Suites données aux recommandations du comité et du Conseil d’administration - Rapport No. 374, Mars 2015

Effect given to the recommendations of the Committee and the Governing Body

1. 31. The Committee last examined this case at its March 2012 session [see 363rd Report, paras 438–467], when it made the following recommendations:
   • (a) The Committee requested the Government to keep it informed of the final outcome of the judicial proceedings concerning the case of a worker dismissed from the Hyundai Motor Company (HMC) Ulsan factory and any other concrete developments illustrating the impact of the Supreme Court ruling of 22 July 2010 on the situation of workers in a disguised employment relationship.
   • (b) The Committee once again requested the Government to develop, in consultation with the social partners concerned, appropriate mechanisms, including an agreed process for dialogue determined in advance, aimed at strengthening the protection of subcontracted/agency workers’ rights to freedom of association and collective bargaining, guaranteed to all workers by the Trade Union and Labor Relations Adjustment Act (TULRAA), so as to prevent any abuse of subcontracting as a way to evade in practice the exercise by these workers of their trade union rights; urged the Government to take all necessary measures to promote collective bargaining over the terms and conditions of employment of subcontracted/agency workers in the metal sector, in particular in HMC, KM&I and Hynix/Magnachip, including through building negotiating capacities, so that trade unions of subcontracted/agency workers in these companies may effectively exercise their right to seek to improve the living and working conditions of their members through negotiations in good faith; and to provide a copy of the “Self-compliance Checklist for the Guideline for Subcontracted Workers”.
   • (c) The Committee once again urged the Government to carry out without delay independent investigations into: (i) the dismissals of the subcontracted/agency workers in HMC Ulsan and Jeonju and, if these workers are found to have been dismissed solely on the grounds that they staged industrial action against a “third party”, that is, the principal employer (subcontracting company), to ensure that they are reinstated in their posts without loss of pay as a primary remedy. If the judicial authority determines that reinstatement of trade union members is not possible for objective and compelling reasons, adequate compensation should be awarded to remedy all damages suffered and prevent any repetition of such acts in the future, so as to constitute a sufficiently dissuasive sanction against acts of anti-union discrimination; and (ii) the alleged acts of violence perpetrated by private security guards against trade unionists during rallies at HMC Asan and Ulsan and at Kiryung Electronics and, if they are confirmed, to take all necessary measures to punish those responsible and compensate the victims for any damages suffered. Moreover, following the Supreme Court ruling of 25 June 2009 and the High Court ruling of 8 December 2009, the Committee requested the Government to confirm the reinstatement of the unfairly dismissed workers of HMC Asan Plant.
   • (d) Concerning the allegations of acts of anti-union discrimination and interference at Hynix/Magnachip and at HMC (Ulsan factory and Asan Plant) through the termination of contracts with subcontractors in case of establishment of trade unions of subcontracted workers, the Committee once again urged the Government to take the necessary measures to reinstate the dismissed trade union leaders and members as a primary remedy; if the judicial authority determined that reinstatement was not possible for objective and compelling reasons, adequate compensation should be awarded to remedy all damages suffered and to prevent any repetition of such acts in the future, so as to constitute a sufficiently dissuasive sanction against acts of anti union discrimination.
   • (e) The Committee once again requested the Government to take the necessary measures to: (i) ensure that “self-employed” workers, such as heavy goods vehicle drivers, fully enjoy freedom of association rights, in particular the right to join organizations of their own choosing; (ii) to hold consultations to this end with all the parties involved with the aim of finding a mutually acceptable solution so as to ensure that workers who are self-employed could fully enjoy trade union rights under Conventions Nos 87 and 98 for the purpose of furthering and defending their interest, including by the means of collective bargaining; and (iii) in consultation with the social partners concerned, to identify the particularities of self-employed workers that have a bearing on collective bargaining so as to develop specific collective bargaining mechanisms relevant to self-employed workers, if appropriate. The Committee also requested the Government to take the necessary measures to: (i) ensure that organizations established or joined by heavy goods vehicle drivers have the right to join federations and confederations of their own choosing, subject to the rules of the organizations concerned and without any previous authorization; and (ii) withdraw the recommendation made to the Korean Construction Workers’ Union (KCWU) and the Korean Transport Workers’ Union (KTWU) to exclude owner drivers from their membership, and refrain from any measures against these federations, including under article 9(2) of the Enforcement Decree of the TULRAA, which would deprive trade union members of being represented by their respective unions. The Committee requested to be kept informed of all measures taken or envisaged in this respect.
   • (f) The Committee requested the Government to take the necessary measures, in consultation with the social partners, to amend the provisions of the TULRAA and its Enforcement Decree, so as to ensure that workers’ organizations are not liable to dissolution or suspension by an administrative authority or at least that such an administrative decision is subject to appeal to a judicial authority with suspensive effect. It requested the Government to keep it informed in this respect.
   • (g) Expressing once again great concern at the excessively broad legal definition of “obstruction of business” encompassing practically all activities related to strikes, the Committee once again urged the Government to take all necessary measures without delay so as to bring article 314 of the Penal Code “obstruction of business” into line with freedom of association principles, and to keep it informed in this regard; and expected that the Government and the judicial authorities would put in place adequate safeguards so as to avert in future the possible risks of abuse of judicial procedure on grounds of “obstruction of business” with the aim of intimidating workers and trade unionists, and that the courts in their rulings would take due account of the need to build a constructive industrial relations climate in the context of individual industrial relations.
   • (h) The Committee expected that the above recommendations would be implemented without further delay; urged the Government to keep it informed in this respect; and reminded the Government that it may avail itself of the technical assistance of the Office to this end.
2. 32. In a communication dated 30 January 2013, the Government provided further information. In relation to the information previously provided by the Government that some companies were able to refuse inspection, the Government indicated further that labour inspections at HMC factories failed to take place as the HMC trade union and in-company subcontractors’ unions blocked the labour inspector’s on-site inspection. The Government states that, in principle, it is in a position that it can conduct inspections on in-company subcontracting when necessary.
3. 33. The Government further indicates that, in a separate case, the Korean Metal Workers’ Union (KMWU) and HMC in-company subcontractors’ unions etc., have brought a charge against 147 HMC executives and in-company subcontractors over illegal dispatch. To this end, the Ministry of Employment and Labor is conducting an investigation under the direction of the Prosecutor’s Office as to whether the HMC in-company subcontracting practices are an illegal form of worker dispatch.
4. 34. In relation to the judicial proceedings concerning the case of a worker dismissed from the HMC Ulsan factory, the Government indicated that, on 23 February 2012, the Supreme Court rejected an appeal by the HMC factory, finding that this was an illegal form of worker dispatch and the HMC was required to directly employ the worker. On 22 November 2012, the HMC management, its in-company subcontractors, their trade unions and the KMWU attended “special negotiations” and the worker was assigned to a permanent position at HMC on 9 January 2013.
5. 35. In relation to the impact of the Supreme Court ruling of 22 July 2010 on the situation of workers in a disguised employment relationship, the Government indicated that it had designed a workplace inspection sheet reflecting the intent of the court decision and that this is used in labour inspections, reinforcing workplace inspections to ensure that in company subcontracting is not operated in an illegal form of worker dispatch.
6. 36. In relation to the Government’s efforts to correct illegal subcontracting and the mechanism to prevent illegal forms of worker dispatch, the Government indicated that the Act on the Protection, etc. of Dispatched Workers (APDW) was partially amended on 1 February 2012, with an enforcement date of 2 August 2012, so that the contracting company was placed under an obligation to directly employ the worker concerned, regardless of the period of employment, in the case of an illegal form of worker dispatch. Previously, the APDW specified that an employer using a dispatched worker for over two years shall directly employ the worker concerned.
7. 37. Further, the Government states that, in 2012, it had conducted inspections on 2,558 workplaces including those that used a large number of in-house subcontractors, cafeteria services, agencies and those suspected of unlicensed worker dispatch. Correction orders were issued to the workplaces found to be illegally subcontracting, resulting in employers directly employing 2,489 of the workers concerned, as at the end of November 2012. The Government states that it plans to enforce strict measures on illegal forms of worker dispatch through continuous workplace inspections.
8. 38. The Government indicates that the “Guidelines for Protection of Subcontracted Workers’ Working Conditions” include provisions specifying that the contracting employer shall respect legitimate trade union activities of subcontracted workers and that the activities shall not be grounds for terminating or refusing to renew a contract with the in-company subcontractor. It also included that the worker representative of the subcontractor shall be granted the opportunity to attend the contracting company’s labour-management committee consultations or meetings to express opinions concerning desirable cooperative measures. The Government is making efforts to disseminate the guidelines through measures such as concluding guideline compliance agreements with 11 large businesses, including Hyundai Heavy Industries, where subcontractors are widely used. The Government attaches a copy of the “Self-compliance Checklist for the Guideline for Subcontracted Workers”, which contains a similar provision concerning the need to respect trade union activities of subcontracted workers and specifying that trade union activities shall not be grounds for terminating or refusing to renew a contract with a subcontractor.
9. 39. In relation to the dismissals of subcontracted/agency workers in HMC Ulsan, the Government took the opportunity to elaborate on the developments in the case as follows. The Government states that the 89 workers dismissed from the HMC Ulsan factory in 2004–2005 filed an application for a remedy for unfair dismissals to the Busan Regional Labor Relations Commission against the HMC and the subcontractors on 23 February 2005. The Commission dismissed the case against the HMC on the grounds that there was no direct employment relationship with the concerned workers; with regard to the subcontractors, the Commission dismissed the applications against the companies that had closed down, and ruled that the dismissals at the other companies were lawful. The Government indicates that those 89 workers filed an application for a retrial to the National Labor Relations Commission (NLRC). On the NLRC’s rejection of the application, 15 of the workers filed a further suit; the Administrative Court and High Court both ruled that the decision of the NLRC was legitimate (on 10 July 2007 and 12 February 2008, respectively). The Government explains that two of the workers filed a lawsuit with the Supreme Court which, on 22 July 2010, ruled that the relation of those workers with the HMC was an illegal dispatch and that one of the two workers who had worked there for more than two years was deemed a worker directly employed by the HMC. The Government states that the case was sent back to the High Court to re-address the unfair dismissal of the workers. Consequently, on 10 February 2011, the High Court quashed the earlier decisions of the NLRC and the Administrative Court. The Supreme Court subsequently dismissed an appeal by the HMC, on 23 February 2012, and the worker concerned was assigned to a permanent position at the HMC on 9 January 2013.
10. 40. In relation to the dismissal of workers at the HMC Jeonju Plant, the Government states that, on an application by the four workers, the NLRC upheld the dismissals on 21 July 2006. The Government indicates that a suit filed by the workers on 28 August 2006, was withdrawn by the workers on 22 March 2007, following the closure in July 2006 of the company for which these four workers had worked. The Government indicates that three of the four workers were hired at another HMC subcontractor in April 2007 and the other worker runs his own business.
11. 41. In relation to the alleged acts of violence by private security guards at HMC Asan and Ulsan and at Kiryung Electronics, the Government stresses that violence should not be tolerated in any circumstances. The Government reiterates that the claim that workers were subjected to violence on the grounds of their union activities was found to be groundless, and labour and management blamed each other for the violence. The Government reasserts that those who commit violence should take legal responsibility, no matter whether they are union members or employers. The Government states that it was difficult to investigate the extent of the violence and the exact happenings, because the violence took place in a situation of escalating hostility between labour and management when violence was prevalent, and this is rendered even more difficult now that over eight years has passed.
12. 42. In relation to the reinstatement of dismissed workers at the HMC Asan Plant, the Government reiterates that two of the dismissed workers were unable to be reinstated as the company for which they had worked had closed down on 1 September 2008. The Government further states that the suspension order for the other worker was cancelled and he was reinstated before the company closed down; the worker continued working at the company that took over until leaving it for another job on 1 December 2009.
13. 43. In relation to the unfair labour practices at Hynix/Magnachip, the Government reiterates that there were continuous efforts for conciliation between labour, management and Government, resulting in Hynix/Magnachip tentatively concluding an agreement on 26 April 2007 including provisions such as the payment of compensation to union members of the subcontractors and supporting the reinstatement of union members. On 4 May 2007, the agreement was approved by labour and management and there has been no particular industrial dispute as of 2012. In the case of unfair labour practices at HMC Ulsan and Asan, the Government referred to its previous comments. The Government states that Korean law prohibits anti-union discrimination and punishes it as unfair labour practice, and the Government follows legal procedures in taking measures on unfair labour practices. The Government considers that it is undesirable to pose problems to the Government for matters that have already been concluded by the Courts or through agreement between labour and management.
14. 44. In relation to the question concerning the “obstruction of business”, the Government indicates that, following the Supreme Court’s decision of 17 March 2011, the case applying “obstruction of business” charges against the Vice-Chairperson of the KMWU, who had led the Ssangyong Motor strike in July 2008, was returned to the High Court on 27 October 2011. The High Court referred to the Supreme Court’s decision, indicating that the strike did not constitute serious confusion or material damage on the operation of the employer’s business given that from among the workplaces that took part in the strike, nine out of 182 workers participated in the partial strike. Therefore, it considered that the circumstances involving these workplaces did not overwhelm the free will and judgement of the employer as to the continuance of business.
15. 45. The Committee notes the detailed information provided by the Government. With respect to its previous recommendation (a), the Committee notes with satisfaction the Government’s indications that the worker dismissed from the HMC Ulsan factory was assigned to a permanent position at the HMC on 9 January 2013, and welcomes the information that labour inspectors utilize a workplace inspection sheet reflecting the intent of the 22 July 2010 Supreme Court ruling. The Committee further welcomes the information provided by the Government that 2,558 workplaces were inspected during 2012 and that it plans to enforce strict measures on illegal forms of worker dispatch through workplace inspections. The Committee requests the Government to provide information on any developments in this regard.
16. 46. The Committee requests the Government to keep it informed of the outcome of the investigation by the Prosecutor’s Office as to whether the HMC subcontracting practices are an illegal form of worker dispatch, and any other developments in this regard.
17. 47. With respect to its previous recommendation (b), the Committee welcomes the inclusion of clauses protecting trade union rights of subcontracted workers in the guidelines and self compliance checklist for protection of working conditions of subcontracted workers, and requests the Government to keep it informed with regard to their impact in practice.
18. 48. In light of these positive efforts, the Committee encourages the Government to review with the social partners concerned what further mechanisms could be developed in order to strengthen the protection of subcontracted/agency workers’ rights to freedom of association and collective bargaining, guaranteed to all workers by the TULRAA and to prevent any abuse of subcontracting as a way to evade in practice the exercise by these workers of their trade union rights.
19. 49. Noting that the Government has not indicated any steps taken to promote collective bargaining for subcontracted and agency workers in the metal sector, which was specifically the subject of the allegations, the Committee once again urges the Government to indicate all necessary measures taken to this end, in particular as regards HMC, KM&I and Hynix/Magnachip, including through building negotiating capacities, so that trade unions of subcontracted/agency workers in these companies may effectively exercise their right to seek to improve the living and working conditions of their members through negotiations in good faith.
20. 50. The Committee welcomes the amendment made to the Act on the Protection of Dispatched Workers and requests the Government to provide a copy of the Act as amended in 2012.
21. 51. Noting that the Government has not indicated any steps taken with respect to its previous recommendation (e), the Committee once again requests the Government to keep it informed of all measures taken to give effect to this recommendation.
22. 52. Noting that the Government has not indicated any measures taken with respect to its previous recommendation (f), the Committee once again requests the Government, in consultation with the social partners, to amend the provisions of the TULRAA and its Enforcement Decree, so as to ensure that workers’ organizations are not liable to dissolution or suspension by an administrative authority or at least that such an administrative decision is subject to appeal to a judicial authority with suspensive effect. It requests the Government to keep it informed in this respect.
23. 53. With respect to its previous recommendation (g) regarding article 314 of the Penal Code, the Committee notes the Government’s information concerning the High Court’s decision in that case, that strike did not constitute serious confusion or material damage on the operation of the employer’s business, and indicates that the broader question of Article 314 is being treated under Case No. 1865.