The International Labour Organisation, ILS and Labour Law in Asia (ASEAN) Jajoon Coue Specialist International Labour Standards and Labour Law

The International Labour Organisation, ILS and Labour Law in Asia (ASEAN) Jajoon Coue Specialist International Labour Standards and Labour Law

International Labour Organization (ILO) UN-associated Organization of Governments, Employers and Workers from 183 countries Mandate to promote social justice through ensuring rights and welfare in world of work as a matter of respect for individual dignity economic and social development international peace and stability

ILO - Means of Action Normative approach Adoption of international labour standards (ILS) Promotion of ratification of international labour Conventions Supervision of the application of ILS Knowledge Research, analysis and publications Conferences for information sharing Services Direct technical expert advisory services Projects

International Labour Standards Legal instruments (int l treaties) that express int l consensus on the measures or approach to adopt with regard to specific aspects of the world of work Conventions If ratified, they are binding under international law If not ratified, they influence national law and policy Recommendations Same authority as Conventions Not open to ratification More detailed guidelines

International Labour Standards Since 1919, 189 Conventions and 201 Recommendations adopted 77 Conventions and 76 Rs considered up-todate Subjects covered by ILS: FPRW, employment policy, OSH, maternity protection, social security, indigenous and tribal peoples, labour inspection and administration

Ratification in Asia Pacific Ratification average at about 66 % of world average, 40 % of OECD average 60 40 24-15 East Asia ratifications significantly lower than in the rest of Asia Many countries start to ratify again after long periods of «drought» Ratification record dominated by older technical Conventions, but fundamental Conventions are on the rise 6

Fundamental Principles and Rights at Work (FPRW) 8 Conventions are fundamental, setting standards on 4 principles at work fundamental to globalization (Declaration on Fund Principles & Rights at Work, 1998) freedom of association and collective bargaining elimination of forced labour abolition of child labour elimination of discrimination at work

Fundamental Conventions as of 1 March 2010 / ILO:183 Member States Year No. Official Title Ratifications 1930 29 Forced labour (174) 1948 87 Freedom of Association and Protection of the Right to Organise (150) 1949 98 Right to Organise and Collective Bargaining (160) 1951 100 Equal Remuneration (167) 1957 105 Abolition of Forced Labour (171) 1958 111 Discrimination (Employment (169) & Occupation) 1973 138 Minimum Age (155) 1999 182 Worst Forms of Child Labour (171)

(C. in force) 29 87 98 100 111 105 138 182 Brunei (1) 2008 Cambodia (13) 1969 1999 1999 1999 1999 1999 1999 2006 Indonesia (18) 1950 1998 1957 1958 1999 1999 1999 2000 Lao PDR (8) 1964 2008 2008 2005 2005 Malaysia (14) 1957 1961 1997 x 1997 2000 Myanmar (19) 1955 1955 Philippines (34) 2005 1953 1953 1960 1953 1960 1998 2000 Singapore (20) 1965 1965 2002 x 2005 2001 Thailand (15) 1969 1999 1969 2004 2001 Viet Nam (18) 2007 1997 1997 2003 2000

Governance Conventions 4 Conventions are considered priority, or governance conventions as, while not themselves expressing fundamental human rights, concern subjects that are essential to sound governing of labour market (areas of employment, inspection and dialogue) Convention Nos 81 and 129 Labour Inspection Convention No. 122 Employment Policy Convention No. 144 Tripartite Consultation

Governance Conventions 1947 81 Labour Inspection (139) 1964 122 Employment Policy (99) 1969 129 Labour Inspection (Agriculture) (47) 1976 144 Tripartite Consultation (123)

Brunei 122 81 129 144 Cambodia 1971 Indonesia 2004 1990 Lao PDR Malaysia 1963 2002 Myanmar Philippines 1976 1991 Singapore 1965 Thailand 1969 Viet 12 Nam 1994 2008

29 / 105 ~ all rat s except one (US/29) to come from the region 87 / 98 ~ barely any progress in the last decade, despite indications that more social dialogue is needed given a rise in labour disputes and a growing middle class with higher expectations of fairness many of the world s most populous nations have not ratified yet (China, India, Viet Nam, Thailand, Iran, Republic of Korea) 182 ~ 4 out 6 remaining rat s (notably India) to come from AP 10 out of 18 countries that have not ratified any of the governance C s come from the region (notably the Pacific) re technical Conventions, only MLC and OSH appear to generate some ratification interest

Regular supervision Based on article 22 of the Constitution Periodic reports: Two-yearly reports: 8 fundamental Conventions, 4 priority ones. All others have 5 year cycles Must reach the Office between 1 June and 1 September Es and Ws may make comments on application of ratified Cs Reports analysed and comments issued by the CEACR Complementary role played by ILC Committee

Committee on Freedom of Association Tripartite GB Committee established in 1951 to hear complaints of violations of F of A (RATIFICATION NOT REQUIRED) Complaints may be received Alleging specific violations of F of A From national W and E organisations with direct interest in the matter Without exhaustion of national procedures Issues recommendations, approved by GB No call for further examination Interim or definitive conclusions Request to be kept informed of progress on progress of recommendations Thus far over 2700 cases examined and disposed of

CFA AP cases Cambodia (Case No. 2318) and Philippines (2528, 2745) full judicial inquiries into allegations of harassment, violence against and murders of TU leaders, measures to build capacity and ensure independence of judiciary to ensure FOA rights, ensure TUs may exercise their rights in a climate free from fear of intimidation Korea Case Nos 1865, 2602 Dispatch work (creation of dual labour market system, with less FOA guarantees for precarious, dispatch workers) Fiji Case No 2723 Primary allegations concern repression of main national confederation, FTUC including arrest without charges of its leaders Thailand Case Nos 2634 and 2760 Discrete instances of anti-u dismissal, failure to secure redress through domestic courts

PART II: OVERVIEW OF LABOUR LAW IN ASIA

ILS Governance functions Social floor to globalization/int l trade No transactions below these standards Substantiate expectations of trading partners (EU, US) Alignment of target for universal ratification with the MDGs (2015) Provides substantive benchmarks, not just on FPRW but also with regards to technical areas, that inform elaboration of labour law and social dialogue

Summary overview The poor ratification records of Asian countries implies, unsurprisingly, that the LABOUR LAW (and of course practices) of many countries suffer from serious inadequacies, in respect of: INCORPORATION OF FUNDAMENTAL HUMAN RIGHTS AT WORK COMPREHENSIVE REGULATION OF IMPORTANT TECHNICAL AREAS (ex. OSH) POOR GOVERNANCE OF OTHER IMPORTANT ISSUES (most particularly outsourcing)

FUNDAMENTAL HR (labour law) Failure to give full expression to FPRW, as laid down in the core Conventions Forced labour often limited to, i.e. trafficking without capturing all other forms, esp. private commercial exploitation not involving trafficking (i.e. sweatshops) Not all grounds of discrimination in equality conventions set out in labour laws, especially political opinion (Singapore, Malaysia) Also, concept of indirect discrimination poorly understood and virtually absent, no policies on occupation segregation

FUNDAMENTAL HR - FOA Most national labour laws fail to give full effect to the entire spectrum of FOA rights set out in Convention Nos. 87/98 In several countries the restrictions are (1) enshrined in law, and (2) systematic and far-ranging Trade Union monopoly imposed by law (Vietnam, Lao PDR) Serious restrictions on right to organise that inhibit growth of TU movement (Malaysia, Thailand) Suppression of right to strike Lack of effective sanctions for anti-u discrimination

Labour Law technical areas Many labour laws primarily focussed on setting out regulations with regards to bread-and butter working conditions (i.e. hours of work, wages) Broad failure to comprehensively provide for such important areas as OSH, labour inspection (though interest in these areas is growing Malaysia, Pacific Islands for OSH, Vietnam for labour inspection) Generally, lack of active labour market policies (unemployment insurance, training and employment assistance measures)

Employment Contracts AGREEMENT between Employer and Employee to provide services in exchange for wages and observance of working conditions Ensure that services are procured following market principles, on the basis of choice and consent instead of force or labour discipline formal recognition of an ER, i.e. services being delivered according to employer s instructions lifting workers out of the informal economy facilitates dispute settlement allow to plan for expenditures or savings on both sides, initiating a virtuous cycle of rising standards of living organization of social protection, particularly social security

Functions (2) prevent disputes by creating clarity upfront about what both parties may expect from the employment relationship what are the causes of labour disputes? China termination (particularly SoE reform), deducting or delaying wages, benefits (pension, employment injury), employment relationship Japan (2009) termination, harassment and reduction in working conditions Thailand termination following steep increase in minimum wages Indonesia outsourcing, minimum wages, social security premiums

Flexibility Asia overview Many labour laws fail to provide satisfactory rules regarding employment flexibility Too rigid Vietnam, Indonesia Too flexible Malaysia, Thailand And lack comprehensive provisions on dispute settlement The dispute settlement mechanisms themselves, as attendant institutions, often lack capacity Philippines (labour courts backlog 2+ years) Thailand (Central Labour Court burdened by both lack of capacity/backlog, AND conceptual weaknesses (i.e. lack of well-developed notion of discrimination)

Subcontracting/Outsourcing ASIA CONTEXT Virtually no provisions on subcontracting throughout the region Philippines D.O. 182 limits use of subcontracting to 20% in each enterprise Indonesia regulations limiting use of subcontractors Lack of regulation contributes to Inferior wages and working conditions for subcontracted workers, downward pressure on all working conditions Reinforces informality Diminishes exercise of FPRW forced labour aggravated, FOA rights weakened

Subcontracting/Outsourcing (2) NO comprehensive coverage by international labour standards Nearly impossible to regulate all circumstances + reduced need where subcontracting happens in good faith Social dialogue thus becomes indispensable aspect of governance subcontracting Ex. Belgium, following EU directive on outsourcing of 2007, establishes national CA on subcontracting Allows unlimited subcontracting/temporary contracts Equal protection re working conditions for precarious workers Measures to assist precarious Es to find full-time work

Present situation MANY COUNTRIES in ASEAN region have recognised or are now recognising need for substantive reform of labour laws Ongoing or just completed reform processes in Mongolia, Vietnam, Lao PDR, Myanmar, Indonesia, Pacific Island countries FACTORS DRIVING REVISION OF LABOUR LAWS Fulfillment of int l obligations (Ratified ILS, trade expectations) Increasing demands, and RECOGNITION, of constituents themselves, that BETTER GOVERNANCE of labour market is important and necessary) Vietnam strikes, Indonesia /Cambodia wages, Cambodia TU rights

Union interventions? Actively participate in supervisory processes to call attentions to deficiencies in labour law and practice (Art. 22, CFA) Constitutional right of social partners to actively send reports, and democratically supervise application Constitutional obligation of Govts to send copies of reports on ratified Cs to social partners Several complaints procedures available to Unions, including CFA Ongoing capacity-building activities to enable articulation of workers interests in increasingly complex policy environments (i.e. subcontracting)

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