Mr Karel De Gucht
Member of the European Commission
European Commission
B-1049 Brussels
Brussels, 13 January 2014
DB-REX/2014/D/109
Subject: Serious Violations of Chapter 13 of the EU-Korea FTA
Dear Commissioner:
The EU Domestic Advisory Group (DAG) set up under Chapter 13 of the EU-Korea Free Trade
Agreement considered labour developments in Korea at their last meeting in December. As you know,
the government of the Republic of Korea made several commitments to the EU under that Chapter
concerning Sustainable Development. These commitments include, among others, “respecting,
promoting and realising, in their laws and practices, the principles concerning the fundamental rights”
as set forth in the ILO Declaration on Fundamental Principles and Rights at Work as well as to "make
continued and sustained efforts towards ratifying the fundamental ILO Conventions as well as the
other Conventions that are classified as 'up-to-date' by the ILO" (Article 13.4.3).
In their discussion, the DAG took account of the Conclusions of the 2nd meeting of the Civil Society
Forum under the EU-Korea Free Trade Agreement, Seoul, 12-13 September 2013, which had
discussed at length an opinion on Fundamental rights at work adopted by the EU DAG in May 2013
(attached). This had been requested by the TSDC from both DAGs at the previous Civil Society
Forum meeting in Brussels. Those Conclusions read i.a.:
On the issue of fundamental rights at work, the CSF:
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asks the Korean government to take the necessary measures and remove hindrances to enable
the ratification of the remaining ILO Fundamental Conventions, namely Convention No 87
on Freedom of Association and Protection of the Right to Organise, Convention No. 98 on
the Right to Organise and Collective Bargaining, Convention No. 29 on Forced Labour and
Convention No 105 on the Abolition of Forced Labour that Korea has not yet ratified;
is of the view that the promotion and consolidation of social dialogue will facilitate the
creation of the enabling conditions for the ratification of these four Conventions in Korea and
will also contribute to ensure full implementation of the ILO Fundamental Conventions in
both Korea and the EU;
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EN
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recommends, as far as the issue of forced labour is concerned, changes in the imprisonment
regime in Korea;
urges both Korea and EU Member States to ensure full implementation of the ILO
Fundamental Conventions which have already been ratified. The CSF requests to be informed
on the cases of non-compliance of OECD Guidelines for Multinational Enterprises by Korean
and EU multinationals;
is of the view that full cooperation with the ILO will assist the progress towards the
development of the necessary conditions for the ratification of the remaining four ILO
Fundamental Conventions by Korea;
has decided to continue its work in this domain.
The December DAG received reports of further cases of concern arising since the CSF meeting,
which are detailed in the Annex to this letter. It is clear that the Korean Government, far from taking
the views of the CSF into account and acting to fulfil its obligations, is further violating its
undertakings as set down in the FTA.
We are deeply troubled by the Government’s blatant disregard for international labour standards in
practice, which it is bound to respect irrespective of ratification as a member of the ILO1. As
explained in detail in the Annex, the Government is in fact engaging in a concerted attack on trade
unions. Over the past year, the ILO has intervened repeatedly with the government to cease the
violations, some of which are related to issues that have been under ILO supervision for years, but the
government has ignored each of these entreaties. These same underlying legal concerns are also
reflected in the 29 May 2013 EU DAG Opinion on labour standards in Korea.
The EU DAG believes that the Republic of Korea is in serious violation of its commitments under
Article 13.4.3 of the FTA, notably the exercise of the right to freedom of association. We request that
you invoke Article 13.14 and proceed to consultations, as these recent cases (and the matters raised in
the DAG’s Opinion) are very serious and require immediate attention. I look forward to hearing from
you soon.
Yours sincerely,
Thomas Jenkins
Chair
EU-Korea Domestic Advisory Group
1
We also note that the Republic of Korea has not ratified half of the fundamental conventions, namely ILO
Convention No. 87 on Freedom of Association and Protection of the Right to Organise, Convention No. 98
on the Right to Organise and Collective Bargaining, Convention 29 of Forced Labour or Convention 105 on
the Abolition of Forced Labour. We are currently unaware of any effort by the government to ratify them.
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APPENDIX
Key Cases of Concern
Although labour violations are widespread, we raise with you these three cases as the basis for
initiating consultations with the government.
1.
The Korean Government Employee’s Union (KGEU)
On 2 August 2013, the Ministry of Employment and Labour rejected for the fourth time the
registration of the Korean Government Employees Union (KGEU) due to the composition of its
membership. In 2012, the ILO Committee on Freedom of Association, in Case No. 1865, concluded
with regard to the KGEU registration issue:
The Committee recalls that when it last examined the case, it urged the Government to
repeal the provisions prohibiting dismissed and unemployed workers from keeping their
union membership and making non-union members ineligible to stand for trade union
office (section 2(4)(d) and 23(1) of TULRAA) [see 353rd Report, para. 749(c)(iv)].
Noting with regret that the Government has not repealed these provisions, the Committee
once again urges the Government to do so and to take all possible measures with a view
to achieving conciliation between the Government and the KGEU so that the latter may
continue to exist and ultimately to register within the framework of the legislation, which
should be in line with freedom of association principles.
The latest attempt at registration began on 27 May 2013, when the KGEU submitted a new
application. The Ministry of Labour requested supplementary information from the KGEU by 24 June
and, following negotiations between the union and the government’s public officers labour relations
division, extended the deadline to 22 July. In July, intense negotiations between the parties continued,
during which the KGEU proposed amendments to its constitution which would have inserted the
clause “according to the relevant laws and regulations” in sections relevant to union membership. On
11 July, it was believed that these amendments had been accepted by the government and had cleared
the way for the registration of the union. The KGEU convened a congress to revise the constitution
and on 22 July submitted the supplementary materials.
On 2 August, the government returned the application and again denied registration stating that the
constitution could still be interpreted to allow dismissed workers to retain membership. Regardless as
to whether the union’s constitution could be so interpreted, the ILO CFA has made clear in this case
that the fact that a union is constitutionally authorized to include dismissed workers as members is not
a legitimate reason to reject the union’s registration.
Most recently, the government is now using the argument of an alleged lack of political neutrality to
obtain warrants to search and seize the servers of the KGEU and have announced its intention to do
the same with the KTU (below). The ILO has previously denounced the prohibition on political
expression under Section 4 of the Act on the Establishment and Operation of Public Officials’ Trade
Unions in ILO CFA Case 1865, Report 363 March 2012, in which it found at ¶¶ 131-32:
The Committee recalls that provisions imposing a general prohibition on political
activities by trade unions for the promotion of their specific objectives are contrary to the
principles of freedom of association.…In light of the abovementioned principles, the
Committee once again requests the Government to ensure that public officials’ trade
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unions have the possibility to express their views publicly on the wider economic and
social policy questions which have a direct impact on their members’ interests, including
during their meetings, in their publications and in the course of other trade union
activities.
We would also note that the ILO CFA has in the past stated that, “With regard to searches of trade
union premises… the right to adequate protection of trade union property is one of those civil liberties
which are essential for the normal exercise of trade union rights.” We recognize that the government
had a warrant; however, its authority is based on a law which the ILO has found violates the right to
freedom of association. In our view, the searches and seizures of trade union property have nothing to
do with the KGEU’s alleged electioneering activities. Rather, it is clear they have no other purpose
than to intimidate the leaders and members of the KGEU, as well as trade unionists generally. It sends
a clear message that the government will take any and all measures necessary to prohibit the exercise
of freedom of association of any union, particularly in the public sector, that opposes the anti-union
policies of the government.
2.
Korean Teachers and Educators Union (KTU)
Earlier this year, the Ministry of Employment and Labour, on the orders of the Ministry of Education,
Science and Technology, threatened to cancel the registration of the Korean Teachers and Education
Workers Union (KTU) if it did not amend its constitution in line with Korean law. The government
subsequently set a deadline of 23 October 2013, which it observed. On 24 October, the legal status of
the KTU was withdrawn. Although a temporary injunction was recently issued suspending the deregistration order, we remain concerned that the union may lose its legal status this year when the
matter is before the courts. On 19 November, the government filed an immediate appeal to the Seoul
High Court against the accepted injunction. If the High Court decides in favour of the government at
the immediate appeal case, the KTU will be decertified immediately. In short, two court cases are
going on now; the immediate appeal against the injunction, and the formal court procedure mentioned
above.
As with the KGEU, the KTU was de-registered because of the composition of the union’s
membership - the KTU constitution allows dismissed workers to remain members of the union.
Around 60 members of KTU were dismissed during the previous government for their activities,
including expressing their opinion on the governments’ education policy and/or for donations to
progressive political parties. Roughly 20 remain dismissed. These workers, whose dismissals are also
illegal under international standards, were considered members of the KTU. As mentioned above, the
ILO has criticised these provisions and has urged their repeal.
3.
Korean Railway Workers Union (KRWU)
The KRWU’s strike, which lasted from December 9 to December 31, was consistent with
international labour law and would have been deemed legal in Europe. Under Korean law, however,
the government can (and has) declared as illegal a strike over privatization (government policy). The
long-standing view of the ILO is that workers are permitted to strike over issues of social and
economic policy2. During the strike, KORAIL (the state-run rail company) filed charges of
obstruction of business against 191 KRWU officers. Arrest warrants were issued for 35 of these
individuals. Of the 35, 6 were arrested during the strike and 16 when they voluntarily turned
2
See CFA Digest ¶ 526, “The occupational and economic interests which workers defend through the
exercise of the right to strike do not only concern better working conditions or collective claims of an
occupational nature, but also the seeking of solutions to economic and social policy questions and
problems facing the undertaking which are of direct concern to the workers.”
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themselves in for questioning after the strike had ended. Two of the individuals arrested during the
strike have been imprisoned until trial. Thirteen union officers, including the central leadership, are
still wanted for arrest based suspicion of ‘obstruction of business’. The ILO has repeatedly denounced
the use of this penal provision against peaceful strikes, indeed even with regard to the prior rail strike.
During the strike, police raided the offices of the union and confiscated union property. They also
obtained records of social media applications used by KRWU members for personal communications.
KORAIL removed some 8,000 workers from their job positions. While most of these workers have
been returned to their posts since the end of the strike, roughly 650 are still suspended from their
positions. KORAIL has begun the process of deciding severe disciplinary measures (suspension or
dismissal) against over 500 workers. The KORAIL disciplinary committee will begin meeting to hear
these cases on January 9. Decisions on the first cases heard are expected on January 13. KORAIL has
said that decisions on disciplinary actions against 165 central leaders will be made by January 28
before the start of the lunar New Year. It is expected that at least these 165 will face dismissal and
probably many others. Previously, the company announced plans to take disciplinary actions against
all workers who participated in the strike and it is expected that the number facing disciplinary
proceedings will increase.
The government (Ministry of National Defense) mobilized the military as replacement workers during
the strike. Students and other insufficiently trained personnel were also used as replacement workers,
which in addition to being a violation of freedom of association posed a serious safety risk. Several
accidents occurred as a result, including one which led to the death of an elderly passenger.
Finally, KORAIL has filed a damages suit against the KRWU and individual KRWU officers for
15.29 billion Won (appx € 10.5 million) and applied for a temporary freeze on KRWU assess worth
11.6 billion Won (appx € 8 million).
Of note, in 2009, the KRWU carried out a strike that complied with the legal requirements under
Korean labour law. Nevertheless, the government declared the strike to be illegal. Subsequently, the
government resorted to illegal measures to respond to the strike, including the mobilization of the
military as replacement workers, harsh disciplinary actions and dismissals of peacefully striking
workers and the issuance of a mandatory return-to-work order. Leaders of the KRWU were charged
with “obstruction of business” and imprisoned. Close to 200 union officers were dismissed and
15,000 members were subjected to disciplinary actions of varying degrees. The KRWU was sued for
damages of 10 billion Won (roughly € 7 million).
In response, a complaint was filed with the ILO Committee on Freedom of Association (CFA) in
January 2011 which alleged violations related to the government’s repression of the KRWU strike
(among other cases)3 . After a full examination of the case, the CFA issued recommendations calling
for the “immediate dropping of criminal charges (both fines and prison sentences) brought under
Section 314 of the Penal Code (‘obstruction of business’) against union officials and members” of the
KRWU who had participated in the strike, “the immediate reinstatement” of dismissed KRWU
members and the lifting of all related disciplinary measures4. It has been nearly a year since these
recommendations were issued and the Korean government has given no indication that it will comply.
4.
Illegal Raid of KCTU Headquarters
On December 22, 2013, the police raided the building where the headquarters of the Korean
Confederation of Trade Unions (KCTU) are located. Around 5,000 riot police, including some 900 of
3
4
See CFA Case No. 2829.
See CFA Report 365 (Nov 2012).
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SWAT Team members, were deployed on the assumption that 6 of KRWU leaders who are on the
police’s wanted list were staying in the office. Such a raid on the office of a national center of trade
unions is unprecedented. It never happened even under the military dictatorship.
The KCTU head office is located on the 13th, 14th and 15th floors in the building of Kyunghayung
Shinmunsa- a major Korean newspaper. On December 22, 2013, at 9am, the police cordoned off the
building. From then on, members of the KCTU couldn’t enter or leave the building. After the building
was surrounded, the police moved to arrest the 6 KRWU leaders. The Kyunghyang Sinmunsa, the
owner of the building and the KCTU, the renter of the 13th~15th floors, pointed out that the police
didn’t have a warrant to search the building and that their actions would be illegal. However, the
police, without any review on the illegality of their actions, pushed into the building. As the police
were unable to get through the locked doors, they invited the fire services to smash down the glass
doors in front of and on the sides of the building.
While police were pushing into the building, other groups of police arrested indiscriminately some of
the protestors outside. The police also used pepper spray against the protesters. In total, 138 were
arrested including Yoo, Ki-soo, Secretary General of the KCTU and other 2 central leaders, and Kim,
Jeong-hun, the President of the Korean Teachers and Education Workers Union (KTU) and other 2
presidents of KCTU affiliates. All of those arrested were released after 48 hours of custody except
Kim, Jeong-hun, President of the KTU. The police sought a detention warrant but it was rejected by
the court. All of them were charged with “Obstruction of Justice”.
The police reached the 13th, 14th and 15th floor of the building and searched every corner of the
KCTU’s offices without proper warrants. During the illegal search, the police destroyed KCTU’s
furniture and fixtures, including almost all of the doors and door-locks, tables and chairs, etc. None of
the persons sought by the police were in the offices. The entire ordeal lasted about 12 hours.
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