A. Previous examination of the case
345. At its previous examination of the case in November 2009, the Committee made the following recommendations [see 355th Report, para. 678]:
(a) The Committee requests the Government to hold an independent investigation into allegations of pressure placed on subcontracted workers at Kiryung Electronics to make them resign from their union, as they appear regrettably not to have been taken into consideration by the Court, and, if the allegations are confirmed, to take all necessary measures to compensate the trade union members concerned and to prevent any recurrence of such acts of anti-union discrimination in future.
(b) As regards the allegations of acts of anti-union discrimination and interference at Hynix/Magnachip and at HMC, the Committee once again requests the Government to take the necessary measures to reinstate the dismissed trade union leaders and members as a primary remedy; if the judicial authority determines that reinstatement is not possible for objective and compelling reasons, adequate compensation should be awarded to remedy all damages suffered and to prevent any repetition of such acts in the future, so as to constitute a sufficiently dissuasive sanction against acts of anti-union discrimination. The Committee requests to be kept informed in this respect.
(c) The Committee urges the Government to take all necessary measures to promote collective bargaining over the terms and conditions of employment of subcontracted workers in the metal sector, in particular in the Hyundai Motor Company (HMC), Kiryung Electronics, KM&I and Hynix/Magnachip, including through building negotiating capacities, so that subcontracted workers in these companies may effectively exercise their right to seek to improve the living and working conditions of their members through negotiations in good faith.
(d) The Committee requests the Government to institute an independent investigation without delay into the dismissals of the subcontracted workers in HMC Ulsan and Jeonju and, if these workers are found to have been dismissed solely on the grounds that they staged industrial action against a “third party, i.e. the principal employer (subcontracting company), to ensure that they are reinstated in their posts without loss of pay as a primary remedy. If the judicial authority determines that reinstatement of trade union members is not possible for objective and compelling reasons, adequate compensation should be awarded to remedy all damages suffered and prevent any repetition of such acts in the future, so as to constitute a sufficiently dissuasive sanction against acts of anti-union discrimination. The Committee requests the Government to keep it informed of developments in this regard.
(e) Noting further with deep concern that the Government confines itself to stating that the question was already dealt with in Case No. 1865, without indicating any progress made or any specific measures taken to give effect to the recommendations made by the Committee since 2000, the Committee reiterates its recommendation that the Government should take all necessary measures without delay so as to bring section 314 of the Penal Code (“obstruction of business”) into line with freedom of association principles, and to keep it informed in this regard. While emphasizing the importance of legitimate trade union activity being carried out peacefully, the Committee reiterated that the criminalization of industrial relations is in no way conducive to harmonious and peaceful industrial relations.
(f) The Committee requests the Government to indicate whether any of the settlement proceedings it refers to resulted in members’ withdrawals from the union. Moreover, the Committee expects that the Government and the judicial authorities will put in place adequate safeguards so as to avert in future the possible risks of abuse of judicial procedure on grounds of “obstruction of business” with the aim of intimidating workers and trade unionists, and that the courts in their rulings will take due account of the need to build a constructive industrial relations climate in the sector in the context of individual industrial relations.
(g) The Committee once again requests the Government to institute an independent investigation into the alleged acts of violence perpetrated by private security guards against trade unionists during rallies at HMC Asan and Ulsan and at Kiryung Electronics and, if they are confirmed, to take all necessary measures to punish those responsible and compensate the victims for any damages suffered. The Committee requests to be kept informed in this respect.
(h) The Committee notes with concern the new allegations concerning restrictions on the exercise of trade union rights based on an interpretation of the legislation, which concern a sector with regard to which the Committee has already expressed its concern regarding the denial of certain trade union rights through the use of precarious workers. The Committee requests the Government to provide its observations to the new allegations by the IMF and the KCTU so that it may examine this matter in full knowledge of the facts.
(i) In the absence of any progress, the Committee again requests the Government to develop appropriate mechanisms, in consultation with the social partners concerned, aimed at strengthening the protection of subcontracted (“dispatch”) workers’ rights to freedom of association and collective bargaining, guaranteed to all workers by the TULRAA, and at preventing any abuse of subcontracting as a way to evade in practice the exercise by these workers of their fundamental rights. Such mechanisms should include an agreed process for dialogue determined in advance.
(j) The Committee recommends that the Government has recourse to ILO technical assistance.
(k) The Committee draws the Governing Body’s attention to the serious and urgent nature of the present case.