[asia-apec 360] Dec. 26 Labour Law - Analysis, Part 4

[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 4)

4. Replacement Labour

The previous law stipulated, "An employer may not hire, during a 
period of dispute, a person who is not involved in the dispute nor 
replace a worker by such a person" (Article 15, Labour Dispute 
Adjustment Act). The original amendment prepared by the Ministry of 
Labour and the ad hoc inter-governmental Committee for Industrial 
Relations Reform provided for the employers to deploy workers from 
"a different plant of the same business concern" in case there may 
arise "unrecoverable critical business loss due to a strike". The 
already drastically curtailed right of collective action was, however, 
further eroded by the Cabinet meeting, at the request of the various 
economic ministries. As a result, the new law expands the scope for 
scab labour to

  "in case [because of an industrial dispute in a particular company] the 
  operations of the relevant industry is made difficult or major business 
  loss is expected" (Article 43 TU&IRAA). 

As a result, a final product maker, for example, will now be able to 
send in replacement labour to a sub-contracting firm if a strike in that 
(sub-contracting) firm is seen to cause business difficulties for the 
"parent" firm.

5. Restriction on Industrial Action

The government initiated amendment introduces a new provision 
for a "restriction on industrial action" (TU&IRAA 38) which can lead to 
unnecessary conflict, litigation, and imprisonment in the course of an 
industrial dispute. 

The first such "restriction" concerns 'picketing' of workplaces by 
unionists to 'persuade' or 'appeal' to non-striking workers to join in 
the strike or to desist from replacing the striking workers. The new 
article stipulates that 

  "a dispute activity should not be conducted in a way that obstructs the 
  entry, work, and other regular operations of persons not involved in the 
  dispute activity or other persons who provide labour". 

Furthermore, striking workers 

  "should not use violence, threat, and other forcible action as a means 
  to appeal or persuade [the non-participating persons] to participate in 
  the dispute activity" (TU&IRAA 38:1). 

This issue was discussed in depth in the PCIR. The Presidential 
Commission decided against introducing such a clause because of 
the dangers of abuse and arbitrary application which can only worsen 
the industrial relations at the workplaces. The new law introduced by 
the government, therefore, ignores the PCIR recommendation and 
creates new areas of conflict due to litigation by the employers and 
state intervention. It may, in all likelihood, lead to a drastic increase
in 
the imprisonment of unionists for their trade union activities and 
exercise of the right to strike, as this clause is accompanied by a 
penalty clause which stipulates a maximum penalty of 3 years 
imprisonment and/or 30 million Won in fines (TU&IRAA 88:1).
Another 'restriction on industrial action' concerns 'protection of 
production facilities and materials'. The law calls for a ban on 
industrial action that may affect the "operations needed to avoid 
damage to production facilities or the deformation or corruption of raw 
material or product" (TU&IRAA38:2). This adds to the another clause 
which stipulates restriction on industrial action which "suspends, 
discontinues or obstructs the normal maintenance and operation of 
safety facilities installed for the protection of factories, workplaces or 
any other places of work" (defunct LDAA 13:1, new TU&IRAA 42:2). 

This issue was also dealt with in depth by the Presidential 
Commission on Industrial Relations Reform. The PCIR acknowledged 
that such a 'restriction' may, in some industries such as chemical 
industry, be tantamount to a blanket ban on industrial action, denying 
the basic labour right to strike. Based on the consideration, the PCIR 
reached an agreement not to introduce such a clause. However, the 
amended law which also sets a penalty of maximum imprisonment of 
1 year and/or 10 million Won in fines (TU&IRAA 91:1), will severely 
limit the collective bargaining rights and the collective action rights. 

6. Ban on 'Wildcat Strike'

The labour enacted in a commando-style session of the National 
Assembly introduces a new clause which bans 'unofficial strike', that 
is, 'wildcat strike'. The new Trade Union and Industrial Relations 
Adjustment Act stipulates that "members of a trade union shall not 
conduct a dispute action which is not led by the trade union" 
(TU&IRAA 37:2). The government initiated amendment is not only 
unrealistic, but contravene the freedom of association and right of 
collective action. It is not difficult to envisage the 'breakout' of a 
strike in a no-union workplace or where there is a so-called 'yellow 
union' which lacks legitimacy or is deemed not to be representative. 
The intention of the government is made clear in the stipulation of the 
penalty for this 'crime'. A person involved in a 'wildcat strike' is liable

to a maximum penalty of 3 years imprisonment or 30 million Won in 
fines (TU&IRAA 89:1). 

7. Ban on the Wage for the Duration of a Dispute Activity

The December 26 labour law adds a new clause which bans the 
demand for wage payment for the period of industrial action. It 
stipulates, an 

  "employer is not allowed to provide wage for the period of dispute 
  action to the employees who did not provide labour due to participation 
  in a dispute action and a trade union is not allowed to demand the 
  payment of wage for the period of a dispute action or conduct dispute 
  action to realise its demand" (TU&IRAA 44). 

The government initiative to include such a ban is unprecedented and 
not found in any other country. It is generally accepted that it is a 
matter for the collective bargaining between the concerned parties to 
decide, not something that should be dictated and enforced by a law. 
The law does not only disallow the unions to make a demand on the 
payment of wage for the period of an industrial action, but also makes 
illegal for the employers to make such a payment. This stipulation 
goes beyond the final proposal of the "public interest representatives" 
presented to the PCIR which only called for a ban on trade union's 
industrial action demanding wage payment for the period of strike. 

8. Federation of Unions

The government initiated amendment maintains the strict 
definition for a 'federation' of trade unions found in the superseded 
Trade Union Act: 

  "The trade union in the form of a federation as referred to in Paragraph 
  (1) shall refer to a federation by industry members of which are unit 
  trade unions in the same category of industry and a general federation 
  members of which are federations by industry or unit trade unions by 
  industry on a national scale" (TU&IRAA 10:2 and the defunct TUA 13:2).

The freedom of association principle signifies that the shape of an 
organisation, whether as a 'unit trade union' or a 'federation of 
unions', is a matter for the organisation in question to determine than 
to be restricted by a law.

The law violates the principle of freedom of association but also 
opens up the possibility of arbitrary abuse in implementation, 
especially in view of the fluidity of industrial boundaries. The
territorial 
boundary of an organisation is a matter that should be left to the 
independent decision and arrangements by the organisations 
concerned. For example, the Hyundai Group Trade Union Federation 
-- a federation of unions in the Hyundai group of companies, the 
chaebol conglomerate, active in diverse fields of business, ranging 
from shipbuilding and automobile to hospital and insurance -- is 
affiliated to the Korean Confederation of Trade Unions. Its diverse 
industrial composition or coverage disqualifies it from legal 
recognition and registration as a 'federation of trade unions' under the 
amended law. 

Furthermore, the Ministry of Labour, in considering the application 
for registration by KCTU, may deny legal recognition because of the 
inclusion of an 'unlawfully' constituted organisation. It may kindly 
'request' and 'advise' the KCTU to remove the 'culprit' organisation 
from the affiliation list, dictating who can and cannot become a 
'member'.

The same applies to the membership of the Korean Teachers and 
Educational Workers Union (KTU, Chunkyojo) in the KCTU. The new 
law excludes teachers organisation from the jurisdiction of the trade 
union related laws. There is no provision within the labour law reform 
effort of the government concluded in the pre-dawn extraordinary 
session of the National Assembly, for the recognition of a teachers 
union under the jurisdiction of the Trade Union and Industrial 
Relations Adjustment Act. As a result, the inclusion of the 
KTU/Chunkyojo as a member of the KCTU may be construed as the 
grounds -- even if all other requirements are met -- for rejecting the 
KCTU's application for registration.

9. Ban on Sit-Down Strike

The government initiated amendment expands the current clause 
on 'prohibition on acts of violence' (defunct LDAA 13:1) which 
stipulates that "acts of violence or subversion shall not be allowed as 
acts of dispute". The new clause adds the "occupation of production 
and other important facilities or other facilities deemed to be important 
by a presidential decree" to the types of banned action (TU&IRAA 
42:1). A violation of this clause is punishable by a maximum penalty 
of 3 years imprisonment or 30 million Won in fine (TU&IRAA 89:1). 
The ban on occupation of production facility, not discussed at all 
in the PCIR, will make a strike action within the company premise 
impossible. This clause, in fact, will make all company premises, with 
possible exception of company sports ground, dining hall, and union 
office, out of bounds for industrial action. Even such dispute activities 
as a sit-down strike or work-by-rule or slow down which take place 
within the 'production facility' may be deemed to be an 'occupation' 
banned by this clause.

10. The Use of the term "(Trade/Labour) Union" in a Name

The Article 7 of the Trade Union and Industrial Relations 
Adjustment Act (adopting the previously existing provision in the 
Article 7:2 of the now defunct stipulates that 

  "an organisation that is not recognised by this Act as a trade union 
  shall not be able to use the term 'trade/labour union' in its name."

And the penalty for violation of this stipulation was strengthened 
*from a maximum fine of 200,000 Won to 5 million Won (TU&IRRA 
93:1). Korea may be the only country which prohibits the use of a 
name by law. The Presidential Commission on Industrial Relations 
Reform originally agreed to repeal this clause (Article 7:2 in the now 
defunct Trade Union Act) only to be nullified in the absence of KCTU 
representatives. 

The maintenance of the ban on the use of the term 'trade union' 
in some sense straight-jackets the government's position on the issue 
of teachers union. The government amendment proposes to maintain 
the current ban on the right of teachers to form and join a 'trade 
union'. Instead, it had once contemplated to allow teachers to form 
'teachers associations' under the jurisdiction of education related 
laws. Due to the ban on the use of the name, a teachers association -- 
formed on the basis of the relevant laws -- cannot use '(trade) union' 
in its name, a possible de facto or detour recognition of a teachers 
union, a 'face saving measure' for the government which has had to 
face up to considerable international pressure because of this very 
issue.