Realizing freedom of association and collective representation beyond
employment boundaries
Aelim Yun1
In many countries, the basis of worker protection has been the existence of an employment
relationship (ILO 2006a). In the first half of 20th century, the form of permanent, full-time and formal
employment in industrialised countries became the “standard employment relationship”.
By contrast, so-called “non-standard” or “atypical” employment emerged across sectors and
countries after 1970s, and the precariousness in it has brought out social concerns and debates over
labour policy.
However, such terms as ‘non-standard’ or ‘atypical’ employment relationships take ‘standard’
employment relationships as a definitional starting point but without examining how that norm is
deteriorating and whether those standard employment relationships were found or not among
women or the ‘peripheral’ workers in the labour market (Fudge 2005).
The International Labour Organization (ILO) has developed international instruments on regulating
precarious work since 1990s. Evolution of the discussion at the ILO over the contract labour and the
employment relationship is an example. The ILO identified that there were several elements which
made a particular form of employment precarious, including the degree of certainty of continuing
work and the number and type of labour protections enjoyed by workers, either by law or as
negotiated by a collective organization like a trade union (Rogers 1989).
Although it was found during the discussion that precarious work evolved beyond the employment
relationship, the ILO instruments took the employment relationship as a starting point as to worker
protection. In 1997 and 1998, the International Labour Conference examined an item on “contract
labour”, but the proposal to adopt new international instruments failed, mainly due to controversies
over the term. This consequently oriented discussions towards the scope of the employment
relationship in 2003, and the Employment Relationship Recommendation (No. 198) was adopted in
2006. While it recognizes that the regulatory scope of the employment relationship does not accord
with the realities of working relationship, the Recommendation associates again worker protection
with the employment relationship (see ILO 2006a).
This paper begins with arguing that the nature of precarious work can be understood as the
disintegration of the employment relationship which was a historical compromise of distribution of
1
Ph.D. in labour and social security laws, Lecturer at Korea National Open University. aelimyun@hotmail.com
1
cost and risks between capital, labour and society (Supiot et al. 2001; Frade and Darmon 2005). It
explains that how the aspect of precarious work is associated with changes in the distribution of risks,
analysing strategies for a cost-and-risks transfer across corporate and employment boundaries.
Following this argument, this paper examines four cases of organizing and collective actions of
precarious workers in Korea, to challenge this unbalanced distribution.
Finally, this paper suggests that inclusive industrial relations should be formed along the value
chains whereby capital transfers cost and risks onto labour and society. It is also essential for
innovative labour regulations to realize freedom of association beyond employment and corporate
boundaries.
Mechanisms of distribution towards workers of the insecurity and risks
Making the employment relationship a dotted line
The most common practice related to precarious work is making the term of employment contract
different from that of the ‘standard’ employment relationship. In Korea, for example, the Labour
Standard Act (LSA) stipulates that an employer must have a justifiable reason for dismissal.
Nevertheless, workers with a fixed-term contract have few protections when an employer refuses to
renew a contract, as courts have ruled that the refusal did not amount to a dismissal.2 Thus, an
employer can dismiss at will a fixed-term contract worker by refusal of renewal of contract.
By fixing a term of contract, employers decide whether an employment relationship lasts or not,
and this makes workers vulnerable. Although the Act on the Protection of Fixed-term and Part-time
Workers (APFPW) forbids discriminatory treatment of fixed-term workers, they refrain from
appealing to the Act, for fear of the reprisal of the employer. Joining a trade union is particularly risky,
and consequently union membership among fixed-term workers is very low.3
Furthermore, the existence of an employment relationship is contentious, where the term of a
contract is set by day or even by hour. ‘On-call’ workers are such a case, in which the existence of
subordinate relationship was often denied by courts, for a reason that a worker provides her labour
to several employers.
The fact that the work has a certain continuity might be an indicator of the existence of an
2
Supreme Court Decision (1998) 1. 23, 97-da-42489.
3
While union density of regular employees is 21.0 per cent, that of fixed-term contract workers is 4.2 per cent in
2014 present (Yoosun Kim, 2014).
2
employment relationship (ILO 2006a). However, the fact that a worker provides her labour to a
particular employer for a short term or intermittently does not always indicate that she has
independency. Rather it might imply that the worker has more precarious conditions such as a day
labourer.
On the other hand, employing individual worker on short-time contracts might bring out
difficulties in recruiting and managing workers. There are some practices to cope with this problem.
One is using labour intermediaries such as private employment agencies. Another is the external
labour market in particular trade or occupation. The more prevalent are precarious forms of
employment in industries, the easier is to recruit experienced workers in the external labour market.
The cost of recruiting and training is transferred onto individual worker, and the level of wages is
standardized downward at minimum wages.
As such, the unbalanced distribution of cost and risks between employers and workers is ensured
over the labour market, even though an employment relationship between individual employer and
worker seems like a dotted line.
Making the employment relationship indirect
Triangular employment relationships in which a provider mediates between a user enterprise and
a worker is an easy way to evade employer’s responsibilities. In Korea, triangular employment
relationships were legitimized after the enactment of the Act on the Protection of Temporary Agency
Workers (APTAW) in 1998. Under the APTAW, a temporary employment agency takes legal
responsibility for workers’ entitlements such as wages and social insurances. At the same time, the
APTAW states that a user enterprise takes legal responsibility for workers’ rights such as working
hours, holidays and occupational health and safety. Also, a user enterprise must employ directly a
temporary agency worker, where it uses illegal temporary agency work.
For example, a user enterprise must hire directly a temporary agency worker, where it used the
same worker over two years. However, user enterprises normally replace an agency worker by
another every two year to evade the application of the APTAW. Moreover, most temporary work
agencies have an employment contract with a worker, only for the period that the worker works for a
user enterprise. As a result, neither a user enterprise nor an agency holds responsibility for
employment security, while a temporary agency worker suffers from periodical job insecurity.
In addition, worse practice of triangular employment relationships is prevalent in Korea, which is
often referred to “in-house subcontracting”. In this arrangement, a worker enters an employment
3
contract with a contractor (‘subcontractor’), but works for a principal company (‘subcontracting
company’) in a workplace of the principal company. It is the hottest issue in Korea who should take
responsibilities for workers’ rights in the in-house subcontracting.
The courts normally held that a principal company should take legal responsibility for workers’
rights only where the company instruct or supervise the performance of work.4 Thus, the courts
have seldom recognized the employer’s responsibility of a principal company, in cases where the
principal company made the contractor supervise the performance of work on behalf of the principal
or the worker had to obey service guidelines by which the principal instructed a standardized process
of work.
Freedland identified four functions that make up the idea of employing workers: (1) engaging
workers and terminating employment; (2) remunerating and providing them with other benefits; (3)
managing the employment relationship and the process of work; and (4) using workers' services in
the process of production or service provisions (Freedland 2003). In triangular employment
relationships, these functions are performed by separated enterprises, and it brings about difficulties
in identifying who is responsible for workers’ rights.
Making the employment relationship disguised
The most commonly used factors for determining whether work is performed under an
employment contract are dependency and subordination, or work done under the direction,
authority, supervision or control of the employer, or on the latter's orders or instructions or for the
employer's account (ILO 2006a). Korean courts as well emphasize the power to instruct or supervise
the performance of work and the nature of remunerations, while various indicators have been listed
in judicial precedents.5
On the other hand, the legal notion of subordination or dependency has been challenged as new
kinds of dependent work emerged last decades. “Economically dependent workers”, who are
formally self-employed but depend on one or a few “users” for their income are the case (ILO 2003).
4
Supreme Court Decision (2015) 2. 26, 2011-da-78316.
5
In determining whether one is an employee under the labour laws, the judicial precedents have developed the
following indicators: (a) the employer decides what work will be done, (b) the employee is subject to personnel
regulations, (c) the employer directs or supervises the performance of work, (d) the employer specifies the time and
place in which work is done, (e) the worker may or may not employ a third party to substitute the labour, (f) the
possession of fixtures, raw material or work tools, (g) the nature of wages as a price for labour, the existence of a
basic wage or fixed wage, or withholding labour income tax, (h) the worker provides labour continuously and works
exclusively for the employer, (i) the recognition of employee status under other laws such as the social security laws,
(j) the socio-economic situation of both parties (Supreme Court Decision 2006. 12. 7, 2004-da-29736).
4
Faced with changes in dependent work, the legal notion of dependency or subordination has evolved
in many legal systems into a concept which is no longer defined only in terms of submission to orders
in the performance of work itself, but also in terms of the integration of workers in an organizational
scheme designed by and for others (Supiot et al. 2001).
At the same time, some parts of labour protection regulations have been applied to “economically
dependent workers”, and some of those types of workers were conceptualized as “quasi-employees”
(arbeitnehmerähnliche Personen) in Germany, “the project-based work contract" in Italy or
“dependent contractor" in Canada.
Nevertheless, economic dependence is often understood to be a socially important criterion,
which raises the question of protection, but not amounts to legal subordination (Pedersini 2002;
Perulli 2003; Sciarra 2005). In other words, economically dependent workers are included in the selfemployed category, and thus a partial application of labour protection for those workers is justified.
Furthermore, a worker who provides her labour to several users is often regarded as the
independent self-employed, since the worker does not seem to depend on a ‘particular’ user
(Countouris 2011).
As explained earlier, this point of view is related to a notion, which apprehends the existence of
dependency only vis a vis a particular ‘single’ employer. Like the case of triangular employment
relationships, this viewpoint which sticks to one-to-one relation cannot fully understand changes in
dependent work and employer’s control mechanism.
Making precarious work being “the norm”
Regarding some of workers who have been traditionally treated as ‘peripheral’ workforce,
precarious work often becomes the norm. Youths and women are the case in Korea. Youth
unemployment has increased since labour market flexibilisation policies were pushed ahead after
the late 1990s.6 As employers have reduced new employment and replaced regular employees by
precarious workers, the Government has pushed ahead youth employment policies that encouraged
employers to hire youths on precarious job positions.
Since 2009, for example, the Government has provided financial support to small and medium
sized enterprises (SME) that employed a youth as an intern. Financial support maintains up to six
months after the SME converts the ‘youth intern’ into regular employee. A result of survey
The youth employment rate is low (41.1 per cent), compared with the average employment rate in all ages (65.6
per cent) in April 2015 present (National Statistics Office). The youth employment rate has fallen from 45.1 per cent
in 2004. The youth unemployment rate is highest (10.2 per cent), compared with that in all ages (3.9 per cent).
6
5
conducted by the Ministry of Employment & Labour in 2012, revealed that the proportion of regular
employment among youth interns was around 60 per cent, and that the proportion of maintaining a
regular job over six months was 37.1 per cent. In other words, many SMEs employed youths only for
a period when financial support was provided. The poor working conditions are another reason for
youths evade jobs at SMEs.
As a result, precarious work became ‘normal’ among youths. 88 per cent of teenage workers and
47.4 per cent of workers in their twenties are precarious workers (Korean Contingent Workers’
Centre 2014). According to a research (Yoosun Kim 2015), 28.1 per cent of workers under age 25 are
paid under the legal minimum wages, and it is three times the proportion of all workers (12.1 per
cent).
Reversing the cost-and-risks transfer: Organizing and fights of precarious workers
Subcontracted workers at Samsung Electronics Service
Work arrangement
Samsung Electronics Service is a subsidiary of Samsung Electronics, and its main business is
providing repairing service for consumers of Samsung Electronics. Samsung Electronics Service
employ two types of service engineers: 270 regularly employed engineers and 8,406 subcontracted
engineers.
Subcontracted engineers enter into an employment contract with a “Great Partnership Agency”
(GPA) of Samsung Electronics Service. While the GPAs formally make an exclusive “service contract”
with Samsung Electronics Service, the former are in practice subordinate to the latter. For instance,
Samsung Electronics Service offers offices, equipments, parts of electronics and uniforms to GPAs for
free. Samsung Electronics Service makes an inspection of business of GPAs every year, and allocates
“service area” to GPAs.
Samsung Electronics Service, establishing a consortium with GPAs, recruits service engineers and
executes job training for new recruits for three months. Only those who finish this job training can
enter into an employment contract with a GPA, and only those who pass the regular exam of
Samsung Electronics Service keep working.
GPAs input data regarding personal information, service records and skill level of workers into the
“Integrated Computer System” of Samsung Electronics Service. When a customer rings the Samsung
6
Electronics Service Call Centre, the Computer System finds available service engineer. The engineer
visits home of the customer to repair electronics, and input details into the Computer System when
he completes service. Samsung Electronics Service provides the GPAs with a contract price, which is
composed mainly of remunerations of service engineers7 and managers of a GPA.
In addition, it is Samsung Electronics Service that sets up the detailed standards of valuation and
offers service engineers an incentive or imposes a penalty. For example, service engineers should act
on manuals which give instructions on from how to provide service for customers to personal
appearance of the worker. Also, Samsung Electronics Service imposes a penalty on service engineers
and orders them to submit an improvement plan, when he was not awarded a perfect score by a
customer or a “mystery shopper”8. If a service engineer takes a certain amount of penalties, he has
his pay curtailed, and the GPA of the engineer would have its service contract terminated by
Samsung Electronics Service.
Organizing workers
As discontent over working conditions among service engineers increased, a few workers’
members of the Labour-Management Council demanded a lunch break, an 8-hour workday and
overtime pay in 2012.9 Samsung Electronics Service terminated a service contract with the GPAs
where workers’ members demanded the improvement of working conditions, and those GPAs closed
down their business soon afterwards. Samsung Electronics Service let other GPAs re-hire service
engineers except those workers’ members.
Dismissed workers publicized their demands and unfair labour practice of Samsung Electronics
Service on the Internet and on the Social Network Service among service engineers. Also, the
workers consulted the Korean Metal Workers Union (KMWU), and requested support from labourfriendly members of the National Assembly. This effort bore a fruit as a forming of their own union -
If a service engineer visits customer’s home and repairs a TV set, for example, his remuneration is calculated by
multiplying the working minutes (30 minutes) by rates per minute (225 Korean Won). Here, the working minutes
and rates per minute are in advance standardized by Samsung Electronics Service, and thus the real working time
including time for driving to customer’s home and time for responding to customers’ inquiry is not paid.
8 A ‘mystery shopper’ is a tool used externally by market research companies, or internally by companies themselves
to measure quality of service, or compliance with regulation, or to gather specific information about products and
services. Mystery shoppers perform specific tasks such as purchasing a product, asking questions, registering
complaints or behaving in a certain way, and then provide detailed reports or feedback about their experiences.
9 The Act on the Promotion of Workers’ Participation and Cooperation stipulates that a labour-management
council shall be established at each business or workplace employing more than 30 people on a regular basis. The
council shall be composed of the same numbers of members representing workers and employers. Matters
regarding settlement of workers' grievances, administration of working hours and recess hours and so on, require
consultation by a council.
7
7
Samsung Electronics Service Workers’ Branch of the KMWU – in July 2013.
From the beginning, the union has publicized that Samsung Electronics Service had the real power
to decide their working conditions, and has attempted to bargain collectively with Samsung
Electronics Service along with the GPAs. At the same time, the union made effort to build alliances
with various social movement groups. The Samsung group has stuck to the ‘union-free’ business
policy for decades, and a lot of attempts to form a union have been violently smashed by the
management of the Samsung group. To protect union members from suppression by the Samsung
group, the union built a solidarity committee with social and political movement groups, and that
committee actively did a campaign for workers’ rights at Samsung group. The union also supported
other workers’ fight, for example, demanding that Samsung Electronics should compensate workers
who had worked at semiconductor production lines for the occupational disease.
While the union and the solidarity committee filed a complaint against the illegal use of temporary
agency workers, the Ministry of Employment and Labour determined that the service contract
between Samsung Electronics Service and the GPAs did not amount to illegal use of temporary
agency work, in September 2013.10 Encouraged by this determination, Samsung Electronics Service
kept refusing to collectively bargain with the union, and oppressed union members by terminating
service contracts with the GPAs which they belonged to.
Against this policy, the union went on a strike and held sit-ins in front of the headquarters of
Samsung Electronics since January 2014. Amid the growing labour repression, two union members
committed suicide to protest against Samsung Electronics Service in October 2013 and in May 2014.
Eventually, the union achieved a basic agreement on securing the right of union activities and
rehiring dismissed workers and on wage increases in June 2014. Although the formal party of this
agreement was a representative of the GPAs, it would be impossible without the approval of
Samsung Electronics Service. This is the first case which workers at the Samsung group concluded a
collective agreement with the management.
Owner-operators at construction sites
Work arrangement
The major reason of the determination of the Ministry of Employment & Labour was that Samsung Electronics
Service did not seem to order the service engineers about the performance ‘directly’ or ‘concretely’. Whereas it
viewed that job training, service guidelines and monitoring on workers merely amounted to the contents of service
contract between Samsung Electronics Service and the GPAs.
10
8
The construction industry in Korea is characterized by a complex pyramid structure which is
comprised, at any one site, of one main construction company (“main contractor”) and several layers
of subcontractors. The cost-cut pressure under the multi-layered subcontracting has had various
effects on the employment relationships in construction.
First of all, the prevailing form of employment relationship is the informal and indirect
employment via intermediaries or foremen. The labour intermediary or a foreman is often a skilled
craftsman who operates as an independent manager-cum-worker. He/She receives a contract from a
subcontractor or a sub-subcontractor and does the construction work by recruiting temporary
workers through personal network. A recent survey revealed that over 70 per cent of construction
site workers got a job through foremen (Sim et al., 2013). Although foremen recruit and manage
workers and distribute the remuneration, in fact they cannot bear the employer liability.
Construction site workers work under the control of both the main contractor and the
subcontractors. Under such circumstances, it is difficult to identify who is responsible for
employment and working conditions of construction site workers.
Second, about 90 per cent of construction site workers are employed on temporary and short
terms, in 2008 present (Ministry of Labour, 2008). Korean construction workers are hired only for the
period of a certain construction project, and they suffer from repeated unemployment.
Third, the most significant changes in the employment relationship are a massive shedding of
labour by construction firms, particularly amongst construction equipment operators, and an
increase in the level of independent workers or economically dependent workers since the late
1990s. For example, over 90 per cent in dump truck drivers provide their labour as an “independent
contractor” without employment contract (Korean Construction Workers Union, 2007).
Since these drivers have their own trucks and take expenses of the operation of vehicle, they are
regarded as the self-employed. In reality, however, they are subordinate to the control of particular
subcontractors or main contractors, and they drive trucks by themselves without employing others.
In addition, they are regarded as the self-employed since they often provide their labour for several
construction companies. The legal precedents hardly look into the fact that this practice is common
with day labourers, who are employed only on a short term under the multi-layered subcontracting
system as explained above.
These owner-operators also get a job through labour intermediaries or subcontractors, since
otherwise they hardly enter into a contract directly with a main contractor. Construction companies
as well prefer to hire them via intermediaries, as it is more convenient to be stably provided and
manage workers.
9
According to the Korean Construction Workers Union (Korean Construction Workers Union, 2013),
owner-operators are working even longer, compared with construction site workers. 59.6 per cent of
them work for 10 hours per day, and 13.6 per cent work for over 12 hours. Owner-operators also
suffer from low wages, due to the multi-layered subcontracting system and piece rate. 66 per cent of
operators said that they got a job in three or more chains, and this caused a sizable wage-cut, in
2008 (Korean Construction Workers Union, 2009). As owner-operators are normally paid by piece
and they are not protected by the LSA, they tend to work longer in order to make up the low wages.
In the survey of 2013, over 60 per cent of owner-operators said the amount of annual income was
less than 20 million KRW, which was similar to that of construction site workers. Moreover, their
incomes are more insecure, since they have to take all costs related to vehicle, and these costs are
incurred during their unemployment as well.
Organising workers
The unionization of owner-operators is characterized by an interrelated process of their voluntary
fights and support from the existing union. For example, some dump truck drivers were impressed by
the unionization of road freight truck drivers whose working conditions were similar to their own,
and consulted the Korean Federation of Construction Industry Trade Unions (KFCITU) in 2004.11 After
several months of consultation and education, the dump truck drivers formed a special unit – called
the “Dump Truck Drivers’ Solidarity” (Dumpyundai) - under the KFCITU in September 2004.
Once a good number of owner-operators were organised in some regions, the Dumpyundai went
on a strike and delivered their demands to the Government in May 2005, which made their working
conditions and demands attract the public attention. Particularly, unions put forward the legislative
measure such as better regulations on multi-layered subcontracting and overloading as the top
agenda. This strategy intended to make the favourable circumstances for the unionization through
legislative changes and later on to enforce those regulations, starting from public construction
projects. Also, the union put private contractors into signing collective agreement on the basis of
achievements in public construction project. For example, the union has achieved Sundays off and a
working hours reduction, by making local authorities supervise contractors at public construction
projects, and demanded that contractors at private projects also should follow this practice.
Truck drivers in road freight transport industry as well were mostly owner-operators and suffered from poor
working conditions and multi-layered subcontracting system in the industry. They formed a special unit – called the
“Independent Drivers’ Solidarity” (Hwamulyundai) – under the Korean Cargo Transport Workers Federation
(KCTWF) in October 2002, and went on a successful general strike in May 2003. See Aelim Yun, 2014, Organizing
workers beyond an employment relationship, in: Bhowmik (ed.), The State of Labour, Routledge.
11
10
In this way, the union made a great appeal to the unorganized as well as union members, by
fighting for common demands that could be applied to all workers. For example, during the first
general strike of the Dumpyundai, the union was able to mobilise widely unorganized drivers to take
part in collective actions, since they felt the demands of the union as their own voice. After the first
strike, the membership of the Dumpyundai rapidly increased, and this happen again and again later
on. Furthermore, a successful organizing of one trade spread to another trade along a work process.
Unionized dump truck drivers talked to excavator operators into joining the union, and these
organizing of owner-operators had a positive effect on the organizing concrete pump car drivers.
Owing to continuous struggles, about 19,000 owner-operators were organised in the Korean
Construction Transport Workers Union, which was formed as an industrial union in 2007 under the
KFCITU.
Fights for reducing working hours also intended to decrease competition and a race to the bottom
among owner-operators. As dump truck drivers began to sign collective agreements including the
standard working hours and rates, this had a strong influence on non-union workers. There have
been many business associations among owner-operators, and they also demand a reduction of
working hours, influenced by the union. In this way, the standard working hours become a norm in
the industry.
Also, the KCWU has struggled to eradicate wage arrears and delayed wages in the industry. For
example, the union has demanded that the local authorities take measures to secure wages in the
construction project awarded by public organs. As a result, municipal ordinances were enacted in
three provinces and five cities, up to 2011. According to municipal ordinances, local authorities
should supervise contractors in public procurement to pay workers timely, and should secure wages
in cases that contractors do not pay workers. In particular, these ordinances secure wages of owneroperators as well as construction site workers. Since 2013, furthermore, a new institution, which
made construction firms guarantee to pay construction machinery operators overdue wages, was
nationally introduced. This is one of those the KCWU demanded, and makes it possible that
construction machinery operators secure their wage in cases that subcontractors or intermediaries
do not pay them in time.
As the majority of union members are owner-operators, the KCWU has actively engaged in fights
for independent workers’ rights. Various independent workers’ unions, including the KCWU, the
Hwamulyundai, Korean Home Tutors Union and care workers’ unions, which were affiliated to the
Korean Confederation of Trade Unions (KCTU), have formed a committee (Independent Workers
Committee) in the KCTU and conducted a common campaign for legislation to secure labour rights
11
for independent workers since 2002. The Committee, along with the KCTU, has demanded that
protection of labour laws and the Industrial Accident Compensation Insurance Act should apply to
independent workers without discrimination. In particular, the KCWU and the Hwamulyundai, both
of which represent owner-operators, staged a joint rally, demanding labour rights in 2012.
Precarious workers in school
Work arrangement
It is a noteworthy characteristic that Korean Government itself is a major employer who has
abused precarious employment. Since the economic crisis in 1997, the Government has driven the
public sectors to reduce personnel and to contract out their services. Particularly, the Government
has forced this restructuring through budget mechanisms, that is, imposing financial penalties, when
public organizations fail in implementing required restructuring. As a result, hundreds of thousands
of public employees have been retrenched and precarious employment has been introduced, which
in turn has made budget cuts possible.
According to the Ministry of Employment & Labour, precarious workers are about 350,000 in 2013
present, which amount to 20 per cent of public sector workers (Jongjin Kim 2014). Among them,
precarious workers in primary and secondary schools are about 111,000, which is the largest number.
Precarious workers in primary and secondary schools are also called as an ‘employee of School
Accounting’, which refers to a civilian employee who does educational or administrative jobs and
whose remunerations are paid from the ‘School Accounting’ under the Elementary and Secondary
Education Act. As the Government has placed tight limitations on personnel and budgets after the
late 1990s, managements of elementary, middle and high schools have employed precarious workers
for relieving workloads of teachers and public officers. Over 50 kinds of Jobs are being done by
employees of School Accounting, such as dietitians, cooks and librarians. 93 per cent of them are
women (Ministry of Education 2014).
Although a principal of school hires and fires employees of School Accounting in practice, there is
no legal basis as to employment. Whereas, local Office of Education controls their working conditions
in fact, by issuing the guidelines on the compilation of a School Accounting budget. It causes a
question: who the real employer is.
On top of that problem, employees of School Accounting frequently suffer from job insecurity, as
resources of their pay come from School Accounting, which is mainly composed of parents’ dues for
12
a school-supporting association and subsidies from local Office of Education. When numbers of
students decrease or local Office of Education reduces subsidies, employees of School Accounting
would be easily made redundant.
Furthermore, they have suffered from low wages and discriminatory working conditions. Up to
recently, they did not get paid during the school holidays and few benefits were provided for them,
compared with teachers or public officers in school. According to the Ministry of Education, the
amount of their average monthly salary is around 1,340,000 Korean Won (about 1,195 USD) in 2013
present, which is lower than that of precarious workers in the public sector (around 1,710,000
Korean Won).
Organising workers
Organising employees of School Accounting was initiated by the Korean Women’s Trade Union in
2002. While the early stage of unionisation was mainly based on individual participation, organisers
from a side of the Korean Confederation of Trade Unions have attempted to organise precarious
workers in school on a large scale since 2009. They utilized occupational associations as a base of
organising precarious workers in school into a union. Many workers in school already had formed
separate occupational associations along the trades, and these served as a social network. With
making use of these social networks, organisers considered that in the early stage the form of
occupational association would make less tension between the management and workers than the
form of trade union.
In 2010, the Korean Association of Workers of School Accounting (KAWSA) was officially launched.
From the beginning, the KAWSA concentrated on organising and representing workers in a nationwide level, as their working conditions were in fact controlled by the local Office of Education or the
Ministry of Education. The KAWSA conducted a campaign, demanding that benefits and holiday
allowances should be equally applied to all workers of School Accounting, and filed a suit for overdue
wages. The KAWSA also made effort to give workers confidence as a subject on the education front.
For this purpose, the KAWSA conducted a campaign to refer to workers of School Accounting as
“teacher”, and held meetings with members of other related unions such as the Korean Teachers &
Education Workers Union and the Korean Government Employees’ Union.
In 2011, the KAWSA was transformed into a trade union chapter which was affiliated to the Korean
Public Service & Transport Workers’ Union. The union demanded to collectively bargain with local
Office of Education, and achieved the court’s ruling that superintendents (head of local Office of
13
Education) were the party to collective bargaining. On top of the question about employer’s status,
there was another legal obstacle to collective bargaining. Under the amended TULRAA in 2010,
where over two trade unions exist in one business or one workplace regardless of the type of
organization, unions shall determine a representative bargaining union. Where unions fail to
determine a representative bargaining union of their own accord, a union organized by majority of all
the members of the unions which participate in procedures for unifying the bargaining channels shall
be a representative bargaining trade union. This regulation has been abused by employers so as to
support company-dominated unions or refuse to collectively bargain with unions.
While the KAWSA, the Korean Women’s Trade Union and other unions have competed for
organising precarious workers in school with each other, these unions have formed a joint bargaining
committee and mobilised joint fights since 2012. In 2012 and 2014, these unions went on a joint
strike, demanding legislation whereby local Office of Education must directly employ workers of
School Accounting as a regular employee.
Through these fights, workers of School Accounting have concluded collective agreements with
some Offices of Education, and achieved municipal ordinances whereby the Office of Education must
directly employ workers of School Accounting as a regular employee. All these efforts bore a fruit as
a growing union membership, which currently reached to over seventy thousands.
The Youth Union
Work arrangements
As mentioned above, precarious work has become normal regarding youth employment in Korea.
In particular, there arises controversy over the practice that employers abuse youths in the name of
“intern”, “apprentice” or “trainee”. Even though youths do the same job as employees’, employers
often pay little or even nothing on the pretence that he/she is not an employee but a student. This
practice is prevalent from public sectors to the SMEs.
According to the research conducted by the Presidential Council for Youth, 32.2 per cent of youths
who worked as “intern” etc. were paid nothing, and 42.6 per cent were paid below legal minimum
wages.
Organising workers
14
The Youth Union, which became the first generational union in Korea, was formed in 2010.
Organisers of the union attempted to form an independent union of their own generation, as existing
unions did not fully comprehend their problems of the youth employment. In addition, the
predominant form of existing unions was an enterprise-level union, which was not a suitable
organisation for youths who suffer from repeated job insecurity.
The first activity of the Youth Union was an investigation into compliance with legal minimum
wages at convenience stores where frequently youths were employed as a part-timer. It publicised
actual working conditions of service sector where youths have been abused in the name of
‘temporary’ of ‘part-time’ worker. Following this, the Youth union successfully conducted a campaign
for safety in a home delivery service of restaurants and for securing overdue wages in coffee
franchises. Although actual members of the Youth Union were less than hundreds, these activities
disclosed actual working conditions of Youth, and improved social awareness and labour inspection.
In 2012, the union demanded for collective bargaining with the Seoul government. After
consultations with the government for six months, the Youth Union concluded an “Agreement on
Policies for Youth Employment” with the Seoul government in 2013. This agreement embraces
following items: the promotion of youth employment in subsidiaries of the government; labour
inspection of workplaces where youth employment is concentrated; and education of labour laws for
employers and youths and so on.
With increasing concerns of actual conditions of interns, the union attempted to make a social
dialogue to improve working conditions of interns. In 2015, for example, related unions including the
Youth Union, Korean Association of Fashion Designers and a member of the National Assembly
presented joint declaration of securing interns’ rights at work.
The Youth Union has conducted an active campaign for higher minimum wages, since legal
minimum wages served as the ‘standard’ rates for youths. In 2015, member of the Youth Union
became one of members representing workers of the Minimum Wage Council.12
Towards collective representation beyond employment boundaries
From separate firms to vertically integrated networks
The Minimum Wage Act stipulates that the Minimum Wage Council shall be comprised of nine members
representing workers, nine members representing employers and nine members representing public interests.
Members representing workers shall be the representative of the confederation of trade unions or the industrial
federation of trade unions. In 2015, the Korean Confederation of Trade Union commissioned the representative of
the Youth Union as one of members of the Minimum Wage Council.
12
15
The “standard employment relationship” was historically formed in the internal labour market of
the vertically integrated firms in the early 20th century (Deakin 2002). In the vertically integrated firm,
the most common method to control workers was instructing the performance of work itself
‘directly’. Whereas, controlling the performance of work itself has become less and less important for
employers, as technologies have developed and the forms of corporate organisation have changed in
the late 20th century (Marchington et al. 2005).
More and more TNCs, for example, build global value chains and contract out most process of
production to other firms. Samsung Electronics Service is the case as above. Through detailed
guidelines for service, training, monitoring system and control of its GPAs, Samsung Electronics
Service can control workers of the GPAs as effectively as its own employees. As such is the
construction industry where subcontracting was traditionally used. A principal company can secure
workforce stably through labour intermediaries or subcontractors that recruit and manage workers.
When we see only individual entities separately, it is difficult to identify who should take
responsibility for workers’ rights, as a ‘function’ of the employer is performed by several firms.
However, if we look into the whole value chains, it can be found that a principal enterprise retains
power to control over the value chains. In this respect, contemporary forms of corporations are
referred to ‘vertically integrated networks’ rather than ‘vertically disintegrated firms’ (Cheolsik Kim
2009).
Many legal systems such as Korea have limited regulatory interventions into a boundary of
separate entities, and this allowed the principal enterprise to transfer their liabilities to others
downwards value chains. Nevertheless, workers have attempted to face the one that retains the real
power to control over their working conditions, as Korean cases showed above. Towards inclusive
industrial relations, right to collective bargaining and collective actions should be secured to the level
of the principal enterprise across the whole value chains.
Understanding changing nature of control over work
Besides changing corporate forms, changing nature of control and dependency should be analysed
at the same time, to understand precarious work. The factor as to whether or not an employer exerts
control over the details of work becomes less and less dispositive for identifying an employer and an
employee. Instead, the power to decide the period of existence of the contract or the power to
provide jobs (that is, opportunities for remunerations) for workers has got a significant meaning. This
would be more important to workers who do not have a permanent contract with a particular
16
employer, thus who have to find several jobs to make a living.
In addition, the method of payment based on the result of work makes workers more vulnerable.
In this circumstance, workers ‘voluntarily’ increase hours and intensity of work to earn a certain
amount of income. Without control over the performance of work itself, employers retain all
necessary control over the operation as a whole, by setting the rates or the standards of service.
In this respect, economic dependence should not be understood as inferior criterion which raises
the question of the protection of workers, but does not amount to legal subordination. Although
these workers seem to have a loose relationship with a particular employer, they are strongly
subordinate to the rule of the labour market which is determined by employers. Furthermore, those
who provide their labour personally for several employers should be treated as dependent workers,
if they do, not for their own business but for someone else’s.
Consequently, those workers should be entitled to equal protections which could relieve insecurity
and precariousness in the labour market. Fully securing freedom of association for those workers
would be most effective way to secure equal and tailored protections. As shown in Korean cases
above, precarious workers have attempted to transform the method of payment into more secure
types, and to reduce working hours. This is an effort for decreasing competition among workers as
well as for improving working conditions. The case of organising owner-operators, in particular,
shows that collective representation of economically dependent workers could have a good effect on
the improvement of labour standards in the industry. The demands of Youth Union also focus on a
method to improve labour standards in the labour market, such as higher minimum wages.
Challenging the policy which makes workers vulnerable
Government policies and legislations often play an important role with regard to precarious work
as much as employers’ strategies. Gender and ages, in particular, have frequently become the
agenda which justifies precarious employment as a norm. On the premise that women are the first
caregiver and the second bread earner, female dominant jobs become more easily precarious and
devaluated by policies which often pursue a quantitative development of jobs. Similarly, youths are
regarded as a ‘student’ or at best an apprentice or an intern, while they do the same job as
employees’. Again, policies often justify discrimination against youths in the name of the linkage
between education and work.
Collective representation of women and youths can and must challenge this discriminative
ideology and policies. Unfortunately, existing unions which are traditionally based on male and
17
regular workers, are frequently blind to a bias against gender and ages. In Korea, women and youths
formed their own unions independently, and their organisational spirit gave an impulse to building
more egalitarian culture in labour movement. From this we learn that disparity among workers
should be addressed and empowering precarious workers as an active subject is critical as regards
collective representation and inter-organisation relations.
Government policies and legislations have also encouraged unbalanced power relations between
capital and labour, by penalizing workers exercising freedom of association beyond corporate
boundaries. In January 2009, Korean Ministry of Employment & Labour ordered the KCWU to expel
owner-operators of the union membership and notified it would cancel the registration of the unions
if they would not follow the order, on the ground that they are not “employees” under the Trade
Union and Labour Relation Adjustment Act (TULRAA).13 Korean Government also refused to issue
registration to the Youth Union in 2010, arguing that an employee who has an employment
relationship with an employer alone is entitled to freedom of association.
Similarly, triangular employment workers are not allowed to conduct collective actions at the
contracting company (a principal) workplace, even though this is the actual place of work. The courts,
for example, have penalized union members who demanded collective bargaining with and joined
collective actions against a contracting company, ruling that such union activity is an “obstruction of
business” under criminal law statutes. While a user company can exert the power to terminate a
contract, which results in dismissal of workers, collective actions against the user company are
banned.
Current regulations that limit industrial relations into corporate boundaries and associate an
employee status with freedom of association have motivated employers to increase precarious work.
It is urgently requested realizing freedom of association for precarious workers beyond employment
boundaries, in order to counter to the power of user enterprises.
Concluding remarks
Precarious workers are vulnerable, because their work arrangements evolve out of the standard
employment relationship and across corporate boundaries. Employers’ responsibility for workers’
rights associated with the standard employment relationship are easily avoided via the use of
Under TULRAA, all trade unions are required to get registration from the Ministry of Employment & Labour,
but a chapter of existing trade union does not need to.
13
18
precarious work. As industrial relations institutions have established under the limit of the scope of
the standard employment relationship, this unbalanced distribution of risks and insecurity towards
workers was hardly challenged. Without addressing this unbalanced relations of power,
precariousness in the emerging work arrangements cannot be effectively protected.
Therefore, it is crucial to realize freedom of association beyond employment boundaries. The ILO
repeatedly noted that by virtue of the principles of freedom of association, all workers – with the
sole exception of members of the armed forces and the police – should have the right to establish
and join organizations of their own choosing. The criterion for determining the persons covered by
that right, therefore, is not based on the existence of an employment relationship, which is often
non-existent, for example in the case of self-employed workers in general, who should nevertheless
enjoy the right to organize.14
In order to realize this principle, industrial relations institutions need to be reconstructed as
follows. Facilitating collective bargaining with the ‘user-enterprise’ is the most effective way for
resolving the question- who the employer is and what responsibility the employer must take. While
employment law could provide some regulatory answers to these questions, employers easily avoid
those regulations by transforming the form of contract or corporation. On the other hand, collective
bargaining could find tailored approach to improve working conditions and enhance rights at work
without falling under a dogmatic boundary. Therefore, realising right to collective representation and
right to collective bargaining should be considered essential for responding to both questions, that is,
“who is the worker?” and “who should take responsibility for the worker’s rights?”
Furthermore, precarious workers should enjoy these collective rights as much as regular workers.
Given that more and more workers are dependent on the rule of fractured labour market rather than
a particular employer, collective representation in the labour market should be protected as much as
that evolved in a particular workplace or enterprise. Collective action including a strike should be as
such. Demands as to reducing competition among workers, providing workers with universal
platform for security irrespective of employment status and protecting workers against transfer of
risks from capital should have to become a priority in terms of union strategy as well as labour
regulation.
14
ILO, 2006b, Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, para. 254.
19
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