[asia-apec 365] Re: Dec. 26 Labour Law - Analysis, Part 3

[AMRC]

 Dear friend, 
I don't knwo who are you, but suppose you are friend of Jo Hee youn brother.
Whatever you want to know the situation of Korean strike,
You can access the homepage of KCTU and e-mail - kctu at chollian.dacom.co.kr

Best wishes
Serapina Cha Mi-kyung


>> 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.
>