Informations attendues des gouvernements concernant le suivi des cas - Rapport No. 384, Mars 2018

Cas no 3238 (République de Corée) - Date de la plainte: 30-AOÛT -16 - Cas de suivi fermés en raison de l'absence d'informations de la part du plaignant ou du gouvernement au cours des 18 mois écoulés depuis l'examen de ce cas par le Comité.

Allegations: The complainant organizations allege the unilateral adoption of government guidelines affecting the autonomous nature of collective bargaining without full consultation with social partners; the qualification of a strike as illegal with regard to its objective of opposing government policy; criminal charges and prosecution of a union leader in relation to the organization of a strike and participation in demonstrations; use of excessive police force against peaceful protestors resulting in injury and arrest and prosecution of union members and officials for participation in demonstrations

1. 238. The complaint is contained in a communication dated 30 August 2016, submitted by the International Trade Union Confederation (ITUC), the Korean Confederation of Trade Unions (KCTU) and the Federation of Korean Trade Unions (FKTU).
2. 239. The Government sent its observations in a communication received on 29 September 2017.
3. 240. The Republic of Korea has not ratified 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).

A. The complainant’s allegations

1. 241. In their joint communication dated 30 August 2016, the ITUC, FKTU and KCTU indicate that the complaint concerns the unilateral imposition of laws and policies which violate the rights to freedom of association, to organize and to bargain collectively. They further allege the arrest and prosecution of trade union leaders for their participation in demonstrations and strikes to protest against government policies affecting workers’ rights and interests and excessive use of force by the police against peaceful demonstrators. The complainants affirm that the highly excessive prison sentences sought by prosecutors and handed down by judges clearly show that the Government intends to send a very strong message to workers, discouraging the exercise of their rights to assemble and associate.
2. 242. With regard to the unilateral labour law and policy reforms, the complainants refer to the “Comprehensive Plan for Temporary Workers” announced on 29 December 2014 in furtherance of measures for the “improvement of the dual structure in the labour market”. According to the complainants, the Plan eased the conditions for the dismissal of workers, introduced a job-skill and performance-based wage system, relaxed the regulations governing change in employment rules, extended the term limits of fixed-term workers and expanded the categories in which labour dispatch is allowed. The Comprehensive Plan was announced while within the Economic and Social Development Commission (ESDC) negotiations on the improvement of the dual structure in the labour market were ongoing since September 2014 and no consensus was yet reached as to the terms of the Plan.
3. 243. The complainants further indicate that after very difficult negotiations, a Tripartite Agreement on Structural Reforms of the Labour Market (hereafter, the Tripartite Agreement) was concluded on 15 September 2015. However, agreement was not reached on certain subjects on which the ruling party subsequently attempted to pass five bills. The subjects covered in the five bills were the extension of the term limits of fixed-term workers, the expansion of business categories in which labour dispatch is allowed, the reduction of the scope of the ordinary wage, the reduction of additional wages for extended working hours on weekends and holidays and prolongation of the employment period required for the entitlement of unemployment benefits from the current 180 days to 270 days. As a result of this Government initiative, the FKTU that had participated in the tripartite discussions, withdrew from the Tripartite Agreement and began a full-scale strike.
4. 244. As a result of the FKTU withdrawal from the Tripartite Agreement and the subsequent strikes, the Government had to face difficulties at the National Assembly and the five bills did not pass. So the Government unilaterally announced the Guidelines on Easing Regulations on Dismissal of Underperformers and the Guidelines on Disadvantageous Changes in Employment Rules (hereafter, Government Guidelines). On 30 December 2015, it invited scholars and researchers favourable to its position to an expert round table on the subject and shared the essential features of the Guidelines. On 17 January 2016, the Vice Minister of Labour and Employment declared that if the FKTU refused to participate in the consultation process, the Government Guidelines would be implemented in cooperation with other labour organizations. On 22 January, the Ministry of Employment and Labour (hereafter, the Ministry) released the Guidelines earlier than initially planned. The Government was expected to submit a report to the Special Committee on Structural Reforms of the Labour Market of the Tripartite Commission and proclaim the Guidance as part of the follow-up measures to the Tripartite Agreement. However, this stage was skipped and the Government Guidelines were hastily announced on 22 January 2016, shortly after the policy briefing to the President on 20 January. This was in clear violation of the Tripartite Agreement, under which the parties agreed to draw up measures only after consultations. The Government Guidelines are not legally binding, however the Ministry uses them to advise employers and they are likely to have a broad effect on the labour market.
5. 245. The complainants provide the following details as to the content and the prospective impact of the Government Guidelines. They indicate that although the Government claims that the Guidelines will create an atmosphere where people are compensated for their work, in reality they will make it easier for employers to dismiss workers – and so neutralize the negotiation power of unions and labour representatives – modify wages, and introduce a peak wage system. The Guidelines on Easing Regulations on Dismissal of Underperformers provide that “low performance at work” alone may constitute a ground for dismissal, whereas the law allows for dismissal only in very limited circumstances, not including “low performance”, and on specific grounds for which the worker may be held liable. The Guidelines cannot be justified under sections 23 or 94 of the Labour Standards Act currently in force or any other legal precedents. They provide proposed procedures for dismissal of underperformers and recommend that these procedures be included in company employment rules or collective agreements, which, in the complainants’ view, amounts to giving the employers an explicit direction to introduce change disadvantageous to workers in employment rules and collective agreements. The complainants indicate that unions have also expressed serious concern about the likelihood that companies use the Guidelines to disguise restructuring measures. As performance reviews and reassignments are conducted by the employer without any other oversight or control, there is no guarantee that the Guidelines will be meaningfully followed. Furthermore, companies are likely to interpret the Guidelines in the sense that they can dismiss any worker as long as they comply with the formal requirements provided therein. The likelihood that they be misused to justify excessive dismissal measures on the grounds of underperformance or worsen wages and working conditions is quite strong. According to the complainants, through the adoption of these Guidelines, the Government is undermining negotiations between labour and management and causing imbalances in their negotiation power.
6. 246. With regard to the Guidelines on Disadvantageous Changes in Employment Rules, the complainants indicate that they allow companies to adjust their wage system as a consequence of the extension of the retirement age to 60. This could mean that wages will reach a peak once the workers reach the age of 55, and then will decline incrementally until the age of retirement. Under the Government’s new plan, authorities will provide subsidies and consulting to some 30 private companies and 550 factories in six key industries including shipping, finance, medicine and the automobile industry upon the adoption of the wage peak system and the abolition of seniority-based salary systems. According to the complainants, application of peak wages would alter workplace rules in a manner that is unfavourable to employees. Section 94(1) of the Labour Standards Act provides that the consent of a trade union or the majority of workers must be obtained if the introduction of the wage peak system or the change-of-wage system degrades wage or working conditions; whereas the Ministry’s new Guidelines enable companies that are unlikely to receive the consent of a majority of their workers, to change the workplace rules irrespective of their disagreement. The complainants state that unions are concerned that the Government Guidelines are likely to give employers the upper hand in determining a variety of working conditions through reforming the wage structure, which will include not only the peak wage system, but also, at a later stage, a performance-based pay system.
7. 247. The complainants allege that the Government Guidelines are in clear violation of Korean law, the rights to freedom of association and collective bargaining guaranteed by ILO Conventions Nos 87 and 98, and the ILO Constitution. The Guidelines express Government support for easier dismissal of workers, and expressly favour the introduction of procedures for such dismissals into collective agreements. According to the complainants, this will be undoubtedly used against trade unions in bargaining, despite incompatibility with the existing law. By firmly recommending that workers take a wage cut on the basis of the unproven idea that the reduction in wages of older workers will lead to the hiring of younger ones, the Government interferes in wage negotiations. The Government Guidelines interfere with the autonomy of negotiations between workers and employers, as they predetermine the basis on which the parties should agree on a core subject of bargaining. Besides, the guidance for the reduction in the wages of older workers also violates the existing law and is likely to be used to undermine wage schedules negotiated between unions and employers. The result will be a reduction of wages for the most experienced workers.
8. 248. The complainants further indicate that the Government has forced public institutions, including state-owned enterprises, to introduce the performance-based wage system. A unilaterally drafted recommendation to this effect was issued. On 28 January 2016, the Steering Committee of Public Institutions finalized the proposal for the performance-based wage system for public institutions and on 1 February the Financial Services Commission announced the Measures to Promote Performance-Oriented Culture in Public Financial Institutions. On 22 April, President Park explained during the National Financial Strategy Meeting 2016 that the performance-based wage system should be extended to all 120 public institutions so that the public sector can lead the structural reform. She repeated this statement at the State Council session held on 10 May. The Steering Committee decided on 9 May 2016 that state-owned enterprises should introduce the performance-based wage system by the end of June and quasi-governmental institutions should do the same by the end of the year. The decision provided for financial incentives for speeding up the targeted reform of the wage system.
9. 249. The complainants state that the implementation of the performance-based wage system with regard to the executives of public institutions started six years ago, and proved to be dysfunctional and unfair in the absence of objective assessment criteria. The forced generalization of this system in the public sector, without sufficient discussion between management and labour, would be similarly dysfunctional and unfair and may lead to a reduction in public services and pose threats to the people’s safety. It is further alleged in the complaint that the forced introduction of the performance-based wage system has already resulted in prevailing manipulation of the laws and violation of autonomous negotiations between labour and management. Furthermore, since the President’s statement on 25 April 2016, union leaders were confined and individual employees were coerced to consent to the new wage system.
10. 250. The complainants finally allege that Government attempts to expand the performance-based wage system from public to private sector have caused a serious violation of autonomous bargaining between labour and management. They refer to the 2016 Directions and Instructions on Wages and Collective Bargaining, proclaimed by the Government on 23 March 2016. They allege that the Government pushed the content of the Directions by holding local labour–management meetings, forming expert support groups, and selecting core businesses that will be managed accordingly. The Directions indicated mainly that companies should move away from emphasis on seniority and instead base the wage system on skills and performance; the wage increase for the top 10 per cent of executives and employees should be delayed; meetings should be organized with local labour and management organizations to promote youth employment, and an expert support group should be formed to promote the Guidance on Fair Personnel Management among companies and provide general consulting services. It was also indicated that the main targets for the wage system reform are 74 core businesses and the main targets for the introduction of the wage peak system are 1,150 businesses, including 380 companies with more than, and 770 companies with fewer than 300 employees.
11. 251. According to the complainants, the Government’s next step was the announcement of the Plan for the Guidance on Improving Undue or Unreasonable Collective Agreements on 28 March 2016, following the Guidelines for Correcting Undue or Unreasonable Collective Agreements announced on 15 April 2015. The complainants allege that with this Plan, the Government intervened in collective bargaining by taking position in favour of the revision and/or abolition of provisions of collective agreements requiring union consent for certain decisions on personnel and management matters, including change in a union official or member’s job or position, disciplinary actions or business changes such as mergers and acquisitions. The Plan argues that such provisions are unreasonable as they give unions too broad an authority over human resources and management, making it harder for the employers to take managerial decisions quickly. The Plan also qualified as unlawful provisions that provide facilities such as telephone, electricity, water, heating and air conditioning or vehicles to incumbent and former union leaders or those acknowledging as working days the days the members of a negotiating committee spend in negotiations. According to the complainants, following a decision rendered at the National Labour Relations Commission, the Government is determined to issue correction orders in case companies fail to comply with the revision and correction guidance. Furthermore, in April 2016, local offices of the Ministry sent out official letters entitled “Recommendation for Autonomous Improvement of Collective Agreement” to all unions and companies. The letters indicated that the issues identified in the guidance must be corrected within 60 days as of the beginning of labour–management negotiations.
12. 252. The complainants indicate that the Supreme Court of the Republic of Korea has confirmed the legality and the binding character of the collective agreement provisions that the Government labels unreasonable in a number of its past rulings. With regard to changing the job or position of a union member, the Supreme Court has ruled: “If the agreement provides that the employer shall obtain a prior consent or an approval of the labour union, or shall discuss with the union to reach an agreement before imposing a measure, then any measures taken without going through such process shall be in principle regarded as null and void”. With regard to disciplinary action, the Court has held “If the employer’s collective agreement stipulates that the employer shall reach an agreement with its union with regard to any measures or actions to be taken against an executive of the union, any disciplinary action taken without the consent of the union shall be in principle regarded as null and void”. Lastly, with regard to collective agreement provisions limiting management prerogatives, the Supreme Court has held: “Even when a matter is part of the employer’s management rights, labour and management may engage in collective bargaining at their discretion and conclude a collective agreement. The efficacy of such collective agreement is acknowledged unless it goes against compulsory laws or social order.”
13. 253. With regard to the question of incompatibility of the Guidance on Improving Undue or Unreasonable Collective Agreements with the principles of freedom of association and the right to collective bargaining, the complainants refer to the arguments presented in their submission in Case No. 3138 [see 380th Report, paras 355–357].
14. 254. The complainants further describe a number of protest actions in 2015, undertaken by trade unions to express disagreement with what they call Government plans to promote regressive labour law reforms and the State reactions thereto. They indicate that on 3 January 2015, the KCTU central executive committee decided to conduct a general strike if the Government continued to push for the reforms unilaterally. A vote was held over eight days from 31 March to 8 April 2015. Some 84.35 per cent of voters – 54.92 per cent of the total members – voted in favour of the strike. On 13 April, the KCTU declared a general strike to be held on 24 April unless the following four demands were met: (i) the withdrawal of labour market reforms; (ii) the withdrawal of the reform of the public officials’ pension system; (iii) increase of the minimum wage to 10,000 South Korean won (KRW) per hour; and (iv) amendment of the Labour Standards Act and the Trade Union and Labour Relations Adjustment Act (TULRAA) so that fundamental labour rights are guaranteed for all workers.
15. 255. According to the complainants, as soon as the KCTU decision to go on strike was declared, the Korean Employers’ Federation (KEF) made a statement dated 13 April 2015 that qualified the strike as illegal as its purpose was to oppose government policy. Moreover, the Labour Minister Lee-Ki-kwon publicly stated that the declared strike was clearly illegal as striking in opposition to the amendments and systems or policies introduced by the Government is not justified. He further said that as the Minister in charge of industrial relations he will not allow any damage to be caused by the illegal strike. A prosecutor also announced that in case of strike, KCTU leaders and striking workers would be punished under the Penal Code and key figures would be held in custody for investigation.
16. 256. After the strike, the KEF accused KCTU President Mr Han Sang-gyun of “obstruction of business” and the police summoned him on this charge. Besides, the police named him as the leader of an illegal action that occurred during a mass rally held on 16 April 2015 to demand information on the Sewol Ferry disaster. The KCTU had participated in the rally as part of its solidarity activities. Some media outlets also reported that Mr Han had participated in planning an allegedly illegal, violent demonstration. Mr Han requested a rescheduling of the investigation but the prosecution tried to obtain an arrest warrant, which the judge declined to grant. The second assistant prosecutor general of Seoul Central District criticized this judicial decision when he addressed the media. The prosecution’s request for an arrest warrant was renewed and finally granted in June 2015.
17. 257. On 14 November 2015, Mr Han held a press conference in front of the Korea Press Centre in Seoul where he expressed his opposition to the Government labour reforms. After the press conference he participated in the national workers’ rally organized by the KCTU and the people’s mass mobilization organized by various social movements. He subsequently sought sanctuary in the Jogyesa Buddhist Temple. The police finally arrested Mr Han on 10 December 2015, as soon as he stepped out of the temple.
18. 258. Prior to the mass mobilization of 14 November, the national police placed Seoul Metropolitan, Gyeonggi Provincial and Incheon Metropolitan police agencies on the highest alert level; issued a “notice of prohibition” of assembly and demonstrations and announced that it will install bus barricades around the venue of the rally. On the day of the rally, the police mobilized some 20,000 officers from 248 squadrons, 19 water cannons, 679 buses, 580 capsaicin sprays and 102 devices for evidence collection. Bus barricades and water cannons were installed. When the participants marched down the street and were blocked by bus walls, the police used record levels of water and tear gas against them. Water cannons were used in direct or aimed jets, and people found it hard to open their eyes or breathe because of the prolonged tear gas attack. Dozens of people were injured by water cannons, including a farmer named Mr Baek Nam-gi, who went into a coma after being struck with a direct jet of water.
19. 259. According to the complainants, the police did not make an apology about the excessive use of force, nor did it conduct an investigation or reprimand those in charge. Instead, they qualified the mass mobilization as a violent demonstration and proceeded to the investigation and arrest of the participants. About 1,200 police officers were mobilized across the country to investigate participation in the 14 November mass mobilization. On 6 December 2015, the police announced that 1,531 people were chosen as subjects of investigation, and legal action would be taken against 585 persons. In this process, 532 KCTU members were summoned in total: 476 as suspects and 12 as witnesses. Some 15 were cleared of suspicion. Among the summoned, 20 persons were held in custody and subsequently indicted.
20. 260. On 5 January 2016, Mr Han was indicted under eight different charges including simple obstruction of traffic; aggravated obstruction of public duty; injuring police officers; aggravated destruction of public goods and violation of the Act on assembly and demonstrations. It was argued that Mr Han had led all the rallies held by the KCTU in 2015 as well as the mass rally of 14 November. On 4 July 2016, the Seoul Central District Court convicted Mr Han and sentenced him to five years imprisonment and a KRW500,000 fine. On 8 July Mr Han filed an appeal and on 11 July the prosecutors did the same, seeking a longer prison term against him. The complainants indicate that at the time of submission of the complaint to the committee, Mr Han was detained in the Seoul Detention Centre pending his appeal. The committee notes further that an Opinion of the United Nations Working Group on Arbitrary Detention, transmitted by the complainants for the information of the committee, indicates that in a ruling issued on 13 December 2016, the Appellate Court upheld Mr Han’s conviction for incitement to violence but dismissed the charge of “inflicting bodily injury by special obstruction of public duty” and reduced the sentence from five years to three years [see Opinion No. 22/2017 of the United Nations Working Group on Arbitrary Detention concerning Sang-gyun Han and Young-joo Lee, paras 43 and 49].
21. 261. The complainants provide the names of 20 KCTU or affiliate unions’ members and officials against whom a penal procedure was pending at the time of the communication under charges such as special obstruction of public duty injuring public officials, special destruction of public goods, special obstruction of public duty, obstruction of general traffic, failure to observe a dispersal order and harbouring a criminal. Among them, six persons were in custody while awaiting the outcome of their trials or appeals. This group included Mr Sang-gyun Han, President of the KCTU; Ms Tae-sun Bae, Executive Director of KCTU’s Organization Department; Mr Sung-deok Cho, Vice-President of the Korean Public Service and Transport Workers Union (KPTU); Mr Hyun-dae Lee, Director of KCTU’s Organization Department; Mr Jun-seon Park, Director of KCTU’s Organization Department and Mr Jae-shik Lee, Chair of the KPTU Truck Sol Division, Gumi Local. They were respectively condemned to five, three, two, and one-and-a-half years, one year and ten months imprisonment. All charges were related to participation in the 14 November 2015 mass rally. Some were pending appeal at the time of communication.
22. 262. The complainants further indicate that the following three union members and officials were also indicted in relation to the 14 November demonstration, but were released on bail and awaited the result of their trials at the time of the communication: Mr Jae-seung Byeon, member of the KPTU; Mr Jeong-uk Yang, Chair of the Emergency Committee of the Ulsan Nam-ku Branch of the Korean Government Employees’ Union (KGEU) and Mr Ji-ho Yang, Chair of the KCTU Jeju regional branch.
23. 263. Lastly, the complainants indicate that the following 11 union members and officials were convicted to imprisonment terms of between one-and-a-half years and four months on charges of aggravated obstruction of public duty, but all were released as the execution of their sentences was suspended: Mr Jae-geun Choi, member of the Korean Metal Workers’ Union (KMWU); Mr Young-chul Choi, Member of the Korean Federation of Construction Industry Trade Unions (KFCITU); Mr Hyung-chang Jang, Department Executive Director of the KFCITU; Mr Young-hyun Jeong, General Secretary of the Korean Plant Construction Workers Union (KPCWU) Ulsan Branch; Mr Beom-jin Kang, member of the KFCITU; Mr Ki-hong Kim, member of the KFCITU and former Secretary of the KPCWU Ulsan Branch; Mr Kyung-do Kim, member of the KMWU; Mr Geum-ju Lee, member of the KMWU; Mr Nam-guk Lee, member of the KMWU; Mr Jeong-soo Nam, Executive Director of the KCTU’s Education and Publications Department, and Mr Myung-hun Park; member of the KFCITU.
24. 264. The complainants add that besides the procedures undertaken against the 20 abovementioned trade unionists, an arrest warrant for participation in the 14 November demonstration was issued against Ms Young-joo Lee, Secretary General of the KCTU. Ms Lee took refuge at the KCTU headquarters in Seoul as of December 2015 in order to avoid detention.
25. 265. The complainants refer to various paragraphs of the Digest of decisions and principles of the Freedom of Association Committee in support of their views: the arrest and detention of trade union leaders for participation in peaceful trade union activities violates the principle of freedom of association; the purpose of the demonstrations referred to in the complaint was legitimate; the Government determined unilaterally that the April 2015 strike, which concerned the weakening of legal protection of labour, was illegal, while that determination should have been made by an independent tribunal; the excessive use of force in the November 2015 mobilization was a clear violation of the right to freedom of association.
26. 266. The complainants further refer to the report of the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association on his mission to the Republic Korea (A/HRC/32/36/Add.2), emphasizing that he criticized the Government’s efforts to prohibit public demonstrations and to arrest and prosecute trade unionists participating in them. An excerpt of the report is attached to the complaint.

B. The Government’s reply

1. 267. In a communication received on 29 September 2017, the Government transmits its observations with regard to the complainants’ allegations. The Government introduces its observations by the general remark that it has made consistent efforts to elevate the fundamental rights of workers and has doubled its efforts to realize a society that respects labour since the inauguration of the new Administration in May 2017.
2. 268. With regard to the allegations concerning unilateral labour law and policy reforms, the Government indicates that at the end of 2014, draft comprehensive measures for non-regular workers were drawn up and proposed to the ESDC as an agenda item for tripartite discussions, and an official discussion was requested. The Government’s intention was not to announce a finalized policy regarding non-regular workers, but to devise a reasonable solution to improve the treatment of non-regular workers expeditiously via substantial tripartite discussions in the ESDC’s Special Committee on Structural Reforms of the Labour Market. Since then, agreement has not been reached on the draft measures due to a difference of views among the tripartite members of the ESDC.
3. 269. After the FKTU declared the breakdown of negotiations in the ESDC in January 2015, the Korean Government announced its position on the direction of labour market structural reforms on 9 April 2015, stating that it would do its job through legislation and budget allocation regarding matters on which tripartite consensus was built as a result of negotiations that took place over three months, starting in January 2015. These matters included promotion of youth employment, reduction of labour market duality, expansion of the social safety net, clarification of the range of ordinary wages, reduction of working hours, and a soft landing for the retirement age extension. The Government also said that regarding issues on which a consensus on the basic policy direction was reached but details remained to be settled, such as the amendment of laws on the protection of non-regular workers, discussion would continue with the relevant stakeholders and the tripartite partners. Finally, with regard to the issues on which the tripartite members showed clear differences, such as the process and standards (for example, government interpretation and guidelines) of revision of employment rules with a view to restructuring wage systems in relation to the extension of the retirement age to 60, the Government announced that it would gather diverse opinions from experts, labour and management before drawing up a detailed plan of action.
4. 270. The Government further indicates that the guidelines on fair human resources management (referred to as the Guidelines on Easing Regulations on Dismissal of Underperformers by the complainants) are a manual of reference for businesses to help them induce performance based human resources management, which provides a checklist for establishing an equitable human resources management system based on job competency and performance for the overall process of human resources management including hiring, appraisal, pay, education and training, relocation, and retirement management. As to the guidelines on employment rules (referred to as the Guidelines on Disadvantageous Changes in Employment Rules by the complainants) the Government indicates that they are a supplemented revision of the 2009 guidelines that served as a reference for the assessment of restructuring employment rules in relation to the follow-up measures, such as reorganizing the wage system pursuant to the enforcement of the mandatory retirement age of 60 in 2016. However, as it noticed that both sets of guidelines on equitable human resources management and employment rules were made with neither an ample collection of opinions nor a consensus, and that they were a source of conflict between labour and management, blocking social dialogue, in September 2017 the new Government announced that it would abolish them.
5. 271. With regard to the guidelines on wage/collective bargaining (referred to as the 2016 Directions and Instructions on Wages and Collective Bargaining by the complainants) the Government indicates that they are a reference distributed every year to regional labour and employment offices for labour inspectors, generally containing guidance on industrial relations and wage bargaining. Restructuring the wage system is a matter agreed upon through years of tripartite negotiations, and was incorporated into the guidelines not to force its adoption in the private sector, but with a promotional view.
6. 272. With regard to the plan on the revision of (illegal or unreasonable) collective bargaining agreements (CBAs), the Government recalls that the ITUC, the KCTU, and the FKTU jointly submitted a complaint to the Committee, in reply to which the Government sent its observations in March 2016, and the Committee adopted a recommendation in November 2016. The Government expresses its position on the matter once again as follows. CBAs are signed autonomously between labour and management. However, as their prescriptive effects come into force once they are signed, their contents must not be in violation of mandatory provisions, such as the Constitution and related laws. Hence, when a CBA violates mandatory provisions or a third party’s rights, it must be revised, and such a revision must be made by labour and management autonomously, in principle. When such a revision has not occurred autonomously and, if for example, the rights of any party of labour, management, or of jobseekers were unfairly violated, the authorities may order a correction in accordance with Section 31(3) of the TULRAA. Pursuant to this principle, in April 2016, the Government, following a decision of the Labour Relations Commission, issued an order of correction on clear violations of laws, such as preferential and special hiring treatment for the children of union members and provision of financial support to cover union dues and operating expenses. The Government determined that providing facilities to former and incumbent union officials is an unfair labour practice that infringes trade union independence, in violation of section 81(4) of the TULRAA. This stance of the Government is supported by many past court decisions. The Government however challenges the complainants’ allegation that it has stipulated that the collective agreement provision that recognizes the days bargaining committee members engage in bargaining as workdays is illegal, and indicates that it has never made such a determination.
7. 273. The Government further admits having provided a guidance for autonomous resolution of unreasonable (but not illegal) CBAs. The guidance stated that a consent of the trade union on matters relating to personnel and management could not be seen as a violation of mandatory provisions and so it may not be subject to a correction order, but such a requirement might hinder normal operation of business or possible job creation and so it might be better to be addressed autonomously. The Government further indicates that in consideration of the ILO’s position that if a CBA is revised, it must be done by labour and management autonomously, the Government stopped its administrative guidance on unreasonable CBAs as of 31 May, 2017. Furthermore, it emphasizes that it will refrain from intervening in irrational CBAs in respect of labour–management agreements, and will adhere to the principle of autonomous settlement.
8. 274. With regard to the promotion of a performance-based wage system, the Government indicates that on 28 January 2016, it announced “recommendation for a performance-based wage system in public institutions” as part of a solution to reconstruct the wage system to enhance productivity and efficiency of public institutions. This recommendation expanded the coverage of the performance-based wage system from managers to staff and put in place incentives and penalties with a view to expanding the introduction of the system. The recommendation set up basic principles that aimed at ensuring the fairness of performance assessments, namely increasing quantitative indicators when designing assessment indicators; staff participation in setting the indicators; outside experts’ participation in assessment; and a procedure for appeal concerning the results of an assessment.
9. 275. The Government further indicates that in June 2016, all 120 public institutions and quasi government organizations introduced the expanded performance-based wage system. However, some institutions did so without an agreement between labour and management, which caused labour–management conflicts, including legal disputes. The Government, in order to expeditiously resolve such labour–management conflicts derived in the process of expanding the system, devised “follow-up measures related to the performance-based wage system at public institutions” on 16 June 2017. The measures included: (1) removal of some elements in the original recommendation, such as the deadline for introduction of the performance pay system and the minimum extent to which the performance pay system should be introduced; (2) abolition of penalties such as freezing personnel expenses in cases of non-compliance with the guidelines and failure to adopt the performance pay system; and (3) deletion of whether performance pay was introduced or not as an indicator in the management assessment system for public institutions. The Government states that as a result of the introduction of follow-up measures, public institutions are now able to restructure their wage system autonomously based on labour–management agreement and the institutions that introduced the system without labour–management agreements are resolving conflicts by returning to their original wage system and dropping lawsuits.
10. 276. With regard to the context of the protest actions referred to in the complaint, the Government indicates that after the FKTU’s declaration of a de facto breakdown of the grand tripartite compromise in January 2015 and the Government announcement of its position on the direction of labour market structural reforms in April 2015, the complainants proclaimed a general strike in opposition to the Government’s proposal of a discussion. In reply to the allegation that the Government judged this strike illegal before it even took place, it is indicated that the Government has a responsibility to guide both labour and management to abide by the law in order to prevent illegal acts. The former Labour Minister’s statement on the issue of legitimacy of the general strike in April 2015 was to inform the relevant parties of the possibility that their actions might be illegal and to ask for compliance with the existing position of the Supreme Court. However, considering the labour union’s concern that the government’s prior guidance would affect workers’ rights to collective action, the new Government will focus on the prevention of labour–management conflicts and resolution of disputes through active engagement such as on-site guidance and inspection at workplaces and support for labour management dialogue.
11. 277. Regarding the measures taken against Mr Han Sang-gyun, the President of the KCTU and others on 29 April 2015, the Government indicates that the KEF accused Mr Han and another union official of obstruction of business in relation to the general strike on 24 April. Mr Han was prosecuted for a number of offences committed during a total of 11 violent assemblies from April to November 2015, which included one count of inflicting bodily injury by special obstruction of public duty, three counts of special obstruction of public duty, two counts of special obstruction of official goods, seven counts of general obstruction of traffic, five counts of non-compliance with the order to disperse, and four counts of participation in assemblies conducted in prohibited places. In particular, during the rally in May 2015, Mr Han assaulted police officers together with other participants in the rally. The police decided that an investigation was needed and requested Mr Han’s attendance, which he refused. Therefore, an arrest warrant was requested and after the deliberations of the Court, the gravity of the facts was acknowledged and the arrest warrant was issued. However, after the warrant was issued, Mr Han took refuge in Jogye Temple where he planned and organized a number of illegal and violent assemblies, including the one that took place on 14 November 2015.
12. 278. During the 14 November rally, a number of participants illegally occupied all of the major roads in downtown Seoul, such as Sejong-daero and Anguk-dong Rotary in both directions and assaulted police officers who were trying to stop them, using iron pipes and lumber sticks. They also engaged in violent acts such as pulling down the bus barricade with ropes, smashing buses with hammers and iron pipes, and trying to set fire to police buses, which caused serious damage, leaving 108 police officers injured and 43 police buses damaged. To cope with these violent acts, the police legitimately enforced the law by blocking the illegal march and arresting people who committed assaults, in order to keep public order. In this process, the police used minimum sprinkler trucks (water mixed with liquid tear gas) only when necessary and strictly in accordance with requirements and procedures under the Constitution and other legislations of the Republic of Korea. Moreover, the police response was ruled legitimate by the Korean court. The union officials, including Mr Han, were put on trial for organizing and leading violations of the law during the rally.
13. 279. With regard to the police intervention in the 14 November 2015 rally and the death of a demonstrator referred to by the complainant, the Government further indicates that despite the police’s efforts to fulfil their duties in the best way possible, Mr Baek Nam-gi, a farmer, was seriously injured and died on 25 September 2016. An internal inspection was conducted within the police, and the Commissioner-General, Lee Cheol-seong, officially apologized regarding the death of Mr Baek, and as of August 2017, the Commissioner-General was striving to get in contact with the bereaved family to extend his apology in person. Regarding the death of Mr Baek, a report was filed with the prosecution, which is currently being investigated, and necessary measures will be taken according to the results of the investigation. However, the Government’s view is that the unfortunate demise of an ordinary citizen is not in the purview of the ILO.
14. 280. The Government recalls that paragraph 133 of the Digest of Decisions and Principles of the CFA specifies that workers should enjoy the right to “peaceful” demonstrations to defend their “occupational interests”, but it says nothing about illegal or violent protests and adds that anyone who commits a crime is subject to some corresponding punishment, as this is a basic element of rule of law. The Government guarantees unions the lawful and peaceful exercise of their protected rights to the maximum extent possible. The Government emphasizes that the indictment was clearly not an attempt to restrict union activities, as Mr Han Sang-Kyun and other union officials were indicted because they assaulted police officers and planned illegal action which led to unlawful acts of violence. It further indicates that the Supreme Court sentenced Mr Han to three years in prison and a KRW500,000 (approximately USD450) fine on 31 May 2017, which was not for his labour activities but for the violations of the law currently in force. Concerning the outcome of the trials of 20 other union officials mentioned by the complainants, the Government provides the following table:

    • No.		Name		Affiliation		Date of arrest		Court decision		Confirmation
      1		Han Sang-gyun		KCTU		13 Dec. 2015		13 Dec. 2016, second trial		31 May 2017
      2		Bae		KCTU		15 Jan. 2016		(3-year prison term, KRW500,000 fine)		31 May 2017
      3		Jo		Korean Public Service and Transport Workers Union (KPTU)		14 Jan. 2016		13 Dec. 2016, second trial		18 July 2017
      4		Lee		KCTU		19 Feb. 2016		(18-month prison term, KRW300,000 fine)		5 Jan. 2017
      5		Park		KCTU		24 Dec. 2015		13 Dec. 2016, second trial		18 Aug. 2017
      6		Lee		KPTU		25 Dec. 2015		(18-month prison term suspended for 2 years)		29 Jul. 2016
      7		Byeon		KPTU		21 Dec. 2015		13 Dec. 2016, second trial		4 Nov. 2016
      8		Yang		Korean Government Employees’ Union (KGEU)		18 Nov. 2015		(18-month prison term, KRW300,000 fine)		3 June 2016
      9		Yang		KCTU		19 Jan. 2016		14 Oct. 2016, first trial		7 Apr. 2017
      10		Choi		Korean Metal Workers’ Union (KMWU)		9 Jan. 2016		(1-year prison term)		30 Dec. 2016
      11		Choi		Korean Federation of Construction Industry Trade Unions (KFCITU)		24 Dec. 2015		21 Jul. 2016, second trial		23 June 2016
      12		Jang		KFCITU		19 Dec. 2015		(10-month prison term)		2 Sep. 2016
      13		Jeong		Korean Plant Construction Workers Union (KPCWU)		21 Jan. 2016		26 May 2016, first trial		3 Sep. 2016
      14		Gang		KFCITU		18 Nov. 2015		(1-year prison term suspended for 2 years)		4 June 2016
      15		Kim		KFCITU		31 Dec. 2015		28 Jan. 2016, first trial		23 June 2016
      16		Kim		KMWU		20 Nov. 2015		(KRW6 million fine)		9 July 2016
      17		Lee		KMWU		8 Jan. 2016		24 Aug. 2016, first trial		24 Dec. 2016
      18		Lee		KMWU		7 Dec. 2015		(1-year prison term suspended for 2 years)		4 June 2016
      19		Nam		KCTU		7 Jan. 2016		30 Mar. 2016, first trial		19 Aug. 2016
      20		Park		KFCITU		18 Nov. 2015		(1-year prison term suspended for 2 years)		21 July 2016
      21		Lee		KTUC		Dec. 2015: Arrest warrant issued

      >
15. 281. The Government further provides a few indications with regard to the report of the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association that the complainants have partly quoted in support of their allegations. The Government states that the Special Rapporteur has reviewed the overall situation of the rights to freedom of assembly and association and reported his opinions in this regard. However, in the Government’s view, the matters covered by his report are beyond the scope of the ILO Committee on Freedom of Association (CFA), directly related to the protection of fundamental labour rights. The Government expresses the view that, in accordance with paragraph 135 of the Digest of Decisions and Principles of the CFA, assemblies are only protected by the principle of freedom of association when they are organized by a trade union or when they can be considered a legitimate union activity corresponding to Article 3 of ILO Convention No. 87. Hence, the complainants’ demand for the deliberation of the ILO Committee on Freedom of Association on the report of the UN Special Rapporteur is outside the purview of the ILO.
16. 282. With regard to the situation of freedom of peaceful assembly and association in the Republic of Korea, the Government indicates that it guarantees all individuals the right to assembly and association pursuant to the Korean Constitution and international human rights standards. In particular, the freedom of assembly is stipulated in the Assembly and Demonstration Act in detail, according to which anyone who wishes to convene an assembly may do so after submitting the summary of the assembly to the police. The percentage of assemblies that were not authorized was only 0.24 per cent in 2011 and 0.15 per cent in 2015. These low rates illustrate that allegations that the Government is not ensuring the freedom of assembly are groundless. In addition, even for unreported assemblies, only when illegal acts such as violence occur and clearly and directly threaten public peace and order, can they be subject to orders to disperse, according to the precedents of the Supreme Court. In the period between the end of 2016 and April 2017, during the candlelight vigils held nationwide in the Republic of Korea, the police responded pursuant to the law. More than 1 million people participated in a rally, but not a single person was arrested, nor did any violence occur between participants. This can be easily verified from numerous media sources. On the other hand, in the 14 November 2015 assembly, the most violent rally of all of those involving Mr Han, approximately 68,000 participants did not comply with the police’s disperse order that was repeated 15 times; they assaulted police officers with iron pipes and lumber sticks and pulled down police buses with ropes. To respond to such an illegal violent rally, the police mobilized some 20,000 officers, 19 water cannons, and 580 pepper spray devices. This rally alone left 108 police officers injured with two officers seriously injured, 43 police buses damaged, and 138 devices damaged, which made it one of the most violent rallies in recent years, also recognized as such in a court ruling. The Government finally states that the exercise of rights stipulated by international human rights norms can be restricted on the grounds of national security, public order, or for the protection of the rights of others, and violent rallies are beyond the scope of Article 21 of the International Covenant on Civil and Political Rights that protects the right to peaceful assembly.
17. 283. The Government concludes its observations by indicating that the complainants’ allegations with regard to the “unilaterally enforced labour reforms” are exaggerated as the Government had only proposed a guide for tripartite discussions with a view to resolving the crisis brought about as a result of labour market polarization and the extension of the retirement age. Those proposals however, are now either suspended in implementation or are being reviewed from a different perspective as the Government accepted diverse opinions expressed by stakeholders. The Government further reiterates that the legal measures taken against the President of the KCTU, Mr Han Sang-gyun, and other union members were by no means related to their trade union activities, but were a response to violation of the laws in force in the course of illegal and violent rallies.

C. The Committee’s conclusions

1. 284. The Committee notes that this case concerns allegations of unilateral adoption of government guidelines affecting the autonomous nature of collective bargaining without full consultation with social partners; the qualification of a strike as illegal with regard to its objective of opposing government policy; criminal charges and prosecution of a union leader in relation to the organization of a strike and participation in demonstrations; use of excessive police force against peaceful protestors resulting in injury and arrest and prosecution of union members and officials for participation in demonstrations.

Government Guidelines and the autonomous nature of collective bargaining

1. 285. The Committee notes the allegations related to the process of announcement, the content and the potential impact of the Guidelines on Easing Regulations on Dismissal of Underperformers and the Guidelines on Disadvantageous Changes in Employment Rules. According to the complainants, the Guidelines cover highly disputed policy issues on which no prior tripartite agreement could be reached. The complainants affirm that the Government had submitted draft legislation to Parliament that failed to pass due to intensive opposition and protest on the part of trade unions. However, subsequently, without prior tripartite consultations, the complainants allege that the Government quickly drew up and proclaimed guidelines recommending the revision of the wage system and easing of dismissals through modification of workplace rules and collective agreements. The complainants emphasize that although the Guidelines are not legally binding, they are likely to have a broad impact on the labour market as the Ministry of Labour and Employment uses them to advise employers.
2. 286. The Committee notes the complainants’ concern that the Dismissal Guidelines undermine negotiations between labour and management and cause imbalances in the negotiation power between the parties through explicit preference shown for integration of changes in collective agreements and employment rules that make dismissals easier and hence disadvantageous to workers. The complainants affirm that despite their being in violation of Korean law as well as ILO standards on freedom of association and the right to collective bargaining, the Dismissal Guidelines will certainly be used against trade unions in bargaining. The Committee further notes the Government’s observations that what the complainant refers to as Dismissal Guidelines are guidelines on fair human resources management, providing businesses with a checklist for establishing an equitable management of human resources based on competence and performance.
3. 287. With regard to the Guidelines on Disadvantageous Changes in Employment Rules, the Committee notes the allegation that they allow companies that are unlikely to receive the consent of the majority of their workers to change the workplace rules with a view to the modification of the wage system. According to the complainants, the Guidelines firmly recommend that workers approaching the retirement age take a wage cut in order to favour youth employment, and under a new Government plan, authorities will offer incentives to a number of businesses to adopt the wage peak system. The complainants further consider that by firmly recommending that workers accept such modifications, the Government interferes in wage negotiations. According to the complainants, this guidance is also likely to be used to undermine wage schedules already negotiated between unions and employers. The Committee notes that the Government refers to the same guidelines as Guidelines on employment rules and states that they are a reference for the assessment of restructuring of employment rules, in particular with regard to measures such as the increase of the retirement age to 60 in 2016.
4. 288. With regard to the impact of these Guidelines on collective bargaining and whether it amounts to Government interference in collective bargaining, the Committee recalls that where intervention by the public authorities is essentially for the purpose of ensuring that the negotiating parties subordinate their interests to the national economic policy pursued by the Government, irrespective of whether they agree with that policy or not, this is not compatible with the generally accepted principles that workers’ and employers’ organizations should enjoy the right to freely organize their activities and to formulate their programmes, that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof, and that the law of the land should not be such as to impair or be so applied as to impair the enjoyment of such right [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 1005]. While it may be necessary to alert the parties to compelling considerations of national economic interest, this requires, first of all, that the objectives to be recognized as being in the general interest should have been widely discussed by all parties on a national scale.
5. 289. The Committee notes that according to the complainants, the proclamation of the Guidelines on 22 January 2016 was not preceded by tripartite discussions and observes that such a unilateral measure, even if not binding, could appear to be aimed at influencing the process and outcome of collective bargaining and thus alter its free and voluntary nature. The Committee further notes, however, the Government’s indication that, noting that both guidelines were made without an ample collection of opinions or a consensus and had become the source of conflicts between labour and management and obstructed social dialogue, the new administration announced in September 2017 its intention to abolish them. The Committee welcomes this decision and expresses the firm hope that any future guidelines will be drawn up in full consultation with the representative workers’ and employers’ organizations concerned.
6. 290. With regard to the generalization of the performance-based wage system in public institutions including state-owned enterprises, the Committee notes the allegation that the Government has issued a unilaterally drafted recommendation to this effect and that financial incentives were offered for speeding up the related measures. The complainants further allege that the Government measures to introduce the new wage system have already resulted in violation of autonomous negotiations between labour and management. The Committee further notes the Government’s reply to the allegations, confirming that some institutions introduced the new wage system without an agreement between labour and management, which entailed conflicts, including legal disputes. The Committee notes that to remedy this situation the Government has taken follow-up measures in June 2017, removing the incentives and penalties provided in the January 2016 recommendation and that following these measures, the institutions that had introduced the new wage system without labour–management agreement are resolving conflicts by returning to their original wage system. The Committee welcomes the Government’s removal of intrusive penalties and incentives with a view to allowing the parties to restructure their wage systems autonomously on the basis of freely reached agreements between labour and management, and notes with satisfaction that the follow-up measures have already produced beneficial effects in terms of resolution of conflicts that had arisen from the January 2016 Recommendation.
7. 291. The Committee further notes the complainants’ indication that the Government attempted to expand the performance-based wage system to the private sector, in particular through the proclamation of the Directions and Instructions on Wages and Collective bargaining announced on 23 March 2016, that provide that companies should be encouraged to reform the wage system based on skill and performance. Welcoming the Government’s observation that restructuring the wage system has been agreed upon through years of tripartite negotiations and was incorporated in the guidelines only with a promotional view, the Committee recalls that wages are a basic component of terms and conditions of employment which might be subject to collective bargaining and expects that the Government will ensure the autonomy of the parties in the collective bargaining process.
8. 292. The Committee notes with concern the allegation that since former President Park’s statement on 25 April 2016, union leaders were confined and individual employees coerced to consent to the new wage system. It notes, however, that the complainants do not provide any specific details as to the identity of the workers and union leaders that were allegedly confined or coerced, neither do they specify in which context such acts took place, whether it was in the framework of consultations or collective bargaining or in another context. In view of lack of further detail in this regard, the Committee is only in a position to recall that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected [see Digest, op. cit., para. 44] and will not pursue the examination of this allegation.
9. 293. With regard to the Government measures related to the correction of the so-called undue or unreasonable collective agreements, the Committee notes that the Government rejects the complainants’ allegation that it has qualified as unlawful the collective agreement provisions that recognize the days bargaining committee members engage in bargaining as workdays and indicates that it has never made such determination. It further notes the Government’s indication that it has stopped its administrative guidance on unreasonable CBAs as of 31 May 2017 in consideration of the ILO’s position that revision of CBAs must be done by labour and management autonomously. Noting that the allegations and arguments presented to support them are closely related to those submitted in another case concerning the Republic of Korea [see 380th Report, Case No. 3138, paras 349–372] and recalling that in that case, it had regretted that the Government had apparently offered incentives to achieve changes in collective agreements in areas that should rest within the autonomy of the bargaining partners [see 380th Report, para. 371], the Committee welcomes the Government’s decision to stop its guidance directed at the autonomous revision of the so-called unreasonable CBAs.

Interference in the exercise of strike and demonstration

1. 294. With regard to the general strike held on 14 April 2015, the Committee notes that allegedly, both the Korean Federation of Employers and the Labour Minister announced the strike as illegal on the basis that its purpose was to object to Government policies. The Committee recalls that purely political strikes do not fall within the scope of freedom of association. It notes the Government’s observation that the former Minister’s statement on the legitimacy of the general strike was made with a view to inform the parties that the action might be illegal and to request compliance with the relevant position of the Supreme Court. The Committee notes however the Government’s statement in its latest communication that in view of the labour unions’ concern that this type of “prior guidance” would affect the workers’ right to collective action, the new Government will focus on the prevention of labour–management conflicts. In this respect the Committee recalls once again that the responsibility for declaring a strike illegal should not lie with the Government, but with an independent and impartial body [see 378th Report, Case No. 3032, para. 392] and that organizations responsible for defending workers’ socio-economic and occupational interests should be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and standards of living [see Digest, op. cit., para. 527]. Noting with interest the new Government’s sensitivity to the concerns of the workers’ organizations with regard to the eventual impact of official statements on the legitimacy of strikes on their right to collective action and its increased focus on the prevention of labour conflicts, the Committee trusts that the Government will take the necessary measures to ensure that the right of workers to strike in relation to social and economic policies that affect their interests is duly respected.
2. 295. As regards the allegation, confirmed by the Government, that after the strike, the KEF accused Mr Han, the President of the KCTU, of obstruction of business and that the police summoned him on this charge, the Committee refers to its recommendation in case No. 1865 concerning the Republic of Korea.
3. 296. The Committee notes the allegations that the police had issued a notice of prohibition of assembly and demonstration prior to the mass mobilization of 14 November 2015 and that during that demonstration it used record levels of water and tear gas against demonstrators and that dozens of persons were injured by water cannons. The Committee also notes that in response to these allegations, the Government states that a number of participants in the 14 November rally blocked all major roads in downtown Seoul and engaged in violent acts that left 108 police officers injured and 43 police buses damaged. According to the Government the police intervention for blocking the illegal march and arresting people committing assaults was legitimate law enforcement with a view to the protection of public order. Sprinkler trucks were used only when necessary and strictly in accordance with constitutional and legal requirements and procedures and the police response was ruled legitimate in the Constitutional Court.
4. 297. The Committee recalls that although the right of holding trade union meetings is an essential aspect of trade union rights, the organizations concerned must observe the general provisions relating to public meetings, which are applicable to all. Workers and their organizations, like other persons or organized collectives, shall respect the law of the land. The Committee further recalls that workers should enjoy the right to peaceful demonstration to defend their occupational interests and that the authorities should resort to the use of force only in situations where law and order is seriously threatened and that the intervention of the forces of order should be in due proportion to the danger to law and order that the authorities are attempting to control and governments should take measures to ensure that the competent authorities receive adequate instructions so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations which might result in a disturbance of the peace [see Digest, op. cit., paras 133 and 140]. The Committee regrets the allegations of the use of force by both the demonstrators and the police. It further notes the Government’s indication that an internal inspection was conducted within the police with regard to the death of a demonstrator, who passed away from injuries due to police intervention; that the Commissioner-General officially apologized regarding this death and an investigation is being carried out by the prosecution; necessary measures will be taken according to the outcome of the investigation. The Committee trusts that should the result of the investigation identify shortcomings in the management of the demonstration in terms of the principles referred to above, the Government will take all necessary measures so that victims of excessive use of force have access to adequate means of redress, and that, in the future, the interventions of forces of order are conducted in full respect of principles of proportionality and accountability. The Committee requests the Government to keep it informed of the outcome of the investigation and on any measures subsequently taken.

Arrest and detention of trade union members and officials

1. 298. The Committee further notes the allegation that following the 14 November demonstration, the police began a sweeping investigation process against demonstrators. The complainants allege that, in this process, 532 KCTU members were summoned, of which 20 persons were arrested and subsequently indicted. In particular, with regard to Mr Han, the Committee notes that as the complainants indicate, he was condemned to five years imprisonment and a KRW500,000 fine in the court of first instance, and finally, as the Government indicates, on 31 May 2017 the Supreme Court upheld the reduced sentence of the Appellate Court condemning him to three years in jail along with the fine and he is currently serving this sentence.
2. 299. The Committee notes that all 20 indicted KCTU members were arrested and kept in detention for shorter or longer periods. In view of the information submitted by the Government, the Committee notes that six KCTU members and officials (including Mr Han) had their prison sentences ranging from between three years and ten months confirmed; 13 were condemned to various terms of imprisonment of between 18 and four months, but the execution of their sentences was suspended for two to three years and one was condemned to pay a fine. According to the information submitted by the Government all these sentences are now confirmed. The Committee trusts that the 13 persons whose prison sentences were suspended and the person who was sentenced to pay a fine are now free. However, the Government does not indicate the status of the five unionists – other than Mr Han – who were condemned to prison terms without suspended sentences. The Committee hence requests the Government to indicate whether Ms Tae-sun Bae and Messrs Sung-deok Cho, Hyun-dae Lee, Jun-seon Park and Jae-shik Lee are released from prison.
3. 300. The Committee recalls that no one should be deprived of their freedom or be subject to penal sanctions for the mere fact of organizing or participating in a peaceful strike, public meetings or processions [see 346th Report, Case No. 2323, para. 1122] and that in cases involving the arrest, detention or sentencing of trade union officials, individuals have the right to be presumed innocent until found guilty. In the case under examination, Mr Han was arrested, charged and condemned for organization of and participation in a number of trade union protests and public meetings in 2015 including the Sewol Ferry protest on 16 April, 1 May Assembly and the 14 November protest. All the other trade unionists were arrested in relation to their participation in the 14 November protest that related to disputed labour reform measures. The Committee notes the Government’s statement that the assemblies that these unionists organized or participated in were illegal and violent. However, the Committee also observes that the Seoul Appeal Court, dismissed Mr Han’s charge of “special obstruction of public duty injuring public officials” and reduced his sentence from five to three years. It further notes that in accordance with the details of charges submitted by the complainants, only two unionists – Ms Tae-sun Bae and Mr Sung deok Cho – were initially charged with “special obstruction of public duty injuring public officials” which implies violent action during the demonstrations, and both of them had their sentences reduced in appeal, although it is not clear whether this reduction was due to the dismissal of charges of violent action. Other charges brought against the unionists include mainly obstruction of traffic, obstruction of public duty and failure to observe dispersal order. In these circumstances, the Committee considers that it does not have sufficient information available to it to conclude that the convicted trade unionists were directly responsible for violence during the demonstrations, consequently forfeiting their right to freedom of assembly. As the Committee understands that all the sentences are now confirmed, it requests the Government take any measures in its power for the release of Mr Han and all other trade unionists, if any, still in detention for the organization of the 14 November 2015 demonstration or peaceful participation therein and to keep it informed of the measures taken. It further requests the Government to provide detailed information on the charges for which the arrest warrant against Ms Young-joo Lee has been issued.

The Committee’s recommendations

1. 301. In light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Welcoming the decision of the new Korean Government to abolish the Guidelines released on 22 January 2016, the Committee expresses its firm hope that any future guidelines will be drawn up in full consultation with the representative workers’ and employers’ organizations concerned.
   • (b) Welcoming the Government’s observation that restructuring the wage system has been agreed upon through years of tripartite negotiations and was incorporated in the guidelines only with a promotional view, the Committee recalls that wages are a basic component of terms and conditions of employment which might be subject to collective bargaining and expects that the Government will ensure the autonomy of the parties in the collective bargaining process in the private sector.
   • (c) The Committee trusts that should the prosecution’s investigation of a death as a result of police intervention identify shortcomings in the management of the 14 November 2015 demonstration in terms of the principles referred to in its conclusions, the Government will take all the necessary measures so that victims of excessive use of force have access to adequate means of redress, and that in the future the interventions of forces of order are conducted in full respect of principles of proportionality and accountability. The Committee requests the Government to keep it informed of the outcome of the investigation and any measures subsequently taken.
   • (d) The Committee requests the Government to take any measures in its power for the release of Mr Han and all other trade unionists, if any, still in detention for the organization of the 14 November 2015 demonstration or peaceful participation therein and to keep it informed of the measures taken. It further requests the Government to provide detailed information on the charges for which the arrest warrant against Ms Young-joo Lee has been issued.