[asia-apec 356] Dec. 26 Labour Law - Analysis, Part I

[daga]

        Korean Confederation of Trade Unions 
---------------------------------------------------------


   The December 26, 1996 Labour Law Amendment:
   the further violation of the Freedom of Association 
              and Collective Bargaining



The Run-up to December 26, 1996

The International Labour Organisation (ILO) has, since March 
1993 (at the 255th Governing Body meeting, case number 1629), 
repeatedly called on the Korean government to amend the industrial 
relations laws in compliance with the principle of freedom of 
association and the core ILO Conventions, Nos. 87, 98, and 151. The 
ILO specifically recommended the repeal of the 'prohibition of 
multiple unions', the 'prohibition on teachers and government 
employees to form or join a trade union', the 'prohibition on third 
party intervention', and the 'excessive administrative intervention in 
the internal union affairs'. ILO also advised the Korean government to 
narrow the scope of 'public utility services' where the right to strike is 
restricted. 

The ILO recommendation followed the failure on the part of the 
Korean government to ratify the core ILO Conventions since its 
membership in the UN labour organisation on December 9, 1991. In 
response to government inaction the Korean Trade Union Council, 
the 11 member industrial federations of the Korean Congress of 
Independent Industrial Federations, including the Korean Teachers 
and Educational Workers Union, together with the FIET, PSI, IMF, 
IFBWW, WCOTP, IFFTU, and IFJ, in March to May 1992, filed a joint 
complaint against the Korean government to the ILO's Freedom of 
Association Committee.

In March 1993, the Korean government announced its 
commitment to reform the labour-related laws in the autumn regular 
session of the National Assembly to remove the clauses which were 
in a fundamental contradiction with the freedom of association 
guaranteed by the Korean Constitution and the ILO Convention No. 
87. The government of President Kim Young Sam, however, reneged 
on its commitment when it postponed the labour law reform 
indefinitely in August 1993 just prior to the opening of the National 
Assembly.

In April 1996, the Korean government initiated another round of 
efforts for labour law reform. President Kim Young Sam established a 
Presidential Commission on Industrial Relations Reform with a 
mandate to produce a comprehensive proposal for the legislative 
amendment and the reform of the attitudes toward industrial relations. 
The thirty-member Commission, composed of five labour 
representatives, five employer representatives, and twenty 'public 
interest' representatives, conducted series of public hearings and 
seminars to identify the issues to be dealt in the Commission.  The 
Commission began its work to produce proposals for legislative 
amendment in earnest through a nine member drafting committee.
In the beginning of the Commission, there were some concerns 
about the sincerity of the government. The government tried to lay to 
rest the concerns raised especially by the international community by 
issuing a firm commitment of intention to amend to laws which 
contravene the principle of freedom of association. This took the form 
of an official letter to the OECD in October, just prior to the final 
decision of the Council for Korea accession.

The Korean Confederation of Trade Unions took part in the 
Commission when it began in May till November. The Commission 
identified some 148 items which required consensus for legislative 
amendment. The Commission succeeded in reaching agreement in 
some 107 items. However, no agreement was able to be reached on 
the clauses which the ILO has identified as in breach of the principle 
of freedom of association due to strong opposition from the 
employers. The Commission's first stage work for legislative 
amendment came to an end without resolving the deadlock over 
these issues. In a last minute effort, the 'public interest' 
representatives tabled an independent proposal on the issues which 
escaped the Commission's ability. 

The Commission reported to the government the proposals for 
legislative amendment together with the independent proposal by the 
'public interest' representatives. The government began its own 
process to produce a draft bill of amendment. The draft bill of 
amendment gazetted for public notice in early December, however, 
made no inroad on the clauses which have been found by ILO to be 
in contravention of the principle of freedom of association. 
Furthermore, the government disregarded many of the consensus 
proposals of the Commission. In doing so the Korean government 
reneged on its repeated commitment to comply with the ILO 
recommendations and its 'solemn commitment' made to the OECD. 
The trade union movement voiced a unified opposition to the 
government's draft bill. This was matched by equally strong reaction 
from the opposition political parties. Government unilaterally 
convened an extraordinary session of the National Assembly, and on 
December 26 passed the amendment bills for the labour-related laws 
and the National Security Planing Agency Act in a pre-dawn session 
without giving prior notice to the National Assembly members from 
the opposition parties. 

The amendment to the labour law rammed through the National 
Assembly contained an important last minute change stipulating a 3 
year postponement of the lifting of the ban on union pluralism, 
continuing the outlawing of the Korean Confederation of Trade Unions. 
The government had, when it began its preparation of its own draft bill 
for labour law reform, produced some amendments for the education 
related laws. These changes, while falling short of guaranteeing the 
freedom of association to teachers, guaranteeing their right to form or 
join unions, were seen to open the possibility of some form of plurality 
of teachers organisations. However, the government failed to table 
these amendments to the National Assembly, resulting in the 
continuing prohibition of freedom of association for teachers and the 
continuing outlawing of the teachers' union, the Korean Teachers and 
Educational Workers Union.


        The Reactions to the December 26 Act

The government's bulldozing of the amendment bill for the 4 
labour related laws * the Trade Union and Industrial Relations 
Adjustment Act (replacing the Trade Union Act and Labour Disputes 
Adjustment Act), the Labour Standards Act, the Labour Relations 
Commission Act, and the Workers Participation and Cooperation 
Promotion Act * and the National Security Planing Agency Act * 
provoked strong resistance from all sections of the society. 
The opposition parties immediately decided to file a constitutional 
petition contesting the constitutionality of these laws on the basis of 
the violation of the National Assembly procedural regulations. The 
Korean Confederation of Trade Unions launched an immediate 
general strike to protest the government action calling for their total 
nullification. The Federation of Korean Trade Unions also joined in 
this general strike. The general strike and protest action is now in 25th 
day as of January 19, 1997.

On January 13, 1997, some 850 Catholic priests issued a 
statement and held a special mass at the Myongdong Cathedral 
denouncing the government action. Similar actions are taken by other 
major religious bodies in south Korea. Large community of 
professionals also joined in this protest action. Over 2,500 universities 
professors have joined the protest action by issuing special 
statements condemning the government action. Hundreds of civic 
and social organisations have joined in this nation-wide campaign of 
protest. 

The wide spread protest action, triggered by the government's 
pre-dawn raid of the National Assembly, focused on the very un- or 
anti-democratic nature of the government action. The wide spread 
expressions of protest have declared the strike action of the trade 
union movement as a legitimate action of resistance, invoking the 
ILO Conventions which guarantee the right to strike against general 
economic and social policies which affect great number of working 
people. These protest actions have arisen from a grave concern 
about the authoritarian and intolerant attitude and practice of the 
government which undermine the very foundation of democracy, 
which can only lead to greater social unrest rather than social 
cohesion necessary for a concerted effort to adapt to the rapidly 
changing geo-economic and geopolitical environment.

The concern over the possible unconstitutionality of the 
government action was raised by two separate regional courts. On 
January 16, 1997, a judge at the Changwon Regional Court, in 
presiding over the application for injunction on the strike, requested 
an adjudication by the Constitutional Court on the constitutionality of 
the December 26 passage of the labour laws before deciding on the 
legitimacy of the strike action as an exercise of the right to resistance 
enshrined in the Constitution. He stated, "In order to determine 
whether the current strike is legal or illegal, there has to be prior 
determination on the question of the constitutionality of the passage 
of the amended labour and security related laws." As a result, the 
application for an injunction on the strike undertaken by the trade 
union, issued by the management of the Changwon Plant of the 
Hyundai Precision Industry, has to wait till a decision is made by the 
Constitutional Court. A similar judicial action was undertaken by a 
judge of the Daejon Regional Court on January 17.


      Is the December 26 Amendment in Compliance 
            with the ILO Recommendations?

The December 26, 1996 amendment of the labour related laws 
fail to comply with the repeated ILO recommendation and the core 
Conventions with regard to freedom of association.

1. Ban on Union Plurality

While the December 26 Amendment repeals the original clause 
which were used to ban union pluralism, which have been used to 
refuse the registration of the Korean Confederation of Trade Unions 
and 12 out of 21 affiliated federations. However, KCTU and the 12 
affiliated industrial or group federations will continue to be 'outlawed' 
for three years until year 2000. 

The amendment repeals the original Article 3:5 of the Trade 
Union Act which disqualifies an organisation if it has "the same 
organisation object as an existing trade union, or it aims to interfere 
with a normal operation of such union" from being recognised as a 
trade union thus denying the rights and protection specified in the Act. 
Here the "same organisation object" refers to the scope of 
potential membership base of an organisation. For example, if a 
union defines the employees a company as the basis of its 
organisation and anticipated target membership, then another 'trade 
union' cannot claim the employees of the same company as the basis 
of its organisation and membership. And such an organisation cannot 
claim the recognition and protection as a trade union provided by the 
law.

The same applies to federation of unions. If a federation claims a 
particular industry as the basis or anticipated target membership of its 
organisation, then there cannot be another organisation which claims 
the same industry as the basis of its organisation and membership. 
This has come to known as the prohibition of 'union plurality' or the 
prohibition of 'multiple unionism'.

The 'amended' labour law removes the problem clause in the 
previous law but adds two new clauses in the by-laws (addenda) 
stipulating a period of 'moratorium' on 'union plurality' at the 
individual enterprise level and federation or national centre levels. 
The by-law (addenda) article 6 states:

1.  In case a trade union is already in existence, it shall be disallowed 
    until December 31, 1999, despite the Article 5, to form a new trade 
    union whose target constituency for potential membership is the 
    same as the already existing organisation. Furthermore, in case a 
    trade union is already in existence in a business concern or a 
    workplace, it shall be disallowed until December 31, 2001 to form a 
    new trade union whose target constituency for potential 
    membership is the same as the existing union. 
2.  The Minister of Labour must refuse the application for registration if 
    it is not in compliance with the above clause.
3.  The Minster of Labour must, until December 31, 1999, formulate 
    the necessary procedural regulations for methods of collective 
    bargaining for creation of a single bargaining unit to come into 
    effect upon the surpassing of the postponement specified in the 
    above clause 1.

The amendment bill * which brings the former Trade Union Act 
and Labour Dispute Adjustment Act into one new Trade Union and 
Industrial Relations Adjustment Act -- passed at the 'extraordinary' 
session of the National Assembly, therefore, maintains the ban on 
'union plouralism' for three to five years. This signifies the continued 
ban on or denial of registration and recognition for the Korean 
Confederation of Trade Unions and majority of its affiliated 
federations, such as the Korean Federation of Metalworkers Unions 
and the Hyundai Trade Union Federation for three years.

The amended labour law totally disregards the ILO 
recommendation and reneges on the commitment made by the 
Korean government to the OECD, repeating the performance at the 
time of joining the International Labour Organisation. The amended 
law also fails to accept the recommendation of the Presidential 
Commission on Industrial Relations Reform. The "public interest 
representatives" at the PCIR had recommended the government to 
lift the moratorium for enterprise union plurality in cases where an 
existing trade union is deemed (by a judiciary or administrative 
authority, as in the case of the trade union at the Samsung Heavy 
Industry Co.) to be a dormant union or have been found to have 
habitually and systematically refused to accept membership 
applications.