A/HRC/32/36/Add.2
58.
The Committee considers that “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”.7 The Special Rapporteur
agrees with this position and considers the decertification of the Korean Teachers and
Education Workers Union and the repeated denials of registration for the Korean
Government Employees Union to be an unjustifiable interference in the right of those
groups to freedom of association. In the case of the teachers union, approximately 60,000
teachers have been denied their right to freedom of association because of the inclusion of 9
dismissed teachers. In the case of the government employees union, 10,000 public
employees are prevented from exercising their rights because the constitution of the union
could potentially allow dismissed workers to be members. The denial of recognition on that
basis does not meet the requirements that restrictive measures should be proportionate and
the least intrusive instrument to achieve the desired result.
59.
The plight of the two unions illustrates also the unfortunate implications of the de
facto authorization procedure that underlies the recognition of trade unions. The
certification process, based solely on the issuance of a certificate by the Ministry of
Employment and Labour, creates opportunities for the arbitrary exercise of discretion by
public officials. Requiring prior permission inherently constrains the right to freedom of
association.
60.
Certain categories of workers, including the self-employed, those whose
remuneration is based on performance rather than an employment contract and those who
are paid by clients rather than their employer, are considered to be engaged in “special
forms of work” or in “disguised employment” relationships. Associations formed by those
workers are not recognized as trade unions as defined by the Trade Union and Labour
Relations Adjustment Act. As such, any agreements made by those associations do not
carry the binding force accorded to union collective bargaining agreements and employers
may refuse to adhere to such agreements. For example, the Special Rapporteur was
informed of members of the Korean Public Service and Transport Workers’ Union, Cargo
Truckers Solidarity Division, whose employer, Pulmuone, refuses to recognize their
agreements as binding. Similarly, employers have contested the recognition of the Korean
Construction Workers Union for allegedly including in its membership independent
contractors. In today’s dynamic and ever-changing economic environment, falling back on
pedantic and dated interpretations of what constitutes “employment” constitutes a failure of
imagination – both in terms of protecting workers’ rights and in forging the economy of the
future.
61.
The Special Rapporteur reiterates the position of the Committee on Freedom of
Association that the right to freedom of association, including the right to form or join trade
unions is guaranteed to all workers regardless of their occupation. 8 It is not the role of
Government to determine who can join trade unions.
Interference with the independence and operations of unions
62.
The plurality of trade unions at the enterprise level is a commendable reform by the
Republic of Korea and in conformity with international human rights and labour standards.
More needs to be done, however, to ensure that all unions are independent, voluntary and
equally able to represent the interests of their members.
7
8
Digest of decisions and principles of the Freedom of Association Committee of the Governing Body
of the ILO, fifth (revised) edition (2006), para. 268.
Ibid., paras. 216 and 217.
13
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