The National Human Rights Commission of Korea (NHRC) reviewed a draft Enforcement Ordinance on the Establishment and Operation of Public Servants Unions prepared by the Ministry of Labor to specify the scope of public servants allowed to join the union. The Commission found that some of the contents are in violation of basic labor rights and decided to recommend Minister of Labor to improve the draft. The contents that are in violation of the rights are: (1) the scope was not defined concretely, which in turn, shall be mandated in subordinate regulations; (2) In particular, an inside directive and the division of duties could ultimately limit eligibility for membership.
NHRC came to present its opinion on the matter when the Ministry of Labor prepared the Law on Public Servants Unions and asked NHRC to review the related draft enforcement ordinance that was established on January, 2005. It is to be implemented on January 28th of 2006.
Article 3(1) of the draft was designed to specify Article 6(2) (1) of the Law on Public Servants Unions. However, it does not allow pubic servants who are mainly engaged in 「managerial, supervising or administrative work under ordinance, regulation, or rule, directive and division of duties mandated by ordinance or regulation」 to join. The problematic article directly limits the right to organize, one of the basic labor rights. Nevertheless, a subordinate regulation, or even a directive can practically decide whether a public servant can join the union or not, which is usually decided by a Chairpersonial decree. So such subordinate regulations are easy to establish and revise which raises concerns about violations of the independence of the union.
Therefore, Article 3(1) violates basic labor rights running counter to the principle that basic rights shall be guaranteed under the Constitution and the Administrative Legislation shall not be mandated to provide basic rights. From that perspective, NHRC recommended the draft to be improved in a way that clearly and concretely defines the scope of union membership eligibility for public employees consistent with the rationale mandated in the law. –End-
