[asia-apec 357] Dec. 26 Labour Law - Analysis, Part 2

[daga]

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

(Part 2)

2. Ban on Freedom of Association 
  for Teachers and Government Employees

The new labour legislation enacted by the ruling party 
orchestrated December 26, 1996 extraordinary session of the 
National Assembly states: 

    Workers may freely organize or join trade unions. However, 
    some other separate law shall be applied to public officials 
    [government employees] and teachers. (TUIRAA 5).

The government's draft amendment bill has not given any 
attention to the right of government employees to organise or join 
unions. 

However, until the time of tabling the draft amendment bills to the 
National Assembly, the government had contemplated some changes 
concerning the issue of freedom of association for teachers. However, 
the amendment package tabled at the National Assembly by 
government was without the bill of amendment for laws related to 
teachers' organisation. 

The Cabinet Meeting on December 10, 1996, approved the 
amendment bill for 6 different laws related to industrial relations and 
teachers organisation prior to tabling at the National Assembly. With 
regard to the "freedom of association" for teachers, government 
proposed to revise the existing "Special Act for the Promotion of the 
Status of Teachers" and the "Education Act" to allow for the existence 
of plurality of teachers' organisations.

The "reform" package * evaporated in the process of tabling -- 
however, left no room for mistaking the government's intention. Even 
if this amendment had become a law, teachers will not have been 
able to enjoy the right to form a teachers' union, and the Korean 
Teachers and Educational Workers Union still outlawed. The aborted 
government proposal paid lip-service to the idea of "freedom of 
association" for teachers, but made it categorically clear that the 
government intends to maintain the power to dictate what kind of 
organisation teachers can organise or join. 

The aborted amendment bill maintained the a fundamental denial 
of the freedom of choice, the very heart of the freedom of association 
principle. And whatever the kind of organisation teachers were able to 
form would not have been allowed to use the term "(trade or labour) 
union" in its name nor affiliate with a trade union federation, such as 
KCTU. 

The aborted government amendment bill stipulated the shape and 
form of "teachers organisation" and what kind and extent of right and 
freedom teachers can exercise. 

The geographical scope of the basic unit of a teachers' 
organisation would have coincided with the jurisdiction of a province 
or metropolitan city level Board of Education. (This means no school 
level chapters or local chapters embracing a number of schools would 
have been allowed.) A teachers' organisation would have had the 
right to engage in limited negotiation or consultation with a Board of 
Education. However, a teachers organisation would have been 
eligible to obtain such a "right" only if it has as its members one-fifth 
(20%) of the teachers in the various levels of schools in the territorial 
boundary of the regional Board of Education, thus becoming 
registered as a body with negotiation or consultation status. Province 
or metropolitan city level teachers' organisation can form a national 
federation among themselves. 

And such a national federation would have been -- if it satisfies an 
eligibility requirement -- able to engage in limited negotiation or 
consultation with the Minister for Education. For a national federation 
to be eligible to meet with the Minister for Education for negotiation or 
consultation, it must be constituted by 10 or more province or city 
level organisations which enjoy negotiation/consultation status with 
the respective regional Board of Education. 

The aborted change, basically, would have opened the possibility 
of plurality of "teachers organisations" unlike to current situation 
where only the Korean Federation of Teachers Associations is 
allowed. The "teachers organisation", as defined by the Article 80 of 
the Education Act, however, would have needed to be a legally 
incorporated entity in line with the Article 32 of the Civil Law and 
registered on the basis of the "permission" of the relevant authority (in 
this case, the Ministry of Education). 

It would, therefore, been impossible to regard such an 
"organisation" as an "independent" or "autonomous" organisation 
which would have enjoyed full rights under the freedom of association. 
Furthermore, such an organisation would have been required to 
received "supervision" and "direction" of the relevant government 
authority (Article 37, Civil Law). The law (Article 38, Civil Law) also 
allows the Board of Education and the Ministry of Education the 
power to revoke the permission (de-registration) if an organisation 
were seen to conduct activities that contravene the purpose specified 
in its charter, violate the conditions of permission, or cause damage 
to public interest, or if it were found to be registered through irregular 
manner or fall short of the registration requirement.  

One critical problem with the aborted amendment was that the 
very party which would have met with a teachers organisation for 
"negotiation" or "consultation" would have had the authority to register 
and the power to revoke the registration (de-register) of the teachers 
organisation in question. The proposed legislative framework would 
have, therefore, erected an inherent inequality between the parties 
involved in a "negotiation" or "consultation". 

However, at the end of the day, all these concerns were proved to 
be unnecessary as the government left out the amendment bills for 
teachers' organisation when it table the amendment bills for the 
labour related law at the National Assembly.

The absence of proposed amendment for teachers organisation 
has caught many unaware. One interpretation is that it was an act of 
deception. Another views is that * although this is more of a wishful 
thinking * government felt the formalising of its amendment bill by 
introducing it at the National Assembly may have triggered a greater 
negative reaction, domestically and internationally, than a positive or 
sympathetic appreciation.

3. Third Party Intervention

"Prohibition of intervention by third party" (Article 12-2, Trade 
Union Act) has been one of the most notorious instrument of 
repression used against the trade union movement. The new labour 
legislation enacted at the extraordinary session of the National 
Assembly removes much of the problem clauses but maintains the 
'spirit and principle' of the prohibition, thus standing in contradiction 
to the spirit of the freedom of association. This is found in the clauses 
aimed at regulating what is permitted and what is disallowed. 
Following is a translation in verbatim of the amended clauses in the 
Article 40 (TU&IRAA) entitled as "assistance for industrial relations".

I.  A trade union or employer can receive the assistance of the 
   following categories of persons in relation to collective 
   bargaining and/or dispute activities:
1. The federation or confederation to which the concerned 
   trade union affiliated;
   2. The employer organisation to which the concerned employer 
      is affiliated;
   3. The persons registered by the concerned trade union or 
     employer with the Labour Minister to receive assistance;
   4. Any other persons who have legitimate authority in 
      accordance with other laws.
II.  All other persons not specified in the above paragraph are 
    disallowed to intervene, manipulate, or instigate collective 
    bargaining and/or dispute activities.

The amended law ignores the recommendation presented by the 
"public interest representative" at the Presidential Commission on 
Industrial Relations Reform. The "public interest representatives had 
proposed to allow 'assistance' from 'third parties' who had been 
requested by either of the two concerned parties in the 'industrial 
relations' at the workplace. However, the requirement for the 
employers and unions to notify the Labour Minister -- specified in the 
new law -- introduces an unnecessary procedure, and, at the worst, 
opens the possibility of arbitrary regulation by the government 
authorities.

The amended law reflects that the whole concept of 'third party 
intervention' and the government's perception are based on a deep-
seated suspicion about industrial relations and the inherent disrespect 
for (and underestimation of) the autonomy (and the rigour) of the 
internal union dynamics, democracy, and leadership. This is made 
clear by the second paragraph of the article. The specification of 
'banned' activities, may in fact be unconstitutional as it undermines 
the principle of freedom of expression. The existence of the second 
paragraph, accompanied by a clause for maximum penalty of 3 years 
imprisonment and/or 30 million Won in fine for the 'violators' 
(TU&IRAA 89:1), is, therefore, tantamount to maintaining the 
infamous "prohibition of third party intervention" without any measure 
of reform.

4. Trade Union Political Activity

The government's amendment repeals the 'prohibition of political 
activities' (TUA 12:1, 2, 3) which bans the trade union support of a 
specific political party or a specific candidate, the collection and 
donation of political contribution, and the diversion of union fund for 
political purposes. However, this does not free trade unions to take an 
active role in political affairs. This is clearly recognised by the 
government itself as can be seen in the explanation provided by the 
Ministry of Labour. In its background briefing paper to the amended 
law, the Ministry of Labour 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 trade unions as
with 
   other [non-political-party] social organisations". 

The same briefing booklet cites the relevant other laws, such as, 
the Article 12 of the Political Funds [Contributions] Act and the Article 
87 of the Act on Election of Public Offices and Prevention of Election 
Fraud, which can continue to ban political activities by trade unions. 
Therefore, without the amendment of the laws cited by the Ministry of 
Labour, trade unions will continue to be unable to undertake any 
meaningful political activities.

The ban on political activities by trade unions is, in fact, enshrined 
in the definition of a 'trade union' provided by the Trade Union and 
Industrial Relations Adjustment Act. The Paragraph 3 Article 2 
defines a 'trade union' as 

   "an organisation or a federation of organisations, which is formed 
   independently at the initiative of workers for maintaining and improving

   conditions of employment and improving the economic and social 
   status of workers". 

The law, however, adds a number of disqualification clauses of 
which following is one: 

   "[an organisation which] takes political movement [or activities] and/or

   social movement [or activities] as its primary objective" (TU&IRAA
2:3e). 

Such a clause is at best unnecessary as trade union [labour] 
movement is inherently a part (an area) of or one kind (type) of 
'social movement'. At the worst, such a legislation * based as it is on 
an 'indeterminable' concept * may lead to unnecessary confusion 
and arbitrary abuse.

5. Public Enterprises and Essential Public Enterprises

The new labour law rammed through the National Assembly at an 
extraordinary pre-dawn session includes the 'railway service', 'urban 
bus line business', 'medical service business', 'banking business', 
and 'communication business' in the list of "essential public 
enterprise" which are subject to "compulsory arbitration" disallowing 
any form of collective action. 

The "essential public enterprise", a concept borrowed from ILO 
standards, was first introduced in the discussions at the Presidential 
Commission on Industrial Relations Reform (PCIR) to confine the 
scope of "compulsory arbitration" which have been much criticised for 
severely restricting the basic labour right of collective action. The 
"essential public enterprises" is a sub-group within the category of 
"public enterprises" which currently is composed of 'public transport 
business', 'water, electricity, gas supply, and petroleum refinery 
business', 'public hygienic and medical service business', 'banking 
business', and 'broadcasting and communication business'. 

The original discussion in the Presidential Commission on 
Industrial Relations Reform (PCIR) was focused on confining the 
enterprises that are subject to "compulsory arbitration". The now 
superseded Labour Dispute Adjustment Act calls for "compulsory 
arbitration" when "the Labour Relations Commission decides to refer 
a dispute to arbitration upon the demand of the administrative 
authority or ex officio with respect to public enterprise" (LDAA 30). 
This meant a drastic restriction on the right of collective action for a 
large number trade unions in a wide range of enterprises (even 
private sector enterprises), which happen to be categorised as "public 
enterprise". To overcome this problem, the PCIR introduced a 
concept of "essential public enterprises" as demanded by the Korean 
Confederation of Trade Unions. The PCIR called for limiting the 
reliance on "compulsory arbitration" to be confined to those 
enterprises which belonged to this new sub-category. 

Together with the introduction of a new category, the PCIR 
originally agreed to remove "banking business", "broadcasting 
business", "mint works", and "enterprises located in export 
processing zones" from the broader 'public enterprise' category. 
However, the amended law maintains these in the list of "public 
enterprises". Furthermore, the PCIR discussion called for a separate 
decree which specifies the size of enterprises and the 'replaceability' 
conditions for listing of public enterprises. This was aimed at the 
removing the absurdity where a union at a hospital with 10 beds and a 
union at another hospital with 500 beds had their right to strike equally 
restricted due to the inclusion of "medical service business" in the 
public enterprise list. The amended law, however, ignores the 
recommendation of the PCIR, and does not set up any means for 
differentiating among the different workplaces within the same 
enterprise grouping. 

The amended law, based on the final proposal of the Presidential 
Commission on Industrial Relations Reform (PCIR) extends the scope 
of 'compulsory arbitration' to the newly introduced sub-category of 
"essential public enterprises", which includes 'water, electricity, gas, 
and oil" services, and 'communication business'. The intention 
behind the introduction of the new 'essential public enterprise' 
category was nullified, however, in amended law, as it extends the 
new category to 'railways [including urban transit railway]', 'urban 
passenger transportation business', 'medical service business', and 
'banking business'.