Ratification of three fundamental ILO Conventions – Forced Labour Convention(No. 29), Freedom of Association and Protection of the Right to Organise Convention(No. 87), and Right to Organise and Collective Bargaining Convention(No. 98) – were approved by the Korean National Assembly on 26 Feb 2021. The Conventions will enter into force on 20 Apr 2022. Although it was written a few months before ratification, the concerns in this article are still meaningful.

Ratification of the ILO Convention 87 on freedom of association and 98 on the right to collective bargaining is just around the corner after decades of empty promise. The motion to ratify three Conventions, these two along with the Convention 29 on forced labor, has been submitted to the National Assembly for approval. However, we cannot welcome the upcoming ratification despite having demanded for such a long time. Because, it is the position of the government and the ruling party that this motion cannot be dealt with until the amendments bill of the Trade Union and Labour Relation Adjustment Act, TULRAA, deteriorating trade union rights is passed. Does it make sense that ratifying of the Convention on freedom of association is paired with changing the TULRAA for the worse? What on earth is happening in the National assembly now?

Significance of the Convention

The international labour standard is a legislative measure to regulate the basic principles and rights at workplaces. It is made through two ILO conventions that the tripartite representatives from each country gather. There are 190 Conventions adapted during the last 100 years. Eight conventions including freedom of association, abolition of forced labor, banning child labour, eliminating discrimination in respect of employment and occupation are classified as the ‘Fundamental Conventions’ which every ILO Member is obligated to ratify. In addition, all Members have the obligations to sincerely respect, promote, and implement the principles on the fundamental rights even if they don’t ratify certain Conventions.

The eight Fundamental Conventions are also used in the Labour or Sustainable Development Chapters of various Trade Agreements, the OECD Guidelines for Multinational Enterprises, and the UN Guiding Principles on Business and Human Rights as a base to stipulate the obligations that each government should comply with. Given that these Fundamental Conventions are the essentials for effective implementation of all the other conventions, they are also called as ‘the enabling rights’. It means the freedom of association and the right to collective bargaining and collective action are the prerequisites for workers to be able to actually enjoy various international labour standards such as working hours, wage, social welfare, occupational safety and health, and holidays.

What the Ratification Means

Consecutive governments have promised to ratify the Convention on freedom of association since 1991 when South Korea became a member of ILO. However, the government has argued that ratification is possible only after the existing labour relation laws are fixed because those laws are the major obstacles to ratification. This argument brought huge illusion that ratifying the ILO Conventions would be a process to certify the perfect consistency between domestic laws and international standards. In fact, it was just an excuse for the endless delaying of the promise to ratify the Conventions.

According to the ILO, ratification of Conventions means to promise in advance to amend the domestic laws to be consistent with Conventions. It also means to agree on the ILO supervisory procedures on the application of Conventions. Once the Conventions are ratified based on the approval by the National Assembly, they enter into force in a year and have the same effect as a domestic law. In other words, the Conventions are integrated into the domestic legislative system. One year is given to revise domestic laws to comply with international standards. If the amendment could not be completed within one year, the Conventions are prioritized over the unamended laws according to the last-in-time rule. Accordingly, ratification of the Convention on freedom of association is an expression of will to effectively apply this internationally-recognized fundamental human rights in the country.

We need to focus on Non-regression principle, which is a generally applied to the human rights-related laws in Korea. Section 8, Article 19 of the ILO Constitution stipulates ‘in no case shall the adoption of any Convention or Recommendation by the Conference, or the ratification of any Convention by any Member, be deemed to affect any law, award, custom or agreement which ensures more favorable conditions to the workers concerned than those provided for in the Convention or Recommendation’. Section 2, Article 8 of the ILO Convention No. 87 stipulates ‘the law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention’. Therefore, the pre-existing legal rights should not be contracted but expanded when the laws are amended for ratification of the Conventions.

Does the Government’s Bill Reflect the Purpose of the Conventions?

“Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.” (Article 2, Convention No.87)

According to the Article 2 of the Convention No.87, the establishment and sustainability of labour union should not be swayed by the government. The freedom of association is not given as a result of compromise or charity by the government. The administrative authority should not have the discretionary power to return the establishment report of labour unions. The legal procedure for reporting should not be applied in the manner of delaying or obstructing establishment of labour union. Every worker can establish and join a union regardless of her/his occupation, gender, skin color, race, religion, nationality, political opinion, and types and status of employment. Freedom of association should be guaranteed for any workers no matter who are unemployed or dismissed, and no matter who are in private or public sector. 

Based on these principles, the Committee on Freedom of Association (CFA) of the ILO recognized that TULRAA violates these principles of freedom of association because it excludes workers in special employment types and self-employed workers from the application of the law(Article 2.(1)), refuses to recognize trade union if ‘those who are not workers’ are allowed to join it(Article 2.(4).(d)), and gives the discretional power to the administrative agency for screening the validity of the union based on the structure and rules of the organization during the process of establishment report(Article 12). The CFA has repeatedly recommended Korea to revise TULRAA.

The Trade Union and Labour Relation Adjustment Act, TULRAA 

Article 2. (1) The term “worker” means any person who lives on wages, a salary, or any other income equivalent thereto, regardless of the person’s occupation; … (4) The term “trade union” means an organization or associated organizations of workers, which is formed in voluntary and collective manner upon the workers’ initiative for the purpose of maintaining and improving their working conditions and enhancing their economic and social status: Provided, That an organization shall not be regarded as a trade union in cases falling under any of the following subparagraphs;

(a) Where an employer or other persons who always act in the interest of the employer is allowed to join it;

(b) Where most of its expenditure is supported by the employer;

(c) Where its activities are only aimed at mutual benefits, moral culture and other welfare undertakings;

(d) Where those who are not workers are allowed to join it: Provided, That a dismissed person shall not be regarded as a person who is not a worker, until a review decision is made by the National Labor Relations Commission when he has made an application to the Labor Relations Commission for remedies for unfair labor practices;

(e) In case where its aims are mainly directed at political movements; 

Article 12. (3) When a trade union which made a report of establishment falls under any of the following subparagraphs, the administrative agencies shall return the report of establishment they received w.hen it falls under any item of subparagraph 4 of Article 2.

Given that the government’s bill was made to fix the law in line with the Convention as a prerequisite of the ratification, it should prioritize the amendment of those items. However, it does not include any of them. The government’s amendment bill does not follow the CFA recommendation to delete the Article 2.(4).(d) saying that an organization shall not be regarded as a trade union in case of allowing those who are not workers to join it, rather it is just going to delete the conditional clause, ‘Provided, That a dismissed person shall not be regarded as a person who is not a worker, until a review decision is made by the National Labor Relations Commission when he has made an application to the Labor Relations Commission for remedies for unfair labor practices’. It does not correspond with neither the aim of amendment stated by the government, nor the effective implementation of the Conventions.

“1. Workers’ and employers’ organizations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities and to formulate their programs; 2. The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.” (Article 3, Convention No.87)

According to the Article 3 of the Convention No.87, the rules of trade union should be discussed and adapted by its own members. Eligibility of members should be decided by the union itself. Eligibility, term, and procedure of election of its representatives should be made by the union, without being interrupted by the government. In other words, law must not obstruct the person who is dismissed or who is not an employee of the workplace from becoming a representative. Rights of union representatives should be guaranteed to hold a meeting and to enter the workplace for it. Rights to political action and strike for addressing socioeconomic issues influencing union members’ interest should also be protected. Right to strike can be restricted only for the public officials who exercise the state’s authority or for the essential services in a strict sense. Any measure of collective actions of trade unions such as wildcat strike, suspension of work, slowdown strike, work-to-rule strike, and sit-it strike, should not be limited unless it is violent.

But what does the government’s amendment bill say? In addition to the pre-existing restriction on eligibility of union officials in Article 23, it adopted a new restrictive clause on eligibility of union representatives in Article 17. In exchange of allowing the unemployed and the dismissed to join trade union, the bill restricts union members who are ‘not employed’ from entering the workplace and excludes them from counting the number of union members in the time-off calculation, decision of representative bargaining trade union, and the ballot on industrial action. 

In addition, the government’s amendment bill does not address any of various points of the TULRAA that have been criticized by the CFA as violations of the freedom of association principle. Those are the provisions that prohibit teachers and public officials from expressing their political opinion and from collective action, that define any strikes protesting against the government’s labor policy or massive dismissal as illegal strikes, that have extremely broad definition of ‘the essential services’ in which the right to strike to be restricted, and that apply the concept of ‘obstruction of business’ irrationally with decision of provisional attachment for compensation. Rather the government’s bill adopted a total ban of a specific type of strike, an occupation of the workplace. This is never consistent with the purpose of the Convention nor the government’s own amendment bill.

Enough to ‘the State with no fundamental labor right’

The TULRAA of Korea has not been promoting implementation of the basic three labor rights based on the Constitution of Korea. Rather it has been obstructing these rights with maximum level of restrictions. Existence of TULRAA keeps Korea in the group 5(No guarantee of rights), the lowest rating of the Global Rights Index annually rated by the International Trade Union Confederation. It should be different from now on, with the ratification of the Convention on freedom of association. Korea should be renewed into the state where every worker can freely enjoy the right to union.

The freedom of association principle is internationally recognized as the fundamental human right. Korean society must accept it. The right to union should not be the target of restriction or control any more, but be respected as a freedom. That is why the government’s amendment bill should be abolished right now, which is full of further restriction to this right and obstructs effective implementation of the Convention.