[asia-apec 364] Re: Dec. 26 Labour Law - Analysis, Part 3

[ppi]

Hello,

Could you please provide us part 1 and part 2 of the dec. 26 labour law -
analysis?

Thanks in advance,

PPI/MPFA

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> From: amrc <serapina at HK.Super.NET>
> To: h.y.cho at lancaster.ac.uk
> Cc: asia-apec at jca.or.jp
> Subject: [asia-apec 362] Re: Dec. 26 Labour Law - Analysis, Part 3
> Date: Tuesday, February 25, 1997 11:51 AM
> 
> 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.