By Doris Lee
South Korea is among several countries in Asia which has not ratified ILO conventions Nos. 87 and 98, nor the convention on forced labour No. 105. ILO ratification does not guarantee workers’ freedom of association in practice – see the article on Philippines, which has ratified - but the fact of not having ratified this fundamental convention long after Korea’s recognition as an advanced industrialized country reflects the unwillingness of the state to admit and fulfill its responsibility to protect workers and grant them full ability to defend their labour rights without punishment or fear.
Workers around the world have been facing dismissals, contractualization, intensified work hours, and numberless kinds of controlling measures and attacks on their rights and on the standards of their everyday lives. In Korea, workers face these same conditions. The wealth and advanced infrastructure and environment in Korea belie the continuing brutality of companies and the government towards workers and any who would contest their domination of society.
In this article, major laws, policies and tactics of the government and companies to limit workers’ capacity to resist being inhumanely exploited are shown clearly. Some examples of particular groups of workers are given, which are only the tip of the iceberg in Korea. Some are by legal measures, that legitimize removal of job security from workers and dramatic inequality between workers of different employment terms; and which also increase the risks for workers engaging in any ‘troublesome’ actions to improve their situation. Others are pure harassment and violence.
Restricting union rights
The right to strike
The right to strike is a fundamental right of workers. The ILO, while not having a specific convention on this, has repeatedly stated and defended this principle, derived from ILO conventions No. 87 and 98, through the bodies set up for the supervision of ILO standards application – the Committee on Freedom of Association and the Committee of Experts on the Application of Conventions and Recommendations. In solidarity with workers of the same or a different workplace, or for any issues that materially affect them, workers must be allowed the unfettered space to withhold their labour, i.e. to strike. It is one of the most important tools of workers to impede constant pressure to reduce their wages and lower their work benefits and protections. Thus for instance, it should be within workers’ rights to launch a general strike against a free trade agreement, as workers in the Korean Confederation of Trade Unions (KCTU) have done against terms of the US-Korea Free Trade Agreement, in 2008. Also, workers should be allowed to strike even if they are irregular workers - short-term, contracted, or other category of worker – this right is all the more important when the majority of workers are in this category, as is the case in Korea since 2000. However in Korea, those kinds of strikes are not allowed; other than for a narrow range of reasons – for issues of wages and working conditions which can be terms of a collective bargaining agreement – and unless conducted by regular workers who belong to a recognized union – a strike by workers would be considered illegal.
When a strike is illegal, a union or group of workers may be punished very severely. Among the punishments that may be levied is required compensation for the damages incurred by a strike.
Obstruction of business
Korea is unique in bearing a law which specifically criminalizes obstruction of business. Article 314(1) of the Criminal Code in Korea punishes a person who has obstructed others’ business by means of force with up to five years’ imprisonment. The term ‘force’ is interpreted as ‘a certain level of force which has suppressed the free will of others.’ This law has been used aggressively to threaten and punish workers in Korea who go on strike or take other collective actions to assert their labour rights. A typical strategy is to charge a group of workers with obstruction of business, and sue them for compensation for financial damage, seizing assets of the individuals involved in the meantime. At the same time, others involved are threatened with the same, and strongly encouraged with withdraw from the union, or even ‘voluntarily’ resign from the company. Workers may also be jailed, and many have indeed been imprisoned in the past.
The Supreme Court in Korea has previously ruled that collective action of workers itself is a force, and when workers are on strike, it automatically constitutes the crime of obstruction of business, unless it falls under the narrow terms of labour disputes defined in the Labour Dispute Adjustment Law.1
Yet the interpretation of the Korean court that collective strikes – simply collective refusal to work for their employers - can be regarded as a punishable crime comparable to other violent criminal acts, creates a situation like forced labour, or slavery. This is also contrary to ILO Convention No. 105, the Convention concerning the Abolition of Forced Labour (which South Korea is not a signatory to), which prohibits the use of forced labour as ‘punishment for having participated in strikes’.2
Kiryung Electronics workers - charged for ‘obstructing business’
Kiryung Electronics is a company producing satellite radios. The workers in the assembly line, who are nearly all women, were almost all dispatch workers – only 10 out of 250 were permanent. In their case which was brought before the ILO Committee on Freedom of Association in 2008, the workers reported on being false dispatch workers (i.e., workers who worked for long years doing the same work for a principal employer, but through changing pass-through nominal subcontracting companies) and harassed and threatened when they asserted their rights to form a union and to negotiate with the principal employer. They had met with charges of ‘obstruction of business’, had been punished with imprisonment, and had assets of three of their union leaders provisionally seized, amounting to 1 million won (US$833) per person; and 5.4 billion won (US$4.5 million) was levied against 40 persons in Kiryung Electronics (who had been active in the union), while the company withdrew compensation suits against union members who signed resignation notices.3
Youtube Video: http://www.youtube.com/watch?v=8AZN0SuBFXs&feature=related
Photo: Ministry of Labor official blocks demonstrating Kiryung Electronics worker at a meeting about the upcoming Irregular Worker law. The demonstrating workers said: ‘Let people know that irregular workers themselves oppose this Irregular Worker law.’
Perverting the rule of a single union – and delaying multiple unionism
In Korea, only a single union has been allowed at a workplace. If a previously workers at a workplace intend to set up a union, they must register – and the first one to do so within the given requirements, is regarded as the single recognized union in the workplace. But employers easily pervert this requirement, by preemptively establishing yellow unions, whose creation is by the initiative of management rather than of the workers to protect their interests. After this employer-friendly union is established, the genuine union will not be recognized and their activities may be regarded as illegal, exposing the workers with dismissal, imprisonment or fines.
Samsung is one of the leading and most prestigious Korean brands, well recognized worldwide, yet, within the Korean labour and social movement, notorious for its ‘no union’ policy. The CEO of Samsung, Lee Gun-hee, has said: ‘Until my eyes are filled with dirt, I will not recognize any trade union in my company.’ Samsung subsidiaries are known for making prevention of unionizing a high and explicit priority within their workplaces. Thus, for example, Samsung ensures that 24 hours a day, there is a man posted near the union registration office, ready to pre-emptively register a false, yellow union.
The possibility for companies to use such means to completely prevent the establishment of a democratic worker-established and legally recognized union in a workplace is a major barrier to workers’ exercise of their right to form a union. At the same time, single union recognition at a workplace can greatly inhibit organization of irregular workers – which recognized unions formed by permanent, regular workers often fail to include and to defend the rights of. The alternative, of democratizing unions from within, is not possible due to the hostility of management. Thus this is one of the main reasons that trade unions have been demanding multiple unionism. According to the Trade Union and Labour Adjustment Relations Act, enacted in 1997 between the government, representatives of workers and representatives of employers, it was agreed that multiple trade unions in one workplace would be allowed; however implementation of the Act was repeatedly delayed. Now, it will be at the end of 2009 that trade union pluralism goes into effect.
The Trade Union and Labour Adjustment Relations Act, while making some nominal concessions to labour such as the deferred multiple unionism, was a major instrument of the government in limiting workers’ ability to resist company abuses and exercise their right to collective bargaining. It banned strikes by people working for the central government or local governments, and by those involved in the production of military goods. It set out a long list of “essential services” where the right to strike can be heavily restricted by the imposition of mandatory mediation and arbitration procedures. It introduced a provision, repeatedly delayed in implementation due to strong opposition of unions, to prohibit employers from remunerating union leaders. It followed earlier expansion by the government of companies’ legal ability to hire contractual workers for up to two years, which has been massively used by companies to reduce costs and limit workers’ bargaining rights and benefits.
Use of migrant labour, while restricting their rights – Example: MTU
Korea began to heavily introduce migrant workers into the Korean labour force in the early 1990s. Through ‘importation’ of migrant workers on special employment permits, small and medium size enterprises that otherwise would not be able to compete in Korea are able to continue production. Migrant workers now number over one million in a country of nearly 50 million in population. The migrant workers are allowed to stay a maximum of three years, with one maximum extension of two years – for a total of five years maximum. The penalty for overstaying can be arrest, detention and deportation. Migrant workers have formed a union after long struggle and the right to a union has been recognized in court at the Lower Court and High Court level; however the government has appealed it and the matter is still pending in the Supreme Court.
With the possibility of deportation at any time, and with the crackdown on migrant workers that the government has been periodically conducting, especially since 2004 and especially during periods of greater economic hardships in the country, exploiting both crisis and racism, migrant workers constantly face fear of deportation for either complaining of their work situation and even further, for participating in union activity of any kind.
As migrant workers mostly come to Korea due to insufficient and less-paying jobs in their home countries, yet often with a burden of debt to pay to recruiting agencies, this group of workers is very vulnerable to abuse, as employers and the government can easily arrest and deport them for any infraction, and prevent their organization in unions. As long as this very vulnerable pool of workers is available, it has the effect of lowering working conditions of native Koreans as well – they provoke a domestic ‘race to the bottom’ among low-wage workers – as long as trade union rights cannot be fully exercised to stem that race to the bttom.
Use of short-term contract labour – Example: Kiryung Electronics
The use of irregular forms of labour has many benefits, among which are the ‘right’ to withhold costly social benefits to workers, such as insurance, medical care, and bonuses. However a major benefit also, is the ability to hire and fire at will – which is not used only for adjusting to fluctuation of market demand, but can become a disciplining element, a deterrent to complaints and trade union participation – similar to how deportation is used against migrant workers. As easily as migrant workers who become illegal by overstaying can be deported, workers on short-term contracts or regarded as ‘dispatch workers’ not only receive less material benefits but may be fired any time, without need for providing reasons or termination pay.
Samsung leukemia victims and victims´family members demand justice from Samsung.
Source: Voice of the People website, www.vop.co.kr
In the case of long-struggling Kiryung Electronics workers, mentioned earlier in Box 1, the workers had established a union to defend their rights and immediately persecution of the union began, including expiration of contracts of those who associated with the union, and threats to workers of the same, to intimidate them from joining. Beyond the billions of won in compensation suits against Kiryung electronics workers, there have been occasions of physical attack, and the threat of firing; they simply would not have their contracts renewed, if the workers refused to give up their participation in the union. The mostly women workers earned only slightly above minimum wage, and the loss of their jobs was a devastating blow – but all too ordinary a punishment in Korea now, for workers seeking to establish new unions to defend their interests – especially when the workers are irregular (short-term contract, dispatch, etc.), which companies are loathe to recognize as bargaining counterparts.
The police - Excessive use of force and pro-business partiality in prosecution of legal violations
One of the most high-profile labour disputes in 2009 was that of Ssangyong Motors workers and management. In February this year, the company had announced it was to be put under court receivership due to financial difficulty. It then announced a major restructuring plan that called for the shedding of 2,646 workers, or 36 percent of the work force. Some 1,670 have left the company voluntarily but nearly 974 workers expecting to be laid off together with some workers who had not been dismissed, opposed the move and decided to occupy the factory and conduct a sit-in strike, to compel the management to negotiate with the union for an agreement which would minimize layoffs, and which could include other solutions such as job rotation or unpaid leave. However the company refused to negotiate during most of the period of the workers’ occupation, and the government deployed police – in the name of preventing or punishing crime, but it was clearly not as a neutral party.
Riot police detain doctors who attempted to bring water and medical care to Ssangyong workers conducting a sit-in strike. Many workers and supporters remain under arrest more than a month after the strike ended. Source: www.kctu.org
When the workers occupied the factory, the company cut off the supply of water, and later also medical aid – although 200 of the workers inside reported they needed it – and electricity. Supporters including priests, doctors and labour and social movement groups tried to bring in medical aid and water – but these were repelled with strong forces of not only company guards, but also riot police in the hundreds and thousands, by helicopters that dropped teargas chemicals which could burn through Styrofoam, and by mass arrests. The company as well as the government publicly defended their harsh inhumane measures saying that the protesters were criminals and that there is no humanitarian approach to criminals; and that to provide water and medical aid would only prolong the process of coming to agreement – which from the company and government stance, only included one option: accepting the company’s unilateral decision to fire a certain number of workers, and ending the factory occupation.
The factory occupation posed no danger to anyone of the general public. Yet the government strongly sided with the company in this dispute, mobilizing substantial police resources to protect the company assets, over the welfare of its citizens who were fighting to defend their livelihoods and in exercise of their rights to assembly and to strike. Thus the government defends the ‘right to wealth’ – the right to profit from people’s labour and to dispose of the labour at will – over the right of citizens to life and to health.
After the end of the factory sit-in strike, warrants were issued for the arrest of protesters and union members, for violating the Law on Punishment of Violent Acts, obstructing the performance of official duties, and obstructing operations.
Yet prosecutors laid no charges against the company or the police for their violent and illegal acts. The company violated the Fire Services Act by cutting off electricity and water for fire hydrants, violated the Emergency Medical Service Act by preventing medical personnel from entering or exiting the occupied factory, and violated basic human rights by blocking individuals from bringing the workers water and food.4
Similar egregious and indiscriminate abuse of police power during the candlelight vigil protests last year against the lifting of the four-year old ban on US beef, were strongly condemned by Korea’s own National Human Rights Commission as well as by Amnesty International.5
The police continue to pursue legal cases against people who had organized the protests, in spite of the fact that hundreds of thousands of people had expressed agreement with the organizers on the view that US beef should be banned; and President Lee Myung-bak himself did apologize twice for his misjudgment of how the public would accept his decision.
Restriction on Freedom of Assembly
The Korean Constitution says that ‘All citizens shall enjoy freedom of speech and the press, and freedom of assembly and association.’ Yet the Act on Assembly and Demonstration requires police permission to be obtained before the holding of any assembly or demonstration. Without permission, the participating individuals are considered to be breaking the law. In practice, the police do not approve assemblies when they are expected to express opinions against government policies; and they give the disapproval late so they cannot be appealed.
1. Ban against evening assemblies
According to the law, assemblies and demonstrations before sunrise and after dusk are forbidden. If unions or anyone conducts protests which take place after dusk they can be promptly arrested. The penalty is a maximum of one year in jail or a one million won (US$833) fine. This law was used to arrest participants and leaders in the anti-US beef candlelight protests in May 2008, and it has been reported that around 1,500 people have been prosecuted or are currently in court proceedings.6
On 24 September 2009, the Constitutional Court ruled that two articles of the Act on Assembly and Demonstration are unconstitutional. These were Article 10 of the Act prohibiting assembly and demonstration before sunrise and after sunset, and article 21(2) which describes the punishment for a person who violates article 10. Those articles are to lose effect 1 July 2010. Yet the government has expressed its intention to proceed with cases already launched – reflecting its unreasonable and unjust determination to increase burdens on those who have exercised their right to protest.
2. The press conferences regarded as illegal assemblies
Particularly from this year, police have been increasingly regarding press conferences as illegal assemblies. The police have announced a ‘zero tolerance’ policy, and when in May 2009 a press conference was held by human rights groups and the KCTU against excessive police crackdown on Labour Day and the one-year anniversary of the candlelight demonstrations, which included chanting by demonstrators for the resignation of the police commissioner Kang Hee-rak and an end to violent crackdown, the police charged participants with holding a demonstration without prior notification.7
3. Expansion of scope for police intervention in labour disputes
The National Police Agency and the administration of SeoulCity have made it clear that they will not allow civic groups and opposition political parties to use SeoulPlaza, as it has been reserved by other conservative groups, and there are concerns that the rallies sought by liberal civic groups could turn violent. This is clearly a partial and political decision.
In the meantime, police have devised more detailed criteria in determining whether to break up strikes. ‘The existing rules have five guidelines on mobilizing the police force in labor-management disputes,’ an official from the NPA said. ‘But the revised guidelines broaden the area of police authority and we have adopted nine guidelines to fit the revisions.’
The new rules allow police to intervene in case of urgent requests, based on the possibility of physical danger or heavy property damage, officials said. Police can also exercise authority if a company owner requests a breakup of protesters at a closed worksite, they said. This announcement was made in June 2009, while the Ssangyong sit-in protest had already begun.8
4. Restriction against protests within 100 meters from consulates
This law, self-described above, naturally deters or reduces the efficacy of protests at foreign consulates, but is also exploited by corporations such as Samsung which are common targets of protests – corporations offer rental spaces to embassies at lower rates, to attract embassies in so that the whole building enjoys the ‘immunity’ of the consulate from protests – at risk of arrest to the protester.
Responses of workers
Workers and their families continue to battle in many spheres, to defend their labour rights and to defend their human and labour rights are happening everywhere, and not just in formally recognized unions, nor among only regular workers with permanent jobs.
Following are some strategies that workers use, whether they are in recognized unions or not, to get around legal restrictions and to continue to fight for their rights as workers and as citizens.
Cultural festivals and music/arts
As an adaptation to the restriction on evening assemblies, trade unions and social movements hold ‘cultural festivals’, or religious services, since these are not subject to the ban. Thus for instance, at Yongsan building eviction protest site, where five protesters were killed by police in January 2009 when they were attempting to expel the protesters, there are nightly Catholic masses where the dead martyrs are remembered, but also strong condemnations are made in sermons and testimonies against the government and police, protests songs sung, and videos of other struggles (such as Ssangyong Motors factory occupation) also shared.
At Ssangyong Motors, the Strategy Committee of the Families of the Ssangyong Workers held nightly ‘festivals’, rain or shine, across the paint factory which the workers, to signal to the workers inside to be encouraged and not give up.
Another activists and workers try to sidestep the many laws restricting protests is the ‘one-man protest’. Basically a person stays alone at a location with a sign or publication material about their issue, as it is not illegal for a person to do so. One example is Kim Younggon, a lecturer at KoreaUniversity and a former union leader at Daewoo Heavy Industries, who has been conducting a one-man protest from his tent outside the National Assembly since 7 September 2007, to get official personnel status for lecturers like himself who lack benefits, get lower wages than official professors, and can be fired instantly.
As a last resort, when long-running disputes with management fail to find resolution, workers embark on hunger strikes. In the case of Kiryung Electronics workers, they have endured as long as 30 days and 90 days on hunger strikes. These have largely achieved public sympathy yet often still fail to gain any sympathy or movement from employers. Kiryung Electronics workers are still fighting for recognition and reinstatement more than a half year after their hunger strikes as well as after their case was heard and given recommendations at the ILO Committee on Freedom of Association.
International appeals and ILO
While Korean workers struggle very determinedly within their country, they also avail of international solidarity with workers and worker support organizations overseas. For instance Kiryung workers visited the US, in order to raise concern among the US public and also place responsibility on the US-based purchaser Sirius Satellite Radio; this was with the assistance and facilitation of US-based Korean community organization Nodutdol. Also, they presented their case at the ILO Committee on Freedom of Association, as already mentioned. These create greater moral and social pressure on the government to create or improve protective legislation, but results have been mixed.
The cost incurred when worker struggle against the high hurdles to organizing, is very great on the individuals involved. In many of the major struggles, of which only a few have been mentioned here, workers have died – sometimes through fatal injuries, sometimes through suicide out of desperation (for example, when faced with million-won compensation lawsuits)- they have faced injury, job threats, insults, imprisonment. It is very natural that a large number of workers are strongly deterred from any involvement with unions or with organizing.
On the other hand, when seeing the uncaring and unjust response of company and government to the desperate cry of workers not just for justice, but for survival itself, workers and supporting loved ones also become angered and politically awakened. Besides this, workers and activists strive in their activities to create a community of sharing and of hope, through shared songs, collections and sacrifice for others who are fighting or are bearing the sacrifice through imprisonment or financial loss.
Under the current regime of President Lee Myung-bak, the labour movement has increased areas of cooperation and struggle with other movements – for democracy, for freedom of expression, for justice. Lee Myung-bak was a long-time businessman, for many years working for Hyundai, and once head of the construction unit in that conglomerate.9 Since his term began, especially after the anti-US beef candelight vigils and protests, he has made the police an instrument for defending wealth and attacking ordinary people – as in Yongsan where protesters against a building eviction were killed in a police attack to remove the protesters, as mentioned earlier. Charges are still outstanding for activists and union leaders involved with the anti-US beef candlelight vigils – notwithstanding the clear indication that a very large part of the Korean population was sympathetic to the vigil.
In the Yongsan Candlight Media Centre, which is housed in the building that was to be redeveloped in Yongsan, until recently, there were paintings displayed on the theme of the incident in January and the state’s repression. One painter from a People’s Art Collective whose painting was there told me that his art collective was mainly composed of artists such as children’s book illustrators. But after this president came into power, the artists felt their art must reflect society, and society’s problems. So the art collective became more political in its art, to fulfill their responsibility as artists towards society.
The tensions between workers and marginalized groups facing injustice, and the government and companies determined to enforce their subservience as mere labourers and factors of production, have increased to a high degree. There is still not a smooth unity of thought and action among groups asserting workers’ rights – but the pressure to do so is there; ‘irregular workers’ lacking basic labour rights including the right to organize, have composed over 50% of the Korean workforce since 2000, and the cost to workers of organizing and fighting without legal recognition has become ever higher. In this article, we have only addressed some of the major hurdles set before workers as they try to organize; and a few ways that workers go around or through them. In the future, we hope to share with ALU readers a deeper analysis of struggles that have ‘won’ and a closer look at how unions envision the world they are struggling for.
ILO 350th Report on the Committee of Freedom of Association, June 2008, http://www.world-psi.org/Content/ContentGroups/English7/Regions/Asia_Pac... (retrieved 30 September, 2009)
‘Democracy in South Korea: Mature society versus immature system,’ AHRC, 4 August 2008. http://www.eia.rghr.net/archive/2008-ethics-in-action/vol.-2-no.-4-augus... (retrieved 30 September 2009)
‘Legal Issues of Criminal Charges Against the KCTU Leaders and Their Implications,’ Human Rights Solidarity, Yong-Whan Cho, 1997.
http://www.hrsolidarity.net/mainfile.php/1997vol07no01/241?print=yes/ (retrieved 30 September 2009)
‘Turmoil after GNP rams through bills’, Korean Herald, 23 July 2009, http://www.asiamedia.ucla.edu/article.asp?parentid=110756, (retrieved 30 September 2009)
- ‘Legal Issues of Criminal Charges Against the KCTU Leaders and Their Implications,’ Human Rights Solidarity, Yong-Whan Cho, 1997.
- 350th Report of the Committee on Freedom of Association, ILO, Geneva, June 2008. http://www.world-psi.org/Content/ContentGroups/English7/Regions/Asia_Pacific/News_and_articles2/ILO_korea_case_no_2602.pdf (retrieved 30 September 2009)
- ‘Police arrest 64 Ssangyong Motors union members,’ The Hangyoreh, 12 August 2009. http://english.hani.co.kr/arti/english_edition/e_national/370801.html, retrieved 30 September 2009.
- Amnesty International Report: Policing the Candlelight Protests in South Korea, Amnesty International Publications 2008. http://www.scribd.com/doc/16279218/POLICING-THE-CANDLELIGHT-PROTESTS-IN-..., retrieved 30 September 2009
US beef had been banned for more than four years because of concerns about mad cow disease. The new government of Lee Myung-bak had agreed to resume the US imports as part of a deal to finalise a free trade agreement with the United States. Protests began in Seoul against the decision, reaching tens of thousands of people including families and their children, against both the content of the decision and the manner of it.
- ‘SOUTH KOREA: Prosecutor must stop applying provisions found unconstitutional; accused must be released,’ Asian Human Rights Commission Statement, 25 September 2009. http://www.ahrchk.net/statements/mainfile.php/2009statements/2240/?alt=f..., retrieved 30 September 2009.
- ‘S. Korean police round up citizens holding press conferences’, The Hangyoreh, 5 May 2009. http://english.hani.co.kr/arti/english_edition/e_national/353268.html
- ‘Mask bill hits snag,’ Korea Times, 9 June 2009, http://www.koreatimes.co.kr/www/news/nation/2009/07/117_46533.html, retrieved 30 September 2009.
- ‘Lee Myung-bak: ‘Bulldozer’ In Driver’s Seat, Shu-Ching Jean Chen, 18 December 2007. http://www.forbes.com/2007/12/18/lee-myung-bak-face-markets-cx_jc_1218au..., retrieved 30 September 2009.