hankyoreh

Kim Ju-young (sixth from left)

Calls from the South Korean labor community to ratify key International Labour Organization (ILO) conventions first and worry about legislation later are ringing louder after European Commissioner for Trade Cecilia Malmstrom departed with one last message urging the conventions’ ratification.

“If the core conventions are ratified with the agreement of the National Assembly, they would have the same validity as domestic law without requiring additional domestic legislation procedures, and any legal provisions in violation of the conventions would lose their validity according to the lex posterior principle,” noted Shin In-su, attorney and director of the Korean Confederation of Trade Unions (KCTU) legal center, on Apr. 11.

“It is absolutely possible to proceed with the ratification first and worry about legislation later,” Shin suggested.

This argument is based on Article 6-1 of the Constitution, which states, “Treaties duly concluded and promulgated under the Constitution [. . .] shall have the same effect as the domestic laws of the Republic of Korea,” and Article 60-1, which states that the National Assembly “shall have the right to consent to [. . .] treaties related to legislative matters.” The claim is that the ILO core conventions guaranteeing freedom of additional would have the same “standing” as domestic law in procedural terms once agreed to by the National Assembly and ratified by the president – meaning that the ratification could be carried out first, with any conflicting domestic laws amended afterward.

Among the laws related to core conventions are the Trade Union Act, which restricts the union membership eligibility of dismissed workers, and the Act on the Establishment and Operation of Teachers’ Unions and Act on the Establishment and Operation of Public Officials’ Unions, which were cited as bases for declaring the Korean Teachers’ and Education Workers’ Unions and Korean Government Employees’ Union as legally non-recognized unions.

Shin shared the same argument at the National Assembly that morning in a debate organized by the group ILO Emergency Joint Action and the National Assembly Labor Forum’s “Article 33 committee.”

“The administration and employers’ calls to ‘legislate first and ratify later’ are just excuses to refuse ratification of the core conventions,” he insisted.

Shin went on to recall a December 2018 National Human Rights Commission of Korea (NHRCK) recommendation for the Ministry of Employment of Labor to sign on to the core conventions.

“If the Minister of Employment of Labor has not taken any action toward the conventions’ ratification in the four months since the NHRCK recommendation – such as developing a ratification plan and referring it for Cabinet review procedures – then this is a dereliction of duty in deliberate violation of the law, including the NHRCK Act,” he said.

On Apr. 4, NHRCK Chief Choi Young-ae appeared before the National Assembly Steering Committee voicing the committee’s position that the conventions “can be ratified first, and domestic laws adjusted to conform to them.”

In a press conference that afternoon, the Federation of Korean Trade Unions (FKTU) said, “If the Economic, Social and Labor Council (ESLC) discussions on ratifying the core conventions come to nothing because of employer groups’ farfetched arguments, we will insist that the government make the decision to pursue ratification procedures first.”

Jeong Moon-ju, director of the federation’s policy headquarters, said, “If the president exercises his right to ratification, the National Assembly would simply need to amend the relevant laws within the next year.”

“We see initial ratification as a friendly catalyst for the National Assembly to amend the laws,” Jeong added. While the message assumed continuing discussions by the ESLC, it also stressed that the core conventions could be ratified first rather than carrying on with floundering discussions in the vain hopes of achieving legislative changes first. The ESLC reportedly planned to hold a plenary session of its labor-management relations system and practice improvement committee on the morning of Apr. 12 to decide whether to continue labor-management-government dialogue on the core conventions’ ratification.

In response to the arguments, the Ministry of Employment and Labor said, “The core conventions represent a very contentious issue, and it isn’t clear whether the National Assembly will consent to ratification first while the relevant laws have not been amended.”

“In practical terms, ratifying first and legislating later is a tall order,” the ministry said.

By Cho Hye-jeong, staff reporter

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