Effect given to the recommendations of the committee and the Governing Body - Report No 382, June 2017

Case No 1865 (Republic of Korea) - Complaint date: 14-DEC-95 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 33. The Committee has been examining this case since its May–June 1996 meeting and on the last occasion at its March 2014 meeting [see 371st Report, paras 44–53, approved by the Governing Body at its 320th Session]. On that occasion, the Committee trusted that the Government would soon be in a position to lift the ban on wage payment to full-time union officers and to ensure that no one is sanctioned for having entered into an agreement in this regard. In the meantime, the Committee requested the Government to provide detailed information on the manner in which the maximum time-off limits, which allow employers to pay for the time necessary for union activities, are applied in practice as well as on any complaint of unfair labour practices received. The Committee further took note with deep concern of the decertification of the Korean Teachers and Education Workers’ Union (KTU), the refusal to register the Korean Government Employees’ Union (KGEU) for the fourth time and the allegations relating to the searches and seizures of KGEU servers. Recalling that ever since their enactment in 1997, it has requested that the Government take the necessary measures to amend or repeal the provisions in the Trade Union and Labour Relations Adjustment Act (TULRAA) prohibiting dismissed workers from being union members, the Committee observed that the Act on Establishment and Operation of Trade Unions for Teachers (AEOTUT) and the Act on Establishment and Operation of Public Officials Labour Unions (AEOPOLU) contain similar provisions and urged the Government to take the necessary measures to amend the provisions restricting trade union membership and to keep it informed of all steps taken to facilitate the registration of the KGEU and ensure the recertification of the KTU without delay. The Committee further urged the Government to provide detailed information in reply to all the allegations set out in the 1 December 2013 communication from the International Trade Union Confederation (ITUC), Education International (EI), the Korean Confederation of Trade Unions (KCTU) and the KTU. Finally the Committee once again requested the Government to provide full observations on the previous allegations of interference in the negotiations between unions and employers and to indicate the reasons for the unilateral termination of binding collective bargaining agreements that took place at the Korea Railroad (hereinafter, the railway company), the National Pension Service (hereinafter, the pension service) and the Korea Gas Corporation (hereinafter, the gas company) and to indicate the steps taken to bring section 314 of the Penal Code into line with the principles of freedom of association.
2. 34. In a communication dated 25 July 2014, the KCTU, the KGEU, the Korean Teachers and Education Workers Union (JeonKyojo, KTU) and the ITUC provide additional information in relation to several aspects of the case. With regard to the refusal to register the KGEU and the related judicial proceedings the complainants indicate that in a ruling issued on 24 April 2014, the Seoul Administrative Court upheld the decision of the Ministry of Employment and Labour (MOEL) to reject the establishment report of the KGEU submitted on 2 August 2013. The complainants further indicate that on 23 April 2014 the Supreme Court ruled in favour of the MOEL with regard to the rejection of the KGEU’s establishment report submitted on 25 February 2010, when the union was newly established by merging three unions of Government employees. The Supreme Court stated that the MOEL’s decision was just on the grounds that the existing laws do not allow dismissed workers to join or represent trade unions. The complainants provide copies of both judgments.
3. 35. As for the KTU’s decertification, the complainants indicate that the KTU sought a temporary injunction to suspend the Government’s decision to cancel its certification. The injunction was granted by the Seoul Administrative Court on 13 November 2013; however, when the case was heard on merits, the Seoul Administrative Court dismissed the union’s case and upheld the decision to cancel the certification on 19 June 2014. Two hours after the decision was rendered, the MOEL announced a series of enforcement measures, including: the cancellation for leave of absence of 72 full-time union officials, which were ordered to be reinstated to work; a request to the KTU to move out of the offices provided to the union or to return the subsidies for the offices; the suspension of the ongoing collective bargaining negotiation with the KTU and termination of existing collective bargaining agreements (CBAs); the suspension of the check-off of union dues; and the disaccreditation of members from the KTU in various committees established under the collective bargaining agreements. The Ministry convened a meeting of the Education Commissioners of the Office of Education in each city and province on 23 June 2014 to supervise implementation of the aforementioned measures. On 27 June 2014 a rally was organized to protest the decertification of the KTU, 1,500 teachers left school early to be present. The Ministry of Education (MOE) announced the rally was an illegal collective action and brought charges against the teachers present.
4. 36. In a communication dated 14 January 2015, the Government indicates that on 26 December 2013 the Seoul High Court dismissed the appeal against the Administrative Court injunction suspending the MOEL’s decision to cancel the registration of the KTU, so that the KTU was able to maintain its legal status until the first ruling on the merits. This ruling was issued on 19 June 2014, when the Seoul Administrative Court (court of first instance) dismissed the KTU’s request of revocation of the decertification decision. The Government specifies that the Court held that the cancellation of registration was lawful since the KTU had violated the AEOTUT by allowing union membership for dismissed workers under its by-law and kept dismissed workers as active members. This ruling once again confirmed the Court’s stance that the scope of membership of public officials and teachers’ unions should be limited to workers currently in service. The Government further indicates that on 23 June 2014 the KTU appealed to the Seoul High Court (court of second instance) and on 10 July applied for an injunction suspending the ruling of the court of first instance until the appeal ruling is issued. The injunction was granted on 19 September 2014, and on 22 September the MOEL appealed against it. The Government further reiterates its previous general indications with regard to registration of trade unions and the specific status of teachers as governed by article 2 of the AETOUT and emphasizes that the Constitution of the Republic of Korea has a specific provision on the right to organize and collective bargaining of public officials (article 33(2)) which, read in conjunction with article 33(2) of the State Public Officials Act (SPOA) – allows only current public officials to join trade unions. The Government once again affirms that the KTU can restore its legal status at any time if it voluntarily corrects its illegality by amending its by-law and by removing dismissed workers from the union.
5. 37. With regard to the allegation related to measures taken against teachers who participated in the 27 June 2014 rally, the Government admits that the MOE reported 36 teachers in relation to the “early-leave” protest held in Seoul on 27 June 2014, on the basis of article 234(2) of the Criminal Procedure Act, on the grounds that the teachers who planned and pushed ahead with the protest undermined the political neutrality of education and violated article 66(1) of the SPOA. The Government further indicates that on 16 July 2014, the KTU filed a complaint with the National Human Rights Commission of Korea (NHRCK), requesting the Commission to declare that the MOE accusations against union members who participated in the early-leave protest was unconstitutional and illegitimate.
6. 38. With regard to the denial of the KGEU’s registration, the Government recalls that after its application for registration was rejected, the trade union filed a lawsuit with the Seoul Administrative Court, requesting the revocation of the rejection decision, dismissed by the Court on 24 April 2014. According to the Court’s reasoning, the members of the public officials’ unions should be limited to “those who currently have the status of public official”. Denial of registration was legitimate as article 7(2) of the KGEU’s by-law allows dismissed workers to become union members.
7. 39. In a communication dated 2 February 2016, the KTU, the KCTU, EI and the ITUC submitted additional information with regard to the decertification of the KTU by the MOEL. The complainants indicate that on 28 May 2015, the Constitutional Court affirmed the constitutionality of section 2 of the AEOTUT despite the recommendation of the Committee on Freedom of Association that the Government repeal the provisions in the TULRAA, the AEOTUT and the AEOPOLU which prohibit dismissed workers from being members of trade unions. Based on this decision, the Seoul High Court upheld the decertification of the KTU on 21 January 2016. The complainants further indicate that on the same day of 21 January, the MOE requested the Metropolitan and Provincial Offices of Education to take measures based on the High Court ruling and to deprive the KTU of the rights it had enjoyed as a legal trade union, namely the permission of leave of absence for full-time union officials, union offices provided by the Education offices, check-off facilities, ongoing collective bargaining and CBAs and designated seats in various committees according to CBAs.
8. 40. In a communication received on 1 May 2017, the Government provides additional information on the judicial proceedings relating to the legal status of the KTU and the implementation measures taken by the MOE. The Government indicates that on 21 January 2016, the Seoul High Court upheld the MOEL’s decision that the KTU was no longer deemed a legal union, as it offered membership to the dismissed teachers who were already serving as its members under its by-law, in contravention of the AEOTUT. Reiterating its January 2015 observations, the Government adds that on 1 February 2016 the KTU filed an appeal against the Seoul High Court’s second-trial ruling, requesting a suspension of execution, and this case is currently pending before the Supreme Court. The Government further indicates that until the Court makes a final ruling that suspends the effect of the government decision to strip the KTU’s legal status or overturn the decision, the KTU is not a legal “trade union”, therefore the MOE’s action as a follow-up to the Seoul High Court ruling is legitimate and justifiable in accordance with the court ruling, the Constitution of the Republic of Korea and relevant laws.
9. 41. The Government further indicates that while the “dissolution order” under the previous Trade Union Act was an order to disband the union itself, the “decision to make an organization lose its legal union status” does not automatically lead to the disbandment of that organization. It simply means that the organization no longer enjoys legal rights (e.g. full-time union officials, collective bargaining and agreements) that it used to enjoy as a legal union. Thus, the Government’s decision to strip the KTU of its legal status and the court’s ruling that the decision is legitimate cannot be seen as the restoration of the union dissolution order as argued by the complainants. The court has also ruled, “the dissolution order”, being an order to disband an organization itself, under the previous Trade Union Act is different from the decision made in this case, which is simply not to recognize the organization as a union under the current TULRAA.
10. 42. The Committee takes note of the information provided by the complainants and the Government. It notes with deep concern that seven years after the KGEU first applied for registration, the Government continues to deny the trade union’s application on the grounds that its by-laws allow for the membership of dismissed workers; and that the KTU’s request for invalidation of the decision to decertify it on similar grounds, has also been rejected for incompatibility with article 2 of the AETOUT. The Committee is bound to recall its long standing position, that while States may legitimately take measures to ensure that the Constitutions and rules of trade unions are drawn up in accordance with the law, any legislation adopted in this area should not undermine the rights of workers as defined by the principles of freedom of association. A provision depriving dismissed workers of the right to union membership is incompatible with the principles of freedom of association since it deprives the persons concerned of joining the organization of their choice. Such a provision entails the risk of acts of anti-union discrimination being carried out to the extent that the dismissal of trade union activists would prevent them from continuing their trade union activities within their organization [see 353rd Report, Case No. 1865, para. 720]. This principle applies to all workers without distinction, including public servants and teachers. In view of these principles, the registration condition imposed on the KGEU and the KTU to amend their by-laws and exclude the membership of dismissed workers constitutes an infringement of the right of those organizations to draw up their constitutions and rules [see Report No. 363, Case No. 1865, para. 125]. The Committee understands that as long as the legislative provisions prohibiting the union membership of dismissed public officials and teachers remain in force, the judiciary and executive branches of the Government will continue denying the KGEU and the KTU legal status. Considering that its previous recommendation to this effect are yet to be implemented, the Committee once again firmly requests the Government to take the necessary measures without delay to repeal the provisions in the TULRAA, the AEOTUT and the AEOPOLU that prohibit dismissed workers from being trade union members and to provide detailed information on developments in this regard.
11. 43. The Committee notes that according to the information provided by the complainants and the Government, the teachers who participated in the 27 June 2014 rally have been denounced by the MOE on the basis that the rally was an illegal collective action. The Committee notes that the complainants indicate that the rally was a protest against decertification of the KTU, while the Government, without contradicting the statement of the complainant with regard to the aim of the rally, indicates that the MOE reported 36 participants on the grounds that the teachers who planned and pushed ahead with the protest undermined the political neutrality of education and violated article 66(1) of the SPOA. The Committee recalls that the right to organize public meetings constitutes an important aspect of trade union rights. In this connection, the Committee has always drawn a distinction between demonstrations in pursuit of purely trade union objectives, which it has considered as falling within the exercise of trade union rights, and those designed to achieve other ends [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 134]. The Committee considers that the objective of the rally against the decertification of the teachers’ trade union was clearly aimed at protecting the workers’ right to organize. The Committee requests the Government to ensure that the charges against the teachers who participated in the 27 June 2014 rally will be dropped and requests the Government and the complainant to keep it informed of the developments in this regard and to provide information on the determination by the NHRCK.
12. 44. With regard to the prohibition of wage payment to full-time union officials and the paid time off system, the Government reiterates that the driving motivation behind this ban is to prevent risks of infringement of the autonomy of trade unions and to exclude any interference of the employer in trade union activities, assuming that full-time union officials who receive wages from the employer might find it difficult to place the interests of the union before their own at the bargaining table.
13. 45. The Government reiterates that under the current TULRAA the payment of wages to a full time union official is prohibited, and constitutes an unfair labour practice for which the employer is penalized. In reply to the Committee’s request as to provide information on any complaints of unfair labour practices received, the Government indicates that the MOEL, together with regional labour offices, is conducting annual joint inspections to monitor the implementation of the time-off system. Punishment and corrective measures are given in accordance with relevant regulations. For example, after receiving the complaint in April 2012, that the management of a company paid wages to the leadership of their trade union, in violation of section 81(4) of the TULRAA, the Ministry prosecuted the case and the court ordered the company to pay fines.
14. 46. As for the Committee’s request to provide full observations on the previous allegations of interference in negotiations between unions and employers and to indicate the reasons for the unilateral termination of binding collective bargaining agreements that took place at the railway company, the pension service and the gas company, the Government indicates that a collective agreement prescribing that the employer pay wages to full-time union officials or provide operating expenses beyond the provision of a union office is determined to be unlawful and is thereby subject to a corrective order (section 31(3) of the Act). Collective agreements in violation of the law must be amended, and there are no grounds to the claim that a corrective order against an unlawful practice instigates unfair labour practices. The Government further stresses that it is respecting the autonomy of management and labour in advancing public organizations and that it conducts assessment on the business management of public organizations in a reasonable manner, without intervening in the establishment of trade unions and its basic characteristics, to make sure that the organizations provide public services smoothly. Therefore, the allegation that there was interference by the Government in bargaining between management and trade unions is not valid. Finally, the Government indicates that as of December 2014, the management and labour of the pension service, the gas company and the railway company reached a valid collective agreement.
15. 47. With regard to the ban on the payment of wages to full-time union officials, the Committee notes with regret that the Government continues to exclude the issue of payment of wages to full-time union officials from the scope of free and voluntary negotiations between workers and employers, subject to sanctions. The Committee is bound to recall that the regulation of relations between employers and workers organizations and the facilities provided to the workers’ representatives fully enter in the scope of subjects covered by collective bargaining, and, as the Committee has reiterated on several occasions [see 363rd Report, Case No. 1865, para. 110 and 371st Report, Case No. 1865, para. 47], the payment of full-time union officers should be a matter of free and voluntary negotiation between the workers and employers or their respective organizations. As regards the Government’s concerns relating to the autonomy of trade unions, the Committee considers that, should it be found in a specific case that the employer is interfering in the internal affairs of the trade union by financing its members so as to bring it under the employer’s domination or control, such action should be sanctioned on the basis of the evidence. Sanctioning an employer for paying wages to a full-time union officer in accordance with a collective agreement freely entered into, without any evidence or even complaint as to the interference or any attempt on the part of the employer to bring the union under its control, is an unacceptable restriction to free collective bargaining that does not in any way serve the purpose of protection of trade unions against employer interference. The Committee therefore once again requests the Government to lift the ban, to ensure that no one is sanctioned for having entered into an agreement in this regard, and to refrain from requiring the parties to collective agreements that provide for the payment of wages to full-time union officers to amend their agreement.
16. 48. In their communication of July 2014, the KCTU, the KGEU, the KTU and the ITUC also provide follow-up information on the allegation of unjust disciplinary measures against KGEU members of the National Human Rights Commission (NHRC) chapter, first made in their communication dated 28 October 2011. Recalling that in 2011 the chapter Vice President received a notice of termination of employment on the ground that she had criticized the Chairperson of the NHRC, and that 11 union members who after her termination participated in one person picketing during lunchtime and contributed articles to online media to object to unfair terminations and anti-democratic policy were subject to disciplinary action for violation of “duty to maintain dignity and prohibition of collective action” in accordance with State/Local Public Officials’ Act, the complainants indicate that the Administrative Court dismissed the union members’ appeal against the disciplinary measures in 2014.
17. 49. The complainants provide the judgment of Seoul Administrative Court dated 2 May 2013, rejecting the union members’ appeal, which indicates that the ground for disciplinary action against the 11 union members was: (i) engagement in a one-person picketing in relays, expressing criticism over NHRC’s decision in refusing to renew Kang Inyeong’s employment contract; (ii) contribution to the media called OhMyNews and posting the same article on NHRC’s intranet; and (iii) displaying the pickets at the first floor lobby as well as on the sidewalk. The disciplinary measures taken included one month suspension and one to three months’ pay cut. The Court upheld the disciplinary measures taken by the NHRC, confirming that, through picketing and publishing articles disclosing information on an internal conflict of NHRC, the plaintiffs had indeed violated the prohibition of collective activities other than public services described in article 66(1) of the SPOA and their duty to maintain dignity in accordance with article 63 of the SPOA. In particular, with regard to the latter ground, the court found it reasonable to infer that the conduct of the plaintiffs might have caused the public to raise doubts about fairness and integrity of all public officials of the NHRC, entailing concerns about loss of public confidence in government administration.
18. 50. The complainants further allege that judicial actions were taken against union leaders on the ground of their performing legitimate trade union activities. On 24 May 2014, 30 persons, including Mr Yoo Ki-Soo, general secretary of the KCTU, were arrested during a march calling on the Government to take responsibility for the Sewol ferry disaster. The complainants indicate that nearly 300 persons died in the incident, which the protestors argued was the result of deregulation and poor government oversight of industrial health and safety. The march followed a KCTU rally and a candlelight vigil organized by the “Korean People’s Council for Measures on the Sewol Ferry Disaster” in which trade unions participated. On 27 May 2014, the prosecutor’s office requested warrants for the detention of three persons out of the 30 arrested, including Mr Yoo Ki-Soo and Mr Ahn Hyun-ho, Publications Director of the KGEU and reporter of online media U-Public, a KGEU publication. Mr Ahn is a dismissed worker and a member of the KGEU Seoul Metro chapter. The prosecution insisted that Mr Yoo must be detained during the investigation, on the grounds that his residence was not fixed due to frequent business trips to meet KCTU members (while he has a fixed residence), and that there was reasonable ground that he might destroy evidence or flee. The prosecution also emphasized that the crime he committed was serious and could be repeated and he might harm the police officer who had arrested him. As for Mr Ahn, the argument in support of detention was that he might distort public opinion by writing biased articles on the Sewol ferry disaster. The Seoul Central District Court accepted these arguments and issued detention warrants against the two union officials on the same day. On 29 May 2014, Messrs Yoo and Ahn were transferred to the Seoul Detention Centre. On 2 June 2014, they requested the Court to review the legality of the detention warrant; the Court dismissed the case and reaffirmed their confinement on 12 June. The complainants allege that the ferry disaster was directly related to government policy concerning occupational health and safety, and that deregulation in the transport sector has led to several recent accidents. Therefore unions are well within their rights to protest over this issue. Furthermore, members of the KCTU and the Federation of Korean Trade Unions (FKTU) were also directly affected by the ferry disaster. The complainants conclude that the move to arrest 30 union leaders and members for participation in a peaceful rally and march related to an industrial disaster is an unambiguous and serious violation of the right to freedom of association and it appears that the Government’s motive is to harass and intimidate the trade union movement and to send a clear message that it will not tolerate dissent.
19. 51. The complainants further indicate that in May 2014, 123 teachers had written posts on the website of the presidential office denouncing President Park Geun-hye and requesting her resignation for the Government’s poor handling of the April ferry disaster. On 2 July 2014, the teachers issued a written statement demanding the President’s resignation. The MOE accused those teachers of exercising “political activities”, which resulted in a seizure of the KTU’s servers on 15 and 16 July. On 16 July, the KTU presented a petition to the NHRC calling for the MOE to cancel its plan to take disciplinary actions against the teachers who participated in the online statement demanding the resignation of the President. The complainants allege that after outlawing the union, the Government is limiting the teachers’ freedom of expression by taking disciplinary measures against teachers.
20. 52. In its communication of January 2015, the Government provides a summary of facts and the outcome of proceedings which concurs with the one presented by the complainants with regard to the disciplinary action against the KGEU members, the NHRC chapter, and adds that trade union members had appealed to the Supreme Court. The Government states that the ruling dismissing the request against the disciplinary action shows the stance of the court that although public officials as individuals enjoy freedom of association and expression, they should respect the limitation of their freedoms as public officials with an obligation to protect public interests.
21. 53. With regard to the allegation of judicial action against KCTU and KGEU members and leaders who participated in the 24 May 2014 protest over the Sewol ferry incident, the Government indicates that while most protesters complied with the law, a group of some 1,000 persons went off their official course and obstructed traffic by blocking the main roads near Cheonggye Square, did not comply with the police’s legitimate dispersion order and inflicted violence on policemen in uniform, making their protest illegal and violent. Hence, 30 persons were arrested on the spot for general obstruction of traffic and obstruction of performance of official duties. The Government further specifies that Mr Yoo was arrested for violating article 144 of the Penal Code (aggravated obstruction of public duty, involving violence), as well as article 185 (general obstruction of traffic); and Mr Ahn was charged with violation of articles 136 (obstruction of performance of official duties) and 257 (infliction of bodily injury) of the Penal Code. During the investigation process, the police and the prosecution requested the court to issue detention warrants which were granted. Mr Yoo and Mr Ahn’s subsequent requests of review of the legality of their detention were rejected by the Seoul District Court. Emphasizing that the 30 persons arrested had violated the laws of the Republic of Korea and the measures taken against them complied with the relevant laws and principles, the Government indicates that 28 persons were released soon after their arrest, while the trials of Mr Yoo and Mr Ahn were pending.
22. 54. Concerning the posting of the “Declaration of the Teachers” on the website of the Office of the President, urging the administration to step down on 13 and 28 May 2014, the Government indicates that the MOE reported 43 and 80 teachers for violating the prohibition of political activities. The Government furthermore states that the MOE also reported 71 teachers who held a press conference at KTU headquarters on 2 July 2014 and announced the “Declaration of Teachers” calling for the President’s resignation and adds that the case was under investigation by the prosecutor or other criminal procedures.
23. 55. With regard to the allegation of search and seizure of the KTU’s web server, the Government indicates that as the investigative agency concluded that there existed sufficient evidence to believe that KTU members, including the President, violated article 66(1) of the SPOA by engaging in collective activities which did not constitute teachers’ public duties, the prosecutors found it necessary and appropriate to secure data related to the allegation. The search and seizure was conducted with reliance on a judge’s warrant and in accordance with Korean law.
24. 56. With regard to the allegation of search and seizure of KGEU’s servers, the Government once again emphasizes that public officials have a duty of political impartiality in carrying out their duties and with the exception of taking action and expressing their opinions as union members on economic and social issues that are directly linked to their interests, they are prohibited from engaging in political activities as union members. Indicating that the search and seizure of the KGEU was conducted in order to investigate the alleged violation of article 65 of the SPOA or article 57 of the Local Public Officials Act, the Government indicates that the freedom of expression of public officials’ trade unions as well as their right to organize and collective bargaining are guaranteed within the scope of the current laws. The search and seizure was not intended to restrict or infringe upon trade union rights; it was only a part of the investigation on whether the state or local public officials had violated the law.
25. 57. With regard to the allegations of dismissal of KTU members for their activities, including expression of their opinions on the Government’s education policy or for one-off donations to progressive political parties, the Government indicates that article 7(2) of the Constitution of the Republic of Korea establishes the duty of political impartiality of public officials and limits their political activities, including participation in partisan activities and electoral campaigns, in order to prevent their serving the interests of a certain faction or a specific party. With regard to the teachers’ trade unions, the Government states that considering that the purpose of a union under the current TULRAA and AEOTUT is to improve the worker (teacher)’s economic and social status, the teachers’ trade unions have the right to express views on economic and social policy issues that directly impact the union members’ interests, but are prohibited from expressing political views related to a specific political party or power in order to influence the Government’s policy-making process. The Government cites Supreme Court Decision 2010Do6388, 19 April 2012, in support of this reading of the applicable law and concludes that it was inevitable that the teachers experienced disadvantages as a result of violation of this law and that the measure taken against each individual teacher did not aim at oppressing the political activities of trade unions, but to punish the violation of law by each individual teacher. More specifically, the Government indicates that the freedom of expression of elementary and middle-school teachers is limited in order to protect the young students who have not yet established their own values against indoctrination attempts. The Government admits that in 2010, eight teachers were dismissed or discharged for providing funds and contributions to the Democratic Labour Party, but all were reinstated as the Court found the disciplinary action was excessive and cancelled the decisions. Furthermore, in 2011 another 1,352 teachers were under indictment for violation of laws such as the SPOA through funding the Democratic Labour Party, and 25 persons among them whose disciplinary limitation periods had not expired were subjected to disciplinary measures. With regard to the disciplinary measures against KTU members for expressing political views, the Government admits that during the last administration, 12 teachers from the KTU were dismissed for refusing the National Assessment of Educational Achievement of 2008, 16 were dismissed for joining the “2009 Declaration of Teachers”, and eight were dismissed for supporting the Democratic Labour Party. However, they were all reinstated after the Court ruled that their dismissals constituted excessive disciplinary action. The Government further admits that in total, disciplinary action was taken against 83 teachers in relation to the “2009 Declaration of the Teachers” which, in addition to the 16 dismissals referred to above, resulted in 47 suspensions, three pay cuts and 17 warnings. The Government indicates that the court approved the grounds for these MOE disciplinary measures and imposed monetary penalty.
26. 58. The Committee takes due note of the information provided by the complainants and the Government. With regard to the disciplinary measures taken against KGEU members of the NHRC, the Committee understands that those measures were taken on the grounds of violation of prohibition of collective activities and the duty of dignity applying to public officials. The Committee notes with concern that 11 union members have been subject to disciplinary measures, partly for engagement in one-person protests picketing in relays at lunchtime over the dismissal of the union chapter’s Vice-President. Noting that at the time of the communication the case was pending before the Supreme Court, the Committee requests the parties to keep it informed of the outcome of those proceedings and to communicate a copy of the judgment.
27. 59. With regard to the allegations of arrest and indictment of 30 participants in the 24 May 2014 protest related to the Sewol ferry incident including two KCTU officials, the Committee notes that the Government and the complainants present diverging accounts of the facts: while the complainants state that judicial action was taken against union officials for their legitimate trade union activities, the Government affirms that those arrested and indicted resorted to violence and obstructed traffic and the fulfilment of the duties of the police. In view of the disputed facts, the Committee would simply recall the general principle that while persons engaged in trade union activities or holding trade union office cannot claim immunity in respect of the ordinary criminal law, trade union activities should not in themselves be used by the public authorities as a pretext for the arbitrary arrest or detention of trade unionists [see Digest, op. cit., para. 72], and to request the parties to provide information on the pending judicial proceedings, including copies of the judgments once they are rendered.
28. 60. With regard to the observations of the Government on the prohibition of political activities of public officials and teachers, presented as a valid ground for disciplinary measures and search and seizure of trade unions’ servers, the Committee observes that this issue has been raised by the Committee of Experts on the Application of Conventions and Recommendations and the Conference Committee on the Application of Standards in the framework of the application of Convention No. 111. With regard to the impact that the prohibition of political activities might have on the exercise of freedom of association, the Committee recalls that while purely political strikes do not fall within the scope of the principles of freedom of association, trade unions should be able to have recourse to protest strikes, in particular where aimed at criticizing a government’s economic and social policies [see Digest, op. cit., para. 529]. The Committee reiterates its previous observation with regard to the relevant legislative provisions in the Republic of Korea: while duly noting from its previous examination of this provision that the status of public servants is such that certain purely political activity can be considered contrary to the code of conduct that is expected of these servants and that trade union organizations should not engage in political activities in an abusive manner and go beyond their true functions by promoting essentially political interests – the Committee once again requests the Government to ensure that public officials’ trade unions have the possibility to express their views publicly on the economic and social policy questions which have a direct impact on their members’ interests [see 353rd Report, para. 705]. The Committee trusts that the Government will no longer take disciplinary action, in particular, dismissal against public servants for their individual support of a political party or expression of views about government socio-economic policy affecting workers’ interests.
29. 61. With regard to the allegations of the search and seizure of trade unions’ servers, while taking due note of the indications of the Government that these searches were conducted on the basis of judicial warrant and in accordance with law, the Committee draws the attention of the Government to the principle that such measures should not be taken on the basis of public official trade union views on the economic and social policy questions which would be likely to create a climate of fear and intimidation that would hamper the capacity of trade unions to exercise their functions.
30. 62. In their communication of July 2014, the KCTU, the KGEU, the KTU and the ITUC also provide the following indications with regard to a police raid on KCTU headquarters on 22 December 2013. According to the complainants, around 5,000 riot police, including some 900 SWAT team members, were deployed on the assumption that six leaders of Korean Railway Workers’ Union (KRWU) who were on the police wanted list were in the office. KCTU headquarters are located in the building of kyunghayung Shinmunsa, a major Korean newspaper. At 9 a.m. the police cordoned off the building and prevented the members of the trade union from entering or leaving. Once the building was surrounded, the police force pushed in to seek the six KRWU leaders. The kyunghayung Shinmunsa – the owner of the building – and the KCTU both pointed out that in the absence of a warrant the search would be illegal, to no avail. Meanwhile, the police also arrested indiscriminately some of the protestors outside the building. The complainants allege that pepper spray was used against the protestors and 138 persons were arrested, including Mr Yoo, Yang Sung yun and Lee Sang-jin, both Vice-Presidents of the KCTU, and three Presidents of the KCTU affiliates including Mr Kim Jeong-hun, the President of the KTU. All of those arrested were released after being detained for 48 hours except Mr Kim Jeong-hun, against whom the police sought a detention warrant that was not granted by the court. Charges of obstruction of justice were brought against all those arrested. During the search, the police destroyed KCTU’s furniture and fixtures, including almost all of the doors and door locks. None of the persons sought were in the offices. The operation lasted 12 hours. On 15 June 2014, the Seoul Central District Prosecutors Office announced that among the 138 arrested, they had indicted 19 persons including leaders of the KCTU and its affiliates. All of them were indicted without detention except Mr Yoo Ki-Soo who was in detention in relation to Sewol ferry protest. Another 68 were summarily indicted and the others had their indictments suspended.
31. 63. In a communication dated 16 September 2014, the KRWU, the Korean Federation of Public Services and the Transportation Workers’ Unions (KPTU), the KCTU and the International Transport Workers’ Federation (ITF) sent further allegations in relation to the conduct of the Korea Railroad Corporation (Korail, hereinafter the railway company), a government-owned public corporation, and the government agencies during and in the aftermath of the December 2013 strike. The railway company has a workforce of 26,000 directly employed workers; another 35,000 workers are employed through subcontractors.
32. 64. The complainants indicate that the Government made several attempts to restructure and privatize the railway company over the years, the most recent one through the “Plan for the Development of the Rail Industry” (hereafter, the Plan) announced on 26 June 2013. The complainants indicate that the KRWU is the main representative of the employees of the railway company and has a membership of roughly 21,000; it is affiliated to the KCTU (through KPTU), and the ITF. The KRWU has campaigned against the various attempts at railway restructuring and privatization, including the latest one. The campaign against the Plan started as soon as its content became known in early 2013. It was carried out together with the KPTU, KCTU, civil society organizations and opposition political parties and included public forums in and outside the National Assembly, petition drives against rail fragmentation and privatization, outreach to citizens and public protests. The KRWU approached the Ministry of Land, Infrastructure and Transport (MOLIT) several times with a request to halt execution of the Plan and discuss alternatives, but the Government insisted that the basic direction and content of the Plan were non-negotiable and in a meeting with the presence of the ITF, a MOLIT representative stressed that “this is the last chance to reform the railway company and we shall not delay the implementation”.
33. 65. The complainants recall a previous complaint submitted to the Committee that partly related to a 2009 dispute between the railway company and the KRWU (Case No. 2829), involving allegations such as unilateral termination of KRWU’s collective agreement, inappropriate application of section 314 of the Penal Code, a compensation for damages lawsuit and disciplinary actions taken against roughly 12,000 members and officers of the union who participated in a strike in 2009, including 169 dismissals. The complainants recall that on that occasion, the Committee had urged the Government to take all the necessary measures to bring section 314 of the Penal Code into line with freedom of association principles, and requested the immediate dropping of criminal charges brought under that provision against union officials and members, the immediate reinstatement of dismissed trade union officials as well as the lifting of disciplinary measures [see 365th Report, para. 582].
34. 66. With regard to the background and the aftermath of the December 2013 strike, the complainants present the following facts: the KRWU held a vote on undertaking industrial action against the Plan from 25 to 27 June 2013 where a large majority of members voted in favour should the railway company take concrete steps to execute the Plan. On 18 July 2013, the KRWU officially proposed bargaining on wage and workplace issues, including issues related to the execution of the Plan, to the company management. Between then and 9 December 2013, five full bargaining sessions and ten working-level bargaining sessions were carried out, with little progress. On 12 November 2013, the KRWU applied to the National Labour Relations Commission (NLRC) for mediation. On 27 November, the breakdown of the mediation was declared. The KRWU carried out a second vote on industrial action in relation to wage bargaining from 20 to 22 November 2013 and a large majority of workers once again voted in favour.
35. 67. On 1 December 2013, the railway company announced plans to train replacement workers in preparation for the strike and on 4 December 2013 sent a memorandum to the Ministry of National Defence requesting the dispatch of military locomotive engineers as replacement workers. The Ministry responded on 5 December 2013 by sending a list of the names of 155 locomotive engineers who would be dispatched in the event of a strike. The same day, the company released a press statement labelling the strike illegal and announcing plans to respond strictly including through the use of replacement workers. The Law considers the railway to be an essential service and minimum services must be provided as defined by an agreement between labour and management. In compliance with this requirement, the KRWU prepared for the strike by compiling a list of members who would stay on the job to fulfil the minimum service requirements and submitted it to the company on 3 December 2013. On the same day, the union held a press conference announcing its plans to strike in parallel with the railway company Board of Directors meeting to vote on the establishment and investment in a stock company.
36. 68. The KRWU began its national indefinite strike at 9 a.m. on 9 December 2013. The following day, the railway company Board of Directors voted in favour of the establishment and investments in the stock company. Leading up to and during the strike, the ITF and the ITUC sponsored a petition and took a variety of actions urging the Government and the railway company to desist from labour rights violations against the striking rail workers, whose number amounted to 15,000. The complainants indicate that the strike ended after 23 days, making it the longest rail strike in Korean history. On 30 December 2013, an agreement was reached between the opposition and ruling parties’ national assembly members to form a subcommittee on the development of the rail industry within the Committee on Land, Infrastructure and Transport in the National Assembly. Following this agreement, the KRWU President issued a directive to all members to return to their workplaces, thus ending the 23 day strike on 31 December. The complainants further indicate that the KRWU carried out a one-day strike on 25 February 2014 to achieve wage bargaining demands and call for redress of fundamental labour rights violations in relation to the December strike.
37. 69. With regard to the legality of the strikes, the complainants indicate that the KRWU followed all necessary procedures for a legal strike including carrying out a membership vote, engaging in bargaining and applying for mediation to the NLRC and only went on strike after the breakdown of mediation. Moreover, the KRWU followed all the requirements relating to the provision of a minimum service, despite being fully aware that the classification of railway services as an essential service is contrary to international labour standards. The complainants further indicate that while under Korean law strikes that concern government policy, as opposed to those concerning wages and/or working conditions, can be considered illegal, it has been the long-standing view of the ILO that workers are permitted to strike over issues of social and economic policy. Moreover, it can be concretely argued that the Plan would have a deep impact on the working conditions and wages of KRWU members. Nonetheless, the railway company released an official statement promising strict response and labelling the strike illegal before it started, without any court ruling on the legitimacy of the strike.
38. 70. With regard to the measures taken by the railway company against the strike and the strikers, the complainants indicate that as soon as the strike began on 9 December 2013, the railway company announced it would remove all striking workers from their job positions. These actions were taken against over 8,600 KRWU members (the entire number who participated in the strike). Starting with the Seoul Regional Labour Relations Commission (LRC) on 2 June 2014 and ending with the Northern Jeolla Regional LRC on 30 June 2014, a total of eight regional LRCs found the removal of workers from their position during the strike to be unjust. In addition, after the start of the strike, the railway company pressed charges of obstruction of business against 176 officers of the union, including the central leadership. Following the one-day strike on 25 February 2014, the company pressed charges of obstruction of business against an additional 92 KRWU officers in relation to this action. Finally, the complainants allege that during the December 2013 strike, the company used over 6,000 replacement workers including retired workers, trainees and members of the military dispatched by the Ministry of Defence. In addition to being a violation of freedom of association, the use of replacement workers posed a serious safety risk. Several accidents occurred as a result, including one which led to the death of an elderly passenger on 15 December 2013.
39. 71. The complainants also provide indications on measures taken by the police and prosecution authorities, in relation to the strike, against the KRWU and its officials and members. They allege that during the strike, the police and prosecutors obtained search warrants and raided the KRWU headquarters in Seoul and regional offices in Seoul, Busan, Daejeon, Yeongju and Suncheon on 17 and 19 December 2013, downloading files from the union’s computers and confiscating union property. The complainants allege that given that all of the union’s outreach materials, publications, meeting documents and other information related to the goals and process of the strike were public, it appears these actions were meant to intimidate and stigmatize union members. The police also seized records of social media applications used by KRWU members for personal communications.
40. 72. The complainants further indicate that on the basis of railway company’s charges of obstruction of business, demands to appear at the police stations for questioning were sent to union officers every other day or daily from the outset of the strike. Despite the fact that the union officers submitted written commitments expressing their intention to comply with questioning following the end of the strike, the prosecutors began to apply for and obtained arrest warrants against 35 KRWU officers. Warrants were issued against the central leadership (President, first Vice-President, general secretary, regional division leaders, etc.), and the presidents of branches to which locomotive drivers belonged and the branches in which a high portion of members were participating in the strike. Of the 35 officers for whom arrest warrants were issued, five were arrested during the strike and the rest when they voluntarily turned themselves in for questioning after the end of the strike.
41. 73. In addition, the complainants state that on 22 December 2013 (during the strike), the police raided the headquarters of the KCTU, where the leadership of the KRWU was thought to be staying following the issue of arrest warrants for them. Some 5,000 police forces surrounded the Kyunghayung Newspaper building where KCTU headquarters are located and stopped people from entering the building under the pretext of executing arrest warrants against KRWU leaders. The police proceeded with this operation without a specific warrant. Excessive force was used as the police broke the glass pane and bearings of the front door, entered the building and made their way up to the top floors where KCTU offices are located. The police searched and damaged facilities, furniture and documents in KCTU headquarters. Some 137 citizens and KCTU members who were protesting outside the building were arrested and despite the fact that a rally permit had been granted for the sidewalk in front of the building, the police blocked the sidewalk and the street, stopping citizens from getting to the rally site.
42. 74. The complainants indicate that 30 officers of the KRWU for whom arrest warrants were issued during the December 2013 strike voluntarily turned themselves in to the police in two groups, on 4 and 14 January 2014, respectively. The second group included the KRWU’s President, first Vice-President, general secretary and Seoul regional division President as well as nine other officers. The court turned down applications for detention warrants against most union officers arrested after the strike on the grounds that the police and prosecutors’ actions were excessive. The KRWU filed an objection to the validity of the detentions of two officers who had been detained during the strike based on these later decisions and they were released on 9 January 2014. However, detention warrants for the KRWU President, Vice-President, general secretary and Seoul division President were granted on 16 January 2014 and they were detained and later released on bail on 2 February 2014.
43. 75. Furthermore, the complainants provide indications as to civil lawsuits undertaken against the KRWU and its officers in relation to the strikes. Accordingly, the railway company is now pursuing a lawsuit against the KRWU and 187 of its individual officers for damages amounting to 16.2 billion Korean Republic won (KRW) (approximately US$16 million). The damages include a KRW1 billion (US$990,000) claim for the damage inflicted on the company’s brand value as a result of the December 2013 strike. In addition, the company is considering filing a KRW8 billion (US$7.9 million) lawsuit in relation to the February 2014 strike. On 27 January 2014, the court accepted the company’s request for a temporary seizure of the KRWU’s assets up to KRW11.7 billion (roughly US$11 million) as a guarantee measure related to the current damage suit and a previous one (KRW7.8 billion from the December 2013 strike and KRW3.9 billion from a previous suit in relation to the KRWU’s strike in 2009). Currently the KRWU’s bank account holding membership dues is frozen up to KRW10.5 billion (US$10 million), while the union’s real estate worth KRW1.1 billion (US$1 million) is also under provisional seizure. The complainants add that the railway company is considering an application for an additional provisional seizure of assets worth KRW13 billion (US$12.8 million) in relation to claimed damages related to the later stages of the December 2013 strike and the February 2014 strike. The complainants affirm that these financial suits combined with the fines prescribed for under the obstruction of business provision not only pose a severe financial threat to the very existence of the union, they also have an intimidating effect and inhibit legitimate trade union activities.
44. 76. The complainants further indicate that following the December 2013 strike, the railway company carried out disciplinary hearings against 404 officers and members of the KRWU. Measures were taken in two rounds of disciplinary hearings, respectively, in February and July 2014, in relation to December 2013 and February 2014 strikes and other protest actions undertaken at the beginning of the year. Some of the measures were under review at the time of the communication.
45. 77. Furthermore, on 27 March 2014, the railway company announced plans for the rotating transfer and regular exchange of personnel between regions and occupational categories affecting roughly 3 per cent of the company workforce. The complainants allege that while the company official position has been that these transfers are meant to increase competitiveness through improved efficiency, there are reasons to believe they are being carried out in retaliation for the union’s strike actions. The KRWU has pointed out that such transfers, which are not based on any clear standard, actually involve an additional personnel cost, threaten safety by forcing workers to work with train types and in environments with which they are not familiar. The complainants allege that the transfers violate the collective agreement and the Labour Standards Act. Besides, they indicate that the transfers have taken a severe emotional toll on the workers they affect: on 3 April 2014, one KRWU member who had participated in the December 2013 strike and was facing a second transfer, committed suicide. The KRWU has protested the forced transfers through press conferences, rallies, a high-altitude protest carried out by two members, a hunger strike carried out by 50 members and hair-shaving protests in which hundreds of members participated to no avail, as the transfers were still ongoing at the time of the communication.
46. 78. The complainants conclude by drawing the attention of the Committee to the central importance in this case of the misapplication of obstruction of business charges to the KRWU leaders and officials and request that an ILO direct contacts mission be sent to the Republic of Korea with the goal of investigating and finding solutions for the ongoing infringements of fundamental labour rights.
47. 79. In its communication dated 14 January 2015, the Government provides general information with regard to the Committee’s request to indicate the steps taken to bring section 314 of the Penal Code – obstruction of business – in line with the principles of freedom of association. The Government first stresses that no employer shall claim damages against a trade union in cases where he/she has suffered damage because of the union’s activities (article 3 of the TULRAA) and no criminal liability shall be borne by the trade union if it has engaged in legitimate union activities. However, no act of violence or destruction shall be construed as justifiable (article 4 of the TULRAA). The Government further indicates that courts apply section 314(1) of the Penal Code that punishes “obstruction of business” to acts interfering with the duty of others, through spreading false information, using deceptive schemes and exerting force. According to the Government, the charge of obstruction of business is filed only for labour disputes involving acts clearly violating the Penal Code such as wielding violence and occupying production lines. The exertion of force refers to the power which could suppress or cause confusion in one’s free will. A strike as an act of labour dispute that goes beyond simply refusing to provide labour and amounts to wielding force to stop providing work collectively in order to carry through workers’ opinions by putting pressure on employers contains elements which constitute use of force as well. The Government further indicates that the Supreme Court ruled that only strikes that take place unexpectedly and are assessed to have possibly suppressed or confused the employers’ free will to continue their business because the strike has created considerable confusion or damage to the business, are considered a crime of obstruction of business (Supreme Court, 17 March 2011, 2007Do482). In conclusion, not even an illegal strike would be subject to punishment on charges of obstruction of business, unless the employer’s free will to continue business is likely to have been suppressed or confused. Therefore there is little possibility for the charge of obstruction of business to violate the principles of freedom of association.
48. 80. With regard to the allegations of raid of KCTU headquarters on 22 December 2013, the Government indicates that on 16 December 2013, the police obtained arrest warrants for the railway company union President and other union members who participated in illegal strikes. These warrants could not be executed because the union members fled. On 15 and 18 December 2013, the police learned that the union president and members were hiding inside KCTU headquarters and decided to enter the headquarters on 22 December 2013 to execute the arrest warrants. The Government confirms that the police entered the KCTU building without a separate search and seizure warrant in order to execute these arrest warrants, but argues that a number of provisions of the code of criminal procedure authorize this course of action. Further confirming that 138 KCTU members who obstructed the execution of public duty in direct and active ways were arrested on the spot for special obstruction of public duty, the Government indicates that subsequently measures were taken based on the severity of the crimes, such as a formal trial without detention for 19 people, summary indictment for 68 people, suspension of prosecution for 50 people and stay of prosecution for one person. The Government concludes that the Korean investigative agency performed public duties in a legitimate manner, and took measures in accordance with the law against those who committed crimes by collectively blocking the execution of arrest warrants.
49. 81. The KRWU, the KPTU, the KCTU and the ITF sent additional follow-up information in a communication dated 24 February 2015. With regard to the disciplinary measures against participants in two strikes organized by the KRWU – 9–31 December 2013 and 24 February 2014 – the complainants indicate that following the workers’ objection to these measures some of them were overturned in the appeal process before the employer and/or the subsequent review process before the LRCs, while the review of some other decisions is still under way.
50. 82. The complainants further provide the 22 December 2014 ruling of the Western Seoul District Court 13th Criminal Division on the KRWU leadership obstruction of business case, which dismissed the obstruction of business charges against the former KRWU President, Mr Myounghwan Kim and three other central KRWU officers who had led the December 2013 strike. The District relied on a Supreme Court ruling precedent according to which for a strike to constitute obstruction of business it has to have “occurred suddenly at a time when the employer could not predict it”. To the extent that the preparations for the December 2013 strike were public, the District Court found that this condition was not fulfilled and hence obstruction of business was not established. The complainants cite excerpts of the ruling in which reference is made to the ILO opinion: “Penalizing a simple act of refusing to provide labour as a crime of obstruction of business has the practical effect of imposing forced labour … Considering that there is concern that this could go against article 12(1) of the Constitution, which prohibits forced labour, together with the fact that currently our nation is under criticism from the ILO and international society for being the only country that applies criminal penalties to simple acts of refusing to provide labour that lack legitimacy, it is necessary to apply penalties for obstruction of business to simple acts of refusing to provide labour in a limited and restricted manner”. The complainants add, however, that this ruling is not final; the prosecution has appealed and the verdict can be overturned in the Appeals Court, and that the possibility of application of obstruction of business to peaceful strikes is maintained in the existing legal precedents.
51. 83. The complainants finally indicate that the ruling of the District Court contains aspects at variance with international standards to the extent that it provides a very narrow interpretation of the legitimate purposes of a strike. According to the ruling “the question of the execution of structural adjustment at a company, such as redundancies or the merger of business organizations, are matters that require high-level determinations by the party responsible for management, and thus, in principle, cannot be the subject of collective bargaining; even in the case that the execution of structural adjustment necessarily involves changes in workers’ status or working conditions, the purpose of strike (concerning these issues) cannot be accepted as legitimate … The question of whether to invest to establish the Suseo KTX stock Company is a matter requiring a high-level determination by the party responsible for management – the Korail – and therefore … cannot be a subject in collective bargaining. Thus the goal of this strike – to stop such a decision – cannot be accepted as legitimate”. Referring to the precedents at the basis of the District Court’s restrictive interpretation, the complainants indicate that with regard to the legitimacy of the purpose of a strike, the Supreme Court has, in several rulings, made the interpretation that the demands made in a strike must be related to the improvement of working conditions and be the subject of collective bargaining. The complainants allege that, over the last several decades, the Governments and the employers in the country have used this narrow interpretation to treat countless strikes by railway and other workers as illegitimate.
52. 84. The complainants further submitted new information about the process of revision of the collective bargaining agreement between the railway company and the KRWU in the course of the year 2014, driven by the introduction of a government policy called the “Normalization of Public Institutions”. Indicating that as a central part of this policy, the Government instructed the railway company and other public institutions with severe debt to abolish or revise collective bargaining agreement provisions falling under 55 items and eight categories, the complainants allege that the main provisions targeted included those protecting benefits and rights won by the railway company and other public institution workers through years of struggle. The complainants further indicate that as instructed by the Government, the railway company demanded revision of the identified collective agreement provisions during the 2013 bargaining on wages and unresolved issues with the KRWU which carried over into 2014. It is alleged that the company threatened strict enforcement of disciplinary measures, additional claims for damages and additional forced transfers should the KRWU refuse the proposed conditions and said it would minimize disciplinary measures and defer a second round of transfers should the KRWU concede. According to the complainants, faced with this pressure, the KRWU leadership reached a provisional agreement with the company, which included most of the revisions required by the government’s policy on 18 August 2014.
53. 85. The complainants indicate that the provisional agreement was subjected to a vote by the KRWU officers composing its Expanded Industrial Dispute Committee, and it was adopted with 83 in favour, 29 against, and 12 abstaining. It was voted down, however, in a full membership vote carried out from 1 to 3 September with only 49 per cent voting in favour. Given that this full membership vote had the character of a vote of no confidence in union leadership, KRWU President Myounghwan Kim and the other central officers that had led the 2013 strike resigned, creating a temporary leadership vacuum. Immediately after the agreement was voted down, the Government announced ten more areas where workers’ conditions were to be scaled back at the railway company and 37 other public institutions centrally targeted by the Normalisation of Public Institutions policy. Based on the Government’s instructions, the company management called on the KRWU’s interim acting leadership to engage in additional negotiations. The complainants further allege that while the leadership vacuum lasted, the company engaged in various efforts to create division among the KRWU membership, namely through mobilizing mid-level managers to post flyers at worksites around the country stressing the importance of accepting the demands related to the Normalisation policy and through pressuring the entire workforce to sign a petition and organize a rally to the same effect. Allegedly, these pressures continued until a new KRWU leadership was elected in October 2014 and in the process hundreds of union members disaffiliated from the KRWU.
54. 86. In its communication received on 1 May 2017, the Government reiterates its February 2014 observations with regard to the grounds on which the December 2013 and February 2014 strikes at the Railway Company were judged illegal and reaffirms that under the TULRAA, railway services are considered essential services subject to minimum service requirements. The Government further provides an update with regard to the disciplinary measures taken against the KRWU leadership and members that had participated in the abovementioned strikes, indicating that as of March 2017, 11 trade unionists were dismissed and 229 suspended, whereas 32 faced a pay cut. It further specifies that the 11 dismissed workers filed individual administrative suits between 15 May and 9 June 2015 which are still pending.
55. 87. With regard to the obstruction of business charges against union members, the Government reiterates its January 2015 observations, indicating that there is little chance of peaceful strikes involving no more than a suspension of work being penalized as an obstruction of business even when the strikes lack a legitimate cause and therefore such charges are unlikely to involve a violation of the freedom of association.
56. 88. With regard to the 2014 revision of the collective agreement between the KRWU and the railway company, the Government indicates that the 2014 agreement is the result of an amicable agreement reached after dozens of supplemental bargaining sessions between the company and the KRWU in accordance with relevant laws, including the TULRAA. It further indicates that in the process of implementing the labour–management collective agreement, the management engaged in activities to inform their employees of the content of the collective agreement and concludes that the argument that the company was exploiting the “Normalization of Public Institutions” policy to weaken the KRWU is not true.
57. 89. The Committee takes due note of the information provided by the complainants and the Government and observes that the issues raised in the allegations relate mainly to measures taken in relation to strike actions organized by the KRWU in the railway company on respectively 9–31 December 2013 and 24 February 2014. These issues include qualification of the strike as illegal with reference to its purpose; hiring of replacement workers during the strike; disciplinary measures including dismissals against striking workers and trade union officials who organized the strike action; charging, arrest and detention of trade union officials who organized the strike under section 341 of the Penal Code (obstruction of business); arrest and charging of protesting trade unionists for obstruction of justice; use of excessive police force; searching of trade union premises entailing damage to property; and civil lawsuits against the trade union and its members for damages caused as a result of the strike and irregularities in the process of revision of the collective bargaining agreement between the KRWU and the railway company. While the Government has not replied to the detailed allegations presented in the communications dated 16 September 2014 and 24 February 2015, it has addressed two aspects of those allegations that were previously raised in the recommendations of the Committee and the complainants’ communication of July 2014. The Committee hence invites the Government to provide detailed information with regard to the further issues raised in the complainants’ more recent communications.
58. 90. With regard to the allegation of the qualification of the strike as illegal, the Committee notes the complainants’ indication that despite the fact that the trade union followed all necessary procedures for a legal strike, the company released an official statement promising strict response and labelling the strike illegal before it started. The Committee further notes the complainants’ indication in their communication dated 24 February 2015 that the Western Seoul District Court 13th Criminal Division held, in its ruling issued on 22 December 2014, that the December 2013 strike was illegitimate, as its goal purported to a matter that cannot be the subject of collective bargaining – namely the execution of structural adjustment in the company. The Committee notes that, according to the complainants, this interpretation of the legitimate goals of a strike is based on numerous precedents set by the Supreme Court that hold that the demands made in a strike must be exclusively related to the improvement of working conditions and be the subject of collective bargaining. The Committee is bound to recall that the right to strike should not be limited solely to industrial disputes that are likely to be resolved through the signing of a collective agreement; workers and their organizations should be able to express in a broader context, if necessary, their dissatisfaction as regards economic and social matters affecting their members’ interests [see Digest, op. cit., para. 531]. In its examination of the present case the Committee has already repeatedly, albeit in different contexts, requested the Government to take the necessary measures to ensure that strike action may be carried out beyond the limited question of industrial disputes for the signing of a collective agreement. In the case of the December 2013 strike at the railway company, the demands of the strikers related to a reform and restructuring plan with significant impact on the company, which would have undoubtedly affected the workers’ interests. The restrictive interpretation of legitimate purposes of strike action may have serious consequences for the striking workers and their organizations in that it may expose them to civil and penal lawsuits and justify measures such as use of replacement workers to break the strike. In light of the above, the Committee once again requests the Government to take the necessary measures to ensure that the current narrow interpretation of the legitimate goals of strike action is set aside so that strike action can be carried out in relation to all social and economic matters of direct concern to the workers.
59. 91. With regard to the hiring of replacement workers during the strike, the Committee notes the complainants’ allegation that in the lead-up to the December 2013 strike, the railway company released a press statement labelling the strike illegal and announcing plans to respond strictly including through the hiring of replacement workers’ and that during the strike the company actually used over 6,000 replacement workers including retired workers, trainees and members of the military dispatched by the Ministry of Defence. The Committee also notes the complainants’ contention that the use of replacement workers was resorted to despite the fact that the trade union took steps in order to comply with requirements of provision of minimum service.
60. 92. With regard to the alleged disciplinary measures undertaken against KRWU members and officials in relation to strike action, the Committee notes that, according to the complainants, as soon as the strike began on 9 December 2013, the railway company announced that it would remove all strikers from their positions and did so with regard to over 8,600 KRWU members. Labour Relations Commissions found that these dismissals during strikes were unjust. The complainants then refer to two rounds of disciplinary hearings after the end of the two strike actions, respectively in February and July 2014 that resulted in measures such as dismissals, suspensions and dock in pay against hundreds of workers in relation to their participation in the two strike actions and other protests at the beginning of the year 2014. Pursuant to the Government’s latest communication on this matter, as of March 2017, after the finalization of the review process by the Labour Relations Commissions, 11 workers were dismissed, 229 were suspended and 32 were subjected to dock in pay. The 11 workers whose dismissal was confirmed have filed administrative suits that are still pending. Recalling that recourse to dismissal or suspension of trade unionists for having exercised the right to strike constitutes serious discrimination in employment on grounds of legitimate trade union activities, and that workers dismissed or suspended in such contexts must be immediately reinstated without loss of pay, the Committee invites the complainant and the Government to submit follow-up information with regard to the outcome of the administrative suits filed by the 11 dismissed workers.
61. 93. The Committee notes the complainants’ indications in their communication dated 16 September 2014 that the railway company pressed charges of obstruction of justice against 176 and 92 KRWU officers respectively in relation to the two strike actions of December 2013 and February 2014 whose trials were under way at the time of the communication. For 35 persons among those charged, arrest warrants were issued; five were arrested during the strike, the rest turned themselves in afterwards. The court did not issue detention warrants for most of them, and the last ones in detention were released on 2 February 2014. In their communication dated 24 February 2015 the complainants indicate that the Western Seoul District Court 13th Criminal Division dismissed the obstruction of business charges against the four central KRWU officials who had led the December 2013 strike on the grounds that the strike had not happened suddenly at a time when the employer could not predict it. The Committee welcomes this ruling and notes with interest that in its reasoning, the District Court has referred the ILO position on section 314 of the Penal Code in support of its restrictive interpretation of that legal provision. The Committee also takes due note of the Government’s explanations about the criteria the courts take into consideration when applying section 314 of the Penal Code. It notes with interest the Government’s indication that not even an illegal strike would be subject to punishment on charges of obstruction of business, unless the employer’s free will to continue business is likely to have been suppressed or confused. The Committee finds, however, that the standard referred to by the Government, namely that “only strikes that take place unexpectedly and are assessed to have possibly suppressed or confused the employer’s free will to continue their business because the strike has created considerable confusion or damage to the business are considered a crime of obstruction of business” is very broad and does not exclude the application of obstruction of business to peaceful strikes. More specifically, the Committee recalls that by linking restrictions on strike action to interference with trade and commerce, a broad range of legitimate strike action could be impeded. While the Committee observes that the courts favour a restrictive approach to the application of obstruction of business to strike actions, it is bound to note that as long as this provision remains applicable to certain peaceful strike actions, workers who exercise their right to strike are exposed to the risk of criminal prosecution, arrest and detention. Even if at the end of a lengthy judicial process they are not condemned as a result of restrictive judicial interpretation of section 314(1), the mere fact of going through the stages of prosecution and trial, and possibly arrest and detention, constitutes in and of itself a serious infringement of their right to freedom of association. In view of the above observations and recalling its previous conclusions in this respect, the Committee once again urges the Government to take the necessary measures to review section 314 of the Penal Code so as to ensure that it does not infringe the right of workers to exercise legitimate trade union activity and to bring it in line with the principles of freedom of association. In particular, the Committee urges the Government to ensure that, in the meantime, charges of obstruction of business are not brought in relation to peaceful strikes, and drop all charges against those workers who have been indicted for participation in such strike actions. It further invites the Government and the complainants to keep it informed of the steps taken and to send information as to the outcome of the pending judicial proceedings against KRWU officials and provide copies of the relevant court judgments.
62. 94. The Committee notes the information submitted separately by two groups of complainants as well as the observations of the Government with regard to the events of 22 December 2013. The Government and the complainants concur on the fact that the police entered KCTU headquarters in search of six KRWU leaders against whom arrest warrants were issued for participation in the strike action in the railway company; that the police proceeded with this operation without a search warrant, and that 138 protestors including KCTU members, were arrested, among whom 19 were later indicted for obstruction of justice, 68 were summarily indicted and 50 had their prosecution suspended. The Committee notes that the complainants allege that the police used excessive force against protestors and destroyed and inflicted damage on facilities, furniture and documents while searching the KCTU offices. The Committee recalls that searches of trade union premises should be made only following the issue of a warrant by the ordinary judicial authority where that authority is satisfied that there are reasonable grounds for supposing that evidence exists on the premises that is material to a prosecution for a penal offence and on the condition that the search be restricted to the purpose in respect of which the warrant was issued [see Digest, op. cit., para. 185]. The Committee notes with deep concern the allegations of ransacking and damage to trade union property in the course of this operation. Recalling that arrest, detention and bringing of charges against trade unionists for trade union activities is contrary to the principles of freedom of association, the Committee observes with regret that the KCTU members who were protesting against the entry and search of union premises without a warrant have been arrested and indicted for obstruction of justice, on the grounds that they obstructed the implementation of arrest warrants by the police. The Committee understands that the arrest warrants on the basis of which the police proceeded with this operation were issued against the KRWU strikers for obstruction of business, hence it is bound to recall its long-standing request to amend this provision so as to ensure respect for freedom of association rights. On the basis of these observations, the Committee requests the Government to order a thorough investigation of the claims of excessive use of force and damage to property by the police, and to take the necessary steps to hold those responsible for the violation of the premises of KRWU to account and to keep it informed of the measures taken. The Committee further requests the Government and the complainants to provide information on the outcome of judicial proceedings against KCTU leaders and members indicted in relation to these events and to send copies of the rulings.
63. 95. The Committee notes the complainants’ indications as to the civil lawsuits that the railway company has brought against the KRWU and its members in relation to the strike actions of December 2009 and 2013, and the related measures of guarantee involving freezing of the union’s bank account up to KRW10.5 billion and the provisional seizure of its assets. In particular, the Committee notes with concern the complainants’ indication that these financial suits combined with the fines prescribed for under the obstruction of business provision not only pose a severe financial threat to the very existence of the union, they also have an intimidating effect and inhibit legitimate trade union activities. The Committee has already emphasized that strikes are by nature disruptive and costly, and strike action also calls for a significant sacrifice for the workers who choose to exercise it as a tool of last resort and means of pressure on the employer to redress any perceived injustices [see 365th Report, para. 577]. In this case, as no detailed information has been provided as to the grounds for the damage claims and the Government has not replied to the allegations, the Committee, expressing its concern as to the important impact such hefty damage claims can have on the free functioning of the union, requests the Government to reply to the allegations and asks it and the complainant to provide follow-up information on the judicial proceedings, including copies of the rulings issued. The Committee further requests the Government to seek the views of the employers’ organizations on this matter.
64. 96. With regard to the revision of the collective bargaining agreement between the railway company and the KRWU, the Committee notes with concern the allegation of the complainants that the company threatened strict enforcement of disciplinary measures, additional claims for damages and additional forced transfers should the KRWU refuse the proposed conditions, as well as the allegation that the railway company engaged into efforts to create division among the KRWU members. The Committee notes that while the Government, in its communication that predates the complainants’ communication, has mentioned that in December 2014, the railway company entered into a valid collective agreement, the complainants do not mention the conclusion of this agreement. Recalling that collective bargaining, if it is to be effective, must assume a voluntary character and not entail recourse to measures of compulsion which would alter the voluntary nature of such bargaining [see Digest, op. cit., para. 926], the Committee is bound to note that threats of measures of compulsion such as those alleged by the complainants, if established, may alter the voluntary nature of bargaining. The Committee invites the Government to provide full information in relation to these allegations. The Committee also invites the complainants to provide additional information on the conduct and outcome of the revision process.