Jan. 23  2020
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So, What's So Illegal About Public Utilities Workers' Strike

Prosecutors Demand 5 Year Imprisonment for KCTU President Dan Byung-ho

Illegal strikes are not new. Virtually all strikes in Korea are illegal, despite the statement by the President Kim Dae Jung that the government "completely guarantees the labour rights in full".

If workers in the public sector are to remain "legal", they would not be able to strike at all. This means that their labour rights - as enshrined in the Constitution of the Republic of Korea and the international labour standards (ILO conventions) - are not guaranteed or upheld by the government.

The government's claim of "illegality" is rooted in the provision for "compulsory arbitration" for disputes in "essential public services", as laid down by the Trade Union and Labour Relations Adjustment Act.

The Trade Union and Labour Relations Adjustment Act sets aside a special section for public sector:

Article 71 (Scope of Public Services, etc.)
(1)"Public services" under this Act means each of the following subparagraphs, which is indispensable to daily lives of the general public or has great influence on the national economy:

regular line public transportation services;
water, electricity, gas supply, oil refinery and supply services;
public health and medical services;
banking services and the Mint; or
broadcasting and telecommunication services.
(2)"Essential public services" under this Act means each service of the following subparagraphs, which falls within the category of public services under paragraph (1) and whose stoppages and discontinuity undermine the national economy considerably, and whose replacement is not easy:
railroad services (including inner-city rail), and inner-city bus services (limiting to special city or metropolitan cities);
water, electricity, gas supply, oil refinery and supply services;
hospital services;
banking services; or
telecommunication services.
[Inner-city bus services and banking services were withdrawn from the list of essential public services, from January 1, 2001, in accordance with the Act's March 13, 1997 addenda.]

The Trade Union and Labour Relations Adjustment Act (Article 45) prohibits any form of industrial action "without completing adjustment procedures", which may be composed of "mediation" and "arbitration", by Labor Relations Commission. Mediation [Article 54], in general, is to be completed within 10 days of the application, while in the case of public services (as defined in the Article 71, paragraph 1), it is to be completed within 15 days. In general either the labour or the management can refuse to accept the recommendation resulting from the mediation, thus setting the scene for the possibility of industrial action.

However, for industrial disputes in "essential public services" can be subjected to "compulsory arbitration". A chairman of a Labor Relations Commission decide to refer a dispute in "essential public services" to arbitration [Article 62 subparagraph 3]. Once a dispute is referred to "arbitration" no industrial action is permitted for fifteen days [Article 63]. Furthermore, once arbitration is concluded - that is a 'ruling' has been made - it cannot be rejected, and it has the same effect as a concluded collective agreement [Article 70 paragraph 2]. (A party to an industrial dispute can challenge the arbitration award on grounds that it "violates law, or is an act beyond its authority" - but, the effect of an arbitration "shall not be suspended by an application for review … or the initiation of an administrative suit."

Thus, unions in workplaces which are defined as "essential public services" are effectively denied the right to strike or even worse, right to bargain collectively, as the management can always drag its feet until an arbitration award is delivered.

The ILO has, in numerous observations, stated that the law and practices in Korea concerning "essential public services" were unreasonable.

The Current Dispute

Industrial disputes at the Korea Railway, Korea Gas, and the power general industry are circumscribed by the provisions for "essential public services". As a result, unless the government authorities "permit" the unions to strike by refraining from invoking the "compulsory arbitration" provision, workers and unions have no recourse to industrial action to press their demands.

The Central Labor Relations Commission referred the dispute at the Korea Gas to arbitration on February 20. In the early morning of February 25, the same Commission referred the dispute at the power general plants to arbitration. (In this case, the timing may be problematic.)

However, in the case of the industrial dispute at the Korea Railways, there may be some complications and difficulties in the government's insistence that the strike is illegal on the grounds of prescribed procedure. The fact is that the Central Labor Relations Commission has failed to refer the case to an "arbitration".

Restructuring is Non-negotiable

Another set of "arguments" used by the government for labeling the current strikes stems from the government claim that issues such as 'privatisation' or restructuration of an enterprise cannot qualify as valid topics for collective bargaining and agreement.

Many industrial action and strikes by unions over the last few years have been attacked as illegal by the government because they involved issues of mass retrenchment, merger, and other forms of enterprise structural adjustment, such as spin off, subcontracting, etc.

The trade union movement does not accept the government's claim that these are beyond negotiations between a union and management.

The Trade Union and Labour Relations Adjustment Act defines a trade union as, "an organization or associated organization of workers which is formed in voluntary and collective manner upon the workers' initiative for the purpose of maintaining and improving working conditions, or improving the economic and social status of workers" [Article 2 paragraph 4]. And industrial disputes arise where there is "disagreement between the trade union movement and employer … concerning the determination of terms and conditions of employment such as wages, working hours, welfare, dismissal, other treatments, etc." [Article 2 paragraph 5].

In the last few years, no issue has been so central in its effect on conditions of employment or working conditions and economic and social status of workers as the issues of structural adjustment. The stringent claim that unions cannot engage these issues cannot be accepted by any trade union movement.

The imprisonment of nearly 700 trade unionists over the last four years and over 200 unionists last year - including the KCTU president Dan Byung-ho - stem from the insistence that the issues of restructuration cannot be discussed with unions and workers. The imprisonment of unionists has been a mode and result of the attacks by the government on trade union movement - either physical attacks to crush the strike and other industrial actions employed by unions to press their demands or ideological or political attacks - in the course of the pursuing an extreme form of neoliberal agenda embraced by the government or dictated to it by the international neoliberal regime, led by transnational capital and the IMF-WB.

Stop Press: Prosecutors Demand Five Year Jail Term for KCTU President Dan Byung-ho

At the seventh seating of trial against the KCTU president Dan Byung-ho on February 25, 2002, the prosecutors demanded the court to hand down a sentence of 5 year imprisonment. The sentencing seating is scheduled to be held on March 18.

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