the Supreme Court’s reasoning: “in accordance with the Immigration Control Act, foreigners should attain the status of sojourn eligible for employment to be employed in the Republic of Korea, and a foreigner employed without the legitimate status of sojourn for employment is subject to deportation and punishment; [t]he purpose, however, is deemed to prohibit employers from hiring foreigners who do not have the status of sojourn eligible for employment, not to deny foreigners ineligible for employment the rights that come with the service they have actually provided, or all the rights they deserve as workers under the TULRAA”.
3. 296. As regards recommendation (b), the Committee notes with satisfaction the Government’s indication that following the Supreme Court judgment, the Ministry of Employment and Labour examined the new bylaw submitted by the MTU and issued a certificate of registration on 20 August 2015.
4. 297. As regards recommendation (c), while firmly expecting that the Supreme Court ruling on the right of all migrant workers to organize and join trade unions will be given full effect in practice, the Committee trusts that the Government will pursue a review of the situation concerning the status of migrant workers in full consultation with the social partners concerned, including the MTU, 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.