Report in which the committee requests to be kept informed of development - Report No 351, November 2008

Case No 2569 (Republic of Korea) - Complaint date: 20-MAY-07 - Closed

Allegations: Absence of dialogue with the teachers’ organization in the development and implementation of a system of teacher evaluation; prohibition of the right of assembly; denial of the right to strike; imposition of disciplinary sanctions against teachers who participated in union assemblies; and violation of freedom of expression

1. 592. The complaint is contained in a joint communication from Education International (EI) and its member organization, the Korean Teachers and Education Workers Union (KTU), dated 25 May 2007. The complainants submitted additional information in a communication dated 10 March 2008.
2. 593. The Government sent its observations in communications dated 23 May and 20 August 2008.
3. 594. The Republic of Korea has not ratified either the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). It has ratified the Workers’ Representatives Convention, 1971 (No. 135).

A. The complainants’ allegations

1. 595. In a communication dated 25 May 2007, the EI and the KTU allege that the Government continues to reject opportunities for a meaningful dialogue with the KTU with regard to a new education policy; and that it continues to violate their freedom of association rights through the prohibition of the right of assembly and denial of the right to strike and violation of freedom of expression.
   • Lack of social dialogue with the KTU
   • in respect of education reform
2. 596. In their communication dated 25 May 2007, the EI and the KTU allege that the Government has refused to involve teachers and their representative professional organizations in the development and implementation of a teacher evaluation system. According to the complainants, the Government not only rejected collective bargaining but also opportunities for meaningful dialogue with the KTU before it introduced an important new education policy. About 230,000 teachers – of the 400,000 teachers working in the Republic of Korea – rejected the new policy in 2005. In response to the opposition, on 20 June 2005, the Ministry of Education and Human Resources Development (MOEHRD) agreed to organize a “Special Council to Raise Educational Quality of Schools” with the participation of representatives of the Ministry, as well as representatives from three teachers’ organizations (including the KTU) and parents’ associations. The agreement included MOEHRD’s commitment not to introduce an evaluation system through the choosing of model schools. However, in spite of the agreement, on 20 October 2005, the MOEHRD held a press conference to announce enforcement of the teacher evaluation system regardless of the result of the public hearing to be held later in the same day. Ultimately, the MOEHRD unilaterally enforced the teacher evaluation system on 4 November 2005.
3. 597. More recently, in February 2007, without further communication with teachers’ organizations, a draft Bill to carry out an evaluation of teachers’ performance in 2008 was submitted at an extra session of the National Assembly. Although a number of political parties did not support the proposed legislation, on 13 April 2007, the MOEHRD submitted it again, unchanged and without consultation with the teachers’ associations, to a public hearing of the Education Committee of the National Assembly. In June 2007, the National Assembly began deliberations on amending the Teacher Union Act. The amendment focuses on the distribution of collective bargaining power to multiple teachers’ unions so that unions may combine their bargaining items. Currently, the KTU is denied bargaining right with the MOEHRD.
   • Prohibition of the right of assembly
   • and denial of the right to strike
4. 598. On 20 October 2005, hundreds of KTU members protested against the Government’s decision to unilaterally impose the teacher evaluation system. The MOEHRD mobilized police squads to take protesters to police stations. Three teacher representatives were arrested and held for four months.
5. 599. In March 2006, the KTU elected new leaders and continued to protest against the teacher evaluation system. After failing to have a meaningful dialogue with the MOEHRD, the KTU decided to use the teacher annual leave provision to call for a protest rally on 22 November 2006. About 3,000 South Korean teachers took leave and rescheduled their classes in order to join the union assembly outside the Ministry building. The complainants state that, a day prior to the assembly, on 21 November 2006, the MOEHRD instructed school principals to reject teachers’ applications for annual leave, or requests to leave school earlier than usual, thus restricting the teachers’ right to assembly and freedom of collective expression.
6. 600. While the Teacher Union Act guarantees the right to organize and the Labour Union Act allows holding assemblies and meetings, the Teacher Union Act forbids the right to strike. Hence, under the law, unions must make their demands through other means. Article 15, item 4, of the Government Officials Public Service Regulations specifies that “administrative organizations should permit annual leave as far as there is no severe interference with the performance of the public service when such a request is submitted”. Thus, leaving school earlier than usual or taking an annual leave of absence to participate in a union assembly is permissible under the Teacher Union Act, because when such acts do not interfere with the normal operation of a school they cannot be considered a strike action. The complainants claim that there was no interference with the performance of the relevant public service in this case because the teachers who requested leave were substituted by their colleagues in order to avoid disrupting the students’ learning process. The complainants further allege interference of principals in the agreement between teachers to exchange classes.
7. 601. Eventually, the teachers’ requests for leave were rejected pursuant to the abovementioned instructions of the MOEHRD, according to which:
   • (a) principals should take responsibility for actively developing “preventive activities”, such as persuasion, to counter teachers who are expected to participate in an assembly;
   • (b) principals should deny teachers’ applications for annual leave or leaving school earlier than usual for the purpose of participating in an assembly (principals who allow it without justifiable reasons will be strictly punished);
   • (c) principals should actively propagate the idea that collective actions are unlawful;
   • (d) principals should draw up lists of teachers participating in the “annual leave rally” with the intent to impose “post-measures”;
   • (e) principals should post the letter of the MOEHRD and send it to teachers.
     • The MOEHRD’s letter describes the KTU’s “annual leave rally” as “an unlawful collective behaviour against the Government Officials Public Service Regulations” and states that “the Minister will strongly punish the participants of this rally, regardless of the extent of their participation”.
   • 602. On 21 November 2006, the MOEHRD issued a press release stating that “the rally was an illegal collective behaviour and a relic of authoritarianism infringing on students’ right to learn”. The MOEHRD and the Superintendents for the Seoul and Busan Metropolitan Offices of Education issued an appeal to the KTU stressing that: “it is not educational that teachers take collective action outside the school”.
8. 603. In their communication dated 20 May 2007, the EI and the KTU further allege that, following the 22 November 2006 rally, the MOEHRD announced that it would impose disciplinary measures on teachers based on the frequency of their participation in annual leaves of absence or for leaving school early with the purpose of joining union rallies carried out since 2000. The Ministry explicitly stated that the teachers who repeatedly attended annual leave rallies had been targeted for more severe disciplinary measures, such as pay cuts. The MOEHRD sent admonitory letters to the 1,856 participants of three or fewer assemblies since the year 2000 (including the rally in 2006) and applied disciplinary sanctions against 436 teachers who had participated in four or more assemblies since the same year. Of the 436 teachers disciplined, six were subject to one- to three-month salary deductions, 198 lost their annual salary bonus and were disadvantaged in their regular salary increase, 156 were punished with other disadvantages and changes, and 76 received admonitory letters. The disciplinary measures were imposed despite the Government’s ratification of the Workers’ Representatives Convention, 1971 (No. 135), and despite the Government Officials Act which provides that a request for a disciplinary punishment cannot be made more than two years after the cause for punishment occurred.
9. 604. When the disciplinary committees of the district education offices convened on 25 January 2007, the 436 teachers were restricted in their right to respond to charges, as they were given only three minutes to provide their response, while article 9 of the Disciplinary Punishment Ordinance for the Public Educational Personnel and Staff states that “a suspected person should have a chance to make sufficient statements” and that “a decision of disciplinary punishment giving no chance of statement becomes invalid”. In February 2007, the teachers punished with pay cuts argued the invalidity of the disciplinary procedures at the Appeals Commission of the MOEHRD, which planned to examine these requests in May 2007.
10. 605. In their subsequent communication dated 10 March 2008, the complainants indicate that 415 teachers were punished in May 2007. The KTU is aware of the punishments imposed on 248 teachers: the salaries of six teachers were reduced; 204 teachers were penalized in the yearly salary increases; 69 received warnings and disadvantages; and 136 received warnings. Out of 271 teachers who requested to annul the punishment, only three were accepted by the Government. The Government re-examined 47 cases and reduced the original disciplinary sanctions and rejected 198 other cases.
11. 606. In their communication dated 10 March 2008, the complainants further allege that, following the presidential election of 19 December 2007, the Provincial Offices of Education of several provinces attempted to force 125 disciplined teachers out of their schools from late December 2007 to mid-January 2008. The KTU succeeded in protecting them.
    • Violation of freedom of expression
12. 607. On 18 January 2007, two middle-school teachers and members of the KTU were arrested for allegedly violating the National Security Law. The charges, which carry a potential death penalty, are related to posters and information on North Korean politics that the teachers uploaded on the Internet. The unions submit that the two teachers were previously awarded for their contribution to peace education and that the information uploaded was easily accessible from other public sources. The two teachers were later released on bail with the determination of a trial date still pending. The complainants contend that the arrests constituted a violation of the teachers’ freedom of expression.
13. 608. In their communication dated 10 March 2008, the complainants further allege that on 29 January 2008, the police arrested Mr Kim Hyeong-geun, a member of the KTU’s Reunification Committee who has researched North Korean ideology and policies with an eye to promoting education for peace and mutual understanding between South and North Korean students. He was charged with violating the National Security Law and detained in a Seoul prison after the court declined review of the legality of his confinement. Prior to the arrest, in April 2007, the police searched Mr Kim’s home, but he was not charged at the time. On 24 February 2008, the police also searched the house and office of Ms Choi Bokyong, who had promoted peace education in her class and in union education programmes.

B. The Government’s reply

1. 609. In its communications of 23 May and 20 August 2008, the Government states that the allegations in this case concern the teachers’ evaluation system pushed for by the Government. It disputes the complainants’ allegations of a lack of social dialogue and attempts to restrain the lawful activities of teachers’ unions during the development and implementation of the system. It considers that these allegations are completely different from the facts and are irrelevant to the principles of freedom of association.
2. 610. With regard to the allegation of lack of social dialogue with the teachers’ associations on education reform, the Government explains that one great advantage of the education system in the Republic of Korea is that teachers can engage in educational activities, feeling secure in their jobs because their retirement age, pay and status are fully guaranteed by law. Yet, such a system has a big drawback: without a stimulus to encourage continuous self-development, it cannot ensure the improvement of teachers’ professional expertise. An opinion survey in 2005 showed that 83 per cent of the population are in favour of the introduction of a teacher evaluation system. The Organisation for Economic Co-operation and Development (OECD) Policy Review Team for Teaching Personnel also recognized that the teaching personnel system in the Republic of Korea guarantees stable working conditions, wages, etc., but pointed out that the current performance evaluation system does not provide a mechanism for promoting the expansion of teachers’ expertise. It therefore recommended introducing a new teacher evaluation system. In light of this, the Korean Government began its work to introduce a teacher evaluation system with a view to enhancing trust in public education by motivating teachers to enhance their expertise and quality with their status guaranteed. The Government provides details on the features of the teacher evaluation system, which include a peer evaluation of elementary and middle-school, in-class activities, and a feedback on teaching and students’ guidance through student and parent opinion surveys.
3. 611. The Government maintains that, in the process of introducing the teacher evaluation system, it involved various interested parties, including teachers and their representative organizations. According to the Government, the process, which began in the year 2000, partially consisted of the following activities: public opinion survey for the reform of the teaching personnel management system (July 2003–November 2004); gathering and hearing teachers’ opinions through the cyber advisory group of teachers (June 2004); policy research on the reform of the teacher evaluation system, which included two regional debates and one public hearing organized by three academic societies to ensure the involvement of teachers’ organizations and parents’ groups in the process (August 2004–February 2005); consultation meetings with teachers’ organizations (20 meetings during May 2004–May 2005); establishing a special consultative body to discuss the implementation of the evaluation system composed of seven representatives from three teachers’ organizations, two parents’ group and the Government (June–May 2005); collecting and hearing opinions on the institutionalization of the evaluation system with four teachers’ organizations, including the KTU (August–September 2006); and public hearing on the direction of the policy of assessing teachers’ skills development with the participation of teachers’ organizations, including the KTU (October 2006). The Government admits that the KTU (with a membership of 80,000), unlike the other parties involved in the process, such as the Korean Federation of Teachers’ Associations (KFTA) (the largest group of professional teachers, with a membership of 180,000), parents’ groups and civic groups, opposed the teacher evaluation system. Therefore, the fact that the KTU’s opposition did not prevail does not, in itself, support the claim that the process of introducing the teacher evaluation system was devoid of dialogue among the interested parties.
4. 612. In its recent communication, the Government indicates that the Bill on the teacher evaluation system was going to be presented at a plenary meeting of the National Assembly in March 2007, but it was put off under agreement between the ruling and opposition parties. The Bill was automatically scrapped as it failed to be brought up for discussion by February 2008, when the 17th Session of the National Assembly closed.
5. 613. The Government refutes the KTU’s allegation that it is denied collective bargaining with the Ministry of Education and explains that, according to the current Teachers’ Union Act, many teachers’ unions can conduct collective bargaining with the Ministry of Education, Science and Technology after establishing a single bargaining channel. A variety of teachers’ organizations operate in Korea. Among them are the KFTA, established in 1947, the KTU, established in 1999, the Korean Union of Teaching and Education Workers (KUTE), established in 1999 and with a membership of approximately 2,000, and the Korean Liberal Teachers’ Association (KLTU), established in 2006 and with a membership of approximately 4,700. In September 2005, the KFTA and the KTU succeeded in establishing a single bargaining channel and had working-level talks in preparation for collective bargaining. They agreed to hold main bargaining talks in May 2006. However, just before this, the KLTU was set up and demanded to take part in the collective bargaining. Since then, the three unions have failed to come up with a single bargaining channel due to differences of opinions. As a consequence, the collective bargaining process is temporarily halted. Therefore, it cannot be argued that bargaining with the Ministry of Education, Science and Technology was denied.
6. 614. The Government further states that, in the process of discussing whether or not to implement the teacher evaluation system, the KTU engaged in collective action to thwart the dialogue. On 20 October 2006, three KTU members, along with their 20 or so colleagues, broke into the place where a public hearing on the teacher evaluation system was due to take place, occupied the podium and committed violence, taking away the microphone and chanting slogans. In doing so, they interfered with the performance of official duties. Previously, on 14 and 19 July 2006, they held a rally without giving advance notice. During the rally, they occupied roads, causing severe traffic jams. On 22 October 2006, the three union members were arrested on charges of violation of the “Act on Punishment of Violation, etc.”, obstruction of performance of duties by officials, violation of the Assembly and Demonstration Act and traffic obstruction. They were released on bail on 28 December 2006. The cases were tried in the competent district court with due process respected. In the Court of First Instance, on 18 January 2007, all three were sentenced from seven to eight months of imprisonment with the benefit of a two-year sentence suspension. However, in the Court of Second Instance, the decision to defer the sentence was made for two trade unionists. The remaining unionist filed an appeal to the Supreme Court, which dismissed the appeal, confirming the sentence. The Government reiterates that the three KTU officials did not engage in legitimate union activities but rather in unlawful acts, such as violence, beyond the boundaries of the labour rights guaranteed by the Constitution.
7. 615. With regard to the alleged denial of the right to strike in the Teacher Union Act, the Government explains that, in the Republic of Korea, many teachers have the same status as public officials. Private-school teachers are subject to the same laws and regulations as national and public-school teachers. Accordingly, teachers have the duty to perform their job in good faith and are prohibited from leaving their workplace without permission and engaging in political movement. Hence, in principle, during working hours, teachers should not engage in union activities without the permission of their school principals. However, when engaging in union activities, teachers should not violate their obligations under the Government Officials Act and other related laws and regulations. In accordance with the above Act, teachers are considered to be public officials exercising authority in the name of the State. The Government Officials Act and the Teacher Union Act, while fully guaranteeing teachers’ right to organize and to collective bargaining, restrict the right to collective action. The restriction is justified in light of the nature of teachers’ work and expectations about their role in society: interruptions in education could have an enormous impact on the lives of the general public as well as the education of the students. In this respect, the Government points out that while there is no ILO Convention providing for the right to strike, the Committee’s position with regard to the public services is the following: “recognition of the principle of freedom of association in the case of public servants does not necessarily imply the right to strike” and that “the prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State”. The Government further emphasizes that, pursuant to Article 8 of Convention No. 87, “in exercising the rights provided for in this Convention, workers and employers and their respective organizations, like other persons or organized collectivities, shall respect the law of the land”.
8. 616. The Government also indicates that, at the time of the discussions on the enactment of the Teacher Union Act, even the KTU accepted the concern expressed by the population and took a favourable view on restricting the teachers’ right to collective action, which was ultimately reflected in the Act. The Government stresses that the same Act guarantees to teachers the right to organize, the right to conduct collective bargaining and the right to conclude collective agreements. In this regard, the teachers are exempt from civil and criminal liabilities for legitimate union activities, and the employers are imposed a duty to engage in good faith collective bargaining with the teachers. Violations of this duty on the part of employers fall within the definition of “unfair labour practices” and are punished accordingly.
9. 617. The Government further contends that the teachers’ engagement in social dialogue is guaranteed through a legal framework already in place. In accordance with the Special Act on Improvement of Teachers, vocational organizations can exercise bargaining and negotiation rights in order to improve teachers’ working conditions and treatment and expand their welfare and expertise. It is also possible for teachers’ unions to present their opinions on education policies and related current issues through policy consultation meetings. In addition, in those cases where a dispute arises, the teachers’ unions can apply for mediation or arbitration to the Labour Relations Commission pursuant to the Teacher Union Act and can be involved at every stage to protect their interests. A remedy for unfair labour practice is also available in cases of disadvantageous treatment for having engaged in legitimate union activities.
10. 618. With regard to annual leave rallies in November 2006, the Government considers that education policies are a matter for the competent administrative agency. If teachers take collective action just because they have different opinions on a particular policy, it could interfere with the normal operation of schools and thus infringe upon students’ right to learn. Such collective action falls outside the range of legitimate union activities and cannot be justified.
11. 619. According to the relevant regulations, unless there is a special reason, teachers should take annual leave during vacations so as not to cause any loss of school days. In the present case, when many teachers took their annual leave simultaneously – following the KTU’s instruction to oppose the proposed teacher evaluation system – the competent government agency did not permit their leave because the collective use of leave was obviously expected to cause disruption to the normal operation of schools, undermine students’ right to learn and provoke a backlash from parents.
12. 620. In the process, the MOEHRD asked the KTU to refrain from such actions and instructed the Metropolitan and Provincial Offices of Education and schools at all levels to strictly manage the conduct of teachers to ensure that they did not participate. In an effort to prevent such collective activities, the MOEHRD sent teachers a letter in the name of the Deputy Prime Minster and requested the relevant authorities and schools to post the letter on their web sites.
13. 621. With regard to the imposition of disciplinary measures, the Government explains that those are intended to maintain order and establish discipline. Teachers become subject to disciplinary measures if they violate the Government Officials Act, breach or neglect their duties or commit any act undermining their dignity and status as a teacher. Given the relevant laws and regulations, the use of annual leave without permission to protest against the teacher evaluation system is a violation of the Government Officials Act and the Government Officials Public Service Regulations. To ensure the fairness of the disciplinary measures, the Government set criteria based on the frequency of participation in annual leave rallies without permission.
14. 622. As a result, a total of 421 of the KTU members became subject to disciplinary measures. Among them, 271 filed an appeal, of which 198 cases were dismissed, 23 turned down and 50 accepted (in 46 cases, disciplinary measures were cancelled and four were modified). With regard to the complainants’ statement that it is illegal to impose administrative measures based on the frequency of participation in rallies, including those for which the statute of limitations had expired, the Government maintains that the imposition was in compliance with the Disciplinary Punishment Ordinance for the Public Educational Personnel and Staff, which provides that disciplinary authorities, when deciding on disciplinary action, should take into account the suspected offender’s conduct, performance records, as well as achievements and signs of repentance. The case against the KTU members joining annual leave rallies went through several court trials and on 11 May 2007, the Supreme Court concluded the case by delivering a final verdict, acknowledging the legitimacy of the disciplinary measures.
15. 623. With regard to the allegation of violation of teachers’ freedom of expression, the Government indicates that the two teachers mentioned in the complainants’ first communication operated an Internet café for the Unification Committee of the Seoul Branch of the KTU from 2005 to 2006. They uploaded to the Internet contents admiring and advocating Kim Jung-il, the North Korean socialist regime and North Korea’s plan for unification under a federal system extracted and edited from guidelines for revolutionary struggles in South Korea, speeches, editorials, theses, etc. on the web site of the Anti-Imperialist National Democratic Front. They also posted various propaganda materials, including calls for the abolition of the National Security Law. On 20 January 2007, they were arrested and three months later, on 20 April, released on bail. Their case is now pending before the Court of First Instance.
16. 624. With regard to the two individuals mentioned in the second communication, the Government indicates that Mr Kim Hyeong-yeun was arrested and sentenced to one year in jail with a two-year suspension of sentence for violating the National Security Law in 1996. In May 2005, he led 180 young middle school students to participate in a ceremony to pay tribute to patriots (Partisans) who died in a struggle to achieve unification against the South Korean Government. He also continued to provide education praising the revolutionary orthodoxy of North Korea. In April 2006, he posted on the Internet a “Report by Kim Young-nam on the 94th birthday of Kim Il-sung” and distributed many documents praising Kim Il-sung and North Korea’s socialism. After an investigation involving a seizure and search in his home and school, he was arrested in January 2008 and released on bail in June 2008. As a result of the investigation, he was found to have committed offences and was therefore prosecuted. His first-instance trial is now under way. Ms Choi Bokyong was sentenced to one year in prison with a two-year suspension of sentence for breaking into a building and violating the Assembly and Demonstration Act in 1997. Between August 2003 and February 2008, she posted documents emphasizing North Korea’s view on unification and the superiority of North Korea’s socialism on the website of the school where she was working. She was arrested without detention for committing such acts in June 2008 and is now under investigation.
17. 625. The Government considers that while the complainants argue that the acts committed by teachers are part of peace education, given Korea’s unique realities, such as the division between North and South Koreas and the military confrontation, providing ideologically biased education to young students could represent a grave danger to national security and freedom and is nothing other than a violation of the National Security Act, which has nothing to do with normal union activities. The two abovementioned persons were and are investigated by the competent authorities, such as the Public Prosecutor’s Office and courts, by due process for violating the current laws.
18. 626. The Government once again stresses that the described acts have nothing to do with the protection and promotion of union members’ interests or general labour issues but rather constitute political activities aimed at praising a country in military confrontation with South Korea. As long as such activities go against the current law, union members cannot avoid level liability. The Government maintains that all fundamental rights including the freedom of expression are not unconditionally guaranteed. According to article 37(2) of the Korean Constitution, fundamental rights can be restricted by law only when it is necessary for national security, maintaining law and order or for public welfare. More specifically, the National Security Act restricts freedom of expression to the extent necessary to control activities that could endanger the existence and safety of the State, or the liberal democratic order. The Government considers that, in so far as there is a question of violation of the National Security Act, the punishment of the two teachers is not an issue for discussion at the Committee on Freedom of Association.
19. 627. The Government concludes by expressing its will to continue making efforts in favour of the development of teachers’ skills through continuous dialogue and consultation among interested parties, such as schoolteachers at all levels, parents, etc., and by introducing and implementing necessary systems. It understands that this process will no doubt need a sufficient level of social dialogue and the reaching of a national consensus.

C. The Committee’s conclusions

1. 628. The Committee notes that the complainants in this case, EI and its member organization, the KTU, allege the absence of dialogue with the teachers’ organization in the development and implementation of a system of teacher evaluation; the prohibition of the right to assembly and the denial of the right to strike; and the violation of freedom of expression.
2. 629. With regard to the first set of allegations, the complainants explain that the Government refused to involve teachers and their representative professional organizations in the development and implementation of a new teacher evaluation system and unilaterally imposed the new system in November 2005, despite the fact that the new policy was rejected by over half the teachers. More recently, in February 2007, a draft Bill to carry out an evaluation of teachers’ performance was submitted to the National Assembly, without consultations with the associations of teachers.
3. 630. The Government disputes the allegation of lack of social dialogue with respect to the development and implementation of the teacher evaluation system. It stresses the need for such a reform, recommended by the OECD and supported by the general public, and provides details on its features, and maintains that the process of introducing the teacher evaluation system involved various interested parties, including teachers and their representative organizations, parents’ and other civic groups. The Government lists the consultation activities which were held in this regard. It further indicates that unlike the KTU (80,000 members), the Korean Federation of Teachers’ Associations, the largest group of professional teachers (180,000 members), and the other parties to the consultations did not oppose the reform. The Government therefore considers that just because the KTU’s position did not prevail does not support its claim that the process of introducing the teacher evaluation system was devoid of dialogue among interested parties.
4. 631. The Committee notes that that the teacher evaluation system has already been in place since November 2005 and that, while the complainants submit that the new system was unilaterally imposed, the Government insists that all interested parties were involved in an extensive consultation process which began in 2000. The Committee has considered that, while the determination of the broad lines of educational policy is not a matter for collective bargaining between the competent authorities and teachers’ organizations, although it may be normal to consult these organizations on such matters [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 922], matters touching upon employment terms and conditions fall within the scope of collective bargaining. The same would apply with regard to the teacher evaluation system. The Committee notes the Government’s expression of will to continue making efforts in favour of the development of teachers’ skills through continuous dialogue and consultation among interested parties, such as schoolteachers at all levels, parents, etc., and understanding that this process will no doubt need a sufficient level of social dialogue and the reaching of a national consensus. The Committee therefore expects that any future consultations with regard to the reform in the education sector, particularly those concerning the terms and conditions of teachers, as well as with regard to any legislation affecting teachers and their trade union rights, will take place in good faith, confidence and mutual respect, and that the parties will have sufficient time to express their views and discuss them in full with a view to reaching a suitable compromise.
5. 632. The complainants further allege that teachers are denied the right of assembly and the right to strike. They explain in this respect that, in view of the prohibition of the right to strike under the Teacher Union Act, the only possibility open to teachers to express their dissatisfaction collectively is through participation in rallies, assemblies and protests organized during their annual leave. According to the complainants, such leave can be taken as long as it does not interfere with the normal operation of schools. In the present case, the complainants allege that in November 2006 leave of absence was denied to about 3,000 teachers who wished to participate in the union assembly to protest against the teacher evaluation system imposed by the Government. The complainants allege that teachers’ requests for leave were rejected pursuant to the instructions of the MOEHRD, which described the KTU’s annual leave rally as “unlawful collective behaviour against the Government Officials Public Service Regulations” and promised “to punish the participants of the rally, regardless of the extent of their participation”.
6. 633. According to the complainants’ first communication, the MOEHRD sent admonitory letters to the 1,856 participants of three or fewer assemblies since the year 2000 (including the rally in 2006) and applied disciplinary sanctions against 436 teachers who had participated in four or more assemblies during the same year. Of the 436 teachers disciplined, six were subject to one- to three-month salary deductions, 198 lost their annual salary bonus and were disadvantaged in their regular salary increase, 156 were punished with other disadvantages and changes, and 76 received admonitory letters. When the disciplinary committees of the district education offices convened on 25 January 2007, the 436 teachers were restricted in their right to respond to charges, as they were given only three minutes to provide their response, contrary to article 9 of the Disciplinary Punishment Ordinance for the Public Educational Personnel and Staff. In February 2007, the teachers punished with pay cuts argued the invalidity of the disciplinary procedures at the Appeals Commission of the MOEHRD, which examined these requests in May 2007. In their subsequent communication, the complainants indicate that 415 teachers were punished in May 2007. The KTU is aware of the punishments imposed on 248 teachers: the salaries of six teachers were reduced; 204 teachers were penalized in the yearly salary increases; 69 received warnings and disadvantages; and 136 received warnings. Out of 271 teachers who requested annulment of their punishment, only three were accepted by the Government. The Government re-examined 47 cases and reduced the original disciplinary sanctions and rejected 198 other cases.
7. 634. On the same issue, the complainants indicate that already in October 2005 hundreds of KTU members protested the Government’s decision to unilaterally impose the teacher evaluation system. The MOEHRD mobilized police squads to take protesters to police stations. Three teacher representatives were arrested and held for four months.
8. 635. With regard to these allegations, the Government states that, on 20 October 2006, three KTU members, along with their 20 or so colleagues, broke into the place where a public hearing on the teacher evaluation system was due to take place, occupied the podium and committed violence, taking away the microphone and chanting slogans. In doing so, they interfered with the performance of official duties. Previously, on 14 and 19 July 2006, they held a rally without giving advance notice. During the rally, they occupied roads, causing severe traffic jams. On 22 October 2006, the three union members were arrested on charges of violation of the “Act on Punishment of Violation, etc.”, obstruction to the performance of duties by officials, violation of the Assembly and Demonstration Act and traffic obstruction. They were released on bail on 28 December 2006. The cases were tried in the competent district court with due process respected. In the Court of the First Instance, on 18 January 2007, all three were sentenced from seven to eight months of imprisonment with the benefit of a two-year suspended sentence. However, in the Court of the Second Instance, the decision to defer the sentence was made for two trade unionists. The remaining unionist filed an appeal to the Supreme Court, which dismissed the appeal, confirming the sentence. The Government reiterates that the three KTU officials did not engage in legitimate union activities but rather in unlawful acts, such as violence, beyond the boundaries of the labour rights guaranteed by the Constitution.
9. 636. With regard to the alleged denial of the right to strike in the Teacher Union Act, the Government explains that, in the Republic of Korea, many teachers have the same status as public officials. Private-school teachers are subject to the same laws and regulations as national and public-school teachers. They have the duty to perform their job in good faith and are prohibited from leaving their workplace without permission and engaging in political movement. Hence, in principle, during working hours, teachers should not engage in union activities without permission of their school principals. However, when engaging in union activities, teachers should not violate their obligations under the Government Officials Act and other related laws and regulations. In accordance with the above Act, teachers are considered to be public officials exercising authority in the name of the State. The Government Officials Act and the Teacher Union Act, while fully guarantee teachers’ right to organize and to collective bargaining, restrict the right to collective action. The restriction is justified in light of the nature of the teachers’ work and expectations about their role in society: interruptions in education could have an enormous impact on the lives of the general public as well as the education of the students. In this respect, the Government points out that, while there is no ILO Convention providing for the right to strike, the Committee’s position with regard to the public services is the following: “recognition of the principle of freedom of association in the case of public servants does not necessarily imply the right to strike” and that “the prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State”. The Government further emphasises that pursuant to Article 8 of Convention No. 87, “in exercising the rights provided for in this Convention, workers and employers and their respective organizations, like other persons or organized collectivities, shall respect the law of the land”.
10. 637. With regard to rallies in November 2006, the Government firstly considers that, if teachers take collective action just because they have different opinions on a particular policy, it could interfere with the normal operation of schools and thus, infringe upon students’ right to learn. Such collective action falls outside the range of legitimate union activities and cannot be justified. Secondly, it explains that, according to the relevant regulations, unless there is a special reason, teachers should take annual leave during vacations so as not to cause any loss of school days. In the present case, when many teachers took their annual leave simultaneously, the competent government agency did not permit their leave because the collective use of leave was obviously expected to cause disruption to the normal operation of schools, undermine student’s right to learn, and provoke a backlash from parents. The Government confirms that the MOEHRD instructed the Metropolitan and Provincial Offices of Education and schools at all levels to manage strictly the conduct of teachers to ensure that they did not participate in rallies.
11. 638. With regard to the imposition of disciplinary measures, the Government explains that those are intended to maintain order and establish discipline. Teachers become subject to disciplinary measures if they violate the Government Officials Act, breach or neglect their duties or commit any act undermining their dignity and status as a teacher regardless of relevance to their work. In the present case, the use of annual leave without permission to protest against the teacher evaluation system is a violation of the Government Officials Act and the Government Officials Public Service Regulations. To ensure the fairness of disciplinary measures, the Government set criteria based on the frequency of participation in annual leave rallies without permission. As a result, a total of 421 of the KTU members became subject to disciplinary measures. Among them, 271 filed an appeal, of which 198 cases were dismissed, 23 turned down and 50 accepted (in 46 cases, disciplinary measures were cancelled and four were modified). With regard to the complainants’ statement that it is illegal to impose administrative measures based on the frequency of participation in rallies, including those for which the statute of limitations had expired, the Government states that the imposition of penalties was in compliance with the Disciplinary Punishment Ordinance for the Public Educational Personnel and Staff. The case against the KTU members joining annual leave rallies went through several court trials and on 11 May 2007, the Supreme Court concluded the case by delivering a final verdict, acknowledging the legitimacy of the disciplinary measures.
12. 639. The Committee notes that the main issue at hand is the prohibition of the right to collective action (protest, demonstrations and strikes) in the education sector as, under the national legislation, teachers in public and private sectors are considered to be public servants exercising the authority in the name of the State. At the outset, the Committee stresses that peaceful demonstration and protests organized to support trade unions’ position in the search for solutions to problems posed by government policies, which have impact on their members, are legitimate trade union activities. With regard to the right to strike, specifically, the Committee recalls that it has had to deal with many cases over recent years involving restrictions on the freedom of action of teachers, including Cases Nos 1629 and 1865 concerning the Republic of Korea (see 286th and 346th Reports, respectively). The Committee had found that “workers in education are not covered by the definition of essential services or of the public service exercising the powers of public authority” and should therefore have the right to strike, except for school principals and deputy principals who exercise the prerogatives of the public authority and whose right to strike can be limited [see 277th Report, paras 285 and 289, as recalled in Case No. 1865, 346th Report, para. 772]. Furthermore, arguments that civil servants do not traditionally enjoy the right to strike because the State as their employer has a greater obligation of protection towards them have not persuaded the Committee to change its position on the right to strike of teachers [see Digest, op. cit., para. 589]. The Committee therefore urges the Government to take the necessary measures, in consultation with the social partners, in order to amend the national legislation so as to ensure that teachers in the public and private sector enjoy the right to demonstrations, public meetings and strikes to defend their occupational interests. It requests the Government to keep it informed in this respect.
13. 640. With regard to the penalties imposed on teachers for exercising their right to collective action, the Committee stresses that no one should be penalized for carrying out or attempting to carry out a legitimate strike [see Digest, op. cit., para. 660] or any other form of collective action. With regard to the three workers arrested on account of their participation in a collective action, while it is not clear whether the three trade unionists mentioned in the complaint are the same persons referred to by the Government in its reply, the Committee emphasizes that the peaceful exercise of trade union rights (strike and demonstration) by workers should not lead to arrests [see Digest, op. cit., para. 673] and imprisonment. In the present case, the Government states that on 22 October 2006 the three trade unionists “broke into the place where a public hearing on the teacher evaluation system was due to take place, committed violence by taking away the microphone and chanting slogans” and had previously participated in a rally during which they “occupied roads, causing severe traffic jams”. The three trade unionists were arrested and spent time in jail. Taking into account that the legislation forbids teachers to take collective actions and given that the Government limits itself to broadly stating that acts of violence were committed, it appears to the Committee that the persons in question were in fact punished for exercising their legitimate trade union activities.
14. 641. Furthermore, the Committee considers that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association. In view of the fact that the restrictions imposed on teachers in the Republic of Korea with regard to their right to collective actions are not in conformity with freedom of association principles, the Committee requests the Government to take the necessary measures in order to fully compensate those who suffered material or other damages as a result of their participation in rallies. It requests the Government to keep it informed in this respect. The Committee further expects that no penal sanction will be imposed on trade unionists for the organization and participation in peaceful collective actions.
15. 642. Finally, with regard to the allegation of violation of freedom of expression, the complainants submit that, on 18 January 2007, two middle-school teachers and members of the KTU were arrested for allegedly violating the National Security Law. The charges, which carry a potential death penalty, are related to posters and information on North Korean politics that the teachers uploaded on the Internet. The unions submit that the two teachers were previously awarded for their contribution to peace education, and that the information uploaded was easily accessible from other public sources. The two teachers were later released on bail with the determination of a trial date still pending. On 29 January 2008, the police arrested Mr Kim Hyeong-geun, a member of the KTU’s Reunification Committee who has researched North Korean ideology and policies with an eye to promoting education for peace and mutual understanding between South and North Korean students. He was charged with violation of the National Security Law and detained in a Seoul prison after the court denied review of the legality of his confinement. On 24 February 2008, the police also searched the house and office of Ms Choi Bokyong who had promoted peace education in her class and in union education programmes.
16. 643. With regard to the two teachers mentioned in the complainants’ first communication, the Government indicates that the two teachers operated an Internet café for the Unification Committee of the Seoul Branch of the KTU from 2005 to 2006. They uploaded to the Internet contents admiring and advocating Kim Il-sung and Kim Jung-il, the North Korean socialist regime and North Korea’s plan for unification under a federal system extracted and edited from guidelines for revolutionary struggles in South Korea, speeches, editorials, theses, etc., on the web site of the Anti-Imperialist National Democratic Front. They also posted various propaganda materials. On 20 January 2007, they were arrested and three months later, on 20 April, released on bail. Their case is now pending before the Court of the First Instance. The two other teachers, Mr Kim Hyeong-gun and Ms Choi Bokyong, were arrested on the same charges, for having provided education praising the revolutionary orthodoxy of North Korea’s socialism. Mr Kim Hyeong-gun’s first instance trial is now pending, while Ms Choi Bokyong is under investigation.
17. 644. The Government maintains that all fundamental rights including freedom of expression are not unconditionally guaranteed and can be restricted by law to maintain national security, law, order and public welfare. It stresses that the cases of these teachers are purely political in character and do not concern the exercise of trade union rights. It therefore considers that, in so far as there is a question of violation of the National Security Act, the punishment of the teachers is not an issue for discussion at the Committee on Freedom of Association.
18. 645. The Committee notes that the information provided by the complainants and the Government differs as to the nature and purpose of the activities for which the teachers were arrested in January 2007 and 2008. While the Committee is unable to verify this information, it recalls that the primary role of publications (and other means of dissemination of information, used by trade unions) should be to deal with matters essentially relating to the defence and furtherance of the interests of the unions’ members in particular and with labour questions in general [see Digest, op. cit., para. 170]. The Committee requests the complainant organizations to clarify the manner in which the acts of the accused teachers were related to their trade union activities. In the meantime, the Committee recalls the resolution of 1970 concerning trade union rights and their relation to civil liberties which places special emphasis on freedom of opinion and expression, which are essential for the normal exercise of trade union rights. Recalling that the 1970 resolution recognizes that the rights conferred upon workers’ and employers’ organizations must be based on respect for those civil liberties which have been enunciated in particular in the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights and that the absence of these civil liberties removes all meaning from the concept of trade union rights, the Committee expects that any judgement relating to these teacher unionists accused of violating the National Security Act will fully respect the civil liberties set out in the Universal Declaration of Human Rights, including freedom of opinion and expression. The Committee requests the Government to keep it informed of the outcome of these cases and to forward the final judgements.

The Committee's recommendations

1. 646. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee expects that any future consultations with regard to the reform in the education sector, particularly those concerning the terms and conditions of teachers, as well as the legislation affecting teachers and their trade union rights will take place in good faith, confidence and mutual respect, and that the parties will have sufficient time to express their views and discuss them in full with a view to reaching a suitable compromise.
   • (b) The Committee urges the Government to take the necessary measures, in consultation with the social partners, in order to amend the national legislation so as to ensure that teachers in the public and private sector enjoy the right to demonstrations, public meetings and strikes to defend their occupational interests. It requests the Government to keep it informed in this respect.
   • (c) The Committee requests the Government to take the necessary measures in order to fully compensate those who suffered material and other damages as a result of their participation in rallies. It requests the Government to keep it informed in this respect.
   • (d) The Committee expects that no penal sanction will be imposed on trade unionists for the organization and participation in peaceful collective actions.
   • (e) The Committee requests the complainants to provide further information as to the nature of the acts committed by the four trade unionists accused of violating the National Security Act, and in particular how these acts were related to trade union activities, and expects that any judgement relating to these teacher unionists will fully respect the civil liberties set out in the Universal Declaration of Human Rights, including freedom of opinion and expression. The Committee requests the Government to keep it informed of the outcome of these cases and to forward the final judgements.