Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 405, Marzo 2024

1. 510. The complaint is contained in a communication dated 19 December 2022 from the Korean Public Service and Transport Workers’ Union (KPTU), the Korean Confederation of Trade Unions (KCTU), the International Transport Workers’ Federation (ITF), Public Services International (PSI) and the International Trade Union Confederation (ITUC). In communications dated 3 February and 5 April 2023, the complainants sent new allegations and additional information.
2. 511. The Government provided its observations in a communication dated 9 January 2024.
3. 512. 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. 513. In their communications, the KPTU, the KCTU, the ITF, PSI and ITUC allege that the Government’s response to a strike held between 24 November and 8 December 2022 by KPTU Cargo Truckers’ Solidarity Division (KPTU-TruckSol) in the road freight transport sector infringed the freedom of association of the striking workers and their organization. The complainants state that this was the truck drivers’ second strike action in 2022 in relation to the “Safe Rates system” which set basic minimum rates of pay for owner truck drivers in container and bulk cement trailer transport. The covered drivers were legally classified as “specially employed” or “independent contractors”. The Safe Rates system was scheduled to expire at the end of 2022 by virtue of a sunset clause in the legislation. KPTU-TruckSol demanded the repealing of this sunset clause to make the Safe Rate system permanent and the expansion of its coverage to more transport sectors. The complainants specify that pursuant to section 2.13 of the Trucking Transport Business Act (TTBA), the Safe Rates system sought to prevent overwork, speeding, and overloading by guaranteeing cost recovery and payment for all time worked and provided a basic safeguard against rising fuel prices and cost of living for covered truck drivers. The system was consistent with recommendations on ‘sustainable payments’ set forth in paragraphs 76–77 of the ILO Guidelines on the promotion of decent work and road safety in the transport sector.
2. 514. The complainants state that KPTU-TruckSol members and other truck drivers engaged in a first strike action from 7 to 14 June 2022, demanding the continuation of the Safe Rates system and the expansion of its coverage. This strike was called off and drivers returned to work because the Ministry of Land, Infrastructure and Transport (MoLIT) and KPTU-TruckSol reached an agreement where the MoLIT committed “to propel forward the existing Safe Rates system and discuss expansion to other freight types”. However, the Government did not uphold this agreement, as the Minister and Vice-Minister of Land, Infrastructure, and Transport both stated immediately after the strike was called off that the sunset clause could not be repealed, and the Vice Minister affirmed that the Safe Rates system was not fit for a market economy. The complainants further allege that on 29 September 2022, the MoLIT submitted a report to the National Assembly which, based on inaccurate and incomplete data, concluded that the Safe Rates system had not had a clear impact on road safety and proposed the repeal of the cargo owners’ obligations to ensure compliance with safe rates, the weakening of penalties for violations and other changes that would weaken trade union involvement and make the system unenforceable. On 30 September, KPTU-TruckSol representatives went to the MoLIT to protest this report. Concerning the expansion of coverage, the MoLIT held no discussions with KPTU-TruckSol or other stakeholders until the union declared its intention to organize a national strike on 14 November. On 15 November negotiations took place between MoLIT representatives and the union, during which the Government representatives stated that they would not accept expansion of Safe Rates for fear that this would lead to the expansion of the union’s membership in newly covered sectors. The complainants allege that outside these two meetings of 30 September and 15 November, the MoLIT refused to engage in meaningful dialogue with the union.
3. 515. According to the complainants, while before the strike Democratic Party lawmakers had proposed legislation that would have made the Safe Rate system permanent and expanded it to the steel, dangerous goods, automobile, grain and feed and parcel delivery transport, on 22 and 23 November other bills were proposed by the ruling People Power Party which revised the legislation in different ways, making it less protective of the drivers, including by removing the obligations on cargo owners and changes to how the minimum rates were calculated, strengthening the power of the Government in this regard. In this context, the KPTU-TruckSol’s demands in the strike were that no “regressive revisions” be made to the Safe Rates system; that the sunset clause be repealed, and the application of the system be expanded to more sectors.
4. 516. The complainants indicate that the Government started preparing its response immediately after the union announced its intention to go on strike by raising crisis alert levels as of 15 November. On 23 November, the MoLIT Minister announced the Government ministries’ joint plan to respond through measures such as introduction of replacement transport, the exemption of non-participant drivers from highway tolls, the suspension of fuel subsidies for strikers and the possibility of issuing commencement of work orders should the strike become prolonged. MoLIT representatives called the strike illegal, unjustified and self-interested and referred to it as a “collective refusal to transport”.
5. 517. The complainants allege that as of 24 November 2022, the first day of the strike, the Government stationed police forces at strike sites around the country and began using army trucks and other vehicles to carry out replacement transport. MoLIT representatives met with cargo owner and transport company representatives and visited local production and logistics hubs to monitor the response to strike. On 27 November the Government defined the strike as a “social accident” under the Framework Act on the Management of Disasters and Safety, on the grounds that it could cause a “crisis in the national economy” and convened a meeting of the Central Disaster and Safety Countermeasure Headquarters. On 28 November talks were held between the MoLIT and the union which did not deliver any progress and on 29 November after a Cabinet meeting and Government approval, the MoLIT issued commencement of work orders addressed to trucking companies and 2,500 drivers in the cement sector. The complainants affirm that this was the first time that commencement of work orders were issued to truck drivers since the authority to do so was granted to the MoLIT through amendment of the TTBA in 2004. On 30 November, the second round of talks between the union and the Ministry did not result in any progress.
6. 518. The complainants state that the Fair Trade Commission (FTC) issued a press release on 29 November 2022, stating that it had begun examining whether KPTU-TruckSol had committed illegal cartel conduct and/or acts prohibited for trade associations under the Monopoly Regulation and Fair Trade Act (FTA) and on 2 December, FTC officials attempted an investigation at the KPTU-TruckSol Seoul and Busan branch offices. According to the complainants, the FTC officials demanded the submission of a wide range of irrelevant materials such as a list of union members. On 4 December, the Minister of Economy and Finance declared that measures will be taken against those who refuse to return to work in violation of commencement of work orders and those who incite or assist these violations. He further indicated that KPTU-TruckSol will be held accountable and expressed regret that the union had blocked the FTC on-site investigation. On 5 December, TruckSol submitted a written opinion to the FTC to raise questions about the purpose, scope and method of the investigation and the documents to be submitted. The union indicated that it would review and reply to the FTC’s official request of on-site investigation. In their communication dated 3 February 2023, the complainants state that pursuant to a press release dated 18 January 2023, the FTC pressed criminal charges against TruckSol for interference with an investigation by preventing the FTC officials from entering the union offices in violation of sections 124(1) and 13 of the FTA. The complainants indicate that this offence is punishable by a maximum of three years’ imprisonment, or a maximum fine of 200 million South Korean won (US$1,400,000).
7. 519. The complainants allege that on 7 December 2022 a complaint was filed with the police against a cement truck driver who had not returned to work despite the commencement of work order and a request for an administrative measure against him was filed with the competent local government. In their communication of 3 February 2023, the complainants further allege that the MoLIT filed charges with the police against several truck drivers who had not complied with the commencement of work orders. The police sent one case to the prosecution with an opinion of “sufficient to indict”, while the other worker was still under investigation. The complainants affirm that if prosecutors choose to file charges, the workers will face lengthy trials, and if convicted, their cargo transport licences may be cancelled depending on the type of sentence. The complainants finally allege that one of accused drivers was notified of an administrative sanction of a 30-day licence suspension for non-compliance with the commencement of work order.
8. 520. According to the complainants, on 2 December 2022 the Korea Land and Housing Corporation (LH) announced that it would consider a claim for damages suit against KPTU-TruckSol should damages occur. On 6 December, the MoLIT announced that it would support companies’ suits for damages against the union and on 7 December, a meeting of the Central Disaster and Safety Countermeasure Headquarters was held to share the status of each industry’s damage in relation to the KPTU-TruckSol strike and discuss countermeasures. The complainants request the Committee to urge the Government not to proceed with claims for damages against the legitimate exercise of the right to strike.
9. 521. On 8 December, after an extraordinary cabinet meeting the second round of commencement of work orders were issued, covering 6,000 drivers in the steel and 4,500 drivers in the petrochemicals sector. The complainants state that in view of all the strict measures taken by the Government against strikers and the union, on 8 December the Central Executive Committee of KPTU-TruckSol decided to hold a general membership vote on whether to end the strike. Subsequently on 9 December, 61.8 per cent of the participants voted to end the national strike and return to work. The complainants argue that in view of the harshness of the measures taken by the authorities, most truck drivers could not overcome the threat of sanctions and punishments, were forced to stop exercising their right and returned to work. The complainants also cite allegedly intimidating announcements of several high-ranking Government officials, including the President of the Republic, the Prime Minister, and several Ministers affirming that strict measures shall be taken against non-compliers. They further state that while certain Ministries affirmed that the strike was illegal, the Ministry of Employment and Labour had announced that it didn’t see the collective action itself as illegal and that the Ministry of Economy and Finance had also stated that the refusal of transport was essentially legal.
10. 522. The complainants further indicate that section 14 of the TTBA, the legal basis for the issuance of commencement of work orders, allows such a measure if “reasonable grounds exist to believe that an unjust collective refusal of transport has caused or could cause a serious crisis in the national economy by greatly disrupting the transport of freight.” Non-compliance with commencement of work orders is a criminal offence, punishable by a maximum fine of 30 million won (US$22,500) or up to three years’ imprisonment. The commencement of work orders issued also indicated possible administrative sanctions such as suspension and cancellation of licences in case of non-compliance. The complainants reject the Government’s position that the strike constituted an emergency for the national economy and indicate that in the petrochemical sector, only 0.8 per cent of gas stations reported that their inventory was out of stock after the strike. They also claim that the requirements of section 14 were not duly respected, as the Government had decided to issue the orders before the strike started and issued the first set of orders only five days after its beginning, which shows that they had made an arbitrary judgement on the likeliness to cause a very serious crisis in the national economy. Finally, the situation did not correspond to an “acute crisis” that would justify restrictions on strike action in accordance with ILO standards.
11. 523. The complainants further state that section 14 of the TTBA was first introduced by the Government in response to two TruckSol strikes in 2003, which occurred shortly after the union was formed. At the time when the legislation was considered in the National Assembly, lawyers’ and civil society organizations raised concerns about it and noted that unlike national civil servants or doctors, for whom commencement of work orders were also legal, truck drivers could not be seen as carrying out work involving a duty to the public. They also pointed out that on one hand truck drivers were denied the right to association and collective bargaining based on their status as independent contractors, and on the other hand a legal system was introduced by which the Government could force them to work. The complainants argue that in the present case, the issuing of the commencement of work orders against a legitimate strike action by a trade union, as well as the attempt during the strike to investigate and punish it as illegal cartel conduct under economic law are violations of the principle of freedom of association. The complainants allege that the TTBA provisions which allow the use of commencement of work orders are inconsistent with the principle of freedom of association and prohibition of forced labour. In their communication dated 3 February 2023, the complainants indicate that on 19 December 2022, Mr Choi, a bulk cement trailer driver from the Busan area, presented an application to Seoul Administrative Court, challenging the constitutionality of sections 14(1) and 4 of the TTBA.
12. 524. The complainants also refer to the statement of the Minister of Economy and Finance on 8 December 2022, indicating that the action was not a strike but a “refusal to transport” and immediate return to work was the priority. Furthermore, according to the complainants, on 2 December 2022 the chairperson of the FTC had indicated in a press conference that TruckSol members were individual business owners. Finally, the complainants refer to leaflets distributed by the Government in reaction to the ILO intervention in relation to the November–December 2022 strike, where it was indicated that no violation of ILO principles had taken place as it was difficult to view TruckSol as a trade union under the law since it has not obtained a certificate of union establishment and has not complied with procedures outlined in labour law. The complainants affirm in this respect that due to the refusal of the Government and employers to recognize TruckSol’s trade union status, it is not possible for TruckSol to follow procedures laid out in the Trade Union and Labour Relations Adjustment Act (TULRAA). Nonetheless, they allege that TruckSol’s strike action, which concerned the workers’ occupational and economic interests and sought the solution to economic and social policy questions and problems of direct concern to the workers, was consistent with international labour standards.
13. 525. Regarding the denial of recognition of labour union status of KPTU-TruckSol under the TULRAA on the grounds that its members were individual business owners, and that TruckSol itself had not been issued a certificate of union, the complainants affirm that: (a) TruckSol is a sectoral division of the KPTU, which is an industrial union and has been issued a certificate of union establishment and therefore TruckSol is not required to apply for a separate certificate of establishment, based on the principle that unions are free to define their structure and organization. Furthermore, legitimate trade union activities should not depend on registration; (b) TruckSol members who, as owner-drivers, are economically dependent on those for whom they work in the trucking industry, can be recognised as workers in light of the recent rulings of the Korean Supreme Court which provide that the definition of a worker under the TULRAA should be based on whether the actual substance of the relationship through which labour is provided necessitates the protection of fundamental labour rights.
14. 526. Concerning the structure of the road freight industry and the situation of truck drivers within this structure, the complainants allege that the Safe Rates system was created to improve the reality faced by truck drivers who must carry out transport at low rates in order to make a living within the context of the exploiting structure of the freight transport market where cargo owners, mostly large conglomerates called chaebol, push down transport rates to an unreasonably low level; transport companies and freight forwarders impose excessive fees on drivers and, all costs incurred in the process of transport are shifted to truck drivers who are at the bottom of the structure. The complainants state that since its establishment in 2002, KPTU-TruckSol has made great efforts to improve the unfair structure of the freight transportation market through the introduction of the Safe Rates system.
15. 527. The complainants further allege that during and in the aftermath of the strike, some transport companies took retaliatory measures and committed acts of anti-union discrimination and interference against the KPTU-TruckSol and its members who had participated in the strike: (a) on 2 December, when the strike was in progress, union members of the Cheonan Chapter received a text message from their transport companies asking them to “quickly reveal whether they intend to return to work,” and were notified again of a “seven-day suspension of work” for not replying to the message; (b) on 9 December, tank lorry driver members of the TruckSol Cheonan and Daesan Chapters were notified by their transport companies that they could return to work only when they brought a confirmation that they had withdrawn from the union. The transport companies told workers to bring confirmation that they had left the union as quickly as possible, so that they could report this to the lead firms (cargo owners) and assign them work again; (c) media reports confirmed on 11 December that some transport companies told workers who participated in the strike that they would be allowed to return to work on the condition that they leave the union or that union leaders resigned. Companies also notified workers they would not be given work for a certain period or face other disadvantageous measures for having joined the strike; and (d) a TruckSol leader of the Daesan Chapter received a notice saying: “other union members will be allowed to return to work only when union leaders resign”. Another union member said that his transport company told union leaders to “quit the company and the company will deal with your truck”. With respect to the latter incident, the complainants cite the director of the KPTU-TruckSol Incheon Branch indicating that the FTC set a guideline in 2019 to protect especially employed workers, which was clearly violated in certain cases.
16. 528. Concerning the fate of the Safe Rates system in the aftermath of the strike, in their communication dated 5 April 2023 the complainants referred to a Government proposal to replace the Safe Rates system with a “Minimum Rates System”, which would allegedly repeal the obligations put on cargo owners and remove penalty provisions making the law effectively unenforceable. According to the complainants the proposal also took the authority for setting cost models and fair income levels away from the tripartite Safe Rates Committee and placed it with the Government. Furthermore, it gave the Government the ability to limit the level of pay rates and prevent the publication of rates’ standards. In other words, the Government proposal effectively meant the abolition of the Safe Rate System. The bill was only discussed with the ruling party and reflected solely the Government’s position. The complainants affirm that there was no actual communication or consultation with KPTU-TruckSol. The complainants indicate that the meetings that the Government claims to have had with the union including those within the Safe Rates Committee, the formation of the “Logistics Industry Development Council” with the union and a public hearing by the Logistics Industry Council on 18 January 2023, were merely a formality and were not a meaningful dialogue, considering that during these meetings, the Government ‘pretended’ to hear the opinions of stakeholder groups on several issues related to trucking transport regulation, one of which was the Safe Rates system. However, according to the complainants the Government made no attempt to reflect the position of KPTU-TruckSol or associations representing transport companies concerning the continuation of the Safe Rates system, and instead put forward its own proposal at the conclusion of these meetings.
17. 529. In their communication dated 5 April 2023, the complainants also responded to the Government’s statements that during the June 2022 strike, KPTU-TruckSol committed illegal actions such as transport disruptions, violent assaults and threats, and that during the November strike its members engaged in acts of violence and the destruction of infrastructure as well as threats towards non-striking members of KPTU-TruckSol and non-member truckers. The complainants confirm that regrettable incidents of violation of law took place during the strike; but affirm that these were individual acts of a very small number of drivers and contrary to the Government’s allegations, violence and intimidation during strike actions had never been an organized policy of KPTU-TruckSol.

B. The Government’s reply

1. 530. In its communication of 9 January 2024, the Government indicates that the complainants’ allegations of violation of Conventions Nos 87 and 98 are unfounded; that KPTU-TruckSol’s November 2022 collective refusal to transport had severe social and economic consequences and that, contrary to the complainants’ allegations, in addressing this acute crisis, the Government respected ILO standards.
2. 531. The Government provides its account of the facts concerning the background, the response to the November–December 2022 strike – which it designates as the “collective refusal to transport” – and its aftermath. The Government specifies that according to the Safe Rates system, a shipper must pay freight rates that are not lower than the safe trucking freight rates, to a transport business operator or truck owner-operator. In addition, a transport business operator must pay safe-entrusted trucking freight rates to a truck owner-operator. The Government indicates that the TTBA establishes a Committee on Safe Freight Rates for Trucks (CSFRT) to determine and adjust safe trucking costs and safe trucking freight rates as well as their scope of application. The 13 Committee members represent truck owner-operators, transport business operators, shippers, and public interests. The CSFRT reviews the following matters: (1) fixed costs including personnel expenses and depreciation and amortization costs; (2) variable costs including fuel and parts costs; and (3) other matters prescribed by Presidential Decree such as waiting charges and level of services offered by transport service providers.
3. 532. Concerning the 7–14 June 2022 “collective refusal of cargo transportation”, the Government indicates that it caused a reduction in container traffic to 32.4 per cent of the usual levels and led to damages amounting to US$1.24 billion. According to the Government during the process, KPTU-TruckSol engaged in illegal activities, such as transport disruptions, violent assaults, and threats against non-member drivers and members who did not participate in the collective action. During this collective action the Government held five meetings with KPTU-TruckSol and in response to the Government proposal to “continue discussions” regarding the system’s continued implementation and its expansion to other freight types, the organization’s members resumed transportation services on 14 June. The Government affirms that no agreement was reached between the Government and KPTU-TruckSol at that time, as the continuation of the Safe Rates system required a legislative amendment of the TTBA in the National Assembly and was therefore beyond the power of the Government. The Government indicates that following these events it continued its dialogue with relevant stakeholders including those participating in the CSFRT and the “Cargo Transport Industry Council”. According to the Government, between the first collective refusal to transport in June 2022 and the second in November 2022, the Government held a total of five one-on-one meetings with KPTU-TruckSol.
4. 533. The Government indicates that only five months later, KPTU-TruckSol commenced a second nationwide indefinite “collective refusal to transport” despite the Government’s endeavour to engage in dialogue. The second “refusal” had a significant social and economic impact, due to Korea’s geographic location as well as its predominant dependence, for imports and exports, on ports and for domestic cargo transportation, on road transport. Moreover, the collective refusal was marked by violence, vandalism and intimidation against non-participants, which led to work stoppages among the latter, further aggravating the cargo transportation situation. The Government further confirms the complainants’ account of events, concerning the declaration of a red-level crisis alert, the two unsuccessful meetings between the Government and KPTU-Truck-Sol, the issuance of back-to-work orders and the union’s calling off the collective action on 9 December 2022.
5. 534. The Government indicates that it recognizes trade unions as key policy partners and promotes various policies that respect the value of labour. It refers to the ratification of Conventions Nos 87 and 98 on 20 April 2021, and to several amendments made to national legislation in preparation of these ratifications. It further refers to its promotion of labour reform aimed at the creation of a sustainable labour market that includes global standards such as ILO standards and the best practices of major countries; as well as efforts to address unfair wage gaps and labour market dualism. The Government further mentions the agreement signed between prime contractors and subcontractors in the shipbuilding industry in February 2023 and its continuing efforts to transpose this initiative to other industries.
6. 535. Concerning the status of KPTU-TruckSol, the Government affirms that the TULRAA protects the freedom of association and collective bargaining rights of cargo truckers. It indicates that people in special types of employment, who are classified as workers under the TULRAA, such as delivery workers, designated chauffeur drivers, parcel delivery workers, professional bicyclists, cargo transportation drivers (separate from KPTU-TruckSol), after-school tutors, life insurance planners, and work-book teachers, have established various trade unions and are engaging in union activities lawfully. Nevertheless, the Government distinguishes most truck-owner operators who are members of the KPTU-TruckSol from the previous categories, considering that they own their vehicles and are registered as individual business entities operating their cargo transportation business under their own business license with their own name. Therefore, according to the Government, KPTU-TruckSol is a trade association composed of individual business entities, and the collective transport refusal of KPTU-TruckSol is not a strike protected under the Constitution of Korea or international labour standards, but an unfair refusal of transaction by an “interest association”.
7. 536. Furthermore, the Government indicates that KPTU-TruckSol’s activities are different from those of trade unions under the TULRAA, as it has not submitted a report on its establishment, nor has it followed the minimum procedures for collective bargaining and industrial actions as required in the TULRAA. Therefore, the Government concludes that these activities are not protected by the right to collective action and collective bargaining under the TULRAA. The Government affirms in this respect that the trade union registration system in the Republic of Korea (the trade union establishment reporting system) is not a form of licensing because administrative authorities do not have discretionary power and must accept the application and issue the certificate on union establishment if the application meets the requirements. The Government emphasizes that legal registration is the primary step for trade unions to gain protection under the TULRAA, and that despite this, KPTU-TruckSol has not exercised its right to formal recognition through legal registration in recent years.
8. 537. Concerning the objective of the “collective refusal to transport” in the present case, the Government indicates that the continuation and expansion of the Safe Rates system demanded by KPTU-TruckSol caused concern over negative social impacts, considering that objective calculation of freight rates through this system was not possible. The Government specifies in this respect that : (i) costing processes lacked objectivity considering that 17 out of 25 cost items were examined through surveys without objective data; (ii) truck owner-operators’ income was determined through negotiations between members of the CSFRT, which was structured in favour of transport business operators and truck owner-operators who received guaranteed income and whose interests are aligned, and this was unfavourable to shippers who pay the freight; and (iii) the profit of transport business operators – not truck owner-operators – was guaranteed uniformly (at around 12 per cent), which was contrary to the principle of market competition and caused an increase in logistics costs and was a burden on businesses and the public.
9. 538. Concerning the social and economic impact of the KPTU-TruckSol’s “collective refusal to transport” the Government indicates that Korea effectively functions as an island nation, and therefore relies on air and sea transport for the import and export of all critical goods, including food, medical supplies and oil, which are vital to the Korean population’s life and safety. As a result of the November 2022 collective refusal to transport, the volume of container cargo entering and leaving Korean ports fell to 60 per cent of its usual volume. The share of road freight transport in Korea is very high (92.9 per cent as of 2021). As a result, any prolonged interruption of road freight transport services results in a significant negative impact on people’s lives, health, and personal safety across the country. The Government indicates that for example, according to some medical professionals, the refusal could lead to a shortage of imported medicines. The Government further indicates that the November 2022 collective refusal to transport blocked the shipment of major industrial goods such as cement, steel and petrochemicals. Shipments of cement fell by 95 per cent. This affected 55 per cent of all construction sites across the country and consequently raised serious concerns about the jobs and livelihoods of daily workers at those sites. Also, the construction of 71.3 per cent of the public housing units for low-income groups was disrupted, which delayed the move-in dates by up to five months. The Government adds that shipping in steel and petrochemical sectors fell by 50 and 70–80 per cent respectively. This reduced the storing space within factories and if the collective refusal to transport had continued much longer, petrochemical factories would have had to close for at least 15 days. The refusal also affected oil refineries. According to the Government, if petroleum products were not supplied on time, the livelihood and health of the Korean population during the winter season would have been affected, with particularly grave consequences for the most vulnerable groups of the population. According to industry estimates, shipment disruptions of produced goods resulting from the 16-day collective refusal to transport caused a total of US$3.4 billion in damage, with US$1.3 billion in the steel and 1.1 billion in the petrochemical sector.
10. 539. The Government also indicates that the refusal to transport was qualified as a “social disaster” under the Framework Act on the Management of Disasters and Safety because it effectively paralysed the nation’s core infrastructure. The refusal affected major logistics hubs including the steel and refinery sectors, as well as major ports. As a result, damages to construction sites became visible, while other industries, including steel, began to be affected. The MoLIT, operating as the disaster management supervision agency for land cargo transportation accidents, determined that the crisis had reached the highest level of emergency and issued a red alert on 28 November, which entailed the intervention of the Central Disaster and Safety Countermeasure Headquarters to manage the crisis.
11. 540. The Government further argues that its issuance of commencement of work orders and use of replacement of transport services in response to KPTU-TruckSol’s “collective refusal to transport” were in conformity with the ILO Conventions Nos 87 and 98 and the principle of freedom of association. The Government indicates in this respect that the right to strike is not absolute and that the Committee on Freedom of Association (CFA) has held that back-to-work orders and replacement services may be applied in certain circumstances, in particular if the strike is in an essential service sector in the strict sense of the term or if it may cause an acute national crisis. The Government states that although the CFA does not consider freight transport services as essential services, and in line with this approach they were not included in the list of essential services under the TULRAA, the specific circumstances of the present case required the issuance of commencement of work orders and the use of replacement services to ensure minimum service. In this regard, the Government underlines that this was the second nation-wide strike of truckers in a six-month period and reiterates the points raised concerning the reliance of the country on inland road transportation and the impact of the strike on the on the economy and society as a whole. The Government further indicates that after the issuance of the red alert it had no choice but to issue commencement of work orders to a limited number of transport companies and cargo truckers in the cement sectors on 28 November and to a limited number of truckers in the steel and petrochemical sectors on 8 December. According to the Government, KPTU-TruckSol’s repeated and prolonged refusal to transport, combined with the acts of violence committed by KPTU-TruckSol’s members against non-participating truckers, caused an acute national crisis which required the Government to intervene with a view to ensuring minimum service.
12. 541. Concerning the scope of the commencement of work orders issued, the Government indicates that out of a total of 445,000 cargo truckers, the Government limited commencement of work orders to 12,500 truckers in the cement, steel and petrochemicals sectors. In practice, the orders were issued according to strict procedures and were limited to cases where (i) a trucking site was inspected and investigated by a public official in person and (ii) a request for transport was rejected. As a result, the number of truckers who effectively received commencement of work orders was strictly limited to 932 individuals, representing only 4.2 per cent of 22,000 KPTU-TruckSol’s affiliated truck drivers (or 0.02 per cent of the total 445,000 cargo truckers). This confirms that the Government issued the commencement of work orders in a strictly limited manner for the specific purpose of ensuring minimum service.
13. 542. The Government also indicates that the issuance of commencement of work orders were in conformity with the Forced Labour Convention, 1930 (No. 29), and national law and procedure.
14. 543. Concerning the use of replacement transport services, the Government indicates that it found it necessary to deploy a limited number of vehicles from public agencies to mitigate the disruptions resulting from acts of intimidation and violence of the participants in the collective refusal to transport and their obstruction of access of non-participating drivers to key logistic hubs. The Government provided 69 container trucks (serviced by 150 drivers) managed by the Ministry of National Defense (MOD); 24 vehicles (serviced by 50 drivers) owned by MOD; 18 trucks (serviced by 45 drivers) managed by the Regional Office of Construction and Management of the MoLIT; and 4 trucks (serviced by 10 drivers) from Korea Expressway Corporation. These vehicles were deployed to key logistics hubs for transporting emergency import and export cargo, handling a total of 2,678 cases. The Government specifies that the volume of shipments handled was very small compared to that in normal times and concludes that the use of replacement services in the present case has been in line with the applicable ILO standards and the CFA practice.
15. 544. Concerning the FTC investigation of KPTU-TruckSol’s alleged illegal cartel conduct and/or prohibited acts of trade associations, the Government provides details concerning the scope and content of the Korean Monopoly Regulation and Fair Trade Act (FTA), and indicates that investigation is a legitimate law enforcement measure in that framework. The FTA aims at promoting fair and free competition by regulating illegal cartel conduct and unfair trade practices. The FTA applies to acts of “business entities” and “trade associations” and can apply to entities that are simultaneously deemed as trade unions or workers under the TULRAA. The Government explains that in assessing whether a person qualifies as a business entity or a trade association, the FTC considers whether they offer services or products and receive counter-payments in each individual case, regardless of the business type or organizational structure. The Government refers to the cases of the Korean Construction Workers’ Union (KCWU) and Korean Federation of Port and Transport Workers’ Unions (KFPTWU), both legitimate trade unions under the TULRAA, which were sanctioned for violations of the FTA. The Governments adds that the Supreme Court of Korea ruled that the FTA could be applied to trade unions. Specifically, in a decision dated 13 July 2023, the Supreme Court qualified the Ulsan Port and Transport Workers’ Union, which obstructed the loading and unloading done by a competing trade union, as a “business entity”. The ruling provided that a trade union which had received a worker supply business licensing had both the status of a trade union and a business entity and therefore found it justifiable to apply the FTA to that trade union.
16. 545. Concerning the grounds for the FTC investigation of KPTU-TruckSol, the Government indicates that most members of this organization are registered as individual business entities that either directly operate cargo transportation services or do so on consignment. KPTU-TruckSol is therefore considered a trade association established to promote the common interests of these cargo truck business entities. The investigation concerned alleged violation of section 51 of FTA, including coercing associated members into refusing to provide transport services and obstructing the transportation operations of business entities not associated with KPTU-TruckSol by using violence or the occupation of distribution hubs. The Government affirms that the investigation does not relate to the refusal to transport as such.
17. 546. The Government further indicates that pursuant to section 81 of the FTA, investigations by the FTC are administrative investigations and do not require a court warrant or police presence. In accordance with the same provision, the FTC requested the minimum materials necessary for its investigations and also requested a list of business entities associated with KPTU-TruckSol was justified for the purpose of investigating possibly prohibited acts of the trade association. No police mobilization or illegal search of a union premises was conducted. The Government adds that KPTU-TruckSol refused cooperation by intentionally blocking access of FTC officials, and thereby refusing to participate in a lawful and peaceful FTC investigation and offering no valid reasons for their non-compliance. As the FTA contains penalty provisions concerning interference with an investigation (section 124), the FTC filed a complaint of obstruction of investigation and on 9 August 2023, the Prosecutors Office charged KPTU-TruckSol with violation of the FTA. The Government confirms the complainants’ indications concerning the punishment that KPTU-TruckSol would incur if convicted.
18. 547. Concerning the presence of police forces at strike sites, the Government indicates that it was necessary to maintain public order and refers to illegal acts during the November 2022 collective refusal to transport, resulting in 781 cases being reported through 112 police emergency calls. The Government indicates that acts of obstruction of business and public administration were carried out and that KPTU-TruckSol’s executive officials fired iron balls at some cargo vehicles, resulting in damage to the vehicles and injury to the drivers. The Government affirms that these incidents were not isolated acts of a few drivers and posed a significant threat to public order and security and therefore the presence of the police forces could not be qualified as restricting the strikers’ civil liberties or the right to strike. The Government further refers to certain penal measures taken against KPTU-TruckSol officers and members who had committed acts of violence, threat and intimidation against other drivers: on 26 November 2022, three officers of TruckSol fired iron balls at two cargo vehicles operating at Busan New Port, damaging the vehicles and injuring the drivers. One was sentenced to two years and the two others to eighteen-month prison terms. In March 2023, the first-instance court sentenced a truck driver member of TruckSol who scattered more than 700, 9 centimeter-long steel spikes on the road, damaging the tyres of six vehicles, to eight months in prison and two years’ probation. In addition, between 30 November and 1 December, a truck owner-driver who sent text messages to transport business operators threatening them with “retaliation when the strike is over” was detained. The Government indicates that According to the National Police Agency, there were investigations against 66 individuals for allegations of violence, intimidation and property damage linked to the two KPTU-TruckSol’s collective refusals to transport in June and November of 2022. The Government finally indicates that only truck drivers who committed illegal acts faced the risk of being subject to criminal sanctions.
19. 548. Concerning the complainants’ request that the Government should be urged not to proceed with claims for damages against the legitimate exercise of the right to strike, the Government indicates that in its view, nothing in the ILO Conventions or the CFA practice requires ILO Members to forbid all civil law remedies, especially where companies are affected by a breach of contract due to the unlawful prolonged refusal to transport.
20. 549. Concerning the allegations of anti-union discrimination and acts of interference, the Government indicates that under the FTA, the FTC prohibits the abuse of business positions in trade and specifically regulates unfair trade practices by business entities against labour providers through the “Guidelines for Examining Abuse of the Business Position for Labour Providers”. According to the Government these Guidelines provide that business entities who exploit their position in trade to unfairly terminate a contract thereby rejecting transactions, violate the FTA. The Government adds however that no violation of this type has been reported to the FTC.
21. 550. Concerning the fate of the Safe Rates system, the Government rejects the complainants’ allegation that its alternative proposal for a “Standard Freight Rates System” effectively abolishes the existing Safe Rates system and indicates that the proposed alternative maintains the rate structure, while ensuring that transport business operators guarantee the payment of freight rates to truck owner-operators. Under this system, the parties responsible for paying freight charges to truck owner-operators are not shippers, but the transport business operators. The rates are determined by the CSFRT and the Government publicly announces those rates. The Government affirms that the alternative proposed aims at overcoming the limitations of the Safe Rates system by using objective data instead of data collected through questionnaires to calculate costs. Furthermore, the structure of the CSFRT will be modified: the number of public interest members with a neutral position will be expanded, and the number of transport business operators and truck owner-drivers will be adjusted to the number of shipper members. The Standard Freight Rate System provides guidelines for shippers and transport business operators, but ensures free contracting, while truck owner-drivers are guaranteed a certain level of freight rate. The Government indicates that after the submission to the National Assembly of the proposal of amendment of TTBA on 9 February 2023, the Government has maintained ongoing communication with the National Assembly and various stakeholders, including KPTU-TruckSol. According to the Government, on 31 October 2023 KPTU-TruckSol requested an expedited discussion on the Government’s amendment proposal and on 3 November 2023 it sent the same opinion to the opposition. The Government considers that this represents a change in KPTU-TruckSol’s position and requests the Committee to take full account of its efforts to resolve the issues through communication and the evolutions of the situation. The Government finally indicates that its proposed bill remains pending in the National Assembly and in response to this legislative delay the MoLIT is preparing a set of “Standard Freight Rate Guidelines”. Additionally, to protect truck owner-operators from unfair treatment by transportation companies, the MoLIT intends to include unfair practices such as unreasonable financial demands by transportation companies in the Enforcement Decree of the TTBA and introduce penalties for such violations.

C. The Committee’s conclusions

1. 551. The Committee notes that this case concerns the Government’s refusal to recognize the trade union status of KPTU-TruckSol and its response to the work stoppage held by this organization between 24 November and 9 December 2022.
2. 552. The Committee notes the complainants’ references to various Government officials’ statements, indicating that KPTU-TruckSol members are not workers, but individual business-owners, and that the collective action organized by KPTU-TruckSol is not a strike, but a “collective refusal to transport”. The Committee notes that the Government response confirms the alleged refusal to recognize KPTU-TruckSol’s status as a trade union, considering that it affirms that this organization is a trade association composed of individual business entities, and that the collective transport refusal of KPTU-TruckSol is not a strike protected under the Constitution of Korea and international labour standards, but an “unfair refusal to transaction” by an interest association. The Committee notes that to support its position the Government also indicates that KPTU-TruckSol has not applied for a union certificate in recent years and has not followed the procedure indicated in the TULRAA for initiating a strike. The Committee notes the complainants’ response to these arguments, indicating that TruckSol defines itself as a sectoral division of the KPTU and as such does not consider that it has to apply for a separate union certificate; and that the members of the organization are economically dependent on those for whom they work in the trucking industry, namely cargo-owners and transport companies, and therefore should be recognized as workers under the TULRAA.
3. 553. The Committee recalls that the question of the Korean Government and employers’ refusal to recognize individual truck-owner drivers, especially cement/concrete bulk transport truckers as workers, and the Government’s instruction to trade unions to exclude these persons from their membership was previously raised in 2009 in Case No. 2602 [see 355th Report, para. 636 and 359th Report, paras 348–49]. At that time, the Committee had requested the Government “to take the necessary measures to ensure that all workers, including “self-employed” workers, such as heavy goods vehicle drivers, can fully enjoy freedom of association rights with the organizations of their own choosing for the furtherance and defence of their interest, including the right to join federations and confederations of their own choosing subject to the rules of the organization concerned and without any previous authorization”, and “to hold consultations with all the parties involved with the aim of finding a mutually acceptable solution so as to ensure that, on the one hand, workers who are self-employed could fully enjoy trade union rights under Conventions Nos 87 and 98 for the purpose of furthering and defending their interest, including by the means of collective bargaining” [359th Report, para. 370(b) and (d)].
4. 554. The Committee further recalls that in Case No. 3237 (2018), certain allegations were related to a national strike organized by KPTU-TruckSol and the complainants had explained by way of background that “most truck drivers in the Republic of Korea work under a form of disguised employment. They purchase their own trucks but are in fact in a highly dependent contractual relationship with transport companies and clients (cargo owners) who contract with the transport companies. They are designated as ’specially employed‘ and as such are not recognized as workers with rights to association, collective bargaining or collective action that are guaranteed by the Constitution” [see 386th Report, para. 172]. At the time the Government had replied that “the TULRAA applies only to employees. Those in special employment arrangements, including owner drivers of heavy goods vehicles (those whose trucks are registered under the name of a transport company, but owned by drivers), have the characteristics of self-employed and employees at the same time, making it difficult to consider them all to be employees. The court decides on their exact status on a case-by-case basis. While the number of those in a special employment arrangement continues to grow, they face poor working conditions with little legal protection for basic labour rights. To address this, the Government has set ’guaranteeing basic labour rights for those in special employment arrangement’ as one of its policy priorities and plans to establish and implement specific protective measures after broad discussions with the tripartite partners and experts” [see 386th Report, para. 190]. The Committee had noted with interest the priority attached by the Government to this matter and had requested the Government to keep it informed of the measures taken in this regard [386th Report, para. 209].
5. 555. The Committee notes that all the issues raised in the present case flow from the continuous denial of recognizing as trade unions, organizations of “especially-employed” or “self-employed” truck driver-owners. It therefore reiterates its previous recommendation and urges the Government to take all the necessary measures to ensure that these workers can fully exercise their freedom of association rights.
6. 556. Concerning the qualification and legitimacy of the KPTU-TruckSol’s collective action, the Committee notes the Government’s indication that the organization has not followed the minimal procedures for collective bargaining and industrial actions as provided in the TULRAA and the complainants’ response that in view of the Government’s refusal to recognize KPTU-TruckSol as a union, they could not follow the procedures. The Committee notes these indications but also recalls that it has previously noted in a case concerning the Republic of Korea that the legitimate goals of strike action are narrowly interpreted and limited to matters related to industrial disputes between workers and employers [see 404th Report, paras 69(f) and 76]. The Committee notes in this regard that the collective action in this case, concerned the position of the truckers on the imminent expiration of the Safe Rates system, demanding the continuation and expansion of the protection of wages and living conditions that this system ensured them. As such, the collective action was not part of a collective bargaining process strictly speaking but was used to support the position of the workers concerning a major social and economic policy and legislation. Therefore, the Committee notes that in these circumstances the KPTU-TruckSol could not organize a strike concerning this issue in full conformity with the current legislation in the Republic of Korea. Nevertheless, considering that “the right to strike should not be limited solely to industrial disputes that are likely to be resolved through the signing of a collective agreement; workers and their organizations should be able to express in a broader context, if necessary, their dissatisfaction as regards economic and social matters affecting their members’ interests” [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 766], the Committee considers that KPTU-TruckSol should be able to exercise fully its trade union rights, including those of legitimate collective action in the defence of their members’ interests.
7. 557. Concerning the Government response to the collective action organized by KPTU-TruckSol, the Committee notes that the complainants allege that the issuance of commencement of work orders and use of replacement transport services infringed the right of truckers to strike, while the Government responds that its measures were justified, considering that KPTU-TruckSol’s repeated and prolonged refusal to transport, combined with the acts of violence committed by KPTU-TruckSol’s members against non-participating truckers, caused an acute national crisis which required the Government to intervene with a view to ensuring minimum service. The Committee recalls in this respect that “a certain minimum service may be requested in the event of strikes whose scope and duration would cause an acute national crisis, but in this case, the trade union organizations should be able to participate, along with employers and the public authorities, in defining the minimum service” [see Compilation, para. 871]. The Committee therefore considers that efforts should have been made to identify relevant minimum services with the unions concerned prior to issuing any limited back-to-work orders.
8. 558. The Committee notes that in its account of the impact of the November–December 2022 collective action, the Government indicates that in view of the important share of road freight in Korea (92.2 per cent as of 2021), any prolonged interruption of road freight transportation services results in a significant negative impact on people’s lives, health and personal safety across the country. The Government further refers to the impact of the collective action on the construction sector, which would have entailed a delaying of the move-in date for public housing applicants and would have impacted the livelihood of daily workers in the sector; its potential impact on the supply of imported medicines, as well as its impact on the supply of petroleum products and its potential consequences for the livelihoods and health of the population during winter. The Government also emphasizes the economic damage caused to the construction, steel and petrochemical sectors.
9. 559. Concerning the issuance of “commencement of work orders”, the Committee recalls that “whenever a total and prolonged strike in a vital sector of the economy might cause a situation in which the life, health or personal safety of the population might be endangered, a back-to-work order might be lawful, if applied to a specific category of staff in the event of a strike whose scope and duration could cause such a situation. However, a back-to-work requirement outside such cases is contrary to the principles of freedom of association” [see Compilation, para. 920]. The Committee notes that in the present case, the first set of orders issued on 29 November were addressed to the truckers transporting cement. Noting the Government’s indications concerning the impact of the “collective refusal to transport” on the construction sector, the Committee does not consider that the work stoppage of cement transporters would fall into such a category. Furthermore, the Committee notes that these orders were addressed to 2,500 truckers, which, according to the information submitted by the complainants on 3 February 2023, is equal to the total number of the KPTU-TruckSol members who transport cement. Therefore, the Committee notes that the issuance of these back-to-work orders was in reality a ban on the KPTU-TruckSol strike in the cement sector.
10. 560. The Committee notes that the second round of back-to-work orders was issued on 8 December and addressed to truckers in the steel and petrochemical sectors. Again, the Committee notes that the Government does not indicate in what way the work stoppage of truckers in the steel sector would have endangered the life, health or safety of the population. As to the petrochemical sector, the Government indicates that if petroleum products were not supplied on time, the livelihood and health of the Korean population during the winter season would have been affected, with particularly grave consequences for the most vulnerable groups of the population without addressing more specifically the scope and duration of the particular strike. In view of the above, and noting that non-compliers were exposed to up to three years’ imprisonment or a fine that can amount to 30 million won (US$22,500), the Committee considers that the issuance of commencement of work orders on 24 November and 8 December 2022 infringed the freedom of association of the striking workers concerned as well as the trade union rights of KPTU-TruckSol. In view of the above, the Committee requests the Government to refrain from imposing penal sanctions against the participants in the strike for mere non-compliance with the commencement of work orders.
11. 561. The Committee notes the complainants’ allegation concerning the prosecution of KPTU-TruckSol under the FTA for non-cooperation with the FTC investigation and the Government reply thereto. It notes that the union incurs a fine that can amount to US$1,400,000 if convicted. The Committee notes that the investigation concerned allegations of illegal cartel conduct and/or acts prohibited for trade associations, and that the FTC officials had requested, among other things, the submission of the list of union members. The Committee recalls in this respect that it has considered in the past that “the confidentiality of trade union membership should be ensured. A code of conduct should be established between trade unions, governing the conditions in which membership data is to be supplied, through appropriate means of personal data processing, with guarantees of absolute confidentiality” [see Compilation, para. 272]. The Committee therefore requests the Government to ensure the absolute confidentiality of the information on the membership of this organization.
12. 562. As regards the question of the FTA more generally, the Committee notes the Government’s indication that in certain circumstances, trade unions that also are business entities or trade associations can be subject to the FTA and their conduct be examined as “illegal cartel conduct” or acts prohibited for trade associations”. The Committee notes that according to the Government, KPTU-TruckSol is governed by the FTA as a “trade association” because its members are “individual business entities”. The Committee notes that again this issue is related to lack of recognition of the members of the union as “workers”. The Committee further notes the Government’s indication that in the present case, the investigation concerned alleged violation of section 51 of the FTA, including coercing associated members into refusing to provide transport services and obstructing the transportation operations of business entities not associated with KPTU-TruckSol using violence or occupation of distribution hubs. The Government affirms that the investigation does not relate to the refusal to transport as such. The Committee also notes the Government’s indications concerning violent and illegal conduct of certain strikers and the penal sanctions imposed on them.
13. 563. The Committee recalls that taking part in picketing and firmly but peacefully inciting other workers to keep away from their workplace cannot be considered unlawful. The case is different, however, when picketing is accompanied by violence or coercion of non-strikers in an attempt to interfere with their freedom to work; such acts constitute criminal offences in many countries [see Compilation, para. 939]. It notes the complainants’ confirmation that in the present case, regrettable incidents of violation of law took place during the strike. The Committee also notes that the allegations of the complainants do not concern sanctions imposed against such criminal conduct and that the complainants affirm that these were individual acts of a very small number of drivers and that violence and intimidation during strike actions had never been an organized policy of KPTU-TruckSol. In view of the foregoing and considering that criminal sanctions have been used against perpetrators of criminal acts during the strike as appropriate, the Committee notes with concern the criminal lawsuit against the union, at the outcome of which it may be convicted to a hefty fine, merely for having refused cooperation with an investigation for “illegal cartel conduct” and sharing the list of its members. The Committee recalls in this respect that “any sentences passed on trade unionists on the basis of the ordinary criminal law should not cause the authorities to adopt a negative attitude towards the organization of which these persons and others are members” [see Compilation, para. 159] and requests the Government to ensure that any sanctions against KPTU-Trucksol for actions of its individual members are not inconsistent with freedom of association.
14. 564. The Committee notes the complainants’ denunciation of retaliatory measures taken by certain transport companies against strikers and acts of anti-union discrimination and interference in this context. The Committee notes that the Government qualifies these acts as potential violations of the FTA but indicates that the FTC has not received any reports denouncing such acts. The Committee notes that from the Government’s point of view, the non-recognition of the union status of the KPTU-TruckSol seems to exclude the application of the rules concerning prohibition of anti-union discrimination and acts of interference to the retaliatory measures taken against KPTU-TruckSol members. The Committee recalls that acts of anti-union discrimination may vary in nature and are not confined to discharge, dismissal, retrenchment or termination of service, but also include all actions taken in retaliation against a worker exercising trade union activities, such as suspension [see Compilation, para. 1088]. In addition, a Government allowing employment to be conditioned upon relinquishing trade union membership is not consistent with effective recognition of the right to collective bargaining. The Committee therefore requests the Government to ensure that any such actions are appropriately sanctioned so as to avoid recurrence.