Defending workers' rights in Asia What are the problems particular to the region/ to particular countries within the region? Continuing dominance of the informal sector and, as a result, of unregulated/poor working conditions and work relationships While globalization has produced an expansion of availability of formal-sector manufacturing jobs in export-oriented production facilities (and production for burgeoning middle classes) in countries such as China, Vietnam, Thailand, Indonesia, Bangladesh, India and others, there are problems of compliance with domestic laws as well as human rights norms. Reasons for this include triangular/ disaggregated labor relationships, as brands/ retailers/ importers in North America and Western Europe (as well as in neighboring countries) contract for production rather than using facilities that they own and operate. Small, unstable facilities have also been setting up in large numbers, particularly in industries that have low capital requirements, such as garment stitching. Irresponsible employers in these sectors often struggle to pay wages in a timely manner, underpay legally mandated benefits, and fail to compensate for overtime work. Conditions of work are frequently defined across borders, either directly through the setting of labor policy at the level of company headquarters overseas, or indirectly via the impact of policies set overseas (such as pricing or lead time for delivery of goods and services, which may lead to a downward pressure on wages or compulsion upon workers to engage in excessive and involuntary overtime) Countries relax enforcement of national laws as an incentive for investors, through bilateral investment treaties, the operation of export processing zones (Turkey, Bangladesh among countries where unions cannot operate freely in EPZs), or company-specific agreements (e.g. Daewoo in Pakistan, Case 1726 of ILO's Committee on Freedom of Association)
Flexibilization of employment relationships to allow for short-term contractions, extended periods of probation, seasonal work, and reductions in social security protections (retirement benefits, employer contributions to health insurance schemes) However: Domestic and international advocacy organizations, national and global unions, legal systems throughout Asia, intergovernmental organizations, governments and governmental monitoring mechanisms, international institutions, and responsible corporations have begun to arrest these downward trends in measurable ways, and to hold violators accountable. Litigation outside the region (civil and criminal) In the US, there have been a number of lawsuits filed using the Alien Tort Claims Act to address instances of corporate complicity, in instances of gross violations of labor rights. (violence against Coca Cola bottling plant workers in Turkey, Exxon Mobil's activities in Aceh are two current cases; most will be familiar with the recently settled suit against Unocal involving allegations of forced labor in Burma) Litigation filed in France to block an asbestos-contaminated ship from being sent to Alang in India, where workers with no health and safety equipment engage in the hazardous work ship-breaking. Punitive damages were sought, in addition. Australia is one among several jurisdictions to introduce provisions for corporate criminal liability for activities overseas, under a theory of organizational liability : corporations have been held liable for human rights violations in Asia, for example, in instances where it was considered that the 'corporate culture' tolerated, contributed to, or led to the criminal activity.
Domestic enforcement of legal protections Phenomena to note here include: Inspections: the rise in capacity, independence and integrity of labor inspectors and labor commissioners, in some cases with the assistance of technical expertise from international bodies such as the ILO, and/or funding from institutions such as the Asian Development Bank. It is especially worth pointing to the improvements in the labor inspectorate in Cambodia, India and Thailand, with independently-collected statistics pointing to the levying and collection of substantial fines from employers for late and/or incorrect payment of wages, underpayment of statemandated benefits, and overtime violations. Courts: The development of fast-track industrial relations courts (also funded in some cases through the ADB and through 'rule of law' programs at the level of international development agencies, particularly from European countries) is also noteworthy. The capacity of these courts to deal promptly with complaints, in some cases without requiring workers to be represented by lawyers, has also promoted better and more prompt compliance with the law. In Bangladesh, the ADB funded the establishment of alternative dispute resolution mechanism to address workers' complaints. Developments in the law: It was the case that unscrupulous employers (both domestic and foreign firms) were able to take advantage of a legal vacuum in newly liberalizing and privatizing Asian economies such as China and India: Originally, legal frameworks reflected the dominance of stateowned enterprises, strong national borders and heavily-restricted flows of investment across borders. These laws did not necessarily address the changed political economy. However, a web of legislation is emerging to address the complexities of globalization and its regulation, with respect to the impact on these nations' workers. The best example of this would be China's new Employment Contract Law and Employment Protection Law.
National trade unions in Asia, partner unions in other countries, and Global Union Federations While it has been common to assert that unions affiliated to political parties (as are the majority of unions throughout Asia) are incapable of genuine defense of workers' rights, recent events may show that affiliated union are taking steps to adapt to a changing reality. A global struggle led by the AITUC, a union affiliated with the Communist Party of India, at a Honda manufacturing facility, to secure reinstatement of illegally terminated workers; the ACFTU's active role, along with a wide range of worker rights advocates, in the process of revising labor law in China to ensure greater protections for workers; the Sri Lankan EPZ union organizing thousands of women garment workers to protest sexual harassment and inaction by the global brands purchasing from these factories these are some examples of recent national mobilizations. It is surely the case that unions of all kinds are leaving sectarian issues and past struggles behind and are beginning to take up the role of articulating, more independently than before, the voice of workers. There is an increasing trend towards union autonomy, and more focused representation of workers. In addition, it is possible to point to increasing partnerships between national unions in Asia and unions in other countries, often in defense of migrant workers, or for assistance with a particular employer. The Finnish union federation has intervened, at the request of unions in several Asian countries, to resolve problems at Nokia assembly facilities, for example, and Bangladeshi garment workers' unions sought to partner with US unions to improve the situation of Bangladeshi migrant workers in Jordan. Increasingly, Global Union Federations have negotiated global agreements with multinational corporations that have brought significant gains for Asian workers and unions. The ITGLWF's 2007 framework agreement with Spanish garment corporation Inditex (which includes the brands Zara and Mango), covers workers in the supply chain and not just direct employees, and has led to significant improvements in working conditions in a number of garment facilities, especially in South Asia.
Trade frameworks have also offered opportunities for cross-border cooperation in support of workers' rights While the idea of a Social Clause in the WTO is no longer imaginable (and indeed faced strong opposition from unions in South Asia, particularly in India and Pakistan), several bilateral trade agreements with Asian countries have labor rights provisions that have proved meaningful. The US- Cambodia Bilateral Trade Agreement (1999) for example, produced a number of heartening outcomes. In the beginning, it was a fairly simple mechanism: the quantity of garments that Cambodia could export to the US was directly directly dependent on the degree of compliance with international labor standards in Cambodian garment factories. The ILO was given the responsibility of monitoring conditions at factories under the agreement. However, anticipating the phaseout of the quota system regulating trade in garments and textiles, the ILO established a broader program that included dialog with brands to persuade them to keep sourcing from Cambodia, a focus on conditions in other industries in the country, and the establishment of an arbitration program to improve labor-management relations. The US labor movement has made targeted interventions through the US Trade Representative to challenge worker rights violations in Asian countries, in a number of crucial ways. These include: bringing pressure to bear on Bangladesh to reverse its 1986 decision to suspend the application of the Industrial Relations Ordinance in its export processing zones (which meant that workers in the EPZs had no right to organize or bargain collectively). This pressure included numerous petitions to the US Trade Representative seeking to revoke the trade privileges Bangladesh received under the Generalized System of Preferences. The GSP requires compliance with core labor standards. challenging workers' rights violations in China through a Section 301 petition to the USTR that cited this as one of the factors that kept the cost of labor in China artificially low. The petition
asserted that this was an unfair trade practice. Partnerships among NGOs, consumer campaigns, voluntary corporate codes of conduct International campaigns focused on improving conditions for Asian workers, through cooperation between NGOs, unions, consumer groups etc. have included The Asia Floor Wage effort, urging that garment workers be paid a minimum of US$3 a day, to address problems of depressed or non-existent national minimum wages in the region. The struggle has involved a coalition of groups, including Jobs with Justice in the US, the Clean Clothes Campaign's network throughout Europe, and partners throughout the garmentproducing countries in Asia. The campaign's strategies have included attempts at state legislation and local ordinances in importing countries, meetings with socially responsible investors, organizing on US campuses through groups such as United Students Against Sweatshops, and negotiations with brands who strive to be industry leaders in matters of corporate social responsibility. Reporting and shaming: groups have had significant traction on issues such as child labor in export-oriented soccer ball production in Pakistan, or poverty wages on Sri Lankan tea plantations, through reports researched and written with local partners, and then publicized through the Western media and consumer groups. Such campaigns have led to brands and governments committing to programs for sustained improvement and independent monitoring of compliance. The involvement of international organizations such as the ILO has been very important, as evidenced by the reference to the monitoring project under the US-Cambodia BTA. The ILO has been central to efforts to set minimum standards for, and bring uniformity to, frameworks that distort the operation of national labor laws, such as export processing zones or bilateral investment agreements.
Emerging frontiers in terms of regulation and government intervention: The most important issue, in terms of the need for greater regulation, is certainly the protection of migrant workers within Asia and/or from Asia: The governments of sending countries have been shocked by the news of, for example, the Indian migrant welders and pipefitters brought to Mississippi through grossly exploitative recruitment contracts, or of Indonesian domestic workers living in slave-like conditions in Saudi Arabia. Host countries in Asia, in some cases, remain intransigent: while the Sri Lankan government and others have protested against the situation facing migrant workers in Malaysia (the law requires that guest workers sign multiple-year contracts and surrender their passports to their employers, for example) Malaysia has refused to act. It is hoped that greater international consensus will lead to governments making some of the changes that migrant worker advocates have called for: reforming sponsorship visa systems that make workers' status dependent on employment with a specific employer, and do not permit labor mobility greater regulation of labor recruitment agencies, and either the elimination or standardization of recruitment fees greater access for migrants to legal assistance, courts and to social services