Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Republic of Korea (Ratification: 1998)

Article 1 of the Convention. Discrimination on the basis of political opinion and inherent requirements of a particular job. School teachers. The Committee recalls its previous comments in which it expressed concerns regarding the prohibition of pre-school, primary and secondary school teachers from engaging in political activities. It further recalls that in June 2015, the Committee on the Application of Standards (CAS) of the International Labour Conference had urged the Government to provide more detailed information on the issue of a possible discrimination on the basis of political opinion against teachers, so as to allow a solid assessment of the compliance of the related laws and practice with the Convention.

The Committee notes that, in its report, the Government recalls the constitutional requirement of political neutrality of education and declares that any activities of primary and secondary school teachers, whether they take place at work or not, and within the school or not, are potentially part of education, as teachers have an important influence in developing the characters and basic habit of primary and secondary school students who are receptive to what they learn. According to the Government, it is therefore inappropriate to separate “activities outside the classroom and the school and unrelated to teaching from any other activities of teachers”, and it recalls that this position has been upheld by the Korean Constitutional Court in its ruling of 25 March 2004. The Government concludes therefore that the current law does not impose an excessive restriction on teachers, as they are allowed nevertheless: (i) to express their political views, if they are not views from trade unions and other groups to which the teachers belong but are “personal”; and (ii) to engage in activities which are within the scope of their “personal” activities, as long as they do not constitute activities banned under the State Public Officials Act. In this regard, the Committee observes that section 65 of the State Public Officials Act does not permit public officials to “participate in an organization of, or join in, any political party or other political organization” or to “engage in the following activities to support or oppose a specified political party or person in an election: soliciting any person to cast or not to cast a vote; attempting, superintending, or soliciting a signed petition campaign; putting up, or causing another person to put up, documents or books at public facilities, etc.; raising, or causing another person to raise, any contribution, or using, or causing another person to use, public funds; soliciting another person to join or not to join a political party or any other political organization”. In addition, “no public official shall demand other officials to engage in any activity against paragraphs (1) and (2) [of section 65], or promise him/her any advantage or disadvantage as a reward or retaliation for any political activities” (section 65(3)).

The Committee wishes to recall that protection against discrimination on the basis of political opinion implies protection in respect of the activities of expressing or demonstrating opposition to established political principles and opinions. It also covers discrimination based on political affiliation (General Survey of 2012 on the fundamental Conventions, paragraph 805). The Committee also recalls that, although in certain circumstances restrictions with respect to political opinion might constitute a bona fide qualification for certain posts (an inherent requirement of the job), it is essential that such restrictions are not carried beyond certain limits, as such practices may then come into conflict with the Convention’s provisions calling for the implementation of a policy designed to eliminate discrimination on the basis of political opinion, in particular in respect of public employment (see 2012 General Survey, paragraph 831). Consequently, the inherent requirement of a particular job provision must be interpreted restrictively so as to avoid undue limitation of the protection that the Convention is intended to provide. In the case in question, the Committee cannot but reiterate that, in so far as political activities are held outside of the school establishment and are unrelated to teaching, a general prohibition of political activities does not constitute an inherent requirement within the meaning of Article 1(2) of the Convention. Therefore, disciplinary measures against teachers who engage in such activities constitute discrimination on the ground of political opinion, contrary to the Convention. Consequently, the Committee once again urges the Government to take immediate steps to ensure that elementary, primary and secondary school teachers enjoy protection against discrimination based on political opinion, as provided for in the Convention, regarding activities that are carried out outside the classroom and the school and unrelated to teaching, as well as measures to ensure that teachers are not subject to disciplinary measures for such reasons.

Article 1(2). Inherent requirements of the job. Political opinion and public officials. The Committee recalls that it had requested the Government to indicate the reason why prohibiting public officials from joining a political party and participating in political activities (sections 65(1) of the State Public Officials Act) was related to an inherent requirement of the job. The Committee notes the Government’s reply that this prohibition is aimed at guaranteeing public officials’ neutrality, protecting them from unfair intervention by political powers and helping enhance public interest in maintaining consistency and continuity of the administration. In addition to its comments in the above paragraph, the Committee wishes to point out that, political opinion may be taken into consideration as a prerequisite justified by the inherent requirements of a given job, only if this restriction applies to a narrow range of jobs and not for the entire public sector. Furthermore, the Committee recalls that the concept of “a particular job” refers to a specific and definable job, function or task; any limitation within the context of this exception must be required by the characteristics of the particular job, and be in proportion to its inherent requirements, and must be interpreted restrictively. The Committee considers that, in no circumstances should the same requirement involving one or more of the grounds of discrimination be applied to an entire sector of activity or occupation, especially in particular in the public sector (see 2012 General Survey, paragraph 828). Consequently, the Committee asks the Government to consider limiting the prohibition of political activities to certain positions and therefore to consider the possibility of adopting a list of jobs in the public service for which political opinion will be an inherent requirement. In the meantime, it requests the Government to provide information on the practical application of sections 65(1) of the State Public Officials Act, following the decision of the Constitutional Court, including on any disciplinary action taken.

The Committee is raising other matters in a request addressed directly to the Government.