Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 353, Mars 2009

1. 584. The Committee already examined the substance of this case at its May–June 1996, March and June 1997, March and November 1998, March 2000, March 2001, March 2002,
   • May–June 2003, November 2004, March 2006 and May–June 2007 meetings, when it presented an interim report to the Governing Body [304th Report, paras 221–254; 306th Report, paras 295–346; 307th Report, paras 177–236; 309th Report, paras 120–160; 311th Report, paras 293–339; 320th Report, paras 456–530; 324th Report, paras 372–415; 327th Report, paras 447–506; 331st Report, paras 322–356; 335th Report, paras 763–841; 340th Report, paras 693–781; 346th Report, paras 488–806, approved by the Governing Body at its 266th, 268th, 269th, 271st, 273rd, 277th, 280th, 283rd , 287th, 291st, 295th and 299th Sessions (June 1996, March and June 1997, March and November 1998, March 2000, March 2001, March and June 2003, November 2004, March 2006 and June 2007).
2. 585. In a communication dated 5 July 2007 the Building and Wood Workers’ International (BWI – former International Federation of Building and Wood Workers, IFBWW) submitted additional allegations. In a communication dated 10 June 2008, the Korean Confederation of Trade Unions (KCTU) submitted new allegations. In a communication dated 25 June 2008, Education International (EI) associated itself with the complaint.
3. 586. The Government provided its observations in a communication dated 30 May 2007, 28 May 2008 and 25 February 2009.
4. 587. 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. 588. At its May–June 2007 session, the Committee called the Governing Body’s attention to this case because of the serious and urgent matters therein and made the following recommendations:
   • (a) With regard to the Act on the Establishment and Operation of Public Officials’ Trade Unions and its Enforcement Decree, the Committee requests the Government to give consideration to further measures aimed at ensuring that the rights of public employees are fully guaranteed by:
   • (i) ensuring that public servants at all grades without exception and regardless of their tasks or functions, have the right to form their own associations to defend their interests;
   • (ii) guaranteeing the right of firefighters, prison guards, public service workers in education-related offices, local public service employees and labour inspectors to establish and join organizations of their own choosing;
   • (iii) limiting any restrictions of the right to strike to public servants exercising authority in the name of the State and essential services in the strict sense of the term;
   • (iv) allowing the negotiating parties to determine on their own the issue of whether trade union activity by full-time union officials should be treated as unpaid leave.
     • The Committee requests to be kept informed of any measures taken or contemplated in this respect.
   • (b) The Committee requests the Government to ensure that the following principles are respected in the framework of the application of the Act on the Establishment and Operation of Public Officials’ Trade Unions:
   • (i) that in the case of negotiations with trade unions of public servants who are not engaged in the administration of the State, the autonomy of the bargaining parties is fully guaranteed and the reservation of budgetary powers to the legislative authority does not have the effect of preventing compliance with collective agreements; more generally, as regards negotiations on matters for which budgetary restrictions pertain, to ensure that a significant role is given to collective bargaining and that agreements are negotiated and implemented in good faith;
   • (ii) that the consequences of policy and management decisions as they relate to the conditions of employment of public employees are not excluded from negotiations with public employees’ trade unions;
   • (iii) that public officials’ trade unions have the possibility to express their views publicly on the wider economic and social policy questions which have a direct impact on their members’ interests, noting though that strikes of a purely political nature do not fall within the protection of Conventions Nos 87 and 98.
     • The Committee requests to be kept informed in this respect.
   • (c) As regards the other legislative aspects of this case, the Committee urges the Government:
   • (i) to take rapid steps for the legalization of trade union pluralism at the enterprise level, in full consultation with all social partners concerned, so as to ensure that the right of workers to establish and join the organization of their own choosing is recognized at all levels;
   • (ii) to ensure that the payment of wages by employers to full-time union officials is not subject to legislative interference and thus enable workers and employers to conduct free and voluntary negotiations in this regard;
   • (iii) to amend the emergency arbitration provisions of the TULRAA (sections 76–80) so that emergency arbitration can only be imposed by an independent body which has the confidence of all parties concerned and only in cases in which strikes can be restricted in conformity with freedom of association principles;
   • (iv) to repeal the provisions prohibiting dismissed and unemployed workers from keeping their union membership and making non-union members ineligible to stand for trade union office (sections 2(4)(d) and 23(1) of the TULRAA);
   • (v) to bring section 314 of the Penal Code (obstruction of business) in line with freedom of association principles.
     • The Committee requests to be kept informed of the progress made in respect of all of the abovementioned matters.
   • (d) Noting with interest that compulsory arbitration for disputes in essential public services has been abolished and a minimum services requirement was introduced instead in strikes in public services, the Committee requests the Government to keep it informed of the specific instances in which minimum service requirements have been introduced in case of strikes in essential public services, the level of minimum service provided and the procedure through which such minimum service was determined.
   • (e) The Committee requests the Government to keep it informed of the progress of the appeal proceedings in respect of Kwon Young-kil.
   • (f) The Committee requests the Government to reconsider the dismissals of Kim Sang-kul, Oh Myeong-nam, Min Jum-ki and Koh Kwang-sik in the light of the adoption of the Act on the Establishment and Operation of Public Officials’ Trade Unions and to keep it informed in this respect. It also requests the Government to provide information on the outcome of the pending administrative litigation and requests for examination concerning the dismissals of Han Seok-woo, Kim Young-kil, Kang Dong-jin and Kim Jong-yun and expresses the hope that the new legislation will be taken into consideration in rendering the relevant decisions. The Committee once again requests the Government to provide copies of the relevant decisions.
   • (g) With regard to the application of the provisions concerning obstruction of business, the Committee requests the Government:
   • (i) to continue making all efforts to adopt a general practice of investigation without detention of workers;
   • (ii) to provide information on the specific grounds for the criminal prosecution of 26 KALFCU officers and 198 Korea Railway Workers’ Union (KRWU) officers for obstruction of business in relation to strikes staged in the railroad and airlines sectors and to communicate any court judgements handed down in these cases;
   • (iii) to inform the Committee of the current status of Kim Jeong Min, Seoul provincial president of the KRWU, who was still in prison at the time of the complaint on obstruction of business charges; and
   • (iv) to continue to provide details, including any court judgements, on any new cases of workers arrested for obstruction of business under the terms of the present section 314 of the Penal Code.
   • (h) The Committee once again urges the Government to refrain from imposing compulsory or emergency arbitration in cases which fall outside essential services in the strict sense of the term and public servants exercising authority in the name of the State, and requests the Government to keep it informed of the status of the 2,680 KRWU members suspended by the Korean Railroad Corporation and undergoing disciplinary procedures as well as any KALFCU members transferred to standby, pursuant to the Government’s intervention in their industrial dispute, through compulsory or emergency arbitration.
   • (i) The Committee trusts that there are no further charges pending against the Korean Government Employees Union (KGEU) President Kim Young-Gil and General Secretary Ahn Byeong-Soon for actions aimed at acquiring recognition, de facto and de jure, of the basic rights of freedom of association of public servants and that there is no penalty remaining in relation to the previous convictions under the now repealed Public Officials Act.
   • (j) Noting with regret that the Government does not reply to the allegations concerning the imprisonment of the president of the Seoul Gyeonggi-Incheon Migrant Workers’ Trade Union (MTU), Anwar Hossain, the Committee requests the Government to provide information on the grounds for his imprisonment and his current status in its next report.
   • (k) The Committee expresses regret and deep concern at the prevalent climate of violence which emerges from the complainants’ allegations and the Government’s reply and calls on all sides to exercise maximum restraint so as to avoid escalating violence and to undertake genuine dialogue conducive to the establishment of a constructive and stable industrial relations climate.
   • (l) While noting that the KGEU has refused to register under the relevant Act because it considers it not to be in line with freedom of association principles, the Committee expresses deep regret at the gravity of the allegations involving serious acts of extensive interference in the activities of the KGEU and requests the Government to immediately cease all acts of interference, in particular the forced closure of KGEU offices nationwide, the unilateral discontinuance of the check-off facility, the disallowance of collective bargaining, the pressure on KGEU members to resign from the union as well as administrative and financial sanctions against local governments which fail to comply with the Government’s directive. It further calls upon the Government to abandon these directives and to take all possible measures with a view to achieving conciliation between the Government (in particular the Minister of Government and Home Affairs (MOGAHA)) and the KGEU so that the latter may continue to exist and ultimately to register within the framework of the legislation which should be in line with freedom of association principles. The Committee requests to be kept informed in this respect.
   • (m) The Committee expresses its deep regret at the death of Kim Tae Hwan, president of the FKTU Chungju regional chapter, who was run over by a cement truck on 14 June 2005 while on the picket line in front of the Sajo Remicon cement factory, and the treatment of his death as a simple car accident. It requests the Government to institute an independent investigation into the circumstances of Kim Tae Hwan’s death and in particular the role of the police and unidentified civilians in the incident, so as to shed full light, determine where responsibilities lie, punish any guilty parties and prevent the repetition of similar events.
   • (n) The Committee expresses its deep regret at the death of Ha Jeung Koon, member of the Pohang local union of the Korean Federation of Construction Industry Trade Union (KFCITU), during a demonstration organized by the union; it requests the Government to keep it informed of the outcome of the investigation under way, and trusts that such investigation will be concluded swiftly and will determine where responsibilities lie, allowing for the guilty parties to be punished and the repetition of similar events to be prevented.
   • (o) The Committee requests the Government to communicate the text of the court decisions convicting: six unionists from the Daejeon/Chungcheong Construction Workers’ Union to six to eight months’ imprisonment with a two-year suspension of execution; Park Young-Jae, president of the Cheonan/Asan Construction Workers’ Union, to one year imprisonment and Rho Seon-Kyun, vice-president of the same union, to a fine; three trade unionists from the Western Gyeonggi Construction Workers’ Union to eight months to one year in prison with a two-year suspension of execution and another six to a fine of 3 million won; and to keep the Committee informed of the outcome of the appeals in these cases. The Committee further invites the complainant, IFBWW, to transmit any further information it considers appropriate in response to the information provided by the Government.
   • (p) Noting the Government’s indication that the second instance court upheld the convictions of the officials at Daegu Construction Workers’ Union on charges under the Act on Punishment of Violence, the Committee requests the Government to provide a copy of the court judgement in question and to keep it informed of the outcome of any further appeals.
   • (q) The Committee requests the Government to undertake further efforts for the promotion of free and voluntary collective bargaining over terms and conditions of employment in the construction sector covering, in particular, the precarious “daily” workers. In particular, the Committee requests the Government to provide support to construction sector employers and trade unions with a view to building negotiating capacity and reminds the Government that it may avail itself of the technical assistance of the Office in this regard, if it so wishes. The Committee requests to be kept informed of developments in this respect.
   • (r) Considering that the presence of police forces in close proximity to the room where minimum wage negotiations take place is liable to invalidate the free and voluntary nature of negotiations, the Committee considers that any police presence in the vicinity of meeting rooms where negotiations are taking place must be strictly justified by the circumstances and requests the Government to provide details of the circumstances giving rise to the presence of the police force in this instance.
   • (s) The Committee reminds the Government of its commitment to ratify Conventions Nos 87 and 98 made to the ILO high-level tripartite mission which visited the country in 1998 and reported to the Governing Body in March 1998 (see document GB.271/9).

B. The complainants’ new allegations

• Allegations by the BWI
  589. 589 In a communication dated 5 July 2007, the BWI, former IFBWW, provides additional information with regard to its complaint concerning the arrests of officials and organizers of the KFCITU. The BWI indicates that not only has the Government failed to implement the Committee’s previous recommendations on this matter, but has continued to arrest union officials of Kyonggi, Chungnam and Daegu/Kyungbuk regional construction unions in the same manner that brought about the 2004 complaint. In total, 18 trade unionists from these three unions have been arrested, constituting a serious threat to the union activities of the KFCITU, while also obstructing the day-to-day union activities and severely curtailing its organizing efforts.
  590. 590 The BWI further indicates that, even though wages for full-time union officials and the conclusion of collective bargaining agreements with the main construction companies have been ruled as being legal in recent court rulings, and an appeals court ruled that charges of coercion against the Daegu/Kyungbuk union were unfounded (April 2007), the Government continues to distort the facts. Despite the recommendations of the Committee on this issue, the Government has not only failed to take the necessary steps but submitted a report in January 2007 (examined during the Committee’s last examination of this case) which further distorts the activities of the construction unions.
  591. 591 With regard to investigations and arrests of KFCITU officials, the BWI indicates the following:
• – Daegu/Kyungbuk regional construction union: (i) this union was created in 1998 and has been active since, having concluded collective agreements with main construction companies as well as subcontractors; (ii) in 2005, the police and the prosecutor’s office investigated the union for the same reasons that they had investigated other KFCITU local unions back in 2003, but closed the process after a secret investigation; (iii) however, after the union went on strike in June 2006, the police and prosecutor’s office issued subpoenas and arrested five trade union officials on charges related to the case that had been closed in 2005, leading the union to believe that the police action was a deliberate attempt to break the strike; (iv) the Daegu High Court decided that the former President of the union Cho Ki Hyun and three other union officials were not guilty of charges linked to the collective agreements signed with the main construction companies.
• – Kyonggi Regional Construction Union: (i) this union was formed in 2002 from the merger of ten local construction unions; it has in its record collective agreements with both the main and sub contracting construction companies since 1999 as well as various other successful activities described in detail by the complaint; (ii) when union officials from Chunahn, Daejeon and Kyonggi Subu were arrested in 2003, officials from the Kyonggi trade union were also investigated but not charged; (iii) however, in July 2006, subpoenas for 15 union officials from this union were issued, and 10 of them were eventually arrested, including the head and the former head of the Kyonggi union (the latter had in the meantime become vice-president of the Korean Confederation of Trade Unions); (iv) the investigation is being carried out by a department charged with investigating organized crime, which shows that the police and prosecution have chosen to see trade union activities in the same light as organized crime; (v) the first trial is currently underway, while the trade union officials have been released on bail; (vi) the trade union’s activities have been seriously curtailed due to the multiple arrests.
• – Choongnam Regional Construction Union: (i) this union is the successor of the former Chunahn/Asan union after the arrest of the later union’s officials Park Unthaw and Noh Sun-Kyun for activities related to the conclusion of a collective agreement; (ii) after the strike of the Daegu/Kyungbuk union, subpoenas were issued for Ha Dong Hyun and Lee Ok Sun, President and Organizing Director of the Choongnam union; they were immediately arrested when they appeared at the police station and denied visits with the exception of family members during the initial stages of their detention; former President Park Yong Jae, who had been released on bail after being arrested in 2004, was again indicted; (iii) the Prosecutor’s Office, in an unusual move, circulated a press release denouncing the union officials as having committed extortion and coercion, and added a libel case to the prosecution on the basis of a complaint filed by the union for violation of industrial safety and health standards; the complaint in question – the legitimacy of which ironically, had been recognized by the Ministry of Labour – was a result of the union raising the issue of high-risk practices at construction sites; (iv) more than ten months have passed since the arrests but the first trial is still in progress; (v) the delay has made normal trade union activities impossible.
  592. 592 The complainant also describes problems with the 2006 investigation by the police, which constitute a continuation of problems first revealed during the 2003 investigation and arrest of trade union officials. During that time, police officers from the public security or criminal division, with no experience regarding labour issues, were put in charge of the investigation and, based on the arbitrary premise that the trade union activities were illegal “extortion” and “coercion”, induced and fabricated statements from construction site managers. In particular, during the 2003 process; (i) several construction site managers who were witnesses for the prosecution stated that their statements taken during the investigation were different from those presented at the trial; the court acknowledged this and requested that the prosecution drop several of its witnesses; (ii) it was revealed that an organizer identified by the police as a suspect was not active as an organizer at the construction site during the time frame of the allegations; the statements were rewritten, and the court revoked the arrest warrant; (iii) several construction site managers indicated that although they had not been forced or coerced to sign collective bargaining agreements, they felt compelled to sign statements to this effect under pressure from the police which had come prepared with written statements; relevant records exist; (iv) it has been confirmed that several witnesses who had stated that they had been coerced by the construction union were not working at the construction sites during that time.
  593. 593 The complainant further indicates that, as a continuation of these practices, during the 2006 investigation, the following problems appeared:
• – Daegu Kyungbuk Union trial: (i) the site managers from the main construction company stated, contrary to the prosecutors’ charges, that they did not receive any threats from the union; (ii) during the arrests, it was falsely reported in the press that union officials had used their wages to go on a trip abroad; however, the Daegu/ Kyungbuk union officials had gone to the Philippines to participate in a rank and file organizers’ training exchange programme with the Philippines construction union organized by the IFBWW which shouldered the majority of the expenses with participants covering their personal expenses. Distorting this exchange programme as a sightseeing trip had the intention of undermining the reputation of the union.
• – Kyonggi Construction Union trial: (i) the prosecutors’ written evidence indicated that there were no directly affiliated trade union members in the region; however, this statement was reversed during the trial; (ii) the prosecutors’ statement denied that wages for union officials had been paid as a result of a collective agreement, but then accepted it during the trial; (iii) a prosecution witness had stated in a written statement that he had been forced into a collective agreement and wage payments, but then testified during the trial that there were several consultations at the construction site and that a collective agreement had been reached after the staging of collective action; (iii) a prosecution witness stated in a written statement that an organizer had physically beaten a construction site manager, but during the trial, it was revealed that there had been pushing and shoving over a dispute regarding length of contracts and that the site manager himself had been reprimanded by the company; (iv) a written statement submitted by the prosecutor stated that the union had not been active at the site level after the conclusion of a collective agreement, but during the trial it was revealed that the union had organized and proceeded with various activities including electing (by direct vote) industrial safety and health committee members, activities at the committee itself, and numerous union programmes with workers employed at subcontractors and the main company. The BWI adds that these incidents have been based on the premise that freedom of association and collective bargaining needs to be controlled through the criminal code and that collective bargaining should take place only with the direct employer, since the labour laws presuppose an enterprise-based system.
  594. 594 The BWI provides a detailed reply to the Government’s statements in its January 2007 communication reporting legal protection and support for construction workers.
  595. 595 In particular, the BWI states that while the Government had indicated that the core issue in the negotiations was priority employment for union members and that when negotiations with the collective bargaining partner (subcontractor) failed, the union had violently occupied the offices of the principal contractor, a third party to the negotiations, the facts are that the core issues of the negotiations were low wages, refusal to conclude a collective agreement, and reduction of working hours. In the case of the Pohang regional union, the main issue was the introduction of the five-day week, based on the amended labour standards bill, and the refusal of collective bargaining. In the case of the Daegu/Kyunbuk union, the points of contention were wages and reduction of working hours. For the Ulsan Plant union the main issues were basic rights such as the installation of bathrooms and cafeterias.
  596. 596 As for the “occupation” of offices of the principal contractor, a third party, the BWI indicates that the principal contractors had absolute authority regarding the contents of the collective agreements and had directly intervened in the collective bargaining process and in trade union affairs. POSCO for instance, had anticipated the sit-in months ahead by extending the construction period, introducing replacement workers, gathering information through the police, and lobbying local politicians, the press, and employer organizations. This was confirmed by internal documents that were disclosed during the strike and the responsible manager at POSCO was reprimanded. SK refused employment to the members of the Ulsan construction plant union in order to force the members to resign from the union. As for the Daegu/ Kyungbuk construction union, in the area of civil engineering and construction, the responsibility for employment insurance, retirement pay deductions, and industrial safety lies, by law, with the main construction company; as a result, regional unions have been concluding collective agreements with the main construction company and the courts have recognized the employer status of these companies.
  597. 597 As for the Government’s statement that the Pohang construction union sit-in demonstration was a planned action, not an accidental incident and that this was demonstrated by the fact that water and food had been stocked in advance, the BWI states that the sit-in demonstration at POSCO was initiated due to the illegal recruitment of replacement workers by the company and its ensuing refusal of an official apology. Water and food had been prepared because of the risk that the police might cut off access to water and food, which is exactly what happened a few days after the dispatch of the Government’s report to the Committee. The clashes with the police were the result of anxiety caused by the attempted break-up of the sit-in by the police.
  598. 598 With regard to the Government’s statement to the effect that the Daegu/Kyungbuk Regional union conducted sit-ins in roads leading up to offices/companies of the principal contractor third party and carried out violent acts during these sit-downs, the BWI indicates that after the Daegu/Kyungbuk regional union went on strike on 1 June 2006, the police arrested union officials and brought charges for the conclusion of collective agreements with the principal company. Demonstrations against the arrests were held in front of the police station. The demonstrations had been notified and were legal, but the police blocked access to the demonstration site and attempted to violently break it up. Clashes ensued.
  599. 599 With regard to the statement in the Government’s Report concerning the occupation of SK, the BWI indicates that SK attempted to render the union powerless by demanding that union members submit a letter of withdrawal from the union in order to receive an entry card. SK was not a third party as it directly intervened and attacked the union. Also, the core demands of the Ulsan construction plant union, the installation of bathrooms, restaurants and break rooms, are facilities that the main company or ordering company needs to install. Thus, SK was a relevant party to the actions and demands of the union.
  600. 600 With regard to the Government’s statements concerning Ha Joong-Keun (i.e. that he died during excessively violent demonstrations on 16 July 2006 which had been planned beforehand and were followed by attacks with steel pipes by masked men against the police as a result of which about 2,500 steel pipes were removed from the site; the prosecutors are currently investigating the cause of death), the BWI indicates that the demonstration was to demand that police allow the delivery of food and water to the workers conducting a sit-in at POSCO. The fact that the police were the first to attack has been confirmed by the National Human Rights Commission study, which recommended changes to police action. The masks, steel pipe attacks, and the removal of 2,500 steel pipes are a fabrication and the complainant demands that the Government submit supporting evidence. The investigation for the cause of Ha Joong-Keun’s death has been transferred to the Prosecutors’ Office, but the investigation had yet to start at the time of the communication.
  601. 601 With regard to the Government’s indications on efforts to support construction workers and the construction trade union, in particular, the adoption of a law and action plan for construction workers, measures such as industrial accident, health, and employment insurance, the BWI indicates that the bill for the improvement of working conditions for construction workers was a result of the struggles and demands of the construction union. The basic plan for the improvement of employment conditions for construction workers has shown little concrete results. Construction workers have low levels of basic insurance coverage. Building projects of less than US$22,000 are excluded from coverage. In the case of health insurance and pensions, those employed for less than one month are excluded, which means that the short-term contracts of most construction workers excludes them from coverage. As of April 2007, health insurance and pensions have been accessible to those construction workers that work over 20 days a month and a measure that reflects the costs of basic insurance in the total construction cost has been passed in the National Assembly, but has yet to go into effect. Employment insurance was only recently expanded (2004) to include those employed for less than a month, but building projects of less than US$22,000 were again exempted. The Ministry of Health and Welfare, the Ministry of Construction and Transportation, the Presidential Committee on Social Inclusion have all raised the issue of basic insurance for construction workers, but the government agency responsible for improving the problem is still neglecting the issue.
  602. 602 With regard to the Government’s statement on a five-year plan to prevent industrial accidents, the BWI indicates that data compiled since the 1980s indicate that about
  600. 600–800 workers at construction sites die from industrial accidents each year while workers have not been able to seek industrial accident compensation for job-related diseases or sicknesses. The results from a Ministry of Labour analysis show that industrial accidents at construction sites are mostly caused by lack of safety measures and facilities. The Ministry of Labour has also abolished in 2004 sections within the organization that dealt with industrial accidents at construction sites. Fewer construction sites have industrial safety inspectors, and deregulation regarding safety and health has been concentrated in the construction industry. In 2006, under employers’ pressure the Government attempted to abolish the Committee for Industrial Health and Safety, but revoked the bill when the union protested.
  603. 603 With regard to the Government’s statement that it has financially supported the construction unions’ job placement centres since 1998, the BWI indicates that the KFCITU has been operating a job placement centre since before 1998. When unemployment became a serious social problem during the financial crisis, the “National Commission to Overcome Unemployment” was set up with citizens’ donations, and the construction unions’ job placement work received funding from the Commission. Support for training programmes was initiated only in 2006.
  604. 604 With regard to the Government’s statement that it has not obstructed or repressed the organizing efforts of the construction unions, the BWI indicates that the conclusion of collective agreements by regional unions affiliated to the KFCITU were part of an organizing programme for construction workers that was supported by BWI. It does not make sense to state that the Ministry is not obstructing organizing work when it has characterized the organizing programme and collective agreements as extortion and coercion. During the strike by the construction and transportation union in 2001, police broke up the sit-in at a local park by using axes to smash the parked construction vehicles. In 2005, during the peaceful march by the Ulsan Construction Plant union, 700 were forcefully taken to the police station. In 2008 during the Pohang Construction union’s strike, it was revealed that the Prosecutors’ Office had participated in the POSCO company’s meeting to discuss countermeasures to the strike, siding with the company in what was a just act on the part of the workers.
  605. 605 With regard to the Government’s statement that the union’s data on working hours, social welfare, industrial safety, and precarious work is distorted (average hours of work per week is 42.8, increased pay for overtime work has been guaranteed, health and industrial accident insurance is applied), the BWI indicates that the data submitted by it were based on studies from government-funded institutes and the government statistics office. The construction workers do not receive increased overtime pay, and calls for the situation to be improved have not been addressed. According to the labour statistics report from the Ministry of Labour, construction workers’ wages are lower than the average wage, and the average wage for irregular workers in construction is half the average wage of regular workers (about US$1,200–1,500).
  606. 606 With regard to the Government’s statement that unpaid wages were paid through the wage guarantee bond system, the BWI indicates that the union provides counselling and registers cases of unpaid wages across the country. Unions have settled unpaid wages because the Ministry of Labour’s mechanism for dealing with workers’ unpaid wages is inadequate. The wage guarantee bond system has failed to resolve the issue of unpaid wages at the building operation level which makes for 75 per cent of all cases of unpaid wages in the sector, according to an inspection by the Board of Audit and Inspection. When a public complaint centre for construction workers was established by the Ministry of Construction and Transportation in January of 2005, about 300 petitions for unpaid wages were registered within two months. This reflects how ineffective the Ministry of Labour’s regional offices and the wage guarantee bond system have been. The BWI presents statistical data according to which almost 15 million in delayed wages were reported to the KFCITU as of September 2003. The number of construction workers who stated that they would seek help at the Government labour agencies for unpaid wages was only 11 per cent of the total.
  607. 607 With regard to the claims of extortion on the part of the regional construction union, the BWI indicates that the Government continues with its outdated practice of prosecuting trade union activities on the basis of the criminal code despite the recommendations of the Committee and continues to reiterate the contents of the indictment, without taking into account the construction unions’ concrete positions and assertions. In fact, elements in the indictment that were proven to be distorted during the trial continue to be cited without change in the report.
  608. 608 With regard to the Government’s statement that union officials who were not employed by any company demanded collective agreements that contained payments of wages, the BWI indicates that due to the short-term contracts of construction workers, the latter are organized into regional level industrial unions, and have been legally recognized by the Government in such form. There is no regulation in the labour law that requires one to be employed in a specific worksite in order to be a union official. In the manufacturing sectors, union officials have been guaranteed wages regardless of employment status, under the collective agreements (metalworkers). Court rulings have also found that payment of wages for union officials do not presuppose employment relations and can be decided through collective agreement, and that the question of who becomes a paid union official is up to the union to decide. Also, the collective agreements in question refer to a variety of issues like “safety education, employer–employee consultations, employment insurance, pension deduction schemes”, but the Government singles out the wage payments, intentionally omitting the other elements of the agreements and thereby distorting the efforts of the construction union.
  609. 609 With regard to the Government’s statement that the union did not respond to requests to provide the union member list and demanded payments under the collective agreement although it did not have any members on the site, threatening to file complaints if the company refused, the BWI indicates that presenting a list of members is not a precondition for the conclusion of a collective agreement. The refusal to disclose the members did not run counter to any legal provision and was due to the fear of layoffs and unfair labour practices which are common in the construction sector. Furthermore, most of the provisions of a collective agreement do not apply only to members but to the entire staff as they reflect basic labour rights guaranteed to all workers by law; low levels of compliance with basic rights in the construction industry, have led to collective agreements functioning as a vehicle for ensuring adherence with the law. The Government’s report distorts this reality and presents the construction union as a group of common thieves.
  610. 610 With regard to the Government’s statement that the objective of the construction union officials was to receive money from employers, and not to conclude collective agreements, the BWI indicates that many construction site managers testified during the investigation and trials that they “offered money to the union in exchange for not entering into a collective agreement, but met with fierce protests and refusals” (trial records). The Government needs to present clear evidence that the unions have acted with the objective of receiving money and not concluding a collective agreement.
  611. 611 With regard to the Government’s statement that union officials ceased to appear at construction sites after collective agreements were concluded and the money was sent, the BWI indicates that construction site managers have testified during the trials that after the conclusion of the collective agreement, activities such as “regular worker-employer consultations on problems at the work site, prevention of industrial accidents, monthly safety education” took place (trial records). It is a serious misrepresentation of the facts to state that unions disappeared after payments were received.
  612. 612 In the case of the Daejon regional construction union, its activities have been selected as a model of industrial accident prevention. The Kyonggi Subu union has, through direct vote by its members and collective bargaining, guaranteed two days off a month. The Kyonggi union has formed a total of 60 industrial safety and health committees from 2002 to 2006, and 300 workers have been elected as members to these committees which meet every one to three months to discuss and implement projects for industrial accident prevention. This union has also raised wages for its members, and has been active in improving their working conditions. Regional unions in general have been active at the construction sites, in areas ranging from installing bathrooms and checking safety measures, to managing employment insurance for members. All of the above has been reported numerous times in the press.
  613. 613 With regard to the Government’s statement on obstruction of business through sit-ins at building sites where payments were refused, the BWI indicates that this is a misrepresentation of trade union activities by equating refusal to make money payments to refusal to implement the provisions of a collective agreement. The sit-ins were due to a failure of the employers to implement the contents of a collective agreement which aimed to ensure adherence to labour laws.
  614. 614 With regard to the Government’s statement that those companies that refused payments would face false complaints regarding safety helmets for which the union has been punished on libel charges, the BWI indicates that in sites where a collective agreement was concluded there was a willingness to work together with the union to address safety and health issues, and therefore the union reacted to violations of the law by first requesting redress at the level of the company and then filing a complaint if the request was not met; however, when the company refuses to negotiate a collective agreement, this is tantamount to not recognizing the union; requests for changes go unanswered, and therefore the only option is to file a complaint. The Government’s report does not describe the problems on the ground (lack of basic protective equipment such a safety helmets and boots) and has given the impression that the unionists were filing complaints for their own irresponsible acts. Also, the Ministry of Labour, based on fabricated documents from employers, has recklessly issued no-fault decisions to companies that have faced complaints. This has resulted in an abnormally high number of industrial accidents due to the absence of basic safety measures: 3,000 workers die from industrial accidents a year in the Republic of Korea, while only ten employers have been arrested. The Ministry needs to present proof that the unions have filed false complaints, since the union has not been found guilty of libel charges. The Choongnam union still faces this charge but the trial is still in process. Even in this case the Ministry of Labour confirmed that the industrial safety law had been violated.
  615. 615 With regard to the Government’s statement that wages were received by union officials in their personal accounts and used for personal purposes, the BWI indicates that this constitutes an insult to the activists who have engaged in organizing and collective bargaining over the years, receiving only US$500–1,000 a month in order to improve working conditions at construction sites and measures will be taken to counter such insults. The issue of the use of wages has already been cleared by the domestic courts. Wiring wages for union officials to personal accounts was due to the fact that site managers would refuse to send the money to the union account. Regardless of the account, the wages were managed by the union. The Ministry of Labour needs to provide exact proof of the assertion that “about half of the wages were used for personal purposes, unrelated to union activities, and the other half was shared among union officials and used at their discretion, not for the union”.
  616. 616 With regard to the Daegu High Court’s decision of 15 April 2007 (Case No. 2006/595), the BWI provides the following summary. The Court found that Cho Ki Hyun, former President of the Daegu local construction union and three other union members were not guilty of extortion or blackmail and bribery. With regard to the issue of signing site agreements with the principal contractor rather than subcontractors, the court found that even though the daily construction workers in the Daegu metropolitan area were hired by sub contractors, and thus were not directly employed by the principal contractors overseeing the construction projects, nevertheless, the main contractors were still responsible for these daily workers in the area of safety and health, industrial accident insurance, workmen’s compensation, contribution to pensions, etc. Thus, the principal contractor was recognized as a bargaining partner in the site bargaining agreement process. As a result of this decision, the bargaining partner is not necessarily the counterpart in the employment contract but rather the one who is in reality responsible for the overall working conditions of the employee and thus, in a construction site, the principal contractor. A relationship of subordination is the criterion for deciding the status as a party to collective bargaining.
  617. 617 With regard to the issue of wages for full time union officials on the basis of a collective agreement, the court found that the payment of wages to union officials constitutes a point to be bargained between the trade union and the principal contractor. Even though the defendants were not employed by the principal contractor, as long as they are considered legally to be workers who have a right to join the trade union, it should be up to the union in question to decide whether they should be its officials. Thus, if a collective agreement provides that wages will be paid to union officials, the union has the right to decide who are the officials in question. Employment relations at the construction sites do not have a bearing on this issue.
  618. 618 With regard to whether there was an act of extortion, the Court found first, that from the point of view of the worker, who has a different set of interests from that of the employer, it is legitimate and natural to report on any illegal actions taken by principal contractors if these actions endanger the workers. In addition, it is within the scope of the union’s normal activities to claim a collective agreement and pressure the principal contractor to sign collective agreements. Secondly, even if the defendants had taken the position that they would file a complaint regarding the industrial safety of the sites during the collective bargaining process, pointing out and urging change to problems that are directly related to the working conditions of the members, and when refused, collecting evidence or filing a complaint, they exercised a natural and everyday activity of a trade union. Just because such trade union activities were carried out during the bargaining process, it does not constitute coercion or extortion. Therefore, if the Daegu/Kyungbuk regional construction union concluded a collective agreement and part of that agreement calls for wage payments or other forms of financial provision, extortion cannot be said to exist. In addition, payment to union officials was part of the bargaining process and the payments were agreed upon by the principal contractor and the union and thus, this cannot be viewed as a form of blackmail or extortion.
  619. 619 The BWI adds that on appeal, the Daegu/Kyungbuk regional construction union was absolved of the charges of signing a collective agreement with the main company – a third party – and payments for full-time union officials and was found not guilty of the criminal charges of extortion. However, trials are ongoing with regard to the Kyunggi Subu and Chunan regional construction unions. Although the Committee’s recommendations were submitted to the court, and the collective agreements and the wages for union officials were recognized as legal, the officials have been found guilty of the criminal charges of extortion. Also, several union officials from the Daegu/Kyungbuk union are in the midst of their second trial, and Kyunggi and Chungnam regional construction unions are going through their first trial.
  620. 620 An amendment to the labour law submitted by the KCTU and the Democratic Labour Party which would expand the responsibility for guaranteeing freedom of association and collective bargaining beyond the direct employer to employers that exert a parallel influence on workers and their rights has been submitted to the National Assembly. In order for the collective bargaining rights and freedom of association for construction workers to be recognized, the complainant requests that the ILO again recommend that the relevant laws and court decisions be reviewed, and that an ILO fact-finding mission take place on this issue.
• Allegations by the KCTU
  621. 621 In a communication dated 10 June 2008, the KCTU along with the Korean Federation of Public Services & Transportation Workers’ Union (KPSU), and the Korea Health & Medical Workers’ Union (KFHU) state that the labour law amendments of 2006 have had serious negative repercussions for the public sector workers in the Republic of Korea. Despite promises that domestic legislation would be reformed to conform with international labour standards, trade union pluralism remains outlawed in the Republic of Korea, and compulsory arbitration has been replaced by three-tier regulations which continue to restrict basic labour rights.
  622. 622 The Government has presented the recently introduced “essentially maintained services” system as an institution that, based on agreement between employers and workers, balances the right to strike with the public interest, but the actual contents of the system has taken industrial relations in the Republic of Korea further away from the international labour standards promoted by the ILO. Starting with the Seoul Metropolitan Rapid Transit Corporation in January 2008, then followed by the Busan Transportation Corporation, the five power plants, Seoul Metro, Donga University Hospital, and Korea Gas Corporation, employers at all these companies have refused to respond to calls from trade unions for negotiations and have applied for decision as an essentially maintained service at the Labour Commission. Even in the health-care and medical sector, where industrial bargaining was beginning to take root, the essentially maintained service institution gave the employers an excuse to evade collective bargaining.
  623. 623 Thus, current restrictions on public sector workers’ basic labour rights, such as the essentially maintained services policy, rests on an arbitrary and distorted interpretation of the ILO’s international labour standards and collective action for public sector workers has been completely blocked.
  624. 624 The KCTU indicates that on 30 December 2006, an amendment was adopted to the Trade Union and Labour Relations Adjustment Act (TULRAA). Major revisions were made regarding limitations on collective action in “public services”. The abolition of compulsory arbitration, which had been recommended by the ILO, has been offset by measures expanding the scope of public services, introducing minimum service, and allowing for replacement workers. Moreover, emergency arbitration remains in place. Through these mechanisms and institutions, collective action has been rendered pointless.
  625. 625 Five new clauses have been added to section 42 of the amended law, in order to stipulate what constitutes minimum services in public services. The revised bill has added airline transportation and blood supply services to the list of public services, and has instituted a new obligation to provide a minimum service in operations deemed to endanger the life, personal safety or health of the whole or part of the population when interrupted below a certain level of operation and maintenance. The concrete scope of minimum services is laid out in the enforcement decree.
  626. 626 According to the enforcement decree, workers and employers should conclude an agreement on the scope of operations and staff levels needed to maintain minimum services during the dispute. However, if an agreement cannot be reached, one or both parties will apply for mediation to the Labour Relations Commission (Special Mediation Committee), which will in turn decide on the minimum scope and level of service maintenance. If an agreement can be reached between labour and management, or after the Labour Relations Commission decides on the level of minimum services, then trade unions have the obligation to inform the employers of the members that will remain on the job, after which employers will give notice to the workers and the union. In the case of the union failing to meet this obligation, the employers will designate the workers and inform them as well as the unions.
  627. 627 The revised TULRAA has also allowed for replacement or newly hired workers at public services (including contracting out such services), but limits such replacement labour to 50 per cent of trade union membership, or the number of workers participating in the strike.
  628. 628 According to the KCTU, the amended TULRAA introduces successive limitations to the right to strike which can render collective action meaningless. There is no need for both a preventive control mechanism, such as minimum services, and a post facto control institution like emergency arbitration. Allowing for both does not strike a balance between the public interest and basic rights but rather results in multiple restrictions on the right to strike. Furthermore, allowing replacement workers numbering up to 50 per cent of strike participants at any time during the dispute, regardless of whether minimum services are being provided or not, also runs directly against ILO standards according to which replacement labour should be used only in essential services where strikes are not allowed and in case of emergencies.
  629. 629 Furthermore, the Government has added airline transportation and blood supply services to the scope of public services and narrowed bank operations to solely the operations of the Bank of Korea. However, such measures run counter to the numerous ILO recommendations on this issue.
  630. 630 The amendment defines minimum services as “operations at public services whose stoppage or discontinuance would endanger the life, safety, health or everyday lives of the public”, to be decided by “presidential decree”. The criterion for deciding what is a minimum service takes into account the public’s life, safety and health, but also the very broad “everyday life” of the public. This means that minimum services could include anything that causes discomfort or disadvantage to the public’s everyday life, resulting in an expansion of the services which fall under this category.
  631. 631 This institution clearly runs counter to the ILO’s basic aim of differentiating between “essential services” and “minimum services”. In terms of concepts, the ILO’s essential services can be said to be a concept similar to the Government’s essential public services, in the sense that strikes can be restricted or prohibited for the public good if they fall under the scope of the concept. On the other hand, minimum services mean services which need to be guaranteed during strikes, without infringing upon the workers’ right to strike, a concept which overlaps with the public services in the amended TULRAA. However, public services as stipulated by the Korean Government include and expand upon the list of essential public services, and at the same time provide for a minimum service over these essential public services, resulting in a double regulation on the same services. This is contrary to freedom of association principles differentiating between essential and minimum services: the former is to allow restrictions on the right to strike with a strict application, while the latter is to protect labour rights by guaranteeing a minimum level of operation.
  632. 632 Furthermore, the amendment’s definition of minimum services is so broad that it risks rendering strikes ineffective and leading to a denial of the right to collective action.
  633. 633 In addition, the views of the trade unions were not reflected when deciding on the scope of minimum services. The amended law stipulates that the specific services that need to be maintained will be decided through the enforcement decree. The decree states that the operations to be kept running during strikes should be decided through agreement between labour and management, which can be considered to be partially drawing on the ILO’s concept of negotiated minimum services. However, according to the ILO’s explanation on minimum services, the definition, scope, and period needs to be decided with the guaranteed participation of the trade union. The Government has nevertheless effectively negated the union’s participation in the process of deciding on the level and scope of essentially maintained services.
  634. 634 Stipulating in advance by decree the essential services that need to be maintained renders agreement between workers and employers nearly impossible, which in turn means that it will be up to the Government organs to reach a decision. This will mean a return to compulsory arbitration.
  635. 635 Another serious problem is that because agreement between workers and employers regarding the level of minimum services at the workplace is practically impossible, all parties must rely on the Labour Relations Commission’s decision which has the authority to decide on the level of minimum services. However, there is no provision clarifying whether this decision has a status equal to a collective agreement. Therefore trade unions may have no means to prevent employers from evading an agreement. Already, employers have been applying for a decision at the Labour Relations Commission without sufficient consultation with the union, and that is why the current system can be said to have the same effect as compulsory arbitration.
  636. 636 Furthermore, stipulating criminal responsibility and civil liability for individual union members threatens to nullify the right to collective action. During the period when compulsory arbitration existed, if a decision was violated the responsibility lied with the trade union. However, under the current system of minimum services, the employer designates the individual workers on the basis of the collective agreement or Labour Relations Commission ruling; in case of violation of minimum services, the individual worker bears the responsibility. This added pressure on union members can render strikes meaningless.
  637. 637 In addition, there is a problem with the extent to which replacement work is possible. The amended TULRAA allows for replacement work in all public services irrespective of whether they involve minimum services or not. Such policy runs counter to the original objective of introducing minimum services, and renders the attempted balance between the public interest and the right to strike meaningless. It also runs against the ILO’s position on the issue. The ILO has deemed replacement labour as legitimate when there is a strike at enterprises providing essential services or in case of an acute crisis. It views replacement workers at legal strikes in non-essential services as infringing upon freedom of association principles. The new amendment, allowing replacement workers in all public services (regardless of whether they have to comply with minimum service requirements), fails to meet ILO standards.
  638. 638 Thus, the new law has preserved the strike-banning effect that compulsory arbitration had by allowing replacement workers in all essential services, and defining minimum services broadly, so that such services cannot be stopped and a minimum level of operation goes on uninterrupted. The Labour Relations Commission has decided that 50 per cent of normal operation is the minimum essential service for which replacement labour can be introduced, and 100 per cent of normal operation when such workers cannot be introduced (Busan Labour Relations Commission, 14 May). If such decisions continue, then employers will be able to maintain their level of service provision even in the case of strikes.
  639. 639 The KCTU expresses concern that this policy will lead to unnecessary clashes between management attempting to send in replacement workers and trade unions trying to block their entry. In particular, the non-stoppage of replacement workers’ work could make personnel management difficult after the end of the strike, especially because it will lead to tensions between the two groups of workers. This will constitute a source of instability in industrial relations.
  640. 640 The Government has argued that replacement work needs to be allowed citing examples from other countries. However, the fact that other countries do not explicitly prohibit the use of replacement labour in their laws does not mean that the use of replacement workers is the norm. In most western countries, where industrial unions have considerable control over the labour force, it is the general rule that even during strikes replacement workers are not hired.
  641. 641 In 2008, starting with small and medium sized enterprises, where the bargaining power of the unions tends to be weaker, agreements regarding minimum services have been concluded. Without exception, these agreements have stipulated a very high level of operation maintenance – over 80 per cent – during disputes. The Government had originally stated that “because this is a newly revised law, it will be complemented as it is implemented”. However, it has shifted from its position and has responded to the KCTU’s calls for dialogue with little substance.
  642. 642 The same holds for employers who avoid dialogue with the KCTU. A particularly salient case concerns the Seoul Metro, Korea Railways, Korea Power Plants, and others, all of whom evaded negotiations over minimum services and went on to apply for a decision to the Seoul Labour Relations Commission two days after the Korean Federation of Public Services and Transportation Workers’ Union officially requested the conclusion of an agreement on the matter. Moreover, the Korean Health and Medical Workers’ Union had demanded discussions on the issue of replacement workers at the industrial level, but the employers characterized the agreement on minimum services as a non-negotiable issue. This has resulted in destabilizing collective bargaining in the sector.
  643. 643 Finally, the KCTU indicates that, on 31 January 2008, the Seoul Labour Relations Commission issued a decision regarding minimum services according to which : (i) in case of strikes on Saturdays and weekdays, subways must operate at a minimum of 79.8 per cent compared to normal periods; (ii) 100 per cent must be maintained during rush hour, and (iii) on Sundays subways must run at 50 per cent of the level during normal periods. Also, duties and jobs that must be maintained are designated: operation of train related duties (driver/trainmen), traffic control duties (electricity, signs, communication, equipment, facilities), inspectors, and railway repair. This includes almost all jobs except cleaning and ticketing.
  644. 644 Another example of how workplaces can keep running at normal levels even in the case of strikes through essentially maintained services and replacement workers is the case of the Busan Labour Relations Commission decision concerning Donga Hospital (14 May 2008). Citing section 42 of the amended TULRAA, the commission decided that the minimum service is 50 per cent of normal operation levels. It thereby decided that of the 12 duties at the hospital, six (childbirth, surgery, dialysis, anaesthesia, diagnosis and treatment) will have to maintain 50 per cent operation levels, and the other six 100 per cent.
  645. 645 According to the KCTU, if a trade union is to go on strike under the revised law, it will have to proceed without the participation of a substantial number of members due to the minimum services policy. The trade union will have to decide whether to continue with an ineffective strike or raise the stakes by calling on the workers providing minimum services to join the strike. In other words, the amended TULRAA forces upon trade unions a decision between giving up basic labour rights or proceeding with an illegal strike.
  646. 646 Despite consistent recommendations by the ILO, labour repression has not decreased, and new measures that seriously violate basic labour rights have been introduced under new names and provisions. The recent institutional and legal changes regarding essential public services run counter to the ILO’s recommendations for a reduction of essential public services and stressed the need for symmetry between the public good and the protection of the right to collective action. Also, close attention needs to be paid to the recent tendency, on the part of the Labour Relations Commission and relevant administrative organs to reach decisions that in effect deny workers in these services the right to strike. The KCTU recognizes that in light of the recent changes that have further limited the exercise of basic labour rights for public sector workers, the Korean case will be a key test for the effectiveness and relevance of international labour standards regarding the protection of basic labour rights.

C. The Government’s reply

1. 647. In a communication dated 28 May 2008, the Government indicates that, thanks to continuous dialogue and efforts, the Republic of Korea has made much progress in its industrial relations laws and systems, despite its relatively short experience in this area. Although improvements remain to be made, the claims by some labour groups that the Korean Government suppresses the labour movement and unfairly restricts basic labour rights is not true. Nor is this possible in a modern democratic society leading the era of informatization.
   • Act on the Establishment, Operation, etc., of Public
   • Officials’ Trade Unions and Enforcement Decree
   • Right to organize
2. 648. All public officials subject to the Public Officials Act in the Republic of Korea are those who exercise authority in the name of the State, whose status is unique and whose job is of a public nature. Therefore, it is inevitable to limit public officials’ right to organize to a certain extent. In particular, public officials at grade V or above usually hold a managerial position and either directly participate in deciding major government policies or perform the duty of directing or commanding their subordinates. In addition, the public officials system in the Republic of Korea is based on a grade scheme under which general public servants are divided into ranks ranging from grade I to grade IX, with public officials at grade V or above accounting for only 4 per cent of a total of 940,000 public officials. Given these characteristics, they are not eligible to join a trade union. The Labour Relations (Public Service) Convention, 1978 (No. 151), states that the right to organize of “high-level employees whose functions are normally considered as policy-making or managerial, or employees whose duties are of a highly confidential nature” may be restricted by national laws or regulations. In other countries, too, public officials, who are management officials or supervisors, are usually excluded from those for whom the right to organize should be guaranteed.
3. 649. Moreover, among public officials at grade VI or below, those who perform the function of administrative authorities in relation to trade unions, such as those who exercise the authority to direct or supervise other public officials and those who are involved in work relating to personnel and remunerations, are excluded from public officials eligible to join a trade union. If they were allowed to join a trade union, they could hold sway over, or interfere in, the operations of the trade union, and thus undermine the union’s independence. Restricting their right to organize is intended to embody the principle of labour–management autonomy by striking a balance of power between labour and management, which confront each other during collective bargaining.
4. 650. In the case of firefighters and correctional officers, maintaining the command and control system of their organization is especially necessary because their duties are directly related to the people’s lives and safety. Labour inspectors are also inevitably prohibited from joining a trade union given the unique nature of their job, which requires neutrality and impartiality because they perform duties affecting the interests of labour and management.
   • Right to strike
5. 651. All public officials in the Republic of Korea are those who exercise authority in the name of the State. Their right to collective action is inevitably restricted by law given their unique status, the public nature of their job, the need to ensure the continuity of their functions and the fact that their working conditions are set by law. As a safeguard against this restriction, “the Labour Relations Adjustment Committee for Public Officials”, a neutral body, has been set up and is operating to mediate labour–management disputes for public officials. Even in ILO Conventions, there is no provision stipulating that the right to collective action, including the right to strike, shall be guaranteed to public officials. The Committee on Freedom of Association affirms that the right to collective action may be restricted for public officials who exercise authority in the name of the State and public officials engaged in essential services. It should also be noted that in many other ILO member countries, including Japan and Germany, public officials’ right to collective action is not guaranteed given the situation of their industrial relations.
   • Treatment of full-time union officials
6. 652. The responsibility to pay wages to full-time union officials engaged in union activities rests with the trade union concerned. This is not only consistent with the notion of the operational and financial independence of trade unions but is also an international norm. And given the distinctive nature of public officials’ wages which are paid from the national coffer, it is necessary to set basic principles concerning the recognition and treatment of full-time union officials.
7. 653. Accordingly, the current law in the Republic of Korea provides for procedures for recognizing public officials as full-time union officials with the consent of the appointing authority. Once recognized as such, they are ordered to withdraw temporarily from office and paid wages in accordance with the remuneration principles applicable during such a period. Standards for the protection of full-time union officials have been put in place to ensure that public officials shall not suffer any disadvantage in terms of promotion, length of service, etc., due to their trade union activities.
   • Principles in the framework of the
   • application of the Act
8. 654. the Republic of Korea’s current law gives public officials the right to freely establish a trade union and allows them to conclude collective agreements on working conditions through collective bargaining with the Government’s bargaining representative. However, unlike private-sector workers, public officials’ job security is guaranteed by the Constitution and laws, and most of their working conditions are set in the Constitution and laws, and limited by budgets. Therefore, there are some limitations on deciding their working conditions through collective bargaining. Furthermore, since the National Assembly, the body representing the people, is granted legislative and budgetary powers under the Constitution, even collective agreements concluded between the public officials’ union and its counterpart cannot be seen as prevailing over the laws and regulations or budgets passed by the National Assembly. Yet the Act on the Establishment and Operation of Public Officials’ Trade Unions not only recognizes public officials’ right to conclude collective agreements but also imposes the obligation of the government’s bargaining representative to make efforts to implement collective agreements in good faith. Meanwhile, matters concerning policy decisions or personnel appointments are excluded from those subject to collective bargaining. Such a restriction is inevitable because they constitute the government’s managerial prerogatives, and similar examples can be found in many other countries.
9. 655. Considering the ILO’s recommendations, the Government has engaged in good faith bargaining with public officials’ trade unions over their working conditions, and had various opinions from the unions reflected in the process. As of April 2008, collective bargaining was conducted in a total of 118 workplaces, including the central administration and local governments. Among them, in 69 workplaces collective agreements were concluded between the Government and its counterpart union. Especially on working conditions affecting all public officials, such as remuneration, pensionable age, etc., central-level bargaining was concluded on 14 December 2007 through dialogue and compromise between ten unions of public officials, including the Korea Federation of Government Employees (KFGE), and the Government’s bargaining representative, the Ministry of Public Administration and Security. Since then, the Government has implemented what was agreed upon in good faith.
   • Other legislative aspects
   • Trade union pluralism at the enterprise level and payment of wages by employers to full-time union officials
10. 656. The current Trade Union and Labour Relations Adjustment Act (TULRAA) stipulates that workers are free to establish or join a trade union, thereby allowing union pluralism. It also states that workers can engage in union activities without performing their job, as full-time union officials, with the consent of their employer or under a collective agreement, but that in principle, they are prohibited from getting wages from their employer while serving as full-time union officials. However, the entering into force of these provisions has been postponed until 30 December 2009.
11. 657. The postponement is due to the unique characteristics of the industrial relations in the Republic of Korea. Most of the trade unions in the Republic of Korea have been organized at the enterprise level, so union pluralism, if fully implemented, could bring chaos to industrial sites and lead to labour–management conflicts, because of a lack of measures to establish a single bargaining channel and wide differences in opinions between labour and management.
12. 658. Under the full-time union official system, which is an industrial relations practice unique to the Republic of Korea, the wages of full-time union officials are often borne by their employer because of trade unions’ weak finances in the Republic of Korea where enterprise-level unions are dominant and trade unions have a relatively brief history. However, workers engaging full time in union activities are, in effect, considered to be in a state of temporary suspension from duty, so in principle, there is no reason for their employer to pay wages to them. If an employer paid wages to full-time union officials, this would result in the employer bearing the union’s labour costs, and the trade union’s independence would be impaired (article 2, subparagraph 4, of the TULRAA). Wage payment to full-time union officials by employers is considered as an act of domination or interference in the operation of a trade union and thus constitutes an unfair labour practice. (article 81(4) of the TULRAA). In addition to this, it is not ethically justified for a trade union, which is put on an equal footing with an employer, but operates in opposition to him, to have its full-time union officials involved in full time union activities without performing their original jobs, receiving wages from the employer. In other countries, including advanced ones, the payment of entire wages to full-time union officials by their employers is considered an infringement upon the independence of unions. In the United States, wage payment to full-time union officials is banned by law, and it is hard to find a trade union which demands the employer to pay wages to its full-time union officials during collective bargaining, as happens in the Republic of Korea.
13. 659. In the Republic of Korea, there has been controversy over the absurdity of wage payment by employers to full-time union officials. However, rather than making voluntary efforts to achieve financial independence, trade unions have strongly opposed the ban on wage payment by employers to full-time union officials because of weak finances. So in order to rectify the long-standing wrong practice, the ban on wage payment to full-time union officials was inevitably introduced in the law in 1997, through an agreement among the social partners after long discussions. This provision is not intended to suppress union activities nor make things difficult for unions but rather to encourage unions to achieve financial independence and pursue sound labour movements in the long run. In addition, as at present there is no regulation on the collection of membership fees by union members, there are many ways for trade unions to come up with measures to operate independently. Moreover, the enforcement of the provision has been put on hold for more than ten years since its introduction to give trade unions enough preparation time.
14. 660. On the other hand, business circles have argued that allowing union pluralism without solving the chronic problem of wage payment to full-time union officials would put huge burdens on business operation. As a result, the two issues, that is, the introduction of union pluralism and the ban on wage payment to full-time union officials, became tied to each other. Labour and management, which had refused to make concessions to each other, finally agreed to put off their implementation until 2006 (amendment in 2001). And again in 2006, they agreed to have another three-year grace period before the implementation, postponing the effective date to 31 December 2009.
15. 661. The Korean Government will actively push for legislation concerning measures to establish a single bargaining channel so as not to postpone the enforcement date of the related provisions any further. The Tripartite Commission organized a group of experts from labour, management, the government and public interest groups in order to share the results of discussions and research conducted so far (October 2007–March 2008). Utmost efforts will continue to be made to find rational solutions through intensive tripartite discussions.
    • Emergency arbitration
16. 662. Under the TULRAA, if industrial action is related to public services, or is huge in scale and of a special nature so that it could considerably damage the national economy or endanger people’s everyday lives, the Minister of Labour may decide to settle the case through emergency arbitration. Neutrality, in such a decision, is secured by requiring the Minister of Labour to hear opinions from the chairperson of the National Labour Relations Commission, a neutral and independent body, before making that decision.
17. 663. According to the ILO, it is possible to refer a labour dispute to compulsory arbitration in the case of essential services whose stoppage could threaten the life, personal safety or health of the whole or part of the population. But disputes subject to emergency arbitration are not limited to essential services. Even in the case of general services, if industrial action spreads so widely and lasts so long that similar emergency situations could occur as a consequence, the dispute may be referred to emergency arbitration. In the same context, it should be recalled that the CFA stated, “What is meant by essential services in the strict sense of the term depends to a large extent on the particular circumstances prevailing in a country. Moreover, this concept is not absolute, in the sense that a non-essential service may become essential if a strike lasts beyond a certain time or extends beyond a certain scope, thus endangering the life, personal safety or health of the whole or part of the population” [Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 582]. Emergency arbitration is invoked very rarely, as an exception rather than the rule in the Republic of Korea, and was applied only in 1969, 1993 and 2005. The Korean Government will apply emergency arbitration carefully, so as to respect the principles of freedom of association and after weighing the risks to the people’s safety. The Government has no plan to revise the current system, nor is there a great need to do so.
    • Trade union membership, standing for trade union office, etc.
18. 664. Despite government efforts to allow the unemployed to become members of a union above the enterprise level, the tripartite representatives agreed on 10 August 2006 to leave the current law intact. Moreover, in recent years, in addition to enterprise-level unions, trade unions have been organized at higher levels, such as industry, sector or regional levels, and there are some higher level unions where unemployed or dismissed people have joined and engaged in union activities. Given all these elements, at present, the Government has no specific plan to make institutional improvements in the near future.
    • “Obstruction of business”
19. 665. The Constitution of the Republic of Korea guarantees the right to association, the right to collective bargaining and the right to collective action to improve workers’ working conditions (article 33, paragraph (1)) and stipulates the freedom to operate a business as a fundamental constitutional right (article 15). These two provisions should be interpreted in a balanced way so that both fundamental rights can be mutually respected when it comes to industrial relations. In case these two fundamental rights are not consistent with each other, they may be restricted by law when it is necessary on grounds of national security, order or public welfare (article 37(2) of the Constitution). Just like an employer who violates workers’ freedom of association can be subject to criminal punishment under the TULRAA, if a workers’ organization infringes upon an employer’s freedom to operate a business, it can be subject to criminal punishment pursuant to article 314 (obstruction of business charge) of the Criminal Act. In this light, the Government would like to remind the CFA of Article 8, paragraph 1, of ILO Convention No. 87 stating that “In exercising the rights provided for in this Convention, workers and employers and their respective organizations, like other persons or organized collectivities, shall respect the law of the land”. According to article 314 of the Criminal Act, “an act of interfering with another person’s business by a threat of force” is subject to punishment. Workers’ collective refusal to perform their jobs can be seen as constituting a threat of force which is an element of obstruction-of-business charges, but workers’ legitimate collective action aimed at improving their working conditions is protected by the TULRAA and therefore not punished on charges of obstruction of business. However, illegal collective acts outside of the legal confines, exclusively consisting of acts seriously violating an employer’s freedom to operate a business, are carefully assessed and become subject to obstruction of business charges. In other words, the provision is intended not to regulate industrial action itself, but to punish illegal action in case it causes damage by interfering with an employer’s business and economic activities. Thus the Korean Government would like to make it clear that the provision is applied in such a way as to neither restrict nor breach the essence of workers’ freedom of association.
20. 666. In other countries, if union members obstruct non-union workers or replacement workers in performing their job or force other members to participate in industrial action, they are punished on charges of coercion. Regrettably, many strikes in the Republic of Korea still involve illegal and violent means, such as blocking access to the workplace by occupying it by force, destroying facilities, physically abusing policemen and managers, physically obstructing other workers and employer in performing their work. In reality, many of the arrests were made for committing violence with weapon-like tools, hindering other union members from returning to work, or occupying workplace facilities for a long time. The Korean Government would like to emphasize that under the laws of other countries, these acts would be criminally punished.
21. 667. Regarding the criminal punishment of Korean Air’s union workers, on 12 May 2005, Shin Man-soo and another 27 workers were cleared of charges (due to insufficient evidence) at the Southern Seoul District Prosecutor’s Office. Meanwhile, Kim Jeong-min, the head of the Seoul Regional Chapter of the Korea Railroad Workers’ Union indicted for charges of obstruction of business on 26 July 2006, was sentenced to ten months in prison with two years of probation in the first instance court on 26 September 2006 and to one year in prison with two years of probation in the second instance court on 20 September 2007. The Government submits the text of this court decision.
22. 668. With regard to the new cases of workers arrested for obstruction of business, Chung Gap-deuk and two other workers were prosecuted for obstruction of business on 10 December 2007 and sentenced to two years in prison with three years of probation on 8 January 2008. The Government submits the text of the related court decision.
23. 669. As for the strike by the Korea Railroad Workers’ Union on 1 March 2006, of the
24. 2,823 workers relieved of duties, 2,754 filed a request seeking remedy with the Regional Labour Relations Commission. The Commission ruled in favour of 1,498 but against 1,256. A total of 2,730 filed an appeal with the National Labour Relations Commission. Out of them, 2,540 won their case but 189 appeals were turned down because of the deadline. This case was concluded as the workers who had won the case were all reinstated.
25. 670. Regarding disciplinary action against members of the Korean Air pilots’ union in 2005, disciplinary measures, such as suspension, were taken against 26 union members according to the company’s regulations. The case was closed as no suit was brought against the disciplinary measures. However, Choi Seong-jin, the only dismissed union member, filed a suit seeking to invalidate the dismissal decision which is now before the second instance court.
    • Minimum service requirements
26. 671. The revised TULRAA stipulates that services whose stoppage or closure could acutely endanger the life, health, physical safety and daily lives of the public are minimum services. Based on this provision, the specific work that should be carried out in minimum services is prescribed in the Presidential Decree. As for minimum services defined by law, individual workplaces are required to sign an agreement on minimum services to determine the minimum level of services to be maintained or provided, the specific work to be carried out, the necessary number of workers, etc. If labour and management fail to reach an agreement on minimum services, the Labour Relations Commission can decide the matter at the request of either or both of the parties. Based on the agreement or decision, the trade union should notify the employer of the members who will carry out the specific work required for minimum services during industrial action, and the employer should assign the workers to maintain or provide minimum services. Since this provision entered into force on 1 January 2008 and up to 24 April 2008, a total of 23 workplaces signed an agreement on minimum services. Several examples are provided below.
    • - Seoul Metropolitan Rapid Transit Corporation: Decision by the Seoul Regional Labour Relations Commission: It was decided that during a strike, at least 79.8 per cent of the level of transportation services provided before the strike should be maintained from Monday to Saturday (100 per cent during commuting hours) and at least 50 per cent on Sunday. Of the total 6,845 workers, at least 1,801 (28.18 per cent) are needed to maintain the minimum level of services on weekdays and 1,714
27. (25. 04 per cent) on weekends.
    • - Northern Jeolla City Gas Co. Ltd: Labour and management signed an agreement to maintain 100 per cent of the workforce involved in controlling pressure regulators, operating the control centre, and managing safety (checking pipes, managing and attending excavation work). At least eight (7.33 per cent) out of the total 109 workers are needed to maintain minimum services during a strike.
    • - Korea National Oil Corporation: Labour and management signed an agreement to maintain 100 per cent of the workforce involved in operating the offshore platform, 63.1 per cent of the workforce involved in controlling the on-land gas fields, 22.7 per cent of the workforce involved in operating the control centre and 68.9 per cent of the workforce engaged in operating field facilities. At least 119 (9.86 per cent) out of the total 1,206 workers are needed to maintain minimum services.
    • - Hospitals, including Hando General Hospital: Hospitals usually determined the proportion of workers needed to maintain minimum services given the specific work prescribed in the Enforcement Decree of the TULRAA and the characteristics of each hospital. They signed an agreement to maintain an average of 29.96 per cent of the total workforce in each hospital during a strike.
      • Relevant court decisions
    • 672. Kwon Young-gil was prosecuted for violating the TULRAA on 15 December 1995. He was sentenced to ten months’ imprisonment with two years of probation in the first instance court on 31 January 2001 and to a 15 million won fine in the second instance court on 11 January 2006. His appeal filed with the Supreme Court is now pending before the Court. Having steadily engaged in political activities, he was elected to the National Assembly in April 2008.
28. 673. Kim Sang-geol, Oh Myeong-nam, etc, were dismissed by due process for violating the Public Officials Act. Against the disciplinary measure, they filed an appeal seeking a remedy, but the court dismissed the appeal. They filed a case requesting the withdrawal of the dismissal, but the court judged the disciplinary action legitimate. The Korean Government, which guarantees public officials’ basic labour rights by law, handled the case according to the current law and had it judicially decided. Therefore, there is no possibility of considering once again the reinstatement of these persons. The text of the court decision will be submitted later.
    • Migrant workers
    • (The Government provides information
    • relating to Case No. 2620 and which
    • has been taken up therein)
    • KGEU
29. 674. Given their status, which is so unique that they are banned from illegal collective action, and the nature of their job of providing public services, it is very important for public officials to engage in legitimate and rational union activities. However, although the KGEU could conduct union activities legitimately if it wanted to, because the Act on the Establishment and Operation of Public Officials’ Trade Unions entered into force on 28 January 2006, it refused to register itself and engaged in illegal, violent and political activities far from the duties of public officials.
30. 675. In response, the Korean Government tried to prevent illegal activities while at the same time strictly dealing with those who violate the laws according to due process, thus encouraging legitimate and rational union activities among public officials. Its legal and policy responses have been focused on protecting the right to organize for a majority of public officials.
31. 676. As a result of these efforts, by April 2008, 199.613 or 68 per cent of public officials eligible to join a trade union joined a trade union of their own choosing and have engaged in union activities. In the Republic of Korea, there are now a total of 99 public officials’ trade unions, including the Korean Federation of Government Employees (KFGE, registered on 4 September 2006 with a membership of 58,184), the Korea Democracy Government Employees Union (KDGEU, registered on 10 July 2007 with a membership of 50,542) and the Korean Government Employees’ Union (KGEU, registered on 17 October 2007 with a membership of 42,490) carrying out union activities within the boundaries of the law. In particular, since its registration on 17 October 2007, the KGEU has delegated bargaining authority to its local chapters which have conducted collective bargaining with over 70 local governments. With no intervention or restriction by the Government, they are actively engaging in union activities and some of them have already concluded collective agreements.
    • Death of Kim Tae-Hwan
32. 677. The death of Kim Tae-Hwan was an unexpected tragic accident that happened while dozens of Federation of Korean Trade Unions (FKTU) members were demonstrating in Chungju on 14 June 2005, demanding an increase in transportation fees. The Government feels very regretful for the accident and has done its best to settle the case fairly and smoothly. During the demonstration, Choi Byeong-yoon, a truck driver, was driving his vehicle toward the main gate of the Sajo Ready-mix Concrete Co Company, but dozens of union members blocked the truck, making it temporarily stop. Although the driver’s and front passenger’s seats were surrounded by about ten union members, the driver moved the truck forward, not carefully looking at the front and both sides. As the truck moved, the victim was knocked down by the front bumper. This led to his death. The police and court thoroughly investigated the accident using every legitimate evidence, such as photos of the accident scene, videos, witnesses, etc. Choi Byeong-yoon was found to have had no special relation with the victim, and punished by ten-month imprisonment on charges of violating the “Act on Special Cases of the Settlement of Traffic Accidents”. After the accident took place, the Government had an independent agency with relevant authority to thoroughly investigate the facts and determine where responsibilities lie, and after a long period of talks among related parties, including the trade union, Sajo Ready-Mix Concrete Co., the Ministry of Labour and surviving family members, presided over by the Chungju City Government, the case was concluded by reaching an agreement not just on the union’s demands but also on compensation for surviving family members and funeral expenses, etc.
    • Death of Ha Joong Geun
33. 678. The case is now under investigation at the Pohang Branch of the Daegu District Public Prosecutor’s Office. The Committee will be informed of related developments, if any.
    • Construction workers’ unions
34. 679. The current status of the court cases involving the construction workers’ unions is as follows. The text of the related court decisions will be submitted.
    • - Daejeon/Chungcheong Construction Workers’ Union:
35. – 18 October 2003: prosecuted for violating the Act on Punishment of Violence, etc.;
36. – 16 February 2004 sentenced to one year in prison with two years of probation by the first-instance court;
37. – 15 September 2004 sentenced to ten months in prison with two years of probation by the second-instance court;
38. 25 May 2006 the case concluded in the third-instance court (dismissal of appeal).
    • - Cheonan/Asan Construction Workers’ Union:
39. – 1 November 2003 prosecuted for violating the Act on Punishment of Violence, etc.;
40. – 27 August 2004 sentenced to one year in prison with two years of probation by the first-instance court;
41. – 14 December 2006 sentenced to one-and-a-half years in prison with two years of probation by the second-instance court;
42. – 3 September 2007 the case concluded in the third-instance court (dismissal of appeal).
    • - Western Gyeonggi Construction Workers’ Union:
43. – 11 August 2004 prosecuted for violating the Act on Punishment of Violence, etc.;
44. – 21 December 2005 sentenced to one year in prison with two years of probation by the first-instance court;
45. – 16 January 2007 sentenced to one and a half years in prison with two years of probation by the second-instance court;
46. 3 September 2007 the case concluded in the third-instance court (dismissal of appeal).
    • - Officials of Daegu Construction Workers’ Union:
47. – 25 July 2006 prosecuted for violating the Act on Punishment of Violence, etc.;
48. – 17 November 2006 sentenced to three years in prison, or found not guilty, by the firstinstance court;
49. – 5 April 2007 sentenced to three years in prison with five years of probation, or found not guilty, by the second-instance court;
50. – 6 September 2007 the verdict rendered by the third-instance court (“not guilty” verdict reversed and remanded);
51. – 14 January 2008 sentenced to eight months in prison with two years of probation by the second-instance court;
52. – 16 January 2008 an appeal filed with the Supreme Court (pending before the third-instance court).
53. 680. In addition to this data, the Government provided additional information in a communication dated 30 May 2007 on construction workers. According to the Government:
    • ... the National Human Rights Commission found that the rally of 16 July 2006 leading to the death of Ha-Jung Keun involved large numbers of demonstrators who had their faces covered and some of them exerted violence against isolated police forces. The report also says that it was a violent demonstration in which the demonstrators started to use bamboo bars, wooden bars, iron pipes, etc, less than one to two minutes after the police arrived on scene, and inflicted injuries on many policemen. The demonstration left 13 protesters and 55 policemen injured;
54. 681. Since the financial crisis of 1998, financial support has been provided for regional construction unions to cover the costs of operating their job placement centres. A support programme has been operated under the control of the Government since 23 June 2003. Since 2006, the Government has supported training programmes by the unions through the employment insurance fund. In 2007, it began to entrust job-placement services for construction workers to construction unions selected through open competition.
55. 682. The Ministry of Labour has dealt with reported cases of unpaid wages according to the Labour Standards Act, and has tried to remedy any violation of this right through the labour inspectorate and its special law enforcement powers; from 1 January to 31 December 2006, regional and district labour offices of the Ministry of Labour received complaints concerning overdue wages worth 1,029.7 billion won (277,000 persons) in total, of which 361.4 billion won worth of cases (129,000 persons) were settled by instructing employers to pay the overdue amount. A total of 615.9 billion won worth of cases (136,000 persons) were judicially treated as employers failed to comply with the instruction. The remaining cases are in the process of settlement. In addition, the Government paid 160.8 billion won in overdue payments to workers (45,000 persons) who had been working in bankrupt companies and provided free legal assistance for workers to clear up overdue wages of 211 billion won (45,000 persons). From 1 January to 31 December 2006, the Government supported the settlement of overdue payments of 733.2 billion won in total (219,000 persons). Through cooperation among ministries and with local governments, the Government is making a loan for living costs to workers with wages in arrears, providing information and free legal assistance, etc.
56. 683. Since October 2001, the Government had been providing financial support for small construction sites to install safety facilities and temporary safety equipment. However, the support was found to bring little benefit for various reasons and was terminated in 2003. Now it is limited only to the manufacturing industry. Meanwhile, in order to discuss the current issues of concern for industrial accident prevention in the construction industry, a tripartite consultation body for the construction industry was organized in July 2005 and has operated since then. And since 2005, accident prevention consulting and related technical support has been provided to prevent accidents at small construction sites. In the Republic of Korea, statistical data on industrial accidents started to be compiled in 1964. Although it is possible to apply for compensation for occupational diseases, some companies in the construction industry concealed such cases because they were afraid of being disadvantageously treated during bidding for a government contract due to higher accident rates. To address this problem, in 2004, the Construction Safety Division was integrated into the Industrial Safety Team. Since the financial crisis of 1998, parts of the eight regulations on industrial safety and health have been repealed or relaxed. The Regulation Reform Team had demanded institutional improvements and the Ministry of Labour eventually came up with a proposal for a labour–management consultation body with the authority to deliberate and decide safety and health issues through tripartite agreement; the consultation body can take on the roles of the Industrial Safety and Health Committee or the Association of Construction Employers. Currently the Government is pushing for related legal revision.
57. 684. With regard to the reasons for the arrest of construction union officials and recent developments in the relevant trials, the Government indicates that construction union members were arrested or put on trial because they committed acts of violence, destruction or extortion beyond the boundaries of legitimate union activities. The examination of these cases by the courts has either been concluded or court rulings are pending. What the Government cited in its reports is based on investigations of facts, the recognition and prosecution of crimes by the police and public prosecutors or the rulings given by the courts. Any argument over whether specific facts leading to such prosecution or court decisions are true or not or whether judgments are fair or not should be made by the parties concerned based on objective evidence during investigation or trial.
58. 685. In the case of the Southern Chungcheong regional construction workers union, according to investigation results released by the responsible regional prosecutor’s office on 6 July 2006, its president and officials extorted a total of 42.50 million won in the name of fulltime union activity fees from 22 construction companies by threatening to report the companies’ violation of the obligation to take safety measures. They were recognized as committing the crime of blackmail and false accusation and are now in the first-instance court. If there are any new developments including new court rulings, the Government will provide the information as it is so that the international society can make an objective and air judgment based on such information.
    • “Minimum Wage Committee”
59. 686. The Minimum Wage Committee in the Republic of Korea discusses and decides the minimum wage rate for the following year between April and June every year. At around 1.20 p.m. on 28 June 2005, the day before the statutory deadline for closing discussions on the minimum wage, 25 union members, discontented with the discussion process, broke into the room where the Minimum Wage Committee was holding the meeting. They occupied the place and staged an overnight sit-in protest, interrupting the meeting. As a result, the Committee had to proceed with the meeting on 29 June, the last day of the discussion period. With some union members continuing their sit-in in the corridor in front of the meeting room and over 300 union members holding a rally outside of the building, the Committee inevitably had to call the police to protect its facilities in case of emergency. The police forces just stood guard in the vicinity of the meeting room, having no influence on the meeting. The Committee could not help requesting protection from the police with grave concern that unions might make its normal operation impossible, by occupying facilities by force, or intruding in its premises. In 2007, more than 1,300 KCTU members attempted to enter the Committee’s office without permission, provoking a clash with police forces, and destroyed properties, such as the main and back gates of the building where the Committee is located. The Korean Government regrets all these incidents, and expresses the hope that the Committee will make an objective assessment of the situation and urge unions to take a non-violent and constructive attitude to allow free and voluntary negotiations to take place.
    • Ratification of Conventions
60. 687. According to the report of the high-level tripartite mission (GB.271/9, paragraph 159) cited in the Recommendation, “The Committee notes with interest the willingness expressed by the members of the President-Elect’s transition team to ratify ILO Conventions Nos 87 and 98 in the near future”. This differs from what is reported, i.e. that “The Committee reminds the Government of its commitment to ratify Conventions Nos 87 and 98 made to the ILO high-level tripartite mission” which needs modification.
61. 688. In addition, it should be recalled that the Committee’s function “is to secure and promote the right of association of workers and employers. It does not level charges at, or condemn, governments. In fulfilling its task, the Committee takes the utmost care, through the procedures it has developed over many years, to avoid dealing with matters which do not fall within its specific competence” [Digest, op. cit., Annex I, para. 13]. The Government would also like to add that the Committee’s ‘task is limited to examining the allegations submitted to it’ [Digest, Annex l, para. 16].
    • Conclusion
    • Requesting the closing of the case
62. 689. The case has been lingering on for a long time, generating many additional complaints and recommendations since its submission in December 1995. The Korean Government has made its utmost efforts to give objective responses based on the facts. Many of the issues discussed have already been concluded, some have lost their meaning and in some cases, there is no new evidence or arguments. When a conflict has occurred, some trade unions, rather than trying to settle it through internal dialogue, have brought their complaints to the international community in anticipation of outside support. This has resulted in the Government wasting its time in responding to issues already settled at home, and adding to the CFA’s already heavy workload. In this respect, the Korean Government eagerly hopes that the Committee on Freedom of Association will positively consider concluding the case as soon as possible by submitting a definite report not an interim one. Any new complaint that may be raised in the future, would need to be seen as a separate case and reviewed in a brief but profound manner.
63. 690. Nevertheless, in case there are special circumstances that make it difficult to close the case, the Committee on Freedom of Association should clarify those circumstances and suggest possible future directions in a specific way. If there are some issues, such as the introduction of trade union pluralism, which cannot be concluded, the Committee on Freedom of Association should request the Korean Government to provide information only on those issues while closing the other issues. This would be a reasonable way to break the current impasse so it is eagerly hoped that the Committee on Freedom of Association will seriously consider it.
64. 691. In the Republic of Korea, union activities have developed, bringing positive impacts on society as a whole. However, unfortunately, some unions have undertaken violent and politically charged activities and union density has continued to fall after reaching its peak of 19.8 per cent in 1989 (12 per cent in 1997-2001, 11 per cent in 2002–03, and 10 per cent in 2004–06). Voices urging self-reflection have been growing among people who want to see rational and peaceful union activities. Accordingly, the new administration, in place since February 2008, will make every effort to firmly establish industrial relations faithfully following laws and principles and pursuing constructive social dialogue through diverse channels. With regard to trade union pluralism, the implementation of which has been postponed, the Government will do its best to implement it as soon as possible.
65. 692. In conclusion, the ILO Committee on Freedom of Association, it is hoped, will have a better understanding of the real situation of industrial relations in the Republic of Korea, which are undergoing changes, and make an accurate judgment based on objective facts rather than trade unions’ unilateral arguments, thereby providing its support and cooperation in developing cooperative and productive industrial relations in the Republic of Korea.
66. 693. In a communication dated 25 February 2009, the Government adds certain comments with regard to the allegations made by the KCTU on multiple limitations on collective action introduced by the TULRAA. According to the Government, emergency adjustment has been invoked only four times since the introduction of this measure in 1963; emergency adjustment is a rare exception applicable only in cases of national crisis. As for replacement workers, this measure is allowed in public services as a result of agreement at the Tripartite Representatives Meeting of 11 September 2006 and only under certain conditions, including limitations on the proportion of replacement workers to 50 per cent of all strike workers, the prohibition of using dispatched workers for replacement work and the fact that workers on strike cannot be dismissed so that their right to return to work after the end of industrial action is recognized. As for the new expanded list of public services, the Government justifies the addition of air transport because it is hard to find other means of transport for domestic emergency travel and international travel, as there are just two airlines in the Republic of Korea with a nationwide flight network. Thus, under the TULRAA, public services are limited to railroad, metropolitan subway, air transport, water, electricity and gas supply, oil refinery, hospitals, blood supply, telecommunications (including postal services) and the Bank of Korea. Within these areas, those services which are highly irreplaceable and whose suspension could acutely endanger the lives, health, physical safety and everyday lives of the public, are designated as minimum services that need to be maintained during strikes. These services do not have to be maintained at a 100 per cent level and workers can engage in industrial action so long as they maintain such minimum services. Although the scope of minimum services is stipulated in the Enforcement Decree to the TULRAA, labour–management autonomy is respected by allowing the employer and workers to determine the level of operation to be maintained, work to be performed, etc. Since this system came into effect on 1 January 2008 until 31 December 2008, 113 workplaces had autonomously reached such an agreement and just 25 workplaces had relied on the decision of the Labour Relations Commission. The decision of the Seoul Regional Labour Relations Commission on the level at which the Seoul Metropolitan Rapid Transit Corporation should maintain operations indicated that at least 38.6 per cent of total union members on weekdays and 37.1 per cent on weekends should provide minimum services. Thus, 61.4 per cent of total union members on weekdays and 62.9 per cent on weekends could stage industrial action. The Busan Regional Labour Relations Commission’s decision on the Donga University Hospital was not enforced as the management withdrew its request on 14 May 2008. The Government finally indicates that holding an individual union member responsible both under civil and criminal law for a failure to carry out minimum services is consistent with the principles of fairness, liability for damages and equal application of the law.

D. The Committee’s conclusions

1. 694. The Committee recalls that it has been examining this case, which concerns both legislative and factual issues, since 1996. The Committee observes from its previous conclusions and the information before it that although significant progress has been achieved in terms of legislation, there is still room for progress towards the establishment of a stable and constructive industrial relations system in the country.
   • Legislative issues
2. 695. The Committee recalls that the outstanding legislative issues concern, on the one hand, the Act on the Establishment and Operation of Public Officials’ Trade Unions, which concerns the public sector only, and, on the other hand, the Trade Union and Labour Relations Amendment Act (TULRAA) and other legislation which is generally applicable.
   • Public officials
3. 696. With regard to the Act on the Establishment and Operation of Public Officials’ Trade Unions, the Committee notes that the issues previously raised concern the need to: (a) recognize the right to organize for all public servants at all grades without exception and regardless of their tasks or functions, including firefighters, prison guards, public service workers in education-related offices, local public service employees and labour inspectors; (b) limit any restrictions of the right to strike to public servants exercising authority in the name of the State and essential services in the strict sense of the term; (c) leave to public officials’ trade unions and public employers to determine on their own whether trade union activities by full-time union officials should be treated as unpaid leave; (d) take into account the following in the framework of the application of the Act on the Establishment and Operation of Public Officials’ Trade Unions: (i) that in the case of negotiations with trade unions of public servants who are not engaged in the administration of the State, the autonomy of the bargaining parties is fully guaranteed and the reservation of budgetary powers to the legislative authority does not have the effect of preventing compliance with collective agreements; more generally, as regards negotiations on matters for which budgetary restrictions pertain, to ensure that a significant role is given to collective bargaining and that agreements are negotiated and implemented in good faith; (ii) that the consequences of policy and management decisions as they relate to the conditions of employment of public employees are not excluded from negotiations with public employees’ trade unions; and (iii) that public officials’ trade unions have the possibility to express their views publicly on the wider economic and social policy questions which have a direct impact on their members’ interests, noting though that strikes of a purely political nature do not fall within the protection of Conventions Nos 87 and 98.
4. 697. With regard to the right to organize of public officials, the Committee notes that according to the Government the exclusion from the right to organize of public officials at grade V or higher is justified by the fact that most of them hold a managerial position and their exclusion from the right to organize is allowed under Convention No. 151; certain public officials with hierarchical authority below grade 5 (grade 5 to 10) can also be excluded from the right to organize to ensure the independence of trade unions.
5. 698. The Committee is bound to recall once again that public servants, like all other workers, without distinction whatsoever, have the right to establish and join organizations of their own choosing, without previous authorization, for the promotion and defence of their occupational interests [Digest, fifth edition, 2006, para. 219]. All public employees (with the sole possible exception of the armed forces and the police, by virtue of Article 9 of Convention No. 87), regardless of the grade, should, like workers in the private sector, be able to establish organizations of their own choosing to further and defend the interests of their members [Digest, op. cit., para. 220]. The exclusion in Convention No. 151 cannot be seen as restricting in any way, the right to organize, as guaranteed under Convention No. 87. Nevertheless, as concerns persons exercising senior managerial or policy-making responsibilities, the Committee is of the opinion that while these public servants may be barred from joining trade unions which represent other public servants, such restrictions should be strictly limited to this category of workers and they should, nevertheless, be entitled to establish their own organizations to defend their interests as workers. The Committee recalls that it is not necessarily incompatible with the requirements of Article 2 of Convention No. 87 to deny managerial or supervisory employees the right to belong to the same trade unions as other workers, on condition that two requirement are met: first, that such workers have the right to establish their own associations to defend their interests and, second, that the categories of such staff are not defined so broadly as to weaken the organizations of other workers in the enterprise or branch of activity by depriving them of a substantial proportion of their present or potential membership [Digest, op. cit., paras 253 and 247]. The Committee further recalls that the functions exercised by firefighters do not justify their exclusion from the right to organize and they, as well as prison staff should enjoy this right. Finally, the denial of the right to organize to workers in the labour inspectorate constitutes a violation of Article 2 of Convention No. 87 [Digest, op. cit., paras 231, 232 and 234]. The Committee therefore once again requests the Government to review the exclusions from the right to organize in the Act on the Establishment and Operation of Public Officials’ Trade Unions as well as its Enforcement Decree so as to ensure that public servants at all grades, regardless of their tasks or functions, including firefighters, prison guards, those working in education-related offices, local public service employees and labour inspectors, have the right to form their own associations so as to defend their interests.
6. 699. With regard to the right to strike, the Committee notes that according to the Government, all public officials exercise authority in the name of the State and therefore their right to collective action is inevitably restricted. The Committee recalls that its previous comments related to section 18 of the Act on the Establishment and Operation of Public Officials’ Trade Unions which establishes a blanket prohibition of collective action by public officials in conjunction with penal sanctions and fines, even with regard to certain public sector workers who do not exercise authority in the name of the State including for instance, public officials in state public schools, such as drivers or sanitation supervisors, those working in education-related offices and employees of local authorities [346th Report, paras 750 and 772]. The Committee therefore once again requests the Government to ensure that the restrictions on the right to strike in the Act on the Establishment and Operation of Public Officials’ Trade Unions may only be applicable in respect of public servants exercising authority in the name of the State and public servants who are involved in essential services in the strict sense of the term.
7. 700. Furthermore, with regard to the right to strike, the Committee takes note of the comments made by the KCTU with regard to minimum services to be ensured in case of “public services” under section 42 of the TULRAA as well as the Government’s reply which will be examined below.
8. 701. With regard to whether trade union activities by full-time union officials should be treated as unpaid leave, the Committee notes that according to the Government, the payment of wages to full-time union officials should rest with the union concerned so as to ensure the financial independence of trade unions. The Committee once again emphasizes that this issue should be up to the parties to determine and once again requests the Government to consider further measures aimed at allowing negotiation on the issue of whether trade union activity by full-time union officials should be treated as unpaid leave.
9. 702. With regard to the issue of collective bargaining with public officials the Committee notes from the Government’s report that the Act on the Establishment and Operation of Public Officials’ Trade Unions not only recognized public officials’ right to conclude collective agreements but also imposes an obligation on the Government’s bargaining representative to make efforts to implement the collective agreements in good faith. It notes the Government’s indication that it has engaged in good faith bargaining with public officials’ trade unions in a total of 118 workplaces and 69 workplace collective agreements had been concluded as of April 2008. Central-level negotiations were concluded on 14 December 2007 with regard to the terms and conditions affecting all public officials, such as remuneration, retirement age, etc. The Government adds that it has implemented the agreements in good faith.
10. 703. While taking due note of this information, the Committee notes that it does not address the issue of the legal provisions applicable to those public servants who are not engaged in the administration of the State. The Committee recalls that under section 10(1) of the Act on the Establishment and Operation of Public Officials’ Trade Unions, provisions on matters stipulated by laws, by-laws or the budget or stipulated by authority delegated by laws or by-laws, shall not have binding effect when included in collective agreements, and once again emphasizes that those public employees and officials who are not acting in the capacity of agents of the state administration (for example, those working in public undertakings or autonomous public institutions) should be able to engage in free and voluntary negotiations with their employers; in that case, the bargaining autonomy of the parties should prevail and not be conditional upon the provisions of laws, by-laws or the budget. Most importantly, the reservation of budgetary powers to the legislative authority should not have the effect of preventing compliance with collective agreements entered into by, or on behalf of, that authority; the exercise of financial powers by the public authorities in a manner that prevents or limits compliance with collective agreements already entered into by public bodies is not consistent with the principle of free collective bargaining [Digest, op. cit., paras 1033 and 1034]. The Committee once again requests the Government to ensure that in the case of negotiations with trade unions of public servants who are not engaged in the administration of the State, the autonomy of the bargaining parties is fully guaranteed and the reservation of budgetary powers to the legislative authority does not have the effect of preventing compliance with collective agreements.
11. 704. With regard to the exclusion from the scope of collective bargaining, by virtue of section 8, paragraph 1 of the Act on the Establishment and Operation of Public Officials’ Trade Unions of “matters concerning policy decisions” of the State or local government and “matters concerning the management and operation of the [public] organization, such as exercising the right to appointment, but not directly related to working conditions”, the Committee notes that according to the Government, matters concerning policy decisions or personnel appointments are excluded from those subject to collective bargaining because they constitute the Government’s managerial prerogatives. The Committee once again recalls that, in a previous case on allegations concerning the refusal to bargain collectively on certain matters in the public sector, the Committee had recalled the view of the Fact-Finding and Conciliation Commission on Freedom of Association that “there are certain matters which clearly appertain primarily or essentially to the management and operation of government business; these can reasonably be regarded as outside the scope of negotiation”. It is equally clear that certain other matters are primarily or essentially questions relating to conditions of employment and that such matters should not be regarded as falling outside the scope of collective bargaining conducted in an atmosphere of mutual good faith and trust [Digest, op. cit., para. 920]. In the absence of a clear definition of what constitutes “policy decisions of the State” and the “management and operation of government business”, and in the light of the blanket prohibition of negotiations over these matters introduced in the Act on the Establishment and Operation of Public Officials’ Trade Unions, the Committee once again requests the Government to ensure that, in so far as concerns the application of the Act to public servants who cannot be properly considered as engaged in the administration of the State, the consequences of policy and management decisions as they relate to the conditions of employment of public employees, are not excluded from negotiations with public employees’ trade unions.
12. 705. With regard to section 4 of the Act on the Establishment and Operation of Public Officials’ Trade Unions which prohibits political activities by public officials’ trade unions, the Committee notes that the Government does not provide any information. While duly noting from its previous examination of this provision that the status of public servants is such that certain purely political activity can be considered contrary to the code of conduct that is expected of these servants and that trade union organizations should not engage in political activities in an abusive manner and go beyond their true functions by promoting essentially political interests – the Committee once again requests the Government to ensure that public officials’ trade unions have the possibility to express their views publicly on the wider economic and social policy questions which have a direct impact on their members’ interests, noting though that strikes of a purely political nature do not fall within the protection of Conventions Nos 87 and 98.
13. 706. The Committee requests to be kept informed in respect of all the above.
    • Generally applicable legislation
14. 707. With regard to the TULRAA and other generally applicable legislation, the Committee recalls that the pending issues concern the need to: (i) legalize trade union pluralism at the enterprise level; (ii) resolve the issue of payment of wages to full-time union officers in a manner consistent with freedom of association principles; (iii) amend the emergency arbitration provisions of the TULRAA (sections 76–80) so that it can be imposed only be an independent to body which has the confidence of all parties concerned and only in cases in which strikes can be restricted in conformity with freedom of association principles; (iv) repeal the provisions prohibiting dismissed and unemployed workers from keeping their union membership and making non-union members ineligible to stand for trade union office (sections 2(4)(d) and 23(1) of the TULRAA) and (v) amend section 314 of the Criminal Code concerning obstruction of business to bring it into line with freedom of association principles.
15. 708. The Committee had noted with interest during the previous examination of this case that draft amendments to the TULRAA would abolish compulsory arbitration for disputes in essential public services and introduce a requirement to maintain minimum services and use of replacement workers (not exceeding 50 per cent of striking workers) in the event of a strike in essential public services. It had also noted allegations according to which the new “public services” category would include what was formerly called “essential public services” (railroad services, inter-city railways, water, electricity, gas supply, oil refinery and supply services, hospital services, telecommunication services and the Bank of Korea) as well as: supply of heat and steam, harbour loading and unloading, railway, freight transport, airborne freight transport and social insurance providers; a minimum services obligation would be added to the expanded list of “public services” in case where the “normal life” of the public was acutely endangered and compulsory arbitration machinery would be introduced to resolve the crucial issue of the scope of the minimum service.
16. 709. The Committee notes from the KCTU’s new allegations that the amendment to the TULRAA was passed into law on 30 December 2006 so as to introduce several levels of limitations to the right to strike which in the end all but wipe out the potential effect of abolishing compulsory arbitration. These limitations are the possibility of emergency arbitration, minimum services and replacement workers. According to the KCTU, instead of guaranteeing negotiations over minimum services, the Government enumerates these services in the enforcement decree of the TULRAA in a way which negates negotiations over the issue. In a context where any agreement between workers and employers is nearly impossible, the Labour Relations Commission has the power to reach a decision on the scope of minimum services through compulsory arbitration. The KCTU alleges that already employers (e.g. the Seoul Metro, Korea Railways, Korea Power Plants and others) have preferred to avoid negotiations on determining the minimum service and apply to the Labour Relations Commission which has issued decisions establishing an excessively high minimum service, thus rendering any strike ineffective. For example, in the case of the Seoul Metropolitan Rapid Transit Corporation, the Labour Relations Commission determined on 31 January 2008 the minimum service as 100 per cent of operation during rush hour, 79.8 per cent during Saturdays and weekdays and 50 per cent on Sundays; also, jobs that must be maintained include almost all jobs except cleaning and ticketing. The KCTU further objects to the possibility of using replacement labour in these circumstances and specifies that the Labour Relations Commission has decided that 50 per cent is the minimum service for public services when replacement labour can be introduced and 100 per cent when such workers cannot be introduced (Busan Labour Relations Commission, 14 May 2008). As a result, according to the KCTU, trade unions are faced with a dilemma of either continuing an ineffective lawful strike or resorting to an illegal strike by refusing to provide the required minimum service. In other words, the new law forces upon trade unions a decision between giving up basic labour rights or proceeding with an illegal strike. Finally, the law introduces individual criminal responsibility and civil liability of the workers who refuse to provide the minimum service.
17. 710. The Committee takes note of the Government’s reply according to which, since 1 January 2008 when the amendment entered into force until 31 December 2008, a total of 113 workplaces had signed an agreement on minimum services and only 25 relied on the Labour Relations Commission’s decisions. The decision of the Seoul Regional Labour Relations Commission on the level at which the Seoul Metropolitan Rapid Transport Corporation should maintain operations indicated that at least 38.6 per cent of total union members on weekdays and 37.1 per cent on weekends should provide minimum services. Thus, 61.4 per cent of total union members on weekdays and 62.9 per cent on weekends could stage industrial action.
18. 711. The Committee recalls in the first place, that the transportation of passengers and commercial goods is a public service of primary importance where the requirement of a minimum service in the event of a strike can be justified. Similarly, the Mint, banking services and the petroleum sector are services where a minimum negotiated service could be maintained in the event of a strike so as to ensure that the basic needs of the users of these services are satisfied [Digest, op. cit., paras 621 and 624]. The Committee also notes, however, that a minimum service should be confined to operations that are strictly necessary to avoid endangering the life or normal living conditions of the whole or part of the population. In this regard, the Committee notes that the parties communicate contradictory information as to the decisions of the Labour Relations Commission on the minimum level of service. With regard to the possibility of having recourse to replacement labour, the Committee recalls in general that, if a strike is legal, recourse to the use of labour drawn from outside the undertaking to replace the strikers for an indeterminate period entails a risk of derogation from the right to strike, which may affect the free exercise of trade union rights [Digest, op. cit., para. 633]. The Committee therefore requests the Government to ensure that, in issuing decisions determining the minimum service, the Labour Relations Commission takes due account of the principle according to which a minimum service should be confined to operations that are strictly necessary to avoid endangering the life or normal living conditions of the whole or part of the population and to continue to keep it informed of the specific instances in which minimum service requirements have been introduced, the level of minimum service provided and the procedure through which such minimum service was determined (negotiations or arbitration).
19. 712. With regard to the possibility of imposing “emergency arbitration”, with the possibility of hiring replacement labour, if a dispute “relates to” any public services, or if the dispute is large in scale, has a “special” character such that the Labour Minister thinks the dispute is “likely” to make the economy “worse” or disrupt “normal life” (sections 76–80, TULRAA), the Committee notes that according to the Government, such arbitration is in conformity with freedom of association principles according to which “what is meant by essential services in the strict sense of the term depends to a large extent on the particular circumstances prevailing in a country” [Digest, op. cit., para. 582]. Emergency arbitration is invoked very rarely, as an exception rather than the rule in the Republic of Korea, and was applied only in 1969, 1993 and 2005. The Government states that it will continue to apply emergency arbitration carefully, after weighing the risks to people’s safety, so as to respect freedom of association principles; thus, the Government has no plan to revise the current system.
20. 713. The Committee once again recalls that a system of compulsory arbitration through the labour authorities, if a dispute is not settled by other means, can result in a considerable restriction of the right of workers’ organizations to organize their activities and may even involve an absolute prohibition of strikes, contrary to the principles of freedom of association [Digest, op. cit., para. 568]. The Committee once again emphasizes that compulsory arbitration to end a collective labour dispute and a strike is acceptable if it is at the request of both parties involved in a dispute or, if the strike in question may be restricted, even banned, i.e. in the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population [Digest, op. cit., para. 564]. Furthermore, responsibility for suspending a strike on the grounds of national security or public health should not lie with the Government, but with an independent body which has the confidence of all parties concerned [Digest, op. cit., para. 571]. The Committee therefore once again requests the Government to take all necessary measures to amend the emergency arbitration provisions in the TULRAA (sections 76–80) so as to ensure that such a measure can only be imposed by an independent body which has the confidence of all parties concerned and only in cases in which strikes can be restricted in conformity with freedom of association principles.
21. 714. With regard to the issue of obstruction of business provisions in section 314 of the Penal Code, which as previously alleged by the complainants, have served systematically as a means to victimize trade unionists for exercising their right to strike, through prison sentences and heavy fines, the Committee notes with regret that once again, the Government’s reply does not indicate any steps taken to review section 314 of the Penal Code so as to bring it into conformity with freedom of association principles, despite requests that this Committee has been making to this effect since 2000; on the contrary, the Government indicates that this provision is not intended to regulate industrial action itself, but to punish illegal action in case it causes damage by interfering with an employer’s economic activity.
22. 715. The Committee emphasizes that no one should be deprived of their freedom of be subject to penal sanctions for the mere fact of organizing or participating in a peaceful strike [Digest, op. cit., para. 672]. The Committee has found in another case concerning limitations on strikes based on interference with trade or commerce, that by linking restrictions on strike action to interference with trade and commerce, a broad range of legitimate strike action could be impeded. While the economic impact of industrial action and its effect on trade and commerce may be regrettable, such consequences in and of themselves do not render a service “essential”, and thus the right to strike should be maintained [Digest, op. cit., para. 592]. The same applies in this case where the law imposes criminal punishment and heavy fines for strikes on the ground that they limit economic activities.
23. 716. Nevertheless, noting from the Government’s reply that many strikes in the Republic of Korea involve illegal and violent means such as blocking access to the workplace, forceful occupation, destruction of facilities and physical abuse of policemen and managers, the Committee notes that penal sanctions should only be imposed if, in the framework of a strike, violence against persons and property or other serious violations of the ordinary criminal law are committed, and this, on the basis of the laws and regulations punishing such acts. In particular, the Committee recalls that the exercise of the right to strike should respect the freedom of work of non-strikers, as established by the legislation, as well as the right of the management to enter the premises of the enterprise. 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 [Digest, op. cit., paras 651 and 652].
24. 717. In light of the above, the Committee once again requests the Government to take measures so as to bring section 314 of the Penal Code (obstruction of business) fully in line with freedom of association principles.
25. 718. The Committee notes with regard to steps to introduce trade union pluralism at the enterprise level, which has been postponed, for the second time, until 31 December 2009, that the Government will actively push for legislation concerning measures to establish a single bargaining channel so as not to postpone the enforcement date of the related provisions any further. The Tripartite Commission organized a group of experts from labour, management the Government and public interest groups, in order to share the results of discussions and research conducted so far (October 2007–March 2008). The Committee once again emphasizes 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 [Digest, op. cit., para. 312]. The Committee once again requests the Government to take rapid steps to continue and undertake full consultations with all social partners with a view to the legalization of trade union pluralism at the enterprise level so as to ensure that the right of workers to establish and join the organization of their own choosing is recognized at all levels.
26. 719. With regard to the Committee’s request for the Government to lift the prohibition of wage payment to full time union officials which was introduced in 1997 but has not yet entered into force (its implementation has been postponed twice and linked to the issue of recognition of trade union pluralism) the Committee notes that according to the Government, the prohibition of such payments will safeguard the independence of the trade union movement and rationalize the relationship between employers and trade unions, as it is contradictory to operate in opposition to employers and yet receive payments from them. The Committee recalls from the previous examination of this case that the question of wage payment to full-time union officers should not be subject to legislative interference and should be left to free and voluntary negotiations between the parties. It therefore requests the Government to expedite the resolution of this matter, in accordance with freedom of association principles so as to enable workers and employers to conduct free and voluntary negotiations in this regard.
27. 720. With regard to the issue of allowing the unemployed to freely join a trade union and engage in its activity, the Committee notes from the Government’s reply that even though the tripartite representatives decided in 2006 to exclude this issue from the legislative reform, in recent years, trade unions have been organized above the enterprise level, e.g. at the industry, sector or regional levels, and unemployed or dismissed workers were able to join some of them and engage in their activities. The Government adds that given all these elements, at present it has no specific plan to make institutional improvements in the near future. While noting this development with interest, the Committee once again notes that a provision depriving workers of the right to union membership is incompatible with the principles of freedom of association since it deprives the persons concerned of joining the organization of their choice. Such a provision entails a risk of acts of anti-union discrimination being carried out to the extent that the dismissal of trade union activists would prevent them from continuing their trade union activities within their organization [Digest, op. cit., para. 268]. It therefore once again requests the Government to repeal the provisions prohibiting dismissed and unemployed workers from keeping their union membership and making non-union members ineligible to stand for trade union office (sections 2(4)(d) and 23(1) of the TULRAA).
28. 721. The Committee urges the Government, in the interests of establishing a constructive industrial relations climate in the country, to continue all efforts to find solutions to the remaining legislative matters noted above, in full consultation with all the social partners concerned, including those not presently represented on the Tripartite Commission. The Committee requests to be kept informed in respect of all the above.
    • Factual issues
29. 722. The Committee recalls that the pending factual issues in this case concern: (i) the arrest and detention of Mr Kwon Young-kil, former president of the KCTU; (ii) the dismissal of leaders and members of the KAGEWC; (iii) the arrest and conviction of the KGEU President Kim Young-Gil and General Secretary Ahn Byeon-Soon; (iv) violent police intervention in KCTU and KGEU rallies; (v) interference by MOGAHA in the internal affairs of the KGEU through the initiation of a “New Wind Campaign” at the end of 2004; (vi) the criminal prosecution and imprisonment of officials of the Korean Federation of Construction Industry Trade Unions (KFCITU) and restrictions over collective agreements concerning subcontracted workers in the construction sector; (vii) the death of two trade unionists; (viii) the forced closure of 125 out of 251 KGEU offices nationwide and violent clashes between trade unionists and the police; (ix) and harassment of union representatives during minimum wage negotiations.
30. 723. With regard to the sentencing of Kwon Young-kil, former president of the KCTU, to a fine of 15 million won on 11 January 2006, the Committee notes from the Government’s report that an appeal is pending before the Supreme Court and that having steadily engaged in political activities, Kwon Young-kil was elected to the National Assembly in 2008. The Committee requests the Government to keep it informed of the progress of the appeal proceedings concerning Kwon Young-kil.
31. 724. As regards the dismissals of eight public servants connected to the precursor of the KGEU, KAGEWC (the dismissals of Kim Sang-kul, Oh Myeong-nam, Koh Kwang-sik and Min Jum-ki were final, those of Kang Dong-jin and Kim Jong-yun were pending examination while Han Seok-woo, Kim Young-kil did not appear to have lodged an appeal) for having committed illegal activities (attempt to establish a trade union, holding of illegal outdoor assemblies, break-in at the offices of MOGAHA and consequent damage, illegal decision to go on a general strike and taking of annual leave and absences, without permission, so as to wage that strike) the Committee notes that, according to the Government, their cases were handled in accordance with the law in force and there is no possibility of considering their reinstatement. The Committee once again expresses its deep regret at the difficulties faced by these public servants, which appear to have been due to the absence of legislation ensuring their basic rights of freedom of association, in particular the right to form and join organizations of one’s own choosing, respect for which should now be guaranteed by the entry into force of the Act on the Establishment and Operation of Public Officials’ Trade Unions. The Committee also deeply regrets that the Government has provided copies of the relevant decisions only for two of these workers (Kim Sang-kul and Koh Kwang-sik), despite previous requests to this effect. The Committee therefore once again requests the Government to reconsider the dismissals of Kim Sang-kul, Oh Myeong-nam, Min Jum-ki and Koh Kwang-sik Han Seok-woo, Kim Young-kil, Kang Dong-jin and Kim Jong-yun in the light of the adoption of the new Act and to keep it informed of any developments in this respect.
32. 725. The Committee recalls its previous recommendations concerning numerous arrests and detentions under obstruction of business charges to which the Government had not provided a reply. According to these allegations, pursuant to a strike staged in March 2006, which was stopped through compulsory arbitration, at least 401 members of the KRWU were arrested by riot police. Although the strike was peaceful, it was considered by the police to constitute in and of itself an “obstruction of business using threat of force”. Moreover, 29 union leaders were arrested and detained on 6 April 2006 on obstruction of business charges for the above incident, including KRWU president Kim Young-hoon who remained in custody until 22 June 2006; later on, Lee Chul Yee, chairperson of irregular workers of the KRWU and Kim Jeong-min, Seoul provincial president, were arrested. The latter remained in jail at the time of the complainant’s communication (1 September 2006). Furthermore, the employer KORAIL was preparing to lodge charges of “obstruction of business” and infraction of the TULRAA against 198 union officers, claiming damages of about US$13,500,000 (the union had been recently forced to pay US$2,440,000 for a strike staged in 2003). Furthermore, 26 officers of the KALFCU were prosecuted on obstruction of business charges by their employer, Korean Airlines, after the Government imposed emergency arbitration to end a strike by the union. According to the allegations, obstruction of business is systematically resorted to in an effort to victimize and intimidate trade unionists who decide to go on strike.
33. 726. The Committee notes that according to the Government, Kim Jeong-min, President of the Seoul Regional Chapter of the KRWU was sentenced to ten months’ imprisonment with two years’ probation in the second instance court on 20 September 2006. The charges against 26 KALFCU officers were dropped due to insufficient evidence. With regard to new cases of workers arrested for obstruction of business, the Government indicates that Chung Gapdeuk and two other workers were prosecuted for obstruction of business on 10 December 2007 and sentenced to two years’ imprisonment with three years’ probation on 8 January 2008.
34. 727. The Committee regrets to note that the Government fails to provide information on the specific grounds for the criminal prosecution of 198 KRWU officers and to attach relevant court decisions as previously requested. The Committee observes that although the large majority of KRWU members who were dismissed for their participation in the strike of March 2006 were reinstated following court rulings to this effect, Kim Jeong-min, President of the Seoul Regional Chapter of the KRWU, was convicted for obstruction of business and sentenced to ten months imprisonment with two years probation in the second instance court on 20 September 2007. The Committee notes however from that court decision, which was attached to the Government’s report, that the court found the strike action in question to be relatively peaceful and that the parties subsequently reached an agreement. It also notes with regard to the new case of conviction of Chung Gap-deuk, President of a metal workers’ union, and two other workers to two years imprisonment with three years’ probation for obstruction of business on 8 January 2008, that according to the court decision, which was attached in the Government’s report, no violence had been involved in their activities.
35. 728. The Committee finally notes with regret that in reply to the allegations concerning the systematic resort to obstruction of business charges to intimidate trade unionists, the Government indicates that collective action falling outside the legal confines, exclusively consisting of acts seriously violating an employer’s freedom to operate a business, is carefully assessed and becomes subject to obstruction of business charges. The Committee notes that this statement constitutes a departure from the Government’s previous assurances that it is making efforts to minimize criminal punishment for obstruction of business by refraining from making arrests even in the case of an illegal strike if the strike does not entail any violence. It recalls that the authorities should not resort to arrests and imprisonment in connection with the organization of or participation in a peaceful strike; such measures entail serious risks of abuse and are a grave threat to freedom of association [Digest, op. cit., para. 671]. The Committee recalls from the previous examination of this case its statement that the criminalization of industrial relations is in no way conducive to harmonious and peaceful industrial relations [346th Report, para.774]. The Committee further recalls that, in previous examinations of this case, it had noted with interest the Government’s previous general indication that it would establish a practice of investigation without detention for workers who violated current labour laws, unless they committed an act of violence or destruction – a statement considered to be of paramount importance, particularly in a context where certain basic trade union rights have yet to be recognized for certain categories of workers and where the notion of a legal strike has been seen as restricted to a context of voluntary bargaining between labour and management uniquely for maintaining and improving working conditions [see 331st Report, para. 348; 335th Report, para. 832].
36. 729. In the light of the above, the Committee must once again express its deep concern that section 314 of the Penal Code concerning obstruction of business, as drafted and applied over the years, has given rise to the punishment of a variety of acts relating to collective action, even without any implication of violence, with significant prison terms and fines. The Committee once again urges the Government to consider all possible measures, in consultation with the social partners concerned, so as to revert to a general practice of investigation without detention of workers and of refraining from making arrests, even in the case of an illegal strike, if the latter does not entail any violence. The Committee requests to be kept informed in this regard, including by providing copies of court judgements on any new cases of workers arrested for obstruction of business under the terms of the present section 314 of the Penal Code.
37. 730. The Committee recalls that during the previous examination of this case it had noted allegations of numerous suspensions, transfers and disciplinary measures against workers staging strikes which had been interrupted by compulsory or emergency arbitration (2,680 KRWU members suspended by the Korean Railroad Corporation and undergoing disciplinary procedures causing a climate of intimidation prejudicial to trade union activity; KALFCU members transferred to standby by Korean Airlines causing harm to this young union). The Committee notes that according to the Government, of the 2,823 workers relieved of duties following a strike by the KRWU on 1 March 2006, 2,754 filed a request seeking remedy with the Regional Labour Relations Commission which ruled in favour of 1,498 but against 1,256. A total of 2,730 filed an appeal with the National Labour Relations Commission. Out of them 2,540 won their case but 189 were turned down because of the deadline. The workers who won the case were all reinstated. Regarding disciplinary measures such as suspension, against KALFCU members in 2005, these were taken against 26 union members according to the company’s regulations. The case was closed as no suit was brought against these measures. However, Choi Seong-jin, the only dismissed union member, filed a suit seeking to invalidate the dismissal which is now before the court of appeal. The Committee requests the Government to keep it informed of the outcome of the appeal filed by Choi Seong-jin against his dismissal for having participated in a strike staged by KALFCU in 2005.
38. 731. The Committee recalls that its previous recommendations concerned widespread acts of interference with the activities of the KGEU based on directives issued by the MOGAHA. The Committee had requested the Government to immediately cease all acts of interference against the KGEU, in particular the forced closure of its offices nationwide, the discontinuance of the check-off facility, the disallowance of collective bargaining, the pressure on KGEU members to resign from the union as well as administrative and financial sanctions against local governments which failed to comply with the Government’s directives. It further called upon the Government to abandon the MOGAHA directives and to take all possible measures with a view to achieving conciliation between the Government (in particular MOGAHA) and the KGEU so that the latter might continue to exist and ultimately to register within the framework of the legislation which should be in line with freedom of association principles.
39. 732. The Committee notes from the Government’s report that by April 2008, since the enforcement of the Act on the Establishment and Functioning of Public Officials carried out on the basis of the MOGAHA directives, 199,613 or 68 per cent of public officials eligible to join a trade union joined a trade union of their own choosing and have engaged in trade union activities. There are now 99 public officials’ trade unions, including the Korean Federation of Government Employees (KFGE, registered on 4 September 2006 with a membership of 58,184), the Korea Democracy Government Employee Union (KDGEU registered on 10 July 2007 with a membership of 50,542) and the Korean Government Employees Union (KGEU registered on 17 October 2007 with a membership of 42,490), which are registered legitimately and are carrying out union activities within the legal boundaries. In particular, since its registration on 17 October 2007, the KGEU has delegated bargaining authority to its local chapters across the nation. These local chapters have conducted collective bargaining with over 70 local governments. With no intervention or restriction by the Government, they are actively engaging in union activities and some of them have already concluded collective agreements.
40. 733. While noting with interest that three trade unions of public servants had been registered until April 2008, including the KGEU, the Committee regrets the manner in which the KGEU’s previous refusal to register under the Act on the Establishment and Functioning of Public Servants’ Trade Unions so as to avoid expelling members who did not qualify for trade union membership under the Act has been handled. The Committee deeply regrets in particular the extensive acts of interference and the forceful closing down of 125 KGEU offices which were sealed off, in some cases even welded with iron plates or bars.
41. 734. With regard to the Committee’s previous request for information on the imprisonment of the president of the Migrants’ Trade Union (MTU), Anwar Hossain, the Committee notes that the Government provides information which is also furnished in the framework of Case No. 2620 which focuses on migrant workers. The Committee will further examine this information in that framework.
42. 735. With regard to the Committee’s previous request for an independent investigation into the death of Kim Tae Hwan, president of the FKTU Chungju regional chapter, who was run over by a cement truck on 14 June 2005 while on the picket line in front of the Sajo Remicon cement factory, the Committee notes that although the Government expresses its regret at the accident, it makes a general reference to an investigation by an independent government agency which was concluded through an agreement on compensation. Recalling that the death of Kim Tae Hwan took place in the context of an industrial dispute, the Committee requests the Government to provide a copy of the relevant investigation report.
43. 736. With regard to the request for information on the outcome of the investigation into the death of Ha Jeung Koon, member of the Pohang local union of the KFCITU in August 2006, the Committee notes that according to the Government, this case is still under investigation at the Daegu District Public Prosecutor’s Office and the Committee will be informed of developments, if any. The Committee deeply regrets the delay in investigating the circumstances surrounding the death of Ha Jeung Koon especially as the complainant’s (BWI) allegations and the Government’s reply demonstrate that there are differing views on the events which led to the death of this trade unionist and it is important in such circumstances to shed full light into the matter. It once again recalls that in cases in which the dispersal of public meetings by the police has involved loss of life or serious injury, the Committee has attached special importance to the circumstances being fully investigated immediately through an independent inquiry and to a regular legal procedure being followed to determine the justification for the action taken by the police and to determine responsibilities [Digest, op. cit., para. 49]. The Committee urges the Government to take all necessary measures to ensure that the investigation under way concerning the death of Ha Jeung Koon is concluded without further delay so as to determine where responsibilities lie, allowing for the guilty parties to be punished and the repetition of similar events to be prevented. The Committee requests to be kept informed in this respect.
44. 737. With regard to the allegations by the IFBWW (now BWI) and the Government’s reply concerning the criminal prosecution and imprisonment of members and officials of the regional branches of the Korea Federation of Construction Industry Trade Unions (KFCITU) and restrictions over collective agreements with subcontracted workers in the construction sector, the Committee recalls that during its previous examination it (i) noted that the Government’s reply and the complainant’s allegations represented divergent views of the facts and that it did not have at its disposal the text of the relevant court judgements so as to have full knowledge of the evidence; (ii) requested the Government to transmit all additional information, including relevant court judgements, and to keep the Committee informed of the outcome of the appeal in this case; (iii) invited the complainant to transmit any further information it considered appropriate in response to the information provided by the Government; (iv) requested the Government to undertake further efforts for the promotion of free and voluntary collective bargaining over terms and conditions of employment in the construction sector covering, in particular, the vulnerable “daily” workers; in particular, the Committee requested the Government to provide support to construction sector employers and trade unions with a view to building negotiating capacity.
45. 738. The Committee notes that the BWI provides detailed information aimed at countering the information previously provided by the Government. According to the BWI, the Government distorted the facts and made unfounded allegations against the KFCITU. The prosecutions against the trade union officers in question were aimed at obstructing the activities of regional construction unions, in particular strikes, and not at addressing criminal activity as indicated by the Government; the whole process was based on the premise that trade union activities were in themselves illegal “extortion” and “coercion” as illustrated in the language used in the Government’s report, e.g. instead of saying that the employer refused to conclude a collective agreement, indicating that the employer refused “money payments”; the investigation itself was carried out by departments charged with investigating and prosecuting organized crime which shows the mind frame applied to the case. Moreover, the investigation and prosecution were tainted with numerous irregularities aimed at fabricating false charges against the trade union officials in question. The BWI provides details on prosecution statements and charges which had to be abandoned during the trials as they were unsubstantiated and were not confirmed by prosecution witnesses (e.g. that the union threatened site managers and forced them into concluding collective agreements; that union officials’ wages were used for personal purposes; that the union had no affiliated members in the region; that the union committed violent acts and that it was inactive after the conclusion of a collective agreement). According to the BWI, several site managers indicated at the trial either that their actual statements were different from what was being presented by the prosecution or that they had felt compelled to sign prepared statements under pressure from the police; several witnesses for the prosecution were not even working at the construction sites during the relevant period while one organizer identified by the police as a suspect was not active as an organizer at the construction site during the time frame of the allegations and the court had to revoke his arrest warrant The BWI further indicates the following:
    • (i) With regard to the Government’s statement that union officials who were not employed by any company demanded collective agreements that contained payments of wages for trade union officials, the BWI indicates that due to the short-term contracts of construction workers, the latter are organized into regional level industrial unions, and have been legally recognized by the government in such form. There is no regulation in the labour law that requires one to be employed in a specific worksite in order to be a union official. Court rulings have also found that payment of wages for union officials do not presuppose employment relations and can be decided through collective agreement, and that the question of who becomes a paid union official is up to the union to decide. Also, the collective agreements in question refer to a variety of issues like “safety education, employer-employee consultations, employment insurance, pension deduction schemes”, but the Government singles out the wage payments, intentionally omitting the other elements of the agreements and thereby distorting the efforts of the construction union.
    • (ii) With regard to the Government’s statement that the union did not respond to requests to furnish the union member list and demanded payments under the collective agreement although it did not have any members on site, threatening to file complaints if the company refused, the BWI indicates that presenting the list of members is not a precondition for the conclusion of a collective agreement and that the refusal to produce a list of members does not run counter to any legal provision. This refusal is due to the need to protect members from anti-union discrimination as in the construction sector layoffs due to union membership are common. Furthermore, most of the provisions of a collective agreement do not apply only to members but to the entire staff as they reflect basic labour rights guaranteed to all workers by law; low levels of compliance with basic rights in the construction industry, have led to collective agreements functioning as a vehicle for ensuring adherence with the law. The Government’s report distorts this reality and presents the construction union as a group of common thieves.
    • (iii) With regard to the Government’s statement that the sole objective of the construction union officials was to receive money from employers and not the conclusion of a collective agreement, the BWI indicates that this statement is not supported by any evidence. According to trial records many construction site managers testified during the investigation and trial that when they offered money to the union in exchange for not entering into a collective agreement, they met with fierce protests and refusals.
    • (iv) With regard to the Government’s statement that union officials ceased to appear at construction sites after collective agreements were concluded and the money was sent, the BWI indicates that this is a serious misrepresentation of the fact. According to trial records, construction site managers testified that after the conclusion of the collective agreement, activities such as “regular worker-employer consultations on problems at the work site, prevention of industrial accidents, monthly safety education” took place. The activities of the Daejon regional construction union have been selected as a model-case of industrial accident prevention. The Kyonggi Subu union has, through direct vote by its members and collective bargaining, obtained two days off a month. The Kyonggido union has formed a total of 60 industrial safety and health committees at its construction sites from 2002 to 2006, and 300 workers have been elected as members to these committees which meet every one to three months to discuss and implement projects for industrial accident prevention. This union has also raised wages for its members, and has been active in improving their working conditions. Regional unions in general have been active at the construction sites, in areas ranging from installing bathrooms and checking safety measures, to managing employment insurance for members. All the above activities have been reported in the press.
    • (v) With regard to the Government’s statement that sit-ins took place at building sites where payments were refused, the BWI indicates that this is a misrepresentation of trade union activities by equating refusal to make money payments to refusal to implement the provisions of a collective agreement. The sit-ins were due to a failure of the employers to implement the contents of a collective agreement which aimed to ensure adherence to labour laws.
    • (vi) With regard to the Government’s statement that those companies that refused payments would face false complaints regarding safety helmets for which the union has been punished on libel charges, the BWI indicates that in sites where a collective agreement was concluded there was a willingness to work together with the union to address safety and health issues, and therefore the union reacted to violations of the law by first requesting redress at the company level and then filing a complaint if the request was not met; however, when the company refuses to negotiate a collective agreement, this is tantamount to not recognizing the union; requests for changes go unanswered, and therefore the only option is to file a complaint. The Government’s report does not describe the problems on the ground (lack of basic protective equipment such a safety helmets and boots, high levels of industrial accidents) and has given the impression that the unionists were filing complaints for their own irresponsible acts. Also, the Ministry of Labour, based on fabricated documents from employers, has recklessly issued no-fault decisions to companies that have faced complaints on OSH violations. This has resulted in an abnormally high number of industrial accidents due to the absence of basic safety measures: 3,000 workers die from industrial accidents a year in the Republic of Korea, while only ten employers have been arrested. The Ministry needs to present proof that the unions have filed false complaints, since the union has not been found guilty of libel charges. The Choongnam union still faces this charge but the trial is underway. Even in this case the Ministry of Labour confirmed that the industrial safety law had been violated.
    • (vii) With regard to the Government’s statement that wages were received by union officials in their personal accounts and used for personal purposes, the BWI indicates that this constitutes an insult to the activists who have engaged in organizing and collective bargaining over the years, receiving only US$500–1,000 a month in order to improve working conditions at construction sites and measures will be taken to counter such insults (Note: The minimum wage is approximately US$3.8 per hour). The issue of the use of wages has already been cleared by the domestic courts. Wiring wages for union officials to personal accounts was due to the fact that site managers would refuse to send the money to the union account. Regardless of the account, the wages were managed by the union and this has been confirmed in court decisions. The Ministry of Labour needs to provide exact proof of the assertion that “about half of the wages were used for personal purposes, unrelated to union activities, and the other half was shared among union officials and used at their discretion, not for the union”.
46. 739. The Committee also notes that according to the BWI, the Daegu High Court found on appeal that Cho Ki Hyun, former President of the Daegu/Kyungbuk regional construction union and three other union members were not guilty of extortion or blackmail and bribery and that furthermore, it is legitimate to report illegal actions by the principal contractors, like occupational safety and health violations, if these endanger the workers; the making of such reports falls within the scope of ordinary trade union activities and does not constitute coercion or extortion even if it takes place during the collective bargaining process. The Court also confirmed the first instance decision that the principal contractor should be recognized as a party to negotiations because it controls the issues of compensation, safety and health industrial accident insurance, pension contributions etc. at the worksite, and that full-time union officials do not have to be employees of the contractor and may receive wages as trade union officials if this is agreed between the parties. The BWI adds however, that trials are ongoing with regard to the Kyunggi Subu and Chunan regional construction unions. In respect of the latter, the BWI indicates that although the Committee’s recommendations were submitted to the courts, and the collective agreements and payment of wages for union officials were recognized as lawful, the officials have still been found guilty of extortion.
47. 740. Furthermore, the BWI indicates that the Government has continued to arrest trade union officials of Kyonggi, Chungnam and Daegu/Kyungbuk regional construction unions, arresting in total 18 trade unionists; several union officers from the Daegu/Kyungbuk, Kyonggi and Chungnam construction unions were undergoing trials. As a result of these attacks on the trade unions, their activities have been seriously impaired.
48. 741. The Committee notes that according to the Government, the current status of the court cases involving construction workers’ unions is as follows:
    • – The members and officials of the Daegu Construction Workers’ Union who were initially found not guilty by the first and second instance courts (the Committee understands that they were found not guilty of the charges of extortion while they were convicted for obstruction of business to three years’ imprisonment), had their not guilty verdict reversed by the third-instance court. Their case was remanded to the second instance court which convicted them to eight months’ imprisonment with two years of probation. Their case is pending before the third-instance court.
    • – The members and officials of the Daejeon/Chungcheong Construction Workers’ Union were sentenced at the final instance to ten months’ imprisonment with two years of probation.
    • – The members and officials of the Cheonan/Asan Construction Workers’ Union were sentenced at the final instance to one-and-a-half years in prison with two years of probation.
    • – The members and officials of the Western Gyeonggi Construction Workers’ Union were sentenced to one-and-a-half years in prison with two years of probation at the final instance.
49. 742. The Committee notes that the Government attaches to its report the court decisions concerning the construction trade unions in Daejeon/Chungcheong, Cheonan/Asan, Western Gyeonggi and Daegu. The Committee notes from these court decisions that all the trade union officers in question have been convicted of extortion, blackmail and related crimes, because they put pressure on employers/contractors to conclude collective agreements by threatening to denounce to the authorities occupational safety and health violations at the worksite; the collective agreements in question contained clauses on the payment of trade union wages over which there is no legal obligation to agree. The Courts accepted that these acts could be part of trade union activities, that they were carried out in the framework of efforts to conclude collective agreements, that there was probably no criminal motivation and that the extortion was not “habitual”. The courts also accepted that the payment of trade union wages was not carried out in seeking the individual interest of the officials, but rather, in the interests of the trade union. The amounts paid ranged from US$200 to US$1,000. In the case of the Daegu Construction Workers’ Union for instance, the court of first instance convicted the defendants for being paid about US$200,000 from 37 companies, which according to the annex to the case, corresponded to payments of about US$200–700 under collective agreements (the minimum wage in the Republic of Korea is approxrimately US$3.8 per hour). The Court found this to constitute a “severe” crime. Even though the court of second instance reversed this decision, ruling that these activities were ordinary trade union activities and did not constitute extortion, the court of third instance ruled that the second instance court had misunderstood the concept of legitimate trade union activities and reverted to the decision of the first instance court. Thus, all the trade union officials in question were sentenced to prison sentences ranging from six months to three years with periods of probation of up to four years. The Committee notes that according to the Government, their case is pending at the final instance.
50. 743. In these conditions, the Committee reiterates its deep concern noted in its previous examination of this case that the exercise by the KFCITU of legitimate trade union activities in the defence of construction site workers, including through collective bargaining, has been perceived as criminal activity and given rise to the institution of a massive investigation and police intervention. Again the Committee considers that it is a legitimate trade union activity to request that OSH practices at the workplace be included in a collective agreement, and if not, the matter will be reported to the competent authorities. As regards to the payment of money by the main contractor as “activity payment” to full-time unionists under the collective agreement, the Committee had observed that this payment was found by the courts to be carried out for organizational purposes and not for the personal use of the accused trade union officials. The Committee remains deeply concerned that such payment should be considered to be a criminal act. The Committee had observed the acts carried out by the KFCITU officials, with the financial support of the IFBWW, appeared to be regular union activities in conformity with basic notions of freedom of association and in the pursuit of the legitimate trade union objective of ensuring the representation and defence of the occupational interests of a particularly vulnerable category of workers in the building industry. These activities had met with considerable success (signature of collective agreements, reduction of occupational accidents, increase in trade union membership, etc.), before the intervention of the police and the prosecution prevented it from having any further effect [see 340th Report, paras 774–777]. The Committee also recalls from Cases Nos 2602 and 2620 concerning the Republic of Korea, that various additional categories of vulnerable workers, i.e. migrants and subcontracted workers, also face obstacles in their efforts to organize and engage in collective bargaining.
51. 744. The Committee emphasizes once again that the detention of trade union leaders or members for reasons connected with their activities in defence of the interests of workers constitutes a serious interference with civil liberties in general and with trade union rights in particular [Digest, op. cit., para. 64]. The arrest of trade unionists may create an atmosphere of intimidation and fear prejudicial to the normal development of trade union activities [Digest, op. cit., para. 67]. This intimidating effect is likely to be even stronger in the case of precarious, and therefore particularly vulnerable, workers who had just recently exercised their right to organize and bargain collectively. The Committee recalls that while persons engaged in trade union activities or holding trade union office cannot claim immunity in respect of the ordinary criminal law, trade union activities should not in themselves be used by the public authorities as a pretext for the arbitrary arrest or detention of trade unionists [Digest, op. cit., para. 72].
52. 745. The Committee requests the Government to take all necessary measures for the effective recognition of the right to organize of vulnerable “daily” workers in the construction sector, notably by refraining from any further acts of interference in the activities of KCFITU affiliates representing such workers, to keep it informed of the outcome of proceedings pending at the final instance with regard to the Daegu Construction Workers’ Union and to review the convictions of the members and officials on grounds of extortion, blackmail and related crimes, for what appears to be ordinary trade union activities. The Committee requests to be kept informed of developments in this respect.
53. 746. Noting moreover that the Government has provided no substantive information in reply to the Committee’s previous request for measures to promote collective bargaining between construction sector employers and trade unions, in particular with regard to the terms and conditions of employment of vulnerable “daily” workers, the Committee once again requests the Government to undertake further efforts for the promotion of free and voluntary collective bargaining over terms and conditions of employment in the construction sector covering, in particular, the vulnerable “daily” workers. In particular, the Committee requests the Government to provide support to construction sector employers and trade unions with a view to building negotiating capacity and reminds the Government that it may avail itself of the technical assistance of the Office in this regard if it so wishes. The Committee requests to be kept informed of developments in this respect.
54. 747. With regard to the Committee’s previous request for details on the circumstances which gave rise to the presence of the police force in close proximity to the room where minimum wage negotiations were taking place in June 2005, the Committee notes that according to the Government, at around 1.20 p.m. on 28 June 2005, the day before the statutory deadline for closing discussions on the minimum wage, 25 union members, discontented with the discussion process, broke into the room where the Minimum Wage Committee was holding the meeting. They occupied the place and staged an overnight sit-in protest. As a result, the Minimum Wage Committee had to proceed with the meeting on 29 June, the last day of the discussion period. With some union members continuing their sit-in in the corridor in front of the meeting room and over 300 union members holding a rally outside of the building, the Minimum Wage Committee inevitably had to call the police to protect its facilities in case of emergency. The police forces just stood guard in the vicinity of the meeting room, having no influence on the meeting. The Committee takes note of this information and recalls that acts of disruption are inconsistent with and do not engender confidence in an orderly system of industrial relations.
55. 748. With regard to the Committee’s previous statement reminding the Government of its commitment to ratify Conventions Nos 87 and 98 made to the ILO High-Level Tripartite Mission which visited the country in 1998 (see document GB.271/9), the Committee notes the Government’s indication that paragraph 159 of document GB.271/9 reads: “[t]he Committee [on Freedom of Association] notes with interest the willingness expressed by the members of the President-elect’s transition team to ratify ILO Conventions Nos 87 and 98 in the near future”; according to the Government, the formulation made by the Committee in its last examination of this case does not correspond and therefore needs to be modified. The Government further adds that the issue is beyond the Committee’s competence according to paragraphs 13 and 16 of the Procedure for the examination of complaints alleging violations of freedom of association [Digest, op. cit., Annex I, paras 13 and 16]. The Committee recalls that the function of the International Labour Organization in regard to freedom of association and the protection of the individual is to contribute to the effectiveness of the general principles of freedom of association, as one of the primary safeguards of peace and social justice [Digest, op. cit., para. 1]. It was within this spirit that the Committee recalled the Government’s indication of its willingness to ratify Conventions Nos 87 and 98 in the near future which it made to the ILO High-level Tripartite Mission in 1998 and requests the Government to keep it informed of any developments in this respect.