On January 20, 2021, a Panel of Experts issued its Report on labor matters arising under Article 13.4.3 of the EU-Korea Free Trade Agreement, which was formally ratified in December 2015. In Article 13.4.3 of the Agreement, the parties committed to respect, promote, and realize – in both law and practice – the four fundamental labor rights underlying the 1998 ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up, including freedom of association and the effective recognition of the right to collective bargaining.
The European Union (EU) requested consultations with the Republic of Korea on December 17, 2018. After the parties were unable to reach a mutually satisfactory resolution, the EU requested on July 4, 2019 that a Panel of Experts be established. In its Panel Request, the EU identified several provisions in the Korean Trade Union Act (TULRAA) which it argued were inconsistent with Korea’s obligation to respect, promote, and realize fundamental labor rights in law and practice under Article 13.4.3 of the EU-Korea FTA. The thrust of the EU’s argument was that provisions in the TULRAA excluded persons who are self-employed, are unemployed, or have been dismissed from their jobs from the definition of “worker,” thereby effectively denying their rights to freedom of association and collective bargaining as derived from the ILO Constitution. The EU also challenged a provision in TULRAA which adopted a discretionary certification procedure for the establishment of trade unions.
In its Report, the Panel of Experts found that the parties to the EU-Korea FTA assumed new obligations when they entered into the free trade agreement. Specifically, the EU and Korea assumed a legally binding obligation to commit to respect, promote, and make real the labor obligations that arise from their membership in the ILO as defined in the 1998 ILO Declaration. Noting that accepted ILO legal doctrine defines the scope of the fundamental right of freedom of association to include all workers without distinction of any kind, the Panel of Experts found that the definition in the TULRAA was clearly more limited – and therefore not consistent with the obligations Korea assumed under Article 13.4.3 of the EU-Korea FTA. The Panel found that the EU failed to make its case that certification procedures for the establishment of trade unions under the TULRAA are inconsistent with Korea’s Article 13.4.3 labor obligations, however.
The Panel of Experts also examined the argument made by the EU that Korea had not ratified the eight core ILO Conventions that underly the 1998 ILO Declaration as required by the FTA. Noting that since 2017, the Korean Government had submitted bills for the ratification of ILO Conventions on Freedom of Association (No. 87), Collective Bargaining (No. 98), and Forced Labor (No. 29), the Panel observed, “What has happened for the past three years seems to indicate tangible, though slow, efforts by Korea with respect to the ratification of the ILO Conventions at issue” (Panel Report, para. 287). While the Panel described Korea’s efforts to ratify all 8 core ILO Conventions as, “less-than-optimal,” it found that these efforts did not fall below the legal standard in Article 13.4.3 of the EU-Korea FTA and Korea had not failed to “make continued and sustained efforts” toward ratification of the core ILO Conventions.