Rapport intérimaire - Rapport No. 304, Juin 1996

1. 221. In a communication of 14 December 1995, the Korean Confederation of Trade Unions (KCTU) presented a complaint of violations of freedom of association against the Government of the Republic of Korea. The Korea Automobile Workers' Federation (KAWF) submitted allegations concerning this case in a communication dated 3 January 1996. The International Metalworkers' Federation (IMF), the International Federation of Commercial, Clerical, Professional and Technical Employees (FIET), the International Federation of Chemical, Energy, Mine and General Workers' Union (ICEM), Public Services International (PSI), the International Graphical Federation (IGF), the International Federation of Building and Wood Workers (IFBWW) associated themselves with this complaint in communications dated 11 January, 12 January (three communications), 17 and 19 January 1996 respectively.
2. 222. The Government supplied its initial observations in a communication of 16 April 1996. It provided further observations in a communication dated 22 May 1996.
3. 223. The Republic of Korea has not ratified 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. The complainants' allegations

1. 224. In its communication of 14 December 1995, the Korean Confederation of Trade Unions (KCTU) alleges in a general manner that Korean labour law allows the Government to infringe drastically the right of workers to establish and join organizations of their own choosing without previous authorization. This is amply demonstrated by the following concrete case. The KCTU explains that on 11 November 1995, its Inaugural Congress was held at the auditorium of Yonsei University in Seoul. This Inaugural Congress was attended by 327 delegates representing 428,154 members of 862 company-based unions and by 500 international delegates and national observers. The democratic election of the KCTU's leadership, including its President, Mr. Young-kil Kwon, and the adoption of the union's constitution took place at this Congress. From the night of 11 November 1995 to 2 a.m. the next day, a festival was held at the open-air theatre of Yonsei University to celebrate the inauguration of the KCTU. About 50,000 members attended the festival along with the delegates. The next morning, on 12 November 1995, 50,000 workers marched two hours to Yoido Square near the Parliament building to attend the National Workers' Rally. The establishment of the KCTU was announced to the 70,000 participants at the rally. The workers demanded that the Government stop its repression of the KCTU and resolved to adopt a collective bargaining strategy, to reform Korean society and to strengthen the political power of workers.
2. 225. The KCTU states that, on 23 November 1995, it sought to achieve legal status by submitting its establishment report to the Ministry of Labour in accordance with section 13(1) of the Trade Union Act (TUA). It adds that in the Republic of Korea a trade union cannot exist nor function lawfully unless it is registered. The KCTU contends that it was no coincidence that its President, Mr. Young-kil Kwon, was arrested on the same day by the police. He was charged with violating the "third party intervention" provisions of the TUA (section 12(2)) and the Labour Disputes Adjustment Act (LDAA) (sections 13(2) and 45(2)), for statements he had made during the railway and subway workers' strike in June 1994. At that time, he was co-President of the former Korean Council of Trade Unions and had made several speeches supporting the protesting workers. In the KCTU's view, the legislative prohibition on "third party intervention" constitutes a flagrant violation of freedom of association. Moreover, while Mr. Kwon had been in hiding for nearly 18 months, he had been duly and democratically elected President of the KCTU at its Inaugural Congress. This was widely confirmed by the many foreign trade union guests who attended the Congress. The KCTU asserts that Mr. Kwon is still under detention.
3. 226. The KCTU adds that the next day, on 24 November 1995, the Ministry of Labour returned its establishment report for the following reasons: (i) the objectives of the KCTU overlapped with those of the already existing confederation, the Federation of Korean Trade Unions (FKTU); (ii) except for some registered federations, many KCTU constituent organizations were not established in conformity with the TUA; (iii) many KCTU union officials were not workers as defined and required by the TUA.
4. 227. Moreover, on 26 November 1995, the Ministry of Labour issued a press release in which it stated that the KCTU would be sanctioned if it continued to use the title "trade union". Previously, on 2 November, the Government had seized the KCTU bank account opened at the Hyehwa-Dong Branch of the Kukmin Bank. The Government had claimed that the KCTU's collection of its founding fund from its members was in violation of the Law on Fund-raising. As a result, on 28 November, concerned with the Government's repressive measures, the representatives of the KCTU applied for a meeting with the Labour Minister but this was rejected at once. The Government declared that it would not recognize the KCTU since it was an illegal organization.
5. 228. Thus the KCTU concludes that while it was established in proper and democratic ways, the Government deprived it of the basic rights to be guaranteed to trade unions. This government policy and actions towards the KCTU are a fundamental violation of freedom of association. The denial of the KCTU's lawful existence and activities as a trade union confederation, the prohibition of KCTU's using the name "trade union", the ban on the KCTU's collection of affiliation fees and fund raising, the denial of the KCTU's right to collective bargaining at national level, the arrest of KCTU officers and activists in case of assisting, advising or supporting its member unions, and the exclusion of KCTU from any tripartite consultation structure all constitute flagrant infringements of trade union rights.
6. 229. In a communication of 3 January 1996, the Korea Automobile Workers' Federation (KAWF) makes similar allegations against the Government. In its case, on 4 November 1995, at Shimsan Hall of SungkyunKwan University in Seoul, the KAWF held its Inaugural Congress, attended by 58 delegates representing 54,030 members of 27 company-based unions. The KAWF was duly established by electing its representatives and adopting its constitution democratically. On 5 December 1995, the KAWF submitted its establishment report to the Ministry of Labour. Two days after, on 7 December, the Ministry of Labour returned the KAWF's establishment report with the following two reasons: the KAWF had the same organization objectives as the already existing federation, the Federation of Korean Metalworkers' Trade Unions; the elected President of the KAWF was not qualified to be an officer because he was dismissed from his company. On 19 December, with regard to the returning of the establishment report by the Government, the representatives of KAWF applied for a meeting with the Labour Minister but this was rejected at once. Instead, the representatives of KAWF met with the head of the trade union department of the Ministry of Labour on the same day. Referring to the same reasons and branding the KAWF as an illegal organization, he declared that the Government would not recognize the KAWF.

B. The Government's reply

1. 230. In its communication of 16 April 1996, the Government explains first of all the background for its actions in this case. As regards the return of the establishment report submitted by the KCTU, the Government indicates that according to section 13 of the Trade Union Act (TUA), in order to establish a trade union, the union has to submit an establishment report with its by-laws to the administrative authority. The administrative authority, upon receiving a report of the establishment of a trade union, delivers a certificate of receipt within three days. However, if there is any cause for disqualification as prescribed in the TUA, the administrative authority returns the report. Submissions of union establishment reports are required in order to secure the independence and democracy of union organizations and operations, as well as to protect the rights of registered trade unions.
2. 231. On 23 November 1995, the KCTU submitted the report of its establishment as a national centre comprised of several industrial federations and unit trade unions. The Government returned the report for the following reasons: first, section 3(5) of the TUA stipulates that "when the objectives of an organization overlap with those of an existing union, the organization shall not be recognized as a trade union". The KCTU stands in violation of this stipulation, since its objectives overlap with those of the existing Federation of Korean Trade Unions (FKTU). Secondly, section 13(2) of the TUA provides that a national centre should be established by lawful industrial federations of trade unions or unit trade unions. However, the KCTU does not conform with this provision because a number of non-union organizations were affiliated within as members. These unlawfully affiliated organizations were regional business or enterprise group councils and other unions illegal under the TUA: namely, the National Council of Subway Workers' Union, the Federation of Hyundai Group Trade Union, and the Chunkyojo, which is formed by teachers whose unionization is banned by the Public Service Law. Thirdly, section 3(4) of the TUA stipulates that a trade union shall be organized by workers, and union officials shall be elected from among the members in accordance with section 23(1). However, the KCTU has violated the aforementioned stipulations by electing as its officials Mr. K.H. Yang and five other persons whose dismissals from their respective companies were confirmed by a Supreme Court decision, thus disqualifying them from worker status according to the current laws.
3. 232. With regard to the arrest of Mr. Young-kil Kwon, the Government points out that Mr. Young-kil Kwon had been sought by the police since 28 June 1994 when the court issued an arrest warrant for him on charges of violating the provisions prohibiting third party intervention (sections 13(2) and 45(2) of the Labour Dispute Adjustment Act (LDAA)). Furthermore, he had violated other laws by committing acts such as the obstruction of the general traffic flow (section 185 of the Criminal Law), intrusion on to private premises (section 319(1) of the Criminal Law) and the illegal collection of contributions (sections 3 and 11 of the Law on Prohibiting Collection of Contributions in Cash or in Kind). He was arrested on these charges by the police on 23 November 1995 and indicted on 15 December 1995.
4. 233. The Government then goes on to describe the above violations in detail. First of all, section 12 of the LDAA prohibits strikes by public servants. However, Mr. Kwon provoked railway workers, who were public servants, to go on illegal strikes in June 1994. Furthermore, despite the fact that section 31 of the Act bans all strikes for 15 days from the day a referral is made to the Central Labour Relations Commission for arbitration, Mr. Kwon provoked and instigated the Seoul Subway Workers' Union to go on illegal strikes in June 1994, which was a violation of section 13(2) of the Act prohibiting third party intervention.
5. 234. Concerning the issue of the obstruction of general traffic flow, although Mr. Young-kil Kwon had informed the authorities on 10 October 1995 that his group would "march peacefully using the sidewalk and be guided by the police", on 12 November 1995, from 10.30 to 13.15, he marched with 10,000 workers and students for approximately 6 km from Yonsei University to Yoido Square. They occupied roadways to hold sit-ins and marches, and thus blocked the traffic flow of the entire section of the street where they marched. These actions were violations of section 185 (Obstruction of General Traffic Flow) of the Criminal Law.
6. 235. With regard to the issue of intrusion on to private premises, Mr. Young-kil Kwon had requested permission from Yonsei University to use its facilities for rallies. The University notified him of its refusal and requested the police to protect its facilities. However, Mr. Kwon forcibly broke into the Yonsei University (on 11 November 1995), together with workers and students. These acts were violations of section 319(1) of the Criminal Law (Intrusion on to Private Premises).
7. 236. The Government then explains that when an organization wants to collect contributions in cash or in kind from the general public (non-members of the organization), it must obtain the approval of the competent authorities (section 3 of the Law on Prohibiting Collection of Contributions in Cash or in Kind). Disregarding this regulation, Mr. Kwon placed an advertisement for the collection of contributions in a daily newspaper on 13 October 1995 and received contributions from three persons who were not members of the KCTU, thus violating section 3 of the above Law.
8. 237. With regard to the prohibition on the KCTU from using the title "trade union", the Government points out that as the KCTU is not legally recognized as a trade union, it is prohibited from using the title "trade union" and exercising the right of collective bargaining. It is also excluded from tripartite consultations. As regards the situation of Mr. Kwon, he was arrested on 23 November 1995 by police who had obtained an arrest warrant from the court under relevant law and procedures. However, on 13 March 1996, Mr. Kwon was released on bail immediately after a decision was made by the court.
9. 238. The Government indicates that although the issue of revising current labour laws is under deliberation, the administration can only abide by the current labour laws until the revision takes place. The Labour Laws Review Committee which consists of 18 members from academia, labour and management, has been studying the revision of the labour laws. However, due to a sharp difference in opinions among committee members, a conclusion has not yet been drawn on the labour law revisions, and active discussions on major issues are still under way.
10. 239. Comparing the positions of labour and management on the issue of labour law revisions, union groups have demanded amendments to the laws on collective industrial relations, opposing the amendment of the Labour Standards Act, while management demands amendments to the Labour Standards Act, opposing amendment of the laws on collective industrial relations. Neither side has made moves to compromise. Therefore, the Government concluded that both sides needed to understand each other and to build a consensus through dialogue on issues of labour law reform, and thus organized six sessions of open nationwide forums on these issues to take place between October and December 1995. As a result, national consensus on building new paradigms of industrial relations, which is a necessary prerequisite for labour law reforms, has been broadened.
11. 240. In Korea, as the civilian democratic Government has pursued democratization through changes and reforms since its inauguration, common understanding is now being reached on a broad spectrum of issues regarding the fundamental necessity of institutional reform in industrial relations. However, there still remain considerably large differences of opinion between labour and management organizations, and even between labour organizations. The Government adds that to achieve desirable reforms in industrial relations and working conditions, interest groups must abandon their self-serving objectives. Instead, they should be willing to concede and compromise to realize the common good of the industrial society as a whole. The Government concludes by stating that another prerequisite for reform is a readiness to accept and overcome the ramifications of reform measures. Following the experiences of a decade of labour conflicts and difficulties which began in 1987, the Government affirms that the people, labour management groups and the Government itself will exert their utmost efforts to realize the fundamental issues underlying reforms. It indicates that it will implement necessary follow-up measures to improve and develop the system of industrial relations and practices in order to achieve full compliance with international labour standards, including ILO Conventions.
12. 241. Finally, in its most recent communication, the Government points out that in the presence of some 220 representatives from Korea's labour forces, managerial ranks and academia invited to the Presidential Office on 24 April 1996, President Kim Young-Sam announced his "Presidential Vision for New Industrial Relations" to establish a commission to forge the reform of industrial relations. In accordance with this, "the Presidential Commission on Industrial Relations Reform (PCIR)" was established on 9 May 1996. The PCIR is composed of 30 members representing labour, management, academia, the press and other civil societies. The Commission will begin by examining and evaluating Korea's current attitudes and institutional practices in order to gauge public opinion regarding industrial relations. Then, the PCIR will build a nationwide consensus concerning its reform. Based on its findings through public surveys and polls, the PCIR will submit to the President a report on improving its labour laws and system. The Government will then initiate a revision of current labour laws on the basis of this report. The PCIR will remain active until February 1998, (even after the revision of labour laws is completed), in order to cultivate and nurture new practices and attitudes toward industrial relations among the general public. The Commission will continue to further its efforts for this new labour-management culture to deeply ingrain itself within Korean society.

C. The Committee's conclusions

1. 242. The Committee notes that the allegations in this case concern the arrest and detention of a trade union official as well as the refusal by the Government to register a trade union confederation and a federation outside the existing structure.
2. 243. As regards the arrest of Mr. Young-kil Kwon on 23 November 1995 and his subsequent detention, the Committee notes that the Government does not refute this allegation, but justifies it on various grounds and adds that he was released on 13 March 1996. First of all, the Government indicates that Mr. Kwon had been sought by the police since 28 June 1994 when an arrest warrant had been issued for him on charges of violating the provisions of the Labour Dispute Adjustment Act (LDAA) prohibiting third party intervention (sections 13(2) and 45(2) of the LDAA). Furthermore, he had violated other laws by obstructing the general traffic flow and intruding on to private premises (sections 185 and 319(1) respectively of the Criminal Law), as well as illegally collecting contributions (sections 3 and 11 of the Law on Prohibiting the Collection of Contributions in Cash or in Kind).
3. 244. As regards the provisions of the LDAA prohibiting third party intervention in the settlement of disputes, the Committee would remind the Government, as it has done on previous occasions in another case concerning the Republic of Korea (286th Report (Case No. 1629), para. 564, and 294th Report (Case No. 1629), para. 259) that such a prohibition constitutes a serious restriction on the free functioning of trade unions. It therefore calls on the Government to take the necessary measures to have the provisions containing this prohibition repealed.
4. 245. The Committee further notes with serious concern the Government's admission that Mr. Young-kil Kwon had been wanted by the police since June 1994 when an arrest warrant had been issued for him for having made several speeches supporting the strike by railway and subway workers. Thus, the violation of the prohibition of third party intervention was in effect used as the principal charge for the arrest and detention of Mr. Kwon on 23 November 1995. In this respect, the Committee recalls that the arrest and detention of trade union leaders for activities in connection with the exercise of their right to organize are contrary to the principles of freedom of association (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 69 and 70). While acknowledging the Government's statement that Mr. Kwon was released on 13 March 1996, the Committee urges the Government to do everything in its power to have the charges against Mr. Kwon dropped. It further urges it to ensure in future that trade union leaders are not arrested and detained for such activities.
5. 246. With regard to the criminal charge of intrusion into private premises (section 319(1) of the Criminal Law), brought against Mr. Kwon for the holding of the Inaugural Congress of the KCTU at the auditorium of Yonsei University on 11 November 1995, the Government contends that the University had refused Mr. Kwon permission to use its facilities for the Congress and had even requested police protection, despite which Mr. Kwon, together with workers and students, forcibly broke into the University's premises. The Committee observes however that the KCTU makes no mention in its complaint of the presence of police or students during its Inaugural Congress; on the other hand, the KCTU emphasizes that the Congress, which went off smoothly, was attended not only by local delegates but also by about 500 international delegates and observers. In view of the differing versions by the KCTU and the Government of the holding of the KCTU Inaugural Congress at Yonsei University, the Committee would draw the attention of both the KCTU and the Government to the principle 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 (see Digest, op. cit., para. 83).
6. 247. The Committee observes that both the KCTU and the Government concur that Mr. Kwon, along with workers and students, marched for about three hours to a square near the Parliament building on 12 November 1995. The Government asserts however, that Mr. Kwon and his group of 10,000 workers and students marched for approximately 6 km from Yonsei University to Yoido Square, occupying roadways to hold sit-ins and blocking traffic flow, thereby violating section 185 of the Criminal Law. The KCTU states that in fact, 50,000 workers participated in this march. In this context, the Committee reminds the KCTU that trade unions must conform to the general provisions applicable to all public meetings and must respect the reasonable limits which may be fixed by the authorities to avoid disturbances in public places (see Digest, op. cit., para. 141). The Committee nevertheless recalls that the right to participate in peaceful marches and to hold sit-ins are legitimate trade union activities.
7. 248. As for the charge brought against Mr. Kwon of illegally collecting contributions, the Committee notes the Government's argument that when an organization wants to collect contributions in cash or in kind from the general public, it must obtain the approval of the competent authorities. By placing an advertisement in a daily newspaper on 13 October 1995 and receiving contributions from three persons who were not members of the KCTU, Mr. Kwon violated section 3 of the Law on Prohibiting the Collection of Contributions in Cash or in Kind. The Committee would however draw the Government's attention to the principle that the right of workers to establish organizations of their own choosing and the right of such organizations to draw up their own constitutions and internal rules and to organize their administration and activities presuppose financial independence. Hence, provisions governing the financial operations of workers' organizations should not be such as to give the public authorities discretionary powers over them (see Digest, op. cit., paras. 428 and 430). However, in view of the fact that section 3 of the above-mentioned Law does require prior authorization from the public authorities, thereby granting them discretionary powers with respect to financial contributions from non-members of trade union organizations, the Committee requests the Government to take appropriate measures to repeal this provision in order to ensure that unions enjoy financial independence.
8. 249. As regards the refusal by the Ministry of Labour to register the KCTU, the Committee observes that three reasons were put forward by the Ministry for returning the KCTU's establishment report on 24 November 1995. First, the objectives of the KCTU overlapped with those of the already existing confederation, the Federation of Korean Trade Unions (FKTU). This was a violation of section 3(5) of the Trade Union Act (TUA) which stipulates that "when the objectives of an organization overlap with those of an existing union, the organization shall not be recognized as a trade union". The Committee notes that this rule also applies to the registration of federations and confederations. In this respect, the Committee would draw the Government's attention to the principle that a provision authorizing the refusal of an application for registration if another union, already registered, is considered to be sufficiently representative of the interests which the union seeking registration proposes to defend, means that, in certain cases, workers may be denied the right to join the organization of their own choosing, contrary to the principles of freedom of association (Digest, op. cit., para. 297). The Committee therefore requests the Government to take the necessary steps to ensure that section 3(5) of the TUA is amended so as to enable workers to establish and join the organization of their own choosing without any restriction.
9. 250. The Government indicates that the second reason for refusing to register the KCTU was that a number of non-union organizations were affiliated to the KCTU as members. This was in violation of section 13(2) of the TUA which provides that a national centre should be established by lawful industrial federations of trade unions or unit trade unions. The KCTU's member organizations, however, were regional business or enterprise group councils and other unions illegally established under the TUA: namely, the National Council of Subway Workers' Union; the Federation of Hyundai Group Trade Union, and the Chunkyojo, which is formed by teachers whose unionization is banned by the Public Service Law. As regards the Korean Teachers' and Educational Workers' Union (CHUNKYOJO), the Committee would emphasize that it had already concluded in Case No. 1629 that the setting up of CHUNKYOJO was a legitimate exercise of the teachers' right to organize and had called upon the Government to take the necessary measures to enable private and public schoolteachers to exercise freely the right to organize (see 286th Report, paras. 562, 563 and 569; 291st Report, para. 419; 294th Report, para. 271). The Committee reiterates its conclusions here and would remind the Government once again in this respect that while organizations should respect the law of the land, the law should respect freedom of association principles. As for the National Council of Subway Workers' Union and the Federation of Hyundai Group Trade Union, the Committee sees no reason why these two organizations are not considered to be legally established unions under Korean labour laws. It would therefore request the Government to take appropriate steps to ensure that they are granted registration so as to enable them to exercise legitimate trade union activities.
10. 251. According to the Government, the third reason for which the KCTU was refused registration was that it violated section 23(1) of the TUA (which stipulates that union officials shall be elected from among the union members), by electing as its officials Mr. K.H. Yang and five other persons whose dismissals from their respective companies were confirmed by a Supreme Court decision, thus disqualifying them from worker status according to the current laws. As regards the right to hold trade union office, the Committee would draw the Government's attention to the general principle that the right of workers' organizations to elect their own representatives freely is an indispensable condition for them to be able to act in full freedom and to promote effectively the interests of their members. For this right to be fully acknowledged, it is essential that the public authorities refrain from any intervention which might impair the exercise of this right, whether it be in determining conditions of eligibility of leaders or in the conduct of the elections themselves. More specifically, given that workers' organizations are entitled to elect their representatives in full freedom, the dismissal of a trade union leader, or simply the fact that he leaves the work which he was carrying out in a given undertaking, should not affect his trade union status or functions unless stipulated otherwise by the constitution of the trade union in question (see Digest, op. cit., paras. 353 and 373). The Committee would therefore request the Government to take steps to amend section 23(1) of the TUA in line with the above-mentioned principles.
11. 252. As a result, the Committee feels bound to conclude that the Government's arguments for not registering the KCTU because it violated national laws are not persuasive since these laws are not in conformity with the principles of freedom of association, as illustrated in the three previous paragraphs. Consequently, the Committee would request the Government to take appropriate steps so that the KCTU is registered as a trade union confederation to enable it to exercise legitimate trade union activities, including the right of collective bargaining and participation in tripartite consultations. The Committee notes that according to the second complainant, the Korean Automobile Workers' Federation (KAWF) was refused registration for similar reasons: the KAWF has the same organizational objectives as an already existing federation, the Federation of Korean Metalworkers' Trade Unions; and the elected President of the KAWF was disqualified from trade union office under current laws because he was dismissed from his company. In view of the fact that the Government refused the KAWF registration on the basis of the same laws that were applied to the KCTU and which were in violation of freedom of association principles, the Committee considers that the conclusions that it enunciated vis-à-vis the KCTU apply, by analogy, to the KAWF. The Committee would therefore additionally request the Government to take appropriate steps so that the KAWF is registered as a trade union federation to enable it to exercise legitimate trade union activities.
12. 253. Finally, the Committee notes the Government's statement that the Labour Laws Review Committee as well as the recently established Presidential Commission on Industrial Relations Reform (PCIR) are studying the revision of current labour laws. In view of the fact that the Labour Laws Review Committee was set up on 24 April 1992 to examine all problems arising from labour-related laws (286th Report, para. 532), the Committee urges the Government to ensure that these proposed amendments to labour-related legislation are no longer delayed. It trusts that these amendments will be in line with freedom of association principles, including those that have been enunciated in its conclusions.