hankyoreh

June 25. (by Lee Jong-geun

Even undocumented migrant laborers can establish and join labor unions, the Supreme Court ruled yesterday. The decision was made 10 years after migrant laborers first filed the lawsuit and eight years after they appealed to the Supreme Court.

On June 25, the full bench of the Supreme Court (with Justice Kwon Sun-il presiding) upheld the decision of an appeal court ruled in favor of the Seoul-Gyeonggi-Incheon Migrants’ Trade Union, which had asked the court to reverse the head of the Seoul District Labor Board’s rejection of the union’s application.

“Considering the intention of the Trade Unions Act, even foreigners who are not permitted to work fall under the definition of workers as defined by the Act. Consequently, they are free to form and join labor unions,” the court concluded.

“When workers are prosecuted and deported under the Immigration Control Act, this is only meant to prohibit the actual act of hiring foreigners who are not permitted to work. It is unlikely that this was intended to prohibit the various rights entailed by the work of foreigners who are not permitted to work or the various rights detailed in the Labor Relations Act.”

The only dissenting opinion was expressed by Justice Min Il-yeong. “It is a logical contradiction to claim that the state, which is required to take various measures including deportation to prevent the employment of foreigners who are not permitted to work, must also protect those foreigners‘ activity in labor unions,” Min said.

In April 2005, 91 foreign workers set up a labor union, but the Seoul Regional Labor Administration rejected their application for official status since several of the union members were in the country illegally. When the migrant workers’ union filed a lawsuit, the lower court found in favor of the Regional Labor Administration, but the appeals court sided with the plaintiffs.

The Supreme Court didn’t touch the case for eight years, during which time the first six leaders of the union were all deported from South Korea. Responding to criticism that the decision came too late, the Supreme Court explained that “putting in the effort to adequately review the case - namely, collecting documents, conducting research, and taking into account various circumstances - took a considerable amount of time.”

While the Supreme Court had previously said that it had shelved the case because it had a full docket and was busy dealing with more urgent business, this represents an admission that its decision did not derive solely from the legal review and the consciences of the justices but that the court was actually dragging its feet out of consideration for the government and other interested parties in the case. The delay also reflects the court’s conservative perspective on the issue of migrant laborers.

Labor and legal analysts have criticized the Supreme Court for abdicating its responsibility by allowing a case in which the issues were not complicated to drag on for eight years.

“It took eight years in the Supreme Court alone for the clear verdict to be issued in this case, but there are no signs that the court was actually grappling with the issues. For eight years, the court ignored the appeals of migrant laborers - who occupy the bottom rung of the South Korean economy - for improved working conditions,” said MINBYUN- Lawyers for a Democratic Society, in a statement issued on Thursday.

The Supreme Court‘s decision reaffirms the common sense view that, just as a criminal record does not prevent South Korean workers from joining a union, migrant workers are also guaranteed the three rights of labor even if they do not meet residency requirements under the Immigration Control Act.

“The court was seriously neglecting its duties by sitting on this simple decision for eight years,” one labor attorney said.

The Supreme Court also made clear that, though the ruling permits activity in labor unions, it does not give illegal migrants the right to find work or make them legal residents. The court also emphasized that when a labor union is established for political reasons or for other reasons that are not allowed by the Trade Unions Act, it cannot be recognized as a legal union.

Migrant laborers set up the labor union in 2005 and filed a lawsuit when the government did not accept their application. The Regional Labor Administration won in the lower court and then, after losing in the appeals court in Feb. 2007, it appealed to the Supreme Court.

The first justice presiding over the case, Kim Hwang-sik, became the director of the Board of Audit and Inspection the next year. The case was then handed to Yang Chang-su, who allowed it to sit on the shelf for the entire six years of his term as Supreme Court justice.

It was not until the third justice, Kwon Sun-il, took over the case last year that the legal review began in earnest and the case moved to the full bench. While other justices had sided with the dissent during the deliberations, they reportedly abandoned their opposition in the end because they could find no legal objections to the plaintiffs’ argument. In the end, the only justice of the 13 on the bench to cast a dissenting vote was Min Il-yeong.

While the Supreme Court was delaying its decision, the first six leaders of the union, including the one who had filed the lawsuit in the first place, endured hardships, with most of them being deported. Even after the appeal court ruled that the union‘s establishment should be recognized, it could not shake the stigma of being an illegal union. This case is an example of the legal maxim that justice delayed is justice denied.

Ten or so migrant workers who appeared in the courthouse welcomed the verdict. “We have been waiting for this moment for a long time. We had such a hard time with the deportation of union leaders while the government was repressing us as an illegal union. We will keep fighting the good fight for the rights of migrant workers,” said union leader Udaya Rai,.

By Lee Kyung-mi, staff reporter

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