[asia-apec 358] Dec. 26 Labour Law - Analysis, Part 3

[daga]

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


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

(Part 3)

6. Compulsory Arbitration

The Labour Minister may refer an industrial dispute to an 
"emergency adjustment" by the Central Labour Relations 
Commission 

   if acts of dispute are related to business of public interest, or it is
of 
   such a scope or character that there exists a danger which might 
   substantially impair the nation's economy or endanger the daily life of 
   the general public (LDAA 40, TU&IRAA 76). 

Once a "dispute" is referred to an "emergency adjustment", the 
parties to the dispute must 

  "immediately suspend any act of dispute" and parties are banned from 
  undertaking any form of dispute activities for thirty days". (TU&IRAA 77;

  this is a change from the current law which calls for no industrial
action 
  for twenty days [LDAA 41].) 

If the Central Labour Relations Commission fails to arrive at an 
"adjustment" of a dispute, it can decide to refer the dispute to an 
"arbitration". While, logically, it is possible to expect the Central 
Labour Relations Commission to decide against "recommending" a 
"compulsory arbitration", it is widely accepted that a failure to reach a 
settlement in "emergency adjustment" leads automatically to a 
"compulsory arbitration". The "arbitration" will then be undertaken by 
the "Central Labour Relations Commission" (TU&IRAA 79). 

While 'emergency adjustment' -- per se -- can be regarded as a 
significant institutional mechanism for 'mediation' and 'conciliation', it 
is held in deep distrust because it, in reality, functions as a trip-wire 
trigger for "compulsory arbitration" which automatically and 
coercively suspend all freedom and right of collective bargaining and 
collective action.

"Compulsory arbitration" is defined in the Articles 30 to 39 of the 
'old' LDAA and the Articles 62 to 70 of the new TU & IRAA. An 
"arbitration" can be activated in three different cases: a joint request 
by both parties in an industrial dispute, a request by one of the parties 
in accordance with the provisions of the collective agreement, and a 
decision by the Labour Relations Commission upon the demand of 
the administrative authority or ex officio with respect to public 
enterprise (LDAA 30). The new TU & IRAA differs from the LDAA only 
on the third condition. It states: the Labour Relations Commission 
shall arbitrate "when the Labour Relations Commission, on the basis 
of the recommendation of a 'Special Adjustment Committee' decided 
to refer a dispute to arbitration with respect to essential public 
enterprise" (TU&IRAA 62:3). 

Once a dispute is referred to "compulsory arbitration" all parties 
to an industrial dispute is compelled to suspend all forms dispute for 
15 days (TU&IRAA 63). Any industrial action undertaken after the 
referral to a "compulsory arbitration" is illegal. An "award of 
arbitration" has "the same effect as that of a collective agreement" 
(TU&IRAA 70:2). A party can appeal the decision of a Local Labour 
Relations Commission to the Central Labour Relations Commission 
within 10 days of the original decision, and then begin an 
administrative suit within 15 days of the review decision, if it 
considers that an award of arbitration violates a law or is an act 
beyond the authority of the Commission (TU&IRAA 69). However, 
"The effect of an award of arbitration or decision after review 
rendered by a Labour Relations Commission shall not be suspended 
by an application for review to the Central Labour Relations 
Commission or bringing an administrative suit" (TU&IRAA70:1).

The problem with the system and practice of "compulsory 
arbitration" is that it is widely abused by the "administrative authority" 
to suspend the basic labour rights based on very arbitrary or one-side 
decision. The debate in the Presidential Commission on Industrial 
Relations Reform (PCIR) concentrated on reducing the extent of 
arbitrariness and the scope of enterprises that may be subject to 
"compulsory arbitration". 

The amended law, on surface, alleviates some of the concern by 
introducing the "essential public enterprise" sub-category. However, 
the amended law nullifies the spirit of "essential public enterprise" 
concept by including wide ranging variety of enterprises in the list. 
Furthermore, the absence of a criterion and mechanism for 
differentiating between the diverse individual workplaces within a type 
of enterprise, and for differentiating the various sections within a 
workplace on the degree of "essentialness" or importance leaves the 
system open to the same kind of abuse and arbitrariness of the "old" 
system. In essence, the government amendment lacks any sign of 
having taken effort to balance the need to guarantee the basic labour 
rights and the essential need of general population.

7. Administrative Interference in Internal Union Affairs

The newly amended law maintains all of the provisions in the 
superseded Trade Union Act which allows government to intervene in 
the internal affairs of a trade union. ILO has, in fact called on the 
Korean government to remove these provisions so that unions can 
enjoy full freedom of association. The Presidential Commission on 
Industrial Relations Reform has also recommended the government 
to repeal these provisions, especially the provisions which give the 
Ministry of Labour a power to demand unions to submit "financial 
statements, minutes of meetings, and other relevant documents" in 
order to 'mediate', 'supervise', or 'investigate' as cases arise. 

However, these provisions are maintained in the new law (TUIRAA 
27). Furthermore, the penalty for a failure to abide by this law is 
increased from 'three month imprisonment or 200,000 Won in fines' 
to '5 million Won in fines'. 


   New Restriction and Violations of Trade Union Rights 

The newly amended labour law, rather than moving closer to 
international labour standards as specified in the ILO Conventions, 
introduces new restrictions on trade union rights, adding to the 
existing violations of freedom of association examined by the 
International Labour Organisation. 

1. Membership Eligibility

The new law also regresses on the eligibility of union membership. 
In the definition of a trade union, a trade union may not be recognised 
as a trade union if it "allows a person who is not a worker to be a 
member" (TU&IRAA 2:3d) while a 'worker' is defined as one "who 
lives on a wage, salary, or any other income similar thereto 
regardless of his occupation" (TU&IRAA 2:1). While the definition 
leaves open whether the membership base of a union must be within 
the boundary of a single company (business concern), it creates 
important problems for the status of 'dismissed workers" (and 
possibly unemployed workers).

The Paragraph 3d of the Article 2 which stipulates one of the 
conditions for disqualifying a trade union states, 

  "any dismissed worker who has applied to the Labour Relations 
  Commission for relief of unfair labour practice shall not be interpreted 
  as non-worker until the decision of the review [appeals hearing] by the 
  Central Labour Relations Commission is made." 

Under the superseded law, a dismissed worker could 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. The 
'eligibility' clause reflects the anachronism of 'enterprise' unionism 
enforced by the law to limit the organisational boundary of a union to 
a company. 

Who can become a member of a union is an issue that should be 
left to the decision of the union itself through its constitution and
rules. 
This is the essence of the principle of freedom of association. In the 
same spirit, the union membership eligibility of a dismissed worker 
should be left to the decision and the rules of the union. The "public 
interest representatives" in the Presidential Commission on Industrial 
Relations Reform proposed to repeal this particular clause so that 
eligibility of membership in an industrial union or a regional union can 
be determined by the constitution and rules of the union in question. 
The government initiated amendment, however, ignores the 
recommendation of the "public interest representatives" and takes a 
radical backward step from the previous law and practice by calling 
for an even greater restriction on freedom of association.

2. Wage Payment for Full-time Union Officers

The new labour law introduces a new provision on the full-time 
union officers. The Article 24 of the Trade Union and Industrial 
Relations Adjustment Act states:

I.  An employee, if stipulated in the collective bargaining agreement 
   or agreed to by the employer, can engage in the work and 
   activities of union on full-time basis without providing labour as 
   required by employment contract.
II.  The person(s) engaged in union work full-time as specified in the 
    above paragraph ("full-time union staff") shall not receive any kind 
    of remuneration or wage from the employer for the period of 
    his/her term as full-time union staff.

The draft bill, then, goes on to define the practice of "providing wage 
to a full-time union officer" as an "unfair labour practice" on the part 
of the employer (TU&IRRA 81d). 

The Korean government, in its amendment, introduces a 
legislative regulation not found in any other country in the world. It 
runs contrary to the ILO recommendation that employers should 
provide wage, allowance, and leave to workers representatives at the 
company level. The new law, in stipulating for a gradual progress 
towards the total termination of the current practice of wage payment 
to full-time union officers by the end of year 2001, declares that 
"trade unions must endeavour to achieve financial independence". 
The government is "exploiting" the principle of financial 
independence, turning it into a weapons against the trade union 
movement. This will become a devastating weapon in the current 
situation where unions in companies with less than 100 employees 
make up 63% of all the unions in Korea. The impact of this law will be 
crippling as the monthly financial resources of most of these unions 
are less than one million Won.

The Korean government's legislative initiative willfully exploits 
that current enterprise union system. As all 'unit' unions in Korea are 
enterprise level unions, the trade union movement is unable to 
accumulate a substantial financial base. Each enterprise union is an 
integral union with its own president and other full-time officers. They 
are in no way identical to "shopstewards" or organisers or officers 
found in the 'industrial' unions of other countries. There is no denying 
that organisers and full-time officers 'employed' by industrial unions 
should be fully supported by the unions themselves. This principle, 
however, cannot apply to the specific Korean situation where an 
individual union at each enterprise has to finance all its activities from 
its circumscribed membership dues. The new legislative stipulation, 
therefore, can only be perceived as an attempt to emasculate the 
trade union movement before it transforms itself into a powerful 
industrial structure.

3. Right of Ratification

Under the previous law, a union, following its constitution and 
rules, can put a 'provisional' collective bargaining agreement arrived 
through negotiations with the employer to a vote of the general 
meeting of the union membership. This is similar to the 'ratification' 
procedure that a government may be required to undertake to adopt a 
binding international agreement or treaty. The previous legislative 
arrangement does not stipulate a ratification process; nor does it 
specifically 'outlaw' such a process. The ratification process is a 
democratic procedure that strengthens the accountability of a union 
leadership and the democratic participation of the membership in the 
union's decision making. As such it is a matter that should be left to 
the constitution and the rules of the individual union. 

The new law, however, paves the way for an automatic adoption 
of a legally binding CBA based on the agreement between the 
employers and a handful of union officers. It says: "the representative 
of a union has the right to negotiate and adopt a collective bargaining 
agreement on behalf of the union or the members" (TU&IRAA 29:1). 
While the new legislation does not enforce such an arrangement, it 
does introduce a legal basis for a judicial or administrative 
intervention against a popular rejection of an agreement between the 
union officer corps and the employer.

This points to a worst case scenario of a collusion between the 
elected union leaders and employers. Such a situation may exist in 
weak or nascent unions or in situation where 'yellow unionism' is 
prevalent, which could be said to have been the case in Korea for a 
long time. The internal decision making procedure such as this, 
therefore, is a matter that should be left to the members and the 
organisation itself to decide. It is a matter that can only be decided by 
the members themselves by balancing the need for democracy and 
efficiency as they perceive.