How long will the government let Samsung have its own way?
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.