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Effect given to the recommendations of the committee and the Governing Body
Effect given to the recommendations of the committee and the Governing Body- 69. The Committee last examined this case, which has been pending since
its May–June 1996 meeting, at its June 2017 meeting [see 382nd Report, paras 33–96]. On
that occasion, the Committee made the following recommendations:
- (a) to repeal
the legal provisions that prohibited dismissed workers from being trade union
members [382nd Report, para. 42];
- (b) to ensure that the charges against the
teachers who participated in a 27 June 2014 rally against the decertification of the
teachers’ trade union be dropped [382nd Report, para. 43];
- (c) to lift the
ban on wage payment to full-time union officials and the paid time-off system and to
ensure that no one is sanctioned for having entered into an agreement in this regard
and to refrain from requiring the parties to collective agreements that provide for
the payment of wages to full-time union officials to amend their agreement
[382nd Report, para. 47];
- (d) to provide information concerning the outcome
of proceedings against 11 Korean Government Employees’ Union (KGEU) members of the
National Human Rights Commission of Korea (NHRCK), who had been subject to
disciplinary measures in 2011 for having protested the dismissal of the union
chapter’s Vice-President [382nd Report, para. 58];
- (e) to ensure that public
officials’ trade unions have the possibility to express their views publicly on the
economic and social policy questions which have a direct impact on their members’
interests and no longer take disciplinary action against public servants for their
individual support of a political party or expression of views about government
socio-economic policy affecting workers’ interests [382nd Report, para.
60];
- (f) to ensure that the narrow interpretation of the legitimate goals of
strike action – limited to industrial disputes – be set aside so that strike action
can be carried out in relation to all social and economic matters of direct concern
to the workers [382nd Report, para. 90];
- (g) to submit information regarding
the outcome of the administrative suits filed by 11 railway company workers,
dismissed for their participation in December 2013 and February 2014 strikes [382nd
Report, para. 92];
- (h) to take the necessary measures to review section 314
of the Penal Code concerning the offence of “obstruction of business”, so as to
ensure that it does not infringe the right of workers to exercise legitimate trade
union activity [382nd Report, para. 93];
- (i) to order a thorough
investigation of the claims of excessive use of force and damage to property during
the police operation at the headquarters of the Korean Confederation of Trade Unions
(KCTU) on 22 December 2013; to take the necessary steps to hold those responsible
for the violation of the premises of the KCTU to account; and to provide information
on the outcome of the judicial proceedings against KCTU leaders and members indicted
in relation to these events [382nd Report, para. 94];
- (j) to reply to the
allegations concerning the financial threat to the existence of the Korean Railway
Workers’ Union (KRWU) and the intimidating effect of the civil lawsuits brought by
the railway company against the union in relation to the strike actions of December
2009 and 2013 and to provide information on the outcome of the judicial proceedings
[382nd Report, para. 95], and;
- (k) to provide full information in relation
to allegations of recourse to threats and measures of compulsion to force the union
to accept the employers’ proposed revision of the collective bargaining agreement
between the railway company and the KRWU in 2014 [382nd Report, para.
96].
- 70. The Korean Teachers and Education Workers Union (JeonGyojo, KTU) and
Education International (EI) submitted follow-up information and additional allegations
in a communication dated 19 February 2020. In their communication, the KTU and EI refer
to the continued decertification of the KTU on the grounds that the union had allowed
nine dismissed teachers to maintain their membership. They allege that following
decertification, the Government cancelled the positions of 72 full-time union officials
and ordered them to return to their school positions. Thirty-four union officials
refused to return to their schools, were finally dismissed in 2016 and remained
dismissed at the time of the communication. The KTU and EI further allege that after
outlawing the union, the Government severely limited teachers’ freedom of expression by
taking disciplinary measures and charging teachers, measures that were also upheld by
the Supreme Court.
- 71. The Government sent its observations in communications dated 17
September 2020 and 28 January 2021. In its September 2020 communication, the Government
indicates that in its examination of the case filed by the KTU demanding the revocation
of the Government notification of its decertification, the Supreme Court of Korea
declared on 3 September 2020, that the provision of the enforcement decree which
regulated the notification of invalid unions was unconstitutional, and therefore null
and void and sent the case back to the lower court. The Government indicates that
following this Supreme Court ruling, it immediately revoked its notification and the KTU
regained its status as a trade union.
- 72. In its January 2021 communication, the Government indicates that
amendment bills of the Trade Union and Labour Relations Adjustment Act (TULRAA), the Act
on the Establishment and Operation of Public Officials’ Trade Unions (AEOPOT), and the
Act on Establishment and Operation of Trade Unions for Teachers (AEOTUT) were adopted by
the National Assembly on 9 December 2020. The Government indicates that these amendments
included the repealing of section 2.4(d) of the TULRAA, section 6(3) of the AEOPOT and
section 2 of the AEOTUT which limited the union membership of the dismissed workers in
private and public sectors, thereby allowing the unions to freely determine this matter
in their by-laws. Furthermore, the Government indicates that the amended version of
section 23 of the TULRAA, concerning election of union officers, expanded union autonomy
by providing that the eligibility of officers shall be determined by the union by-laws.
However, the amended law limits this autonomy by providing that in enterprise-level
unions, union officers shall be elected among persons employed at the enterprise
concerned. The Government indicates that this condition resulted from the process of
social dialogue and the reasoning behind it was that election of persons unfamiliar with
the circumstances of an enterprise may negatively impact the bargaining procedure and
industrial actions there. Concerning the public sector, the Government refers to
amendments to section 6(1) of AEOPOT and the insertion of section 4.2 of the AEOTUT,
pursuant to which the restriction on the grade of public officials to join a union is
removed, and union membership eligibility is extended to firefighters, educational
officers including research assistants and retired public officials and teachers.
- 73. Finally, the Government indicates that section 24.2 of the TULRAA
prohibiting salary payment to full-time union officers was repealed. However, the
amended law maintains the time-off system, providing that the worker remunerated by the
employer may engage in union affairs within the maximum time-off limit and provision of
wage exceeding this limit would be an unfair labour practice. The Government concludes
its observations concerning legislative reforms by indicating that it is working on
improving lower statutes of the TULRAA, AEOPOT and AEOTUT and plans to publish related
public relations and reference materials.
- 74. The Committee notes that on 21 April 2021, the Government of the
Republic of Korea ratified the Freedom of Association and Protection of the Right to
Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining
Convention, 1949 (No. 98).
- 75. The Committee further notes that, in their communication dated 15
June 2022 concerning Case No. 3430, the Korean Public Service and Transport Workers’
Union (KPTU), the KCTU and Public Service International (PSI) alleged that the
Government had yet to comply with the CFA’s recommendations in the present case
regarding restrictions imposed on collective actions by workers in essential public
services and the Committee indicated that it would examine this matter within the
framework of this case. The complainant organizations state that section 43 of the
TULRAA allows employers of “essential public service businesses” to substitute up to
50 per cent of workers on strike with temporary workers drawn from outside sources,
while section 71(2) of the same act, provides a too broad list of such services,
including urban subway, air transportation, water, electricity, petroleum refinery and
supply, hospitals, blood supply, Bank of Korea and telecommunications businesses. The
Government replied in a communication dated 3 February 2023, indicating that it had
introduced essential businesses in public service since 2008, after abolishing the
compulsory arbitration system, so as to ensure that the exercise of the right to strike
could be reconciled with the protection of public interest based on tripartite
agreements. The Government considers that the scope of essential public services defined
under the Republic of Korea’s circumstances and context, taking into account the impact
of the strike on people’s lives and the economy does not go beyond ILO standards.
Furthermore, the Government indicates that it allows the substitution of manpower only
within certain limits during the period of industrial action in businesses where
suspension can significantly jeopardize people’s daily lives and hinder the national
economy, with a view to reconciling the protection of the right to strike with the
employer’s freedom of work. Whether a business is an essential public service business
is decided after comprehensive consideration of its size, replaceability in the market
and other characteristics. The Government emphasizes that the essential public service
business system is applied only in exceptional cases considering the impact of the
strike in the business. Furthermore, opinions of workers and management were reflected
in drawing up the list of essential public services.
- 76. The Committee notes the information submitted by the KTU and EI and
the Government observations. It notes that these communications address certain
legislative issues that have been the object of its recommendations under the present
case. The Committee notes with interest that the legislative reforms described by the
Government have given effect to several of its long-standing recommendations in the
present case, notably by repealing the legal provisions that excluded dismissed workers
from union membership and the lifting of the ban on wage payment to full-time union
officials and the paid time-off system. The Committee nevertheless notes that certain
other legislative aspects of the case, such as the narrow interpretation of the
legitimate goals of strike action, application of section 314 of the Penal Code
concerning the offence of “obstruction of business” to strike actions and the
authorization of hiring of workers during strike in the “essential public-service
businesses” and the broadness of the list of the latter remain unaddressed. In view of
the ratification on 21 April 2021 of the Freedom of Association and Protection of the
Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective
Bargaining Convention, 1949 (No. 98), by the Government of the Republic of Korea, the
Committee recalls its previous recommendations in this respect and refers all these
legislative aspects to the Committee of Experts on the Application of Conventions and
Recommendations.
- 77. The Committee welcomes the restoration of the trade union status of
the KTU following the Supreme Court decision of 3 September 2020, and trusts that the
charges against the teachers who participated in a 27 June 2014 rally against the
decertification of the teachers’ trade union were dropped in view of this restoration.
It also firmly hopes that the Government would refrain from restraining the freedom of
expression of KTU and KGEU members through imposition of disciplinary measures against
them. Regarding the more specific issue of the relationship between freedom of
association and freedom of expression, the Committee recalls that in the present case it
has several times requested the Government to ensure that public officials’ trade unions
have the possibility to express their views publicly on the economic and social policy
questions which have a direct impact on their members’ interests, in reply to which the
Government has referred to the duty of neutrality of public officials laid down in the
State Public Officials Acts (SPOA). In view of the ratification of Convention No. 87 by
the Republic of Korea, the Committee refers this aspect of the present case to the
Committee of Experts.
- 78. Regarding the alleged violations of freedom of association in
relation to the railway company strikes of 2009, 2013 and 2014 and their aftermath,
including the claims of dismissal of striking workers, civil lawsuits against the
railway company union (KRWU), excessive use of police force during the search operations
at the KCTU headquarters, and alleged threats and measures of compulsion regarding the
revision of the collective bargaining agreement at the company in 2014, the Committee
notes that neither the complainants nor the Government have communicated any further
information since the last examination of the present case. The Committee firmly hopes
that these issues have been resolved in line with its previous conclusions and
recommendations.
- 79. In view of the foregoing considerations, the Committee considers this
case closed and will not pursue its examination.
Status of cases in follow-up
Status of cases in follow-up- 80. Finally, the Committee requests the Governments and/or complainants
concerned to keep it informed of any developments relating to the following 51
cases.
| Case
No. | Last examination on the merits | Last follow-up examination |
| 2096
(Pakistan) | March 2004 | October
2020 |
| 2603 (Argentina) | November 2008 | November 2012 |
| 2715 (Democratic Republic of the Congo) | November
2011 | June 2014 |
| 2756
(Mali) | March 2011 | March
2023 |
| 2797 (Democratic Republic of the
Congo) | March 2014 | – |
| 2807 (Islamic Republic of Iran) | March
2014 | June 2019 |
| 2871 (El
Salvador) | June 2014 | June
2015 |
| 2889 (Pakistan) | March
2016 | October 2020 |
| 2925
(Democratic Republic of the Congo) | March 2013 | March 2014 |
| 2982 (Peru) | March 2014 | June 2023 |
| 3011 (Türkiye) | June 2014 | November 2015 |
| 3018 (Pakistan) | June 2023 | – |
| 3046
(Argentina) | November 2015 | – |
| 3054 (El Salvador) | June
2015 | – |
| 3076
(Maldives) | November 2022 | – |
| 3078 (Argentina) | March
2018 | – |
| 3098 (Türkiye) | June 2016 | November 2017 |
| 3100 (India) | March 2016 | – |
| 3167 (El Salvador) | November 2017 | – |
| 3180
(Thailand) | March 2017 | March
2021 |
| 3182 (Romania) | November
2016 | – |
| 3202 (Liberia) | March 2018 | – |
| 3248
(Argentina) | October 2018 | – |
| 3251 (Guatemala) | November
2022 | – |
| 3257
(Argentina) | October 2018 | – |
| 3275 (Madagascar) | June
2023 | – |
| 3285 (Plurinational
State of Bolivia) | March 2019 | – |
| 3288 (Plurinational State of Bolivia) | March 2019 | – |
| 3289
(Pakistan) | June 2018 | October
2020 |
| 3313 (Russian Federation) | November 2021 | – |
| 3314
(Zimbabwe) | October 2019 | November
2022 |
| 3326 (Guatemala) | November 2022 | – |
| 3339
(Zimbabwe) | March 2022 | – |
| 3342 (Peru) | June
2023 | – |
| 3360
(Argentina) | March 2023 | – |
| 3363 (Guatemala) | June
2023 | – |
| 3364 (Dominican
Republic) | March 2022 | – |
| 3369 (India) | November
2022 | – |
| 3375 (Panama) | June 2022 | – |
| 3376
(Sudan) | June 2023 | – |
| 3385 (Bolivarian Republic of Venezuela) | March
2022 | – |
| 3397
(Colombia) | June 2023 | – |
| 3399 (Hungary) | March
2022 | – |
| 3404 (Serbia) | November 2022 | – |
| 3408 (Luxembourg) | November 2022 | – |
| 3412 (Sri Lanka) | June
2022 | – |
| 3415 (Belgium) | November 2022 | – |
| 3420 (Uruguay) | June 2023 | – |
| 3426 (Hungary) | March
2023 | – |
| 3430 (Republic of
Korea) | June 2023 | – |
|
>
- 81. The Committee hopes that these Governments will quickly provide the
information requested.
- 82. In addition, the Committee has received information concerning the
follow-up of Cases Nos 1787 (Colombia), 2362 and 2434 (Colombia), 2528 (Philippines),
2533 (Peru), 2540 (Guatemala), 2583 and 2595 (Colombia), 2637 (Malaysia), 2652
(Philippines), 2656 (Brazil), 2694 (Mexico), 2699 (Uruguay), 2706 (Panama), 2716
(Philippines), 2719 (Colombia), 2723 (Fiji), 2745 (Philippines), 2749 (France), 2751
(Panama), 2753 (Djibouti), 2755 (Ecuador), 2758 (Russian Federation), 2763 (Bolivarian
Republic of Venezuela), 2852 (Colombia), 2882 (Bahrain), 2896 (El Salvador), 2902
(Pakistan), 2924 and 2946 (Colombia), 2948 (Guatemala), 2949 (Eswatini), 2952 (Lebanon),
2954 (Colombia), 2976 (Türkiye), 2979 (Argentina), 2980 (El Salvador), 2985 (El
Salvador), 2987 (Argentina), 2995 (Colombia), 2998 (Peru), 3006 (Bolivarian Republic of
Venezuela), 3010 (Paraguay), 3016 (Bolivarian Republic of Venezuela), 3019 (Paraguay),
3020 (Colombia), 3022 (Thailand), 3024 (Morocco), 3030 (Mali), 3032 (Honduras), 3033
(Peru), 3036 (Bolivarian Republic of Venezuela), 3040 (Guatemala), 3043 (Peru), 3056
(Peru), 3059 (Bolivarian Republic of Venezuela), 3061 (Colombia), 3069 (Peru), 3075
(Argentina), 3095 (Tunisia), 3097 (Colombia), 3102 (Chile), 3103 (Colombia),
3119 (Philippines), 3131 and 3137 (Colombia), 3139 (Guatemala), 3150 (Colombia), 3164
(Thailand), 3170 (Peru), 3171 (Myanmar), 3172 (Bolivarian Republic of Venezuela), 3183
(Burundi), 3188 (Guatemala), 3191 (Chile), 3194 (El Salvador), 3220 (Argentina), 3236
(Philippines), 3240 (Tunisia), 3267 (Peru), 3272 (Argentina), 3278 (Australia), 3279
(Ecuador), 3283 (Kazakhstan), 3286 (Guatemala), 3287 (Honduras), 3316 (Colombia), 3317
(Panama), 3323 (Romania), 3333 (Colombia), 3341 (Ukraine), 3343 (Myanmar), 3347
(Ecuador), 3374 (Bolivarian Republic of Venezuela), 3378 (Ecuador), 3386 (Kyrgyzstan),
3401 (Malaysia), 3407 (Uruguay), 3410 (Türkiye) and 3414 (Malaysia) which it will
examine as swiftly as possible.
Closure of follow-up cases
Closure of follow-up cases- 83. In its November 2018 report (GB.334/INS/10), the Committee informed
the Governing Body that, from that moment onwards, any cases in which it was examining
the follow-up given to its recommendations, for which no information has been received
either from the government or from the complainant for 18 months since the last
examination of the case would be considered closed. At its current session, the
Committee applied this rule to the following case: No. 3319 (Panama).
