Report in which the committee requests to be kept informed of development - REPORT_NO408, October 2024

1. 600. The complaint is contained in a communication dated 20 October 2022 from the Korean Federation of Construction Industry Trade Unions (KFCITU), the Korean Confederation of Trade Unions (KCTU) and the Building and Woodworkers International (BWI). In a communication dated 12 September 2023, the complainants sent additional information.
2. 601. The Government provided its observations in communications dated 28 February and 10 September 2024.
3. 602. The Republic of Korea has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 603. In their communications, the KFCITU, the KCTU, and the BWI allege that, through the misuse of several national laws, the Government has qualified as unlawful certain activities of the Korean Construction Workers Union (KCWU), an industrial trade union affiliated with the KFCITU, and has imposed civil and criminal sanctions on the union while the activities at issue are common union practices around the world and in line with ILO Conventions Nos 87 and 98. The complainants allege that these measures weaken the right of the KCWU to associate, to organize, and to collectively bargain and have a general chilling effect on union activities in the Republic of Korea.
2. 604. The complainants state that the KCWU has the characteristics of a craft union composed of trade workers with specific professional skills. Historically, craft unions representing skilled workers were the first type of unions formed and they helped members find jobs. Jobs in the construction industry are intermittent and various types of specialized construction workers are employed on short-term contracts to work on specific projects. Once a project is completed workers remain unemployed until hired again for another project. In this context, unions, including the KCWU, focus on securing more employment opportunities for their members through negotiation with employers. According to the complainants, construction sites and harbours, where workers provide loading and unloading services, present a similar pattern of intermittent employment. Shipping unions in the Republic of Korea are allowed to demand employment for their members through collective bargaining. It is equally important for the KCWU to be able to do the same to protect its members’ rights. The complainants further allege that employers in the construction industry pursue a strategy of denying employment to union members, therefore, securing employment opportunities through collective bargaining gains further importance, otherwise workers will leave unions because of denial of employment to union members, which in turn entails serious difficulties for unions to survive. The complainants allege that this is the result intended by the Government and employers in the construction industry.
3. 605. The complainants indicate that in late 2021, the Government had formed the “Task Force for Eradicating Unlawful Activities at Construction Sites” to further anti-union persecution in three common forms: (i) the Fair Trade Commission (FTC) has considered members of the KCWU Construction Equipment Division, such as dump truck drivers and excavator operators who are largely categorized as “persons in special types of employment” (persons in disguised employment), as business entities and their unions as trade associations subject to competition law. The complainants state that the FTC has claimed that unions were engaging in anti-competitive activities such as price-fixing and has further considered that KCWU’s request for employment constituted prohibited activity for a “trade association” and is currently investigating 20 cases in this respect. They allege that FTC investigations have nearly suffocated union activities; (ii) the Ministry of Employment and Labour (MOEL) has imposed a fine of up to 60 million Korean won (KRW) against the KCWU for violating the Fair Hiring Act in four cases related to two construction sites, while six additional sites were under investigation. In this respect, a total of 103 persons were reported to be prosecuted and one was arrested; and (iii) the Government has conducted investigations and prosecuted the KCWU under criminal charges of coercion or threat, merely for making collective bargaining demands that the employer employ union members. The complainants affirm this contrasts with the worldwide practice of building industry unions who negotiate with employers to hire their members to “build union” on a construction project.
4. 606. The complainants allege that the FTC applies the Monopoly Regulation and Fair Trade Act (FTA) to the Busan Regional Construction Equipment branch of the KCWU, arguing that its members are business entities engaged in renting construction equipment and therefore form a trade association as defined in section 2 of the FTA. They allege that union activities such as collective bargaining, setting certain conditions in the collective agreement and demanding compliance with the collective agreement, can be qualified as unlawful collective practises under section 40(1), or unfair trade practises under section 45(1) of the FTA. The complainants refer to a specific case – 2021 GUSA 1312 – in which the FTC addressed a corrective order dated 14 January 2021 to the Ulleung Local of the Daegu & Gyeongbuk Regional Construction Equipment Branch of the KCWU for having set guidelines for wage bargaining with employers engaging in wage/rental rates negotiations in accordance with those guidelines, and establishing directives with a view to preventing deterioration of working conditions due to excessive competition among members. These acts were qualified as “determining, maintaining or changing prices” in violation of section 19, and “unfairly limiting price competition” in violation of section 40(1)(1) of the FTA. They further allege that in three other cases – 2020 BUSA 1323, 2021 BUSA 1173, and 2021 BUSA 1625 – the FTC conducted investigations into certain activities of the Busan Regional Construction Equipment Branch of the KCWU. The investigator eventually issued an opinion dated 11 April 2022 listing potential corrective measures applicable to the union which qualified actions such as protesting against a subcontractor who had unilaterally terminated hiring contracts with union members, requesting subcontractors to employ its members, and engaging in a campaign against a subcontractor who had unilaterally cut rental rates that had been previously agreed, as acts of forcing a third party to reject transactions with business entities that were not members of a specific trade association, prohibited under articles 51(1.4) and 45(1.1) of the FTA. In their September 2023 communication, the complainants allege that on 28 February 2023 the FTC issued Decision No. 2023-042 on this case, which provided that the union “shall not again engage in conduct that causes a construction contractor to unfairly refuse to do business with a construction equipment lessor that is not a member of the Respondent and to stop or not initiate business with a construction equipment lessor that is not a member of the Respondent by stopping the operation of construction equipment or on-site rallies or notifying the construction contractor thereof”. The FTC decision also imposed penalty surcharges of 100 million won to be paid within 60 days as specified in the notice of penalty payment.
5. 607. The complainants provide the following list of the FTC cases against organizations affiliated with the KCWU: (i) Ulneung Local of Daegyeong Construction Equipment Branch (2021Gusa1312); (ii) Busan Construction Equipment Branch (2020Busa1323, 2021Busa1173, 2021Busa1625); (iii) Busan Construction Equipment Branch (2021Busa1275); (iv) Excavator Operators’ Local of Busan Construction Equipment Branch (2022Gusa0280, 2022Gusa0281); (v) Sky Crane Operators’ Local of Daejeon Construction Equipment Branch (2022Jeonsa0329); (vi) Ulsan Construction Equipment Branch (2021Busa1078, 2022Busa0517, 2022Busa1753); (vii) Busan Construction Equipment Branch (2021Busa2451, 2022Busa0523, 2022Busa0557, 2022Busa0527, 2022Busa0878) and (viii) Hapcheon Local of Gyeongnam Construction Equipment Branch (2022Busa0882).
6. 608. The complainants state that even persons registered as business entities in the tax system can be workers under Trade Unions and Labour Relations Adjustment Act (TULRAA), since pursuant to a series of Supreme Court rulings, the most important factors in determining whether a person can be recognized as a worker are economic and organizational dependence. For instance, the Supreme Court has ruled that actors are workers under the TULRAA because they should be able to negotiate terms and conditions of labour with the help of unions on an equal footing with broadcasting businesses. Therefore, according to the complainants, members of the Construction Equipment Division of the KCWU are similarly “workers” who fall under the scope of the TULRAA and therefore their trade union rights should be recognized under national law. According to the complainants, while members of the KCWU Regional Construction Equipment Branch do not fall under the definition of employees in LSA, they are workers under the TULRAA and have long been engaged in union activities. Qualification of this Branch as a business entity under the FTA would entail the denial of their basic labour rights in particular the rights to collective bargaining and collective action. Ordinary union activities aimed at compelling members to comply with internally set standards, would also be qualified as violations of the FTA.
7. 609. Regarding the imposition of fines for violation of the Fair Hiring Act, the complainants allege that the KCWU was fined because of having bargained for employment opportunities and having staged actions to urge the implementation of a labour-management agreement. According to the complainants, the Government had qualified these acts as unlawful pressure and coercion for employment in violation of section 4(2)1 of the Fair hiring procedure act. They refer to the specific case in which the Daejeon Regional Office of Employment and Labor imposed a fine of 15 million won on Ik-bong Ahn, President of the Daejeon Chungcheong Regional Tower Crane Branch of the KCWU, because the union had staged a rally in front of a construction site, protesting against the unilateral revocation of an agreement with a tower crane rental firm, which had agreed to hire union members on tower cranes installed at the site. The complainants allege that the imposition of civil penalties under the Fair Hiring Act for these activities is a violation of the right to freedom of association, including the right to take industrial action, and to be free from anti-union discrimination.
8. 610. Regarding criminal charges of coercion (section 324 of the Criminal Act) brought against the KCWU, the complainants indicate that Korean prosecutors and courts consider that demands of employment of union members are not appropriate collective bargaining demands, because they don’t relate to working conditions and infringe the management rights of employers. Furthermore, site-level bargaining and collective actions such as organization of rallies or reporting violations of the Occupational Safety and Health Act to put pressure on the employer, are qualified as threat, which is a component of coercion. The complainants refer to cases brought from April 2014 to February 2015, by Junkyung Tower Crane Services, a tower crane rental firm, against several members and officials of the Tower Crane Operators’ Division of the KCWU. The firm had complained that union officials had committed the crime of coercion by requesting the employment of union members. The complaints referred to a rally held by the union to put pressure on the firm to employ union members. These cases led to the arrest of the president of the Tower Crane Operators’ Division and four other union officials on 27 November 2015 and the indictment of 15 members of the Division on 8 December 2015. The Seoul High Court issued a guilty verdict regarding coercion on 31 May 2017, considering the following acts as threats, an essential component of coercion: using verbal pressure from union officials to call for the firm to accept their demands during negotiations for collective bargaining regarding the employment of union members; holding rallies; and accusing general contractors, which had a contract with the firm, of violating the Occupational Safety and Health Act over the period of collective bargaining. This ruling was upheld by the Supreme Court of Korea on 31 October 2019.
9. 611. The complainants affirm that from their standpoint construction workers concerned by the present case have been misclassified as independent contractors. They add however that even independent contractors should not be excluded from the enjoyment of the fundamental labour rights and therefore the FTA must be amended to ensure that all workers protected under the TULRAA are exempted from its scope. Furthermore, the complainants allege that through their position that KCWU’s request for employing union members is illegal, the Korean Government and judicial authorities have unilaterally determined the scope of negotiable issues in collective bargaining and therefore have violated Article 4 of Convention No. 98. They emphasize that the dispute is not about the establishment of a union security system, as the union’s demand was not to employ only union members, and details such as the amount and procedures for the employment and the union’s responsibility for skills could be discussed between labour and management in collective bargaining negotiations.
10. 612. The complainants also emphasize that prohibiting trade unions’ setting internal rules of wage bargaining with a view to preventing excessive competition among workers, infringes the freedom to organize union activities and formulate programmes guaranteed in Article 3 of Convention No. 87. Finally, the complainants affirm that the imposition of criminal penalties for the crime of coercion and imposition of civil penalties under the Fair Hiring Act against the union’s efforts to uphold its demands through verbal pressure on the employers, holding rallies and reporting violations of the Occupational Safety and Health Act, constitute violations of the right to freedom of association and the right to organize. They allege that the Government, contrary to its obligation under Article 11 of Convention No. 87 has developed a plan, with a taskforce, together with the construction industry, to make trade unionism in the sector illegal by using the law against them.
11. 613. In conclusion, the complainants allege that because of the investigations conducted into union activities by prosecutors and the FTC, as well as imposition of fines by the Ministry of Employment and Labour, KCWU’s activities and existence have come under threat. Employers deny union members employment (contracts), refuse collective bargaining with the union, and disregard collective agreements. As demands for employment of union members are outlawed, clashes erupt on construction sites between labour and management, because collective bargaining which can provide an outlet for tension is blocked. They request that the Korean Government stop the suppression of the KCWU and ensure the union’s demand for employment is dealt with autonomous collective bargaining between the management and labour in consideration of the employment structure and characteristics of construction sites where short-term employment dominates. The Government should also work on building regulations and institutions necessary to support autonomous collective bargaining.
12. 614. In their communication dated 12 September 2023 the complainants provide additional information, alleging that between January and 17 August 2023, more than 1700 members of the KCWU were summoned by the police, 20 raids were conducted on union facilities including its central office, and 37 persons were detained or imprisoned. Union members were subjected to investigation and prosecution for having made demands for hiring union members, bargaining with construction companies, and receiving paid time off in accordance with the collective agreement. These union activities received criminal qualifications as intimidation, coercion and extortion. The authorities focused on outlawing paid time-off provisions as charges of extortion for use of paid time off were widely used, with 465 members investigated, while 523 members were charged with intimidation. The complainants emphasize that granting of paid time off is agreed upon by the employer and the union through the bargaining process and cite a clause of an agreement which stipulates the following:
    • Article 2 (Paid time-offs)
    • 1. For the purpose of maintaining and managing a sound union, the Company shall exempt the personnel designated by the union from working 48 hours per month per site within the scope described in the Trade Union and Labor Relations Adjustment Act, and shall make an employment contract for the personnel and pay premiums for the four social insurances. However, companies other than the members of the Seoul-Gyeongi-Incheon Reinforced Concrete Construction Employers’ Association shall determine conditions separately.
    • 2. The Company shall ensure the free activities of labor unions regarding the use of paid time-offs pursuant to Paragraph 1, and the Company shall not interfere with them.
    • 3. The Company shall pay wages for the paid time-offs pursuant to Paragraph 1 as if they were worked, and shall not disadvantage the personnel in wages, welfare benefits, special performance fees, etc. on the ground that they are exempt from working hours.
13. The complainants allege in this respect that providing paid time off for full-time union officials is a legitimate activity under the TULRAA, including when paid time off is granted on the condition that union members be hired. They state the authorities assume that demands to hire union members were made to obtain paid time off, putting the cart before the horse, while the granting of paid time off is agreed upon by the employer and the union through the bargaining process.
14. 615. The complainants allege that the political motivation behind the prosecution of union members is obvious in view of the smear campaign against construction trade unions led by President Yoon Seok-yul, ministers and other ruling party politicians. The KCWU was repeatedly denounced as immoral and during a live broadcast cabinet meeting on 21 February 2023, the President called construction trade unions “geon pok”, meaning construction gangsters and compared them to criminal organizations that use violence for the purpose of profit and gain. The President instructed competent authorities such as the National Police Agency and the Ministry of Land, Infrastructure and Transport (MOLIT) to carry out a special crackdown on construction unions. On 9 March 2023, the MOLIT addressed a memorandum to construction companies asking them to report unions’ alleged wrongdoings, using derogatory expressions referring to KCWU officials and suggesting that they should be denounced. As of 8 December 2022, the National Police Agency had announced the launch of a 200-day crackdown on organized illegal activities such as extortion and violence at construction sites. Promotions were promised to individual police officers in this framework, incentivizing them to conclude that an allegation constitutes a crime, to treat it as a serious crime, and to arrest the suspect. The complainants indicate that in this context, Mr Hoe-dong Yang, a union member who was under investigation for extortion and intimidation, took his own life by self-immolation. The crackdown period was twice extended and lasted about nine months. At its outcome, not a single case of criminal behaviour by employers had been identified, while the number of KCWU members had dropped by more than 10,000 which is more than 15 per cent of its membership.
15. 616. To summarize, the complainants point out that as union security provisions in collective bargaining agreements are outlawed, the only means left to construction unions for guaranteeing union rights is to secure the hiring of union members through site-level bargaining. With the prosecution of union officials and members for engaging in such bargaining, currently the right of construction workers to organize is devoid of any effective guarantee, while employers have unlimited freedom not to hire union members. In these circumstances, many members are leaving the union and irreparable damage to the organizations will follow if no urgent intervention is made.

B. The Government’s reply

1. 617. In its communication of 28 February 2024, the Government indicates that the complainants’ allegations are unfounded and emphasizes its commitment to the implementation of ratified ILO Conventions. The Government refers to national law provisions guaranteeing the right to association and collective bargaining and indicates that pursuant to section 29 of the TULRAA, the subjects of collective bargaining encompass issues pertaining to the determination of working conditions and those related to the operation of trade unions including their activities and full-time union officers. In line with the constitution and the TULRAA, the Korean Supreme Court has ruled that matters that can be disposed of by the employer such as working conditions and other matters relating to the treatment of employees or the management of collective labour relations may be the subject of collective bargaining, however, matters subject to high-level management decisions such as layoffs or mergers are not in principle subject to collective bargaining. The Government emphasizes that it is inevitable to restrict subjects of collective bargaining for the following reasons: (i) the wording of constitutional provisions and the purpose of fundamental labour rights indicate that not all matters unrelated to working conditions and the improvement of the social and economic status of workers are covered by the guarantee of the right to collective bargaining; (ii) fundamental labour rights should be in harmony with other fundamental rights such as the right to management and the right to equality; (iii) an employer who refuses or delays collective bargaining without justification can be held criminally responsible; the demand to be achieved through industrial action should be equal to the subject of collective bargaining; and TULRAA provides civil and criminal immunity for legitimate collective bargaining; (iv) not restricting the subject of collective bargaining may lead to extreme inefficiency and constant labour-management conflicts.
2. 618. The Government rejects the complainants’ assertion that the KCWU’s demand of employment of union members is a legitimate collective bargaining demand as the subjects of collective bargaining are to be determined autonomously by the parties. It emphasizes in this regard that pursuant to the rules of national law described above, issues related to hiring, which are dealt with before the establishment of employment contract, do not pertain to working conditions but to the right of personnel management exclusive to employers and fall within the inherent right of the employer to manage and exercise constitutionally guaranteed property rights; therefore, they are not subject to collective bargaining under the TULRAA. The Government cites in this respect the ruling of the Ulsan District Court (Decision 2017 No. 316, dated 8 June 2017), upheld by the Supreme Court : “since matters belonging to the essence of the employer’s management rights, such as the hiring of workers, cannot be the subject of collective bargaining in principle, even if the union demands that the employer in the construction industry hire union members, and the employer refuses to do so, the union is not permitted to engage in industrial action for the purpose of enforcing the demand because it lacks the legitimacy of the purpose”. The Government adds that prioritized hiring of union members would violate the constitution and other laws because it amounts to discrimination against other job applicants and non-members without reasonable ground.
3. 619. The Government also rejects the complainants’ comparison between stevedores’ unions and the KCWU. It highlights the following distinctions between the KCWU and the Korean Federation of Port and Transport Workers Union (KFPTWU): the KFPTWU has acquired the permission of the Minister of Employment and Labour to engage in “labour supply business” while the KCWU has not obtained such a permission or any other authorization. The Government explains that pursuant to section 33 of the Employment Security Act, only trade unions who have acquired a specific permission from the Minister of Employment and Labour can engage in the process of recruitment as a third party inside the country. The KFPTWU had been granted permission to operate as a labour supply business, but it had numerous corruption and embezzlement issues, due mainly to its monopoly in providing labour. These issues persisted despite the Government measures to counter them, for this reason the Government exercised caution in issuing labour supply business permits. The Government specifies that the Minister of Labour and Employment has the discretion to grant labour supply business permissions and they do so after comprehensive consideration of the suitability of the union, the scope of its activity, the labour supply situation in the region and occupation, and the stability of the employment relations. The Government further indicates that the Supreme Court of Korea has ruled that no labour union can claim the right to supply its members for loading and unloading work based on a collective agreement, without a specific supply contract pursuant to a labour supply business permission. The Supreme Court has also ruled that restricting a labour supply business from concluding a contract with another labour supply business based on a collective agreement constitutes a violation of the FTA. The Government finally indicates that there is no evidence that the KCWU has, like the KFPTWU, exercised the function of a craft union, i.e. labour supplier.
4. 620. The Government indicates that it understands that the complainants allege that the KCWU should be able to demand the hiring of its members through collective bargaining in the form of a closed shop. The Government refers in this respect to the General Survey of the Committee of Experts on the Application of Conventions and Recommendations, which provides that Article 2 of Convention No. 87 leaves it to the practise and regulations of each state to decide whether it is appropriate to guarantee the right of workers not to join an occupational organization or, on the other hand, to authorize and where necessary to regulate the use of union security clauses in practise. The Government indicates that in its legal system, closed shops violate the constitutional right of workers to organize (choose) and are not a common practise. It adds however that the proviso of section 81(1) of the TULRAA only allows for limited use of union shops.
5. 621. The Government affirms that the complainants’ allegation concerning the employers’ tendency to avoid collective bargaining in the construction sector is unfounded and unrelated to the present case. According to the Government, matters related to hiring are not subjects of collective bargaining and the present case concerns the KCWU’s use of unlawful recruitment coercion and the Government’s legitimate exercise of its administrative authority in response to it, which is completely unrelated to labour management relations at construction sites, where violations of working hours and Occupational Safety standards occur and are reported by the union to the administrative authorities. Most employers engage in legitimate good faith collective bargaining as required by law. Failure to comply with the union’s request for collective bargaining constitutes an unfair labour practise on the part of the employer (section 81(1)(3) of the TULRAA) and is subject to criminal punishment. An institutional mechanism exists that allows unions to file an unfair labour practise remedy application with the labour relations Commission and the Government works to ensure that employers fulfil their obligations in this regard. Finally, the Government indicates that the four branches of KCWU are freely engaging in collective bargaining under the TULRAA or cost negotiations with employers: the Civil Engineering and Construction Division has successfully secured collective agreements with employers, including an agreement on wages signed on 19 March 2024; the Construction Equipment Division, which is primarily composed of individual business entities, has engaged in cost negotiations with employers which continue in 2024 in each regional branch and, the Tower Crane Division, has signed a collective agreement with an employer on 7 November 2023. and has reached an agreement on wages with another employer after accepting the mediation proposal of the National Labour Relations Commission (NLRC) on 1 August 2024. The Electricity Division of the KCWU has a tradition of biennial negotiations and therefore has not engaged in collective bargaining in 2024. The Government adds that it provides on-site guidance, including through meetings with employers’ associations, to ensure that employers respond appropriately to legitimate bargaining requests by trade unions including through meetings with employers’ associations.
6. 622. The Government indicates that the establishment of the “Taskforce for Eradicating Unlawful Activities at Construction Sites” was a legitimate and necessary measure to eradicate unlawful practises by construction unions and establish fair order at construction sites. According to the Government, the KCWU had engaged in numerous unlawful activities on construction sites, including obstruction of access to the site, disrupting construction work, organization of large rallies and demonstrations, causing disturbance by use of loudspeakers, demanding wages for full-time union officers, demanding congratulatory or condolatory money and activity fees, requesting background check for non-union members, and neglecting duties to push for the recruitment of union members and for the use of machinery and equipment of the KCWU affiliate. Furthermore, conflicts between KCTU and the Federation of Korean Trade Unions (FKTU) escalated to violence and disputes over allocating construction jobs to their members. Considering that unlawful activities had become entrenched at construction sites and were causing serious damage to the industry, in October 2021 the Government discussed the status of construction site recruitment conflicts and countermeasures with the relevant ministries and subsequently formed the Task Force to identify the problems and respond to them. The Government emphasizes that the Task Force was created to enable construction workers to work safely and to have fair opportunities through actively guaranteeing the legitimate activities of construction unions, but also strictly and lawfully responding to illegal activities.
7. 623. The Government rejects the complainants’ claim that the enforcement of rule of law in labour relations does not equally apply to the illegal acts of employers and indicates that the Task Force aims to eradicate illegal and unfair acts at construction sites, on the part of both labour and management. The “Measures to Eradicate Illegal and Unfair Acts at Construction Sites,” announced on 21 February 2023, include “measures to protect construction workers by preventing illegal subcontracting and overdue wages by the employers”. In addition, the “Follow-up Plan” announced on 11 May 2023, includes a plan to improve working conditions by curbing illegal subcontracting, and aims to restrict illegal activities by the employers. In 2023, the Government inspected construction sites suspected of habitually delaying wage payments and identified violations such as illegal subcontracting and failure to comply with requirement to pay wages directly at six sites, which led to actions, including judicial action. In 2024, inspections on illegal subcontracting, delayed wage payments and coerced hiring at construction sites were conducted in March and April. Subsequently the MOLIT, the MOEL, the national police agency and other relevant agencies jointly carried out an intensive crackdown targeting 155 workplaces suspected of illegal activities. The MOLIT also revised its directive titled “guidelines on the establishment and operation of fair construction support centre”. The revised version increased the reward for reporting illegal acts to encourage reporting illegal activities at construction sites and expanded the scope of reports to include all illegal acts regardless of whether they involve labour or management.
8. 624. In reply to the complainants’ allegation that the FTC has misclassified members of the KCWU Construction Equipment Division such as dump truck drivers and excavator operators as business entities and trade associations, while they should be considered as workers under the TULRAA, the Government indicates that the TULRAA and the FTA have distinct proposes and subjects, therefore the applicability of the FTA does not depend on whether a person is a labour union or a worker under the TULRAA. The FTA applies to business entities and trade associations and the FTC determines whether a person is within the scope of the law based on the type of business, the form of organization, and engagement in activities that provide goods and services, in return for which benefit is received, be it for profit or not. The Government indicates that in the case concerning the KCWU Construction Equipment Division, the FTC has applied the FTA criteria consistently, as it has determined that the composing members of the organizations concerned have registered their construction machinery business with the competent administrative authorities and are engaged in the construction machinery rental business. Therefore, they are considered business entities or trade associations pursuant to section 2 of the FTA. The FTC concluded in its decision that it is unclear whether the subject trade association is a trade union under the TULRAA, however even if the members of the trade association were workers in special types of employment (dependent self-employed), and the association had some characteristics of a trade union, this would not have excluded their being subject to the FTA. According to the Government, it is legitimate for the FTC to take necessary administrative measures pursuant to the FTA regarding alleged violations by a subject association. The Government finally indicates that in a ruling dated 31 July 2023 concerning Ulsan Port Workers Union, the Supreme Court held that the sanction decided by the FTC against interference with the loading and unloading operations of a competing labour union was lawful because the respondent was a trade association. According to the judgment, a union that has been granted a labour supply business permit has both the status of a union and a business operator and the FTA remains applicable to it. The Government suggests that this judgment may be applicable to the case of the KCWU Construction Equipment Division as well.
9. 625. The Government further indicates that section 116 of the FTA provides:
   • This Act shall not apply to any legitimate act done by a business entity or trade association in accordance with other statutes.
10. Pursuant to this provision, the FTA does not apply to legitimate acts that comply with the procedural and substantive requirements set in labour legislation. The Government pursues that the FTA was applied to the actions of the KCWU, such as unfairly excluding competitors or restricting competition, because these acts could not be considered as constituting a legitimate collective agreement or labour dispute under labour legislation. In light of the legislative purpose and content of the FTA, even if the actor is a labour union, it is perfectly reasonable for the Fair Trade Act or other related laws to apply if the content of the act is a general offence unrelated to legitimate labour union activities.
11. 626. Concerning the FTC corrective order against the Ulleung Local of the KCWU (Case 2021GuSa1312), the Government indicates that the FTC applied the criteria set in section 51(1)(1) of the FTA concerning the constitutive elements of a prohibited pricing act (act of unfairly restricting competition by determining, maintaining, or changing prices) and found that the actions of the union constituted violations of the law. The Government emphasizes that the corrective order did not restrict the trade union’s collective bargaining activities considering that in this specific case the Ulleung Local prepared a rental unit price list for construction machinery and unilaterally sent it to local construction companies and the Ulleung County Government Office for the purpose of unfairly raising the market price of construction machinery. The specifics of the case and the issue were not related to the union’s exercise of its collective bargaining rights: the union and local construction companies were not engaged in collective bargaining negotiations.
12. 627. Concerning the three FTC cases against Busan Regional Construction Equipment Branch of the KCWU (Cases 2020BuSa1323, 2021BuSa1173 and 2021BuSa1625) and the related corrective order issued on 28 February 2023, the Government explains that the FTC has carefully applied the criteria set in the FTA for qualification of an act as the unfair trade practice of “refusal to deal”. The Government provides the following account of the facts of these cases: the officers of the Busan Construction Machinery Branch visited the construction sites and demanded that the construction companies stop doing business with other entities; they also held a rally at construction sites and communicated it to the member entities through social media; they mobilized the Ready Mixer Local of the Busan Construction Machinery Branch and other construction machinery Locals to communicate their intention to stop the transportation of ready-mixed concrete and the work of other construction machinery; and the actual transportation of ready-mixed concrete was suspended. The Government adds that the Busan Construction Machinery Branch is a trade association whose members include more than 3,000 construction machinery rental companies in Busan and parts of Gyeongsangnam-do province, and it is in a position to exert significant influence over construction companies in the region, especially in the case of concrete mixer trucks, which are essential equipment for construction sites, as their market share in the region is approximately 97.6 per cent. Therefore, when they demanded that the construction companies stop doing business with the non-member renters, the construction companies accepted and implemented their demand while, according to the Government, they should have been able to decide on their own whether to do business with a renter in consideration of their business strategy and conditions. By imposing its demand, the Busan Construction Machinery Branch infringed on the freedom of construction companies to choose their business partners and made it difficult for non-member renters to conduct business, so they potentially limited competition in the construction machinery rental market in the region where they are active and effectively coerced the construction companies to refuse to do business with other entities. The Government finally indicates that forcing the construction companies to stop doing business with construction machinery renters that were not KCWU members, violated the purpose and objectives of the TULRAA, such as maintaining and improving working conditions. It underlines that the union, not only actively interfered with the construction by stopping the transportation of ready-mixed concrete, stopping the operation of construction machinery, and holding rallies at the site, it also failed to comply with minimum procedures such as mediation required by the TULRAA. Therefore, its acts could not be regarded as a legitimate trade union activity or industrial dispute and could not justify the application of section 116(1) of the FTA.
13. 628. Concerning the allegation that the Government imposed a fine against the KCWU for having bargained on job opportunities for union members with employers and for having organized activities to urge the implementation of a labour management agreement in this respect, the Government confirms that such a decision was taken on grounds of violation of section 4-2(1) of the Fair Hiring Procedure Act which provides that no person may engage in “acts that infringe on the fairness of recruitment through unfair solicitation, pressure, or coercion in relation to recruitment in violation of the Act”, and that a fine of not exceeding 30 million won may be imposed for non-compliance. According to the Government, the legislative intent of this provision is to prevent and sanction recruitment irregularities that deprive people of fair employment opportunities and harm the sound employment order and its scope is not limited to employers. The Government further refers to provisions from the Framework Act on Employment Policy, section 5(3) of which provide that trade unions and employers organizations shall actively cooperate in efforts to promote employment security and workers’ and employment equality. Section 7(1) of the same act provides that employers shall not discriminate without reasonable cause when recruiting and hiring workers and shall ensure equal employment opportunities.
14. 629. The Government provides details concerning the facts that entailed the administrative decision of the MOEL imposing a 15 million won fine against Mr Ahn Ik-bong, president of the Daejeon Chungcheong Regional Tower Crane Branch of the KCWU, indicating that on 15 October 2021, a complaint was submitted to the Daejeon Regional Employment and Labor Office, which alleged the violation of the Fair Hiring Procedure Act by Mr Ahn Ik-bong, and also by Mr Lee Ki-jung, head of the Daejeon Sejong Chungcheong Regional Headquarters of the Korean Tower Crane Workers’ Union of the FKTU. According to the complaint, after Dongyang Tower, a tower crane rental company, hired a member of the Jungbu Local, Tower Crane Branch of the Korean Construction Industry Trade Union, an affiliate of the FKTU (hereafter FKTU2), for work at a new residential complex, the KCWU and the FKTU pressured Dongyang Tower to exclude the member of FKTU2 from the construction site and hire members of the KCWU and the FKTU. The Daejeon Regional Employment and Labor Office of the MOEL conducted investigations and determined that there were sufficient circumstances to believe that the respondents coerced Dongyang Tower to recruit members in violation of relevant laws. Specifically, the member of FKTU2 was hired on 13 October 2021 to work on the tower crane of unit 2 at the site. Immediately afterwards, between 14 and 16 October, 13 tower cranes of Dongyang Tower at construction sites in Daejeon and Chungcheong (Asan and Cheongju) were suspended. A director of Dongyang Tower testified that the respondents twice asked that the members of their respective trade unions be hired, on 14 and 17 October respectively. On 17 October, the company accepted the opinions (pressure) of the KCWU and the FKTU and issued a labour contract to the respondents and subsequently members of KCWU and others were hired for tower crane No. 2 at the site. The Government adds that at the time, FKTU2 filed a complaint with the police against the respondents for “coercion” and an investigation was under way.
15. 630. The Government indicates that both Mr Ahn Ik-bong and Mr Lee Ki-jung were fined and both appealed against the administrative decision. The case concerning Mr Ahn Ik-bong was decided at first instance by a ruling of Daejeon District Court (2022Gwa84) dated 17 February 2023, which upheld the challenged administrative decision, providing that it would be a violation of the law to exert pressure to force the employer to recruit members of only one union to the exclusion of members of other unions. This ruling also rejected that the respondent’s act could be justified as a legitimate exercise of the right to collective action, since the order to stop work and demand for recruitment were not aimed at improving working conditions. Mr Ahn Ik-bong passed away before the conclusion of his appeal against the first instance ruling and the fine was revoked because of his death. The Government adds that Mr Lee Ki-jung’s appeal is currently pending at the Cheongju District Court.
16. 631. The Government adds that in addition to rallies, construction unions used other unlawful means of pressure against employers such as obstructing site traffic, occupying tower cranes, and stopping the input of manpower at the same or other sites, which correspond to the types of acts (pressure, coercion, and so on) prohibited under section 4-2(1) of the Fair Hiring Procedure Act.
17. 632. The Government further adds that coercion for recruitment violates the freedom of occupational choice and the employers’ freedom of recruitment based on the guarantee of property rights under articles 15 and 23(1) of the constitution as well as the right to equality guaranteed by article 11 of the constitution, because it unfairly discriminates against workers who are not union members. Furthermore, “coercion in recruitment” may, depending on the circumstances of the case, also constitute a criminal offence under the Criminal Act sections 283 (intimidation), 314 (interference with business), and 324 (coercion). The Government indicates that in January 2024, union officials who had obstructed construction to demand the hiring of union members were sentenced to one year of imprisonment with labour, and in June 2016, 15 KCTU officials who had had recourse to threats to demand the hiring of union members were also sentenced to imprisonment with labour. In 2024 the courts continued to condemn perpetrators of acts such as conducting rallies and obstruction of access to sites to obtain hiring of union members and upheld the imposition of administrative fines in this respect, considering that these acts constituted unfair pressure or coercion regarding employment in violation of the law (Suwon District Court Ansan Branch Decision 2023Gwa61, 1February 2024 and Decision 2023Gwa41, 2 February 2024; as well as Suwon District Court Yeoju Branch Decision 2024Gwa10204, 5 June 2024).
18. 633. Concerning the complainants’ allegation that the Public Prosecutor’s Office and courts qualified legitimate collective action such as reporting the violations of Occupational Safety and Health Act as “communication of harm” amounting to the crime of coercion, the Government indicates that the Korean Supreme Court has judged that even if the “communication of harm” is used as a means to realize legitimate rights, when the method of realizing those rights exceeds the level or scope accepted by social norms, the crime of coercion can be established. It explains that the crime of coercion under section 324 of the Criminal Act is committed when the KCWU goes beyond merely suggesting ‘filing a complaint’, ‘holding a rally’, or ‘criminal accusation for violating the law’ and mentions specific ‘disadvantages’ so that the other party may perform, due to fear that it will suffer ‘disadvantages’ from the KCWU, an act that is not obligatory, such as recruitment of union members, using the union’s construction machinery, or signing an agreement to pay wages to full-time union officers and contribute to welfare funds. The Government indicates that Korean courts have held that statements made during the collective bargaining process by KCWU officials, such as ‘I will file charges against the construction site for violating the Occupational Safety and Health Act’, ‘I will hold a rally with as many as possible, with 800 or 1,000 people on the site, and the rally will not stop once’; ‘If something goes wrong, the head of the construction site will be blown off’ and ‘I will hold a rally in front of the site and file charges to make the construction difficult.’ constitute intimidation. The courts also considered that the main purpose of these statements was to push for the employment of the union members, while the victim company was only obligated to cooperate to improve employment, and had no legal obligation to hire union members, so the notification of such harm did not constitute an acceptable method of exercising rights according to social norms. Coercion to hire a union member cannot be considered a legitimate trade union activity because it is difficult to consider it as the subject of collective bargaining. On these grounds Seoul High Court found the perpetrators guilty of extortion and coercion in the case brought by Junkyung Tower Crane Services (Decision 2016 No. 1781, dated 31 May 2017). The Government affirms on this basis that the KCWU’s coercion for recruitment of its members is outside the scope of legitimate collective bargaining and cannot be considered a legitimate trade union activity, and the application of criminal coercion laws and sanctions for pressuring employers, assembling, and reporting violations of the Occupational Safety and Health Act for the purpose of getting its members hired is irrelevant to the domestic application of ILO Conventions on freedom of association and the right to collective bargaining.
19. 634. In its latest communication, the Government indicates that the construction site examination conducted by the MOEL found that trade unions had filed 40 civil petitions against construction companies for the violation of the Occupational Safety and Health Act and Clean Air Conservation Act over a three-month period. According to the Government, after the unions come to terms with the employer for hiring some union members, they withdrew the civil petitions. There were cases where unions were suspected of filing civil petitions for the purpose of demanding the hiring of their members.
20. 635. Concerning the allegation that the Government focused on outlawing paid time-off provisions in collective agreements through qualifying paid time off demands as criminal acts of extorsion, the Government refers to the definition provided in section 24 of the TULRAA and indicates that given that the time-off system permits workers to receive wages while dedicating themselves entirely to trade union activities without fulfilling their contractual work duties, it would be a manipulation of the legal system and against the intent of the time-off system for someone without an existing employment contract to enter into such a contract solely to receive time-off wages. The Government adds in this respect that the National Labor Relations Commission (NLRC) of Korea ruled in favour of the construction companies in ten cases brought by the KCWU concerning “unfair labour practice applications for remedies for non-payment of wages to time-off workers”. In these cases, the NLRC ruled that stopping the payment of wages to the time-off workers, who were construction union officials, did not constitute the unfair labour practices of domination and interference because these acts were not done with the intent to commit unfair labour practices.
21. 636. In response to the complainant’s rejection of the authorities’ assumption that demands to hire union members were in fact aimed at obtaining paid time off, the Government states that press reports and court decisions confirm that the KCWU made demands that construction companies hire their members as well as their demands for money and goods under the guise of wages for full-time union officers, monthly dues and the union development fund. The Government cites a ruling of Daejeon District Court Nonsan Division, (2023GoDan293), dated 25 August 2023 indicating that the defendants threatened the victims with the intent of extorting concessions for not employing their union members, saying “Sign a collective wage agreement and increase man-hour or extend the duration of payments in lieu of hiring our members. And pay collective agreement fees and the Union Development Fund.” Consequently, the victims were forced to sign a collective bargaining agreement on wages, which demands to pay 3 million won as time-off wages and 200,000 won as welfare benefits without the hiring of union members.
22. 637. The Government further indicates that there have been instances where criminal gangs disguised as union members have threatened construction companies and extorted goods and money from them. It emphasizes that illicit tactics of demanding money and goods under the name of “time-off wages” and “Union Development Fund” fall outside the scope of permissible support to trade unions under the current legal framework and confirms that courts have held the KCWU accountable for such practices, categorizing them as serious crimes. The courts stated that these acts not only lead to increased construction costs but also to substandard building quality, which negatively impacted society. According to the Government, between September and November 2023, the MOEL conducted the “Planned Labour Inspection on the Operation of Time-Off and Operation Fee Aid” across 202 workplaces including public organizations, the results of which revealed that 109 workplaces were in breach of relevant laws. Among these workplaces 94 rectified their practices and the remaining 15 received corrective orders in January 2024. In 2024, the media continued to report cases of extortion by “ghost unions” at construction sites, which led to the prosecution and condemnation of KCWU and KCTU members and officials. The Government indicates that, where illegal payment of wages to full-time union officers or illegal payment of monthly dues were sanctioned, extortion happened under the new guise of inflation of overtime wages. For example, media reported a case where at a construction site in Ulsan, four tower crane operators affiliated with FKTU and KCTU received up to six times the overtime pay that should have been paid for the extra hours they worked.
23. 638. The Government recalls that in 2021, it made amendments to the TULRAA, removing the prohibition and criminal penalties associated with wage payment for full-time union officers and eliminating prohibitions and penal sanctions regarding industrial action that required the wage payment of full-time union officers and time-off hours exceeding the limit. Furthermore, the TULRAA now more actively safeguards the rights of trade unions by defining as unfair labour practice, any action limiting the legitimate activities of time-off workers or disadvantaging them for such activities. The Government however emphasizes that the KCWU pressured construction companies by disrupting operations at construction sites and demanded the payments of “time-off wages” and “Union Development Fund” in lieu of not hiring union members, practices which are not in line with section 24 of the TULRAA. The Government further indicates that between September and November 2023, it has conducted labour inspections at 202 workplaces in relation to this matter and has issued corrective orders in respect of 109 workplaces. These orders were complied with in 107 workplaces while two were under investigation for criminal charges and non-compliance with corrective orders.
24. 639. In response to the complainants’ allegation that on 9 March 2023, the MOLIT addressed a memorandum to construction companies, asking them to report unions’ alleged wrongdoings, using derogatory expressions referring to a KCWU official and suggesting that he should be denounced, the Government indicates that the communication in question was not a part of the official document, but was contained in a text message sent via a mobile phone by a MOLIT official, which was aimed at encouraging the reporting of illegal activities at construction sites, because at the time illegal activities often remained unreported for fear of more disruptions. In its latest communication, the Government indicates that thanks to its efforts illegal activities at construction sites were declining although there were still instances in certain workplaces as reflected in a status survey conducted by the MOLIT in March 2024, which found 285 cases of illegal acts by trade unions in 45 companies, most of which concerned demands for the payment of monthly union dues.
25. 640. Concerning the special police crackdowns on “organized illegal activities” at construction sites, the scope of this operation, the promotions promised to agents participating in this operation, and the 15 per cent drop in KCWU membership during the crackdown period, the Government indicates that the investigations were conducted in accordance with the law and there is no evidence that the drop in union membership is related to them and adds that it does not yet have the data required to confirm that there was such a decrease in KCWU membership. The Government reiterates that union activities such as demanding the employment of their members, the exclusive use of their members’ machinery, and the provision of time-off wages and welfare funds, accompanied by the threat of specific “disadvantages” to the point of causing fear are not legitimate and constitute crimes such as intimidation, extortion and coercion. The investigations on KCWU members were part of the crackdown targeting “organized illegal activities such as extortion and assaults at construction sites” particularly those occurring in line with the KCWU’s demands for employment of their members. The investigations were carried out in accordance with the law regardless of the subject organizations or groups and did not intend to destroy unions. As of November 2023, all 144 individuals who were indicted as a result of the investigations were found guilty at first instance. Among them, 49 individuals received prison sentences ranging from 10 months to 2 years and 6 months with labour; 88 were given probation, and 7 were fined. The Government adds that in 2024 special police crackdowns were carried out from 29 July to 31 October and their scope included not only acts of violence, but also construction related corruption such as poor construction and illegal subcontracting. As of August 2024, the operation had led to the opening of 140 cases involving 685 persons. These cases included 59 cases of extortion and violence involving 215 persons and 81 cases of corruption involving 470 persons. In this context, 288 persons were referred to the Prosecution Service, including two individuals in custody, and 316 persons were still under investigation as of 10 September 2024.
26. 641. The Government confirms that special promotion slots were allocated for police agents participating in the crackdown and indicates that the targeted activities were longstanding and serious issues garnering considerable public concern and calls for action. Therefore, the National Police Agency considered factors such as public sentiment, the scale and complexity of cases investigated and the size of involved organizations in allocating its promotion slots. The Government adds that the scoring system referred to by the KCWU is merely an internal standard used to evaluate the investigation’s level of difficulty and significance, therefore the Government rejects the allegation that the promotions were used as a mean to suppress the union.
27. 642. In conclusion, the Government expresses its firm commitment to root out illegal activities and unfair practices at construction sites through fair legal enforcement within the established legal frameworks and indicates that all its enforcement actions have been both necessary and justified as well as in conformity with its obligations under Conventions Nos 87 and 98 and requests the dismissal of the complaint.

C. The Committee’s conclusions

1. 643. The Committee notes that the allegations in this case concerns the following issues: (i) whether access to employment for members of construction worker unions is a legitimate collective bargaining subject; (ii) the limitation of certain activities of the Construction Equipment Branch of the KCWU through the application of competition law, and (iii) the imposition of administrative and criminal sanctions for charges of coercion, intimidation and extorsion in relation to certain activities of KCWU affiliates, such as putting forward to the employer demands of access to employment for union members, paid time off and the creation of a union development fund, as well as collective actions to support those demands and reporting violations of the Occupational Safety and Health Act as a means to put pressure on the employer during negotiations. The Committee notes that the first issue, namely whether access to employment of union members can be covered by collective bargaining, is the central matter which underlies all the other allegations in the present case.
2. 644. The Committee notes the complainants’ allegation that, as a craft union organizing various categories of skilled workers in an industry characterized by intermittent employment, the KCWU focuses on securing more employment opportunities for its members through negotiation with employers. They add that as employers in the industry tend to deny employment to union members, it becomes almost vital for unions to secure employment for their members through collective bargaining, otherwise they risk losing their members and face difficulties to survive. They allege that stevedore’s unions, which operate in a labour market like that of the construction industry in terms of employment intermittence, are allowed to demand employment for their members in collective bargaining. In contrast, in cases concerning KCWU, Korean prosecutors and courts have considered that demands of employment of union members are not appropriate collective bargaining demands, because they don’t relate to working conditions and infringe the management rights of employers. The Committee notes that the complainants refer specifically to “site-level bargaining” and allege that as union security provisions in collective bargaining agreements are outlawed, the only means left to construction unions for guaranteeing union rights is to secure the hiring of union members through site-level bargaining. Furthermore, the Committee notes the complainants emphasize that the dispute is not about the establishment of a union security system, as the union’s demand was not to employ only union members or enter into a closed shop, and details such as the amount and procedures for the employment and the union’s responsibility for skills could be discussed between labour and management in collective bargaining negotiations. In summary, the complainants allege that through their position that KCWU’s request for employing union members is illegal, the Korean Government and judicial authorities have unilaterally determined the scope of negotiable issues in collective bargaining and therefore have violated Article 4 of Convention No. 98.
3. 645. The Committee notes that the Government confirms in this respect that from its standpoint, pursuant to the rules of national law, issues related to hiring, which are dealt with before the establishment of employment contract, do not pertain to working conditions but to the right of personnel management exclusive to employers and fall within the inherent right of the employer to manage and exercise constitutionally guaranteed property rights; therefore, they are not subject to collective bargaining under the TULRAA. The Government also refers to a court ruling expressing the same position in relation to access to employment demands of construction unions (the Ulsan District Court, Decision 2017 No. 316, dated 8 June 2017 and Seoul High Court, Decision 2016 No. 1781, dated 31 May 2017, both upheld by the Supreme Court). Nevertheless, the Committee notes that the Government confirms that the KFPTWU, a stevedores’ union, can bargain collectively on employment of its members, but distinguishes its situation as exceptional and indicates that it is titular of a “labour supply business” permit issued by the MOEL in accordance with section 33 of the Employment Security Act. The Committee also notes the Government’s indications concerning the corruption issues associated with the labour supply monopoly and the Government’s caution in issuing labour supply business permits. The Committee also notes that according to the Government, the four branches of the KCWU regularly engage in collective bargaining with employers on matters such as wages.
4. 646. The Committee notes the Government’s indication that it understands that the complainants allege that the KCWU should be able to demand the hiring of its members through collective bargaining in the form of a closed shop and rejects this allegation by indicating that the Korean legal system does not allow agreement on closed shops, except in the limited cases referred to in section 81(1) of the TULRAA. The Committee notes that this provision provides the following:
   • (1) The employers shall not conduct any of the following acts (hereinafter referred to as “unfair labour practice”): ... 2. Employment of a worker on condition that he or she should not join or should withdraw from, a trade union, or on condition that he or she should join a particular trade union: Provided, That where a trade union represents 2/3 or more of the workers working in the place of business concerned, a conclusion of a collective agreement under which a person is employed on condition that he or she should join the trade union shall be allowed as an exceptional case
5. 647. The Committee notes however that there is a discrepancy between the Government view of the complainants’ claim, and the statement of the latter that the union’s demand was not to employ only union members, but only for the Government to ensure that their demand for employment could be dealt with in autonomous collective bargaining between the management and labour in consideration of the employment structure and characteristics of construction sites where short-term employment dominates, and to build regulations and institutions necessary to support autonomous collective bargaining in this respect. The Committee further notes that both the complainant and the Government refer to tension and recruitment conflicts on construction sites, but while the complainants consider that clashes erupt on construction sites between labour and management because collective bargaining which can provide an outlet for tension is blocked, the Government considers that not restricting the subject of collective bargaining leads to extreme inefficiency and constant labour-management conflicts and indicates that it has formed the “Taskforce for Eradicating Unlawful Activities at Construction Sites” to identify the problems and respond to them.
6. 648. In view of the complainants’ allegations and the Government’s response to them, the Committee notes that while at least in the case of stevedores’ unions, collective bargaining on access to employment opportunities is allowed in the Republic of Korea, the Government does not consider it appropriate to allow the extension of this practice to the construction industry and expresses the determination not to recognize any collective bargaining or agreements between unions and employers on this matter in the construction sector. The Committee recalls in this respect, that it has always considered that “It is for the parties concerned to decide on the subjects for negotiation” and that “Measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with Convention No. 98; tripartite discussions for the preparation, on a voluntary basis, of guidelines for collective bargaining are a particularly appropriate method of resolving these difficulties”. [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 1289 and 1290]. The Committee therefore requests the Government to take measures to initiate consultations with the representative organizations of workers and employers in the construction industry to address the concerns on the instability of employment in the sector and prevent recruitment conflicts on construction sites. The Committee requests the Government to provide information on any measures taken in this respect.
7. 649. Concerning the restrictions imposed on the activities of the Construction Equipment Division of the KCWU through the application of the Monopoly Regulation and Fair Trade Act (FTA), the Committee notes the complainants’ allegation that the members of this Division such as dump truck drivers, concrete mixer drivers and excavator operators are workers and have long been involved in union activities. Nevertheless, the Fair Trade Commission has considered they are business entities, which makes the union a trade association subject to the FTA, and has launched investigations against the union in eight cases based on allegations of violations of the FTA. The complainants allege that in two of those cases activities such as setting guidelines for wage bargaining with employers, engaging in wage/rental rates negotiations in accordance with those guidelines, and establishing directives with a view to preventing deterioration of working conditions due to excessive competition among members were qualified as price fixing and limiting competition, and protests against a subcontractor who had unilaterally terminated hiring contracts with union members were qualified as forcing a third party to refuse a transaction. The complainants state that qualification of this Division as a business entity under the FTA would entail the denial of their basic labour rights in particular the rights to collective bargaining and collective action. Ordinary union activities aimed at compelling members to comply with internally set standards, would also be qualified as violations of the FTA.
8. 650. The Committee notes that the Government indicates in this respect that an organization can be simultaneously a trade union and a trade association, subject to both the TULRAA and the FTA. According to the Government, in the cases concerning the KCWU Construction Equipment Division, the FTC has applied FTA criteria consistently, as the composing members of the organizations concerned are registered as construction machinery businesses. The Government further indicates that in one decision the FTA found that it is unclear whether the subject trade association is a trade union under the TULRAA, however even if the members of the trade association were workers in special types of employment (dependent self-employed), and the association had some characteristics of a trade union, this would not have excluded their being subject to the FTA. The Committee notes the Government’s reference to section 116(1) of the FTA, which would exclude the application of the FTA to legitimate acts that comply with the procedural and substantive requirements set in labour legislation and the subsequent indication that in the cases concerning the Construction Equipment Division, the FTA was applied to actions such as unfairly excluding competitors or restricting competition, which could not be considered as constituting a legitimate collective agreement or labour dispute under labour legislation, but constituted offences unrelated to legitimate labour union activities.
9. 651. The Committee notes the details provided by the Government concerning the case entailing the FTC corrective order against the Ulleung Local of the KCWU (Case 2021GuSa1312), in which the Ulleung Local prepared a rental unit price list for construction machinery and unilaterally sent it to local construction companies and the Ulleung County Government Office for the purpose of unfairly raising the market price of construction machinery. According to the Government, the specifics of the case and the issue were not related to collective bargaining rights as the union and local construction companies were not engaged in collective bargaining. The Committee further notes the details provided by the Government concerning the three FTC cases against Busan Regional Construction Equipment Branch, where a rally was organized by the union on construction sites, and the transportation of ready-made concrete was suspended, demanding that the construction companies stop doing business with the non-member renters. The Government indicates that the companies accepted this demand due to the strong impact of the action organized by the union. The Committee notes that the Government considers that by imposing its demand, the union potentially limited competition in the construction machinery market in the region and that it not only actively interfered with the construction by stopping the transportation of ready-mixed concrete, stopping the operation of construction machinery, and holding rallies at the site, it also failed to comply with minimum procedures such as mediation required by the TULRAA. Therefore, its acts could not be regarded as a legitimate trade union activity or industrial dispute and could not justify the application of section 116(1) of the FTA.
10. 652. The Committee recalls that it has previously examined cases concerning the recognition of freedom of association and collective bargaining rights of organizations of self-employed truck drivers in the Republic of Korea [see Case No. 3439, 405th Report, paras 510–565 and Case No. 2602, 359th Report, paras 342–370]. Most recently, at its examination of Case No. 3439 in March 2024 the Committee urged the Government “to take all the necessary measures to ensure that all workers, including ’self-employed‘ workers, such as heavy goods vehicle drivers, can fully enjoy the principles of freedom of association and collective bargaining for the purpose of furthering and defending their interest” [405th Report, para. 565(a)]. The Committee notes in the information provided by the complainants and the Government that in the three FTC cases against the Busan Regional Construction Equipment Branch of the KCWU (Cases 2020BuSa1323, 2021BuSa1173 and 2021BuSa1625), a collective action comprised of rallies on construction sites and work stoppage was organized by the union, which resulted in an agreement between the union and construction companies. The Committee notes that while the complainants indicate that the mobilization was triggered by a subcontractor’s unilateral ending of a previous agreement with union members, the Government indicates that the union’s demand was that the construction companies stop doing business with non-member renters. The Committee notes that in this case the FTC imposed a penalty of 100 million won (US$72,000) on the union.
11. 653. The Committee notes in this respect that according to the Government indications, the FTC has indicated in one of its decisions that it is unclear whether the “subject trade association” is a trade union under the TULRAA. The Committee also notes the Government’s indication that if the subject association is a trade union, and its actions constitute legitimate actions under the TULRAA, its actions are exempt from the Fair Trade Act as “legitimate actions under other laws” (article 116(1) FTA). The Committee notes that the application of section 116(1) of the FTA can potentially resolve the issue of the conflict between the FTA and the freedom of association and collective bargaining rights of the unions who are also qualified as “trade associations”, provided that the trade union status of the organizations of self-employed workers is unequivocally recognized, and that “legitimate collective bargaining” and “legitimate industrial action” are interpreted in line with the principles of freedom of association and the effective recognition of the right to collective bargaining. The Committee notes that in this case, as the trade union status of the KCWU Construction Equipment Division was not clearly recognized, and the collective action aimed to support an agreement between the union and the employers on access to employment which the Government does not consider within the scope of legitimate collective bargaining, the rights of the respondent to collective bargaining and collective action were not considered as relevant.
12. 654. In view of the foregoing, the Committee requests the Government to ensure that, while investigating and deciding on the conduct of the KCWU Construction Equipment Division branches, the Fair Trade Commission will not interfere with legitimate trade union activities. The Committee expects that the establishment of guidelines for negotiation will create a clear framework for the exercise of freedom of association and the effective recognition of the right to collective bargaining.
13. 655. The Committee notes the complainants’ allegations concerning the police crackdown on the KCWU and the imposition of administrative and criminal sanctions on union members for charges of coercion, intimidation and extorsion in relation to the exercise of the rights to collective action and collective bargaining and receiving time-off wages or other funds from the employer. The Committee also notes the Government’s indication that another police crackdown was carried out in 2024, which targeted acts of extorsion and violence on construction sites, as well as unlawful activities by the employers such as poor construction and illegal subcontracting, and as of August 2024 this police operation had led to the opening of 140 cases. Concerning the administrative sanctions (fines) imposed under the Fair Hiring Procedure Act, the Committee notes that the complainants indicate that the President of the Daejeon Chungcheong Regional Tower Crane Branch of the KCWU, received a fine of 15 million won, because the union had held a rally in front of a construction site to protest against the unilateral revocation of an agreement with a tower crane rental firm, which had agreed to hire union members on tower cranes installed at the site. The Committee notes the Government’s indication regarding the same case, indicating that both KCWU and FKTU had put forward demands to the tower crane rental company to hire their members to the exclusion of the member of another branch of the FKTU and had successfully coerced that company to accept their demands by holding a rally and a three-day suspension of tower cranes in several construction sites. The Government indicates that representatives of the concerned branch of the KCWU and the FKTU where both fined and then appealed against the decision. The Committee notes the Government’s indication that the first instance court rejected the argument that the respondent’s act could be justified as a legitimate exercise of the right to collective action, since the “order to stop work and demand for recruitment were not aimed at improving working conditions”. The Committee notes that in this case again, the fact that access to employment is not recognized as a matter within the scope of legitimate collective bargaining has entailed the qualification of a collective action aiming at supporting such a demand as an illegal act of coercion.
14. 656. The Committee notes the complainants’ reference to the condemnation of officials of the Tower Crane Operators’ Division under criminal charge of coercion (section 324 of the Criminal Act) by Seoul High Court on 31 May 2017 for having requested the employment of union members, reported violations of the Occupational Safety and Health Act and held a rally to support that demand. It also notes the Government’s indications in this respect that the main purpose of the union’s actions was to push for the employment of the union members, while the victim company was only obligated to cooperate to improve employment and had no legal obligation to hire union members. Coercion to hire a union member cannot be considered a legitimate trade union activity because it is difficult to consider it as the subject of collective bargaining. The Committee also notes the Government’s indication that after the unions come to terms with the employer for hiring some union members, they withdraw their civil petitions filed for violations of the Occupational Safety and Health Act and Clean Air Conservation Act, and that therefore, the unions were suspected of filing civil petitions for the purpose of demanding the hiring of their members.
15. 657. Concerning the “special police crackdown” of January–August 2023, the Committee notes with concern the allegations of the summoning of 1,700 KCWU members under the charges of coercion and intimidation, and specifically the charges of “extorsion” for having demanded or received time-off wages (465 investigations). The Committee notes the Government’s indication in this respect that as of November 2023, all 144 individuals who were indicted as a result of the investigations in the framework of the “crackdown on illegal activities at construction sites” were found guilty at first instance. Among them, 49 individuals received prison sentences ranging from 10 months to 2 years and 6 months with labour; 88 were given probation, and seven were fined. The Committee deplores that in this context, Mr Hoe-dong Yang, a union member who was under investigation for extortion and intimidation, took his life by self-immolation on May Day 2023.
16. 658. The Committee notes that the complainants allege that unionists were prosecuted for having made demands for hiring union members, bargaining with construction companies, and receiving paid time off in accordance with concluded collective agreements, and the Government responds that union activities such as demanding the employment of their members, the exclusive use of their members’ machinery, and the provision of time-off wages and welfare funds, accompanied by the threat of specific “disadvantages” to the point of causing fear, are not legitimate union activities and constitute crimes such as intimidation, extortion, and coercion. The Committee notes the Government’s indication that Korean courts have held that statements made during the collective bargaining process by KCWU officials, such as ‘I will file charges against the construction site for violating the Occupational Safety and Health Act’, ‘I will hold a rally with as many as possible, with 800 or 1,000 people on the site, and the rally will not stop once’; ‘If something goes wrong, the head of the construction site will be blown off’ and ‘I will hold a rally in front of the site and file charges to make the construction difficult.’ constitute intimidation. The Committee also notes the Government’s indication that the investigations on KCWU members were part of the crackdown targeting “organized illegal activities such as extortion and assaults at construction sites” particularly those occurring in line with the KCWU’s demands for employment of their members, and that there have been instances where criminal gangs disguised as union members have threatened construction companies and extorted goods and money from them. Finally, the Committee notes that the Government indicates that following inspections carried out in September–November 2023, corrective orders were issued to 109 workplaces in relation to paid time-off provisions.
17. 659. Regarding charges of extorsion in relation to demanding time-off wages, the Committee notes the Government’s reference to a ruling of Daejeon District Court Nonsan Division (2023GoDan293, dated 25 August 2023), indicating that “the defendants threatened the victims with the intent of extorting concessions for not employing their union members, saying ’Sign a collective wage agreement and increase man-hour or extend the duration of payments in lieu of hiring our members. And pay collective agreement fees and the Union Development Fund.’ Consequently, the victims were forced to sign a collective bargaining agreement on wages, which demands to pay 3,000,000 won as time-off wages and 200,000 won as welfare benefits without the hiring of union members”. The Committee notes with concern that this passage seems to incriminate the fact of demanding the payment of wages to full-time union officers during collective bargaining. The Committee notes the Government’s indication that it would be a manipulation of the legal system and against the intent of the time-off system for someone without an existing employment contract to enter such a contract solely to receive time-off wages. It also notes that in their communication of 12 September 2023, the complainants reject the authorities’ assumption that demands to hire union members were made to obtain paid time off and affirm that this is misleading because the granting of paid time off is agreed upon by the employer and the union through the bargaining process. The Committee recalls in this respect that in Case No. 1865 concerning the Republic of Korea, the Government had similarly indicated that under the TULRAA, a full-time unionist was one who was employed by a firm; thus, if an executive of a trade union was not employed by a firm in charge of the construction site, he/she could not request the firm to recognize him/her as a full-time unionist. At the time, the Committee had expressed its deep concern that the “activity payment” to full-time unionists, which appeared to be the result of voluntary negotiations, should be considered a criminal act and had considered that “a main contractor on a construction site should be able to voluntarily recognize a worker on the site as a full-time unionist even if the worker concerned does not work directly for the main contractor” [see 340th Report, paras 773 and 776]. The Committee further notes the Government’s indication that illicit tactics of demanding money and goods under the name of “time-off wages” and “Union Development Fund” fall outside the scope of permissible support to trade unions under the current legal framework without however providing further details on those “illicit tactics”. The Government further confirms that courts have held the KCWU accountable for such practices, categorizing them as serious crimes without however explaining what circumstances made these demands serious crimes, besides the fact that they were associated with demands of employment of union members.
18. 660. The Committee recalls that “The issue of the payment of wages by the employer to full-time union officials should be up to the parties to determine and the Government should authorize negotiation on the issue of whether trade union activity by full-time union officials should be treated as unpaid leave” [Compilation, para. 1296]. The Committee notes that in the present case, the Government’s effort to outlaw collective bargaining on access to employment in the construction industry has culminated in criminalizing attempts to put forward bargaining demands to such effect. The Committee notes that even distinct demands such as time-off wages or creation of union development funds seem to have been criminalized through association with demands of employment of union members.
19. 661. Regarding what the Government has characterized as the union’s negotiation tactic to demand the employer during collective bargaining to accept to hire union members voluntarily or its violations of the Occupational Safety and Health Act would be reported to the authorities, and its qualification by courts as “notification of harm” or a threat constitutive of crime of coercion, the Committee recalls that it has already considered in another case concerning the Republic of Korea, that “denouncing to the competent authorities insufficient OSH measures is in fact a legitimate trade union activity and a workers’ right which should be guaranteed by law” [see Case No. 1865, 340th Report, para. 774]. The Committee further notes that in the same context of negotiation with the employer, statements by union representatives that they would have recourse to collective action were considered as notification of harm and in many of the cases invoked in the present case, collective action and work stoppages organized to support demands of access to employment for union members were qualified as constitutive of crime of coercion. While the Committee duly notes the Government’s characterization of other sentences such as ‘If something goes wrong, the head of the construction site will be blown off’ as a threat that may constitute an element of the crime of coercion, it considers that the legitimate trade union activities noted above should not be treated the same way. It recalls in this respect that, “The Committee has pointed out the danger for the free exercise of trade union rights of sentences imposed on representatives of workers for activities related to the defence of the interests of those they represent” [Compilation, para. 154]. In view of the foregoing the Committee requests the Government to ensure that no one is arrested, prosecuted or sentenced, for having organized a peaceful collective action to negotiate their demands such as in this case, or for having asserted that they would denounce occupational safety and health shortcomings at the workplace.