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Present Situation and Prospect of the Labour Rights in Public Sector (Korea)  KGEU Presentation 20061208.doc
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 This was presented at "International Workshop of Public Sector Trade Unions in Hong Kong, Korea and Japan" on December 8th, 2006 in Hong Kong, hosted by HKCTU Public Service Committee and PSI-KC.

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Present Situation and Prospect of the Labour Rights in Public Sector

 

Korean Government Employees' Union (KGEU)

 

1. Introduction

The raison d'etre of a trade union is, above all, to protect and improve the rights and interest of union members, that is, workers, in relation to their employers. The preposition is the independence of a trade union free from the employer, and also is the principle of democracy to reflect the will of the membership. Thus, an independent and democratic trade union needs three basic labour rights as a means to raise workers’ interest and demands to the employer and to implement them. As we know, labour’s three rights, that is, a right to organize, a right to collective bargaining, a right to collective action, which can be broadly called the freedom of association, are the fundamental rights that a trade union are entitled to exercise.

In order to guarantee the rights of individual workers as the socially weak in opposition to powerful employers with the means of production, the state guarantees the three basic labour rights as basic human rights under the constitution. And internationally, these rights are regarded as integral part of universal human rights. The labour rights are the result of workers struggles from the inception of capitalist system, and at the same time, the concession of the capitalists to cope with the inherent contradiction of the capitalism system itself. Furthermore, the guarantee of three labour rights and the recognition of a trade union as a social partner is a way for more positive inclusive policy for the stabilization and further development of the system.

However, the situation of basic labour rights in Asian countries that are incorporated, as subordinate partners, into the world capitalist system, is still far short of those universal principles and international trends. It is the result of the development-first policies, and also reflects the meager extent of working class development, or the backwardness of ruling regimes that have pursued a violent method of modernization.

The conditions are even worse for public sector workers. In case of South Korea, for a long period, the public sector workers functioned as junior partners of the ruling power. They were positioned as part of ruling power, and thus, accomplices of abnormal exploitation. Many of government employees had regarded themselves as lackeys of power elites, and lower agents of the governing power. This, combined with the ideology of the public employees as "civil servants", led to the negation of their own identity as workers, and they sought for the protection of interest and rights through exercising abnormal pseudo-power at the base layers of power structure.

The public employees at field operations were recognized as workers, and guaranteed the three basic labour rights, but their rights were incomplete, and their exercise was hampered on the pretext that they belong to the public sector. Except those at field operations, such public sector workers as office workers, administrative workers, and professionals, had not been recognized as workers. Up until now, the exercise of labour rights by public sector workers has been blocked by the unjust domination and interference of the government as employers.

 

2. The Current Situation of the Public Sector in Korea

o In Korean society, while the definition of public sector differs according to classification, the public sector, in a narrow sense of the word, means the central government institutions, municipal bodies, the national and public school, public enterprises and government subsidiaries.

-          Except the administrative and educational institutions, the public enterprises and their subsidiaries includes the government-invested, -funded enterprises, their subsidiaries and so on:

-          government-invested enterprise: an enterprise of which the government owns the largest share;

-          government-funded enterprised: an enterprise which by law the government is obliged to contribute;

-          trusteed institution: an institution more than 50 percent of whose income comes from government funding;

-          subsidiary: an enterprise of which a government-invested or -funded enterprise owns its largest share;

-          affiliate: an enterprise, as a attach of a subsidiary, which the government funds;

-          others: an institution as designated by Management Commission on the Government Affiliates (that is, the targets for managerial renovation).

o Out of 14,979,000 of the total workforce, the number of public sector workers is about 1,550,000, comprising just over 10 percent.

Public Sector Workforce 

Category

Year 2006 survey

Total Number(a=b+c)

Regular(b)

Irregular(c)

Ratio(%)(c/a)

Total

1,553,704

1,242,038

311,666

20.1

Central Administration

273,715

243,408

30,307

11.1

Municipalities

383,801

311,564

72,237

18.8

Education

527,804

415,411

112,393

21.3

Public Enterprise & Affiliates

368,384

271,655

96,729

26.3

"Overall Measure for Irregular Workers in Public Sector" August 8, 2006, Ministry of Labour

o While public sector workers comprise about 10 percent of the while workforce, among the organised labour, the public sector organisation comprise more than 30 percent.

 

3. The present situation of basic labour rights for public sector workers

(1) The government employee sector

Since the military coup d’etat in 1961, the basic labour rights of government employees, with the exception of functional operators, those in 'labour service', had been totally negated, and this situation lasted until the legislation of the 'Act on the Establishment and Operation etc. of Public Officials' Work Associations' (work councils) and the legalization of the teachers union in 1991. In 1989, the National Congress passed the unanimously revised labour laws that included the clause on the recovery of the right for government employees to organize, but it was discarded by the veto of then-president ROH Tae-woo who took part in the coup d’etat in 1980.

In 1998, when the tripartite commission agreed on basic labour rights for government employees and teachers, the Act on the Establishment and Operation etc. of Public Officials' Work Associations and the Act on Establishment and Operation of Trade Unions for Teachers were implemented from 1999. Accordingly, Works Councils of government employees were established from January 1999, and the teachers union (KTU) was legalized in July 1999.

The basic agreement, at that time, on labour rights of government employees had the two-stage plan: at the first stage, the works councils were to be allowed for government employees, and at the second stage the full-fledged trade union was to be allowed. But the government was trying to legislate its bill of Act on the Establishment and Operation Etc. of Public Officials' Associations stipulating prohibiting the use of the term "trade union", and the bill was designated by the Ministry of Government Administration and Home Affairs (MOGAHA) as the employer ministry, but it was faced with strong opposition of government employees’ simultaneous leave struggle, and internal dispute over the issue within the government, and finally the bill was discarded. Later, the government proposed the new bill of the Act on Establishment and Operation Etc. of Public Official’s Trade Union, similar to Act on Establishment and Operation Etc. of Trade Union for Teachers, and it designated the Ministry of Labour as the employer ministry, and the bill was passed by National Congress on December 31 2004, and began to be implemented from January 28, 2006.

But the government employees’ trade union act was legislated unilaterally without any consultation with them, even in spite of their strong opposition. In response, the KGEU organized a general strike in November 2004, expressing its rejection of the bill, and demanding the three basic labour rights be guaranteed not by the special law, but by the revised labour laws.

The trade union law for government employees is obviously problematic. First of all, the law, as a special law, separates government employees from other ordinary workers. And, in spite of its purpose to guarantee the labour rights, it seriously restricts the basic labour rights of government employees, and contains the clauses that would hamper trade union activities.

In terms of the right to organize, the government employees’ trade union law restricts the scope of union membership too strictly. The law prohibits the union membership of government employees over the grade 5, and a considerable number of the grade 6 government employees are not entitled to the union membership for the government’s arbitrary regulations. In principle, the union membership should be decided by the autonomous decision of the given trade union. That is given in the labour laws, and it suffices that the trade union will exclude those who are in a position of an employer, and the decision should be made by the trade union itself. Also, this special law indicates the minimal requirement for the establishment of a trade union, which means that the law prejudges the right to organize in legal terms.

The same goes to the right to collective bargaining. Formally, according to this special law, the government employees are entitled to collective bargaining and conclude a collective agreement, but actually the right to collective bargaining is ossified. On the clauses on bargaining, the law states, "the 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 conditions shall not be subject to the bargaining." Thus, though the collective agreement is concluded, "the provisions stipulated by laws, bylaws or budgets and provisions stipulated by the authority delegated by laws or bylaws shall not have the effect of collective agreements." And in terms of negotiation forms, as is the case with the law on teacher’s union, it stipulates the unified channel of negotiation and the proportional system of negotiation representatives.

No further saying is needed on the right to collective action. The government employees’ trade union law unilaterally prohibits any industrial actions by the government employees. As the right to collective bargaining and to concluding collective agreement is not guaranteed fully, the further prohibition of industrial actions means the de facto incompetence of the trade union activities for the government employees.

In addition, the government employees’ trade union law excludes any clauses on the punishment for unfair labour practices like employer’s unjust domination or intervention, disadvantageous measures, and any disciplinary measures in case of non-fulfillment of the agreement. In this situation, even when the employer unjustly rejects a collective bargaining, or implementation of the agreement, the government employees’ trade union has no means to impose it legally. Moreover, according to the law, any political activities by the trade union or its members are not allowed. But this prohibition of political activities is borrowed from the same clauses that had been applied for the civilian trade unions. This reflects the negative view of the government over the trade unions in general. Basically, government employees are also part of people, and in the realms that are not related with their operations or services, the political activities and political expressions are to be allowed, and their trade union has the right to political activities. If they are prohibited from any political activities in the area that has no relations with their work, only because they are government employees, it would be serious infringement of fundamental rights guaranteed by the constitution.

 

 

Applied Law

Right to Organize

Right to Collective Bargaining

Right to Collective Action

State Public Officials

 

General Administration

State Public Officials Act

Act on Establishment and Operation Etc. of Public Officials' Trade Unions

X

Teacher

Act on Establishment and Operation Etc. of Teachers' Unions

O

X

Public Security

 

X

X

X

Labor Service

Trade Unions and Labor Relations Adjustment Act

O

O

O

(de facto limitation by compulsory arbitration

Local Public Officials

General Administration

Local Public Officials Act

Act on Establishment and Operation Etc. of Public Officials' Trade Unions

X

(2) Other Public Sector

o While the workers of public enterprises and affiliates are known to guaranteed right to organise and bargain collectively except the right of collective action, the right to collective bargaining is actually deprived by the government directive of budget compilation and managerial renovation.

- Every year the Ministry of Planning and Budget (MPB) drafts the directive on the budget compilation, which in fact functions as a wage guideline. The wage and working conditions are the terms to be dealt with at the collective bargaining, but the government directives make the collective bargaining meaningless. The directive on the managerial renovation contains the overall regulation on union activities, so that it also functions as means for the government to intervene into autonomous union activities. Every year the government carries out the managerial evaluation to check the extent of the directive being followed, and the results of that evaluation are used as the ground for performance bonus and renewal of contract for the top management. In addition, the Board of Audit and Inspection (BAI) assesses the management of the public enterprises and affiliates, thereby exercising a very strong post facto control over the union activities indirectly.

o The existing law on trade unions also prohibits the collective actions of the workers in the public enterprises and their affiliates or subsidiaries.

- From the formal point of view, the right to collective action for the workers in the public enterprises and affiliates seems to be recognized, but as a matter of fact, it is blocked by such measure as a compulsory arbitration and an emergency arbitration. Actually, when the workers struck at the worksites classified essential public interest business, such as railway, subway, gas, power plant, telecommunication, health care, and so on, the strikes were always declared illegal by the government, and the clause on the compulsory arbitration was used for the pretext for stopping strikes. Also, when air-line workers and pilots struck, the government stopped the strike by the emergency arbitration measure, even though it does not belong to the essential public interest business.  

o Also, the present attempt of the government to legislate the Roadmap for Advance Labour Relations is a direct attack on workers’ basic rights. Especially, the expansion of the list of essential public service businesses and the permission of workforce replacement on full scale in times of a strike means the blockage of basic labour rights of public sector workers. While the government nominally suggests the abolition of compulsory arbitration, it includes into the list of essential public service businesses, other services like blood supply, airline, treatment of sewage and waste water, supply of hot water and steam, and so on. Especially, the government allows the workforce replacement for essential public service businesses on a full scale, and keeps the compulsory arbitration intact, and repeats insincere practice in negotiations, thereby destroying labour relations. Especially, as the urgent compulsory arbitration that had been dead letters for decades was frequently used in recent years by the government, it is worse that authorized arbitration for public sector workers.

 

4. To achieve basic labour rights

The pivotal task for achieving basic labour rights is to strengthen workers capacity to mobilize. We need to recognize clearly that without building an independent and democratic trade union with labour rights and robust struggle by workers themselves, it is impossible to defend or improve their own interest and rights. Of course, at the upper layer of the capitalist world system, some trade unions leaderships function as part of ruling power, sharing a piece of a pie, but it is to the benefits of upper class labour aristocracy, alienating a large number of workers. And this phenomenon shows its limitation in the crisis-ridden advanced capitalist economies in that they attempt to escape from the crisis through the wholesale attack on the labour. There is no need to emphasize again that without the struggle and organizing by workers themselves, nothing can be won or defended.

In addition to strengthening the subjective capacities, another important axis is the strengthening of solidarity front. This means not just the strengthening of working class unity and solidarity, but also that of popular alliance as a whole. As without social democratization, there is no political democratization, the trade union alone cannot find a way for survival. This holds true to public sector workers. Without the improvement of lives of board layers of people who enjoy the public service, the improvement of working condition or the guarantee of labour rights for public sector workers is not possible.

The unity and solidarity of workers should be expand, over that of public sector workers, to that of the whole working class, and further toward international labour solidarity. As the South Korean case shows, the offensive on public sector workers is a precursor to a wider offensive to the workers as a whole. And in return, without the advance of the whole working class, the independent front of public sector workers is impossible, and self-sufficient survival has no meaning at all. The public sector workers’ struggle for basic labour rights should be advanced with the struggle for whole working class struggle for basic rights. For the division of workers is meaningful for employers and governments, for their labour suppression and further exploitation.

Finally, the importance of international solidarity cannot be over-emphasised. The capitalist system was global from the moment of its birth, and in the era of neoliberal globalization, the national border has no meaning for the capital. The governments, the employers of public sector workers, are also loyal to this neoliberal order. In Asia, we’ve witnessed the labour repression and encroachment of labour rights in one countries turns into an example of repressing workers in other countries. It is the workers’ international solidarity that will break a link in the vicious circle of labor suppression. Injury to one is injury to all. The workers’ struggle in one country is to lead to an inspiration and encouragement of workers struggles in other regions and countries, and in return, to contribute to globalization of struggle and solidarity. The virtuous circle of struggle and solidarity alone will replace the well-knit network of backward labour repression in Asian region.

 

 



 

  
 
 

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