Issue 12: Three Basic Labour Rights Current status 64. Since the CESCR’s third Concluding Observations of 2009, the Constitutional Court and the Supreme Court of the ROK have showed some significant changes in their practices of applying the criminal penalties of obstruction of business for workers’ strikes, as described below: a. The Constitutional Court (in Decision No. 2009Heonba168 on April 29, 2010), in relation to the petition for unconstitutionality of Article 314 (1) (obstruction of business) of the Criminal Code, stressed that an industrial action, even if it inevitably causes interference with business, is a fundamental right under the Constitution and, therefore, additional evidence is required to establish that the industrial action constitutes a crime of interference with business, although the Court upheld its position that the provision is constitutional. b. The Supreme Court (Full-bench Decision No.2007Do482 on March 17, 2011) ruled that a strike may be established as a crime of obstruction of business only when the two additional conditions of ‘suddenness of the strike concerned’ and ‘serious confusion or enormous damage due to the strike’ are satisfied and that the burden of proof is on the prosecution. 65. The CCPR made the following recommendation in its 4th Concluding Observations: a. The Committee is concerned about the undue restriction on the freedom of association of public officials. It is also concerned about cases of refusals to register trade unions on the ground that their membership includes dismissed employees. (Para. 54) b. The State Party should withdraw its reservation to Article 22 of the Covenant, and enable all parts of the labour force, including public officials, as well as employees who have been dismissed, to join trade unions. (Para. 55) 66. As in February 2016, the current status concerning the ROK’s ratification of the eight International Labour Organization (ILO) fundamental conventions is as given below: Principles Freedom of association Prevention of forced labour Prevention of child labour Antidiscrimination Eight Fundamental Conventions Freedom of Association and Protection of the Right to Organise Convention (No. 87) Right to Organise and Collective Bargaining Convention (No. 98) Forced Labour Convention (No. 29) Abolition of Forced Labour Convention (No. 105) Minimum Age Convention (No. 138) Worst Forms of Child Labour Convention (No. 182) Equal Remuneration Convention (No. 100) Discrimination (Employment and Occupation) Convention (No. 111) Ratification No Yes 67. As in August 2016, the unionization rates for regular workers and non-regular workers are, respectively 16.5% and 2.6%. The low level of unionization among regular workers is problematic, but this is much more serious among non-regular workers. Questions suggested 68. Major trade unions in public organizations, including the Korean Government Employees’ Union and the Korean Teachers and Education Workers Union, have not been recognized as lawful trade unions and, 16 / 25