Which workers and which unions can claim protection under freedom of association? The EU-Korea FTA Panel Decision Part II
This blog continues analysis of the EU-Korea FTA Expert Panel Report, focussing on the significance of the findings regarding ‘Freedom of association and the effective recognition of the right to collective bargaining’ on which the Parties had made legally enforceable commitments under Article 13.4.3 (see Part I of this blog).
Rejecting the Korean accusation that the EU was seeking to illegitimately ‘harmonise’ labour standards, the Panel carefully analysed the principles established under international law. This entailed examination of Korean trade union legislation, the Trade Union and Labour Relations Act 1997 (the TULRAA), with reference to key international instruments, drawing on findings of UN treaty bodies and the ILO Committee on Freedom of Association (CFA).
The Panel paid attention to law ‘in practice’, which is always crucial to industrial relations. One of the EU’s claims, namely that registration of trade unions was treated as a discretionary matter for administrators, was ultimately rejected. This rejection was due to a Korean Constitutional Court judgment stating that (when certain requirements were met) registration was mandatory. However, the Panel noted that while this was the de jure position, evidence submitted to the Panel cast doubt on whether this was the case de facto and recommended ‘continued consultation’ on the matter.
The Panel was able more confidently to uphold three of the EU’s claims recommending that the following laws be brought into conformity with the principles of freedom of association:
Article 2(1) of the TULRAA, which excluded from the Act’s definition of ‘worker’ the self-employed, dismissed and unemployed;
Article 2(4)(d) of the TULRAA, which disallowed a union from certification under the Act if it permitted non-workers to join and remain members; and
Article 23(1) of the TULRAA which required that trade union officials could only be elected from amongst the trade union membership.
On the first issue, the Panel drew on the ILO CFA jurisprudence, which makes clear the entitlement of self-employed workers to form and join trade unions, an entitlement evident from Convention No. 87, but also flowing from ILO constitutional guarantees. The Report appreciated that the bilateral employment relationship required for identification as a ‘worker’ by the TULRAA ‘would exclude self-employed workers with numerous different clients, and so-called platform workers whose tasks are delivered to them via automated means and who may be legally defined as entrepreneurs’, offering a reminder of current concerns regarding collective representation of those engaged in gig economy work. The Korean statutory approach is also contrary to ILO CFA principles which state that those engaged in the ‘liberal professionals’, whose source of income is unlikely to be ‘mainly dependent upon a specific employer’, should be eligible to claim freedom of association rights.
The Panel further noted the dangers of preventing those dismissed and then unemployed from being able to remain members of their trade union, which has also been highlighted by the ILO CFA. This concern with vulnerability to dismissal led to expression of the Panel’s concern with its consequences under Article 2(4)(d) in terms of access to union certification (if a union continued to represent dismissed workers as members). Linked to this was the inability of a trade union official to continue in their role in an enterprise union if dismissed, by virtue of Article 23(1) of the TULRAA. While Korea argued that there was separate protection from discrimination on grounds of trade union membership and activities, the legislative architecture was exposed as highly problematic. The argument that it was more democratic for those working for an employer to be trade union officials in enterprise unions (and that the same requirements were not imposed in regard of other unions) was unconvincing. While Korea argued that it is actively now seeking to reform the TULRAA on this point, more needed to be done to convince the Panel that those reforms were likely to remedy their concerns.
Of course, the findings in this Report are only binding between the parties, with ILO soft law on freedom of association being given binding force by Article 13.4.3, but this Report may nevertheless be seen as a trend towards recognition of wide-ranging entitlements to freedom of association, not dependent on identification of an employment relationship. Of course, the other elephant in room, is that although the Panel recognises the Parties’ obligations regarding freedom of association as ‘legally binding’ under the EU-FTA, there is no enforcement process beyond the Panel report. An improvement would be to integrate Chapter 13 into the dispute settlement process applicable to the body of the FTA, so that the threat of trade sanctions can be meaningfully applied to prompt the legislative reform recommended by the Expert Panel.