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Problems & Shortcomings of the Public Officials Trade Union Act(Excerpt from KGEU Complaint to ILO)
name : KGEU date : 2006/10/05 file : 0 K download : 0

Problems and Shortcomings of the Act on the Establishment and Operation, etc. of Public Officialsí» Trade Unionsí▒

1. Lack of Democracy in the Legislation Process

In April 2003, the then Minister Kim Doo-kwan of the Ministry of Government and Home Affairs and the then Minister Kwon Ki-hong of the Ministry of Labour, in a meeting with the then president Cha Bong-cheon of the Korean Government Employees Union had promised to draft a bill í░through a process of sufficient hearing of views, as the substance would be secondary importanceí▒. However, in May 2003, the Ministry of Labour announced unilaterally, in total disregard to the earlier promise, to table the draft bill for the Act on the Establishment and Operation, etc. of Public Officialsí» Trade Union with the National Assembly. The tabling was, however, postponed in November following an instruction by President Roh Moo-hyun. However, the Ministry of Labour tabled the bill with the National Assembly in October 2004 without a process of consultation with the government employees in the civil service.

At the time, the Council of Representatives of Workplace Associations in the Ministry of Labour, which represented public officials in the Ministry of Labour that was responsible for drafting the bill had issued a statement on August 27, 2004, declaring í░the government bill allows trade unions only in name. In terms of substance, it is a product of the deceitful intent not to allow genuine trade unions of public officials. The government bill, in prohibiting the right to collective action, aims to make the trade union powerless. The government bill is one that aims to repress trade unions of public officials.í▒

The Korean Government Employees Union opposed the government bill for its failure to reflect the views of the very workers it is supposed to serve, and demanded a fresh start to draft a new bill. On September 19, 2004, at a meeting with the KGEU, held to present the unioní»s views, the Minister Kim Dae-hwan of the Ministry of Labour declared that í░there is no problem at all with the draft bill for Public Officials Trade Unions Act produced by the Ministry of Labour, and thereí»s no need to talkí▒ and left the meeting unilaterally.

The Government subsequently tabled the unilaterally drafted bill with the National Assembly and forced through its passage. At the same time, the Government had violently cracked down on the KGEUí»s planned vote of all its members on strike against the proposed laws. In the process, some 3,000 public officials who were members of the KGEU were subject to disciplinary action and some 400 members who were leaders of the union were dismissed following the KGEUí»s strike. (Annex 25)

2. The Right to Organise

The Article 5 of the Trade Union and Labor Relations Adjustment Act states í░workers are free to establish a trade union or join ití▒ leaving the union itself to determine the scope of membership. The subparagraph 4 of the Article 2 disqualifies a union if allow as a member í░an employer or other persons who always act in their employerí»s interestí▒. The actual scope of this exclusion is set through jurisprudence.

The Act on the Establishment and Operation, etc. of Public Officialsí» Trade Union however denies trade union rights to the following groups of public officials

l        public official of Grade 5 and higher

l        public officials who exercise the right to direct and supervise other public officials or engage in generally managing other public officialsí» affairs

l        public officials, such as those performing jobs related to personnel and remuneration, who stand in the position of administrative agencies in relations to a trade union

l        public officials who engage in correction, investigation and other similar jobs

l        public officials whose main jobs, such as mediating and inspecting labor relations, are considered incompatible with their status as union members (Article 6)

The Ministry of Government Administration and Home Affairs, in October 2004, estimated the number of public officials ineligible to be members of a union as follows:

l        public officials of Grade 5 or higher: 37,007 (Grade 5 = 26,198; Grade 4 or higher = 10,809)

l        public officials in correctional service and police: 120,762

l        public officials in supervisory or general management (Grade 6 public officials in municipal governments): 30,156

l        public officials in personnel and remuneration work: 35,000

Based on these estimates, the Ministry estimated the total number of public officials eligible to be members of a trade union to be 330,000   360,000. The Ministry of Labour, following the finalisation of the Enforcement Decree in January 2006, found that, as of November 2005, a total of 290,000 public officials out of the total of some 920,000 (excluding soldiers) would be eligible to be members of a trade union. (Annex 2)

Police, firefighters, and corrective service public officials are denied the right to form or join a union. Furthermore, public officials who í░stand in the position of administrative agencies in relations to a trade unioní▒, who amount to some 30,000 are also excluded from trade unions. All public officials of Grade 5 or higher are denied trade union rights. And many public officials of Grade 6 or lower are also excluded from union membership based on the eligibility criteria stipulated in the law or í░Enforcement Decreeí▒.

Given the reality that significant section of public officials of Grade 5 are engaged in administrative work, they cannot be deemed to be í░persons always working in the interest of their employerí▒. The National Human Rights Commission, in its 2004 human rights report found that í░today, it is quite common that public officials who hold ranks/position of í░bu-yisakwaní▒ and í░samukwaní▒ are, in terms of work relations, middle level managers and are not in position of managerial responsibility for lower rank public officials. [íŽ] It is not desirable that eligibility for union members to be restricted by types of public official or excluding public official of Grade 5 or higher in a monolithic manner.í▒ In its rulings concerning í░discrimination in retirement age according to the rankí▒, the National Human Rights Commission found í░in actual central government ministries, Grade 5 public officials are responsible for actual implementation work rather than policy and managerial and supervisory work, and in some ministries Grade 5 and Grade 6 public officials carry out same kind of work requiring deliberation and judgement. [íŽ] In central government ministries, the required period for promotion from Grade 6 to Grade 5 differs according to the actual ministries, as in the Ministry of Justice, it takes 4 years and 5 months, but in the Ministry of Education and Human Resources Development, it take 12 years and 8 months. This means that it is not possible to make a blanket statement that public officials of Grade 5 or higher always have more experience and knowledge than public officials of Grade 6 or lower.í▒

Furthermore, with the introduction and expansion of the team-systems which led to assignment of public officials with middle-level authorisation powers who were mainly responsible for supervisory work to implementation jobs as a part of the effort to enhance work efficiency, considerable portion of public officials of Grade 6 are assigned as team leaders. This had brought about a situation where a majority of Grade 6 public officials come to fit the criteria denying eligibility to be a member of a union, that is, í░exercise the right to direct and supervise other public officialsí▒ or í░engage in generally managing other public officialsí» affairsí▒ (Subparagraph 1, Paragraph 1, Article 6, Public Officials Trade Unions Act). This has undermined the í░principleí▒ to extend trade union rights to public officials of Grade 6 and lower.

Furthermore, the Enforcement Decree of the Public Officials Trade Union Act establishes further restrictions in eligibility by excluding

l        public officials charged with job of directing or supervising other public officials with authority and responsibility to manage their work (including those public officials deputising other public officials with this responsibility) in accordance with on the basis of a law, by-law or regulations, rules, and work division authorised by a law or a by-law

l        public officials mainly engaged in generally directing or supervising other public officials within a department in assistance to the head of the department (including those public officials deputising those public officials with this responsibility)

l        public officials engaged in work concerning appoint, work assignment, disciplinary measures, appeals review, remuneration, pension and other welfare related matters

l        public officials engaged in work concerning drafting and allocation of budget and execution (excluding simple executions) and work concerning the organisation and staff level of an administrative agency

l        public officials engaged in auditing work

l        public officials engaged in security, maintenance of office facilities, maintenance of order, defence security of office, secretarial job or driving of automobiles

This has meant that considerable number of not only Grade 6 public officials, but also Grade 7 public officials are excluded from joining a trade union.

In the case of Seo-ku Office of Pusan Metropolitan City, of the 512 public officials of Grade 6 or lower (94 Grade 6, 186 Grade 7, 132 Grade 8, 87 Grade 9, technician Grade 10 13)

-    89 public officials are excluded due to subparagraph 1 of Article 3

-    3 due to subparagraph 2a of Article 3

-    1 due to subparagraph 2b of Article 3

-    10 due to subparagraph 2c of Article 3

-    3 due to subparagraph 2d of Article 3

-    27 due to subparagraph 2e of Article 3, and

-    1 public official due to subparagraph 4 of Article 3.

As a result, despite the principle of extending trade union rights to public officials of Grade 6 and lower, 134 public officials (26.2%) out of a total 512 public official of Grade 6 and lower are ineligible to join a trade union.

In the case of Wonju City of Kangwon-do Province, out of 1,130 public official of Grade 6 or lower (234 Grade 6, 389 Grade 7, 130 Grade 8, 142 Grade 9, technicians 235), 221 public officials correspond to the subparagraph 1 of the Article 3 of the Enforcement Decree, 164 public officials correspond to the subparagraph subparagraph 2, 2 public officials correspond to subparagraph 4. As a result, 387 public officials (34.2%) out of 1,130 public officials of Grade 6 or lower are not eligible to become a member of a trade union.

In the case of Haenam-kun in South Cholla Province, out of 691 public official of Grade 6 or lower (195 Grade 6, 203 Grade 7, 111 Grade 8, 58 Grade 9, technicians 124), 141 public officials correspond to the subparagraph 1 of the Article 3 of the Enforcement Decree, 87 public officials correspond to the subparagraph 2, 1 public official corresponds to subparagraph 4. As a result, 229 public officials (33.1%) out of 691 public officials of Grade 6 or lower are prohibited from joining a trade union.

While the main problem for central government ministries lies in prohibition of trade union rights for public officials of Grade 5 who are mainly engaged in implementation work, there are portions of Grade 6 public officials who are denied the trade union right.

In the case of Fair Trade Commission, there are 171 public officials of Grade 6 or lower in the central office (104 Grade 6, 18 Grade 7, 1 researcher, 3 technician Grade 9, 45 technician Grade 10), 82 public officials of Grade 6 or lower in regional offices (30 Grade 6, 33 Grade 7, 16 technician Grade 10), with a total of 253. The number of public officials, among them, who corresponds to subparagraph 2a is 18, subparagraph 2c is 4, subparagraph 2d is 2 subparagraph 2e is 27. As a result a total of 51 out of 253 public officials of Grade 6 or lower (20.2%) are not eligible to be members of a trade union.

The situation is even worse in the education related offices. There are 60,787 public officials of Grade 6 or lower in 16 Education Office. Of this, 45,122 public officials work in state public schools. Most of these public officials work as administrative directors, security guards, drivers, or sanitation supervisor. As a result, the number of public officials who are not eligible to join a trade union due to the criteria set out in the Article 3 of the Enforcement Decree is estimated to be more than 42,550 (those working in schools are 40,609). This represents 70% of the public officials of Grade 6 or lower. In the case of public officials working in schools, the ratio is close to 90%.

Grade 6 public officials who become ineligible to join a union under the Article 3 amount to 30% of those employed in local governments. This surpasses 16.7% anticipated by the law itself. In this regard, The National Human Rights Commission, in its November 28, 2005 ruling found the í░Enforcement Decree Draftí▒ which í░excludes more than 90% of Grade 6 general public officials in city, kun, ku municipalities from joining a unioní▒ is unconstitutional and illegitimate.

3. Collective Bargaining and Collective Bargaining Agreement

A. Illegitimacy of the Stipulation of Agenda Prohibited from Bargaining

The proviso in the Paragraph 1 of the Article 8 of the Act on the Establishment and Operation, etc. of Public Officialsí» Trade Unions removes í░matters concerning policy decisions the State or local governments are authorized to make by laws, etc. and matters concerning the management and operation of the organization, such as exercising the right to appointment, but not directly related to working conditionsí▒ from becoming matters for collective bargaining.

However, the Trade Union and Labor Relations Adjustment Act, which proclaim the principle of autonomy of relations between the labour and the management, does not stipulate that certain matters are prohibited from collective bargaining. The Act on the Establishment and Operation, etc. of Teachersí» Trade Union is the same in this regard. There are differing views concerning whether matters related to personnel decision, financial arrangement, business decisions, reinstatement of dismissed workers, release of workers from work to devote full-time to the affairs of a union are legitimate matters for collective bargaining. Some view that they are matters of obligatory bargaining as they are matters within the power of employer. Matters of management are seen as matters for obligatory bargaining if they affect working conditions. Some, on the other hand, hold the view that matters concerning management decisions are discretionary/voluntary matters for collective bargaining. Which ever view prevails, however, it is possible for a union to í░demandí▒ collective bargaining on matters that are listed in the proviso of the Article 8 Paragraph 1 and the employer may possibly entertain engaging in collective bargaining on these issues.

The inclusion of specific matters to be excluded from becoming subject to collective bargaining, as in the Public Officials Trade Union Act, is a serious infringement on the principle of autonomy of industrial relations.

According to a report produced by the Ministry of Government Administration and Home Affairs, collective bargaining agreements   albeit without legal status   have been concluded in 35 cities, kuns, or ku (various levels of municipality structure) in the last three years since the formation of the Korean Government Employees Union in March 2002. Many of these agreements contain provisions which call for í░disclosure of project facilitation expenditure by heads of the organisationí▒, í░enhancement of transparency in matters of personnel decisionsí▒, í░avoidance of discretionary contracting in engaging private contractors and strengthening of objective bidding systemí▒. All these provisions target the problems of corruption that are prevalent in the public officialdom. The proviso in the Article 8 Paragraph 1 of the new Public Officials Trade Union Act provides a ground for the heads of organisations to reject the demand of a trade union to include these matters concerning the reform of the government services and corruption issues in collective bargaining. This will lead to pressure on the Korean Government Employees Union to abandon its efforts for í░the reform of government services and the eradication of corruptioní▒.

B. The relationship between í░laws, bylaws, or budgetí▒ and collective bargaining agreement

The Article 10 Paragraph 1 of the Public Officials Trade Union Act states, í░in collective agreements concluded pursuant to Article 9, provisions stipulated by laws, bylaws or budget and provisions stipulated by the authority delegated by laws or bylaws shall not have the effect of collective agreementsí▒.

Most of matters concerning wage and working conditions of public officials, including matters of appointment, dismissal, status, salary and other remuneration, and work assignment are governed by í░laws, bylaws or budget and provisions stipulated by the authority delegated by laws or bylawsí▒, such as the State Public Officials Act, State Public Officials Duty Regulation, the Public Officials Remuneration Regulation, the Local Public Officials Act, Local Public Officials Duty Regulation, Local Public Officials Work Bylaw, Local Public Officials Remuneration Regulation, etc. Therefore, even if a collective agreement, which has precedence over these laws, bylaws, budget and other regulations is concluded, it fails to have any effect as a collective agreement on the basis of the Article 10 Paragraph 1 of the Public Officials Trade Union Act.

The Ministry of Government Administration and Home Affairs goes even further in extending the area of exclusion in its í░Work Manual Concerning Public Officials Organisationsí▒. It provides an interpretation that í░rules that set out provision on the basis of authority delegated by a bylaw cannot be subject matters for collective agreement. The Ministry further undermines the effect of collective agreement by stating í░the failure to implement those matters which the governmentí»s bargaining representative can legitimately manage and decide on through í«enforcement decreesí» may be a subject of moral and political burden, but not legal responsibility.í▒

It is possible to uphold the efficacy of collective agreement while fully respecting the power of the National Assembly or local councils on the basis of the principle of separation of power.  Formulations such as í░government has legal obligation to present a legislative amendment bill, a bylaw amendment bill, or supplementary budget bill incorporating the requirement arising from the conclusion of a collective agreementí▒ or í░the effect of a collective agreement is conditional upon the approval of the relevant legislatureí▒. This paves the way for bringing in the conclusion of a collective agreement to be reflected in laws, bylaws or budget. The power to initiate or amend í░Presidential Decreesí▒ or the í░measures undertaken on the basis of delegation of authority of a law or a bylawí▒ are in the hands of the State or local governments: they are, therefore, not matters that infringe the principle of separation of powers. Despite this, the Public Officials Trade Union Act denies the possibility of efficacy of collective bargaining on these matters. 

The effect of the proviso leads to unacceptable situation. A collective agreement concluded, for example, in 2006, on matters for which the State or local government have legitimate competency to decide on, as in í░presidential decreesí▒ or í░measures undertaken on the basis of delegation of authority of a law or a bylawí▒ may end up not having any effect because it stands contrary to the substance of a pre-existing í░presidential decreeí▒ or í░measures undertaken on the basis of delegation of authority of a law or a bylawí▒, which may have been unilaterally initiated by the State or a local government in the previous year. This runs in the face of the principle of acting in í░good faithí▒.

4. The Right to Collective Action

The Act on the Establishment and Operation of Public Officialsí» Trade Union prohibits collective action by any public official. Such a blanket prohibition, on top of the severe restrictions in the right of collective bargaining and the limitation on collective agreements on matters of working conditions, reduce trade unions and their activities to a state of meaninglessness. Article 18 stipulates that í░a person who engages in strikes, work slowdowns and other activities undermining normal business operation íŽ shall be punished by imprisonment of up to five years or a fine not exceeding 50 million woní▒ to enforce the í░prohibition of industrial actioní▒. This provision only highlights the innate hostility held by the Korean Government on the very idea of industrial relations and industrial action.

5. Other issues

The Public Officials Trade Union Act, in stipulating [Article 17(3)] that Articles 88 through 92, and Article 96 (1) 3 of the Trade Union and Labor Relations Adjustment Act shall not apply to trade unions under this Act, removes penal action against an employerí»s unfair labour practice. As a result, a public officials trade union, which does not have the right to take industrial action, has no legal means to counteract the unfair refusal of an employer to engage in collective bargaining or failure by an employer to implement collective agreement.

The Public Officials Trade Union Act also prohibits public officials trade unions and public officials from engaging in political activities (Article 4). The current prohibition of political activities is a copy of the similar prohibition on trade unions in general in the past, reflecting the prevalent hostility to the very idea of trade union activities. Public officials are members of the society, and should be able to engage in political activities, including expression of political views, at least as long as they do not infringe on the work they are responsible for as public officials. Trade unions of public officials should also be able to engage in political activities. The general prohibition of political activities, regardless of their direct links with the actual work of public officials is a gross violation of basic rights.

  
 
 

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