Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Labour Inspection Convention, 1947 (No. 81) - Republic of Korea (Ratification: 1992)

Other comments on C081

Observation

Direct Request

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The Committee notes the 2017 observations of the Korean Confederation of Trade Unions (KCTU) and the Federation of Korean Trade Unions (FKTU) and the Government’ reply thereto.

Article 3 of the Convention. Primary functions of labour inspectors. 1. Supervision of trade union activities. The Committee previously noted the Government’s indication that, from the second half of 2013, inspections were no longer conducted on the paid time-off system for union officials. However, the Committee notes the observations of the KCTU that, following a fatal accident at the shipyards, labour inspectors carried out an inspection to investigate the activities of union officials, including the implementation of the paid time-off system.

The Committee once again recalls that, according to Article 3(1) and (2) of the Convention, the primary functions of the labour inspection system shall be to monitor and secure the conditions of work and the protection of workers while engaged in their work, and that any further duties which may be entrusted to labour inspectors should not be such as to interfere with the effective discharge of their primary duties or to prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers. The Committee recalls that it expressed reservations in its 2006 General Survey, Labour inspection, paragraph 80, regarding excessive use of close supervision by labour inspectors of the activities of trade unions and employers’ organizations, to the extent that it takes the form of acts of interference in these organizations’ legitimate activities. The Committee requests the Government to provide further information on the measures taken to ensure that supervision of trade union activities is carried out in relation to the protection of the rights of trade unions and their members, but does not take the form of acts of interference in their legitimate activities and internal affairs.

2. Settlement of disputes. The Committee notes the statement by the KCTU that there have been cases in which labour inspectors effectively coerced employers and workers into a settlement rather than conducting investigations. The Committee notes the Government’s response that sometimes there is a delay in investigations due to the excessive workloads of labour inspectors, and that therefore some cases were settled through agreements instead. The Government states that it plans to increase the number of inspectors to enable them to carry out thorough investigations. The Committee urges the Government to take specific measures to ensure that the functions assigned to labour inspectors do not interfere with the main objective of labour inspectors to ensure the protection of workers in accordance with labour inspectors’ primary duties as provided for in Article 3(1) of the Convention. It requests the Government to provide information on the time and resources of the labour inspectorate spent on the settlement of disputes in relation to their primary duties as provided for in Article 3(1).

Articles 3(1) and 17. Activities of the labour inspectorate in the area of non-discrimination and prompt legal proceedings. The Committee notes the Government’s indication, in reply to its previous request, that measures have been taken to strengthen the enforcement of legal provisions pertaining to non-discrimination, by introducing punitive damages for violations, expanding the scope of application for corrective action against discrimination, and organizing training twice a year for labour inspectors on policies related to non-regular workers (such as part-time workers, non-permanent contract workers, temporary agency workers and domestic workers). The Government states that, since 2016, it has become mandatory to include discrimination against non-regular workers in the checklist of any inspection and that the guidelines for fixed-term workers’ job security has been established and implemented. The Committee further notes that, pursuant to the amendments in 2012 to the Act on the Protection of Fixed-Term and Part-Time Employees (section 15(2)) and the Act on the Protection of Dispatched Workers (section 21(2)), labour inspectors have also been empowered to carry out investigations and issue corrective orders to address discriminatory treatment, and in case of continuous violations, they may refer cases to a local labour relations commission for investigation. The Committee requests the Government to continue to provide information on the measures taken to strengthen enforcement of the legal provisions pertaining to equality and non-discrimination. It requests the Government to continue to provide information on the number of inspections undertaken in this respect, the number of violations detected, the number of corrective orders issued and completed, disaggregated from the action taken by the labour relations commissions.

Articles 5(b) and 13. Collaboration of the labour inspection with employers and workers and their organizations in the area of occupational safety and health (OSH). The Committee notes the observations of the FKTU that serious accidents, including fatalities, continue to be frequent in shipbuilding, attributable in large part to the multi-level subcontracting structure of the industry. The FKTU also states that measures with immediate executory force in the event of imminent danger to the health or safety of workers have been taken solely after the occurrence of an accident, but not for preventive purposes. The Committee notes the Government’s response that it takes proactive action to suspend business operations where there is an imminent risk detected after reports from workers or as a result of technical support from the Korean Occupational Safety and Health Agency. The Government indicates that, pursuant to section 51 of the OSH Act, such suspension of operations can also be ordered to prevent risks and protect workers’ health during OSH inspectors’ guidance and inspections. The Government also indicates that it took various activities to prevent industrial accidents at shipbuilding enterprises, including periodic close monitoring by inspectors when necessary, but that fatal and other serious accidents still occur frequently in the shipbuilding sector. The Government indicates that 79 severe accidents occurred in shipbuilding from 2014–16, after which inspectors took immediate action: ordering the suspension of business operations, performing thorough inspections on safety and health management, and issuing orders for improvement. According to the Government, there has been an increase in the number of workplaces inspected by OSH inspectors (20,299 in 2014 to 26,920 in 2016), the number of workplaces where violations are detected (15,765 in 2014 up to 18,426 in 2018), and a subsequent increase in the number of fines imposed (9,645 in 2014 up to 13,051 in 2016) and corrective or suspension measures ordered (14,856 in 2014 to 17,489 in 2016). In addition, the Government indicates that, through special inspections, stronger action has been taken for violations of enterprises with a high incidence of serious accidents: in 2016, 1.5 times more judicial action was taken and the amount of the fines imposed doubled from 2015 (240 cases of judicial action and more than 400 million South Korean won (KRW) in fines were imposed in 2015 compared with 370 cases of judicial action and more than KRW1 billion in fines were imposed in 2016). The Government further indicates that within this year it will revise the law to ensure that principal contractors are assigned more responsibility for protecting subcontracted workers from industrial accidents, including being subjected to stronger penalties. Noting the absence of disaggregated statistics on suspension measures, the Committee requests the Government to provide information on the number of suspension orders issued in the event of imminent danger to the health or safety of the workers, disaggregated by those issued for preventative purposes and those issued after the occurrence of an industrial accident. The Committee also requests the Government to provide information on the measures it is taking to ensure that labour inspectors are able to secure the enforcement of the legal provisions relating to the protection of workers engaged in multi-level subcontracting structures. It requests the Government to provide information on the impact of the measures taken, including the number of industrial accidents reported, the judicial actions undertaken and the penalties imposed and collected, disaggregated where possible by industry, including shipbuilding. In addition, the Committee requests the Government to provide a copy of the legislation strengthening principal contractor responsibilities and penalties for industrial accidents as soon as it has been enacted, and to provide information on the effects of this legislation once implemented.

Article 5(a) and 7. Effective cooperation and adequate training. The Committee notes the observations of the KCTU alleging that the Ministry of Employment and Labour (MoEL) applies internal administrative interpretations arbitrarily or contrary to court precedents concerning hours of work, maternity and childcare leave, and the scope of imminent risk of an industrial accident. The Committee notes the Government’s response that the inconsistencies existing in judicial and administrative interpretations may hinder legal predictability at the workplace level, and that therefore it was amending the Labour Standards Act. In this respect, the Committee takes note of the adoption in 2018 of the revised Labour Standards Act. The Committee requests the Government to provide further information on the measures taken or envisaged to enhance the adherence of the labour inspection services to the decisions of the judicial system. It also requests the Government to provide information on the measures taken to ensure that labour inspectors receive appropriate training with a view to ensuring consistency between judicial and administrative interpretations of the Labour Standards Act.

Articles 6, 15(a) and (c). Independence, professional integrity of labour inspectors and their duty of confidentiality. The Committee notes the KCTU’s statement that there have been cases in which labour inspectors failed to pursue active investigations or delayed them, or induced workers to withdraw a case even though there were violations. The union also refers to cases of corruption and bribery involving labour inspectors, including the possibility of being offered a job after retirement. The KCTU further states that as a result of such close and collusive relationships between certain labour inspectors and employers, the identity of complainants can be disclosed. Complainants then suffer reprisals, including dismissals, although such treatment is legally prohibited (section 104 of the Labour Standards Act and section 81(5) of the Trade Union and Labour Relations Adjustment Act).

Concerning issues regarding corruption and conflicts of interest, the Committee notes the Government’s response that to prevent these illegal acts, measures to strengthen anti-corruption education have been taken and that it is running a reporting center for public officials’ illegal conduct including incorrect or arbitrary interpretations, breach of confidentiality obligations, corruption and conflicts of interest. The Committee further notes the Government’s indication that it will more closely monitor the requirement that labour inspectors protect the identity of complainants. The Committee recalls that, under the terms of Article 15(a) of the Convention, labour inspectors shall be prohibited from having any direct or indirect interest in the enterprises under their supervision, and that Article 6 of the Convention requires that inspection staff be composed of public officials whose status and conditions of service are such that they are assured of stability of employment and are independent of improper external influences. Noting the information on the measures to fight against corruption of public servants, the Committee requests the Government to continue to take measures to ensure that labour inspectors do not have any conflict of interest, whether direct or indirect, in the workplaces under their supervision. The Committee urges the Government to take the necessary measures to ensure that, in practice, the confidentiality of the existence of a complaint, as well as the identity of the complainant, is protected, in accordance with Article 15(c) of the Convention. The Committee further requests the Government to provide information on the application in practice of section 104 of the Labour Standards Act and section 81(5) of the Trade Union and Labour Relations Adjustment Act, which prohibit dismissal or other unfair treatment for reporting violations to labour inspectors.

Articles 20 and 21. Publication and communication to the ILO of an annual report. The Committee welcomes the statistics provided by the Government in its report. Recalling that publishing annual reports is required under Article 20 of the Convention, the Committee requests the Government to take measures to ensure that annual reports containing the subjects under Article 21(a)–(g) of the Convention are published and transmitted to the ILO.