AHRC
News
FOR IMMEDIATE RELEASE AHRC-STM-192-2013 October 25, 2013
A
Statement from the Asian Human Rights Commission
SOUTH
KOREA: How long will the government let Samsung have its own way in denial of
the Constitution?
It
is alleged that the 'No-Union Policy' has been the management principle of the
Samsung group since it was established 75 years ago. This policy has allegedly
been perpetrated and has subsequently become public knowledge. According to the
information received, a lawmaker disclosed a document (called, "2012 S group's labour and
management strategy" in Korean, personal information in the
eleventh slide is withheld by author, hereafter 'the strategy document') on
October 14, which was used for an executive members' meeting in 2012 for the
group, containing Samsung group's strategies for the destruction of efforts to
unionise. The document is significant because it verifies this policy, is the
first written evidence of such a scheme, and it elaborates as to how the
management intends to thwart employees involved in any attempt to create a
union. This raises deep concerns and has drawn the immediate attention of the
Asian Human Rights Commission (AHRC).
The
strategy document contains detailed strategies on how to react to any attempt
to prepare for the establishment of a union, one of which says: "If a
situation where a union is established arises, collapse it as quickly as
possible with full capabilities. If the union is not collapsed, then kill it
(cause it to dissolve – explanation by author)." It also
advises that the management should daily collect and keep records of delinquent
acts of work performance or non-performance of the employees so that if anyone
attempts to form a union, the records can be used as evidence to either dismiss
them or take disciplinary action against them in order to avoid possible
charges of unfair labour practices. It also recommends profiling personal
information such as hobbies, friendships with other employees, personal assets,
and tolerance for alcohol. The document exemplifies the Samsung Everland Co. as
a company with the best practice. This company had made a "yellow union"
in late June with which it had made a collective bargaining agreement, which
provided a legal basis for denial of engaging in collective bargaining with the
newly established union: Korean Metal Workers' Union Gyeonggi Regional Branch
Samsung Local. As proved, employees involved have faced several legal cases from the company before and after
the Samsung Local was established in July 2011.
In
fact, trade unions exist at eight Samsung companies and most of them existed
before the companies were taken over by the Samsung group (which now has a
total of 27 affiliated companies). However, allegedly, most of these unions are
so called "yellow unions." Notably, the Samsung Local, established in
July 2011 at the Samsung Everland Co., has been continually targeted by the
Samsung group. Employees involved in the establishment of the trade union have
reportedly suffered from various forms of harassment and threats from the
company in an attempt to deter them from forming a union for any length of
time. According to the union activists such harassment includes illegal
surveillance, conciliation, threats, assaults, disciplinary action, dismissal,
legal action, and interference with distribution of the union's magazine.
Considering these circumstances, it is reasonable to believe that the Samsung
group has adopted and operated strategies such as those written in the strategy
document on more than one occasion. Reports indicate that investigations and
prosecutions are not carried out properly; it appears that those responsible
are not beyond the influence of the group. (see further: AHRC-STM-073-2012)
When
it comes to occupational diseases the relevant authorities, such as National
Labour Relations Commission and Korea Workers' Compensation & Welfare
Service, have been criticised for deciding in favour of the company and deciding
appeals on the advice of the relevant company of the group. This would mean
that the institutions that are supposed to function for the protection of
workers are in fact playing a role in delaying justice to the families of the
dead or those suffering occupational diseases. It is reported that more than 40
workers died and at least 100 workers, as of November 2011, have suffered from
blood cancers (leukaemia and lymphoma) in Samsung Electronics factories
producing semi-conductors, LCDs, mobiles, and other devices (please see further the report prepared by SNU Public Interest Legal
Clinic Source Book). Another obstruction in similar cases is that the burden of
proof that lies on the complainants who are workers. The Samsung Electronics
Co. has refused to provide any requested information claiming it would reveal
business secrets (see further a letter of allegation sent to relevant UN Special
Procedures on September 25, 2013). Despite the serious nature of these cases,
the families of those who died or suffer have been struggling for justice for
many years.
Failure
of the Korean government to adhere to their obligations to the UN Covenants
Being
a state party to both international covenants on civil and political and
social, economic and cultural rights, it is the obligation of the government of
South Korea to respect, protect, promote, and fulfil those rights. The right to
form a trade union and the freedom of association are enshrined in the article
8 of International Covenant on Economic, Social and Cultural Rights and article
22 of International Covenant on Civil and Political Rights respectively.
Obligations
are incurred by the commission or omission of an act by the government. In
order to ensure the rights are implemented, the government shall take steps by
appropriate means of legislative, administrative and judicial measures. Thus,
the government's obligation to protect includes a duty to prevent individuals
or third parties from violating those rights.
Accordingly,
if no action is taken against the unfair labour practices of the Samsung group
by the government, it will be highly likely that international human rights
bodies will hold the government of South Korea responsible for their lack of
due diligence to prevent the violations. Therefore, the contents of the
strategy document require immediate attention from an investigatory body to
take appropriate action, unless the government intends to disregard its
international obligations as well as any potential negative impact on foreign
investors in the future caused by the lack of due diligence.
Protection
of domestic legislation
In
fact, domestic legislation provides more protection of those rights. According
to article 33(1) of the Constitution "workers shall have the right to
independent association, collective bargaining and collective action." In
order for the realisation of these rights, article 81(1) of Trade Union and
Labour Relations Adjustment Act further prohibits employers from committing
acts that include, 'Dismissal of or discrimination against a worker on the
grounds that the worker has joined or intended to join a trade union, intended
to establish a trade union, or performed a lawful act for the operation of a
trade union.' However, in spite of this being codified it is not enforced,
rather it is ignored, particularly in the workplaces of the Samsung group. As
expected then, there has hardly been any action taken by the government against
the continued deprivation of rights guaranteed in the Constitution. This
dereliction should no longer be tolerated.
It
is necessary to recall the rapid development of the normative framework in the
field of business and human rights; the global companies will have less space
for their business if such discriminatory practices continue.
In
response to the release of the strategy document, the Samsung group
acknowledged on 14 October 2013 that the document was prepared for a seminar
for higher level officials of the group in early 2012 in order to discuss the
desirable culture of the organisation. It added that Samsung group has
maintained a no-union stance throughout its growth as a global company like other
companies (such as Apple, IBM, HP, Google and MS). In response to criticism,
the group noted, on October 20, that Samsung did not prepare
the document.
However,
there are important facts that the group has acknowledged: firstly, the group
encouraged and educated its high-level officials to violate the Constitutional
rights of their workers, other rights such as the right to privacy and against
discrimination of employees on grounds of their union activities; secondly
several cases currently at trials are enough to prove the strategies are indeed
carried out in accordance with the strategies mentioned in the document.
In
addition, the examples of the US based companies are actually misleading. The
fact is that the rights of workers written in the Korean Constitution are not
the same as those in the US Constitution. This evidence illustrates that the
rights of workers of the Korean Constitution are not applied to employees of
the group, since their rights are not as protected as one would imagine the Constitution
demands. Thus, if no investigation is carried out, it will only prove that a
policy and practice of an enterprise is above the law of the Constitution of a
country. Furthermore, in the United States, cases of discrimination against
union activists on grounds of their union activism and the criminal activities
of obtaining personal information, threat or harassment to deter them from
joining a union by the company are taken very seriously by the judiciary which
is not the case in South Korea.
Given
the above, the AHRC wishes to share its concerns and add its voice to those of
the local organisations asking for a special investigation to be carried out in
the workplaces of the Samsung group where Constitutional rights are ignored.
The AHRC urges the government to take appropriate steps to ensure the rights
enshrined in the Korean Constitution are enjoyed in its jurisdiction and to
fulfil its obligations to international human rights laws to which the
government is a state party. The AHRC will closely monitor, follow up, and take
further action on this situation as it deems fit. The Samsung group is
explicitly urged to declare to the public that those rights are acknowledged in
all affiliated companies of the group and the rights of workers enshrined in the
Constitution are enjoyed by its employees. The group must also declare
publically that their discriminatory practices against workers wishing to
create a union has ceased forthwith.
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About
AHRC: The
Asian Human Rights Commission is a regional non-governmental organisation that
monitors human rights in Asia, documents violations and advocates for justice
and institutional reform to ensure the protection and promotion of these
rights. The Hong Kong-based group was founded in 1984.
