The Military Special Command Unit 911 in Cambodia firing live ammunition at garment factory workers asking for the increase of the minimum wage has been internationally condemned. The firing led to the deaths of four persons and injuries to at least 39 more.
Nonetheless, on a subsequent day, the military arrested 23 people, including human rights defenders and charged them with Article 218 (intentional violence with aggravating circumstances) and 414 (intentional damage with aggravating circumstances) of the Penal Code. In addition, the Garment Manufacturers Association in Cambodia (GMAC) announced that it would take a legal action against the workers for damages.
Not long after, it is reported that one female worker was shot dead and at least 15 were injured on January 9 in the forcible dispersal by the police against around 5,000 workers from the Export Processing Zone located in southern port city of Chittagong, Bangladesh. The workers reportedly protested against a unilateral decision made by factories on the decrease of an allowance. In response, the police used live ammunition causing human casualties.
Generally, inexpensive labour forces could be a main lure for investors. In addition, an agreement excluding the application of fundamental rights of workers such as the right to strike or association could be another initiated either by a government or investors. This has come to no surprise but, in fact, is fairly predictable. What has appeared obvious in both cases is generally understood to outsiders as the suppression of workers and unions. However, there are much deeper problems that are hardly given space for discourse which normally initiated by a union that is freely associated. The situation will likely deteriorate further due to the failure of the functions of the state institutions in those countries, along with rampant corruption.
It would be an understandable reaction from the investors to ask for the protection of facilities and put the situation under the control of both governments. Like others, factories owned by South Koreans made such requests from the governments. But the response from the governments of both countries was found to far more excessive than that was necessary. Therefore, there is no doubt that the law enforcement agencies should be held accountable for the excessive use of force in the process of forcible dispersal of protestors. One which would make it worse is the plan of the GMAC to bring workers on strike to court for compensation of damages. It may be necessary to elaborate further on how and where this idea came from.
South Korea has been a notorious place where employers oppress trade unions and workers by taking all possible measures. The main cause for this is due to a series of decisions made by the courts in favour of employers. Article 314 (obstruction of business) of the Criminal Act has been broadly interpreted and applied to nullify the rights of workers such as the right to freedom of association, collective bargaining and action enshrined in the Constitution. Furthermore, the interpretation by the Constitutional Court in 2010 and Supreme Court in 2011 confirmed that the rights of workers are being intruded upon.
The UN Special Rapporteur on the right to freedom of opinion and expression has also noted with concern that the article itself is problematic in his report in March 2011. Repeated recommendations made by the International Labour Organization (ILO) have also pointed out this problem. Nevertheless, based on the conviction decision by courts, it allows employers to file a civil lawsuit asking for compensation for damages against union activists and workers on strike. For instance, at the end of 2013, the lower courts ruled workers from SsangYong Motor Co. who joined the strike to pay 4.6 billion Korean won (appx. 4.6 million USD) and workers from Hyundai Motor Co. to pay 9 billion Korean won (appx. 9 million USD) as compensation respectively. It is a clear message that workers on strike shall be responsible for the company’s economic loss during the period. From these precedents, the Korea Railroad Corporations filed a case against its union activists and members that went on strike for compensation for damages amount to 7.7 billion Korean won (appx. 7.7 million USD) on December 20, 2013.
Historically, this article was introduced at the time of when Korea was a colony of Japan when Japanese employers needed a legal ground to suppress the demands of workers that mostly consisted of Koreans. After Korea became independent in 1945, South Korea has accomplished certain level of economic growth. However, the article was incorporated as a criminal offence in the Criminal Act that has continued to be applied to suppress workers and trade unions. The only change is that the employers are now Korean as are subsequent legal justifications that are interpreted by the court. From such long decades of practices and court decisions in the country, it has come as no surprise that overseas factories owned by South Koreans reportedly make initiations either by themselves or through other ways to file a criminal suit against union activists and workers on strike.
It is however highly risky because it may trigger a more deteriorating situation which adversely affects the business in those countries at the end. This is because it gives more space for those institutions to be misused for private, not public use and many examples can be found since people in those countries have suffered from the malfunctioning of state institutions that have caused serious violations of human rights and rampant corruption. If these are known to investors whose subsequent action contributes to the misuse of institutions, not only criminal liability at the end but also anti-Korean sentiment will emerge as strongly as it did against the Japanese colonialists. This will create far deeper problems than just economic loss caused by workers’ strikes as claimed by factory owners. It may work in that way inside South Korea but it only portrays the fact that an ill bird fouls its own nest.
