[asia-apec 267] Government Retreats on Labour Law Reforms
KCTU-International
kctuint at chollian.dacom.co.kr
Mon Dec 9 10:40:59 JST 1996
KOREAN CONFEDERATION OF TRADE UNIONS
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Struggle for Labour Law Reforms
Campaign News XIV
December 4, 1996
Labour Law Retreat, Regress, Regrets
Korean government formally announced its proposal for the
amendment of the labour laws. The proposal was revealed by
Prime Minister Lee, Soo-sung, on December 3, 1996, in a live
television broadcast. Kim Young Sam government aims,
according to this proposal, to legislate broad employer powers
to layoff worker, bring in replacement (scab) labour during a
strike, and order employees to work a maximum of 56 hours a
week without overtime payment. At the same time, the changed
law will continue the current system of compulsory arbitration
for broad range of enterprises while postponing the introduction
of 'union plurality' at the shopfloor level for 5 years. The
proposed amendment also calls for legal codification of a ban
on wage payment for the period of strike and a ban on wage
payment for full-time union officers. The proposal, while paving
the way for the introduction of 'union plurality' at the federation
and confederation levels, introduces new conditions which may,
in effect, prohibit the legal recognition for the Korean
Confederation of Trade Unions and most of its affiliated
industrial federations. Furthermore, the government proposal
calls for the continued ban on the unionisation of government
employees and teachers.
The "reform of labour laws" proposed by the government,
in reality, will have the effect of, on the one hand, critically
undermining the basic freedom and right of collective bargaining
and strike, and on the other, severely worsening the working
conditions and workers' welfare.
Restriction of Association and Collective Bargaining
The government proposal for the "reform of the labour
laws" makes clear what President Kim Young Sam meant
when he called for the establishment of a "new system of
industrial relations". It will be one where unions are powerless
while employers are given unlimited powers over workers.
Legal Recognition for KCTU: New Obstacle
The proposal will pave the way for legal recognition for the
Korean Confederation of Trade Unions and most of its affiliated
federations. These organisations, however, may have to
"dismiss" their current elected officers and forced to seek new
leaders to obtain legal recognition. This is because most of the
leaders, including president Kwon Young-kil and general
secretary Kwon Yong-mok of KCTU, and president Dan
Byung-ho of the Korean Federation of Metalworkers Unions, for
example, are "dismissed workers" who are ineligible for union
membership or office under the to-be-revised law.
The present and revised law does not recognise the
freedom and right of unions and their federations to induct
(elect) leaders of their choice to represent and advance their
interests. The situation is aggravated by the proposed changes
in the eligibility of union membership. Currently a dismissed
worker can maintain his/her union membership until the validity
of the dismissal is decided by the Supreme Court, the highest
court in the land. The proposed amendment, however, limits
people eligible to join a union to persons who have a direct
employment contract with an employer while a dismissed
worker can maintain his/her union membership until the
decision of the appeals hearing by the Central Labour
Commission. As a result, the union membership of a worker
who challenges the dismissal can be terminated within 2 to 3
months.
President Kwon Young-kil's claim to his position in KCTU
may no longer be "legal" as his challenge against the validity
of his dismissal is currently being heard in the appellate court,
having exhausted the administrative relief procedures provided
by the Central Labour Commission. KCTU, hence, may be
barred from legal recognition as long as it maintains that
president Kwon is the rightful leader of the organisation.
Legal Recognition for Teachers Union? NO!
The government "reform" package remains unclear on the
freedom of association for teachers. Nevertheless, one thing is
clear. The new law will not allow right of teachers to form or
join a union. And whatever organisation teachers form will not
be allowed to use the term "(trade/labour) union" in its name
nor affiliate with a trade union federation, such as KCTU.
According to the proposal, the government will revise the
existing "Special Act for Promotion of the Status of Teachers"
to allow for the existence of multiple teachers organisations.
However, this body will only have limited consultation rights
and will be without any right to take collective action. The
government proposal falls far short of the demand for legal
recognition of the Korean Teachers and Educational Workers
Union. The proposal calls, also, for the maintenance of the
current ban on freedom of association for government
employees. This means that some 600,000 white-collar workers,
apart from the manual labourers employed in public services,
will not be allowed to form or join trade unions.
Crippling the Right to Strike
The government proposal introduces new rights of
employers to by-pass the effect of a strike. The proposal calls
for a revision of current law concerning replacement of
striking workers. The current law prohibits hiring of new
employees, deployment of replacement labour, and engagement
of new sub-contracting agreement. The current law, however,
allows for deployment of non-striking workers within the same
company to take over the work of striking workers. However,
with the revision proposed by the government, employers will
be able to deploy worker from the same business concern.
This means that a conglomerate company which has a number
of subsidiaries can deploy workers from any one of its
subsidiaries to replace the striking workers in one of its
subsidiaries. The revised law will also allow hiring new
employees on temporary basis in case of a union shop
company. Worst of all, the amended law will allows employers
to engage new sub-contractors during a strike.
The amendment of labour laws proposed by the
government will also introduce other measures which will
critically restrict the right of collective action.
The proposal calls for a legislative codification of
'no-work no-pay', prohibiting the payment of wages (or other
kinds of payment in lieu of the wage) for the period of a
strike. By codifying such a clause, which can best be left to
collective bargaining, the government is, in effect, aiming to
create a restriction on the right to bargain collectively and the
right of collective action.
The revised labour laws, according to the proposal, will
continue to extend the ban on industrial action to banks,
telecommunication enterprises, and all hospitals, by including
these in the list of "public service enterprises" which are
subject to "compulsory arbitration".
Restriction on Trade Union Activities
Eligibility of Union Membership.
The government proposal will severely restrict the recourse
available to unionists to challenge "unfair" dismissal. Currently,
a dismissed worker can maintain his/her union membership until
the Supreme Court (the highest court of the land) brings down
a verdict on the validity of the dismissal. However, under the
to-be-revised law, dismissed worker can main his/her union
membership only until the decision of the appeals hearing of the
administrative Central Labour Commission. Given the prevalence
of retaliatory dismissals -- aimed at disrupting the normal function
of a union -- against key union leaders, the proposed change will
bring about serious restriction on the trade union activities.
Ban on Wage Payment to Union Officers
Greater restriction on trade union activities can be foreseen
from the proposed ban on payment of wages to full-time
union officers. The proposed amendment will define the
payment of wage to full-time union officers as an "unfair labour
practice". The total ban will come in place in 2002 when
multiple unions will be allowed at the shopfloor level. However,
the revised law will call for a graduated reduction in the total
amount of wage paid out as wage to full-time union officers.
The government explained that no country among the OECD
members allows payment of wage to union officers to justify
the new legislation. The government argument, however,
overlooks the fact that large number of shopfloor-based union
officers in many OECD countries, including Germany, England,
and France, are paid wage. Furthermore, the issue of wage
payment in these countries is not codified in a law but left as
a matter to be decided by a collective bargaining agreement.
The KCTU believes the government proposal reflects an
intention to create difficulties for union operations rather paving
the way for an improved industrial relations. Such a ban will
have severe impact on trade union movement in Korea given
its enterprise-level union system enforced by the law.
Disruption of Union Internal Democracy and Autonomy
Autonomy of union activities will also be impaired due to
the enforcement of the right and power of the union
representative to adopt a collective bargaining
agreement. Under the current law, a representative of a union
is defined to have right and power to engage in negotiation
with the employer for a collective bargaining agreement. This
has allowed unions to adopt a constitution and rules which
enables the union to call a general meeting of the membership
to "ratify" or refuse a provisional agreement reached between
the union and management negotiators. By changing the law to
give the union representative engaging in a CBA negotiations
not only the right and power to negotiate but also the right and
power to adopt an agreement, the government severely restricts
the autonomy and internal democracy of unions. Once the
changed law comes into effect, the constitutions and rules
adopted by most of the unions will be seen as violating the
law.
The Ban on Political Activities by a Trade Union
The proposed amendment calls for the repeal of the
prohibition on political activities by a trade union stipulated in
the current Trade Union Act. The Ministry of Labour
background paper on the government proposal states, "it is not
desirable, in the light of the practices in the advanced
industrialised countries, to stipulate additional restriction in the
industrial relations law" because, "the laws governing political
activities and elections already prohibit political activities of a
trade union as with other social organisations". The same
backgrounder cites the relevant other laws, such as, the Article
12 of the Political Funds Act and the Article 87 of the Act on
Election of Public Offices and Prevention of Election Corruption,
which prohibit donation of political funds or election campaigns
by a trade union.
Freedom of Employers
The meanness of changes "in favour" of trade unions
stands in stark contrast to the "concessions" made to the
employers. The government proposal for the revision of the
labour law embraces all the demands of employers -- the
Federation of Korean Industrialists and the Korean Employers
Federation, the Chamber of Commerce, etc. -- apart from the
their call to maintain the current prohibition on union plurality.
The proposed amendments will virtually give free hand to
employers to layoff workers. It will also allow employers to
demand employees to work a maximum of 56 hours a week
(without overtime rate) as long as the monthly average remains
within 44 hours. The proposed revised law does not contain
any indication for the reduction of working hours. The
government proposal will also bring about a legislation which
will institutionalise "dispatch labour" or "contingency workforce".
The proposed legislation will have the effect of legalising the
currently illegal "manpower agencies" operated by the big
conglomerate chaebols. The three "flexibility" measures will,
together, will, the KCTU believes, severely disrupt the
employment security and trade union activities.
The General Strike: the looming crackdown
On December 4, 1996, the member unions of the Korean
Confederation of Trade Unions, including the unions at the
major car makers and heavy industries with thousands of
employees, conducted a pre-strike ballot. While the exact
figures are not yet known, the results so far indicate that more
than 90% of workers in some 300 unions which have so far
conducted the ballot have voted to go on a general strike.
The Korean Confederation of Trade Unions will hold an
extraordinary session of its Central Committee on December 6
to decide on the date(s) and form(s) of nation-wide general
strike.
In response to the call for general strike, the government
has responded by threatening to arrest and imprison the key
union leaders who "instigate" an "illegal" general strike. A high
level Public Prosecutors Office officer suggested president
Kwon Young-kil, who is out of jail on bond while still facing a
trial, may be "recalled" to prison once the KCTU embarks on
the general strike. KCTU expects large number of arrests and
imprisonments as 500 union leaders vowed to end up in prison
in their determination to resist the government amendment
which will severely restrict trade union rights and radically
worsen the working conditions.
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