Press this guitar and tears will pour forth: A ballad of labour rights abuses in South Korea.
There is no doubt South Korea has earned its title as one of the Four Asian Tigers, alongside the other economic success stories of Singapore, Taiwan and Hong Kong. The four have industrialized their economies remarkably quickly and maintained a significantly strong growth rate between the early 1960s and the 1990s, and the Republic of Korea is the 12th largest global economy today (Forbes, 2013). This meteoric rise can be attributed to a few key factors, but one of the less commonly cited ones is the “rather unique social and political arrangement between the state, capital and labour.” In fact, this factor can be said to have been critical to the nation’s economic success as it would not have been possible without a “strict enforcement of state corporatism in which… labour was pacified through control and coercion”. (Kim, 2000)
This paper seeks to examine the state of labour rights in South Korea through several key factors, such as historical background and the resultant societal views towards labour movements, along with the gap between legislature and court rulings and actual state and employer action. 2 relevant case studies will be examined in detail in order to better understand these factors and their impact. Aside from the case studies and the prevailing labour legislation in the country, another factor that will be briefly examined in this paper is the impact of the ideology and policies of the political leadership on court rulings regarding labour abuse. This is easier observed through long-running cases such as that of Cort Guitars, where the duration of the case has seen the administration of several different Presidents, for example.
Methodology and literature review.
In many issues of labour rights violations, conflicting accounts of specific details exist and on occasion one must rely on potentially exaggerated information from victims. However in the cases examined in this paper will not be focusing on quantitative specifics but rather on qualitative analysis of the collective impacts and implications of the incidents involved. Evaluation of South Korean legislation will be based on translations in a corporate context. Academic literature on the subject of labour in South Korea relevant to the areas of focus of this paper will also be consulted, along with information from company-specific labour movements and NGO information on the relevant cases.
During the Park Chung-Hee regime from 1961 til his assassination in 1973, the newly powerful state did not bode well for Korean labour rights. A history of violent clashes between leftist and rightist labour unions between 1945 and 1947 (Koo, 2001) gave state authorities had strong grounds for suppressing labour activities for security purposes. This caused workers to associate being involved in unions with possible persecution by the state, a mentality that would later be exploited by several employers in cases of labour abuse which we will visit later in this paper. The military junta took an export-oriented view of industrializing the economy, and sought to improve the investment climate in order to attract foreign investment. Earlier business failures of foreign firms had resulted in layoffs, plant closures and delayed wages and subsequent disgruntled workers. In order to prevent such occurrences, the regime took on a repressive labour policy, banning strikes in foreign-invested firms in 1969 under the Provisional Exceptional Law Concerning Labour Unions and the Settlement of Labour Disputes in Foreign Firms. In 1971, in response to upcoming economic and political challenges (in the form of partial U.S. military withdrawal from South Korea and the ending of the Cold War in Asia), Park declared a state of emergency and proclaimed a Law Concerning Special Measures for Safeguarding National Security. This new law suspended 2 of the 3 basic workers rights guaranteed in Korean labour laws passed in 1953: the right to collective bargaining and the right to collective action (the third being the right of free association). This effectively paralysed labour activism since workers were free to form unions but stripped of any effective course of action. In 1972, the Measure Dealing with Collective Bargaining under National Emergency, which extended the list of industries which belonged to ‘public interest’ and therefore prohibited from union activities. It also placed more restrictions on industry-wide union activities. As a finale to these repressions, October 1972 saw the new constitution conferring an ‘eternal presidency’ on Park with unlimited executive competence. In short, labour rights and union activism was slowly repressed by three things; a repressive authoritarian regime which saw unions as a threat, prioritizing of foreign business over labour rights, and an overall mindset of associating union activities with political persecution that carried over since the days of the rightist/leftist union violence and the subsequent crackdowns.
Case of Cort Guitars
Cort Guitars/Cor-tek was founded in South Korea by Park Yung-Ho in 1973 and is one of the largest guitar manufacturers in the world, producing not only in-house Cort guitars for other international brands as well, such as Ibanez, Squier and G&L. One of the first alleged instances of labour rights abuse was in 1988 when Cort retrenched approximately 50 workers, claiming financial hardship when records actually showed profit (Cort Guitar Workers Action, 2009), thus instigating the workers to try and form a union for the sake of job security. Since 1997 there have been a number of alleged worker mistreatment and complaints of hazardous working conditions, such as inadequate safety measures when handling wood with added preservatives and other treatments such as chromated copper arsenate or pentachlorophenol (McCann, 1998), working in poorly ventilated rooms with fumes and solvent (rooms were kept unventilated and dry so as to preserve the wood quality of the guitars, albeit in a less advanced manner such as situating it in a basement without windows as opposed to more advanced and expensive methods such as humidity regulating devices). Other complaints from the workers involved include asthma as a result of the polluted air(without being issued adequate safety masks), hearing difficulty due to constant exposure to loud machinery (without hearing protecting devices) and unreasonable overtime outside of regular shift hours (without any overtime pay or compensation). A particular employee’s hands required surgery due to injuries sustained from working with a wood grinder. The recurring trend in all these individual cases was the company’s refusal to provide any compensation. There were also several cases of verbal and physical abuse, driving a particular worker to commit suicide by hanging herself behind the factory, still clad in her work vest complete with the “Cort” logo in large print. This culminated when, in response to union actiivity from 1988 onwards and attempted to negotiate for safe working conditions as well as adequate salaries, Cort began to transfer production to China and Indonesia. A factory in Dahlian was opened in 1997. Between then and 2006, groups of workers were pressured to resign while the remaining ones were made to train new Chinese and Indonesia workers. In 2007 the Cort workers themselves formed a union in an eventually futile effort to protect their job security. A year later in April 9 2008, Cort shut down the Daejon factory without warning; workers found themselves padlocked out of the workplace and were made to sign forced resignation papers. Initially promising to rehire non-union members once union members had resigned, the closure declared permanent a few months later on July 10. Another production plant in Incheon had all of its workers dismissed on April 12 the same year.
While Korea’s National Labor Relations Commission found the dismissal of union workers to be illegal and Cort were also found to have violated the Act on Industrial Health and Safety, Cort Guitars did not budge on their position and have thus far refused to offer recompense to the dismissed workers. In order to raise awareness for their plight, retrenched employees took to playing small concerts, holding hunger strikes, organizing rallies and spreading online petitions, even contacting the American company Fender Musical Instruments, a partner of Cort Guitars. The workers had a glimmer of hope in being reinstated when the Seoul High Court under Hon. Mun Yong-seon declared the layoffs to be invalid on the grounds that the company had been turning a financial profit (The Hankyoreh, 2014). However, these were soon dashed as the Supreme Court in February 2012 under then-Justice Ahn Dae-hee overturned the high court ruling, on the basis that “impending management crisis” could serve as grounds for lay-off. The Supreme Court also dismissed the resulting appeal on June 12 in the same year. Clear violations were committed by the company of Article 23 of the Universal Declaration of Human Rights (UDHR):
(1)Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
(4) Everyone has the right to form and to join trade unions for the protection of his interests.
This can be observed in the clearly unfavourable working environment and mass forced resignations as mentioned in the case. Despite this, after a 7 year struggle the labourers had lost their appeal and their dismissals were ruled as legal by the highest court in the land.
Case of Ssangyong Motor Company
Ssangyong Motor Company is a smaller rival of Hyundai and Kia and the fourth largest South Korea-based automobile manufacturer, born out of a merger between Ha Dong-hwan Motor Workshop and Dongbang Motor Company in 1963. It was acquired by Indian Mahindra and Mahindra Limited in 2011, who now owns a 70% stake in the firm. The main factory resides in Pyeongtaek, while 2 more are in Vladivostok and Kremenchuk, Ukraine.
In 2009, Ssangyong attempted to retrench 2600 workers as part of company restructuring, sparking protests from the workers which escalated to the point of violent clashes between protestors and riot police, attempts by workers to occupy factories by force and 13 suicides suicides amongst the retrenched employees and their family members (The Hankyoreh, 2014). In the same year, an appeal court ruled that the layoffs were unjustified because it was not definite that the retrenchments were vital to the company’s survival. Judge Cho Hae-hyeon stated that Ssangyong did not make significant effort to prevent or minimize the necessity of cutting jobs (The Hankyoreh, 2014). It was also acknowledged that the accounts provided as justification for the layoffs had been modified to favour the company’s stand (profits slashed and losses exaggerated). While 153 workers were reinstated and others given favourable retirement packages with benefits, this small turn of events still left the grievances of the many remaining workers left jobless by the layoffs unaddressed. Furthermore, 15 union leaders from a Ssangyong labour union were arrested in 2013 for participating in protests with 14 of them still imprisoned as of April 2014, with one of them being released on bail. (Amnesty International, 2014). Under South Korean criminal law Penal Code 314, employers can heavily fine and seize official assets of unions for “Obstruction of Business (Industriall-Union, 2014). The Ssangyong arm of the Korean Metal Workers Union demanded a parliamentary investigation into the case but did not have much faith in their concerns being addressed. Therefore the union’s Ssangyong chapter head Kim Deuk-jung ran as an independent candidate during the 2014 parliamentary by-elections. He only gained 5% of the vote in the Pyeongtaek district race in Gyeong-gi Province.
Again, the unjustified retrenchments of 2600 workers displayed violations committed by the company of Article 23 of the Universal Declaration of Human Rights (UDHR):
(1)Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
The future outcome remains to be seen but for the moment it appears that both the judicial and political route has not been successful in addressing the workers’ grievances or obtaining their much-desired reinstatement.
Labour laws in South Korea
In both cases, the issues were highlighted in court but there was insufficient remuneration towards the workers whose labour rights had been violated. In this section I will briefly examine specific instances of human rights violations in the aforementioned cases followed by the related laws and regulations in order to determine if it is an issue or lapse within the national legislation itself that enables some instances of human rights violations to occur, or if it is sufficiently enforced in order to act as a deterrent should any said violation occur. Having done so, some areas which have been proven to be a cause for concern will be highlighted as suggestions for revisions or tighter enforcement.
The first issue examined will be that of the forced overtime without pay in the case of the Cort Guitar workers. To date of 1st November 2013, while there is a 40-hour work week for employers with five or more employees, there are no restrictions on working time or mandatory breaks regarding shift workers. Nor are there any legal requirements for employers to provide leave for non-work related illnesses, only work-related injuries and illnesses. This would explain the continued unregulated overtime forced onto the workers and their relatively docile acceptance of it, at least in legal terms amongst other factors that will be included later.
Another issue to be explored would be the casual mass layoffs in both cases and the ease of which they were carried out, pointing to a lack of job security in both industries, and possibly others. This idea of “redundancy dismissal of workers for urgent managerial needs” came up in the 1997 reforms of employment protection in Korea (Gyeong and Kang, 2012). This was brought up in the Cort case as a way to justify the layoffs without prior warning during the 2012 Supreme Court hearing as mentioned earlier. Before that it was not such an easy thing to terminate employee contracts even for financial reasons. As mentioned earlier, while the pro-business approach of the government was still prevalent, economic growth during the early 1980s had been successful enough for it not be a major cause of concern. Reforms were introduced after the economy began to slow down in the latter half of the decade. Regulations regarding non-regular employment, or part-time/temporary contracts were also eased. This would have relaxed the strictness of protecting regular employees, which could be a legal factor in retrenching large numbers of workers without a strong justification in doing so.
Enforcement of existing protective legislation or proper complaint channels within the frameworks could be another issue that requires attention. For example, in the Ssangyong case, despite the court ruling that the layoffs were unjustified and acknowledging the doctoring of the accounting records of the company in order to fake its financial position, a significant amount of the aggrieved workers were not compensated adequately. This issue of ‘soft’ enforcement can also be observed in the social wage contracts between the FKTU (Federation of Korean Trade Unions) and the KBF( Korean Businessmen Federation) which were introduced in 1993 and subsequently ignored since many companies either circumvented a loophole in the target wages by not observing them for bonuses and allowances, or ignoring them completely (Chang, 2002).
As for the issue of complaint channels, it is hard for the casual observer to imagine that the substantial amount of workplace harassment mentioned above went without any complaints to a higher authority or statuary board or sorts, that the victims simply chose to grit their teeth and bear it, or in the case of one particular woman, resorted to suicide as mentioned above.
In Korea’s fourth periodic report to the International Covenant on Civil and Political Rights on 19 August 2013, it was published that “sexual harassment itself [was] not subject to punishment, but some sexual harassment cases constitute criminal acts under the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof”. This might have had factored in the lack of formal complaints about the workplace harassments that occurred.
Overall there are indeed some causes for concern within the related legislation and the strictness of the enforcement. This can be mostly viewed as a dissonance between what constitutes as legal and what constitutes as a breach of human rights as per the UDHR (clear breaches of the Declaration in the case of Cort Guitars was ruled as legally justified by the Supreme Court, for example). The other area of concern is a gap between the law (in the form of a court ruling) and the resulting outcome. This can be observed in the court acknowledgement of Ssangyong’s unjustified mass layoff and doctoring of financial records, and the lack of a satisfactory ruling or at least a ruling that sufficiently addressed the grievances of the retrenched workers, as demonstrated by their continued protest and attempt to place a candidate within parliament in order to do so via their own means. Besides a revision of some of the related legislation, perhaps some retroactive legal or state action is in order so as to compensate the afflicted victims whose rights had been violated.
Impact of historical background and resultant societal attitudes.
The violent clashes between rightist and leftist labour unions between 1945 and 1947, a sour taste of violence was the legacy of the early labour union activities, something which many would rather forget (Kim, 2000). This conceivably set the stage for how society in general would view the idea of unions in general, reflected by the clear bias and distaste that Cort Guitars had for anyone involved with unions. Aside from the initial bargain with the retrenched workers to rehire all non-union members once all union members had resigned, they also allegedly told several workers whose employment they had terminated that their dismissal was a direct result of their involvement in union-related activities (Cort Guitar Workers Action, 2009).
Another way this social attitude towards the idea of fighting for labour rights via unions can also be observed by the generally docile attitude of the afflicted workers towards their unfair treatment. As mentioned earlier, the violent history of labour unions in the 1940s and the subsequent harsh crackdown on labour unions in favour of businesses and employers by the Park regime helped to create and perpetuate an unfortunate association of union-activities with possible state persecution, that the state would take the side of business and employers regardless of the issue. This idea of favouring business over workers, that the country’s economic success would be compromised if labour unions were to be given more negotiating power with employers, is limited not just to employers and employees but possibly other aspects of society such as law enforcement and even policymakers. Possible actions to be taken in this area would include both more education of workers on their labour rights as well as an attempt to revise the societal attitude towards labour rights in general.
Impact of political leadership on court rulings
In this section, I will briefly discuss the political leadership, in terms of the identity, background and attitude towards labour-related issues of the President throughout the duration of both the Ssangyong and Cort issues. Park Chung-hee’s regime from 1963 to 1979 saw a severe repression of all labour rights as covered earlier, a clear reflection of his background (a military officer who seized power via a coup d’etat) and attitude towards labour-related issues (strongly pro-business to attract investment and grow economy, saw labour unions as a threat to security). Therefore state actions appear corroborative with the then head of state.
President Roh Moo-hyun served 2 terms from 2003 to 2008. Before taking office, he had a career as a human rights lawyer and had earlier fought for the case of students who had been tortured for suspected possession of illegal media in 1981 (The Hankyoreh, 2014). His background as a human rights lawyer was further reflected when he became President. Some attempts were made to expand social welfare, amongst other things, but he met fierce opposition from the conservative Grand National Party. However it is difficult to draw any sort of meaningful correlation in this case. During the term of a pro-human rights President, Cort Guitars’ management had been violating labour rights anyway, as the factory closures and mass layoffs occurred in 2007. Similarly, less than a full year after President Roh’s term was the occurrence of the mass layoffs by Ssangyong Motor Company. However it could be conceivably argued that the strong obstacles faced by President Roh in the form of the opposition parties in parliament had prevented any significant progress in making legislation any more human rights friendly. This would mean that political gridlock is a powerful enough barrier to human rights even with a pro-human rights head of state. The issue will not be discussed further in this paper aside from conceding that political leadership was insufficient to prevent labour rights abuses. Finally, President Lee Myung-bak, who served from 2008 to 2013, was the CEO of Hyundai Engineering and Construction (themselves ridden with several accusations of labour rights violations and repressing labour unions). While not repressive of labour and unions anywhere near the sense of the Park Chung-hee regime, it is interesting to note that many of the pro-employer (anti-labour union) court rulings in the cases discussed in this paper occurred during his presidential term. With all these cases in mind, it would be noteworthy to study the further developments of labour movements and labour rights during the term of Park Chung-gee’s grand-daughter Park Gyun-hye, herself oft accused of being a ‘daughter of a dictator’.
In both cases of Cort Guitars and Ssangyong Motor Company, clear instances of human rights violations occurred without a meaningful resolution to the matter. They are hardly isolated cases, as major companies such as Hyundai and Samsung have also been dogged by labour disputes and protests (Samsung infamously has a “no unions” policy, regarding negotiations with union members). As explored above, there are several key factors for the state of labour rights in South Korea. Gaps in the national legislation and possibly less-than-strict enforcement of court rulings, the political will of national leaders and policy makers with regard to this admittedly sensitive issue, and the socio-political legacy of labour union violence and the Park regime’s subsequent violent repression of labour. I believe the last factor to be the most potent.
Union activities are viewed as causing trouble and disorder, disrupting the smooth flow of economic prosperity. A mindset like this one is limited not just to the employers and employees in question but to all facets of society, which could possibly attribute to the eventual results of the court rulings in both of the cases mentioned in this paper and also the failure of Ssangyong chapter chief Kim Deuk-jung’s failure to win a seat at the 2014 parliamentary by-elections (a possible reflection of societal attitudes towards union members but difficult to make a conclusion without detailed information about voter demographics). More importantly than legislation or political will, an entire society’s attitude should be the top priority that requires correcting, especially regarding an issue as widespread and universal across any society like labour. After all, while 1979’s violent suppression of the YH Trading Company’s young female activists was a key in sparking a nationwide political movement which eventually brought about the downfall of President Park’s regime. But the 700 strikes and 897 conflicts that were rapidly organized by labourers were put down in a similar fashion after the government imprisoned union leaders in concentration camps, increased the role of the state as a mediator in labour conflicts and forbade third-party intervention to exclude students and religious groups (Chang, 2002). This demonstrates a penchant for authoritarian rule over labour protests and the relatively silent acceptance by those not directly involved, despite the overthrow of an authoritarian regime. As is the case with many important changes, it appears to be a long and arduous journey fraught with considerable obstacles before any significant results come into fruition. Until then, the oppressed continue to sing their song of sorrow.