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