Informe provisional - Informe núm. 374, Marzo 2015

1. 286. The Committee last examined this case at its March 2014 meeting, when it presented an interim report to the Governing Body [see 371st Report, paras 239–255, approved by the Governing Body at its 320th Session (March 2014)].
2. 287. The Government forwarded its response in a communication dated 12 September 2014.
3. 288. The Republic of Korea has not ratified either the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 289. In its previous examination of the case in March 2014, the Committee made the following recommendations [see 371st Report, para. 255]:
   • (a) The Committee requests the Government to provide the decisions of the Supreme Court and of the National Human Rights Commission of Korea concerning the complaint filed by Mr Catuira. It also invites the complainants to provide any additional information they consider may assist the Committee’s understanding in this regard. The Committee generally once again urges the Government to refrain from any measures which might involve a risk of serious interference with trade union activities and might lead to the arrest and deportation of trade union leaders for reasons related to their election to trade union office.
   • (b) The Committee once again firmly expects that the Government will proceed with the registration of the MTU without further delay, and supply full particulars in relation to this matter.
   • (c) Deploring that the appeal filed by the Government against the Seoul High Court’s decision in favour of the MTU, is still pending before the Supreme Court, more than seven years after the appeal, the Committee once again firmly expects that the judgment concerning the MTU’s status will be rendered without further delay and urges the Government to ensure that the Committee’s conclusions, particularly those concerning the freedom of association rights of migrant workers, are submitted for the Supreme Court’s consideration and to provide a copy of the Supreme Court’s decision once it is handed down.
   • (d) The Committee also urges the Government to undertake an in-depth review of the situation concerning the status of migrant workers in full consultation with the social partners concerned, so as to fully ensure and safeguard the fundamental rights to freedom of association and collective bargaining of all migrant workers, whether in a regular or irregular situation and in conformity with freedom of association principles, and to prioritize dialogue with the social partners concerned as a means to find negotiated solutions to the issues faced by these workers. The Committee once again requests to be kept informed of the progress made in this regard.

B. The Government’s reply

1. 290. In relation to the establishment of the Migrants’ Trade Union (MTU), the Government outlines the chronology of events and confirms that its appeal to the Supreme Court concerning the establishment of the MTU, which has been pending before the Court since 23 February 2007, has yet to be decided by the Court. Requesting the Committee to suspend its consideration of this matter until the Supreme Court’s final decision is reached, the Government states that it has spared no efforts in supporting the Court in reaching its decision based on sufficient documentation, indicating that it has submitted complementary reports on the reasons for the appeal to the Supreme Court four times and, additionally, the Seoul High Prosecutor’s Office has submitted reference materials.
2. 291. The Government reiterates that the MTU’s registration was refused as it failed to meet the requirements set out by the Trade Union and Labour Relations Adjustment Act (TULRAA). The MTU failed to provide the complementary information requested relating to the names of workplaces to which union members belonged, as well as a list of members, and was not deemed to be a legitimate trade union as defined under the TULRAA, as its members were mainly foreigners without a right to stay in Korea under the Immigration Control Act (ICA). The Government thus appealed against the Seoul High Court ruling which had found in favour of the plaintiffs for the following reasons: (i) since foreigners without valid sojourn permits are strictly banned from employment under the ICA, they are not considered to have the legal rights to seek to improve and maintain their working conditions and to improve their status, since such rights are given on the assumption that legitimate employment relations will continue. Therefore, it is hard to see foreign workers without valid work permits as workers eligible to establish a trade union; and (ii) the organization was mainly constituted of foreigners without valid sojourn permit. In order to determine whether it meets the requirements to become an official trade union, it is legitimate to ask for a list of union members to check the members’ eligibility to establish a union.
3. 292. In relation to the decision to deny Mr Michael Catuira’s application to extend his stay in Korea and the subsequent decision to deport him, the Government attaches the decision of the Supreme Court issued on 27 September 2012, which dismissed Mr Catuira’s appeal against the decision of the Seoul High Court. The Supreme Court considered that the High Court had not exceeded its authority, had not violated principles of logic and experience, and had not misunderstood or failed to consider legal principles in the ICA. The Government further attaches the written notification of the result of the National Human Rights Commission of Korea’s (NHRCK) deliberation dated 24 July 2012, in which the NHRCK indicated that it was unable to proceed with the complaint resolution process in relation to Mr Catuira’s complaint as the Immigration Office’s denial of entry was a matter of discretion within immigration rules and that alleged violations of the right of defence were not within its reach.
4. 293. As regards the deportation of MTU leaders, the Government reiterates its position that arresting workers who overstayed their visas and deporting them to their home countries in accordance with the ICA falls within the rights of a sovereign country, and has nothing to do with their involvement in union activities. Their status as union officials does not mean that they are granted a legal status of sojourn, and their violation of the ICA was so obvious that “they should be subject to normal judicial proceedings in order to determine their responsibility”. Therefore, the arrest and deportation was a legitimate action.
5. 294. In summary, the Government reiterated that the denial of entry of Mr Catuira, and the arrest and deportation of former leaders of the MTU resulted from the revocation of permits of sojourn which had been obtained by false or otherwise unlawful means, or as a result of a regular crackdown on foreigners without valid permits, meaning that such acts were nothing to do with interrupting union activities but were taken as part of border control efforts. The Government stated that foreign workers with legitimate status in Korea are guaranteed the same basic labour rights as those of domestic workers.

C. The Committee’s conclusions

1. 295. The Committee recalls that this case concerns allegations that the Government refused to register the MTU and carried out a targeted crackdown on the MTU by successively arresting its officers and subsequently deporting many of them, against a background of allegedly generalized discrimination against migrant workers.
2. 296. The Committee notes that the Government states that it is factually incorrect that its decisions to refuse registration of the MTU and to deny entry to, or to deport, former leaders of the MTU were intended to intervene with the MTU’s trade union activities. The Committee notes that the Government indicates that the MTU’s registration was refused because it was judged not to be a legitimate trade union under the TULRAA.
3. 297. The Committee further notes the Government’s request that the Committee suspend its consideration of the case until after the Supreme Court renders its final decision. In this regard, the Committee recalls that in its first examination of this case [353rd Report, para. 784], the Committee noted that “although the use of internal legal procedures, whatever the outcome, is undoubtedly a factor to be taken into consideration, it has always considered that, in view of its responsibilities, its competence to examine allegations is not subject to the exhaustion of national procedures [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, Annex I, para. 30]. Moreover, the Committee notes that the issue has been pending before the Supreme Court for more than two years and that during that time, several leaders of the MTU have been arrested and deported. In addition, the Supreme Court decision proceedings concern only the issue of the registration of the MTU, and not the other allegations raised in the complaint. The Committee will therefore proceed with its examination of the case with the aim of providing additional elements for the consideration of the relevant authorities in relation to the international principles of freedom of association.” The Committee expresses its deep concern that eight years since the appeal was lodged there has still been no decision rendered by the Supreme Court in relation to the registration of the MTU. The Committee recalls that the free choice of workers to establish and join organizations is so fundamental to freedom of association as a whole that it cannot be compromised by delays [see Digest, op. cit., para. 312]. The Committee considers that there has been no significant change in the circumstances surrounding the allegations pending in this case that would merit a reconsideration of its earlier decision and will therefore proceed with its consideration accordingly.
4. 298. The Committee further notes the Government’s indication that the denial of entry to, and deportation of, Mr Catuira, and the arrest and deportation of other former leaders of the MTU, resulted from the revocation of permits to stay that were obtained by false or otherwise unlawful means, or as a part of a regular crackdown on foreigners without valid permits. The Committee notes that the Government states that such border control efforts were not connected with union activities but fall within the rights of a sovereign country, and that foreign workers with legitimate status in Korea are guaranteed the same basic labour rights as those of domestic workers.
5. 299. The Committee recalls from its previous examination of this case the complainant organizations’ allegations that the Government’s refusal to register the MTU went hand in hand with the arrest of previous MTU presidents and other trade union officials, and the subsequent deportation of many of them [see 358th Report, para. 455]; that the Government’s antagonistic position continued to impede the MTU’s daily activities due to a widespread fear among its actual and potential membership that active participation in the union would lead to arrest and deportation; and that this sense of intimidation was true not only among undocumented migrant workers, but also among documented migrant workers who believed that their legal status did not render them immune to government targeting and harassment [see 355th Report, paras 685 and 704].
6. 300. As regards the complaint filed by Mr Catuira against the decision to refuse to renew his residence permit, the Committee recalls from its previous conclusions that it has been obliged to express its deep concern over the coincidental timing of the arrest and deportation of MTU leaders with the trade union activities of those long-standing workers [see 353rd Report, paras 790–793 and 353rd Report, para. 792]. In these circumstances, the Committee regrets to observe that the 2012 Supreme Court and the NHRCK decisions are limited to administrative reviews finding that Mr Catuira’s deportation fell within the Government’s discretion in implementing immigration law, rather than detailed examinations of the factual question of whether Mr Catuira’s deportation was related to his trade union function and activities.
7. 301. The Committee generally recalls, as it has in its previous examinations of the case [see 367th Report, para. 553 and 362nd Report, para. 595], that Article 2 of Convention No. 87 is designed to give expression to the principle of non-discrimination in trade union matters, and the words “without distinction whatsoever” used in this Article mean that freedom of association should be guaranteed without discrimination of any kind based on occupation, sex, colour, race, beliefs, nationality, political opinion, etc. [see Digest, op. cit., para. 209]. The Committee has interpreted this right to include the right to organize of migrant workers in an irregular situation.
8. 302. In this regard, deploring that the Government’s appeal against the Seoul High Court’s decision in favour of the MTU’s registration is still pending more than eight years after it was lodged, the Committee once again firmly expects that the Supreme Court judgment concerning the MTU’s status will be rendered without further delay and will duly take into account the allegations that the failure to register the MTU has been accompanied by a targeted crackdown against its leaders and members. In the meantime, the Committee once again urges the Government to ensure that the Committee’s conclusions, particularly those concerning the freedom of association rights of migrant workers, are submitted for the Court’s consideration, and to provide a copy of the Supreme Court’s decision once it is handed down. The Committee once again expresses its firm expectation that, in light of these conclusions, the Government will make every effort to proceed with the registration of the MTU without further delay and requests it to provide full particulars in this regard.
9. 303. Given the seriousness of a situation in which migrant workers are effectively denied the right to organize in practice, the Committee once again urges the Government to undertake an in-depth review of the situation concerning the status of migrant workers in full consultation with the social partners concerned, so as to fully ensure and safeguard the fundamental rights to freedom of association and collective bargaining of all migrant workers, whether in a regular or irregular situation and in conformity with freedom of association principles, and to prioritize dialogue with the social partners concerned as a means to finding negotiated solutions to the issues faced by these workers. The Committee once again requests to be kept informed of the progress made in this regard.
10. 304. The Committee invites the complainants to provide any additional information they consider may assist the Committee’s understanding of the current functioning of the MTU.