Evolution of Labour Legislation in Asia
KOREAN SOCIAL ACTION GROUPS
The Background and the Process of amendment of South Korean Labor Law
The labor law, which provides Korean laborers with the basis of legal protection and independence, includes the labor standards act, labor council act, labor dispute mediation act, and labor union act. They were established in 1953, and amended in 1961, 1974 and 1980. The rights of the laborers were reduced through those amendments because the Government amended the laws for its own purposes, not for the sake of the laborers. The amendment of 1980 was initiated by the National Security Planning Committee which amended and established several undemocratic laws. The Government declared that it amended the labor laws to mobilize the activity of labor unions, to improve the social and economic life of the union members, and to secure their welfare. The amendments cover the following points:
1) The amendments aim to transform labor unions in the industrial unit into company units; to weaken the labor union’s power; to mobilize the labor-management council act; and to strengthen the conservative labor-management relationship.
2) They aim to establish government—initiated labor-management relationships by strengthening the governmental intervention while ignoring the original labor-management relationship.
3) They aim to prohibit labor disputes and to unify the means of resolution of disputes excluding reasonable resolution by public opinion.
4) They aim to modify labor standards.
5) They aim to heighten the punishment for violations (from 1 year to 5 years).
In conclusion, the purpose of the amendments of 1980 is to secure the employers’ convenience and strengthen public order.
The Contents and Problems of the Present Labor Laws
It is a well-known idea that the labor laws should control the labor-management relationship and the social relationship, which at the same time should constantly be changing and developing. Labor laws should reflect the condition of the labor market, the development of the labor movement and the social policy of the government, on the basis of guarantees of laborers’ rights, through which they can further their cause effectively.
The labor laws come to lose their purpose and effectiveness, and to prohibit the development of society if they ignore their original function or if they only emphasise the controlling power. Let us examine the problems and realities of the labor laws of Korea on the basis of the situation of the labour movement and the labor-management relationship:
The present labor-management relationship tends to be a collective one rather than an individual one, and the collective relationship meets the new dimension, which is the participation of the laborers in management.
It is also a universal trend that in the internationally competing economic market, the labor-management council spreads national-wide to control industry more effectively. The function of the labor union then becomes more significant than ever.
The Korean labor union movement is growing considerably even though it has gone through much suffering. The labor union must play an important role to secure sound labor-management relationships.
The world-wide economic stagnation which was brought about by both external and internal causes is the greatest challenge to management. Korean exports, supported by low wages and bad labor conditions, has lost its competitive power, which makes it necessary to search for effective management and development of high technology goods. The management system must surpass its old dimension — family management — expand companies and establish a sound system, to realize its social obligation. It should also surpass the old attitude of prohibiting labor union activity and accept labor as an equal management partner.
It has been proved that the active participation of the laborers in management shows much higher productivity than when labor is passively controlled.
The two extremes brought about by economic growth challenges democracy and security. The gap between the two should be narrowed to recover the trust of the people and their sense of unity. It is an urgent task considering that the disputes come from the alienation of the masses. True security cannot be guaranteed as long as the laborers’ needs are not satisfied. Korean laborers have played an important role in the economic development of their country during last two decades. They have a sound reason for being allowed to participate in its development. Laborers cannot be accused of being communist and they must not be oppressed because of the search for their basic rights.
True democracy and welfare can only be the product of laborers. The present labor laws do not seem to adequately meet the needs. Let us examine the problem with them.
The limitation of constitutional rights
The present labor laws presuppose the subordination of labor and that the laborer is a socially weak person. The government must guarantee labor activity to ensure sound labor-management relationship and to heighten the laborers’ status.
The present Korean Constitution includes the three rights of laborers, but the constitutional amendment by the Fifth Republic allows delay of the legal process only in collective activity, excluding other rights. The labor laws must guarantee laborers the right to free and equal collective bargaining with employers. Not only should they not intervene in nor prohibit the labor movement, but they should also ensure removal of the obstacles to the realization of the right to survival.
The three rights of laborers must be guaranteed in relation to the employer. The constitution guarantees the rights of laborers to organise because labor unions inevitably face pressure from employers. This pressure can exercise its power through private ownership and free contract, although by law, the government declares the right of organization. The right to organise compels the laborers to organize against the employer, while there is also the governmental obligation to foster and protect labor unions because the laborers cannot protect their rights or human dignity without their own organization. It is illegal for the government authorities to intervene in or limit the constitutional right of the laborers.
None of the basic rights can be guaranteed without any limits, but these must not infringe on the essential content of the basic rights.
The Korean constitution limits collective rights by the legal process in Article 31 Section 1 and Article 35 Section 2 provides the ground for the limitation. But Article 35 Section 2 declares, that all rights can be limited if necessary for the national security, public order, and public welfare. But the essential content of freedom and rights cannot be infringed upon.
Article 9 declares that all citizens have the right to pursue happiness and shall be assured human dignity, and the government must recognize and ensure human rights of individuals. The essential content of the basic labor laws cannot be infringed upon to the extent that the equality between labor and management is denied. The amended labor laws limit the three labor rights, which is against the constitutional declaration. They perpetuate the delay of collective labor-management bargaining, effective period of group convention, the prohibition of forced organization (by the abolition of the closed union shop), and limitation of dispute, which means the weakening of the labor union.
The laborers can organize their union or participate in the pre-organized union according to the rights of organization ensured in Article 31 of the constitution.
Article 8 of the labor Union Act declares; laborers can organize or participate in unions. They also can select any type of union. It is very natural that the laborers should organize their union independently.
These are the least conditions with regard to the legal status of labor unions in many countries, but the Article 13 Section 1 of the amended Labor Union Act limits the union to the company or enterprise, which is the decision maker regarding labor conditions. This limitation brought about the result that only workers in an enterprise can be allowed union activity, and other laborers (defined in Art. 4 in the labor union act) cannot, which means the infringement of the right to organize ensured in the constitution, and leads to tough discussion of the theory concerning the right to organize.
The regulation of the minimum of laborers/members who can organize a labor union
The amended labor laws declare that a labor union can be organized on the decision of the general membership with more than 30 persons or at least 1/5 of the members.
Before the amendment more than two persons could organize a union. This condition actually makes it difficult to organize a union considering the difficult process for the establishment and reporting system, which means limitation of the right to organize.
The reinforcement of the establishment reporting system
The organization of a labor union is significant information for the governmental labor policy. The labor union act adopted the establishment-report system to obtain this information. The system was made to accomplish the goal of the labor policy not to limit the free establishment of the labor unions. But in practice it works as an establishment permit, which is a serious infringement on the rights to organize. So the system must be simplified and modified.
Art. 13 Sect. 3 in the amended labor laws says that the records of the general meeting for the founding of a union, including the signature of at least 30 members, and the resumes of the officials should be added to the establishment-report and codes, which makes the reporting system far more complicated than before.
The increasing gap between labor and management
The problem of labor-management relationships can be solved only through equal bargaining between the two. There cannot be sincere bargaining if there is imbalance between the two powers. Serious labor disputes and problems in Korea are the result of the weakening labor union power, (weakened by the National Security Law)
The amended labor laws limit union activity, abolishing the Union shop, and forbid collective bargaining, which weakens the labor union.
The prohibition of collective bargaining and the company-union system
The company union, confined to a company, can be easily organized and unified, and it is rooted in the vertical labor market. The company union accepts the rank system of the educational status and of jobs, which leads the members to subordination to management and not to the membership or the fellowship. It is apt to be an inner-management system compelling all the members to participate in it. It cannot secure equal power between labor and management.
The amended labor laws transformed all the unions into company units to weaken the national union and the industry-union, which makes it difficult to secure the independence and equality of labor. The loss of independence and equality inevitably leads to the following results: Growing distrust between the members leads to the loss of the significance of the union and to laborer’s dissatisfaction accompanied by frequent disputes; Bargainning within the company leads to the imbalance between labor and management, and to differences among companies; The prohibition of the sound control of the lower union by the upper one leads to extreme disputes that cannot be self-regulated. Transformation into a company union system works as an obstacle to sound labor-management relationship.
The abolition of the Union-shop
The union-shop originated from the need to compel laborers to participate in the union, and its goal is to keep the balance between labor and management. The abolition of the union-shop would encourage the wrong doing of employers and the destruction of the union. It has been proved that employers urged employees to withdraw from unions and disrupted union activity after the amendment. The amendment weakens sound labor activity, neglecting its original aim of mobilizing and supporting labor unions.
Limiting of the self-regulating power of the labor union and the weakening of labor-management independence
The labor union must have independence, and self-regulating power to bargain with the employer. The union cannot work without independence and self-regulation of its members. The government control over the union must be strictly limited in order to secure its independence and self-regulation. The amended labor law heightened the power of control over the unions, which limits the sound activity of the union. There can be true peace between labor and management because the two always struggle for their own benefit, and control by third persons should be minimized. The government control must maintain strict impartiality to mediate disputes. Excessive intervention by the government in the 1970s was repudiated by both employees and employers. The amended labor law brought severe imbalance between the two, and assumes strong control by the administrative authorities. Dependence upon governmental control leads to severe dissatisfaction of both parties, the employer and the employee, and to mutual distrust.
Weakening of collective bargaining
The element of opposition cannot be excluded since the nature of the labor management relationship assumes the bargaining of labor. The relationship assumes the cooperation of the two who unite in production. The relationship is cooperative in production and opposing in distribution.
These two dimensions must be recognized to improve the relationship. There has been bargaining only on the basis of the opposition between the two, not on that of cooperation, which makes the bargaining difficult and aggressive.
The amended labor laws emphasize the labor-management council, assuming the weakening of collective bargaining.
Art. 33 in the labor union act and Art. 6, Sect. 2 in the labor-management council state that the officials of the collective bargaining must be members of the council, and the council can be held every three months. But collective bargaining can be held only every three years. The weakening of collective bargaining and the strengthening of the council leads to imbalance and inequality.
Probability of the limit to restraint in disputes and the stagnation of the labor movement
The extreme restraint in disputes
Laborers can improve their labor conditions and their socio-economic status through collective bargaining. They must protect their power of bargaining and of uniting to do this.
Collective bargaining without the power of dispute cannot work, so the three labor rights cannot be neglected.
The constitution of the 5th Republic includes a clause providing for legal process to be withheld in the right of collective action, and the National Security Law prohibits collective action. The amended labor laws succeed in prohibiting disputes. The amendment of 1963 began to limit disputes, and that of 1970 further limited collective action. The National Security Law of 1971 prohibits collective action far more strictly, and the amendment of 1973 takes over this prohibition.
It made the disputes system so complicated, that dispute itself becomes almost impossible. One of the basic-rights, the right of collective action is practically denied in the amended laws. The stronger the prohibition of natural collective action, the more destructive and aggressive the disputes becomes, which influences the whole security of the society, not only labor-management relationships.
The Y.H. dispute, Sa-book dispute, Tong-guk steel dispute are typical results of this process. Free and natural labor disputes must be guaranteed to keep the balance between labor and management and to ensure social security.
The prohibition of intervention of a third person
The amended labor laws Prohibit the intervention of third persons by art, 12 sect. 2 of the labor union act, Art. 13, Sect. 2 of the labor-disputes act, Art. 27, of the labor-management council act. The self-regulation and independence of labor unions must be guaranteed, but civil responsibility and participation become essential elements in the labor movement because the movement plays an important role in the development of democracy and the improvement of human life as a whole. The movement has developed through association with the whole community and on the basis of justice in society. Improvement of the labor movement necessarily means the improvement of justice and the whole social order. Prohibition of the intervention of a third person is unjust considering the aspects mentioned above. Some disputes are said to be manipulated by Christian missionaries, but they are the result of the education and enlightenment of the laborers. Several disputes have been brought about by the inherent injustice, and outside intervention cannot be excluded unless injustice is abolished.
The concept of the third person itself is very vague. The exclusive definition of the third person assumes that an outsider cannot even provide sound education and advice. The prohibition of the intervention of a third person would consequently work as a great obstacle to developing a sound labor movement.
The Possibility of isolation of the labor movement from universal trends
The significance of the rights and benefits of laborers grows immensely in the world of economic development and industrialization. The international labor movements, which aim to protect the laborers rights and to improve their life, have developed steadily and the status of laborers has improved greatly through the consistent efforts of the international movement. The growing influence of the movement is not limited to labor, but influences the realization of social justice and human dignity.
The I.L.O., (International Labor Organisation), with its agreements and work of persuasion, plays an important role in the international labor movement. The Korean labor movement suffers isolation from the international trends by not belonging to the I.L.O. Its association with other countries is limited to the Far East while Western Governments and labor unions blame Korean labor conditions for the present labor situation and the situation of the labor movement which is extremely bad compared with that of both developed countries and the regulations and standards of I.L.O.
The present labor laws which were amended for the government’s convenience, obviously show the serious defects of undeveloped labor laws. They try to solve the problems by strong governmental control rather than through free and natural activity of the laborers, which makes the problem worse.
Underlying the very nature of the labor problem are the laborers aspirations for a good human life, and there can be no true peace unless these aspirations are fulfilled. The government must secure a sound basis for labor-management cooperation and the independence and self-regulation of the labor movement. Any labor disputes must be seen to solve the problem in a real sense. The stricter the restraint, the worse the problem becomes. The labor union Act must guarantee the right of unity, implying independence and democracy, and the union members themselves should be able to choose the type and system for their union, and to act freely.
The process and regulation of the organization of labor unions must be simplified, and the union must be run democratically and effectively by the members, minimizing governmental control.
The unit of collective bargaining must be adopted freely according to the situation of the union or the company, oriented to the ward, uniting by industry, or provincial unit, which will help to improve the labor conditions and the labor-management relationship. Collective agreements must lead to sound content by example without government intervention.
In the labor disputes act, a cooling-off time must be specified to expose the problem, and the will of the persons concerned must be respected. The confinement to the company of the disputes must be stopped.
The labor standards act must ensure the livelihood of the laborer, overcome unjust labor-management relationships, and follow the international trends. Minimum wages must be regulated to ensure the survival of laborers, the priority of claims for payment of wages must be ensured, and the livelihood of laborers must be supported.
The prohibition of the intervention by a third person, neglecting the true cause of the problem, must be abolished to secure a stable and sound labor management relationship. In fact, there must be sincere concern and involvement of the whole society considering the significance of the labor-management relationship.
Prohibition of disputes blocks the way of reasonable solution to labor problems. Labor disputes can be solved only by the sound activity of the labor unions, so labor union activity must be fostered and supported.