[asia-apec 362] Re: Dec. 26 Labour Law - Analysis, Part 3

[amrc]

daga wrote:
> 
>         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.