ICFTU - Annual Survey of Violations of Trade Union Rights

Transcription

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ICFTU
annual
s u r v e y
o f
INTERNATIONAL
v i o l a t i o n s
CONFEDERATION
OF
FREE
TRADE
UNIONS
o f
t r a d e
u n i o n
r i g h t s
Period under review: January to December 2005.
The International Confederation of Free Trade Unions (ICFTU) is a Confederation of national
trade union centres, each of which links together the trade unions of that particular country.
It has 236 affiliated organisations in 154 countries and territories on all five continents, with a
membership of 155 million, 40 per cent of whom are women. It has three major regional organisations, APRO for Asia and the Pacific, AFRO for Africa, and ORIT for the Americas. The ICFTU
is also a partner in “Global Unions” together with the Trade Union Advisory Committee to the
OECD (TUAC) and the ten Global Union Federations (GUFs) which link together national unions
from a particular trade or industry at international level.
ICFTU
Boulevard du Roi Albert II, 5, bte 1, B-1210 Brussels - Belgium
Tel. 32-2-224.02.11 - Fax 32-2-201.58.15
E-mail: internetpo@icftu.org - website: www.icftu.org
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Contents
I C F T U
FOREWORD
annual survey
O F
5
EIGHT ILO CORE LABOUR
STANDARDS
7
AFRICA
AMERICAS
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12
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15
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18
21
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24
25
26
27
29
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35
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45
46
47
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50
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60
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108
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125
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139
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145
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164
Introduction
Algeria
Angola
Benin
Botswana
Burkina Faso
Burundi
Cameroon
Central African Republic
Chad
Congo, Democratic Republic of
Congo, Republic of
Côte d’Ivoire
Djibouti
Egypt
Equatorial Guinea
Eritrea
Ethiopia
Gabon
Gambia
Ghana
Guinea
Guinea Bissau
Kenya
Lesotho
Liberia
Libya
Madagascar
Malawi
Mauritania
Mauritius
Morocco
Mozambique
Namibia
Nigeria
Rwanda
Senegal
South Africa
Sudan
Swaziland
Tanzania
Togo
Tunisia
Uganda
Zambia
Zimbabwe
Introduction
Argentina
Bahamas
Belize
Bolivia
Brazil
Canada
Chile
Colombia
Costa Rica
Cuba
Dominican Republic
Ecuador
El Salvador
Guatemala
Guyana
Haiti
Honduras
Jamaica
Mexico
Nicaragua
Panama
Paraguay
Peru
Trinidad and Tobago
United States of America
Venezuela
V I O L A T I O N S
O F
T R A D E
U N I O N
R I G H T S
2 0 0 6
ASIA AND
THE PACIFIC
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216
224
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228
233
235
237
242
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248
253
258
260
264
266
269
278
Introduction
Australia
Bangladesh
Brunei
Burma
Cambodia
China, People’s Republic of
Fiji
Hong Kong (SAR) China
India
Indonesia
Japan
Korea, Democratic People’s Republic of
Korea, Republic of
Laos
Macau (SAR) China
Malaysia
Maldives
Nepal
Pakistan
Philippines
Singapore
Sri Lanka
Taiwan
Timor Leste (East Timor)
Thailand
Vietnam
EUROPE
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284
285
291
294
296
298
300
301
303
305
307
309
312
314
316
317
320
323
325
329
332
334
335
336
341
344
Introduction
Azerbaijan
Belarus
Belgium
Bosnia and Herzegovina
Bulgaria
Croatia
Cyprus
Czech Republic
Estonia
Georgia
Germany
Hungary
Kazakhstan
Lithuania
Malta
Moldova
Poland
Romania
Russian Federation
Serbia and Montenegro
Slovakia
Spain
Switzerland
Turkey
Ukraine
United Kingdom
MIDDLE EAST
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350
351
357
360
362
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366
367
368
370
371
372
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375
Introduction
Bahrain
Iran
Iraq
Israel
Jordan
Kuwait
Lebanon
Oman
Palestinian Authority
Qatar
Saudi Arabia
Syria
United Arab Emirates
Yemen
APPENDIX
378
ILO conventions 87 & 98
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Foreword
I C F T U
annual survey
O F
V I O L A T I O N S
O F
T R A D E
U N I O N
R I G H T S
2 0 0 6
2006 is an historic year for the international trade union movement. A new
trade union international will be created in November, bringing together some
200 million workers from around the world. This is the last year that the
Survey will be published in the name of the ICFTU, as it will cease to exist
when its member organisations become part of the new international. We will
be stronger and more united than ever before, and we will use that strength to
fight together for all workers struggling for their rights against exploitation
and oppression. This Survey give a measure of how big that task still is.
Reading through this year’s edition, I was struck by the appalling level of
brutal violence meted out to workers who have merely tried to stand up for the
right to decent work, including the right to fair pay, acceptable working hours
and safe conditions.
Workers were killed for their trade union activities in every single continent.
Colombia as usual ensured that the death toll was highest in the Americas,
with 70 deaths, a significant reduction compared to last year’s total of 99, but
still a terrible indictment of the government’s failure or lack of good will to
protect its workers. In the Middle East, at least three Iraqi trade unionists
were the targets of hired assassins, as were four trade unionists in Asia, all in
the Philippines. Elsewhere deaths were the result of the brutal repression of
workers’ protests and strike action, such as in Bangladesh and South Korea in
Asia and in South Africa and Djibouti in Africa. In Europe, a trade unionist in
the Russian Federation was killed in unexplained circumstances. Hundreds of
other workers were left injured when police used tear gas, batons and rubber
bullets against striking workers, particularly in Asia and Africa. Many of those
strikes were technically illegal, because the law of many countries makes it
virtually impossible to hold a legal strike.
The right of workers to freely establish and join organisations of their own
choosing was regularly violated. In addition to those countries where the law
does not recognise the right to form trade unions, such as Oman, Saudi Arabia
and Burma, there are others where it imposes a trade union monopoly, such as
China, Egypt and Syria. In other cases governments try to coerce workers into
joining the government-supported union, notably in Belarus and Moldova.
Employers often used intimidatory tactics to prevent their workers forming
trade unions, including mass dismissals, particularly in Latin America in the
export processing zones and on the banana plantations. In the north of the
continent, union busting remained rife in the United States, while WalMart
carried those practices over into Canada.
Governments are often guilty of restricting the rights of those they directly
employ. Several countries do not allow their civil servants to join trade unions,
notably in Africa, in Lesotho, Eritrea, Ethiopia and Gambia. In Canada,
provincial governments further undermined their employees’ trade union rights,
including by imposing collective agreements by law.
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In Australia the government severely restricted the trade union rights of all
workers, bringing in new legislation that imposes heavy restrictions on
organising and bargaining rights.
The extent to which women are the victims of violations of basic trade union
rights is becoming increasingly clear. Restrictions on public sector workers’
rights to organise, bargain collectively and take strike action often apply to
teachers and the health sector (Canada is a case in point). In the private
sector, textile and electronics factories, particularly those in the export
processing zones of Asia and Central America, are usually fiercely anti-union.
All these sectors have a predominantly female workforce. Furthermore, a
closer look through the survey shows that many of the targets of violence and
even murder were women trade unionists, such as in Colombia and the
Philippines.
Migrant workers are another vulnerable group, particularly of course in the
Middle East where in many countries they form the majority of the workforce
but have few rights, if any. In Asia too, migrant workers faced serious
difficulties. The government of South Korea refused to recognise the newly
formed migrant workers’ trade union, whose president was arrested and
savagely beaten by police, while in Thailand migrant workers were threatened
and blacklisted for their union activities.
I wish to pay tribute to all those workers who have made sacrifices in the fight
against oppression. I would like to end on a positive note, taking heart from
the World Bank’s latest World Development Report published in September
2005 which acknowledges the valuable role that trade unions play in the
equitable distribution of economic growth. Long may that continue.
Guy Ryder
General Secretary
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I C F T U
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The eight core labour standards of the ILO
(International Labour Organisation)
It is indicated in the text whether a country has ratified
the following conventions :
• N° 29
Forced Labour (1930)
• N° 87
Freedom of Association and Protection of the Right to Organise (1948)
• N° 98
Right to Organise and Collective Bargaining (1949)
• N° 100
Equal Remuneration for Work of Equal Value (1951)
• N° 105
Abolition of Forced Labour (1957)
• N° 111
Discrimination in Employment and Occupation (1958)
• N° 138
Minimum Age for Employment (1973)
• N° 182
Worst Forms of Child Labour Convention (1999)
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I C F T U
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One of the most striking features of the violations that took
place in Africa is the failure of governments to respect the
rights of their own employees, both through the restrictions in
law on organising, collective bargaining and strike action, and
repression in practice. No unions are allowed in the public
service in Lesotho, or in the civil service in Eritrea, Ethiopia or
Gambia. The other is the severe limitations that the law places
on the right to strike in both the public and private sector,
which in many cases make it virtually impossible to hold a legal
strike, and the often violent repression of that right, on three
occasions with fatal results.
In Ethiopia the ban on trade unions extends to teachers in the
public sector and the Ethiopian Teachers’ Association (ETA)
continued to be a target of harassment. Nine ETA members
were arrested and two badly beaten following a meeting to discuss world teachers’ day, on another occasion their offices were
searched, many were arrested and two leaders were charged
with high treason.
In Botswana several leaders of the local government service
association reported spying by security forces, including phone
tapping, while the president of a teachers’ union was visited in
his home by the Military Intelligence service. The president of
the civil service trade union platform of the Democratic
Republic of Congo was arrested further to a pay dispute and
spent one month in prison.
Strike action was frequently harshly repressed. In South Africa,
for example, police used stun guns, rubber bullets and tear gas
to deal with workers’ strikes and protests. Fifteen truck drivers
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Africa
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were wounded by rubber bullets when police fired on a demonstration by drivers calling for higher pay. Another four truck
drivers were injured when security guards fired shots at demonstrators during a strike at a cargo company. When security
guards used tear gas and drove a van at striking metalworkers,
seven union members were injured and one had to be hospitalised. In Morocco ten trade unionists were injured, some
seriously, by police following a sit-in, while in Tunisia strikers
were beaten up at a textile company by management-hired
thugs.
Workers were killed for their strike action on at least three
occasions. In South Africa two were killed and one critically
injured in April at MCE Engineering when their employer
opened fire during a wage dispute. Then in September security
guards opened fire on striking farmworkers from the Kenhym
Estates, killing one and injuring four others. In Djibouti a member of a drivers’ union was killed and many seriously injured in
September during a demonstration by striking minibus and lorry
drivers that was broken up using tear gas and bullets. They had
been protesting at arrests and beatings that had taken place earlier in their strike.
Djibouti was notable not only for its violence against the drivers, but also for its harsh repression of the port workers strike,
in which 170 workers were arrested and 70 dismissed. The
trade union rights situation in the country continued to deteriorate, and at the end of the year a new draft labour code was
adopted that will further restrict rights. One article provides
for the suspension of any employee who takes up a union post.
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The situation remained difficult for trade unions in Nigeria
where leaders of the Nigeria Labour Congress continued to be
the target of harassment. The General Secretary John Odah had
his passport seized as he tried to board a plane for Switzerland
to attend the ILO Conference. In the oil industry 170 workers
were sacked for asking for better conditions, and the management of a drilling company urged armed police to attack workers during the strike. The government also introduced new legislation that further restricts the right to strike, and bans
strikes in a broadly defined list of essential services.
The Zimbabwe Confederation of Trade Unions also continued to
face constant harassment, and as usual had a long list of violations to report. The President, General Secretary and Women’s
Advisory Council Secretary all faced death threats, several
leaders faced physical attacks, many were arrested, ZCTU
offices were raided and ZCTU meetings and events were disrupted by “agents provocateurs”. One teachers’ union leader
was tortured and telecommunications workers protesting at
their unfair dismissal for strike action were beaten.
Finally, there was no improvement in Sudan where the single
national centre remains under government control and all independent union activity is banned. Similarly, no independent
trade unions are allowed in Egypt or Libya, which both have a
single national centre.
2 0 0 6
Africa
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Africa
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Algeria
POPULATION: 32,900,000 / CAPITAL: ALGIERS / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
Freedom of association is often flouted in the public sector, and also in the private sector,
where workers are subjected to many abuses. Defending their right to strike, teachers
embarked on a serious struggle with the authorities.
§
TRADE UNION RIGHTS IN LAW
Freedom of association - with limitations: Workers have the right to form trade unions, however prior authorisation must be
obtained from the government before a union can operate legally. The law bans unions from associating with political parties and
receiving foreign funding. To be registered, unions must send the authorities a declaration announcing their establishment and must
obtain official recognition within 30 days.
A union must recruit at least 20 per cent of workers in an enterprise in order for it to be recognised as a representative body.
The courts are empowered to dissolve unions that engage in illegal activities.
Right to strike restricted: The right to strike is enshrined in the Constitution. The law requires a secret ballot of all the workforce
to be held in order to call a strike. A minimum warning of one week is also required. The provision of a minimum service so as to
maintain production, together with the continuation of activities essential for preserving the safety of people and goods, is necessary.
The government may prohibit a strike if it feels it may cause a serious economic crisis. A minimum level of public services must be
maintained during public sector service strikes. In accordance with the State of Emergency, decreed in 1992, any action taken with the
intention of either obstructing the operation of establishments providing a public service or impeding traffic or freedom of movement in
public places, may be considered a subversive or terrorist act, liable to a penalty of up to 20 years' imprisonment.
Collective bargaining recognised: The right to collective bargaining is guaranteed in law for all officially recognised unions, and
discrimination by employers against union members is prohibited.
Export processing zones (EPZs): There is a move to establish EPZs in the country.
TRADE UNION RIGHTS IN PRACTICE
Organising obstructed in the public sector: The SNAPAP reports that its members have regularly faced harassment and
persecution. Two applications to form a national confederation have been opposed by the government. They have also been prevented
from setting up branch unions, notably in hospitals. Organising has also been obstructed through the use of sanctions, threats and
dismissals in local administrations, in the water sector, public works, customs and in civil defence. Member unions have also frequently
been prevented from holding general assemblies.
The authorities sometimes avoid the registration of other unions, by simply refusing to acknowledge receipt of their registration
applications.
The smaller, independent unions face problems because they do not usually represent over 20 per cent of workers in an enterprise.
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The fact that temporary contracts are becoming the norm in the public sector is making joining a union more difficult.
Lack of organising in the private sector and the informal economy: Both the private sector and the informal economy have
grown significantly as a result of the liberal policies currently being implemented, and are synonymous with a tragic degradation of
working conditions, non-application of labour law, a lack of social protection and a lack of union rights. Many private companies may,
in practice, consider themselves exempt from the requirements of labour law, and only obliged to consider the short-term profit they can
gain from the labour of their employees. Often employers do not officially register the majority of their workforce, thus depriving them
of all their acquired rights. Such workers do not have a minimum wage, social security cover, or pensions. In the textile industry, where
most workers are women, this lack of security makes it hard to organise any unions since the workers are afraid of losing their jobs if
they join a union.
VIOLATIONS IN 2005
Continuation of the 2004 legal proceedings against members of the SNAPAP: In January 2004, the following trade
unionists were arrested at the University Hospital (Centre Hospitalier Universitaire, CHU) of Oran: Mohamed BOURAADA, Bachir EL
HIMER, Abderahim AID, Rabia AMOUR AISSA, Emir Abdelkader CHAIB DRAA and Mohamed Seghir BENKHALFA. The first two,
who are respectively the General Secretary and an activist from the health union (Union nationale de santé et de la population, UNSP),
which is affiliated to the SNAPAP, had been accused of insulting and issuing death threats to the hospital manager. In 2005, it was
reported that the hospital manager had eventually decided not to pursue his charges and the case was dropped.
USTO teachers prevented from striking: At the end of May, teachers at the Science and Technology University of Oran (USTO)
went on strike in pursuit of a long list of demands. During the dispute, which lasted two weeks, the Rector of USTO lodged three
summary procedures against CNES-USTO, the USTO branch of the Higher Education Teachers’ Council (Conseil national des
enseignants du supérieur), for holding an illegal strike. The court ruled the strike illegal on all three occasions, and CNES-USTO issued
three separate strike notices. Determined to secure respect for their rights, the teachers decided not to organise exams and the students
refused to sit them until the industrial dispute had been positively resolved. Eventually the administration of USTO agreed to start
negotiations in accordance with the relevant social legislation. The speedy acceptance of some of the teachers’ demands enabled the
strike to be suspended.
Judicial harassment of striking teachers from the ESBA: On 12 June, teachers from the Higher Education School of Fine
Arts (ESBA) went on strike in support of a long list of demands. The strike was voted by the majority of members of CNES-ESBA, the
ESBA branch of the Higher Education Teachers’ Council (Conseil national des enseignants du supérieur), in a secret ballot attended by
an ESBA manager, who co-signed the report on the ballot. Despite the fact that the CNES-ESBA had respected the procedures, at the
end of June, the school’s administration lodged a summary procedure against the union for holding an illegal strike to the
administrative chamber of the court. The chamber stated that it was not competent to rule on the matter. Despite that judgement, the
legal harassment continued when the management of the ESBA then appealed to the Council of State, which ended up rejecting their
charge, on 13 September, and confirming the initial ruling made by the administrative chamber.
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Angola
POPULATION: 14,500,000 / CAPITAL: LUANDA / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
While the law gives unions the right to operate and prohibits discrimination against union
members, these rights are not always enforced. The government indirectly controls the
Union of Angolan Workers and independent unions operate under restrictions.
§
Government approval required: The Constitution provides for the right to form and join trade unions, although government
approval is required. Unions have the right to affiliate internationally.
Strike restrictions: The right to strike is recognised, but strictly regulated. The law does not contain any effective measures to prohibit employer retribution against strikers, and the government can force them back to work under various pretexts. The law prohibits
strikes by the armed forces, police, prison workers and fire fighters.
Collective bargaining is recognised in law, and discrimination against union members is prohibited, but these rights are not consistently
enforced.
Rights not respected: In practice, the emerging process of democratisation and restrictions on civil liberties, still in place after the
civil war, make it difficult for unions to enforce their rights or to carry out any activities not approved by the government.
Power of assembly restricted in practice: Although the Constitution provides for the right of assembly, in practice, the government has restricted this. While the authorities routinely grant applications for pro-government assembly without delay, those for protest
assemblies, including trade union demonstrations, are rarely granted.
Discrimination: The government exercises indirect control of the National Union of Angolan Workers (UNTA) and several UNTA
leaders still maintain close links with the ruling MPLA party. The two independent organisations, the CGSILA national centre and the
SIMA (maritime workers) union, are discriminated against and provincial governments make it difficult for SIMA to register branch
associations.
Collective bargaining curtailed: Collective bargaining is restricted in practice. The government is the country’s biggest employer
and, through the Ministry of Public Administration, Employment and Social Security, sets wages and benefits on an annual basis. This
involves consultation, but no negotiations with the unions.
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Benin
POPULATION: 7,100,000 / CAPITAL: PORTO NOVO / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
The government has still not introduced the changes it promised to bring its legislation into
line with international labour standards.
§
Government approval: The Labour Code recognises the right to form and join trade unions. At present, unions must deposit their
statutes with the Ministry of the Interior to obtain legal recognition, or they will be penalised with a fine. The government agreed to
modify the Labour Code so that unions would not have to seek government approval before being legalised, but has not yet done so.
Seafarers excluded: Seafarers are excluded from the Labour Code, as they are covered by the Merchant Marine Code, which does
not grant them the right to organise or to strike. The government told the ILO that it would give seafarers the right to form unions and
to go on strike, through changes to the Code.
Limitations on the right to strike: The right to strike is recognised in both the public and private sectors. Three days' strike notice
is required and unions must say in advance how long a strike will last. The law allows the government to requisition civil servants in the
event of a strike. It also allows the government to declare a strike illegal for specific causes such as a threat to social peace and order.
Strikes prevented: Some government departments prevent civil servants from going on strike by using the leeway given to them in
law to draw up long lists of employees who may be requisitioned.
Parallel unions: The managers of some companies in the private sector discourage trade unions and support parallel unions instead.
There have been reports of trade unionists being dismissed for their trade union activity.
Botswana
POPULATION: 1,800,000 / CAPITAL: GABORONE / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
§
The year was marked by sharply deteriorating labour relations, mainly because of the
extensive restrictions on union freedom imposed by the Trade Disputes Act. The bitter
dispute continued at Debswana Mining which sacked 461 workers, while public service
union leaders strongly suspected their phones were being tapped.
Workers have right to form unions: All workers, with the exception of police officers, the Botswana Defence Force and the Prison
Service are allowed to join unions. Workers may not be fired for union-related activities.
Union registration compulsory: Registration of trade unions, via the Registrar at the Ministry of Labour, is compulsory. The law
requires a minimum of 30 employees in order to form a trade union and the Trade Disputes Act empowers the Labour Minister to deter-
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mine the conditions for union membership. If a trade union is not registered, union committee members are not protected against antiunion discrimination. Unions are allowed to affiliate to international trade unions and receive funds from outside the country without the
Minister's approval.
Collective bargaining allowed: Collective bargaining is allowed, provided the union represents at least 25 per cent of the workforce.
New law extends government powers: The Trade Disputes Act, passed in May 2004, has extended government powers over
industrial relations. The right to strike is recognised, but workers must first submit their demands to complex arbitration procedures,
which unions say always result in strikes being declared illegal. Sympathy strikes are prohibited.
The Act sets out the procedure to be followed once a dispute is deemed to exist: first, the matter is submitted to the Commissioner of
Labour, who, if s/he decides that a dispute exists, refers the matter to mediation or failing that, to an Industrial Court, composed of
Ministry of Labour officials.
Export processing zone: The same labour laws apply to Botswana's export processing zone as to the rest of the country.
While workers (with the exceptions noted above) have the right to organise, in practice this is restricted, as each government sector has
its own rules.
There is very little collective bargaining, as few unions meet the 25 per cent representational criteria and only the mineworker and diamond sorter unions have enough organisational power. The government has used legislation to order strikers back to work.
Employers’ attitudes: Although labour legislation has improved in many areas over recent years and the government has ratified all
ILO core labour standards, the long established practices of employers who have regularly ignored workers’ rights appear to be taking
time to wear off. The government is also either unable or unwilling to confront employers, especially those in the mining and financial
sectors.
The Trades Disputes Act is deeply unpopular with the unions. “State control over the mediation and arbitration process has sown deep
mistrust and the workers rarely expect a fair hearing,” says the Botswana Federation of Trade Unions (BFTU), which is calling for the
labour laws to be redrafted to replace the employer-favoured legislation. The government has said that it is working on a new labour bill,
but unions complain that as proposed, it will not improve current hostile employer-worker relations.
VIOLATIONS IN 2005
Background: Employer-government-union relations became increasingly acrimonious, with the unions complaining that existing legislation does not protect workers from summary dismissal or ill treatment from bosses. In May, the BFTU and the Public Service
Workers’ Association held a series of demonstrations to press for changes in the law. In June the Botswana National Productivity Centre
(BNPC) called for a new Tripartite Forum (government-employer-unions) to improve labour relations and stem the country’s falling productivity. Botswana has been one of the African countries where the economy continued to grow and the political system remained stable
over the year.
Strikers dismissed and anti-union leaders intimidated at Debswana: The long-running dispute at the Debswana diamond
operations continued. In January 2005, Debswana (which is jointly owned by Debeers and the government of Botswana) barred children
of the sacked miners from attending the company sponsored schools and forcibly evicted the sacked miners from their company houses.
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In 2005, 461 miners were sacked, including the Botswana Mining Workers’ Union (BMWU) Chiarman, Chimbidzani Chimidza, and
General Secretary, Jack Tlhagale, for taking part in what the government deemed was an illegal 13 day strike, during AugustSeptember 2004.
Debswana management took the case to the Industrial Court to press for maximum penalties against the sacked strikers in March, but
the Court threw it out saying it had no jurisdiction. Debswana followed this in April by trying to intimidate the sacked BMWU leaders
by summoning them to internal hearings.
Harassment of national union leader: The new BFTU General Secretary, Tebogo Makale, found himself the target of a harassment campaign to prevent him carrying out his union activity.
In June, the BFTU presented a formal complaint to the ILO about the Debswana sackings and similar dismissals at Bamangwatso
Concession Limited (BCL), (the latter took place in November 2004). On August 20, the members of the BFTU marched to President
Festus Mogae’s office in Gaborone to demand that the sacked Debswana and BCL workers be reinstated.
Mining leaders forcibly evicted: BMWU leaders, Chimbidzani Chimidza and Jack Tlhagale, were forcibly evicted from
Debswana’s largest diamond mine at Orapa on 4 October by security guards after they arrived to conduct elections for BMWU’s branch
committee at the site.
The 461 dismissed strikers were still not reinstated by the year’s end.
Salaries deducted for public sector strikes: The Public Service Workers’ Association complained in June 2005 that the government was deducting money from the salaries of civil servants who participate in industrial action.
Special branch spying on union leaders: Botswana Unified Local Government Service Association (BULGSA) President, Pelotshweu Baeng, complained of security forces spying, citing what he believed was a phone tap of his landline and that of other BULGSA
leaders. Botswana Federation of Secondary School Teachers (BOFESETE) President, Eric Ditau, was visited at home by members of
the Military Intelligence and he also believed his phone was being tapped.
Burkina Faso
POPULATION: 13,800,000 / CAPITAL: OUAGADOUGOU / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
§
The restrictions on the right to strike were strengthened through the adoption of a new
Labour Code. That did not, however, prevent some 60,000 civil servants from starting a
three-day general strike on 15 December, shortly before the investiture of the re-elected
President, Blaise Compaoré. This was the second general strike for the year and was in support of a demand for a 25 per cent increase in wages and pensions, and a reduction in taxes.
The right to form trade unions is recognised in law. Only army personnel, the police and other security personnel do not enjoy that right,
but this is not considered a violation of international labour standards.
Right to strike – a new Labour Code restricts its scope: The right to strike is recognised. However, the government has the
right to requisition civil servants in the event of a strike. This can be applied to all civil servants, not just those who exercise authority in
the name of the state or those whose work, if interrupted, would endanger life or safety. The ILO has recommended to the government
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that it should limit its powers to requisition public workers to these very specific circumstances. In addition, some state employees are
banned from striking, notably uniformed personnel. The new Labour Code bans solidarity strikes and political strikes.
Strike ban for magistrates: At the end of October 2001, the Minister of Justice announced that, under a major reform of the justice system, magistrates would no longer be allowed to go on strike. This followed a strike by magistrates in April 2001.
Collective bargaining: Unions have the right to engage in collective bargaining for wages and other working conditions.
Labour Inspectorate: The new Labour Code removes the power of the Labour Inspectorate to decide the implementation arrangements for conciliation agreements. That authority has been transferred to the industrial tribunals.
In practice, trade unionists are often subjected to intimidation. In recent years, some union leaders have been transferred away from
their membership base and trade union meetings have been raided. There have been reports that the authorities have sought to undermine or weaken trade unions, especially during strike action. In several cases, the privatisation of state enterprises has been undertaken
without adequate trade union consultation, if at all. Protest action has often resulted in workers and their union representatives being
victimised, suspended or dismissed. Media workers, especially journalists, have also faced considerable difficulties.
Burundi
POPULATION: 7,300,000 / CAPITAL: BUJUMBURA / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
The first half of 2005 saw increasing numbers of dismissals of trade unionists, together with
the cancelling of Labour Day, the suspension of the legal representation of COSYBU,
attacks on the freedom of movement of its General Secretary during the International
Labour Conference, and various other violations of trade union rights.
§
Freedom of association: The Labour Code allows workers to form unions, except those in the army and police, while section 14 of
the Labour Code excludes state employees and magistrates from the scope of the Code (see below). There are restrictions for workers
under 18 years of age who can only join with permission from their guardians or parents, although the government has promised to
amend this.
Employers are prohibited from firing or otherwise discriminating against a worker because of union affiliation or activity.
Severe restrictions in the civil service: The right to organise and the right to strike in the civil service are regulated by Law No.
1/015 of 29 November, 2002. The national trade union centre COSYBU says that, until the promulgation of this law, the country's legislation was in line with the general principles of freedom of association and the right to strike. This law contains many violations of these.
Notably, it bans solidarity strikes, permits requisition orders in the event of strike action, and says that for civil servants' unions to be
recognised, they must be registered with the Civil Service Ministry - which is their employer.
Magistrates: Magistrates are governed by the regulations contained in Act 1/001 of February 2000, but this contains no express reference to magistrates' right of association.
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Restrictions on elections of trade union leaders: Those wanting to stand for union office must have worked in the sector for
more than a year. The government has promised it will review this.
Collective bargaining: The Labour Code recognises the right to collective bargaining. In the public sector, however, wages are
excluded from bargaining, as they are set according to fixed scales (following consultation with the unions).
Restricted right to strike: Workers can go on strike, but only when, and if, the Ministry of Labour and Social Security says it is
satisfied that they have exhausted all other peaceful means to resolve a dispute, effectively giving the Ministry the power to veto all
strikes. The workers must then give their employer six days' notice.
Government interference in trade union affairs: In recent years, the government has refused to recognise the results of trade
union leadership elections and has also prevented the union confederation, COSYBU, from choosing who should represent Burundi's
workers at the ILO.
There have been repeated allegations that the government will not permit trade union bodies to choose their own representatives to the
country's tripartite National Labour Council, paralysing its work since 2000. In 2005, the government did the same thing again by preventing the participation of the General Secretary of COSYBU in the International Labour Conference in Geneva (see “Violations”).
On several occasions, the government has declared strikes illegal on the grounds that they would damage the national economy and support enemies of the government. The ILO has repeatedly emphasised that economic concerns cannot justify restricting freedom of association in this way. Several trade union leaders have been imprisoned or suspended from their work over the last five years following
strike action. The most recent examples being the arrest of teachers' union leaders in 2004 and the suspension of civil service union
leaders in 2005 (see “Violations”).
The teachers' union, Syndicat des Travailleurs de l'Enseignement du Burundi (STEB), is not allowed to hold any general meetings without first notifying the town hall, which is contrary to the principles of freedom of association.
Private sector anti-union: Many private sector employers systematically prevent the creation of trade unions, while the government
fails to protect workers from anti-union employers.
Most workers in Burundi perform informal and unregulated work, and enjoy no trade union rights.
VIOLATIONS IN 2005
Background: On 19 August 2005, the former Hutu rebel leader, Pierre Nkurunziza, was elected President. That marked a decisive
step in the peace process, which was started in 2000 (Arusha agreements) in order to end the ethnic conflicts that had been raging in
the country for 12 years and had caused the death of more than 300,000 Burundians, mostly civilians.
Suspension of a trade unionist at the Bujumbura textile complex: In January 2005, Raphaël Horumpende, a middle manager at the textile complex in Bujumbura and second secretary of the company’s trade union, denounced the fraudulent management of
the firm and the risks of bankruptcy that the misappropriation of funds was causing. His statements displeased the management, who
suspended him for 15 days and threatened him with dismissal.
Suspension of a trade unionist at the Banque commerciale du Burundi (trading bank): On 8 March, Serge
Barahinduka, a white-collar employee at the Banque commerciale du Burundi and staff rep on the works council, was suspended for 15
days for calling for better respect of the consultation procedures. In a letter to the bank’s administrative manager, he had asked for the
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new employment contracts not to be imposed on staff before they had been consulted, in a meeting that had taken place the day before.
He has also been threatened with dismissal.
Three months’ suspension for leading a strike: On 24 March, Denis Ngendakubwayo, Rémy Ciza, Violette Sindayihebura and
Jacqueline Baransegeta, members of the local branch of the public sector trade union, were suspended for three months. Their superiors
accused them of insulting the Director General of the Civil Service, a charge they have always denied. According to them, the true reason behind these sanctions was their role in organising a strike that was held in February 2005. It was only after COSYBU had called a
general strike, that this measure was overturned three weeks later.
Series of suspensions of trade unionists from the Burundian Statistical Studies Institute (ISTEEBU): On 19 April,
Jean-Marie Nkeshimana, a white-collar employee and General Secretary of the Institute’s staff union was suspended for one month for
denouncing embezzlement by the manager of this semi-public organisation. On 26 April, Antoine Gahiro, Joachim Ntisinzira, Flora
Bacanamwo, Marius Ngezahayo and Grégonie Nizigama, all members of the ISTEEBU trade union’s executive committee, were suspended for a one-month period, for protesting against the measure taken against their General Secretary.
Suspension of a trade unionist at a chemical analysis laboratory (LACA): On 19 April 2005, Claire Kurubone, a white-collar employee and First Secretary of the staff union of LACA was suspended indefinitely for denouncing the mismanagement of the
organisation. Thanks to a protest by COSYBU, contacts were renewed between the various protagonists in the dispute, however, unfortunately the suspension of Claire Kurubone’s contract has not been lifted.
Workers are “personae non gratae” on Labour Day: Despite their strong protests, workers were not allowed to organise celebrations on Labour Day or take part in the traditional closing speeches of the international labour festival. Surrounded by diplomatic
delegations and the armed forces, the country’s Chief of Protocol even broke his promises and had the President of COSYBU removed
from the platform and replaced by employers’ representatives and the President.
Interference by the public authorities in the internal affairs of COSYBU: On 13 May, the Minister of Labour and Social
Security sent a note to COSYBU stating that members of the union’s Executive Committee could no longer run or represent the organisation, that the management of the union would be handed over to the Confederal Committee and that Pierre Claver Hajayandi, the
General Secretary of the confederation, could no longer be a member of that committee.
COSYBU General Secretary prevented from attending the ILC: On government orders, Pierre Claver Hajayandi, the General
Secretary of COSYBU, was removed from the Burundian delegation that was to attend the 93rd annual meeting of the International
Labour Conference (ILC), from 31 May to 17 June 2005 in Geneva. After protesting vainly against that arbitrary decision, the ICFTU
eventually decided to include him in its own delegation at the Conference. On 2 June, the day of his departure, the security forces prevented the COSYBU leader from boarding the plane in Bujumbura. He then tried to leave the country by land and was stopped at the
border post of Kanyara-Haut, where his passport was confiscated. Having managed to leave the border post, he returned to Bujumbura
and succeeded in reaching the conference through other means. He is now in a vulnerable situation and in fear of his life, having survived one assassination attempt.
This curtailing of the General Secretary’s freedom of movement was apparently as a result of his having called a strike to support the
employees’ union of the national Statistical Institute (ISTEEBU), whose leader has, moreover, been sacked.
Non-respect of agreements signed with the STEB: On 27 June, the Burundian teachers’ union, STEB, began an unlimited
strike in response to the government’s failure to implement two agreements signed at an earlier time with the union to improve the
working conditions and pay of teachers. The first document, which was signed in 2002, should have come into force on 1 January 2003,
but the government refused to honour some of the clauses. After a strike in 2004, that lasted over one month, the text was re-drafted,
resulting in a new text that both parties signed on 31 January 2005. Its implementation, due in February, was again put off, leading to
huge salary arrears.
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Cameroon
POPULATION: 16,600,000 / CAPITAL: YAOUNDÉ / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
Certain trade unionists are still repressed when trying to exercise their rights under
Conventions 87 and 98. Having been falsely charged with misappropriation of funds, the
General Secretary of SNUIPEN was removed from office and subjected to harassment.
Fearing that members of the agricultural workers’ union in the Department of Mfoundi
would be elected as staff representatives, the agricultural machinery research and testing
centre, CENEEMA, banned the union.
§
Government authorisation required: The 1992 Labour Code allows workers to form and join trade unions, but imposes restrictive
conditions, including stipulating separate procedures for unions in the public and private sectors. It is illegal to form a union that
includes both public and private sector workers, and to form a union that includes private sector workers from different, even closely
related sectors. The law provides for prison sentences and fines for workers who form a trade union and carry out trade union activities
without registration. The ILO has urged the government to amend its legislation to ensure that workers can form unions without government authority.
The law prohibits anti-union discrimination and allows fines to be levied against employers convicted of this, but does not provide for
any restitution in the form of reinstatement or compensation to the wrongfully dismissed workers.
Limitations on the right to strike: The Labour Code recognises workers' right to strike, but only after mandatory arbitration.
However, there is no established procedure for arbitration, and arbitration rulings are not legally enforceable, so employers can overturn
or simply ignore them. Certain sectors have to provide a minimum service, including transport, which the ILO does not consider an
essential service. Civil servants do not have the right to strike.
Bargaining - enforcement measures weak: The right to collective bargaining is recognised, but the legal mechanisms for applying collective agreements are ineffectual.
Export processing zones (EPZs): Firms operating in the EPZs are exempt from certain aspects of the Labour Code, but must
comply with internationally recognised labour standards. An official notice from the National Office for Industrial Free Zones contains a
list of “incentives”. It also states that employers enjoy “flexibility in hiring/firing workers”.
Revision of Labour Code - further restrictions: The government is reviewing its Labour Code, and it is feared that the proposed
amendments will restrict further many aspects of workers' freedom of association and right to collective bargaining through restrictive
registration procedures. The new Code will also give the Registrar of Trade Unions broad powers to cancel trade union certification and
will provide less effective protection for trade union officials (see Violations in 2005). The government presented the draft law to
Parliament for a second reading in March 2005.
Government interference: The government interferes in trade union activities in several ways. According to some sources, it uses
the law, which allows trade union pluralism, to manipulate the unions to further its own ends. The government has a reputation for
favouring those workers' organisations it sees as easier to control and has used union registration requirements as a means to withhold,
or delay indefinitely, recognition for trade unions that it considers to be too independent. The problem is that provisions in the law of
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1968 make the legal identity of civil servants’ unions subject to the agreement of the Minister of Labour, whilst that of private sector
unions, is subject to the agreement of the prefect in the relevant electoral district. There is no general form of protection against antiunion discrimination since these agreements are discretionary. One clear example is that the public service confederation has, since its
creation in 2000, been one of the six trade union centres in Cameroon that have still not been recognised.
The government sometimes demands that workers setting up a union produce job descriptions signed by the employer before a union can
be registered. This makes it impossible for workers in the informal economy and independent or self-employed workers to form a union.
There have also been reports that independent trade unions are refused access to bargaining processes, in which pro-government organisations are favoured. According to Cameroonian legislation, since independent unions draw their members only from their particular sector they may not take part in the national level social dialogue, in which the country’s social and economic policies are drafted. Only the
most representative trade union centres, based on union election results, may take part in the national social dialogue.
Collective bargaining almost non-existent: Collective bargaining is almost non-existent. No formal collective bargaining negotiations have taken place since 1996. Some agreements with the government have been shelved or ignored by the government after being
negotiated.
VIOLATIONS IN 2005
Background: The firm grip exerted by Paul Biya and his followers on all of the State's structures makes any significant socio-economic advances unlikely.
Harassment of members of SNUIPEN persists: On 12 January 2005, Joseph Ze, the General Secretary of the Single National
Union of Teachers and Professors in the Teachers’ Training Faculty (SNUIPEN) narrowly escaped another attempted arrest. Joseph Ze
had first been arrested on 16 April 2004 and been subjected, for three days, to threats and violence until he agreed to hand over the
union’s funds and sign an IOU to a dissident faction of the SNUIPEN executive. Shortly beforehand, that dissident faction had illegally
decided on the removal of Joseph Ze and attempted to seize the union accounts. Having failed in their attempts – since the funds had
been transferred to anther bank account - Roger Messi Bikoe and some other dissidents had accused Joseph Ze of embezzlement, without any proof. These two arrests, together with a recent raid on Joseph Ze’s home, were carried out without a warrant. Since
SNUIPEN’s lodging of a complaint with the ILO Committee on Freedom of Association in 2004, the intimidation against the union
leader, who is also a confederal Secretary of the Confederation of Independent Unions of Cameroon (CSIC), appears to have intensified.
Liliane Messa Sumo, National Treasurer of SNUIPEN and an active member of the CSIC, has also been subject to repeated intimidation. She was, for example, arbitrarily and repeatedly called in to the police station and was briefly arrested when found in the company
of Joseph Ze.
Union banned at the CENEEMA: On 19 May, the agricultural workers’ union in the Department of Mfoundi was banned from all
its activities at the agricultural machinery research and testing centre (CENEEMA) by the Registrar of Trade Unions at the Ministry of
Labour and Social Security. The National Federation of agricultural and fisheries workers (Fédération nationale des syndicats de l'agriculture, de l'élevage et des pêches du Cameroun, FESTAPEC), of which the banned union is a member, denounced this blatant violation
of conventions 87 and 98. FESTAPEC maintains that officials at the Registry of Trade Unions and certain officers from CENEEMA
concocted this measure in order to bar the way of the legitimate candidates presented by CENEEMA for the union delegation elections
that were to be held on 30 May. FESTAPEC immediately called on the IUF for assistance, which sent a letter to the Prime Minister of
Cameroun, pointing out that the requirement for prior registration of trade unions with the Labour and Social Security Ministry seemed
to contradict previous undertakings by the government to the effect that recognition of trade unions would be based on simple declarations. According to the IUF, the postponement of the date of the elections twice, the presentation of a list of candidates who opposed the
union, and the eventual holding of the elections on 30 May - in a climate of total confusion - represented clear evidence of the management’s desire to get rid of the union.
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POPULATION: 3,900,000 / CAPITAL: BANGUI / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
§
The situation for trade unionists in the Central African Republic has not improved. The
Deputy General Secretary of the Union syndicale des travailleurs de Centrafrique (USTC)
was arrested and held in police custody after leading a long strike and refusing to accept
the terms of an agreement with the government.
Limits on freedom of association: The Labour Code allows all workers to join trade unions, without prior authorisation. A person
who has lost the status of worker, either because he or she is unemployed or has retired, cannot in principle, belong to a trade union or
take part in its leadership or administration. Trade union officers must belong to the occupation their union represents.
Complicated strike procedures: The right to strike is recognised in both public and private sectors, but is curtailed by complicated
procedures. In the event of a dispute, there has to be conciliation between labour and management. If conciliation does not work, an
arbitration council must rule that the union and the employer failed to agree on valid demands, only then may a strike be called. If a
union calls a strike, only its members can join in the action. The government reserves the right to requisition workers if it is in the “general interest”. The Labour Code does not include sanctions against employers for acting against strikers.
Collective bargaining and union protection: The Code does not specifically recognise the right to bargain collectively, but does
protect workers from employer interference in the administration of a union.
Collective bargaining minimal: In the civil service, wages are set by the government after consultation, but no negotiation with the
unions. In the private sector, collective bargaining has played a role in setting wages, but any wage rises have been undermined by the
serious economic situation and long-term salary arrears.
The general trend under the former Patassé government was to intimidate union organisers and threaten them with severe sanctions for
calling a strike, even though their action may have been legal, on the grounds that they were “disturbing public order”.
The new government has, thus far, proved more receptive to dialogue with trade unions. In 2005, this trend seems to have continued.
Following a three-day warning strike that seriously disturbed the public sector, an agreement was reached on 12 November between the
government and the six national trade union centres. The agreement provided for the speedy payment of some of the wage arrears.
However, one of the union centres, the USTC, which had been reluctant to accept the terms of a moratorium imposed by the government, saw its Deputy General Secretary thrown into prison shortly afterwards (see Violations in 2005).
VIOLATIONS IN 2005
Background: François Bozizé, who seized power by force in March 2003, before being elected last Spring, is currently negotiating an
easing of the country’s debt with the IMF. He seems to be prioritising economic recovery, rather than the social demands of the people
and the struggle against insecurity.
Arrest of the Assistant General Secretary of the USTC: On 14 November, Noël Ramadane, the Deputy General Secretary of
the USTC was arrested and held for questioning for one day on the orders of the Attorney General. According to the authorities, the
arrest was merely for the purpose of questioning him in connection with an inquiry implicating state officials accused of having received
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illegal pay supplements. All these officials (around 1,700) were to go before a disciplinary council and remained liable to prosecution. The
USTC maintained that the real reason for the arrest of Noël Ramadane was totally different. What the authorities did not like, was his
reluctance to sign a six-month moratorium with the government whereby the USTC committed itself to silencing any union demands in
exchange for the rapid payment, by the State, of two months of wage arrears. Faced with a serious financial crisis, the State is no longer
able to pay regular wages to its 20,000 civil servants, most of whom had only received four months’ pay since the start of the year.
Police block the Labour Exchange and prevent the holding of a union meeting: On 10 December, police surrounded the
Labour Exchange in Bangui and banned access to the building, where the USTC had called a public meeting. The measure was lifted on
11 December in the afternoon, though was later restored. The USTC had been running a civil service strike since 16 November over the
government’s refusal to honour undertakings it made on 12 November following a long labour dispute. At the time, the government had
agreed to make a one-off payment to civil servants of two months of their wage arrears. In return, the government had demanded a
return to work as a precondition for a fresh start to negotiations.
Chad
POPULATION: 9,100,000 / CAPITAL: N’DJAMENA / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
Some 30 trade union activists were arrested at a sit-in in front of the Subsahara TCC plant
to demand the payment of their entitlements.
§
Extensive powers of interference: The right to form and join trade unions is recognised in the Constitution and all employees,
except members of the armed forces, are free to do so, but only with the authorisation of the Ministry of the Interior which also has
extensive powers to interfere in trade union affairs under an ordinance dating back to 1962. Accounts and supporting documents for the
financial transactions of trade unions must be submitted to the labour inspector upon demand.
Strikes restricted in public sector: The Constitution recognises the right to strike, although this is limited in the public sector by a
1994 decree that requires a minimum service to be maintained.
Intervention allowed: The Labour Code specifically recognises the right to collective bargaining, but does allow for some government
intervention. The Code protects unions against anti-union discrimination, but there is no formal mechanism for resolving complaints.
Potentially restrictive legislation not applied in practice: The government says that the 1962 ordinance is no longer applied
to trade unions and trade unions recognise that. It also says that the 1994 decree limiting public sector strikes has never been applied in
practice. It is slow to repeal these laws, however.
There has been resistance to union organisation, notably by the market authorities, while the government has not always respected negotiated agreements, such as the pay rise agreed for public sector workers in 2002.
VIOLATIONS IN 2005
Around 30 people arrested at a sit-in by workers at Subsahara TCC: On Sunday 18 September, the Governor of East
Logone ordered police units, who had been specially dispatched from the capital N'Djamena, to break up the sit-in and punish the former
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employees of Subsahara Tchad-Cameroun Constructors (Subsahara TCC), all of whom were members of the UST (Union des syndicats
du Tchad), an ICFTU affiliate. The workers had organised a sit-in to force their former employer to implement an arbitration ruling
recognising that their rights had been flouted. According to the ICFTU’s sources, Subsahara TCC, a sub-contracting company working
for ESSO, which belongs to the oil consortium headed by EXXONMOBIL, had illegally obliged its employees to work overtime in order
to complete the building of a pipeline between Komé and the port of Kribi, in Cameroon, one year ahead of schedule. After the work had
been done, Subsahara TCC had refused to pay the overtime worked by the 4,000 workers on the site. Subsahara TCC had been ordered,
on 23 May 2005, to pay its former employees the six thousand million CFA francs (?9 million) it was refusing to give them. The company had, in fact, obtained a stay of execution of the injunction, through corrupt means. The arrested workers included Robert
Nangoyon, Tonbo Nantoloum, Ladar Adamou, Gabriel Mbaindoul, Abdelkerim Abakar, Wassi Todjidingar, Kebegue Alifa, Angele
Djantam, Denis Darh, Paul Nerambaye, Bouila Alkarim and Michael Abdelkerim. Several other workers belonging to unions were
apparently also being actively pursued. All those arrested were released between 24 and 27 September.
Congo, Democratic Republic of
POPULATION: 56,000,000 / CAPITAL: KINSHASA / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
§
In a country bled dry by decades of dictatorships and civil war, the unions are demanding an
acceleration of the democratisation process, partly so that the labour regulations and
agreements are finally respected. These include a wage agreement covering the civil service,
the non-application of which led to a long strike and the imprisonment of a union leader.
The legislation grants all categories of workers, except for members of the armed forces, the police and the security services, the
right to organise. No prior authorisation is required to set up a trade union. The right to strike is recognised, although unions must
have prior consent and adhere to lengthy mandatory arbitration and appeal procedures. The law prohibits employers from retaliating against strikers.
No wage bargaining in the public sector: The right to bargain collectively is also recognised. In the private sector, unions negotiate with the government and employers in the National Employment Council (Conseil National du Travail). The government confirms
the results of these negotiations in decrees. In the public sector, however, the government sets wages by decree. The government is
required to consult the unions in advance, but not to negotiate with them. It is therefore able to ignore their recommendations.
In 2002, the government held meetings with the unions to discuss revising the Labour Code. The talks led to the introduction of a new
version of the code in October 2003.
No respect in practice: In practice, the civil war and the collapse of the formal economy mean that there is very little respect for
trade union rights. Employers ignore labour regulations and the government does not have the will or the resources to enforce them.
Soaring inflation and the constant depreciation of the Congolese franc render any pay rises agreed through collective bargaining meaningless. In other cases, promised increases have not even been honoured. The agreement of February 2004 on wages in the civil service
had still not been applied by the end of 2005.
Impunity: In many companies, employers have harassed workers wishing to exert their rights to join the trade union of their choice or
to set up a trade union or have refused to recognise these rights.
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Rights not respected in the civil service: The government has always refused to allow union elections in the civil service, though
the union centres have many members working in it. Only public enterprises organise such elections.
Discrimination against the staff of decentralised administrations: The staff of decentralised administrations (towns, regions
and sectors) are not unionised and do not enjoy the rights to bargain or establish a union. They are on the lowest rung of the state
administration ladder and, in practice, constitute a sub-category of public servants.
VIOLATIONS IN 2005
Background: At the end of 2005, the “Yes” vote won the referendum on the draft new Constitution. This first democratic vote in 40 years
is meant to be followed by general elections on 30 June 2006 at the latest. This might end a long period of conflicts and political instability.
Non-application of civil service wage agreement and arrest of union leader: Teachers went on strike on the first day of the
school year, 5 September, in protest at the failure to apply the wage-scale agreed for public employees in February 2004. A few days
later the strike spread to civil servants. Following these protests, on 16 September, national security guards arrested Romain Mutumoyi
Tamundele, the General Secretary of the free trade union centre, Syndicat libre du Congo (SLC), and President of the Trade Union
Platform of the civil service. After spending almost one month in the central prison in Kinshasa, the union leader who had called the
strike was allowed to return to the negotiations between the unions and the government. In early November, the talks led to an agreement to increase wages, considerably lower than the levels agreed in 2004, but enough to convince the unions to call off the strike.
Congo, Republic of
POPULATION: 3,900,000 / CAPITAL: BRAZZAVILLE / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
In textual terms, the country's labour legislation is largely in line with international
standards, but in practice the authorities are guilty of interference in trade union affairs.
In order to break up a teachers’ strike, the government brazenly arrested trade union
members, accusing them of stirring up trouble in private education establishments.
§
Workers have right to form unions: The Constitution and Labour Code recognise the right of workers to join and to form unions,
except members of the armed and security forces and the police. Employers are prohibited from discriminating against union members.
Unions are free to affiliate to international trade unions.
Collective bargaining: Unions are allowed to undertake collective bargaining.
Unions have right to strike, under certain conditions: Workers have the right to strike, subject to conditions established by
law. They have to file a letter of intent with the Ministry of Labour, which begins a process of non-binding arbitration under the auspices
of the Ministry's regional labour inspector. The letter must include the date for beginning the strike. The strike can legally begin on this
date, even if arbitration is not over. Employers have the right to fire workers if they do not give advance notice of a strike.
The government is drawing up a new Labour Code and the ILO has requested that it amend the legislation in consultation with workers'
organisations. Notably, it has been requested to define what constitutes the minimum service “indispensable to safeguard” the general
interest.
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The unrest and disruption caused by the civil war have created a climate of distrust and made the practice of trade union rights very
difficult in recent years. Unpaid wages are a major problem that remains unsolved. However, on 31 December, President Denis Sassou
Nguesso announced the government’s decision to increase workers’ wages. In an agreement, the government and the two largest national union centres, the Confédération syndicale congolaise (CSC) and the Confédération syndicale des travailleurs du Congo (CSTC),
decided to abrogate the decree of 16 June 1995 reducing wages by 15 per cent. The new decree should increase the basic wage by 15
per cent over three years, with increases of 5 per cent in 2006, 5 per cent in 2007 and 5 per cent in 2008.
Anti-union discrimination against CSTC members: The CSTC cites many cases in which its representatives have been demoted
or dismissed as a result of their union activities. It points to several cases of the unfair dismissal of employees from the Brazzaville,
N'Kayi and Pointe-Noire communes, from “Crédit Agricole et Industriel du Congo” and from Afrique Automobiles, all of which have
been brought before the courts.
Collective bargaining: Very little collective bargaining has taken place in practice, largely due to the economic upheaval caused by
the civil war. In 2003, out of 40 sectors due to renew their collective agreements, only two, the oil and sugar industries, held negotiations to this end.
VIOLATIONS IN 2005
Arrest of eight trade union representatives : On 27 October, Paul Médard Bouélé, the President of a teachers’ union, the
Syndicat des enseignants du Congo (SEC), and seven other union leaders, all members of a public sector teachers’ organisation, the
Collège syndical des enseignants du secteur public, were arrested by the security services and detained for 24 hours at the main police
station in Brazzaville. The authorities accused them of stirring up trouble in private schools by trying to force them to join the state
schools strike on 3 October. As soon as they were released, the eight trade unionists denied any responsibility, stressing that they had
themselves condemned the violent incidents in private schools, in a statement issued on the morning of 27 October. The trade unionists
maintained that this orchestrated move by the authorities was largely aimed at breaking up the strike and discrediting the teachers with
the public. The public sector teachers were demanding the restoration or increasing of certain bonuses (particularly those for promotions
or correction of examinations) and the integration of voluntary teachers in the civil service. The government has announced its agreement to increase the bonuses for exam work and to integrate a number of teachers without civil servant status in the system.
Côte d’Ivoire
POPULATION: 17,100,000 / CAPITAL: YAMOUSSOUKRO / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
§
Social dialogue is a rather incongruous notion in the very violent political setting. The
unions’ demands can essentially be regarded as a form of support for the “rebels”. In the
civil service, a protest about unpaid entitlements was harshly suppressed by the police,
supported by young “patriots”. In the forestry industry, a union’s decision to criticise their
employer’s pillaging of natural resources, with the connivance of the authorities, led to the
sacking of four trade unionists.
The Constitution of 23 July 2000 guarantees the right to form trade unions and the right to strike in both the public and private sectors.
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The labour laws give workers, the liberal professions and self-employed workers who do not employ staff, the right to form and join trade
unions. Only military personnel and police officers are excluded from these provisions, which is not in contravention of international
labour standards. Employers are prohibited from applying pressure either for or against a trade union. Only Côte d'Ivoire nationals,
nationals of a country with which reciprocal trade union and worker protection agreements have been concluded, and foreigners who
have been legal residents in the country for at least three years, may exercise administrative and managerial functions in a trade union.
Workers may “form unions under any name whatsoever”.
Right to strike - restrictions: Strikes are prohibited until a complicated, conciliation and mediation procedure has been exhausted,
and a notice period of six working days has elapsed.
The President of the Republic may, if he considers that the strike could threaten public order or the general interest, submit the dispute
to arbitration. This may be the case when “the strike affects an essential service whose interruption could endanger the lives, health or
security of all or a part of the population”, and in an “acute national crisis”. The Labour Code does not list the services considered to be
essential.
In the public sector, the right to strike is also recognised, once again with the obligation to respect the six day notice period. Staggered
work stoppages or rolling strikes are prohibited. A minimum service is required, in particular in public hospitals.
Collective bargaining: All workers, with the exception of military personnel and police officers, have the right to collective bargaining. The ILO has noted that the Labour Code does not provide sufficient sanctions to deter employers taking measures against trade
unionists for trade union activities.
In practice, only a small proportion of the labour force is unionised. The continuing civil war is clearly undermining any effort by the
trade unions to exercise their rights, including organising and collective bargaining.
Collective bargaining agreements have been concluded in the majority of major companies and public sector organisations, however they
are not applied consistently across the country, owing to the current instability.
VIOLATIONS IN 2005
Background: Since the armed revolt in September 2002, the country has been racked by chaos and violence. The peace agreements of
January 2003 and April 2005 have not been respected by the warring parties. The presidential elections planned for 30 October 2005
could not be held. Racial hatred, which is being stirred up by media supporting the regime, is continuing to tear apart the country, where
one person in three is of foreign descent. According to a report by Human Rights Watch (2005), armed militia, consisting of thousands
of poorly trained and ill-disciplined fighters, are operating outside the regular army. These armed gangs have been used by the authorities to suppress demonstrations and the work of opposition political parties, and to attack West African immigrant agricultural workers.
Creation of a trade union obstructed: In early 2005, the local management of the offshore company Prosafe Production Pte Ltd
was refusing to recognise the union chosen by the workforce, the merchant seafarers’ union “Syndicat des marins ivoiriens au commerce”
(SYMICOM). At the end of February, a joint ICEM/ITF mission of inquiry visited Côte d’Ivoire and helped to resolve the dispute.
Four trade unionists sacked for denouncing the pillaging of natural resources: On 5 July, four members of the national
union of employees of SODEFOR (SYNACOS), a forestry development company, were sacked by the director of the company. One month
later, one of the four trade unionists, Koffi Yao Georges, the union’s General Secretary, was summoned by the management, which
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reproached him for the critical statements he had made in a daily paper. The leader of this new union had complained about the declassification of protected forest areas and the granting of commercial permits under suspicious circumstances. The criticism was levelled at
both the management of SODEFOR and the Ministry for Water and Forests. The management justified sacking the other three trade
unionists for their “disrespectful” behaviour when supporting their General Secretary at the meeting the management had called him
to. In October, despite the support given to the four trade unionists by SYNASODEFOR, another trade union at the company, and by the
national centre, Union générale des travailleurs de Côte d’Ivoire (UGTCI), the management still refused to reinstate them. The mediation efforts by the labour inspectorate and then the Ministry for Water and Forests were criticised by the union at the time, and indeed
proved fruitless.
Demonstration by civil servants violently dispersed: On 27 September, a demonstration by Finance Ministry employees outside their ministry was brutally repressed by the police. The national union of public finance workers (Syndicat national des agents des
finances publiques, SINAFIG) was calling for the payment of arrears in their entitlements. A group of young people, the so called
“patriots”, joined the police in assaulting the demonstrators whom they accused of conniving with the rebels. Several of the civil servants were injured.
Djibouti
POPULATION: 721,000 / CAPITAL: DJIBOUTI / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
§
The government’s dismal record on respect of union rights worsened considerably in 2005.
Exasperated by their employer’s contempt for social dialogue, port workers began a
peaceful strike, which was immediately suppressed by the police. Some 170 workers were
arrested, 36 trade unionists were sacked and 12 were still facing legal proceedings at the
end of the year. The anti-union harassment in the postal service escalated once again.
The new Labour Code is likely to be published in 2006. It was drafted unilaterally by the
government and will probably make it even harder to exercise trade union rights.
The new Labour Code calls into question fundamental rights: On 25 December 2005, the draft new Labour Code was
adopted by the Parliament. When it is implemented in 2006, it will represent a clear deterioration of social standards, compared to the
former Code, although the latter dates back to 1952 and the colonial era. The new Code questions the fundamental rights upheld by the
ILO, including those on freedom of association, collective bargaining and organising. The social partners have never been involved in the
drafting work on the Code. As a result - to give one example - Article 41, paragraph 8, provides for the suspension of the employment
contract and salary of any worker who takes up a union post.
Government authorisation required: The law recognises the right of workers to join trade unions, but with certain limitations. A
union can only be formed with the prior authorisation of the government. In order to hold trade union office, a person must be a
Djibouti national. Under the new Labour Code, setting up a trade union will require authorisation from the Ministry of the Interior, the
Employment Ministry, the Labour Inspectorate, the Ministry of Justice and the Attorney General. And should any of the ministries
require the dissolution of the union, the Attorney General will be able to take a simple administrative decision to that effect.
Strikes in public service limited: Similarly, while the right to strike is recognised, it is curtailed. The authorities have broad powers to requisition public servants who are on strike, and unions planning strike action must inform the Ministry of the Interior 48 hours
in advance.
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The implacable anti-union repression exerted during the general strike of 1995-1997 has not stopped. Dozens of strikers, including
many leaders from the two national trade union centres, the ICFTU-affiliated Djibouti Union of Labour (UDT) and the Djibouti General
Workers' Union (UGTD) have been sacked and/or arrested because of their union activities. Since that time, the government has not just
failed in its duty to restore the lost rights of these workers, but also continued to subject them to many forms of pressure. They are
encouraged, with threats, to abandon all their union work, particularly if they hold leadership positions. Union members are also banned
from working in both the public and private sectors. Fearful of government reprisals, no employer, even in the private sector, dares to
offer union members work.
The government is continuing to avoid social dialogue and to exert daily pressure on the country’s free trade unions. Throughout the
month of Ramadan (October/November 2005), the leaders of the ruling party since independence, the RPP, and especially the Prime
Minister, Dileita Mohamed Dileita, used every public meeting to attack the UDT and its General Secretary, Adan Mohamed Abdou, slandering him and blaming him for all the country’s ills. He did this in order to set the people against Adan Mohamed Abdou and the UDT.
The government has tried to block every aspect of independent union activity. Union leaders have been repeatedly harassed, particularly
through dismissal from their posts, and protest demonstrations have been met by police violence. The government has been involved in
the establishment of unrepresentative trade union organisations that have usurped the names, titles and roles of the existing union centres. For international meetings, the authorities have “accredited” people who did not represent legitimate trade unions. In addition,
they have failed to honour the undertakings made during conciliation missions organised by the ILO, the ICFTU and AFRO.
VIOLATIONS IN 2005
Background: The blatant violations of trade union rights are part of the more general lack of respect for human and democratic
rights. Against this background, the opposition did not take part in the presidential and regional elections in April and November. On 23
October, security forces killed a young 18-year old man in a demonstration against price increases. On 30 October, the destruction of a
slum area mainly housing the families of dock workers was even more lethal, resulting in five deaths (including a woman and a child of
11). Eight people suffered serious injuries and there were five disappearances. According to the UN Food and Agriculture Organisation
(FAO), almost 150,000 people - one fifth of the population - are suffering from food shortages.
Labour Day – powerful dissuasion: During preparations for the celebrations on 1 May 2005, the government posted almost all of
its “general information” agents, “Documentation and security service” officers and riot police in front of the UDT building.
General Secretary of the Postal Workers’ Union harassed by his employer: On 25 May, following an eight day suspension,
Hassan Cher Hared, General Secretary of the Djibouti Postal Workers’ Union, was sacked by the Director General of the Post Office.
The employer explained that the decision was because of “serious professional misconduct, absenteeism and insubordination” by the
trade unionist. Shortly beforehand, Hassan Cher Hared had revealed embezzlement by the management, renewed his criticism of the
poor working conditions at the post office and denounced the anti-union harassment against himself and his organisation. On 1 May
2005, Hassan Cher Hared, who is also the acting President of the UDT, had highlighted the worsening social and economic situation of
the people and the persistence of corruption and the mismanagement of public resources. Having received a note announcing the cutting
of his wages for “refusal to cooperate” in 1999, then another suspending him from his post in 2002, he was struck off the company’s
list of employees in April 2004 owing to the “disappearance” of his file from the human resources department. In February 2005, he
had been downgraded to a post as transport and transit employee of the Post Office. In October, the union leader’s determination and the
mobilisation by the unions and other civil society organisations began to bear fruit. Hassan Cher Hared received his wage arrears. At the
end of 2005, he still awaited the cancellation of his dismissal by the Director of the Post Office.
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Brutal repression of a strike by drivers’ unions: In September, a strike held by the UDT-affiliated unions representing bus,
minibus and lorry drivers was savagely repressed. Dozens of drivers were arrested, beaten and held for almost one week in detention
centres in the capital. A follow-up demonstration was broken-up, using tear gas and bullets. A 20-year-old member of the drivers’ union
was killed, and many others were seriously injured.
Union elections banned at the national print works: The management banned the elections of the trade union at the national
print works, under orders from the Ministry of Employment and Communication. Since then, the General Secretary and the members of
the union have been continuously threatened with dismissal if they renewed their union leadership’s mandate. The management of the
printing works wants nothing to do with the union. It appears it is unconcerned about the health of its employees. It has repeatedly
rejected the union’s suggestion to set-up a health and safety committee, although it knows that the workers are handling chemical products every day.
Anti-union escalation at the port of Djibouti: On 14 September, the port workers’ union, Union des travailleurs du port (UTP),
began a strike in protest against the management’s refusal to engage in social dialogue and get rid of irregularities criticised by the
Labour Inspectorate. Three days later, an agreement between the unions, the port management and the Minister of Employment ended
the strike. The parties agreed to have a week’s reflection before returning to the negotiating table. But on 24 September, the planned
meeting was boycotted by management. On the same day, eight leaders and three activists from the UTP, all port workers, had their port
access cards withdrawn. They then discovered that they had been sacked for “obstruction of the freedom to work”. Ali Ahmed Aras, the
UTP General Secretary, was given early retirement.
In response to these unfair dismissals, the port workers started a new strike the same evening. On 25 September, shortly after midnight,
110 strikers and trade unionists from the port were arrested by police. Later that day, several dozen others were arrested at the port or
in their homes. In all, 156 workers were imprisoned. With the exception of 11 trade unionists (including Ibrahim Darar, the Assistant
General Secretary of the UTP, and Wahib Ahmed Dini, Second Assistant General Secretary) all were released on 25 or 26 September.
On 27 September 2005, 25 more workers were sacked for “incitement to unrest and obstruction of the freedom to work” and 120
workers received “final warnings”.
On 28 September 2005, Ahmed Ali Aras, the UTP General Secretary, who had been forced into hiding following police raids without
search warrants at his home, was arrested and imprisoned, along with 11 union leaders, at the police station.
The 12 UTP leaders were not released until 2 October, after the magistrates’ court had acquitted them of the charges against them,
namely, “threatening to commit a crime”, “participating in public meetings liable to disturb public order” or, for two of them, “incitement to revolt”. But on 3 October, the Attorney General appealed against the ruling. At the trial held on 28 December, three of them
(brothers, Ahmed Ali Aras, Ibrahim Moussa and Kamil) were given suspended sentences of two months’ imprisonment and the nine others, suspended sentences of one month. They lodged appeals. This repression is characteristic of the anti-union climate that has prevailed in Djibouti for several years, it also reflects the vital importance of the port to the country’s economy and is directly linked to its
unclear legal status. The management of the port was handed over to a private company, Dubai Port International, which had no
qualms, in telling the port workers on 24 September, that the check-off system for union dues was cancelled, in breach of the provisions
in force. All of this has turned the port, which is the economic “lifeblood” of the country, into an area ruled by the law of the jungle.
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Egypt
POPULATION: 74,900,000 / CAPITAL: CAIRO / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
The government continues to keep close control over the ETUF which in turn exercises
control over its affiliated national industrial federations. Legal recognition is only granted to
unions which belong to those federations. There is little tolerance of the very limited right
to strike, as demonstrated during an air traffic controllers’ strike when the Civil Aviation
Minister reportedly described the strikers as “traitors” who he wanted to be executed.
§
Single national centre: The right to form and join trade unions is heavily curtailed in law, firstly by the minimum membership
requirement of at least 50 employees in the same enterprise. An even more serious limitation is that unions can only operate if they join
one of the 23 industrial federations. All 23 industrial federations have to belong to the only legally recognised trade union centre, the
Egyptian Trade Union Federation (ETUF), which has close relations with the NPD, the ruling party. The ETUF has the power to control
the nomination and election procedures for trade union office.
Workers acting outside the scope of the ETUF can be (and are) sacked if the employer learns of their organising activities, as the 2003
labour law makes it legal for an employer to fire someone without giving any reason.
The law specifies how much unions have to pay to federations in affiliation fees and how much the federations have to pay the national
centre.
“High administrative officials” in government and public sector enterprises may not join unions.
Unions barred from engaging in political activities: Regulations under the Civil Societies and Institutions Law bar national
groups registered as civil societies, including trade unions, from being involved in political activities. This blanket prohibition is contrary
to the principles of freedom of association.
Collective bargaining curtailed: There is very little room to manoeuvre for collective bargaining in the private sector. Companies
must comply with certain government-established standards, particularly in relation to the minimum wage, social security and official
public holidays.
Under the 2003 labour law, a collective agreement is only valid if it complies with the law on public order or general ethics. The ILO
Committee of Experts has asked for a definition of “general ethics”.
New consultation mechanism - unions still waiting: The law calls for a tripartite Labour Consultative Council (LCC), made up
of government representatives, employers and workers' associations, to address problems and review local and international employment
legislation. The Council will set minimum wages in accordance with Egypt’s standard of living as well as annual cost of living rates to
ensure wages keep up with inflation. However, unions say that as this council meets erratically, and has a long backlog of cases, it does
not work effectively.
Unions’ ability to strike still virtually non-existent: A limited form of strikes are permitted, but only if two thirds of the ETUF
board agrees. The union must then give a ten-day notice period and indicate the planned duration of the strike. Unions now have the
right to strike in “non-strategic” installations, but it is up to the Prime Minister to decide which these are. The Prime Minister has the
right to prevent strikes in strategic sectors, the list of which exceeds the ILO definition of essential services where the prohibition of
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strikes would be deemed acceptable. The list includes, for example, transport and bakeries. The leader of one professional trade union
federation - the doctors - said that ‘Egyptian culture had evolved to the point where labour protests are considered an inappropriate
means of resistance’.
Union Executive Board members can be removed if their union has carried out a strike or absenteeism in the public sector. Unions cannot call a strike during mediation or arbitration procedures and the ETUF has the power to approve the organisation of a strike.
Special Economic Zones (SEZ) Law: The 2002 Special Economic Zones Law laid the legal foundation for setting up export-oriented SEZs. Newly established investment companies in the zones are exempted from complying with legal clauses relating to labour
organising, depriving workers of the right to set up local union committees.
The Minister of Manpower and Migration oversees and monitors collective negotiations and agreements. The government sets wages,
benefits and job classifications for public sector and government employees.
In the private sector, where ETUF representation is weak, employers are not interested in collective bargaining, and do not even respect
government requirements or rulings on the minimum wage, social security and other issues. There were number of spontaneous strikes
in 2005 as workers protested at the way in which businesses were flouting government decisions.
Government supervision imposed on many professionals’ unions: Since the mid 1990s, when independent candidates won
the unions’ council elections, the government has imposed judicial supervision over many unions representing professional groups, such
as doctors, engineers, lawyers and pharmacists.
Many irregularities in union elections: The Centre for Trade Union and Workers’ Services (CTUWS) reports many irregularities
during the country’s trade union elections, including withholding certificates of trade union membership, removing candidates names
from lists, threatening trade unionists and forcing workers to tear up candidates’ documents to prevent union committees being formed.
ETUF invites security officers to meetings: Unions have found that the federations or the ETUF have deemed industrial action
illegal, and have refused to represent them. In one case, the ETUF invited state security officers to attend a meeting between the ETUF
General Secretary and a union delegation.
Special Economic Zones: The private employers in Egypt’s Special Economic Zones show very little respect for labour rights. Most
workers in the Tenth of Ramadan City zone are forced to sign letters of resignation before beginning employment so that they can be
fired at the employers’ convenience. Working conditions are very bad – long hours, low pay, poor safety standards – but it is difficult for
labour activists to do anything about it, given the restrictions on collective bargaining and the ban on strikes.
VIOLATIONS IN 2005
Background: The year saw mounting protest linked to increasing government repression, with hundreds of people being detained
following demonstrations. There were also strong protests on the streets around the time of the national elections. On 30 July, members
of civil society organisations, including trade unions, were brutally attacked by police with sticks in Tahrir Square where a demonstration was scheduled to take place to protest at President Mubarak’s announcement of his candidature for the forthcoming General
Election. One of the worst injured was Kamal Abbas, General Coordinator of the NGO “Center for Trade Union and Workers’ Services”
(CTUWS). Scores of protesters were arrested, most of whom were released the following day, but 20 were kept in detention.
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The Land Center for Human Rights estimates that during 2005 there were 40 gatherings, 22 strikes, 20 sit-ins and 11 demonstrations
relating to labour issues.
“Official” union blocks legitimate branch activity: The union committee representing workers at the Nasr Pipes company was
warned on 12 February by the Engineering Metallurgical and Electrical General Union that it must cease all union activity. The
EMEGU did not give any reasons, but the Nasr Pipes branch committee believed it was being punished for adopting labour demands and
organising sit-ins and a hunger strike to push their demands. The Nasr Pipes union committee was elected by the company’s 2,400
workers.
Textile workers punished for striking: The Esco company deducted three days wages from workers’ pay packets in February to
punish them for striking, and threatened that they would receive no more pay if they continued with their action. The strike at the
Qalyoub textile mill began on 13 February in protest at the government’s privatisation of the mill, fearing job losses. The strike was
technically illegal as it had not been authorised by the ETUF. On 19 March, a delegation of 50 workers, representing 400 Qalyoub strikers, went to Cairo in a last-ditch attempt to secure ETUF backing for their strike and to publicise their demands. The strikers sent a five
person delegation to meet the ETUF General Secretary, Said El-Gohari, who was accompanied by two state security officers. El-Gohari
told the strikers: “You are taking on the government. I’m in no position to help you”. He told the press that the workers would face
punitive action if the strike continued.
Telsmisr workers dismissed for calling for workers’ rights.
During the early part of the year two workers at the Telemisr company, Nagwa Awad and Salah Abdel Rasheed, were sacked for calling
for workers’ rights in the private insurance fund.
Air company bosses cut strikers’ salaries: osses at the EgyptAir company docked the salaries of air traffic controllers who had
led a five day go-slow and sit-in in March. Four controllers lost 15 days’ pay, three lost 20 days’ pay and one lost an entire month’s pay.
Altogether 120 air traffic controllers had taken part in the go-slow which disrupted aircraft at five of Egypt’s international airports.
They were demanding better pay, better retirement packages and an end to alleged favouritism for retired air force veterans who were
allegedly given upper management positions.
Strikers dismissed amid serious threats from Minister: During the dispute government newspapers carried condemnations
from Civil Aviation Minister, Ahmed Shafiq, and from ETUF officials calling their action illegal and unpatriotic. On 9 May, Ahmed
Shafiq was quoted in the national press as referring to the striking air traffic controllers as, “traitors (who) should be executed. I am
willing to do it, but via legal channels”. His threat came during a second slow down that began on that day, where the controllers were
protesting about the strike leaders’ pay cuts. This second slow-down lasted three weeks. The Minister made his comments at a meeting
with 12 air traffic controllers, where he also said that there would be “no tolerance and no forgiveness” for dissenters. He announced
that three controllers had been fired for asking aircrafts for their flight registration plan and that the strikers would have to pay compensation to airlines for the delays. He also warned that criminal charges would be pressed against air controllers who plotted against
the company and caused serious losses.
A further five air traffic controllers were fired during the May slow-down.
Third air traffic controllers go-slow leads to government threats of imprisonment: In July, Minister Ahmed Shafiq
warned the controllers that they should watch their step very carefully or face imprisonment. “The law prohibits strikes and we are prepared to apply the law against any violations”, he said in response to a further proposed slow down in August. This was called off after
controllers received verbal promises to raise their salaries by 100 per cent by 2008, improved individual retirement packages and the
promise of rehiring some of the dismissed strike leaders. These claims were not confirmed by the Ministry.
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Spinning and weaving workers harassed during sit-in: Workers at the Misr al-Menoufiya Spinning and Weaving Company
were harassed during a sit-in at the factory that began on 7 August. About 1000 workers went on strike to demand their “20 per cent
social bonus”, payable to public and private sector workers. During the sit-in, the management prevented them from bringing in food
and switched off the lights during the night.
12 Workers fired at MITAD Helwan factory: On 13 November, the Director of the MITAD Helwan metals factory fired 12
workers for conducting a sit-in at the factory. Problems began when 50 of the 350 workforce at the factory joined the Egyptian General
Trade Union for Engineering and Metallic Industries in January 2005 to press for better health and safety and social protection. The
management response was to sack Mohammed Abu Srigh, a trade union representative, on 12 November.
The trade union members immediately started a sit-in to demand his reinstatement, payment of a government-approved “20 per cent
social bonus”, payment of a “1 May bonus”, productivity bonuses, inflation-linked wage rises and protection for workers against indiscriminate sacking.
The company director, Said Lahdhy, first agreed to the workers’ demands, but the following day, 13 November, fired 12 of those
involved in the sit-in, including Mohammed Abu Srigh.
MITAD threatens to fire 40 trade unionists: That same day Said Lahdhy threatened to fire the remaining 40 union members, saying that the dismissal letters were ready, and they would then be obliged to sign new temporary contracts and leave the trade union. He said
he would forgive those who quit the trade union and he would bring them back to work when they gave him back their trade union ID.
Intimidation of trade union committee at cement factory: The entire trade union branch committee of the General Trade
Union for Building and Wood Industry Workers at the Amreyah Cement Company was intimidated by the management and pressured to
take early retirement on 31 November. In addition, it was reported that the company had refused to co-operate with the trade union or
to deal with workers’ issues.
Equatorial Guinea
POPULATION: 521,000 / CAPITAL: MALABO / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
There was no change in Equatorial Guinea. The government has ratified all the ILO core
conventions, but in practice it continues to deny trade union rights. It places obstacles in
the way of those who try to organise or fight for their rights.
§
Obstacles to freedom of association: The Constitution provides for the right to establish trade unions. According to the 1992 law
on trade unions, however, a union must have at least 50 members from the same workplace and the same geographical area in order to
register, effectively blocking union organisation.
The right to strike and to collective bargaining exist, but there are no provisions protecting workers from acts of anti-union discrimination.
The government ratified several ILO core conventions in 2001, including Conventions 87 and 98, but it has still not adapted its legislation accordingly.
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The dictatorship in Equatorial Guinea is so absolute that there is no real space for trade unions to exercise their rights.
Union recognition denied: Despite its legislation, the government does not recognise “independent” trade unions. The authorities
have consistently refused to register the Unión Sindical de Trabajadores de Guinea Ecuatorial (UST), which cannot therefore operate
openly. The authorities also refused to legalise the public sector union, the Sindicato Independiente de Servicios (SIS). Although it met
all the registration requirements, the government objected to the term “independent” in its title. On 23 May 2005, the UST lodged a
complaint with the ILO Committee on Freedom of Association owing to the government’s refusal to recognise two of its affiliates - the
Asociación Sindical de Docentes (ASD) and the Organización de los Trabajadores del Campo (OTC).
When workers try to form trade unions, the police visit their homes and intimidate them.
Obstacles to union organisation: Although the law provides for the right to organise and bargain collectively, the government
places practical obstacles in the way of groups trying to organise.
The government and employers set wages, with little or no dialogue with workers. There has been no evidence of any bargaining, however
the Labour Ministry does sometimes mediate in labour disputes.
Workplace hazards - protestors risk dismissal: The Labour Code provides for protection for workers from occupational hazards,
but since in practice there are no trade unions, employees who protested against unhealthy or dangerous working conditions risk losing
their jobs.
Eritrea
POPULATION: 4,400,000 / CAPITAL: ASMARA / ILO CORE CONVENTIONS RATIFIED: 29-87-98-100-105-111-138
Unions are permitted, as is collective bargaining, but all unions, including the national
union centre NCEW are closely monitored by the government. Three trade union leaders
were arrested by security police and were held incommunicado in a secret detention centre.
The ever increasing police surveillance of civilians seriously undermines the freedom of the
trade union movement.
§
Unions permitted – with some restrictions: Employment law is covered by Proclamation 118 (passed in 2001) which provides
workers with the legal right to form unions. However, government policies restrict free associations. Unions are not allowed within the
civil service, military, police, and other essential services. The Ministry of Labour and Human Welfare must grant special approval for
groups of 20 or more persons seeking to form a union, but the government generally does not oppose their formation.
Collective bargaining is allowed. According to Proclamation 118, a tripartite board composed of workers, employers, and Ministry of
Labour and Human Welfare officials resolve differences. The complainant can pursue a case in court if it cannot be resolved by the tripartite board.
The law allows strikes.
There are no export processing zones.
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Government monitoring: The national trade union centre is the National Confederation of Eritrean Workers (NCEW), which is
closely monitored by the government. It represents approximately 25,000 workers from 250 unions. These trade unions come under
close scrutiny by the government and the ruling People’s Front for Democracy and Justice party. Free collective bargaining is thus rendered meaningless.
Employers – also facing problems: Employers appear to fare little better, suggesting they do not enjoy respect for the freedom of
association either. Mr. Mengesteab Tekletsion, former President of the Employers’ Federation of Eritrea (EFE) was arrested in 2004
and imprisoned without charges. At the June 2005 International Labour Conference, representatives of the International Organisation
of Employers (IOE) requested a meeting with representatives of the Eritrean government to clarify and discuss the matter. Both the
Minister of Labour and the Ambassador of Eritrea claimed they had no time to meet with the delegation. The IOE saw this as a lack of
respect by the Government of Eritrea for its social partners.
VIOLATIONS IN 2005
Background: There has been increasing repression in the country as thousands of government critics have been arrested, detained or
imprisoned without trial. This followed an order by the authorities, in May 2004, that Eritrean citizens should cease any contact with
Ethiopians. The border conflict, which erupted into a two-year war in 1998 between Eritrea and Ethiopia, remains unresolved.
Arrest and disappearance of trade union leaders: Tewedle Ghebremedhin, chair of the Food, Beverages, Hotels, Tourism,
Agriculture and Tobacco Workers’ Federation and Minase Andesion, Secretary of the Textile and Leather Workers’ Federation were
arrested at the National Confederation of Eritrean Workers’ office by security police on 30 March. It is thought to be because of their
trade union activities at a time when the government was considering changing trade union regulations and structures.
On 9 April, security police arrested Habtom Weldemicale, Head of the Coca-Cola Workers’ Union, and a member of the Food and
Beverage Workers’ Federation Executive. He had reportedly angered the government by calling for industrial action to protest against
workers’ worsening standards of living.
All three men have been held incommunicado since then, possibly in a secret detention section of the Second Police Station in Asmara.
Their whereabouts and physical condition were still unknown at the year’s end. The government has ignored requests for more information.
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Ethiopia
POPULATION: 74,200,000 / CAPITAL: ADDIS-ABABA / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
§
The government retains a tight control on trade unions, through behind the scenes
manoeuvres, taking advantage of the existing weak labour laws and poor enforcement
mechanism. The Ethiopian Teachers Association (ETA) and Ethiopian Free Press Journalists’
Association (EFJA) have been particularly targeted and, following protests after
Parliamentary Elections in May, their members have been detained and harassed and many
remained in prison at the end of the year. Court rulings in favour of independent trade
unions remained largely not enforced. As Ethiopia moved further towards becoming a police
state in 2005, the targeting of journalists and consequent clamp down on freedom of
expression seriously threatened the already limited freedom of trade unions.
Freedom of association – many categories of workers are excluded: The Constitution recognises the right to form and join
trade unions, but many categories of workers are excluded, such as teachers in the public sector and civil servants, including judges,
prosecutors, and security service workers. These exclusions stem from the Labour Proclamation, issued in 1993 (n° 42/1993). They
have, to a large extent, remained in place in a new Labour Proclamation, n°377/2003, which is now in force. According to its section 3,
the new Labour Proclamation is not applicable to workers employed in “upbringing, treatment, care of, rehabilitation, education, training (other than apprenticeship)” nor to workers in the non-profit sector or workers holding managerial posts. The ILO Committee of
Experts, stressing that the only exceptions authorised by Convention n° 87 are the members of the police and armed forces, has once
again called on the government to explain how it ensures that the right to organise is respected in law and in practice for the abovementioned categories of workers. It has made similar comments in regard to state administration employees, judges and prosecutors,
whose work is governed by special laws.
Approximately 300,000 workers were union members.
Union monopoly cancelled, but arbitrary dissolution still possible: Under the Labour Proclamation of 2003, there can now
be multiple unions in the same enterprise. A union can be formed with a minimum number of ten members. All trade unions have to be
registered. Under section 120 (c) of the 2003 Proclamation, the government retains the authority to apply to the courts for an application to cancel union registration, if the union has been found to have engaged in activities prohibited under the Proclamation, such as
having acting in an overtly political manner. There were, however, no reports that the government used this prerogative during the year.
According to the government, a general legal prohibition against acts of anti-union discrimination by employers against union members
and organisers can be inferred from the Labour Proclamation. The ILO however, insists that the government should adopt specific legal
provisions, coupled with effective and sufficiently dissuasive sanctions, to deter any acts of anti-union discrimination.
Limitations on the right of teachers to organise: For nearly ten years, the ILO Committee of Experts had criticised Ethiopia’s
legislation, in particular section 3(2)(b) of the 1993 Labour Proclamation which denied teachers the right to organise in trade unions.
Under the new Labour Proclamation, privately employed teachers can now exercise the right to unionise and engage in collective bargaining, but teachers in the public sector can still only form professional associations. The difference, according to the government, is
that teachers working in government institutions are governed by the Civil Servants Law, while those working in private undertakings
are governed by the Labour Law.
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Limitations on collective bargaining and the right to strike: More than 90 per cent of unionised workers are covered by collective agreements. But under the Federal Civil Servants Proclamation n°262/2002, most public servants are not allowed to negotiate
for better wages or working conditions. At year’s end, the government had told the ILO it was exploring experiences of other countries,
with a view to drafting, in due course, legislation giving civil servants, including teachers in the public sector, the right to bargain collectively.
Workers are allowed to strike, but the law relating to organising strikes is very restrictive. The mechanism for negotiating with the government to hold a strike is lengthy and makes legal strikes complicated. There must be a 30 day advance notice period before the strike
takes place. According to Section 158(3) of the Labour Proclamation, a strike vote should be taken by the majority of the workers concerned in a meeting in which at least two-thirds of the union’s members are present. The ILO Committee of Experts has commented
that if the legislation requires a vote to be held before workers can go on strike, the quorum and majority to be obtained should be fixed
at a reasonable level. It has accordingly requested the government to amend section 158(3) so as to lower the quorum required for
strike ballots.
Trade unions can be dissolved if they carry out strikes prohibited under the Labour Proclamation.
Strikes are banned in ‘essential’ services, but their list exceeds the ILO definition. Although the list appears to have been shortened
under the 2003 Labour Proclamation, air transport and urban bus services remain excluded from the right to strike, under section 136
(2). The ILO considers that these services do not constitute essential services in the strict sense of the term and has requested the government to establish a system of minimum service in these public utilities, rather than impose an outright ban on strikes.
The ILO has also raised its concerns over the compulsory arbitration imposed at the request of one party to an industrial dispute. The
new Labour Proclamation, under section 143(2), allows the aggrieved party to take the case to the Labour Relations Board for arbitration or to the appropriate court. In this case, the strike is considered unlawful (section 160(1)). In the case of essential services, as listed in section 136(2), the dispute is referred to an ad hoc board for arbitration (section 144(2)). The ILO however, notes that, except in
situations concerning essential services in the strict sense of the term, acute national crisis and public servants exercising authority in
the name of the State, recourse to arbitration should only be allowed upon a request of both parties. It has thus requested the government to amend its legislation so as to bring it into conformity with Convention 87.
Government interference: The government blatantly interferes in trade union affairs in all sectors. Many trade union leaders are
regularly intimidated and in most cases removed from their posts and/or forced to leave the country, while others have been detained
without trial. The government substantially controls the Confederation of Ethiopian Trade Unions’ (CETU) Congress and Executive
Committee. Issues such as trade union rights, political repression and the detention of trade unionists, teachers and journalists are not
discussed by Congress.
Despite protection in law, in practice union activists are frequently fired and discriminated against, and unlawful dismissal suits take
years to resolve because of court backlogs. Although the law prohibits any retribution by employers against strikers, there are doubts as
to whether the government enforces this in actual practice.
Ethiopian Teachers’ Association: The Ethiopian Teachers’ Association (ETA) has been a particular target for harassment. Its leaders have been prosecuted, and its President, Taye Woldesmiate, was sentenced to 15 years’ imprisonment in 1996 – he was released in
May 2002 after international pressure. The government created a splinter group called ‘New ETA’, with close government ties, and
redirected the ETA’s union dues to it. In November 2003, the High Court ruled in favour of the original ETA, but the ‘new ETA’
appealed against this decision, and this was still pending at the end of 2005.
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Restrictions on rights to organise public meetings: Following a complaint to the ILO on ETA harassment during public meetings, the government has indicated that the ETA is free to hold meetings provided it gives prior notice. The ILO has responded that
authorities should reach agreement with the organisers of meetings, so that restrictions do not infringe on fundamental civil liberties.
Repressive climate restricts freedom of trade unions to operate: Political repression has been stepped up and the whole
country is now under police surveillance. Journalists have increasingly become the target of police repression, and this curtails freedom
of expression and severely limits the ability of trade unionists to operate. The harsh reaction to the public protests in June and November
2005, reported below, would appear to be only the tip of the iceberg.
VIOLATIONS IN 2005
Background: Opposition protests following the suspected rigging of parliamentary elections in May were put down with brutal force,
including against teachers and students in schools. On 7 and 8 June, security forces fired on protestors in Addis Ababa, killing 36 people. Some 4000 people were arrested and detained in harsh conditions and, at the end of the year, 131 remained in prison. Further
opposition protests took place in November and over a hundred teachers, journalists, trade unionists, civil society activists and opposition
leaders were imprisoned as a result. On 16 December, 15 separate charges, including conspiracy, armed insurrection, high treason and
genocide were presented in court against the 131 detained government opponents and critics, who included numerous teachers, trade
unionists and journalists.
ETA still being harassed: The Ethiopian Teachers’ Association and its officers are still being harassed by the authorities. Its offices
had been closed at the end of the year, while its financial assets remained frozen since April 1993.
After several years on bail, ETA Executive Board Member, Abate Angore, was sentenced on 3 February to two months in prison or a
fine because of comments he made in an interview in May 2001. He had referred to the violence by security forces in April 2001 against
Addis Ababa University students who were protesting over policies limiting academic freedom.
Arrests after World Teachers’ Day meeting: Nine teachers from the ETA Addis Ababa branch were arrested, and two badly
beaten up on 25 September, following a meeting at ETA premises to discuss preparations for World Teachers’ Day. The nine members
were Teferi Gessesse, Kassahun Kebede, Tesfaye Yirga, Tamirat Tesfaye, Wasihun Melese, Dibaba Ouma, Ocha Wolelo, Bekele Gagie and
Serkaalem Kebede. They were detained for one day before being released.
Chair of ETA Addis Ababa detained: Following general public unrest relating to the contested elections, on 1 November, one of
the above mentioned ETA leaders, Kassahun Kebede, Chair of ETA’s Addis Ababa branch was again arrested and detained by police. The
ETA headquarters were occupied by the police and military forces. On 3 November, Kebede’s house was searched by security officers and
official ETA public documents taken away.
Attempt to intimidate education union leaders: Schools, training colleges and colleges in Addis Ababa and other major cities
were evacuated on November 1. This followed accusations in the government-controlled media that the ETA, the journalists’ association
EFJA, teachers and students were responsible for activating social unrest and threats that, if necessary, their leaders would be taken to
court.
ETA leaders accused of high treason: ETA harassment continued throughout the next two months. On 12 and 14 November,
Kassahun Kebede was briefly taken out of prison to see how his office at the ETA’s Addis Ababa section was searched by the police, as
were the offices of ETA President, Dr Taye Woldesmiate. Documents and electronic equipment were removed, the offices locked and
approximately 24 teachers/ETA members detained.
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Kassahun Kebede and Dr Taye Woldesmiate (who was abroad during these events), were among those indicted in December by government prosecutors on 15 separate charges, including conspiracy, armed insurrection, attempting to subvert the Constitution, high treason
and genocide. High treason charges carry sentences ranging from three years to the death penalty. At year’s end, it was believed that 58
teachers and ETA members were still in prison and denied release on bail. The prisoners’ lawyers complained that they were being prevented from meeting their detained clients.
Journalists’ Association harassed, leaders charged with high treason: The Ethiopian Free Press Journalists' Association
(EFJA) was shut down in November 2003, after authorities claimed that it had failed to submit a certified audit of its budget. However,
some local journalists said that this was a pretext to close down an organisation that had strongly criticised the government and
Ethiopia's dismal press freedom record. Soon afterwards, the Justice Ministry notified EFJA Executive Committee members that they
were barred from carrying out any activities for the organisation, including communicating with “third parties” in their official capacity. In response to a legal suit brought by the Executive Committee against the Justice Ministry, the Federal High Court decided twice –
in December 2004 and March 2005 – in the Committee's favour, ruling that the Ministry's ban was illegal.
At the end of 2005, the EFJA was facing renewed government hostility, when it criticised a crackdown on the press after the opposition
disputed the outcome of parliamentary elections. In October, four EFJA leaders were summoned to the Criminal Investigations
Department (CID) in Addis Ababa, and questioned about the organisation's activities when it was officially banned from late 2003 to
the end of 2004. The CID accused the EFJA leadership of illegally carrying out EFJA activities during the ban, including issuing press
releases and speaking with reporters on press freedom issues. EFJA President, Kifle Mulat, Vice President, Taye Belachew, accountant,
Habetamu Assefa, and Treasurer, Sisay Agena, were fingerprinted, held for several hours, and questioned, before being released on bail
set at 2,000 birr ($US237). A fifth executive committee member, public relations officer, Tamiru Geda, had also been summoned by the
CID, although he was living in exile. Police officers claimed not to know about the High Court's decision in favour of the union.
In December, 21 journalists, publishers and editors, including EFJA President, Kifle Mulat, were charged with involvement in the
alleged attempt to overthrow the government and indicted on high treason charges. Among them were five journalists of Ethiopian
descent who work in Washington, D.C., for the Voice of America's Amharic-language service. They were charged in absentia, as was
Mulat, who remained in Uganda at the end of the year, under the protection of Amnesty International.
Threats to striking taxi drivers: The Minister of Transport threatened to withdraw the licences of taxi drivers on 7 November,
after they had been striking since 2 November. The strike was in response to a call by the United Democratic Coalition (CUDP) for a
general strike to protest at the deaths and arrests following unrest after the parliamentary elections.
Gabon
POPULATION: 1,400,000 / CAPITAL: LIBREVILLE / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 182
§
The “social truce,” declared in 2003, has wavered. Exasperated by broken promises, the
unions have found it increasingly difficult to tone down their demands. Several protests
have broken out and activists have been subjected to anti-union attacks.
Right to join trade unions: All workers have the right freely to form and become members of the trade union of their choice. Trade
unions must be registered to obtain official recognition.
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Trade unions and confederations can freely join international bodies and participate in their activities.
Right to strike - limitations: Workers in the public sector can join a trade union and have the right to strike, however that right is
restricted where it poses a threat to public safety.
A strike may only be started following eight days advance notification and after arbitration has failed. The Labour Code prohibits the
government from intervening directly against strikers who adhere to the arbitration and notification procedures.
Discrimination against trade unions: The law does not expressly prohibit discrimination against trade unions. However, the courts
can order employers that are found guilty of discrimination to compensate the employees concerned.
Most of the private sector workforce is unionised. Trade unionists in both the public and private sectors are often discriminated against.
They are regularly harassed or simply dismissed.
In 2003, following the dismissal of several strike organisers and the violent dispersal of a timber workers' strike, the trade unions, government and employers signed a social truce, agreeing to a three-year hiatus on strikes and establishing a 35 member mediation committee to negotiate disputes. However, a number of trade unions were unhappy with this measure, seeing it as a restriction of their fundamental right to strike and as a means of appeasing the International Monetary Fund. The trade unions warned that the “social truce”
was under threat, given that the government and employers had not kept to their side of the agreement. The main complaint of the
unions concerned the government’s failure to keep its promise to reduce the price of essential goods by 15 per cent. At the end of
December, about 30 trade unions decided, by way of protest, to suspend their involvement in the work of the monitoring committee on
the social truce.
VIOLATIONS IN 2005
Background: Omar Bongo was re-elected President, unsurprisingly, receiving around 80 per cent of the votes in the poll on 6
December. He has been ruling the country for 39 years.
Sacking of strikers in the tobacco industry
On 7 March, 28 strikers were sacked by the manager of the Société des cigarettes gabonaises, a subsidiary of the British group,
Imperial Tobacco. The protest had started a few days earlier, after the workers failed to win their dispute with an expatriate manager
whose conduct they regarded as “insulting and humiliating”. A few days later, only some of the strikers were reinstated, despite the
protests of the CSG (Confédération syndicale gabonaise), which called for the reinstatement of all the sacked workers.
Strike broken up by force: On 4 April, a group of Foreign Affairs Ministry employees, who were blocking the main entrance to the
building, was violently dispersed by the police. They had been on strike since 23 March, in protest at the continuous deterioration of
their working conditions.
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Gambia
POPULATION: 1,500,000 / CAPITAL: BANJUL / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
Civil servants have no trade union rights, but other workers may join unions and go on
strike. Weak trade unions and lengthy strike procedures make strikes difficult.
§
Freedom of association: The country’s Labour Act gives private sector workers the right to form associations, including trade
unions. Unions must register to be recognised, but so far, registration has never been refused.
Employers cannot fire or discriminate against members of registered unions for engaging in legal union activities, and the government
has intervened to assist workers who have been fired or discriminated against by employers.
Civil servants denied trade union rights: According to the law, civil servants may not form unions or strike. The same restrictions apply to the army and the police, but this is not considered an infringement of international labour standards.
Unions have right to bargain: The law allows unions to bargain collectively. The Joint Industrial Council Agreement (JIC), consisting of trade unions and their employer counterparts, provides guidance for union activities. Union members' wages are determined by
collective bargaining, arbitration, or agreements reached between unions and management, provided that they are in agreement with
JIC guidelines. There are minimum contractual standards for hiring, training and terms of employment, and they may not prohibit
union membership.
Laws restrict unions’ right to strike: Strikes are authorised, but unions have to give the Commissioner of Labour 14 days’ (28
days for essential services) written notice before they are allowed to begin industrial action. The courts can prohibit strikes if an employer applies to the court which then decides that the action is ‘political’ or in breach of a collectively agreed procedure for settling industrial disputes. The law prevents employers taking retribution against strikers who strike legally.
Foreign workers in the private sector are protected by the Labour Act and have the right to join trade unions, as long as they have a
valid working permit.
Export Processing Zones: Workers in the EPZs are covered by the Labour Code and have the same rights as workers elsewhere in
the country.
Enforcement of Labour Act weak: Although the country’s Labour Act gives private sector workers the right to form unions, to go
on strike, and protects them against retribution from their employers, in practice this is inconsistently enforced because of insufficient
and inadequately trained staff.
Unions lack experience or organisation and often turn to the government for assistance in negotiations. Because of the provisions preventing strikes and the weakness of unions, few strikes occur.
Unions organise informal economy workers: It is estimated that up to 80 per cent of all workers are employed in the informal
economy, where they would usually fall outside the scope of trade union protection. There have been several initiatives, however, to
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organise informal workers in the agricultural, commercial, handicraft and hairdressing sectors to ensure they receive minimum social
protection.
Ghana
POPULATION: 21,800,000 / CAPITAL: ACCRA / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 182
§
Three people were injured when police opened fire on protesting mineworkers seeking
redundancy pay or reinstatement. While the right to organise is well respected in law, the
right to strike is clearly curtailed.
Rights protected: The new Labour Act passed in July 2003 removed the restrictions on the right to organise, so bringing the law into
line with ILO Convention 87. Workers can decide which union to join. Unions no longer have to seek government approval before registering. The armed forces, the police and the prison service and the security and intelligence agencies, mentioned under the Security and
Intelligence Agencies Act, 1966, are excluded from belonging to a trade union, and therefore do not have any possibility of bargaining.
Excluding the armed forces and police from the right to organise is not in breach of international labour standards, but other services
mentioned, should not be denied these rights.
There is no minimum statutory length of time for a collective agreement to last.
The law prohibits acts of anti-union discrimination, and employers found guilty can be required to reinstate fired workers.
Law curtails unions’ right to strike: While the 2003 Labour Act had some positive aspects, it curtailed unions’ right to go on
strike. All disputes have to be referred to the newly created National Labour Commission, also known as the National Tripartite
Committee (NTC) a body of government, union and employers’ representatives for arbitration. Strikes are seen as a last resort, if arbitration is unsuccessful, and unions must give seven days’ notice. Such requirements are acceptable by international labour standards.
Export Processing Zones: Under the new Labour Act, trade union members and their officers are protected from being discriminated against if they organise within the zones.
Anti-union discrimination: In practice, unions report that in many companies there is anti-union discrimination, which the authorities fail to stop. Many employers are particularly resistant to senior staff being unionised.
Collective Bargaining under attack: The Ghana Trade Union Congress has attacked the new labour law as anti trade union, as it
seeks to weaken trade unions, attacks the collective bargaining agreement system, discourages job security, erodes workers’ benefits and
over-protects the dispute settlement procedures. While it welcomes the National Labour Committee, it is concerned that state institutions
by-pass it and intervene in industrial disputes. Recent statements quoted in the press by government representatives indicate that the
government believes that the 2003 Labour Law effectively outlaws strikes.
VIOLATIONS IN 2005
Background: While Ghana has experienced economic growth, partly because of its strong mining sector, increasing inequality is leading to growing unrest, and during the year there were demonstrations demanding higher pay.
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Police bullets injure mineworkers: Police injured three people on 2 September when they opened fire on a crowd of retrenched
workers from the Normandy Gold mines at Yamfo. The miners had blocked the streets to demand severance pay and the possibility of
re-employment after the Normandy Gold mine was taken over by Newmont Ghana Gold Limited (NGGL). The police fired shots and
tear gas to disperse the protestors to allow Newmont’s buses carrying workers on to the site.
The dispute began after Newmont, owned by Newmont Mining Corp (U.S.), purchased a tract of Ghana’s gold belt, and workers from
Normandy Gold were made redundant. They relied on a ruling that suggested Newmont might re-employ them, so failed to apply for
positions in the labour pool until it was too late. The court also ruled that the workers were not entitled to compensation from
Newmont.
Aviance workers sacked for striking: Seventeen workers from the Aviance Ghana, including five union executives, were sacked
for embarking on an illegal strike on 17 October. The workers, from the Aviance Ghana freight and baggage handling company at the
country’s airports, were demanding better conditions. Some workers had been asked to work for up to 48 hours without a break. Many
union members believed that the management had looked for a pretext to sack workers because the company did not want to pay the
workers redundancy money if Aviance lost the government contract.
Union consultant barred by management: After the strike on 17 October, the union employed a consultant, Mr Ato Conduah, to
negotiate with Aviance management, but the company barred him from meeting any managers.
Guinea
POPULATION: 8,800,000 / CAPITAL: CONAKRY / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
Strikes are prohibited in essential services, which are very broadly defined. In practice, an
anti-union climate prevails, because workers’ rights are not effectively applied.
§
Freedom of association: The Labour Code allows all workers, except military and paramilitary personnel, the right to form and join
trade unions.
Strike limitations: Workers have the right to strike, but must give ten days' notice, and employers can impose binding arbitration.
Strikes are prohibited in essential services, which, as well as hospitals, police and the army, are broadly defined to include transport,
radio and television, and communications. These three sectors do not fall under the ILO definition of “essential services” in the strict
sense of the term.
No protection from discrimination: Collective bargaining is recognised. The law does not contain any measures to prevent antiunion discrimination or to protect trade unions against interference by employers. Although the new draft Labour Code insists that no
employer may take into account workers’ membership of trade unions or their union activities, there is no guarantee that appeal procedures and sufficiently dissuasive sanctions will be applied in cases related to recruitment and the termination of contracts. The banning
of such practices, and sanctions in the event of interference in the internal affairs of workers’ and employers’ organisations, are not
included in the draft Labour Code.
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Intimidation: Union activities are met with interference and harassment, notably from government officials at the regional and local
level, who view all independent unions as opponents of the government. Strikes are rarely carried out because of the intensification of
intimidation beforehand. When strikes are, nonetheless, carried out, the police and security services are called to arrest and interrogate
union leaders. Against that background, the Confédération nationale des travailleurs de Guinée (CNTG), formerly the only and pro-governmental trade union centre, which had called a 48-hour general strike on 15 and 16 November 2005, stressed that the strike would be
renewed if the demands of the workers were not met, or if a union member was threatened.
Guinea Bissau
POPULATION: 1,600,000 / CAPITAL: BISSAU / ILO CORE CONVENTIONS RATIFIED: 29 - 98 - 100 - 105 - 111
There are no collective bargaining rights. The tripartite National Council for Social
Consultation merely consults the unions, a process which has proved unsatisfactory. The
government refused to consult the unions over increasing civil servants’ working hours.
§
Freedom to form and join independent trade unions: All workers are free to form and join independent trade unions. The government registers all unions. All unions are able to affiliate freely with national confederations and international trade union organisations.
No collective bargaining rights: The Constitution does not provide for, or protect, the right to bargain collectively. Instead, this is
done by the tripartite National Council for Social Consultation that carries out consultations on wages and employment legislation. Most
wages are established in bilateral negotiations between workers and employers.
Right to strike: Workers have the right to strike and are legally protected from retribution for strike activities. Prior notice must be
given before a strike.
Union harassed for calling for strike action: Despite the protection provided in law, the government has consistently harassed
the leadership of the União Nacional Dos Trabalhadores Da Guiné (UNTG) for calling legitimate strikes.
No negotiations over salaries: One of the greatest sources of union dissatisfaction has been the continual breakdown of talks over
the non-payment of wages, due to failure of the National Council for Social Consultation to negotiate satisfactorily. In 2004, there were
countless strikes by government workers to protest against poor working conditions and salaries which were months or even years in
arrears.
VIOLATIONS IN 2005
Background: President Joao Bernardo Viera, an autocratic military ruler, ousted from office in 1999, ran as an independent candidate in multi-party presidential elections in 2005. He won the election and took office in October 2005. He promised to bring prosperity
and stability, but his first act was to sack the government and appoint Aristides Gomes, his political ally, as Prime Minister. Schools
opened late at the beginning of the school year, after teachers went on strike over six months of salary arrears.
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Civil servants forced to work longer hours without consultation: One of the new government’s first acts, on 8 December
2005, was to bring in a new work timetable for civil servants, without consultation. The government had refused to negotiate the
change in hours with the UNTG, the national trade union centre, claiming that it was “government business”. Lima da Costa, UNTG
General Secretary, accused the government of “refusing any form of dialogue”.
Kenya
POPULATION: 32,800,000 / CAPITAL: NAIROBI / ILO CORE CONVENTIONS RATIFIED: 29 - 98 - 100 - 105 - 111 - 138 - 182
§
Frequent violations of the right to strike continued amid increasingly tense industrial
relations. Nurses were suspended for strike action, tea workers were sacked, university
staff were threatened with dismissal and the government fired 1,600 civil servants for
taking part in a strike. Workers in the military, police, prisons and youth services and
senior teachers are still not allowed to join unions or bargain collectively.
Government can deny registration: Seven workers or more in an enterprise have the right to form and join trade unions. They
must be registered by the Trade Union Registrar who has the right to deny registration. If registration is denied, the aggrieved unions
have the right to seek redress in the courts.
Bargaining rights still denied to teachers and others in non-essential services: According to regulations introduced in
May 2004, civil servants are now allowed to bargain collectively and to go on strike, but this right is still denied to workers in the military, prisons, the National Youth Service and teachers under the Teachers’ Service Commission.
Restrictions on the right to strike: The law authorises the right to strike, but this right is subject to major restrictions. All disputes must be submitted to the Ministry of Labour 21 days prior to calling a strike, or 28 days for services such as education, health,
and air traffic control or water utilities. Once the dispute has been submitted, the Ministry of Labour may act as arbitrator, appoint a
mediator, or submit the dispute to the industrial court. However, no strikes are permitted during the cooling-off period. The Ministry of
Labour also has the discretionary right to decide whether a strike is legal or not.
Both the Trade Disputes Act and the Industrial Relations Charter authorise collective bargaining.
All labour laws, including the right to organise and bargain collectively, apply in the export processing zones (EPZs).
Delays on finalising labour law review: A government task force is revising the Labour Code to ensure that it incorporates ILO
core labour standards and is consistent with the African Growth and Opportunity Act (AGOA). There is growing union frustration over
the slow pace of finalising the laws, as the government claimed that they cannot be finalised until the Constitution is ratified. However,
following the rejection of the new Constitution by Kenyan citizens in 2005, it is uncertain when the law will be passed.
Obstructing the right to strike: In practice, the right to strike is frequently violated in Kenya. During the notice period, the
Minister of Labour generally intervenes and proposes a mediator for the dispute. If the negotiations break down, the government usually
refers the matter to an industrial court, pre-empting any decision to take strike action. In cases where workers have become frustrated
with the lengthy process and have decided to go ahead with a strike, their action has usually been declared illegal.
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New contracts for teachers remove senior teachers’ union rights: The New Teachers’ Service Commission (TSC) regulations, introduced on 1 October 2005, prohibit senior teaching staff from playing an active part in the union, including participating in
strikes. This edict covers school principals, deputies, heads of departments, senior researchers, advisory centre tutors and education programme officers. Teachers who fail to comply will be liable for disciplinary action. By year’s end, the TSC had refused to meet with the
Kenya National Union of Teachers (KNUT) to discuss the new contracts
Workers allowed to join unions in EPZs, but with restrictions: Workers in the export processing zones (EPZs) are allowed to
join trade unions, but they still suffer appalling working conditions, and those who complain are threatened with the sack. In May 2004,
for example, workers in the country’s EPZs claimed they were threatened with dismissal for complaining about their working conditions
to human rights groups.
There are currently around 36,000 workers in the country’s 30 zones.
VIOLATIONS IN 2005
Background: There was considerable union discontent during the year, mirrored by growing government anti-union sentiment. The
year was dominated by a civil servants’ and health workers’ strike and its aftermath. Trouble began in February when the government
warned that it was replacing civil servants’ existing contracts with one-year performance contracts in response to donor-funded requests
to make the civil service more efficient. At the same time, the unions requested a 600 per cent pay rise.
Government warns civil servants over proposed strike: When the Union of Kenya Civil Servants (UKCS) announced a strike
on 1 June, Minister of State in the President’s office, William ole Ntimama, said that civil servants who did not report to their stations
would be “considered to have deserted duty” with the resultant consequences. Despite this threat, thousands of civil servants staged
strikes, demonstrations and sit-ins round the country in Nyandaru district, Rachuonyo districts, Nakuru, Kitui and Mwingi.
Medical workers sent home after strike: A total of 199 medical workers at two major hospitals in Kenya were suspended in June
for having taken part in a strike. At the Coast Hospital in Mombasa, two wards were closed after 80 workers were suspended. At
Msambweni District Hospital, only one in four of the staff remained at their posts.
According to reports, about 5,000 nurses and hospital workers at the Kenyatta National Hospital (KNH) also went on a wildcat strike
on 15 June after discovering that the hospital administrators had received huge pay increases. The Minister of Health, Charity Ngilu,
promised them that they would receive similar increases if they returned to work, and when they did not, they went back on strike the
following week.
Replacements hired for sacked workers: On 6 June, the Ministry of Health published the names of 384 nurses who had been
hired to replace those on strike.
Government sacks 1,600 strikers: On 6 June, the government announced that it was dismissing 9000 civil servants who took part
in the ‘illegal’ strike and was withholding union dues. Finally, on 13 July, it sacked 1,600 people who had participated in the strike, but
agreed to remit the union dues.
Government ignores its own ‘back to work’ agreement: The government ignored a back to work agreement negotiated in an
out-of-Court settlement with civil servants in August to reinstate the sacked workers and give them a 14 per cent pay rise.
The government finally agreed to reinstate the workers in November and to remit the union dues. This only occurred after the UKCS
agreed to hold elections on 7 October 2005, and Secretary General, Francis Atwoli, convinced the government to release union dues in
order to fund these elections. New union officials were elected, and the sacked workers reinstated.
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Airline workers warned against strike: On 19 April, Kenya Airways warned its staff that there would be dire consequences if
they took part in a forthcoming strike called by the Aviation and Allied Workers Union (AAWU). Managing Director, Titus Naikuni,
said that the AAWU could not call a strike while negotiations were ongoing, and Kenya Airways would only negotiate with the
Transport and Allied Workers’ Union, since the AAWU was below the legal level for union recognition. Labour Minister, Newton
Kulundu, then declared the strike illegal and it was called off.
Tea workers fired during strike: Several workers at tea factories in the Gucha and Kisii districts of Kenya, who went on strike at
the beginning of April to demand wage arrears, were fired on 5 May. The strikers were reinstated after a meeting between the Kenya
Tea Development Agency (KTDA), the Federation of Kenya Employers and COTU, the national union centre. The tea workers had called
the strike after the KTDA management ignored a Court decision taken in January to pay the workers an increment of between 24 and
32 per cent.
Police disperse striking bus drivers: Police were called in to remove striking bus drivers on 11 June when they entered Kenya
Bus Service premises to demand payment of salary arrears. The managing director locked himself in his office to escape the angry
workers.
The drivers were demanding salary arrears from February, March and April. The company was said to be close to bankruptcy.
Striking university staff threatened with the sack: At the end of December, about 1,000 striking university lecturers at
Nairobi University and 600 striking lecturers at Egerton University were told their contracts would not be renewed unless they agreed
to go back to work.
They were participating in a strike called on 10 November by the Universities’ Academic Staff Union (UASU) in support of a demand
for a salary increase of over 2,000 per cent. Currently, a teaching assistant earns about $192 a month, and a lecturer about $217. A
full professor gets about $423.
The strike led to the closure of six universities, and to more than 60,000 students being sent home. The government appointed a reconciliation committee to find a solution to the dispute. The strikers’ salary increases were seen as justified by the committee and the government was under pressure to negotiate an end to the strike. However, no solution had been found by the year’s end.
Lesotho
POPULATION: 1,800,000 / CAPITAL: MASERU / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
Public employees are prevented from forming unions and engaging in collective bargaining,
and employers harass trade union organisers. Unions are very weak, but the government
has promised new labour legislation, which will help strengthen their position.
§
Workers in the private sector have the right to form and join trade unions without prior authorisation. All trade unions must be registered with the Registrar of Trade Unions.
Public servants denied union rights: Currently, public employees, including university lecturers, are prohibited from forming and
joining trade unions, in spite of the fact that the Lesotho Constitution guarantees freedom of association. They can only form or join
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“associations” that have consultative status. The government has promised that the new Public Service Bill will guarantee freedom of
association to public officers and allow them to form associations for collective bargaining
The right to strike is recognised, but complicated procedures must be followed before strike action is authorised. Civil servants are not
allowed to strike and all public sector industrial action is illegal by definition.
In law, all legally recognised trade unions enjoy the right to organise and to collective bargaining.
Revisions to Labour Code: During the year the government was in the process of reviewing the current Code which was seen as
favouring foreign investors rather than workers. The trade union movement was participating in the review, but it was too weak to be
able to bring much influence to bear.
The trade union rights situation continued to be a cause for serious concern during the year. Trade unionists in Lesotho have faced a lot
of pressure, with many of them being victimised because of their trade unions activities.
Legislation not enforced: The government and some employers, particularly in the textile sector, do not observe trade union freedoms. In the private sector, the complex procedures and employers’ anti-union attitude make it very difficult to operate a trade union.
Foreign employers in the industrial zones, mainly textile groups from South Africa, Hong Kong and Taiwan, ignore national legislation
and pay wages below the statutory minimum. They also refuse to pay sickness benefits and make unilateral deductions from their
employees’ pay packets. However, many of these export-oriented companies closed during the year.
Harassment: Although the law prohibits anti-union discrimination, many employers stop union organisers from entering factory premises to organise workers or represent them in disputes. In some cases, employers intimidate union organisers and members, threatening
the latter with dismissal. In the textile sector, some workers have been locked up in their factories for trying to organise.
No legal strikes: Because the strike procedure is complicated, there have not been any official strikes in the country for many years.
There have been regular spontaneous protest actions over the years, however. As these are technically defined as illegal, workers continue to risk losing their jobs and being taken to court.
Labour Court cannot review civil servants rights’ cases: The government has removed cases concerning civil servants’ rights
from the Labour Court, thus effectively taking away their rights to present their cases. This has prevented the affiliates of COLETU, the
Lesotho Union of Public Employees (LUPE) and the Lesotho Teachers’ Trade Union from assisting their members.
Liberia
POPULATION: 3,600,000 / CAPITAL: MONROVIA / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 105 - 111
§
During the year the government interfered heavily in the Liberia Federation of Labour
Unions’ (LFLU) activities by trying to remove its leaders from office. There were hopes that
the election of a new President in November would lead to greater respect of democratic
rights, including trade union rights.
Public servants forbidden to join trade unions: All workers, except civil servants, the military and the police can join or form
trade unions. However, there is currently no national legislation to guarantee workers adequate protection against anti-union discrimina-
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tion during recruitment or at work. The government has promised the ILO that it will introduce legislation to protect workers against
discrimination. The government Labour Practices Review Board has the right to supervise trade union elections.
Government decree prohibits the right to strike: With the exception of civil servants, all other workers have the right to
organise and to collective bargaining, but Decree 12 (30 June 1980) prohibits their right to strike. The ILO has requested that the government repeal this decree.
The government has told the ILO that it will repeal decrees that restrict trade union freedom and activity which contravene ILO
Conventions.
There are no export processing zones.
Striking without a permit a punishable offence: Strikes and demonstrations are allowed, but participants must have the necessary permit. During 2005, the government warned workers who were going to demonstrate about pay arrears that they would arrest
anyone who took part without obtaining the necessary permit.
Government colludes with employers: The government colludes with exploitative employers. In 2005, it renegotiated a concessionary agreement to last the next 40 years with Firestone, the company that owns many of the countries’ rubber plantations. According
to the International Labour Rights Foundation (ILRF), Firestone’s work practices differ little from when the plantation opened in 1926.
Workers have to deliver 450 pounds of latex a day to meet quotas, often relying on family members to help them. They work up to 14
hours a day, under very bad conditions.
VIOLATIONS IN 2005
Background: There were a number of go slows and strikes because of unpaid wages of up to 18 months for state employees and private sector workers. In June, even the army starting looting their barracks over non-payment of salary and severance benefits. The situation became calmer in the run-up to the country’s first free elections in November. Former finance minister Ellen Johnson-Sirleaf was
elected President, making her Africa's first elected woman head of state. There were hopes this would stabilise the country, bringing a
return to a democratic and accountable government.
Police warn civil servants after go-slow: Civil servants, who went on a go slow on 11 July to protest about salary arrears of 18
months, were warned by police that they would be arrested and prosecuted if they demonstrated without the necessary permit.
The civil servants, all members of the Civil Servants’ Association of Liberia had taken part in a number of peaceful demonstrations
since January to urge the government to pay the arrears and provide basic services. The civil servants were particularly incensed in
June when they heard that the $US2 million, earmarked to pay for their salaries, had been used to buy jeeps for government ministers
instead. After they heard that their salaries would not be paid as promised, they started their go-slow and demonstration on 11 July.
In July, Charles Bryant, Chair of the National Transition Government of Liberia (NTGL), said that international monetary institutions
had advised against paying civil servants’ salary arrears.
Government tries to remove national union officials: The Liberia Federation of Labour Unions (LFTU) Secretary-General
Isaac Williams, the Treasurer-General, Ida Collins, and the President General, Joyce Freeman, were served letters informing them that
they had been removed from office by the Minister of Labour on 21 September. The Minister of Labour then announced that he had
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“appointed” Deputy Secretary General, Alfred Thomas, as Acting General Secretary. The LFLU fought back and challenged the legality
of the Minister’s actions. The three leaders remained in office.
Shortly before this occurred, all three members had stood in the national elections, including Isaac Williams, as a Vice Presidential candidate for the Reformed United Liberia Party. This was said to be in breach of Liberia’s Constitution, which does not allow the LFLU to
be registered as a political party, or to give moral, material or financial support to political candidates. However, LFLU was neither registered as a political party, nor gave any support to Isaac Williams or to the other candidates.
Libya
POPULATION: 5,800,000 / CAPITAL: TRIPOLI / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
§
There is still no freedom of association in Libya, where the single national centre remains
under government control. There is no real collective bargaining and the right to strike is
not recognised. Foreign investment and the privatisation of the economy will inevitably
bring changes, but the existing national centre does not appear to be in a position to
protect workers’ collective rights in that process.
No freedom of association: There is no freedom of association in Libya. Workers can only belong to the General Trade Union
Federation of Workers (GTUFW), which is part of Colonel Gadaffi’s Jamahyria system. It is controlled by the government and is administered by the “People’s Committees”, whose structures it mirrors. GTUFW General Secretaries at each level of the federation have a
seat on the People’s Committees. Membership of the GTUFW is automatic, although workers do have the right to opt out. Independent
trade unions are banned . Foreign workers may not join the GTUFW.
Collective bargaining and the right to strike: The Labour Code requires that clauses of collective agreements be in conformity
with the national economic interest, which violates the principle of the voluntary negotiation of collective agreements and the autonomy
of the bargaining parties.
The right to strike is not recognised.
Role of the national centre: The GTUFW has changed its name, having dropped the word “producers” from its old title (General
Federation of Producers/Workers), and stresses that it is a workers’ union. It also claims to be independent of the government. However
its structures have not changed, neither have most of its leaders. Many people in the country regard it with suspicion and do not believe
it genuinely defends workers’ rights. The national leaders of the GTUFW claim to have opposed the government on some occasions, but
on closer inspection, the initiative did not come from the leadership. When transport workers blockaded the ports in protest at the government’s privatisation plans, the government did finally back down. The national leadership of GTUFW claimed it as their victory, but
the local port workers’ leaders did not have their support when they began their protest, and were later marginalised by the leadership.
When airline workers approached their GTUFW-affiliated union over concerns about having to fly aircraft that did not meet technical
safety standards, they were told they should carry on working and not protest.
Collective bargaining: There is no real collective bargaining in practice, despite GTUFW claims to the contrary. Unions do, in theory,
have discussions with management, but with the exception of the newly privatised companies, the unions form part of management.
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Furthermore, the government has the right to unilaterally set salaries. It can also unilaterally cut salaries, as it did repeatedly at the
national airline.
Privatisation: Libya has opened up to foreign investment. The Prime Minister showed himself to be strongly in favour of privatisation,
and appeared to be following IMF/World Bank prescriptions with no regard to workers’ rights. As the economy changes, the nature of
worker-employer relations will have to change with it. Previously, all industries were technically owned by the workers, and the “union”
was part of management. In the newly privatised enterprises, workers’ representatives will have to negotiate with employers over whom
they have no direct influence. The GTUFW say they are opposed to the way in which privatisation is taking place, and about the failure
to protect workers’ rights. But, above all, their own position is under threat.
Madagascar
POPULATION: 18,400,000 / CAPITAL: ANTANANARIVO / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 111 - 138 - 182
Social tensions have risen owing to the failure of the government to listen to the demands
of public sector unions and the weakening of their right to strike. Seafarers are still facing
interference and discrimination when they try to exercise their union rights.
§
Restrictions for public servants and seafarers: The Constitution guarantees both public and private sector workers the right to
join and form trade unions. However, according to the current Labour Code, the constitution, organisation and operation of trade unions
is determined by decree. Also, the right to join or form unions is not extended to workers in so called “essential services”. Radio and
television broadcasting, and banking are included in this classification, exceeding the limits set by the ILO's accepted definition. The
Labour Code provides for the right to collective bargaining.
The Labour Code does not cover seafarers. Under the Maritime Code, they do have the right to make collective agreements, but their
right to organise is not specifically recognised in law.
Strike limitations : The right to strike is recognised, but workers first have to exhaust the conciliation, mediation and arbitration
procedures decided by the authorities. The government has the power to require public employees to work to end or avert a strike in its
broad definition of “essential services”. In 2005, an amendment to the draft law redefining the status of magistrates brought in restrictions on the right to strike. The new text bans “any concerted action liable to stop or impede the normal functioning of the courts of
law”.
The Labour Code prohibits anti-union discrimination. Labour legislation applies fully in the export processing zones (EPZs).
Rights ignored…: Labour legislation is very rarely applied and the government seldom takes any notice of the trade unions. Workers
face anti-union discrimination.
… particularly in the EPZs: Legislation does grant union rights, however, in practice they are flouted every day due to a lack of
political will and resources. Workers have great problems forming trade unions or engaging in collective bargaining. In factories where
a union has managed to obtain recognition it is very difficult to hold union meetings, or they are categorically banned, and the unions
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complain about a lack of goodwill from employers who prevent any real dialogue between the social partners. Only one company, out of
62, has so far, signed a collective agreement in the EPZs. In the meantime, abuses such as compulsory overtime, night work for women
and sexual harassment persist.
Government interference in trade union affairs: A government decree, issued in 2000, requires trade unions to provide a list of
their members, a copy of their by-laws and the names of their serving officers. The government claimed this was merely to ensure that
trade unions were representative. As the ILO pointed out, a record of membership dues should be sufficient for this purpose, as a list of
names could make members more vulnerable to anti-union discrimination.
The country's trade unions also allege that the Ministry of Public Service, Labour and Social Law interferes in the elections of worker
representatives to various tripartite bodies. It organises missions involving workers' delegates, without the knowledge of their confederations - for the purpose of appointing delegates to regional tripartite bodies - and calls for candidates, other than those already put forward by the confederations for membership, for these bodies.
VIOLATIONS IN 2005
Attempts by the authorities to silence trade unionists in the civil service: At the beginning of 2005, the authorities tried
to deter unions from preparing strikes by threatening the blocking of wages. Traditionally, striking public employees have continued to
receive their wages. In February, after strikes broke out in higher education and the magistracy, the authorities carried out their threats
and suspended the salaries of several dozen magistrates and university lecturers who had stopped work. The strikes then subsided and
people went back to work. However, in September, eight former strikers from the teachers’ and researchers’ trade union, Syndicat des
enseignants-chercheurs (SECES), were still not receiving their wages. It should also be noted that as a consequence of the strikes, the
draft law on the status of magistrates was amended to include restrictions on the right to strike.
Sacking of a public service union leader: On 5 October, Florentin Ramamonjisoa, President of the Coordination Committee/
Departmental Unit lost his post as a university administrator for “abandoning his post”. The decision was taken by the Disciplinary
Council of the Ministry for Civil Service, Employment and Social Laws. The union maintains that the real reason for the dismissal was the
authorities’ desire to get rid of a troublemaker who had been leading a three-year struggle to obtain decent wages for public employees.
Trade union leaders from the maritime industry blacklisted: Since the creation of SYGMMA (the national union covering the
maritime industry) in 2003, its leaders have repeatedly been subjected to anti-union discrimination by one of their employers, the Indian
Ocean Maritime Services company (Services Maritimes de l'Océan Indien, SMOI). Two people working for the company since 1995,
Lucien Razafindraibe Harinony and Higel Mitchell Hanitriniony, respectively General Secretary and Deputy General Secretary of SYGMMA, were blacklisted after successfully concluding a collective agreement providing for wage rises for the crews of ships belonging to
SOCATRA/SMOI. Since January 2003, the two union activists, whose organisation is affiliated to the ITF, have been out of work,
although SMOI has continued to recruit new officers and crew members.
Employment contracts defining strikes as serious offences: SYGMMA has also denounced abusive practices suffered by
members of one of its affiliates, SOCAMAD. Seafarers are forced to sign employment contracts in which strikes are regarded as serious
offences liable to legal proceedings that may lead to their dismissal. Seafarers are bound by the Maritime Code, which does not include
the ILO core conventions, thereby leaving the way open to such abuses. The maritime authorities have condoned these practices by giving
their approval when the seafarers' contracts are signed.
Creation and control by SMOI of a workers’ association: In order to undermine the work of SYGMMA, SMOI has set up the
so called “SMOI Seafarers Collective” (“Collectivité des marins de la SMOI”). This association claims to be similar to a union, but
workers must join it if they wish to be recruited. The “collective” actually works as an intermediary between seafarers and SMOI, as the
recruiting company. Its head office is the same as SMOI’s, and the people who run it have been chosen by SMOI.
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Malawi
POPULATION: 12,600,000 / CAPITAL: LILONGWE / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
Employers take advantage of weak unions to mistreat workers, and the government turns a
blind eye. In the hotel industry union members reported harassment, while an employer at
a bakery physically attacked a union organiser.
§
Rights recognised in theory: Workers have the right to form and join trade unions. This includes civil servants, with the exception
of army personnel and the police, but union leaders estimate that only 12 per cent of the formal workforce belongs to unions. Unions
must register with the Ministry of Labour, although this is largely a formality. The law prohibits anti-union discrimination and requires
that workers sacked because of union activities, must be reinstated.
Cumbersome strike procedures: Registered unions may strike. However, strike action can only be taken after all dispute settlement and conciliation procedures have been exhausted. The employer and the Ministry of Labour must be given at least seven days’
notice. Workers in essential services have a limited right to strike. The law does not specifically prohibit retaliation against strikers.
Collective bargaining is recognised in law, provided the union represents at least 20 per cent of employees at enterprise level. At a sectoral level, unions must represent at least 15 per cent of employees. In the absence of collective agreements, the law provides for industrial councils to set wages and conditions and resolve disputes.
Labour laws apply in the export processing zones (EPZs).
Employer resistance: Because barely 10 per cent of workers are in formal employment, the labour legislation automatically
excludes the vast majority of workers in the informal economy. For the small minority in formal jobs, the resistance of some employers,
including the government, towards respecting their rights, limits freedom of association and collective bargaining. The Malawi Congress
of Trade Unions reports a number of cases where workers are badly mistreated, and where employers appear unaware that workers
have employment rights by law.
Ineffective legislation: Ambiguities in the application of the law, especially the right to strike, and continuing government interference in trade union activities, reduce the effectiveness of the law to protect workers. The law does not specify exactly which services are
essential, enabling the authorities to declare strikes illegal.
Many companies in the EPZs resist union activity, while the unions complain that they have little access to workers in the zones.
Enforcement of legislation by the Ministry of Labour is ineffective. Further, it was reported during 2005, that there were signs of collusion between the government and some employers against trade union activists.
VIOLATIONS IN 2005
Background: President Mbingu Muntharika broke away form the United Democratic Front amid growing dissent among its ranks,
and formed his own party, the Democratic Progressive Party. Failed crops and drought left millions hungry by the end of the year.
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Harassment of hotel staff union members: According to the Malawi Congress of Trade Unions, there have been a number of
cases where hotel workers, who were union members, have been harassed.
The example was given of the manager of the Kalikuti Hotel, who insulted the union negotiating team telling them they were too stupid
and ignorant and that he would not deal with uneducated workers. He was later forced to apologise when the Hotels Union registered
the complaint with the Ministry of Labour.
Union organiser beaten by employer: The central regional union organiser for the foods union, was beaten up by his employer at
the Royal Food Industries’ bakery.
Mauritania
POPULATION: 3,100,000 / CAPITAL: NOUAKCHOTT / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
§
Many employers have failed to respect the agreement between the social partners of
January 2005. Mass redundancies have taken place to punish workers demanding the
application of that agreement or trying to hold free trade union elections. In addition, the
Labour Code, adopted in 2004, dangerously reinforces restrictions on freedom of
association and the right to strike.
The new Labour Code was adopted under Act 2004/017 of 6 July 2004. Though the unions had made various recommendations during
the drafting process, they noted that these had not been taken into consideration. The law introduced some serious breaches of union
rights (see below). Nevertheless, the new text does contain a few positive measures for addressing current developments in the socio-economic situation and combating forced labour.
Restrictions on freedom of association: All workers, except members of the military and police, are free to form and join trade
unions. However, the government has the power to decide whether or not to recognise a trade union, and the Office of the Public
Prosecutor has to authorise all trade unions. Unions have no legal status until they receive that approval. Articles 275 and 276 contravene Convention 87 and constitute a breach of freedom of association and the protection of union rights.
At present, non-Mauritanian nationals do not have the right to become trade union officials unless, as the Labour Code requires, they
have worked in Mauritania and in the profession represented by the trade union, for a period of at least five years.
Protection of trade union leaders is not explicitly provided for in the Labour Code, although it is conferred on workers' delegates within
companies. However, labour courts are no longer allowed, as was previously the case, to overturn decisions and reinstate workers who
have been arbitrarily dismissed. This provision will therefore benefit the employers.
Sanctions can still be imposed against a union. However, on a positive note, it is now the Labour Court that is responsible for suspending
a union and not the public prosecutor.
Obstacles to the right to strike: The right to strike is recognised. Civil service unions have to give one month's notice before holding a strike, while in the private sector they must provide official notification that conciliation procedures have broken down.
In the former Code, the right to call a general strike was subject to interpretation, as there was a legal void. In the new Code, public
authorities have the right to judge the legality or otherwise of a strike, whilst the unions have no right of appeal against that decision.
Executive and managerial staff are not allowed to strike.
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The Labour Code also restricts strikes in sectors that are not covered by the ILO definition of “essential services”.
Collective bargaining: The right to collective bargaining is recognised.
Employer resistance to the application of social partners’ agreement: This historic agreement, the first in 20 years, basically provides for improving wages and institutionalising social dialogue. However, several major diputes that arose in 2005, show that
many employers have made little progress in adopting the principles of social partnership.
Prior authorisation rarely granted: Unions have reported that authorisation for a trade union to exist and operate is rarely granted. More than 100 applications have been blocked at the registry of the Public Prosecutor since the 1993 law introducing trade union
pluralism came into force.
Anti-union pressures: The unions also report that trade union organisations are not free to carry out their activities normally, as
they regularly come up against obstacles and pressure from the government. Unionised workers are subjected daily to all kinds of pressure and discriminatory measures, such as arbitrary dismissals - in particular for exercising the right to strike. Workers are occasionally
imprisoned, tortured and then dismissed, purely on the grounds of employers' complaints of supposed wrong doing at the workplace.
Government interference: At the Congress of the UTM (Union des travailleurs de Mauritanie) on 30 June and 1 July 2003, a new
General Secretary (a former insurance company executive with no union experience) was imposed on the delegates by the government.
He promptly announced that the UTM would support the President in the presidential elections.
In 2004, the government supported a recruitment campaign by the UTM aimed at all employees of the government and State-related
organisations. Heads of department and company directors sent circulars asking workers to join the UTM. This showed clear interference in the right of workers to choose their own union, and made workers who belonged to other unions, feel threatened. This government interference, in support of the UTM, continued up to the coup of August 2005.
Collective bargaining rights ignored: According to the unions, there is virtually no social dialogue, and employers are very reluctant to deal with them. Social dialogue generally only takes place when workers take industrial action. In many companies, freedom of
association is constantly short-circuited because employers interfere in union elections. This occurs frequently in the private sector where
union delegates are very vulnerable.
Ineffective labour inspection: The enforcement of rights is complicated by the fact that labour inspectors have few means at their
disposal and corruption is rife. Some have to cover regions that extend over 6,000 square kilometres, without a telephone or car. Even
when a dispute breaks out, labour inspections are limited to voluntary conciliation. When a union takes the matter to a higher level, the
legal environment is such that court rulings are often contradictory and sometimes completely ignored by companies. Also, the procedures for settling disputes have become increasingly lengthy and complex. The new Labour Code allows 30 days for conciliation, 120
days for mediation and 90 days for arbitration. Thus, in certain cases it will take seven or eight months to complete the procedure for
settling a conflict.
VIOLATIONS IN 2005
Background: On 3 August, a coup brought the Military Council for Justice and Democracy (Conseil militaire pour la justice et la
démocratie, CMJD) to power. The new leadership promised to restore civilian rule within two years after creating “the right conditions
for an open and transparent democracy”. The imminent start of drilling for oil reserves is eagerly awaited by the population, but the
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social tension that is already rife in the industry, is worrying the unions. The hopes raised by the presence of oil should, however, be contrasted with the persistence of poverty and indeed, in certain areas, with the continual human rights abuses linked to slavery.
Collective dismissal during an organising process at a sub-contracted firm: On 14 October 2005, the management of
El Majabaat El Koubra Tours (MKT), a transport and logistics firm working in the oil industry, sacked 16 employees, including ten who
had just been elected as union representatives. The decision came after tense negotiations between staff and management, using arbitration through the labour inspectorate. A protocol agreement was reached for the election of the staff delegates’ committee on 1
November 2005 and the commencement of collective bargaining. The fact that these workers belonged to the oil and energy workers’
union affiliated to the Confédération générale des travailleurs de Mauritanie (CGTM) appears to have prompted MKT to sack them.
Aware that the move was illegal, MKT told the Labour Inspectorate that it was prepared to assume all the consequences of its action,
“even to the point of disturbing the social peace”. Out of solidarity with their sacked colleagues, a clear majority of staff stopped work.
At the end of the year, the strike was still going on, despite the recruitment of new workers in an attempt to break the strike. Since the
start of the dispute the union has repeatedly deplored the passivity of the labour administration.
Mass redundancies at the SNIM and in a subsidiary: A 30-minute stoppage on 18 April at the National Industrial and Mining
Company (Société nationale industrielle et minière, SNIM) ended in the dismissal of 22 workers including several union activists.
The stoppage was held as a protest against the management's refusal to apply the increase in the national minimum wage announced in
January. At COMECA, a subsidiary of the SNIM that makes spare parts, a similar conflict broke out around the same time.
On 4 April, when management refused to negotiate transport and accommodation allowances, the workers held an hour-long stoppage.
On 20 April, the three-day suspension of an employee led to a strike that was followed by management reprisals. Over the next few days
management sacked 30 workers. As the dispute got nastier, the unions criticised the administrative complications and the authorities’
reluctance to implement a ruling by the industrial tribunal.
Mauritus
POPULATION: 1,200,000 / CAPITAL: PORT LOUIS / ILO CORE CONVENTIONS RATIFIED: 29 – 87 - 98 - 100 - 105 - 111 - 138 - 182
A conflict between Air Mauritius and the President of MALPA centres on a serious breach
of the recently ratified Convention 87. The government and the union have failed to reach
agreement on the draft law amending the IRA.
§
The Constitution protects the right of workers to form and join trade unions, and this right has been strengthened by the ratification of
ILO Convention 87 in February 2005. But there are restrictions. According to the Mauritius Labour Congress (MLC), part of the legislation gives the authorities the right to cancel a union's registration if it fails to comply with certain legal obligations.
Strike restrictions: The right to strike is also recognised under the Industrial Relations Act (IRA), but there are limitations. The IRA
imposes a 21-day cooling off period before any strike can begin, and the Labour Ministry can order that the case be taken before the
industrial court for binding arbitration. The government also has the right to declare any strike illegal that is likely to cause extensive
damage to the economy. The ILO reminded the government that the limitation on the right to strike needed to be accompanied by appropriate, impartial and expeditious conciliation and arbitration procedures. It also stressed the fact that the dismissal of workers (following
their involvement in a strike), and refusal to reinstate them, were very likely to constitute abusive actions and were in violation of freedom of association.
Amendment Act seeks to impose agreement: The MLC states that the IRA Amendment Act, adopted in June 2003, restricts
the right of public service unions to declare a dispute over pay. The amended Act introduces an “Option Form” to be signed by govern-
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ment employees whereby they agree to abide by the Pay Research Board's recommendations. If they do not agree with the recommendations, they can decide to retain their wages and former working conditions, but the wages will always be inferior. Once the Option Form
is signed, however, they will no longer have the right to declare a dispute in the same sector.
The ILO has reminded the government that trade union organisations should be able to settle disputes directly with employers.
Export processing zones: Labour legislation applies in the export processing zones (EPZs), but there are also specific labour laws
that condone longer working hours (45 hours a week, plus ten hours compulsory overtime in the EPZs, where required). These special
provisions mainly affect migrant workers (see Violations in 2005).
Proposed reforms: The government began a labour law reform project in cooperation with the ILO. A White Paper was released in
November 2004, and the government sought the trade unions' comments on it. There were still a few problem areas however, notably
the provisions on compulsory arbitration, which could be used as a means to restrict the right to strike. In January 2005, the arrival of
a new ILO mission and the renewal of dialogue with the social partners augured well for the achievement of a positive outcome.
However, the government and the unions failed to agree on all the points that would ensure its compliance with conventions 87 and 98.
When the opposition returned to power in September, fresh consultations were started.
Export processing zones: Access for organising in the EPZs is very difficult. In the main, organisers have to wait at the factory
gate for workers, who come out in large numbers. The organiser may not know many of them, and most are women rushing to get home
to their domestic responsibilities. An ICFTU-AFRO mission to Mauritius in February 2004 was told that the few men they saw were
mainly supervisors who were said to be hostile to unions.
As a result, union membership levels are low in the EPZs (below 12 per cent). Because of the lack of effective union representation,
there are cases where health hazards and workplace-related illnesses have not been addressed and rectified within a reasonable time.
Both the ILO and the national trade union centres, the Mauritius Labour Congress and the Mauritius Trade Union Congress, have
demanded that the law be amended to rectify the lack of legislative protection against anti-union discrimination, especially in EPZs.
However, the government opposed this since changing the law could frighten away investors and lead to relocations. According to an
ICFTU study in 2004, violations are most frequent in Asian-owned factories.
Migrant workers: Unions also find it difficult to get access to, and organise, migrant workers, particularly those from South-East
Asia and Madagascar. They tend to work long hours and be cut off from other workers. These migrant workers are unaware of the laws
that protect them and Mauritians and often earn between 2000 and 2500 rupees ($US 70 to $US 90) or less, per month. Some of
them have intolerable living conditions, sleeping in dormitories on benches with no mattresses, or in tiny bedrooms housing up to a
dozen people.
Similarly, there have been reports of trade unions facing difficulties in organising workers in the growing off-shore business sector.
Workers who participate in illegal strikes are frequently sacked.
VIOLATIONS IN 2005
Repression of a demonstration by Chinese workers: On 8 March, 300 Chinese workers from the textile firm, Compagnie
mauricienne de textile (CMT), took to the streets of Port Louis to show their anger at the death of one of their compatriots, Hu Xiao
Bing, who had been found dead a few hours earlier in a dormitory in the factory. The demonstration turned into a confrontation when
the police used tear gas to prevent the demonstrators from marching down one of the main streets and bashed participants, injuring
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many. The workers had refused to allow the police to carry off their colleague’s body and had first gone to the Chinese embassy, where
they had complained about the exhausting work schedules imposed in the factory. They claimed that their colleague’s death was due to
exhaustion and explained that their employer often forced them to work from 7.30 am through to 11 pm, with just two half-hour breaks.
That accusation was denied by François Woo, the company director, who said such hours were due to an “exceptional production situation”. The autopsy on young man showed that Hu Xiao Bing had died of acute pneumonia, due to a chronic breathing problem.
Suspension of the President of the Pilots’ Association: On 31 August, Russlan Ramdowar, an Air Mauritius pilot and
President of the pilots’ association, Association des pilotes de l’île Maurice (MALPA), was suspended from his post by his employer. The
latter accused him of having sent an e-mail to the International Federation of Air Line Pilots' Associations (IFALPA), on 25 August. In
his e-mail, Russlan Ramdowar expressed his concern at the extreme pressure being exerted on pilots, due to an increase in working
hours in breach of international safety standards. The new method of calculating flying time was linked to the renewal of an agreement
on pilots’ working conditions (the so called, “MOU”) that was due on 31 May 2005. Since the negotiations between the parties had broken down, the union had referred the case to the Labour Ministry. On 7 September 2005, faced with the impossibility of reaching an
agreement, the Ministry of Labour had agreed to take the case to the standing arbitration court. On 13 September, in a letter sent to Air
Mauritius, Russlan Ramdowar inveighed against both the illegal deviation of his e-mail and the intrusion by his employer into his work
as a trade unionist. The MLC, AFRO and the ICFTU sent a protest letter to the Minister of Labour, Vasant Bunware, following the suspension of Russlan Ramdowar. For many months, the working conditions of Air Mauritius pilots had been worsening. Since November
2004, these changes have resulted in the resignation of 55 pilots.
Morocco
POPULATION: 31,600,000 / CAPITAL: RABAT / ILO CORE CONVENTIONS RATIFIED: 29 - 98 - 100 - 105 - 111 - 138 - 182
§
Employers are often hostile to the creation of trade unions. The managements of several
companies, including Valeo and STMicroelectronics, has suspended or sacked the workers
behind such initiatives or had them arrested. Heavy sentences have also been unfairly
imposed on strikers involved in the long labour dispute at the Imini mines.
Workers are free to form and join trade unions without prior authorisation. Agricultural workers enjoy fewer rights than others and
magistrates are completely barred from carrying out trade union activities.
Labour Code: The new Labour Code, which was drafted in 2003, in order to modernise labour relations and make the Moroccan
industry more attractive to outside investors, has “flexibility” as its recurring theme and within this there are some positive and some
negative traits. It includes provisions to stop the casualisation of work and to bring the law into line with ILO Conventions, such as those
on maternity and the minimum working age. It also makes it compulsory to cover accidents at work and to register workers for social
security. The trade unions are not entirely satisfied with the new Code. They complain that it institutionalises job insecurity and makes it
easier for companies to hire temporary staff. The employers did not get everything they wanted either. Notably, the government did not
agree to their proposal that a minimum of two thirds of workers should vote in favour, before strike action can be taken.
Anti-union discrimination prohibited: The new Code specifically prohibits employers from sacking workers for participating in
legitimate union organising, and the courts have the power to reinstate arbitrarily dismissed workers, and can compel employers to pay
damages and back pay.
Collective bargaining severely controlled: In an attempt to control collective bargaining, the government institutionalises the
procedure for collective bargaining for all those covered by one of the three types of contracts introduced in the new Code (unlimited,
fixed term and temporary).
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Right to strike: In February 2004, the government unilaterally produced a draft law on the right to strike. The Moroccan confederation (Union marocaine du Travail, UMT) called for a revision of this text, since certain articles make it impossible to exercise the right
to strike and violate several international conventions ratified by Morocco. Article 5, for instance, guarantees “the right to work” to
employees who do not go on strike. The UMT finds this notion ambiguous and open to many different interpretations. The confederation
also repeated its demand for the abrogation of Article 288 of the Penal Code concerning the “right to strike”, since it gives the
employers too many prerogatives. In Article 6, which stipulates that a strike effectively suspends employment contracts, but does
not terminate them unless employees commit serious offences during the strike (theft, public drunkenness, insults or the use of violence against a worker or his/her employer), the union considers that this notion of serious offences lays workers open to dismissal
and legal proceedings. Under that clause slogans or pickets, whose use is recognised and permitted by ILO case law, could conceivably be viewed as acts of violence.
Restrictions on sit-ins, picketing and public demonstrations: Further to a court ruling, sit-ins are prohibited and employers
can suspend for seven days any worker who prevents non-strikers from going to work. A second offence during the year can lead to a 15
day suspension.
Under the Labour Code, employers have the right to seek criminal prosecution of any strikers who hold a sit-in, damage property or
carry out active picketing. The government can break-up demonstrations in public areas held without government permission, and can
prevent factory occupations.
In practice, wages are often set by employers, although there is a tradition of collective bargaining in some sectors, including industry.
In some cases, disputes have arisen because employers have failed to implement collective bargaining agreements.
In many private companies and within the public sector, labour law is often ignored: Some of the worst offenders are
multinational companies, who act with the authorities' connivance. For example, when a trade union was set up in November 2000, in a
factory of 1,200 workers run by a subsidiary of Irish Fruit, of the Loom group, in the town of Salé, a whole arsenal of anti-union tactics
was unleashed. When the UMT reported the case to the Governor of Salé he sided with management, stating bluntly that he did not want
any unions in his prefecture. Certain Moroccan companies use the same techniques. To take one example, the 700 employees of the La
Clémentine company, most of whom are women, are exploited under feudal conditions and enjoy none of the rights guaranteed by the
Labour Code. The moment they joined the UMT, in 2004, three members of the union’s executive board were sacked. That led the
employees to hold a month-long strike, in November 2004, to demand the reinstatement of their colleagues and the application of the
Labour Code. All the strikers were sacked immediately. Instead of forcing the manager to apply the law, the local authorities colluded
with them by having five workers arrested. The workers were subsequently sentenced by the court in Eljadida to a two-month prison term.
Abuses in the EPZs: EPZs are beginning to develop, particularly in the port of Tangiers and in Casablanca. Sadly, many of the companies in these zones are operating illegally. The companies concerned are often small production units (in the textile or food sectors)
and are failing to declare their employees and pay them the minimum wage.
VIOLATIONS IN 2005
Heavy sentences for strikers at the Imini mines: Starting in December 2002, 150 workers and officials from the Imini mines,
which belong to the mining company Société anonyme chérifienne d'études minières (SACEM), held an open-ended sit-in at the head
office in Ougoug. They were protesting against their employer’s decision to reduce their full-time contracts to part-time ones with a 50
per cent pay cut. On 15 April 2004, the sit-in was violently broken up by armed thugs sent by the SACEM management. The 120 members of this militia included a diabetic man with mental problems, who had just been released from hospital. After sustaining a minor
hand injury during the attack, the man was driven back to the hospital, where he died in dubious circumstances. In the meantime, some
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of the unionised workers were arrested and subjected to legal proceedings. On 4 January 2005, six of them were sentenced to ten years’
imprisonment for “unintentionally causing death by inflicting blows and injuries”. Several facts attest to the biased nature of the trial.
Mohamed Khouya, one of the trade unionists who was sentenced, has consistently denied that he was present during the events he is
accused of having taken part in. However, the court has not taken into account.
Suspension and arrest of trade unionists at Valeo: On 12 April, Abelghafour Semlali, General Secretary of the UMT union at
the Sylia Valeo factory, was suspended by the management and prevented from returning to his job. When learning this, the night team
began a stoppage at 10 pm. The management immediately called in the police to end it. The Governor of Bouznika (in Benslimane
Province, some 50 kilometres north of Rabat), who was already renowned for his opposition to trade unions (see Trade union rights in
practice), arrived at the site in person, and armed, to help the police. This violent attack resulted in several injuries and led to the arrest
of six UMT union leaders. The suspension of Abelghafour Semlali, which was decided without any prior warning, and in total breach of
the regulations, is a blatant violation of ILO conventions 87 and 98. This show of force by the management followed on from the decision by the staff to join the UMT and elect a nine-member executive board on 30 March.
Violent confrontation and arrests at the UMT regional office for Rabat-Salé-Témara: On 30 June, at 8.30pm, as trade
union leaders from various sectors affiliated to the UMT were holding a meeting, police in anti-riot gear and escorted by information
service officers, forced their way into the head office of the UMT regional organisation for Rabat-Salé-Témara. The police were aiming
to evict members of the senior officials union (Union des cadres supérieurs) who were unemployed and had sought refuge in the UMT
office after being chased by police when carrying out a perfectly reasonable sit-in to demand their rights to work and dignity. The police
brutally beat the members of the officials’ union and other trade unionists on the scene. Around ten people were injured, some very seriously, including, El Ghandour Naîma, Abdelouahed Kabou, Nidar, El Ouadi, Abdelkader Essarssour and Faissel Ouchen. The police also
arrested several activists.
Arbitrary dismissal of trade unionists at STMicroelectronics: The multinational STMicroelectronics has an integrated circuit
conception and development centre in Rabat, where it employs over 170 workers. On 13 July, the workers held a general meeting at the
head office. They set up a company union and elected an executive board, in accordance with the Labour Code. The following day, the
management called in all the union delegates individually and threatened them with dismissal if they did not resign from the executive or
change their union, setting a deadline of 25 July. On 26 July, the management carried out its threats by sacking the General Secretary,
Rachid Boukhari, and another member of the executive board, Nabil Chiadmi.
Mozambique
POPULATION: 19,500,000 / CAPITAL: MAPUTO / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
Government employees still do not have trade union rights. There are limitations on the
right to strike, partly because the government definition of essential services is much
broader than that of the ILO.
§
Freedom of association denied to public sector workers: The Constitution states that all workers, without exception, have the
right to join a trade union. However, those areas of labour law that guarantee freedom of association do not cover government employees, neither civil servants nor employees of public enterprises. Repeated promises by the government, notably to the ILO (including in
2005), to amend the law to give government employees full rights to organise and to bargain remain unfulfilled.
Ineffective protection from discrimination: Anti-union discrimination is prohibited but the penalties are not sufficiently dissuasive.
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Abusive definition of essential services: The government’s definition of “essential services” in which it can impose compulsory
arbitration during an industrial dispute, is far broader than the ILO’s definition of services “whose interruption would endanger the life,
personal safety or health of the whole or part of the population.” The government includes working with combustible asbestos, loading
and unloading livestock and perishable foodstuffs, postal, transport and funeral services. The Mozambique Workers’ Organisation
(OTM-CS) has drafted proposals to be submitted for the revision of this legislation.
Right to strike – not for all: The Constitution guarantees the right to strike, although again this right is not extended to the military, the police, civil servants or workers in the broadly defined essential services. The hiring of substitute workers and lockouts by
employers are forbidden, and strikers are protected from retribution.
Employers block union activity: The OTM-CS has reported frequent trade union rights’ violations by employers who try to stop
the unions from protecting their workers, and do not comply with collective agreements or with state legislation to protect them from
being sacked. Union officials are threatened with dismissal, and union members have been dismissed under false pretences. Some
employers violate Article 103 of the Mozambique Labour Code that stipulates that union leaders must not be transferred from their
workplace without being consulted. Employers also carry out misinformation campaigns about unions and prevent organisers from
entering premises to carry out recruitment campaigns. These tactics appear to be successful, as only 3 per cent of the workforce is
organised.
Laws preventing public meetings without written permission hinder trade unions’ ability to operate freely.
Unionists discriminated against in export processing zones: Unionists face discrimination and unfair dismissal, and workers
are dismissed for going on strike. Collective agreements are not respected, nor is the principle of equal pay for equal work.
Namibia
POPULATION: 2,000,000 / CAPITAL: WINDHOEK / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 105 - 111 - 138 - 182
Collective bargaining principles were ignored by employers in the textile and fishing
industries, who took the approach that the unions should simply agree to their proposal or
workers would lose their jobs. In the leisure equipment industry, 79 workers were
dismissed for striking in support of their shop steward.
§
Workers are free to form and join trade unions, and the law provides for collective bargaining. The right to strike is recognised, including in the EPZs, although workers in essential services are excluded.
Limitations: Strike action can only be used in disputes involving specific workers’ interests such as pay rises, and there must be a 48
hour notice period. Disputes over workers’ rights, including dismissals, must be referred to the labour court for arbitration. Current
arbitration and dispute solving mechanisms are cumbersome, leading to a long backlog of cases.
New labour law: A new Labour Act was approved in November 2004. It contained comprehensive amendments to the dispute settlement machinery, and removed some of the existing confusion over the law by removing obscure language. It had not been implemented
by the year’s end.
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Restrictions on union organising: Although farm and domestic workers make up a sizeable portion of the Namibian labour force
and are covered by the Labour Code, employers still intimidate them when they try to organise trade unions. The Metal and Allied
Workers’ Union (MANWU) has reported that its members are not allowed to organise during working time.
Hostility – particularly in the EPZs: Studies indicate that employers are still generally hostile towards trade unions. They refuse to
recognise them. Many do not accept their presence and do not wish to negotiate collective agreements with them. This trend is particularly apparent in companies operating out of the Walvis Bay EPZ.
VIOLATIONS IN 2005
Background: Hifikepunye Pohamba, of the ruling SWAPO party, was inaugurated as President in March. The political situation
remained stable.
Abuses continue at Ramatex factory: Workers at the Ramatex factory reported at the beginning of the year that abuses
continued. The employer refused to deal with the union, despite an agreement signed with Namibia Food and Allied Workers Union
(NAFAU) in 2002 to engage in annual collective bargaining.
The International Textile, Garment and Leather Workers’ Federation (ITGLWF) issued an international appeal concerning abuses,
notably very low wages, at the factory on 3 February. On 7 February following this appeal and after discussions between the unions, the
company and the government, Ramatex agreed to improve its treatment of the workforce.
Bad faith bargaining: However, conditions deteriorated again on 20 October, when Ramatex instructed the NAFAU to tell its members not to talk to the media about wages or conditions. This occurred after Ramatex offered a wage increase of only N$0.10
(US$0.02) an hour. The workers asked for an increase between N$3 and N$4 (US$0.5 – US$0.6). Employees had been calling radio
phone-in programmes demanding that the government came clean about the agreement it had reached with Ramatex, and whether this
included conditions relating to the workforce.
Wage negotiations continued into November, with the employer refusing to revise the ten cents offer. Some employees believed that
Ramatex was attempting to provoke the workers to take unlawful action in order to give the company an excuse to close the factory and
move it to a more lucrative location. In April, over 1,600 workers were laid off when Ramatex’s Rhino subsidiary was closed. Only foreign employees were found jobs in another subsidiary, while all Namibian workers lost their jobs in the closure.
Workers fired for defending union shop steward: Seventy-nine workers at Cymot, a hardware and outdoor leisure equipment
dealership were fired on 20 May after a wildcat strike.
The workers went on strike after Albert Cloete, their shop steward, was sacked for alleged insubordination after he had attended a hearing. But, the workers believed he was sacked because he had represented their interests. They called off the strike when the Metal and
Allied Namibia Workers’ Union (MANWU) intervened and were optimistic that the management would reinstate Cloete. Instead, after
they had called off the strike, the management summoned them to a hearing. When they refused, believing that the hearing would be
unbalanced as it was to be conducted by a company employee, management dismissed all 79 of them.
At the end of August, Cymot reinstated three of the 79 sacked workers. However they ignored the ruling by an independent consultant
given in June that all the workers should be reinstated.
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No bargaining – accept wage cut or face dismissal: Cadilu Fishing Company at Walvis Bay retrenched 127 of its workers on
27 April after they refused to accept a 60 per cent wage cut. Their union, the Namibian Seamen and Allied Workers’ Union, had originally filed an urgent application to the court to prevent the company from altering their terms of employment on 7 January. However,
they heard in April that the application had been unsuccessful and that the company intended either to rehire the men on substantially
lower salaries or to hire casual labour.
It was reported that on 2 May that Cadilu had replaced all 127 workers with casual workers. The company was said to be planning to
retrench a total of 351 workers by the end of May.
Nigeria
POPULATION: 130,200,000 / CAPITAL: ABUJA / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 – 182
§
The 2005 Trade Union Amendment Act has restricted the right to picket and curtails the
right to strike to “disputes of rights” - preventing unions from calling strikes to challenge
unpopular government policies, such as incessant fuel price rises - and could considerably
weaken the country’s trade union movement by opening the way to a multiplicity of
unions. In the oil industry, 170 workers were sacked for asking for better conditions, while
the management of a drilling company urged armed police to attack workers during a
dispute.
Excessive membership requirements: The Constitution recognises the right of workers to join or form trade unions but, despite
the repeal of some of the anti-labour decrees from the military era, restrictions still remain. At least 50 workers are needed to form a
trade union, an excessive requirement by international standards.
Trade Union Amendment Act 2005: The Trade Union Amendment Act was passed in March 2005. It retains the NLC as a central labour union but gives other trade unions the freedom to federate and form umbrella unions, and makes union membership voluntary. While such freedom is in principle to be welcomed, it was widely believed that one of its main aims was to weaken the cohesion
and unity of the trade union movement, and in particular the Nigeria Labour Congress (NLC).
Previously, freedom of choice was restricted by the stipulation in the Trade Unions Act that no trade union could be registered to represent employees where a trade union already existed.
The right to organise is denied to workers in essential services, the list of which exceeds the ILO's definition. It includes employees of the
Customs and Excise Department, the Immigration Department, the Nigerian Security Printing and Minting Company, the Prison
Service and the Central Bank of Nigeria.
Protection against anti-union discrimination: Only unskilled workers are protected by the Labour Act against anti-union discrimination by their employer.
Right to strike undermined: The 2005 Act sets out strict conditions that trade unions and labour federations must meet before
they can embark on a strike. The law specifically prohibits trade unions or registered federations of trade unions from compelling anyone to strike, and stipulates that during strikes unions must not block airports nor obstruct public highways, institutions or premises of
any kind. There is a fine of N10,000 (US$77) or six months’ imprisonment for illegal strike action. These provisions make it extremely
difficult to carry out a normal strike picket.
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In addition, the Act prohibits and criminalises strikes which are deemed to be about disputes of interest or any strikes about economic
issues (in order to prevent strikes that unions have organised in recent years over government decisions to raise the price of petrol).
The Act also includes a strike ban in the essential service sectors, which according to Nigerian law, include public transport and education, which are outside the ILO definition of essential services.
Unions must also give 15 days notice for a planned strike. The Trade Disputes Act further limits the right to strike by imposing compulsory arbitration, with a penalty of a fine or six months' imprisonment for anyone failing to comply with the award issued by the National
Industrial Court.
Collective bargaining rights restricted: In the private sector, collective bargaining rights are restricted by the requirement for
government approval. Every agreement on wages must be registered with the Ministry of Labour, which decides whether the agreement
becomes binding according to the Wages Board and Industrial Councils Act. It is an offence for an employer to grant a general or percentage increase in wages without the approval of the Minister (according to the Trade Disputes Act) - which is contrary to the principle
of free collective bargaining.
Export processing zones (EPZs) – anti-union decree: Article 4(e) of the 1992 Decree on Export Processing Zones states that
“employer-employee” disputes are not matters to be handled by trade unions, but rather by the authorities managing these zones. Article
13(1) of the same Decree makes it very difficult for workers to form or join trade unions, as it is almost impossible for worker representatives to gain free access to the EPZs. Moreover, the Export Processing Zones Act prohibits strikes and lockouts for a period of 10
years after a company begins its activities in a given EPZ.
Right to organise undermined …
The government has become increasingly hostile to the labour movement. Employers also show their hostility by intimidating workers to
leave the union, while some refuse to recognise trade unions, and sack workers' representatives for their trade union activities. The growing use of casual labour, notably in the oil industry, also makes it more difficult for unions to organise and protect their rights.
…and the right to strike
The government accepts collective bargaining, but generally does not honour the agreements made, leading to many strikes. Prior police
permission is required, but is rarely given. The use of security forces to intimidate, harass and arrest strikers, often accompanied by the
use of violence against trade unionists prior to or during strikes or protests, seriously undermines the right to strike.
VIOLATIONS IN 2005
Background: The NLC’s role in leading the popular protest against the government’s economic policies, notably the increase in petrol
prices, again made it the target of government attacks. Police repression of popular protest was extremely harsh.
Criminal trial of six senior trade unionists still not completed: The trial of the six trade unionists, arrested on 13 October
2004 during a picket of a petrol station (as reported in the 2005 Survey), was fixed for 25 November and was still on-going at the
Abuja Magistrates Court. It was not settled by the end of 2005.
Police escort oil union representative off the premises : When a representative from the Petroleum and National Gas Senior
Staff Association of Nigeria (Pengassan) went to Wasco’s, (the Malaysian owned oil-drilling company) at Port Harcourt on 21 January
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to mediate in a dispute, he was refused entry and escorted away by police. He had approached Wasco management to discuss a management decision to put 50 permanent workers on casual labour contracts, thus depriving them of their benefits.
Wasco managers urge armed police to attack employees: It was also alleged that two Malaysian managers induced armed
policemen to violently attack local Wasco employees during the disagreement about the change of contracts. During the fracas, the
managers are said to have made insulting and racist remarks to the workers.
170 oil workers sacked for asking for better conditions: Outsourcing Services, a company under contract to Chevron Texaco
at Escravos, near Warri, sacked 170 contract workers on 7 February because they demanded better pay and conditions. According to
the National Union of Petroleum and Natural Gas Workers (Nupeng), the contract workers are “used as expendable mules in Nigeria”.
Teachers at military academy arrested for enforcing a work to rule: During the first week in February, military police
arrested several civilian teachers at the Ojo Military Cantonment in Lagos when they tried to enter the barracks to enforce a work-torule to protest at the non-payment of allowances. Civilian teachers at the Airforce, Naval and Army primary and second schools organised the work-torule to demand payment of their allowances, which were 13 months in arrears.
State Security prevents NLC Secretary General leaving the country: State Security Services (SSS) personnel at Abuja’s
International Airport seized NLC General Secretary John Odah’s passport when he tried to leave the country on 2 June as his name
appeared on a computer list as being an enemy of President Obasanjo’s administration. The NLC Secretary General was boarding a
plane for Switzerland to attend an ILO Conference, but the seizure caused him to miss his flight. He was eventually allowed to board a
plane and arrived late at the ILO Conference.
Government delays in reinstating unlawfully sacked teachers: In July, the Federal Court ruled that the 49 lecturers, who
were unlawfully sacked in May 2001, by the University of Llorin, should be reinstated immediately. However, the government delayed
reinstating them for over a month, depriving them of their salaries. The lecturers had been sacked for taking part in a strike called by
the National Executive Committee Academic Union of Universities to demand better funding for university education.
Mass firings of striking hospital staff: The government fired hundreds of doctors, nurses and health workers from 14 hospitals in
Abuja on 14 November, clearly exceeding the numbers required to provide an emergency service. The medical staff had been on strike
since 18 October, in protest at the government’s refusal to implement a salary increase agreed on 5 September. The medical staff were
fired after they ignored a government injunction to return to work on 9 November. Despite the sackings, the medical staff continued
their strike.
Rwanda
POPULATION: 8,600,000 / CAPITAL: KIGALI / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
§
Trade union activities cannot be carried out freely since the legislation is very repressive.
In practice, the government and many employers are opposed to the demands of workers.
The government appears to be trying to improve relations with trade unions, however,
unions fear that this is a strategy to weaken them further.
Workers have the right to form trade unions. Union membership is voluntary and open to all salaried workers, including public sector
employees. However, there are no provisions guaranteeing this right for civil servants. The unions use the freedom of association and
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freedom of expression provision, enshrined in the Constitution, and the ILO core conventions, which Rwanda has ratified, to exercise this
right. Under the New Labour Code, drawn up with technical support from the ILO and introduced in 2002, agricultural workers now
have the right to organise. This new Code also allows foreign workers to be elected to trade union office after they have lived in the
country for at least five years, provided non-nationals do not exceed one third of the union's officers.
Unions must register with the Ministry of Justice for official recognition, but this is just a formality.
The right to collective bargaining is recognised, but there are no instruments, such as a National Labour Council, for promoting its
application.
Civil Servants: The 2002 Labour Code specifically excludes civil servants from organising. However, Act 22 of 2002, on the general
conditions of service for civil servants, does not contain any specific provisions in this regard, hence the legal situation is unclear.
Right to strike: The Labour Code restricts the right to strike. Authorisation for strikes is always subject to the obligatory intervention
of a mediation committee. However, the implementing of provisions establishing that committee has still not been produced. Since 2002,
an intentional legal vacuum has prevented the real exercise of this right.
The list of so-called “essential services”, in which strikes are not allowed, is excessively long.
Exercising the right to strike is sometimes confused with “disturbing public order”, an offence that is severely punished by law and
seriously impedes unions' ability to exercise this right.
Rwanda is still recovering from the effects of the 1994 genocide. So far, its trade union rights record has been poor. The authorities
have, in the past, interfered in trade union affairs and employers have shown hostility to unions, with little or no retribution. The
government appears to be trying to improve relations with trade unions. For example, it has allowed the organisation of elections to
determine the representativeness of the trade union organisations, but suspicions remain that it is still seeking to manipulate them.
State employees are no longer banned by law from publicly expressing their views on political, philosophical or trade union matters, but
behind the scenes, there is clearly pressure on them not to, say the unions.
There are still no labour courts. However, some new chambers, specialised in social issues, and consisting of a judge and two
“assessors”, one of whom should come from a union organisation, are meant to be operating within the courts. They have been created
and began their work in early 2005. The legal system is due to be reviewed again in 2006. It is not yet clear whether the unions will lose
these arrangements or whether proper industrial tribunals will be established in their place.
Persistent anti-union harassment: Employers frequently intimidate trade unionists who are too militant for their liking. They do
this through transfers, demotions and dismissals. One example is the state-owned department store Magerwa (Magasins généraux du
Rwanda). Josué Munyeragwe, President of the branch union at Magerwa was dismissed in June 2002 when he refused to take up a post
he had been transferred to, in what clearly appeared to be a bid to distance him from the workers he represented. His deputy, Leonidas
Ruhumuliza, was charged for his supposed involvement in a case of embezzlement and placed in preventive detention for eight months.
Although he was found innocent, he was not reinstated in his job, on the grounds that he had been absent for over six months. By the end
of 2004, negotiations on behalf of the two men had been unsuccessful, and the union strongly suspected that their trade union activity
was the real cause for their dismissal. According to the national trade union centre, Centrale des syndicats des travailleurs du Rwanda
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(CESTRAR), there are many similar cases, occurring regularly. In the end, Josué Munieragwe won his case at the industrial tribunal in
Kigali, but his former employer has appealed against the decision.
Another case worth highlighting, concerns the telecommunications company RWANDATEL, which sacked Anathalie Mukayihi, a
member of the union committee of the telecommunications union, SYATEL, a CESTRAR affiliate. Sister Mukayihi is Treasurer of the
committee, and was sacked in January 2005 after complaining about a pay cut decided unilaterally by her employer and for trying to
organise the employees affected by the measure. Her attitude was regarded as a “subversive act”. The company has been bought since
then by a multinational, which has just sacked 130 people. The union delegates at the company received no protection during this
process.
Senegal
POPULATION: 10,600,000 / CAPITAL: DAKAR / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
The government has the power to register or dissolve trade unions. The most blatant
violations of union rights took place at the country’s two cement factories.
§
Government approval required: The Labour Code recognises the right of workers to form and join trade unions, and any
group of workers in a similar trade or the same profession may create a union. There are limitations, however. A trade union
cannot exist legally without the Ministry of the Interior's approval and the public authorities have broad powers to dissolve trade
unions by administrative authority.
Strike restrictions: Similarly, the right to strike is recognised but heavily restricted, notably by a provision in the 2001 Constitution,
which stipulates that strike action must not infringe upon the freedom to work or jeopardise the enterprise. Private sector unions must
give three days' notice, and civil service unions must give at least one month's notice. The authorities also have broad powers to
requisition workers from private enterprises, public services and establishments to ensure: the safety of persons and goods; the
maintenance of public order; the continuity of public services and the country's essential needs. This is a broad definition that is open to
abuse. The law also states that workplaces, or their immediate surroundings, may not be occupied during a strike.
The right to collective bargaining is recognised.
Labour Code excludes the majority of workers: The majority of workers are excluded from the Labour Code because they are
in the agricultural industry or the informal economy, where the Code does not apply.
VIOLATIONS IN 2005
Union delegates dismissed at Sococim have still not obtained justice: Union delegates from the mine workers' union,
“Syndicat national des industries extractives et minières du Sénégal”, were dismissed at the beginning of 2004 for organising a strike.
Workers at the Sococim cement factory had been on partial strike and held a number of demonstrations in November 2003, to protest
at the management's policy of subcontracting work to casual labour. When workers turned up for work on the morning of November 13,
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they found the management waiting at the gates to screen out the workers who had been responsible for organising the protests. They
were then threatened with the sack. At the beginning of 2004, the Labour Inspector authorised the dismissal of all the union delegates at
the factory. When an appeal was submitted to the Minister of Labour, he upheld the decision to dismiss the unionists. At the end of
2005, the Council of State also rejected an appeal.
Sacking of the union leader at Les Ciments du Sahel: At another factory in the cement industry, Les Ciments du Sahel, the
management sacked Alioune Dieng, the General Secretary of the cement workers’ union, Syndicat national des travailleurs des industries du
ciment (SYNTIC), and refused to recognise the union. SYNTIC is affiliated to the free trade union centre, Confédération des syndicats
autonomes (CSA). At the end of 2005, the workers at SYNTIC started a series of actions to draw attention to the bad working conditions and
anti-union exactions they were suffering. “Forced labour schedules” are the main compliant, with SYNTIC saying these can range from 60 to
84 hours per week. The Labour Code restricts the working week to 40 hours, unless there is tripartite agreement. However, the management
of Ciments du Sahel was permitted to change the working hours by the relevant ministry without consultation with the workforce.
South Africa
POPULATION: 43,500,000 / CAPITAL: PRETORIA / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
Serious violations were reported during the year, including the death of two workers killed
by their employer in a wage dispute, and a striking farm worker killed by security guards.
Protest strikes and demonstrations met with violent repression, such as the use of rubber
bullets, which in the case of striking truck drivers, led to injuries.
§
Freedom of Association: The law provides for freedom of association. All workers, with the exception of members of the National
Intelligence Agency (NTA) and the Secret Service are allowed to join unions and are protected against unfair dismissal. Employers can,
however, lay off workers on the grounds of “operational requirements”.
Collective bargaining: The law provides for collective bargaining rights and organisational rights, such as trade union access to work
sites and the deduction of trade union dues. The law contains provisions to encourage collective bargaining in small businesses, and
among home workers and workers in the informal economy. Unions can seek redress in the courts for unfair dismissal.
Right to strike: The right to strike is recognised for all workers including those in the public sector, provided they do not work in
essential services or the security forces. This right is undermined by the legal right of employers to hire replacement workers during a
strike.
Organising obstructed on farms: Trade union rights are not always respected in practice. In the agricultural sector, in particular,
employers are hostile to unions and organising is difficult because union organisers are considered trespassers on private property.
Workers who try to form or join trade unions face intimidation, violence and dismissal.
Weak enforcement: The Eastern Cape Labour Department has accused most factory employers in the province of disregarding the
Basic Conditions of Employment Act and said that small businesses in particular disregarded labour laws and discriminated against
union members. Anti-union employers intimidated workers into not letting unions defend their rights.
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Increasing anti-unionism: There is a growing climate of anti-union repression. Employers and the government have both prevented
strikes by obtaining a court order that declares them ‘illegal’, thus forcing strikers back to work. On some occasions rubber bullets and
live ammunition have been used against strikers both by government and employers’ forces.
However, despite this anti-union climate and adverse economic conditions, which saw many companies retrench workers, trade union
membership remained stable during the year.
VIOLATIONS IN 2005
Background: More than two million workers took part in a general strike on 27 June, called by the Congress of South African Trade
Unions’ (COSATU) to protest at rising joblessness in South Africa, as a quarter of the country’s manufacturing capacity has shut down.
The strike was observed in the mining industry and the clothing, textile, automotive and engineering sectors.
Striking truckers wounded by rubber bullets: Fifteen truckers were wounded in the leg with rubber bullets, and nine of them
needed hospital treatment, when police opened fire at a demonstration of 3000 truckers in the centre of Johannesburg on 1 March.
Thousands of truckers had taken part in a nation-wide strike and demonstrations between 27 February and 8 March. They were asking
for a salary increase of between 9 and 10 per cent. Employers offered them between six and seven per cent.
Exaggerated charges to intimidate strikers: In addition to the attacks with rubber bullets, 29 truckers were arrested during the
1 March demonstration. They faced charges that appeared to be out of all proportion to their activities, including attempted murder.
More truckers injured: A further four truckers were injured on 4 March when security guards fired shots as 150 truckers tried to
storm the gates of Cargo Carriers in the Vaal Rand area, outside Johannesburg.
The government declared the strike “illegal” as the strike affected retail and manufacturing, disrupted supermarket deliveries and led
to a run on petrol. The Road Freight Employers’ Association was also said to be considering legal action against the strikers.
Two workers killed during wage dispute: Two workers were killed and one critically injured when their employer, Tony Jones of
MCE Engineering, opened fire on 15 employees during a wage dispute on 18 April.
The shooting happened when workers asked to be paid their full salary of R650 ($US107), rather than the $US16.50 they had
received. Jones told the employees to wait outside while he went to his office. When he returned he had a gun with which he shot at the
workers. One worker, Hendrick Mahaloane, died immediately and a second worker died in hospital. The third recovered. It appears that
Tony Jones shot himself later that day as he was found dead in his office with a bullet wound to his head.
According to a spokesperson for the National Union of Metalworkers of South Africa (NUMSA), Jones had a history of racism and
intimidation as the previous year he had set dogs on the workforce and let them loose in the factory.
Striking auto component workers sacked: More than 700 workers (members of the National Union of Metalworkers of South
Africa (NUMSA)) at the Kromberg-Schubert factory in Brits were sacked on 26 May after a strike that began on 23 May. The
company then immediately hired contract workers to replace them. The company has allegedly made more than 100 unfair dismissals since 1998.
The workers were demanding an increase of between R1 and R5 ($US0.15 – 0.74) per hour for shift workers, a better transport policy
and an end to racist and unfair practices. According to Elizabeth Khuma, a strikers’ representative, “We have to go through four gates
before we can go outside to use the toilets. Although there are toilets inside, only the whites are supposed to use them. They don’t have
to clock out to go outside.”
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Toll operators arrested during strike: Eighteen striking toll operators from the Mtunzini Tollgate on the KwaZulu-Natal north
coast were arrested on 13 June, during a strike over a claim for a pay rise of 12 per cent. The company had only responded with a 6 per
cent offer. The toll operators were accused of public violence and malicious damage to property, based on allegations that they opened
the boom gates at the toll and let waiting vehicles through without paying.
The KwaZulu-Natal traffic department had hired replacement staff before the strike began to take over from the toll operators, but their
inexperience had caused long traffic jams.
Supermarket workers tear-gassed: On 23 July, striking employees of the Sea Point branch of the Pick ‘n Pay supermarket chain
were tear-gassed by police and then arrested after they defied a court order preventing them entering the Sea Point supermarket in Cape
Town. The employees were participating in a nation-wide strike called by Pick ‘n Pay employees on 22 July, in support of a 12 per cent
pay demand.
Police break up picketing around the country: It was reported that police broke up picketing at other Pick ‘n Pay supermarkets
across the country. Ninety workers from the East London Pick ‘n Pay branch were forced to spend the night in Cambridge Police Station
cells before appearing in court the following morning.
Police disperse striking municipal workers using stun guns and rubber bullets: Police used stun guns and rubber bullets
to disperse a demonstration of striking municipal workers at Benoni in Johannesburg on 8 August. The police claimed that the demonstration was blocking the traffic. The strike began after the South African Municipal Workers Union (SAMWU) had rejected a final pay
increase of 6 per cent and 7.5 per cent for those earning less than R4,792 ($US774). SAMWU had demanded an across the board
salary increase of 8 per cent.
Over 150 striking municipal workers attacked and arrested: Altogether police had arrested over 150 municipal workers who
were striking peacefully across the country by 11 August. Strikers were arrested at Bellville in Delft, a township in the north of Cape
Town, accused of intimidation and violating property rights and in the coastal town of Knysna (Cape province) for damaging council
property and public vehicles. In all cases they were brutally attacked by police forces.
Security guards attack chrome workers: Two hundred and fifty workers, all members of the National Union of Metalworkers of
South Africa (NUMSA), from Xtrata Chrome, South Africa, were attacked by security guards at the Rustenburg plant on 5 August.
Seven strikers were injured, and one had to be hospitalised with broken ribs after security guards rammed the crowd with a security van
and fired tear gas at them.
About 1000 workers had gone on strike after Xtratra withdrew its offer of an 8.75 per cent wage rise after two months’ negotiations.
The union had been asking for a 10 per cent increase.
Teachers’ union representatives arrested: Members of the South African Democratic Teachers’ Union (SADTU) were arrested
during a demonstration in Eastern Cape on 6 September. Former Regional Secretary, Sipho Miggels, and shop steward, Nontsikelilo
Songwiqi, were arrested and charged with assaulting the police and public violence. They were held at the police station for almost three
days before being released on bail. The demonstration had been held to protest at the renaming of buildings at Muir College in favour of
Enoch Mankayi Sontonga, composer of the national anthem.
SADTU launched a go-slow on 13 September to demand, amongst other things, that all charges be withdrawn against the two union
representatives.
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Farm workers arrested on way to picket: On 14 September, 120 farm workers from the Kenhym Estates in Middelburg,
Mpumalanga were arrested while travelling to a picket line at the company’s premises. They were going to support their demand for a
10 per cent wage increase, 20 days’ paid holiday a year and an extra payment of R10 ($US1.55) for night shifts. The company had
only offered them a 6 per cent pay increase. They were only released after paying bail of R500 ($US77.50) per person.
Security guards attack and kill striking farm workers: On 21 September, security guards opened fire on the striking farm
workers from Kenhym Estates, killing Ezekiel Raselemane and wounding four others. The shooting occurred when 500 farm workers
had gone to picket the company headquarters in support of their demands.
Sudan
POPULATION: 34,300,000 / CAPITAL: KHARTOUM / ILO CORE CONVENTIONS RATIFIED: 29 - 98 - 100 - 105 - 111 - 138 - 182
There are no trade union rights, as the government controls all union activity and only one
national federation can exist – the government controlled SWTUF. Workers live in fear of
the severe penalties that have at times been prescribed by the government for violating its
restrictive labour decrees, including the death penalty. The SWTUF helps keep workers in
the oil-producing regions under close surveillance.
§
Single national centre, strikes banned: The 1992 Trade Union Act established a trade union monopoly controlled by the
government and only the government-controlled Sudan Workers Trade Union Federation (SWTUF) can function legally. All other unions
are banned.
Labour disputes are adjudicated by the labour courts, but the Minister of Labour can refer them to compulsory arbitration. Strike
action requires government approval, which is never given. Workers can be dismissed for taking illegal strike action.
Collective bargaining is nearly non-existent as a government-appointed and controlled tripartite committee of representatives of the
government, employers and the SWTUF sets salaries.
The current Labour Code, which came into effect in December 2000, continues to deny trade union freedoms and reinforces government
control over trade unions.
Heavy government control: The government defines the scope of unions’ activity, including their terms of office, elections,
organisational structures and alliances - in clear contravention of international labour standards. Trade union funds are controlled by
the Auditor General.
The Labour Code stipulates that one of the trade unions’ objectives should be to cooperate with government bodies and community
forces to promote national independence and security and the government’s international relations. Failure to do so can obstruct union
registration.
The General Registrar has extensive powers. The law states that: “The General Registrar may abrogate the procedures of the elections
in a union if he is convinced of their shortcomings. In this case, he is empowered to order new elections.”
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Penalties for the infringement of the trade union law are not itemised, suggesting that a sentence of six months and/or a fine is
applicable in all cases. The government has also reportedly prescribed severe penalties, including the death penalty, for violating labour
decrees.
Dismal rights record: The human and trade union rights situation in Sudan is a matter of serious concern. Human rights activists,
including trade unionists and professionals, especially journalists, have been harassed, intimidated, arbitrarily arrested, detained and
tortured. Security officers usually act with impunity. When investigating cases they are allowed to arrest, hold suspects and, torture
them. Trade unionists who remain outside the pro-government trade unions live under constant fear and do not dare denounce inhuman
conditions of work.
Reports suggest that trade unionists remained in jail in 2005, but accurate information about their numbers is difficult to obtain and
their whereabouts remained unknown.
Sudan has also been accused of violating international conventions, particularly with regard to slavery. In 2001, there were reports, to
the effect that, 14,500 slaves, mainly blacks from the south of the country, were freed. It was said that a lot of children from poor
families were being abducted and sold to rich Sudanese.
SWTUF colludes in government surveillance of oil workers: In the oil-producing regions, the police and secret service agents
closely monitor workers’ activities in collusion with oil companies. The regions are designated “high security areas”, where the free
movement of people has been effectively curtailed. The SWTUF has been incorporated into the government’s strategy to implement
effective control of workers in order to ensure a regular flow of oil. Part of the revenue from this oil is ploughed back into financing the
war efforts in the Darfur region. The SWTUF has consistently supported the government in the latter’s denials that mass murder ever
took place in the Darfur region, where workers do not even dare to approach the SWTUF for protection.
EPZs: There is one export processing zone in Port Sudan, which is exempt from the labour laws.
Swaziland
POPULATION: 1,000,000 / CAPITAL: MBABANE / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
§
The repression against trade unions continues, and the laws which make organising and
collective bargaining very difficult remain, despite government assurances that they would
be revised. The monarchy continued its repression of pro-democracy forces that are calling
for the establishment of a parliamentary democratic system. A new Constitution, voted in
during the year, continues to invest all power in the King’s hands.
State of Emergency still in force: The State of Emergency, introduced in 1973, remained in force. Political parties are banned
and constitutional freedoms suspended.
Many legal restrictions: The current Industrial Relations Act (IRA) allows workers to form trade unions, to draw up their own constitutions, and to negotiate their terms and conditions of employment.
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However, it contains many discrepancies with ILO conventions:
T Prison staff do not have the right to form or join a union.
T Unions must represent at least 50 per cent of workers in a workplace to ensure recognition, failing this test means recognition is
dependent on the employer’s good will.
T The procedure for announcing a strike is long and complex. There must be a period of 74 days between the time a strike is announced
and the date the action takes place, making legal strikes virtually impossible.
T Procedures for voting on strike action are very long and complicated.
T A trade union faces civil liability for damage caused during a strike.
T There is no effective protection for trade unions against employer interference.
T The IRA prohibits protest actions in “essential services,” which include police and security forces, correctional services, fire fighting,
health and many civil service positions.
Government fails to fulfil its promise to bring in improved labour legislation: The government has assured the ILO that it
is amending its legislation to remove some of the above discrepancies and to bring it into line with convention norms. This new legislation will: give prison staff the right to form and join a union; cut down the 74 day notice period for strikes; lower the 50 per cent
threshold for union recognition and remove the notorious clause in the Internal Security Bill that makes a union liable for any damage
caused during a strike. However, the government has made similar promises on previous occasions, which it has not fulfilled.
Attempts to discredit union leader: The trade unions, in particular the national centre, the Swaziland Federation of Trade Unions
(SFTU), face fierce government attacks. The SFTU General Secretary, Jan Sithole, has become a hate figure for the regime. The
authorities have organised smear campaigns against him and he has been imprisoned several times in recent years and he and his family
have received death threats. In 2001, he and five other trade union leaders were charged with contempt of court. The case was dismissed but he continues to be harassed.
Government policy: The regime has turned a blind eye as employers pursue casualisation and deregulation policies which have
resulted in many skilled employees (who are largely trade union members) losing their jobs. The effect of such policies in the sugar processing and hotel sectors has been to weaken the trade unions.
The government allows employers to ignore even minimum standards of employment, and the industrial court has been weakened,
through government intervention, making it difficult to function properly and effectively.
Numerous violations in Chinese textile factories: In 2004, the SFTU reported numerous, on-going violations of fundamental
trade union rights in textile factories, including: the refusal to recognise unions; surveillance of activists both in and outside work by
hired security staff; victimisation of activists and representatives and known union members; a ban on workers gathering in groups during breaks, and physical assaults by security guards.
These violations have been going on for at least five years. Workers have complained that Chinese owned companies, in particular
Brand Knitting and First Garments, have the worst record of abuse.
Authorities collude on trade union rights abuses: The authorities appear to be colluding with the Chinese factory owners. On
several occasions, police have beaten up workers at shop floor level when they approached the employer with their demands, or have
fired tear gas and rubber bullets at workers. Police officers at the Zheng Yong factory received bribes or rewards for brutalising workers. On one occasion, the Swaziland Investment Promotion Authority (SIPA) visited Zheng Yong and told middle management not to
allow strikes because they discouraged current and future investors. In another incident, a worker died after brutal intervention by the
police in a dispute at the factory where she worked.
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Union recognition for SMAWU: Despite the high threshold for union recognition, the Swaziland Manufacturing and Allied
Workers’ Union (SMAWU) managed to prove in 2004, with support from the international trade union movement, that it represented
over 50 per cent of workers in almost all major garment exporting factories. A notable exception was Matsapha Knitwear (see below).
VIOLATIONS IN 2005
Background: At the beginning of the year, the SFTU organised a series of marches to call attention to the shortcomings in the proposed new Constitution. Despite this, a very retrogressive Constitution was approved on 15 June. It legitimises the existing situation
whereby the country is ruled by an absolute monarch, and continues to ban political parties. King Mswati III retains the right to dissolve
Parliament and the government, dismiss and appoint members of the judiciary and act as head of both the police and the army. The
clauses in the Constitution bring into question government promises to improve trade union rights (see above).
Union recognition denied: The management at the Matsapha Knitwear factory has continued to deny union recognition to the
Swaziland Manufacturers and Allied Workers’ Union (SMAWU). There are also indications that the factory has down sized and laid off
staff following the end of the Agreement on Textiles and Clothing (ATC).
Tanzania
POPULATION: 38,400,000 / CAPITAL: DODOMA / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
There is considerable interference in union rights, particularly from the government
registrar who controls every aspect of union activity. Strong restrictions on trade union
rights on the island of Zanzibar remain in place. Hundreds of medical staff were sacked
during the year for going on strike.
§
Excessive power of Registrar: The Trade Unions Act allows workers to form trade unions but contains several restrictions on trade
union rights. Trade unions must have at least 20 members to register, and unions that fail to register are subject to large fines, imprisonment or both.
The Registrar has excessive powers, including the power to deregister the smaller of two trade unions where more than one exists in an
enterprise. A union has to provide the Registrar with annual lists of its membership and financial audits. The Registrar can also suspend
a trade union if it considers that the latter violates the law or its own regulations, or that public security or public order are endangered.
The Registrar can annul international trade union affiliation if it was obtained without government approval or the government considers
the union is affiliating to an organisation whose remit is broader than just employer-worker relations.
The government also prescribes the terms of office of trade unionists. Failure to comply with government requirements is subject to fines
and/or imprisonment. In any given trade union, only one union leader may be occupied full time in carrying out his or her trade union
functions. All others must work full time in the enterprise or industrial sector in which they have been elected.
Right to strike and collective bargaining undermined: Workers can go on strike, but must go through a series of complicated
and protracted mediation and conciliation procedures, which can prolong a dispute by months without resolving it. The law does not protect those taking part in legal strikes from retribution.
Collective bargaining is recognised in law. Collective agreements must be submitted to the Industrial Court for approval and may be
refused registration if they do not conform to the government’s economic policy. There is no collective bargaining in the public sector.
Union and government representatives each submit proposals, and the authorities make recommendations on the basis of these, which
have to be adopted by parliament.
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Employment and Labour Relations Bill – may lift some restrictions: In 2005, the ILO noted that the wording in the
Employment and Labour Relations Bill had been amended to cut down the excessive requirements for registering trade union federations and to remove some restrictions on the right to strike.
Bill will end collective bargaining in the public service: The 2002 Public Service (Negotiating Machinery) Bill stipulates that
workers in the public services do not have the right to collective bargaining. In addition the government sets wages for employees of the
government and state-owned organisations. There is also a minimum membership requirement of 30 people for a union to be registered,
excessive by international standards. It prevents strikes by “staff grade officers”, which include heads of public learning institutions.
This Bill also establishes a system of compulsory arbitration, at the authorities’ discretion, to decide conditions and terms for public
service employees. This effectively amounts to a strike ban.
Zanzibar and Pemba: The Zanzibar government enforces legislation specific to the Zanzibar and Pemba islands. Legislation applies
solely to the private sector and does not protect workers against anti-union discrimination.
Greater restrictions in Zanzibar: There are far greater restrictions on trade union rights in Zanzibar, as laid out in the 2001 Trade
Unions Act, than in the rest of the country. There is a minimum membership requirement of 50 people before registration can go ahead
and the Registrar has considerable powers to restrict registration, for example, if he or she does not agree with the union’s provisions.
The Act also stipulates that trade union officers must have a sufficiently high literacy level. The High Court can interfere in trade union
affairs by appointing the Registrar to act as liquidator for a trade union.
The law prohibits all workers from going on strike: There are three export processing zones on the mainland, where working
conditions are comparable to those outside the zones. There are two EPZs on Zanzibar, where there were unconfirmed reports of trade
union rights violations.
Privatisation – workers’ rights ignored: Employees in the privatised industries are denied freedom of association and the right to
collective bargaining, and face long hours, compulsory night shifts, job insecurity, low pay and forced overtime. There are reports that
some employers were deducting union dues from workers’ pay but were either sending it to the unions after long delays or retaining the
money altogether.
Difficulties in organising legal strikes: Workers tend to stage illegal wildcat strikes and walkouts because of the lengthy and
cumbersome requirements for calling a legal strike.
Widespread rights violations: Violations of trade union rights were reported in several sectors of the economy in both the mainland and Zanzibar, particularly in mining, agriculture, commerce and clothing and garment sectors. The new investors are also said to
be hostile to trade unions.
VIOLATIONS IN 2005
Background: Mainland Tanzania has grown to be a stable country, but the situation in Zanzibar, the semi-autonomous part of
Tanzania, has remained restless. Parliamentary elections in Zanzibar in November were marred by violence between the ruling Chama
Cha Mapinduzi party and the Civic United Front opposition party. These elections were seen as a test of Tanzania’s democratic development after the flawed elections in Zanzibar in 1995 and 2001. The national elections on the Tanzanian mainland took place in
December 2005 and were won by the outgoing ruling CCM party, whose candidate, Jakaya Kikwete, also won the presidency.
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Scores of striking medical interns sacked: The government sacked 148 interns at Tanzania’s largest hospital, the Muhimbili
National Hospital in Dar es Salaam on 22 June after they had been on strike for just over a week demanding increased allowances. They
were also instructed to leave their dormitories.
Altogether, 111 doctors, 24 pharmacists and 13 nurses had stopped work, demanding that their monthly allowance, which was only 80
per cent of a newly hired doctor, be increased, since they claimed they took more responsibility at the hospital than their fully employed
colleagues.
The interns were reinstated on 24 June, after the Medical Association of Tanzania gave the government a one-day ultimatum to reinstate
the interns, unconditionally, or face a nationwide strike by all doctors.
Doctors sacked after autumn strike: Fifty-two doctors from the Muhimbili National Hospital were sacked on 23 November. The
doctors went on strike on 16 November demanding a basic salary of $US511 a month for junior doctors and $US1021 for specialised
doctors. The doctors were sacked after they ignored a government ultimatum to accept the latest pay offer, which was below the figure
recommend to the government by the Medical Association of Tanzania, in June.
Health workers march banned: The police banned a march by nurses, auxiliary staff and at least 100 medical interns to State
House to present their grievances to Prime Minister Benjamin Mkapa in November. They had joined the strike during the second week to
support the doctors.
Government drafts in military doctors to replace sacked doctors: The government refused further negotiations and, on 25
November, drafted in 30 military doctors and 35 Ministry of Health doctors to staff the hospital.
Togo
POPULATION: 5,100,000 / CAPITAL: LOMÉ / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
§
The death of President Eyadéma did not lead to a democratic regime. From a trade union
viewpoint, the situation is unchanged. Serious weaknesses remain both in Togo's labour
legislation and in the enforcement of that legislation.
Weak laws: Workers have the right to join unions and to strike, apart from members of security services, fire workers and the police.
Public sector health workers are allowed to join unions but not to strike. There is no provision protecting strikers against reprisal measures. The 1974 Labour Code prevents foreign workers from holding leadership posts in trade unions.
Nominally, the right to collective bargaining exists, but this is limited to a single nationwide agreement that must be negotiated and
endorsed by representatives of the government as well as trade unions and employers. The agreement sets nationwide wage standards for
all formal sector employees.
Anti-union discrimination is prohibited.
Export processing zones: The law provides exemptions from some provisions of the Labour Code for companies with export processing zone (EPZ) status, notably the regulations on hiring and firing. Employees of EPZ companies do not enjoy the same protection
against anti-union discrimination as other workers.
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Collective bargaining is undermined by the economic situation, with salary and pension arrears for some public officers running into
many months.
The Ministry of Labour fails to enforce the prohibition on anti-union discrimination. This is aggravated by the political situation, since
the authorities scarcely tolerate dissent.
Anti-union attitudes also prevail in the EPZs. In practice, unions are unable to set up in EPZs and the workers are therefore prevented
from exercising their freedom of association.
Tunisia
POPULATION: 10,000,000 / CAPITAL: TUNIS / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
§
On the eve of the first World Summit on the Information Society held in Tunis in
November, the authorities considerably increased violations of freedom of association and
organising rights, particularly those of magistrates and journalists.
The Labour Code provides for workers to form and join trade unions. Unlike associations, prior authorisation is not required to form a
trade union. A union may only be dissolved by court order.
Right to strike: The right to strike is recognised, with a list of essential services defined in the Labour Code. The areas regarded as
essential are services “whose interruption would endanger the lives, safety or health of all or a section of the population”. The services
were supposed to be set out in a decree. However, it was not produced in 2005. So, whilst this provision is potentially open to abuse, the
Tunisian confederation union générale tunisienne du travail (UGTT) reports that the right to strike has largely been respected in public
enterprises and services, in which the provision of a “minimum service” during strikes, is subject to negotiations between unions and
employers. Unions, and particularly those representing state employees, have the right to strike, provided they give ten days’ advance
notice to the UGTT and the union gives its authorisation. In 2005, the ILO Committee of Experts on the Application of Conventions and
Recommendations pointed out once again that subjecting the right to strike to approval by the main trade union confederation was
restricting the right of grass roots unions to organise their activities and freely defend their members’ interests. Also, the Committee
found the nature of the penalty applicable to anyone who had taken part in an illegal strike to be disproportionate to the seriousness of
the offence. According to the Labour Code, such sanctions may include imprisonment of between three and eight months. The
Committee therefore asked the government to amend the Code in line with Article 3 of Convention 87.
Collective bargaining: Collective bargaining is recognised in law. Wages and working conditions are set in triennial negotiations
between the UGTT's member unions and employers after general guidelines are laid out through national tripartite consultations.
The law bans anti-union discrimination.
Anti-union attitudes in the private sector: The UGTT has expressed its concern at the anti-union activities of certain private
sector employers, particularly where trade union activists have been unfairly dismissed or harassed and where temporary workers have
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been introduced to avoid unionisation. In some industries, such as textiles, building and the hotel trade, a large majority of the workforce
is temporary and recruited by sub-contracting agencies. These temporary workers are generally denied their basic rights, such as union
rights and those pertaining to social protection, job security and respect for deadlines for the payment of wages.
Despite repeated requests from the UGTT, the Tunisian government has continued to refuse to ratify ILO Convention I35 on protection of
trade union representatives.
Right to strike: The UGTT has noted that strike procedures are applied in the same manner in essential public services, public enterprises and the private sector. In recent years strikes have been held, in practice, in the education and health sectors, banks, the postal
service, agriculture, and many public companies and offices.
VIOLATIONS IN 2005
Women workers fired after joining a union: On 18 and 19 January 2005, in Tunis, the women working at the Sofotex textile
firm held a two-day strike in defence of their right to organise and to demand an improvement to their working conditions. The Sofotex
manager’s only response to their demands was to sack about 20 of the women and demand that they leave the union they had just
joined. They refused to do so and were not reinstated in the firm. The strikers, supported by the UGTT regional bodies, were also calling
for a regularisation of the status of a large number of workers who had had very insecure terms of employment for nearly ten years.
Dismissal of union leader at Sotudef: On 22 and 23 February, the staff of Sotudef, a civil engineering firm in Tunis, held a twoday strike to defend their union rights and call for the payment of bonuses. Just one month after the privatisation of the company, the
new management had unfairly dismissed the General Secretary of the union and, in breach of existing agreements, refused to pay the
bonuses that had been due to workers for over a year. The UGTT supported the strike.
Boss organises attack on his staff after strike is launched: The manager of the B. E. Médical textile firm in Radès, south of
the capital, attacked his employees after they had held a legal strike, supported by the UGTT’s regional organisation, on 24 and 25
February 2005. The 300 workers at the firm were denouncing the worsening social climate and calling for the payment of wages and
contributions to the social security fund. Refusing to negotiate, the manager hired a gang of thugs to bash the strikers, including the
union representative, who was pregnant. The regional organisation, Union régionale de travail de Ben Arous, reacted strongly against
this attack, and insisted that the local authorities intervene to end these blatant violations of labour legislation and the right to strike.
University staff strike to demand recognition of their union: On 1 March, Tunisian university teachers held a strike to
demand respect of union rights and the revision of the status of research and teaching staff at the national university. This was the third
general strike by lecturers and researchers from the SGRPS-UGTT since the start of the previous year. The relevant ministry is still
refusing to recognise the union and to negotiate with its executive, whilst awaiting a court decision concerning the legitimacy of the
executive. According to the UGTT, the court has continually delayed its verdict, which has effectively been paralysing social dialogue in
the university sector. There are 6,500 teachers at the national university and they are organised into two unions, belonging to the UGTT,
one for junior staff (“maîtres-assistants”) and the other for senior staff.
Harassment of magistrates and closure of the AMT office: On 29 August, the President of the Association of Tunisian magistrates (AMT) was summoned by the public prosecutor to the High Court at Tunis. He was asked to return the keys of the association’s
office and to leave the premises, on the orders of the Ministry of Justice and Human Rights. In the absence of any legal decision, the
President of the AMT refused to hand back the keys. On 31 August, a new lock was installed on the office door, thereby depriving the
association of suitable premises for holding its meetings and for its daily work. This move against the AMT, which organises 1,700 magistrates, was one of a series of measures taken by the authorities to intimidate judges and restrict their work and freedom of expression.
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After numerous calls for increased independence of the judiciary, the AMT office had been placed under tight police surveillance. In
addition, its phone and fax lines and internet access had been regularly disconnected. It seems that many judges have also been arbitrarily transferred to distant regions of the country, far away from their families.
The national union of journalists, Syndicat des Journalistes tunisiens, is banned: On 25 August, the Syndicat des
Journalistes tunisiens (SJT), which was planning to hold a founding congress on 7 September with a debate on the theme of “trade
unions and journalism in the Maghreb”, was banned. The President of its founding committee, Lotfi Hajji, a correspondent with the
Arabic broadcasting company al-Jazira, was subjected to a long interrogation by police from the security department. The authorities
insinuated that the SJT had failed to follow the correct procedure for establishing trade unions. Lotfi Hajji denied these accusations,
stressing that he had officially announced the creation of the SJT in May 2004, in accordance with the Labour Code, which does not
require prior agreement. During that five-hour interrogation the police also tried, in vain, to force Lotfi Hajji to sign a statement attesting to the illegal nature of the union.
Prior to the banning of his union, Lotfi Hajji had already been harassed repeatedly by the Tunisian authorities. Around 3 May, World
Press Freedom Day, and 4 May 2005, he was repeatedly called in by the police, held in detention for short periods and warned about his
position as the leader of an “illegal” trade union. He had also had various documents confiscated at Tunis airport and had then been
threatened with a court case if he published a report on repression of the media in Tunisia. On 9 May, during another police arrest, the
authorities pressed him to hand over a list of the 160 members of the SJT.
Violent repression of a peaceful meeting in support of hunger strikers: On 18 October, the SJT President, Lotfi Hajji, and
seven other political leaders and leaders of associations began a hunger strike aimed at denouncing the deterioration of freedoms in
Tunisia and calling for respect of the rights to freedom of assembly and association, recognition of all political parties, respect of the
freedoms of opinion, information and communication, and the release of all political prisoners. On 8 November, a peaceful gathering in
support of the eight hunger strikers was violently suppressed. Three activists from the students’ union, Union générale des étudiants de
Tunisia (UGET) - Mounir Fallah, Chawki Laarif and Salah Belhouichet – were attacked, arrested and held for a short time. Mokhtar
Trifi, President of the Tunisian Human Rights League (LTDH), Mohamed Jmour, a member of the National Council of the Order of
Barristers (Conseil national de l’Ordre des avocats), and Khémaïs Chammari, a former Vice President of the Fédération internationale
des Ligues des Droits de l’Homme (FIDH, international human rights league) were beaten and dragged along the ground. On 11
November, a few days before the opening in Tunis of the World Summit on the Information Society, the French journalist, Christophe
Boltanski, was sprayed with tear gas, beaten and stabbed in the back by four unknown men in a Tunis street after writing an article on
press freedom in Tunisia in 'Libération' (Paris). The venue and nature of the incident, the lack of any reaction from police patrolling the
area and the convoluted police statements seem to point, according to most observers, to an attack ordered by the authorities. In addition, some similar attacks took place on foreign journalists over the next few days. These renewed attacks were denounced on the platform of the Information Society Summit, in particular by the international Federation of Journalists (IFJ) and many governments represented at the event.
The hunger strike lasted 32 days, until 18 November, when the strikers ended their action a few hours before the closure of the Summit,
following a visit by a large delegation of Tunisian and foreign VIPs led by the Iranian lawyer and Nobel Prize winner Shirin Ebadi.
Many observers stressed that the hunger strike had been closely monitored by Tunisian civil society organisations, in particular trade
unions.
Government criticism of the SJT: The hunger strike brought a new assault by the government on the journalists’ trade union. In a
conversation on Qatar's al-Jazira television, Abdelwaheb J'mel, assistant general secretary of the ruling party in Tunisia, the RCD, stated that the hunger strike was “an exhibitionist act aimed at misleading international public opinion and the foreign media assembled in
Tunis for the World Summit on the Information Society.” He claimed that the SJT was “an unknown organisation in Tunisia” and “the
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creation of a single journalist”, who was one of the strikers (Lotfi Hajji). That statement aroused the indignation of the SJT, which
reacted on 9 November in a statement signed by its General Secretary, Mahmoud Dhaouadi.
Further measures have, however, been taken against members and activists from the SJT, including refusals to provide or renew journalists’ cards, the confiscation of the passport of the union’s international officer, Amel Bejaoui, on 18 October, and the dismissal of
Chahrazed Akacha, a journalist working with Ech-chourouk, the Arabic version of the daily newspaper ‘Le Quotidien’.
The UGTT has also started discussions with members of the SJT, which could lead to the reorganisation of its own federation in this sector, which currently organises workers from both the culture and information branches.
Uganda
POPULATION: 27,600,000 / CAPITAL: KAMPALA / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 – 100 - 105 -111 - 138 - 182
Despite repeated requests from the IL0, the government is delaying revising the restrictive
labour legislation that makes it difficult to unionise or to strike. The President personally
intervenes in labour disputes. Many private firms refuse to recognise unions, although
Tristar Apparel finally agreed to a union after international pressure.
§
High hurdles for union recognition: The Constitution provides for freedom of association, and legislation provides for compulsory
recognition of a union by an employer. According to the Trade Union Decree, in order to form a trade union there must be a minimum of
1,000 employees and it must represent 51 per cent of the workforce. In 2005, the government reported to the ILO that it was revising
the Decree and removing the minimum membership requirement. However, the government’s promised review of labour legislation, now
in its eighth year, had not been enacted by the year’s end.
List of essential services too broad: The list of essential services in which workers many not form or join trade unions includes
management-level government officials and prison officers, both categories which are not included in the ILO's definition of such
services.
The law does not prohibit anti-union discrimination by employers.
Lengthy pre-strike procedures: While the right to strike is protected by law, for the majority of workers, the regulations specify
that prior to striking “every effort” for reconciliation must be exhausted. The process is long and tedious and requires both parties to
agree that a case can be taken to the Industrial Court. As a consequence, most strikes are deemed illegal.
Review of labour laws: A number of Labour Laws have been drafted to amend the provisions in the Trade Unions Decree and to
improve trade union rights. However, according to the National Organisation of Trade Unions (NOTU), the abnormally long delay in
putting these before Parliament is souring the possibility of improved labour relations.
Hostile employers: Several companies operating in hotel, textile, construction and transport sectors continue to be hostile to trade
unions and refused to recognise and negotiate with them. Workers who joined or were active in trade unions in many sectors lost their
jobs in 2005.
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Weak enforcement: The application of labour law is weak. Employers often do not observe the requirement to recognise a union,
and the government rarely defends workers' right to establish a union. The Industrial Court offers little protection as it is starved of
funds and rarely sits. Even when it does rule, its awards are largely ignored by employers, with the government’s tacit approval. In
addition, the minimum requirement of 1,000 workers denies many workers the right to form a union, and in bigger workplaces with
more than one union, the requirement to represent 51 per cent of the workforce restricts recognition. The government itself has shown a
negative attitude towards trade unions, and indicated the lack of importance it attaches to such issues by downgrading the Ministry of
Labour to a department within a larger ministry.
Union recognition denied: In its Memorandum on Labour Relations to President Museveni of 23 March, NOTU pointed out a number of
enterprises where workers’ rights are denied and/or greatly violated. These include Southern Range, TILDA RICE company Kibimba,
Tuffoam Ltd, Kimkoa, Gomba Fishing Industries, Ngenge Ltd, Uganda Fish Packers, Mukwana Industries, Steel Rolling Mills, Hotels
Industry, ROKO Construction, all the mining companies, Tri-Star Apparel and Bugolobi.
The textile and garment sector has had many problems with union formation and recognition, particularly at the Tristar clothing
factory. Despite having over 2,000 members in 16 factories, the Uganda Textile, Garment, Leather and Allied Workers' Union has only
been recognised in one factory.
There were reports that several private companies urged workers not to take part in union organising drives, notably construction
companies, while four hotels told their workers they would be dismissed if they joined a union.
In its Memorandum, NOTU noted that most workers do not have written formal contracts, and most are continuously employed as
casual workers.
President personally involved in ‘resolving’ labour disputes: President Museveni has intervened in labour disputes. He has
intervened in disputes with medical workers and with lecturers. In 2004, he was quoted as saying that he was responsible for sacking
263 striking workers at the Tristar clothing factory (in 2003): “I sacked those girls because their action would scare off investors.”
VIOLATIONS IN 2005
Background: President Museveni, who came to power in 1986, has become increasingly authoritarian in style. In 2005, the
Constitution (for which he was originally responsible) was revised to allow him to stand for a third term and his chief political rival,
Kizza Beseigye, was arrested on charges of treason and rape, for which he could receive the death penalty. Elections are due in 2006.
Tristar – still tried to deny union recognition: The Tristar dispute continued. At the beginning of 2005, the company still
refused to recognise the union or to open negotiations to improve wages and working conditions and wage levels at the factory were less
than a third of those elsewhere in the garment industry.
Tristar finally grants union recognition, thanks to international pressure: In 2005, the International Textile Garment and
Leatherworkers’ Federation lodged its second complaint against Tristar with the ILO. Finally, on 16 December, the factory recognised
the Uganda Textile, Garment, Leather and Allied Workers Union (UTGLAWU) and it was also agreed that the UTGLAWU would
conclude a collective bargaining agreement with the manufacturers’ association within one year.
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Zambia
POPULATION: 11,000,000 / CAPITAL: LUSAKA / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
The repressive anti-union climate continues in both the public and private sectors. The state
electricity company announced it was withdrawing union recognition and tried to take the
union’s leaders to court. The police tear gassed striking miners, and carried out multiple
arrests.
§
Restrictions on the right to join and form unions: Workers have the right to join and form trade unions, although in 2005 the
Home Affairs Minister announced that police officers would no longer be allowed to join a trade union.
All unions must be registered, but must have at least 100 members to be registered and, in principle, there can only be one union per
industry.
Anti-union discrimination is prohibited by law, which provides for redress, including reinstatement for workers fired as a result of union
activities.
Restrictions on the right to strike: Workers have the right to strike, except those engaged in essential services, which exceeds the
ILO definition by including fire fighting, sewerage, and certain mining operations.
Workers enjoy certain legal protections against an employer’s retribution for strike activities. However, the right to strike is subject to so
many procedural requirements that it is near to impossible for workers to hold a legal strike. As a result, no legal strikes have been held
in Zambia since 1994.
The Industrial and Labour Relations Act empowers a police officer to arrest someone without needing a warrant, if they are believed to
be on strike in an essential service or are likely to damage property. Police can impose a fine and up to six months' imprisonment. The
ILO has said that this punishment is disproportionate and has asked the government to amend it.
Collective bargaining is recognised and in the private sector is carried out through joint councils. Civil servants negotiate directly with
the government.
Revisions of labour laws: The government is considering amending its labour laws. In June 2004, the Labour Minister, Patrick
Kafumukache, told unions that the government would include an arbitration clause in the new laws to replace the current, lengthy
process of going to court to settle disputes. He also urged employers to establish in-house dispute resolution schemes.
Anti-union discrimination prevalent: Anti-union discrimination continues to exist, particularly against public sector workers, and
the procedures for legal redress are often not effective due to a lack of resources. Many officials of municipal workers’ trade unions have
been dismissed for union activities and the government deems strikes by workers in local government to be against the public interest.
Private sector employers artificially divide workplaces in order to keep the number of workers below the minimum threshold, so they will
not be compelled to recognise a union.
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The Zambia Congress of Trade Unions (ZCTU) has reported a steadily deteriorating situation for basic workers’ rights in the private
sector, including in multinationals present in the country. New workers in some private sector companies, particularly multinationals,
are asked to sign a statement choosing a job over a union. Those who are not prepared to give up their right to unionise are not hired.
Increasing reluctance to bargain: While collective bargaining is relatively widespread, national and municipal authorities have
been increasingly reluctant to bargain with their employees or their union. Disputes drag on for many months, with consistent
allegations of bad-faith bargaining being levelled against the authorities, resulting in the workers going on protracted strikes, deemed
illegal due to the restrictive legal requirements.
Police Officers still unionised: No action was taken during the year to enforce the ruling that police officers could not join unions.
But some transport workers’ unions still barred: The United Transport and Taxis Association, the Bus Driver and Motor Taxis
Association and the Passengers’ Transport Association, deregistered in 2003 for allegedly promoting anarchy, remained deregistered.
Casualisation of labour makes organising difficult: In recent years, there have been reports of companies increasingly
employing casual labour – paying workers at probationary rates - although they have been working for a number of years. The Shoprite
chain of shops has been one of the worst culprits, and a survey by the Zambia Congress of Trade Unions (ZCTU) showed that the
company is increasingly using casual workers, and that every time a permanent worker is fired, s/he is replaced by a casual worker
without any benefits.
VIOLATIONS IN 2005
Striking teachers threatened with “severe penalties”: The year began with a threat by the government, on 26 January, that
the proposed teachers’ strike was “illegal”, and those who took part would be severely punished.
The teachers, most of them members of the Zambia National Teachers’ Union (ZNTU) were demanding that their housing, and other
allowances, that had been withdrawn from their salaries, be reinstated. Many school students in the Copperbelt Province organised
demonstrations in support.
The strike finished at the beginning of February when Education, Minister Andrew Mulenga, reassured teachers that the anomalies in
the payroll were caused by technical problems during the decentralisation of the payment system from headquarters to district level. He
assured them that the allowances would be reinstated.
Nine council workers arreste: dNine workers were arrested on 8 February after they blocked a road during the first day of a
nation-wide council workers’ strike. The strike was called to protest at the low allocation of funds for local authorities in 2005, and
non-payment of council workers’ salaries, some of which were four years’ in arrears.
The nine were released on a police bond, after having been charged with breach of the peace.
Armed police disperse council workers: In another incidence during the strike, armed police dispersed a demonstration of
council workers at Kapiri Mposhi, who were demanding the payment of six months’ salary arrears. The government had tried to
dissuade the council workers from going on strike, telling the Zambia United Local Authorities Workers’ Union (ZULAWU) that it was
against the national interest. The strike was widely observed in Lusaka, the Copperbelt Region of Zambia and in Ndola, Kitwe,
Kalulushi, Cingola, Luanshya and Chililabombwe.
Government threatens mass sackings for council workers: The council workers’ dispute flared up again on 25 April, when the
ZULAWU called a further strike. Local Government Deputy Minister, John Mwaimba, warned that the strike was illegal and that the
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government would take “appropriate action”. However, council workers defied the threat of mass sackings and went ahead with the
strike.
ZESCO throws out union recognition…
On 29 April, ZESCO (the Zambian state electricity company) informed the National Energy Sector and Allied Workers’ Union
(NESAWU) that it was intending to throw out the union recognition agreement.
… and takes union leader to court
In addition to throwing out the agreement, the management attempted to open criminal proceedings against the union leadership and to
block the union bank account.
Police use tear gas against striking miners: On 15 July, police used tear gas against hundreds of striking copper miners and
their families at Chililabombwe, a small mining village, where the miners work at the Konkola Copper Mines (KCM). The miners,
members of the Miners’ Union of Zambia (MUZ), were demanding a 100 per cent pay rise. The strike then spread to the KCM Nchanga
mine in Chingola and to the Chinese-owned Chambishi mine.
Between them, these mines are responsible for most of the country’s copper production and the strikes were likely to damage Zambia’s
copper production target of 500,000 tonnes for 2005.
Police arrest 31 and “hunt for more” : Following the episode with the tear gas, police arrested 31 mineworkers after the
demonstration in Chililabombe. They also told the media that they had organised a police-hunt for more strikers.
Zimbabwe
POPULATION: 12,900,000 / CAPITAL: HARARE / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
§
The situation remained as bad as ever for trade unionists, and new legislation threatens
public servants who strike with imprisonment. During the year the government used agents
provocateurs to undermine the ZCTU. The ZCTU organised many stay-aways and protests
for which hundreds of its members were arrested and harassed and some, tortured.
“Draconian” legislation: The Labour Relations Amendment Act (LRAA) came into effect on 7 March 2003. While it pays lip
service to the existence of trade unions, in general, it makes it very difficult for trade unions to exercise their rights and has been
described as “draconian”.
Technically, the Act does give private sector workers freedom of association, the right to elect their own representatives, and to join
unions without prior authorisation. It allows for multiple unions per industry, provided that each is registered with the Ministry of Public
Service, Labour and Social Welfare (MPSLSW).
New law takes away public servants’ right to strike: Members of the public services, as well as other government employees
(with the exception of the armed forces) are allowed to form and join unions. However, a new Labour Amendment Bill, that went
through Parliament in 2005, deprives government employees of the right to strike. The ZCTU believed that it would be used to proscribe
collective job action and access to alternative and efficient dispute resolution mechanisms. The bill became law on 30 December 2005.
Organising is allowed in Export Processing Zones (EPZs). The Act prohibits employers from discriminating against union members.
There are several problems, however.
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Loophole: Managers are prohibited from joining unions or going on strike, and in some industries, the government restricts union
activity by defining most of the employees as managers.
Collective bargaining – agreements subject to government approval: The LRAA recognises the right to collective
bargaining, but is not the exclusive prerogative of trade unions, as workers’ committees may also bargain at company level. The law
encourages the creation of these committees in enterprises where less than 50 per cent of workers are unionised. They exist in parallel
with trade unions, hence creating the potential for employers to undermine the unions by pitting the workers’ committees against them.
Their role is to negotiate on shop floor grievances, while trade unions are supposed to focus on industry level issues, notably wages and
negotiate through National Employment Councils - where they exist. The workers’ committees meet with representatives of management
to discuss workplace issues in a Works Council.
Works Councils have to be approved by the Ministry of Labour. The National Employment Councils must submit their agreements to the
Registrar for his or her approval, and they can be vetoed if they are deemed harmful to the economy.
If 50 per cent or more of employees are union members, there is no parallel body, as the workers’ committee becomes the trade union
committee.
Any disputes affecting labour relations are heard by the Labour Court.
Barriers to the right to strike: Although the LRAA recognises the right to strike, there are many procedural hurdles, including the
fact that more than 50 per cent of the employees must vote for a strike, followed by a 30 day conciliation period and possible referral to
binding arbitration and then a 14 day advance notice period. The sum effect of all these delaying tactics is that it is practically
impossible to organise a legal strike.
Strikes are prohibited in essential services. The definition of “essential” goes far beyond anything envisaged by the ILO, and includes
railway engineers, electricians, transport and communications' employees, veterinary services and pharmacies. The Minister can decide
what constitutes an essential service, and so declare that any service or industry is essential and thus impose a strike ban. Those taking
part in an illegal strike face harsh prison sentences of up to five years.
Repressive legislation: In January 2002, the government enacted the Public Order and Security Act (POSA), which inter alia bans
any public gatherings held without police permission. This has been used to obstruct trade union activities and harass trade unionists.
Under the Act, people found guilty of disturbing the peace, security or public order, or of invading the rights of other people, are liable
to a maximum Z$100,000 fine and/or imprisonment for up to ten years. In addition, organisers of public gatherings must apply for
permission at least four days in advance.
The Miscellaneous Offence Act carries less severe penalties. It is often used when charges of a public order offence cannot stand up in
court. Blocking a public thoroughfare, for example, is an offence under this Act.
Intimidation: In practice, members of independent trade union organisations face harassment and intimidation from government
forces and it is extremely difficult for them to carry out any trade union activities. Although the High Court ruled in April 2002 that the
ZCTU does not need permission from the police to hold private meetings, the police have continued to interfere with its meetings. The
arrest of trade unionists continues to be common practice and, in 2005, there were signs that the government was using agents
provocateurs to infiltrate the ZCTU in an attempt to get its executives removed.
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“Illegal” strikes: The excessively complicated mechanisms for organising a legal strike means that many unions give up trying to
organise a legal strike, and instead resort to “illegal” stoppages or stay-aways.
New repressive legislation for public sector workers: There were already signs in 2005 that the new legislation designed by the
government to outlaw strikes in the public sector was having an effect. It was reported in October 2005, that Zimbabwe’s teachers’
unions were frightened to take any industrial action in case they were imprisoned for going on strike.
Splinter unions: The Zimbabwe Federation of Trade Unions (ZFTU) is a government created labour body designed to undermine and
weaken the ZCTU. The ZFTU works closely with the ruling ZANU PF and has created splinter unions in every sector of the economy. In
some cases ZFTU unions have coerced workers, telling them they have to join their union if they want to keep their jobs. The ZCTU
reports that some of its members have been assaulted for wearing ZCTU T-shirts.
VIOLATIONS IN 2005
Background: Robert Mugabe’s Zanu-PF party won the national elections with more than two-thirds of the vote, which the opposition
said was fraudulent. The human and trade union rights situation showed no change for the better, as Zimbabwe faced a major
humanitarian and economic crisis. Working people were particularly hard hit by demands for improving the economy and the
government continued to view all ZCTU activity, notably any campaigning to improve living standards, as an attempt to undermine its
authority. Consequently, relations between the government and the ZCTU continued to be sour.
ZCTU General Council summoned to answer changes: The year began badly for trade unionists as on 25 January, six
members of the ZCTU were summonsed to court to answer charges stemming from 8 October 2003, when they had been arrested during
demonstrations against raising taxes. Originally, 21 unionists had been arrested and required to pay a fine, but they had all refused. This
time, the authorities were only able to summon six of the original 21, and as the prosecution had not prepared its case, the trial was
postponed.
ZCTU General Council permanently intimidated: The 21 ZCTU leaders were finally summoned to the Magistrates Court on 13
October, but the hearing was then postponed yet again. Because of the endless delays in dealing with the case, the ZCTU believes that
the government is using the protracted proceedings as a way of intimidating the leadership through permanently threatening them with
possible imprisonment.
ZCTU President still not yet reinstated in his post: ZCTU President, Lovemore Matombo, and three other unionists, C. Nkala,
C.M. Chizura, and D.C. Munandi, who were fired by Zimpost on 12 January 2004, were still not reinstated during the year. The ZCTU
feared that the government had deliberately delayed resolving its complaint to the Labour Commissioner on the sacking as part of the
campaign to weaken the ZCTU leadership.
Fact-finding COSATU mission deported: The ZCTU invited a small COSATU delegation to visit the country on a fact-finding
mission at the beginning of February, but when the COSATU delegation arrived at the airport on 2 February, they were immediately
deported. The aim of the visit had been for ZCTU and COSATU to discuss issues confronting workers in Zimbabwe and the region in
general.
South African trade union educational officers expelled: The following week, on 9 February, two South African based trade
union educationalists, Bibby Marie and Vihemina Prout, were expelled from the country by Zimbabwe Immigration Officers. They had
arrived and had been cleared and were about the leave the airport when they were followed by immigration officers who demanded they
produce “security clearance letters,” since all trade unionists needed Ministry of Labour clearance. As they had none, they were sent
back on the same flight. Marie and Prout were visiting Zimbabwe on the instructions of the Southern Africa Trade Union Coordination
Council (SATUCC) to discuss plans to the open a trade union school in May 2005.
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ZCTU harassed by government: During 2005, the ZCTU and its leadership was continually harassed by the government, both
openly and through the use of ‘”gents provocateurs” who attempted to oust the existing ZCTU leadership. There were also reports in the
press that the Central Intelligence Organisation (CIO) was planning to destablise the ZCTU and replace its existing leadership by paying
leaders from ZCTU affiliates to demand that the leadership be replaced. The events were as follows:
ZCTU Secretary General harassed: Wellington Chibebe, ZCTU Secretary General, was summoned to appear in court on 1 March,
after being arrested in 2004 for addressing a ZCTU workshop in Gweru, allegedly without police clearance. The case was dismissed
when the arresting police officers failed to get their facts right.
Press articles accuse ZCTU of corruption, fraud and unilateral decision-making: At the beginning of March, a series of
articles started appearing in the press citing disgruntled leaders whose unions were affiliated to the ZCTU, accusing the ZCTU
leadership of corruption, fraud and taking decisions without consulting the membership. On 19 March, a ZCTU Executive Council
meeting in Harare was disrupted by 40 demonstrators, organised by three affiliated union leaders, charging the ZCTU leadership with
mismanaging union affairs, and calling for their resignation.
ZCTU May Day preparatory meeting disrupted: A ZCTU General Council Meeting on 6 April to discuss preparations for May
Day was disrupted by members of unions affiliated to the ZCTU - Langton Mugeji, Nicholas Mazurura and Farai Makanda. They
unsuccessfully tried to force the meeting to discuss a motion calling for the ZCTU leadership to resign over allegations of corruption and
fraud. The meeting had to be abandoned when the two men started to manhandle General Council members.
Agents provacateurs attack ZCTU General Council members in Bulawayo: ZCTU President, Lovemore Matombo, his
Deputy, Lucia Matibenga, Secretary General, Wellington Chibebe, and Women’s Advisory Council Secretary, Tabitha Khumalo were
physically attacked on 23 April by agents provocateurs from two ZCTU affiliates - the Construction Workers’ Union and the Leather
Workers’ Union. The affiliated unions had hired hooligans and bussed them to the meeting where they attacked the ZCTU members,
accusing them of corruption and mismanagement, and demanding that the Secretary General resign.
ZCTU leadership receive death threats: ZCTU President, Lovemore Matombo, Secretary General, Wellington Chibebhe and
Women’s Advisory Council Secretary, Tabitha Khumalo, all received death threats after the Zanu PF party won the country’s general
elections at the end of March. It was said that the Harare authorities were planning to “eliminate” the labour leadership. These threats
were given weight by news that the former head of the CIO had been appointed Minister of Labour.
Police storm May Day preparatory meeting and arrest six trade unionists: The police stormed a ZCTU May Day
preparatory meeting on 27 April and arrested six unionists – five Regional Council members and one ZCTU General Council member.
Those arrested were Regional Chairperson, Regional Officer Eliah Mwandipe, Regional Officer, Tambaoga Nyazika, General Council
Member, Hilarios Ruyi, and three activists, Steven Chandakapata, Medicine Muringisi and Superior Boka. They were held for three
hours and then released.
The police alleged that the meeting contravened the Public Order and Security Act (POSA), as they had not sought approval in advance,
although the law exempts trade unions from having to seek approval for May Day events.
Six trade unionists arrested for taking part in a Health and Safety Day march: A further six ZCTU activists were
arrested the following day (28 April) for taking part in a Health and Safety Day march organised by the National Social Security
Authority (NSSA), to commemorate the International Commemoration Day for Dead and Injured Workers. The six workers were ZCTU
Health and Safety Coordinator, Nathan Banda, Elijah Mutemere, Vmbai Mushongera, Nyikadzino Madzonga and two health and safety
shop stewards from the Bindura Nickel Mine.
ZCTU Informal Economy Project Coordinator held at police station for questioning: As part of their campaign to
harass the ZCTU, Elijah Mutemeri, the organiser of the Informal Economy Project, had to go to the police station on 6 May for an
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investigation into fraud allegations - as the project was said to have appropriated large sums of money. He was interrogated for three
hours, although the investigators had no proof and no informant. After he was released, he was allegedly shadowed by unknown people.
Security men harass Commercial Workers’ Union members: The Commercial Workers’ Union of Zimbabwe (CWUZ)
Projects Committee were prevented from holding their Projects Committee meeting on 12 May after security guards, from the
Chinotimba Security Company, surrounded the building, preventing staff from leaving or entering. The security guards alleged that the
meeting was illegal and forced it to be abandoned. The following day the security guards returned, this time stating that the CWUZ’s
National Executive Committee meeting should also be cancelled.
Plain clothes police raid ZCTU offices in Harare: On the morning of 13 May, police raided the ZCTU headquarters in Harare,
allegedly searching for evidence of foreign currency transactions and for evidence that they had been defrauding ZCTU affiliates. The
police rummaged through cheque books and bank statements as well as the ZCTU’s accounts and took away files, computer diskettes
and some of the organisation’s cash.
ZCTU activists arrested for allegedly organising two day job stay-away: Percy Mcijo, David Shambare and Ambrose
Manenji were picked up from their homes in Bulawayo at 5am on the morning of 9 June and taken to the police station. They were
accused of organising the two-day job stay-away that took place on 9 and 10 June. The stay-away was part of the national general strike
organised by the opposition parties. The police detained 30,000 people during the strike and demolished thousands of homes and
businesses. The police had said they would deal “ruthlessly” with any street protests.
Further efforts to discredit ZCTU Secretary General: There were two further attempts to discredit the ZCTU Secretary
General. On 5 July, a group of more than 20 people entered the ZCTU offices in search of Wellington Chibibe, threatening to beat him
up. When they failed to locate him they went outside and began singing derogatory songs about him. This was all recorded by ZBC, the
public television station. All the action seemed to be scripted. Then, on 6 July, a demonstration was staged at the ZCTU headquarters
accusing Chibibe of going outside his mandate, alleging that he had been part of a group calling for a global ban on asbestos at the ILO.
The asbestos issue was not even on the agenda of the ILO conference and was not discussed by the ZCTU.
Leaders of ZCTU Women’s Advisory Council assaulted: Thabitha Khumalo and Phoebe Vhareta, from the ZCTU Women’s
Advisory Council, were assaulted at a WAC meeting on 9 July by the same people who had disrupted previous meetings. This time they
called themselves the Aggrieved Affiliates Workers’ Union (AAWU). They declared that they would continue to disrupt all ZCTU
activities until the leadership resigned. Thabitha Khumalo was so badly injured that she had to be admitted to a clinic for x-rays.
ZCTU pension workshop disrupted: On 15 July, a ZCTU leadership workshop to validate the draft pension scheme, was disrupted
at the Bronte Hotel, Harare, when an unknown person stormed the meeting and started splashing human waste on the participants. The
meeting was adjourned for an hour and the person taken away by police, and later released.
Trade union journalist arrested: Bright Chibvuri, a journalist at The Worker, the ZCTU newspaper, was arrested on 4 August,
when a police riot squad arrested people for organising a demonstration calling for a new Constitution. Bright Chibvuri, who was
arrested with Lovemore Madhuku, chair of the National constitutional Assembly, an NGO grouping, were both charged under Section 19
of the POSA for being involved in gatherings conducive to riot, disorder or intolerance. If found guilty, they could be liable for a fine of
up to Z$50,000 or up to 10 years’ imprisonment. Both men were released the following day on bail of Z$250,000, but are still awaiting
a trial date.
Ministers threaten to arrest striking doctors: On 7 August, junior and middle-ranking medical doctors, who went on strike
during the first week of August, were ordered back to work by the government or face detention. During the strike’s second week, the
doctors were visited by people they suspected to be state security agents, who told them that for their own good, they should go back to
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work, or face arrest for breaching the Essential Services Act. The doctors, who earn a basic salary of Z$5.7 million a month (about
$US57) were demanding a salary increase to Z$47 million (about $US474) and better working conditions.
In addition to visits by the security agents, the Deputy Minister of Health, Edwin Muguti, told the doctors they would be arrested if they
did not go back to work. The strikers called off the strike as patients were suffering, and hundreds of outpatients were being turned
away from the hospitals.
Mambo High School teacher tortured: Harry Taruva, a teacher at Mambo High School in Gweru and a member of the
Progressive Teachers’ Union of Zimbabwe (PTUZ), was forcibly taken away for questioning on 20 September and tortured by two
people claiming to be from the Central Intelligence Organisation (CIO).
He was bundled into a truck in front of teachers and students and taken to Agritex offices where he was tortured for more than two
hours for being a member of the PTUZ, teaching opposition policies to students and associating with PTUZ General Secretary,
Raymond Majonge. He was then released, but told to return on 23 September to report on any opposition activity taking place at the
school.
Seventy former TelOne workers beaten by police: About 70 ex-TelOne workers were beaten by the police at the Harare Central
Police Station on 30 October, following a peaceful demonstration. The workers were protesting about their unfair dismissal on 6
October 2004, during a strike over a salary dispute.
The workers had received a High Court decision of 26 October 2005 that the dismissals were improper and illegal. On 30 October, the
300 workers went to their old work premises to resume work. However, the management refused to meet them to discuss or respect the
Court order. Seventy-two ex-workers then began a peaceful night vigil at their old work place. At about 10 pm, a Police Inspector and a
TelOne security manager arrived and persuaded them to go to the police station to discuss the issue.
Workers beaten with sticks: However, when they were at the police station, in the early hours of 31 October, anti-riot police
arrived at, switched off the lights and began indiscriminately beating the workers with batons and kicking them with their boots. About
16 of the workers were injured, including one who had to be treated for head wounds.
Arrested labour leader handcuffed and taken to police station on public bus: Lucia Matibenga, the General Secretary of
the Commercial Workers’ Union of Zimbabwe (CWUZ) and leader of the MDC Women’s Assembly, was handcuffed and taken by a
public bus to Harare with two police escorts on 19 October. The incident happened after she had been ordered to report to the police
station in Gweru, where she lives, and was then arrested. The police said they had to use a bus as they did not have fuel or a vehicle to
take her to the Harare Central Police Station.
Lucia Matibenga told the media that she believed her arrest was connected with her position in the CWUZ, as their offices had been
invaded in May by people trying to remove the union executive. But, the CWUZ had successfully challenged this in the courts, and the
union was operating normally again.
Danish trade unionists threatened on a visit to ZCTU offices: Two representatives from the United Federation of Danish
Workers (3F) received information on 29 October that a team had been sent to beat them up during their visit to the Federation of
United Clothing, Textiles and Leather Workers of Zimbabwe (FUCTLWZ). The two 3F officials, Arne Skov Andersen and Silva
Mulambo, from 3F’s regional office in Maputo, Mozambique, arrived on 26 October to plan a new phase of cooperation with the
FUCTLWZ. However, when they heard that a team from the Zimbabwean CIO was being dispatched to deal with them, they hurriedly
left the country.
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Leading ZCTU activists arrested on eve of demonstration: Two ZCTU officials in Bulawayo were arrested during the night on
7 November and a third arrested early in the morning of 8 November, for their involvement in planning a march during the national
action against poverty on 8 November. However, they had notified the police of the planned march on 8 November, as required by law.
Mass arrests of ZCTU members: Police carried out mass arrests of ZCTU members during the nationwide demonstration on 8
November. In Harare, 118 ZCTU members were arrested, including ZCTU President, Lovemore Matombo, and Secretary General,
Welllington Chibebe, and over 50 other trade unionists across the country - in Mutare, Gweru and Bulawayo.
The march in Harare lasted only 10 minutes before riot police, armed with batons, shields and dogs, intervened and arrested 118
participants, who were taken to Harare Central Police Station. They were then transferred to Chitunwiza, 25 kilometers outside Harare.
ZCTU Press officers dragged from minibus: On the same day (8 November), at least four ZCTU officials, including Mlamlei
Sibanda, Last Tarabuku, Tabita Khumalo and Leonard Ngwenzi were dragged from a ZCTU minibus by the army for photographing an
army truck. They were released later that day after their photographs were deleted from their cameras.
Ill treatment in detention in Harare: There were reports that ZCTU Secretary General, Wellington Chibebe, was tortured while in
detention and that among those imprisoned were 20 people living with HIV/AIDS who were denied essential medication. Altogether, 120
people were detained for four days in terrible conditions – no water and intense overcrowding. They were finally released on 11
November, after intense negotiations with the Attorney General’s office.
Activists in detention in Mutare: Forty ZCTU members, arrested in Mutare on 8 November, were detained for two days and then
released on bail of between Z$500,000 and Z$1,500,000. They were held under the Public Order and Safety Act.
Continual harassment of the ZCTU: Harassment of the ZCTU continued as police blocked the ZCTU premises in Chinoyi and
Masvingo on 11 November and then 35 members of the ZCTU General council were called for a meeting with the Minister of Labour
because of reports of alleged financial malpractice.
Teachers’ union Secretary General’s passport confiscated: When Raymond Majongwe, Secretary General of the Progressive
Teachers’ Union (PTUZ) and a member of the ZCTU General Council, returned to Harare International Airport on 13 December, police
confiscated his passport. Majongwe had been attending an ILO HIV/AIDS workshop in Nigeria.
Majongwe was said to be on the list of Zimbabweans who were labelled “sellouts” by the government, and who would have their
passports confiscated to prevent them travelling abroad. His passport was returned after the Zimbabwe Lawyers for Human Rights
intervened.
State appoints investigator to probe ZCTU: At the end of 2005, on 28 December, the Minister of Labour, Cde Goche,
announced that he had appointed an investigator, Tendai Chatsauka, a professional auditor, to probe into the affairs of the ZCTU
following accusations of gross embezzlement of funds, corruption and breaches of the organisation’s constitution.
Under the Labour Act, the Minister may order an investigation if he believes that the organisation’s funds are being misappropriated or
the organisation is being run in a way that is detrimental to its members, or if the union is engaging in political activities. The
investigation also follows complaints by ZCTU affiliates that they had been removed from office.
The probe follows attempts, over the summer, by the government to replace the ZCTU leadership with factions friendly to the
government.
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Multinational companies were again among the worst violators
of trade union rights, particularly those operating in the export
processing zones, while workers on the banana plantations also
faced strong, sometimes violent, repression of their rights.
Other problems cited by trade unionists as obstacles to the
respect of their rights included weak enforcement by governments and labour courts, the continued growth of the informal
sector and the ever-increasing trend of using contract labour.
A total of 80 workers died for trying to defend their rights.
In Colombia at least 70 people were killed for their trade union
activities, while a further 260 received death threats. Although
a significant decrease in the number of deaths, it is still an
appalling indictment of the authorities’ failure to tackle the
problem. An ILO high level visit in October concluded that
trade unionists continued to be a target for armed groups, and
that the problem of impunity prevails. In the view of the trade
unions, the new so-called Law on Justice and Peace does little
to tackle the problem. There was a steady increase in violence
against women trade unionists during the year, while the education sector was the worst hit by anti-union violence.
There were also deaths in Brazil where eight people defending
the rights of rural workers were killed, as well as a shoe worker
asphyxiated by police during a demonstration. In Honduras the
regional coordinator of the national trade union centre the CGT,
Francisco Cruz Galeano, was murdered in December when he
was shot 25 times.
The steady increase in cases of intimidation and violence
against trade unionists in Guatemala is disturbingly reminiscent
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of the dirty war. Death threats were made in the form a funeral
wreath and fake death notices against eight leaders of a bank
workers’ union, while red crosses were painted on the walls of
an education union’s offices, also thought to be death threats.
A rural workers’ union was also the subject of an attack, by
armed men, on its offices, and the leader of a municipal workers union narrowly escaped an attempt on his life.
Ecuador provides examples of the pressures faced by banana
workers’ unions. At the San José plantation 44 workers were
sacked for forming a union. Police used tear gas to quell the
protest strike that followed. Tear gas was used again at the
Primavera banana plantation a few days after a two-hour stoppage to press for the signing of a collective agreement In
October 250 workers lost their jobs on three different plantations for trying to form a union and calling for collective bargaining.
In the export processing zones, attempts at organising are regularly suppressed. The leader of the free trade zones workers of
the Dominican Republic told the ICFTU that any attempt at
organising would lead to dismissal. To prove him right, a textile factory in the Bonao free trade zone sacked 17 workers for
setting up a union. Similarly in Mexico, the garment workers’
union told the ICFTU that organising had to be carried out
without the employers’ knowledge.
In Peru the telecommunications multinational ITETE dismissed
23 union members shortly after the union was formed, threatened remaining members with dismissal, transferred several to
lower paid jobs, and sent others on leave without warning,
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while refusing to negotiate a collective agreement. Similar tactics were used by two soft drinks multinationals, Ajeper and
Gloria S.A.
In the north of the continent, the US government remained
fiercely anti-union, with decisions by the national labour relations board clearly undermining union rights. Union busting
remained rife, as illustrated by the vote by workers at the St.
Gobain abrasives factory to decertify their union following a
systematic anti-union campaign of harassment and coercion.
In Canada, provincial governments further undermined their
employees’ trade union rights. In British Colombia a collective
agreement was imposed by law on teachers in the public sector.
When the teachers’ union went on strike in protest, it was fined
half a million Canadian dollars because the strike was deemed
illegal. In Quebec too the government imposed a labour contract on public sector employees rather than negotiating a collective agreement. In the private sector, the WalMart supermarket chain closed down its Jonquière store in Quebec, following the success of its workers in setting up the first WalMart
employees union in North America. Elsewhere, WalMart used
intimidation, electronic spying, and the shadowing of union
activists to prevent the establishment of unions in its branches.
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POPULATION: 39,300,000 / CAPITAL: BUENOS AIRES / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
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§
The law continued to allow for recognition of only one union per industry and geographical
region. There was little tolerance of strike action during the year, with strikes resulting in a
mass dismissal for employees of Aerolíneas Argentinas and suspension for school head
teachers. At the Telefónica company, one engineer was assaulted and threatened with
death for refusing to leave his union.
Freedom of association: Under the Constitution, workers have the right to join and form free democratic trade unions, which are
then officially recognised when entered into a special register. Trade unions are regulated by Law 23551, adopted in 1988. All workers with the exception of military personnel - are free to join and form trade unions, without prior authorisation, at industry, company or
branch level, as well as craft unions. Two or more unions may establish a federation, and two or more federations may establish a confederation.
Trade union leaders must be appointed by direct and secret ballot of the rank and file. They may hold office for no more than four years,
but they can be re-elected.
Collection of union dues by “check-off” is mandatory under the trade union law.
Restrictions: There are certain legal restrictions on freedom of association, however, notably the fact that only one trade union - the
most representative one - in a given industrial sector and within a specific geographical region, may be certified as having “union personality” (“personería gremial”), which enables it to negotiate wages or collect dues.
For a union to be certified as having “union personality” - which confers, inter alia, exclusive collective bargaining rights - it must: (a)
be officially registered and have been operating for at least six months; (b) have a membership covering not less than 20 per cent of the
workers it intends to represent, and (c) be the most representative trade union in the relevant industry or branch, within a given geographical area (generally a city or province, though in some cases, the whole country).
Collective bargaining: The law allows collective bargaining on a regional, provincial or company level.
For a collective agreement to be binding, it must be approved by the Ministry of Labour pursuant to Law 14.250, which aims to protect
workers’ interests by ensuring that the clauses of collective agreements do not affect their rights under national law and preventing the
implementation of collective agreements that could weaken those rights.
New Labour Reform Law: The Labour Reform Law, adopted by the National Congress on 2 March 2004, amended its predecessor
of 2000 and made changes on collective rights and related issues. This new law establishes the most favourable standards.
Strikes: Article 14b of the Constitution guarantees unions the right to strike, without distinguishing between different types of union. A
15 day conciliation process may be imposed on all union organisations a strike. Equally, either side in a dispute can request conciliation.
The conciliator may extend the conciliation period for a further five days.
Protection for trade unionists: The legal system prohibits any action that impedes or obstructs the regular exercise of the rights
related to freedom of association. Article 47 of Act No. 23.551, provides that “all workers or trade union associations prevented or hin-
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dered from normal exercise of the rights of freedom of association guaranteed by this Act, may have recourse to the competent law
court with a view to obtaining the recognition of those rights, in accordance with the procedure established in Article 498 of the
National Code on Civil and Commercial Procedures or in the corresponding codes at provincial level, so that said court may order the
immediate cessation of the anti-union behaviour.”
The Trade Union Law prohibits certain unfair labour practices, including employers' interference in trade union activities, anti-union discrimination, dismissal of workers who engage in trade union activities, refusal to engage in collective bargaining and obstruction of the
collective bargaining process. Complaints for unfair labour practices can be lodged with the judiciary. Unfair practices are precluded
under Article 55 of Act 23.551, which authorises judges to order the cessation of the unfair practice or to take measures to that effect,
including fines.
Some sectors are still excluded from collective bargaining: It has not been possible to restore wage levels, which have still
not returned to 2001 levels. This has been, in part, due to sections of the workforce being excluded from collective bargaining and also
because the unemployment rate is at 16 per cent. Nevertheless, 572 collective agreements were signed in 2005, a 64 per cent increase
on 2004.
Criminalisation of social protest: Trade unionists trying to defend their rights through strike action have faced dismissal or court
action. In recent years, including 2005, various cases of criminalisation of social protest have been reported.
Union recognition refused: In recent years there have been a number of cases in which legal restrictions have been used to reject
union registration applications and, accordingly, union “personality”. The trade union centre, Central de los Trabajadores Argentinos
(CTA), has consistently been denied official recognition. On 6 September 2005, hundreds of members of the CTA held a demonstration
in front of the Labour Ministry in the Plaza de Mayo to protest against the Kirchner Government’s decision not to grant legal “personality” to the CTA.
VIOLATIONS IN 2005
Background: On 23 October, elections were held for both houses of the Congress, resulting in a victory for President, Néstor Kirchner,
who maintained a majority in the Senate. “Hard core” picketers have continued to block roads. The pro-government picketers’ leader,
Luis d’Elía, will be taking up the post of Secretary for Land and Housing. A series of teachers’ strikes paralysed the education of 1.5
million children in state schools. At the end of the year, Kirchner announced that Argentina would settle all of its debt with the IMF.
Violation of the right to strike of teachers in Neuquén: The year kicked off with the 30 day suspension of 50 school heads in
the province of Neuquén for taking part in a strike. Their suspension was ordered by the provincial government on 31 December 2004,
which led the local teachers’ union, Asociación de Trabajadores de la Educación de Neuquén (ATEN), and the national confederation,
Confederación de Trabajadores de la Educación de la República Argentina (CTERA), to file a complaint against this violation of the
right to strike with the International Labour Organisation (ILO).
Attack against trade unionists at Telefónica: On 29 March, five engineers from Telefónica – members of Ce.P.E.Tel. – filed legal
proceedings against the company for exerting pressure on them to leave their union. On 30 December 2003, they had been called in by a
manager who explained that if they wanted a pay increase they should leave the union. On the evening of 28 April, one of the engineers
was beaten up by two thugs who warned him that if the papers continued to publish this matter, they would kill him.
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Anti-union harassment at Pizza Libre: The firm Pizza Libre ordered various dismissals and created a climate of harassment and
repression as its workers were setting a date for electing a union delegate. On 28 November, the federation representing bakers and
allied trades, the Federación Argentina de Trabajadores Pasteleros, Confiteros, Heladeros, Pizzeros y Alfajores (FATPCHPYA), presented
the Ministry of Employment with a request for conciliation at the company before 2 December, the election day.
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Dismissals for going on strike: On 29 November, Aerolíneas Argentinas sacked 168 pilots and technicians who were on strike and
threatened the workforce with other dismissals if they failed to provide the minimum services, in accordance with the conciliation terms
set by the Ministry of Labour. That decision aggravated the conflict, which had begun on 24 November when the pilots’ associations,
Asociación de Pilotos de Líneas Aéreas (APLA) and Asociación de Personal Técnico (APTA), launched a strike in support of a pay
increase and the reinstatement of 11 people. The unions argued that they had been negotiating for a year and a half to no avail and had
already complied with all the obligatory conciliation terms. The unions decided to continue the strike indefinitely. The conflict was
paralysing national and international services and it is estimated that 20,000 passengers were grounded.
Eventually, on 3 December, the parties were called to the negotiating table by the government and an agreement was reached. The company signed a 90 day transitional agreement providing for a pay increase, the reinstatement of the 373 employees, the payment of the
strikers’ lost income and the settlement of union demands, over a three month period. During that time the unions and the management
(Aerolíneas and Austral) agreed an agenda for discussing issues not covered by the agreement.
Bahamas
POPULATION: 321,000 / CAPITAL: NASSAU / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 -182
An employer can call for a union’s recognition to be withdrawn if negotiations on a
collective agreement take more than a year to complete. Before unions can legally take
strike action they must apply for permission to hold a strike ballot, and the Ministry of
Labour can refuse to approve strike action. Unions continued to face problems over
collective bargaining.
§
Freedom of association: Private sector and most public sector workers may form or join unions without prior approval. Members of
the police force, defence force, fire brigade and prison guards may not organise or join a union, although the exclusion of the first two
categories is not considered a violation of international labour standards. The right to collective bargaining is recognised in law. To be
recognised as a bargaining agent, a union must represent 50 per cent plus one of employees. If an employer fails to reach agreement
with a union after 12 months, the employer can apply to have the union’s recognition revoked.
Right to strike: The Industrial Relations Act requires a simple majority of a union’s membership to vote in favour of a strike motion.
The Ministry of Labour must approve a strike ballot, which in the case of the public sector is contrary to the principles of freedom of
association, given the government’s role as employer.
Export processing zone: There is one free trade zone in the Bahamas, Freeport, which is governed by the same laws as the rest of
the country.
Failure to honour agreements: While unions do exercise their rights widely, there have been cases over the years of the government
frustrating unions, notably by failing to honour industrial agreements. Trade unions believe some employers deliberately drag out
negotiations for over a year in order to apply for a union’s recognition to be revoked.
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The Trade Union Congress of the Bahamas reported in 2005 that it can take a year or even longer for a union to be granted
recognition.
VIOLATIONS IN 2005
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Background: There was a lot of industrial unrest during the year, with the government finding itself in dispute with the Bahamas
Electrical Workers’ Union, the Nurses Association, the Bahamas Public Service Union and the Bahamas Union of Teachers.
Collective bargaining agreements not respected: Problems over collective bargaining continued in 2005, with the Bahamas
Public Services Union accusing the government of negotiating in bad faith. The union believed it had agreed a wage rise for the following year with the government, but when the government publicly announced its final offer, it emerged that the amount was to be paid in
three instalments, over a five year period.
The First Caribbean Bank failed to respect the bank’s agreement with its workers’ union when it granted an agreed 3 per cent across
the board pay rise at the end of the year, but refused to give staff the annual increments foreseen in their agreement. The dispute continued at the end of the year.
Anti-union intimidation: When 300 employees at the Sandals Royal Bahamian Resort on Cable Beach expressed their strong interest in forming a union, they were reportedly told they would be dismissed with six weeks pay, and that the resort would close down and
re-open with new owners if they continued with their attempt to organise. The resort’s general manager denied workers’ claims that they
had been repeatedly blocked in their attempts to form a union, and said he believed that most of the workers had simply not felt the
need for a one.
Belize
POPULATION: 266,000 / CAPITAL: BELMOPAN / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
§
There was no change in Belize where the authorities still have the right to terminate a
strike in services that are not considered essential, by international standards, and there
are still restrictions on collective bargaining rights.
By law, workers are free to establish and join trade unions, and members are free to elect officers from their membership. The law prohibits anti-union discrimination.
Restrictions on the right to strike: Unions do have the right to strike, but this is limited for public sector workers in areas designated as “essential services”. The Essential Services Act empowers the authorities to refer a dispute to compulsory arbitration to prohibit or terminate a strike. Such services are broadly defined, extending to postal, monetary, financial and transport services (civil aviation), and even services in which petroleum products are sold.
Restrictions on collective bargaining: The law provides for collective bargaining but, under the Trade Unions’ and Employers’
Organisations Act, a trade union can only be certified as a bargaining agent if it receives 51 per cent of the vote. Hence, if no union
represents more than 50 per cent of workers, even the largest union at the workplace could be denied the right to collective bargaining.
The Labour Code applies in the country’s export processing zones (EPZs).
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In practice there is anti-union discrimination on the banana plantations and in the export processing zones, where employers do not
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recognise any unions.
Fines imposed on employers in cases of anti-union discrimination have proved too low to be dissuasive. It is difficult for workers to prove
in court that they were unfairly dismissed because of their trade union activities.
Bolivia
POPULATION: 9,100,000 / CAPITAL: LA PAZ / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
The government had not amended the law to remove several serious restrictions on the
freedom of association by the end of the year, despite promises to the ILO.
§
Government authorisation required: Workers may form and join organisations of their choosing and bargain collectively. The law
contains many restrictions on these rights, however. The General Labour Act, dating back to 1942, requires prior government authorisation to establish a union and permits only one union per enterprise. It denies public servants the right to organise, with the exception of
workers in the health, education and oil sectors. The ILO has insisted that civil servants not involved in the State administration be given
the right to join unions, but the government has failed to act. Peasant farmers and agricultural workers are also denied freedom of association. Company or branch unions can only be formed if there is a minimum of 20 workers, while industrial unions need the support of
at least 50 per cent of the workforce in order to be established. The General Labour Act provides for labour inspectors to attend union
meetings and monitor union activities. Members of trade union executive boards must be Bolivian by birth, thereby discriminating
against foreigners and other workers who have acquired Bolivian nationality. Trade union officials must work for the same company. A
decree on the application of the Labour Act also enables the government to dissolve a union by administrative decree.
The law does not allow unions to join international organisations.
Right to strike – strict conditions: Strikes in public services, including banks and public markets, are banned by law. For other
workers, the right to strike is subject to strict conditions. In order for a strike to be declared legal within a company, the strike must be
supported by three quarters of the workers. General strikes and sympathy strikes are entirely prohibited and violators face prosecution.
Compulsory arbitration, which according to international labour standards should only apply to essential services, may be imposed in
order to put an end to a strike in sectors that are not always essential. Public service workers are denied the right to strike, as are
employees in the banking sector. Those workers who disagree with a strike may continue their normal duties and may even ask for police
assistance. Where a strike is declared illegal, those who took part in it may be sentenced to prison terms of one to five years, with forced
labour as an additional punishment, in line with the Bolivian Criminal Code (art. 234).
Lack of protection: Fines for acts of anti-union discrimination or interference by employers are far too low to be effective, as the
amounts date back to 1944. The ILO has recommended that the fines be increased five fold.
Promises to remove many legal restrictions: During an ILO technical assistance mission to Bolivia in April 2004, a tripartite
meeting was held at which it was agreed to remove some, but not all, of the restrictions on trade union rights. The key problem areas to
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be tackled would be the exclusion of agricultural workers/peasant farmers from the scope of the General Labour Act, the denial of the
right to organise for public servants and the possibility of the dissolution of trade union organisations by administrative decision.
Agreement was also reached on raising the level of fines for acts of anti-union discrimination by employers. At the end of 2005, none of
the promised changes had been introduced.
In practice, the minimum requirement of 20 workers to form a union has proved a heavy restriction, as an estimated 70 per cent of
enterprises have fewer than 20 employees.
Inefficient labour courts: The sluggishness of labour law proceedings is typified by the National Industrial Tribunal, whose cases
usually take more than one year to complete. As a result, rulings on cases of discrimination against union leaders and members are frequently too late to have any effect.
Strikes: In practice, strikes have taken place in recent years, including public sector strikes. There were massive protest strikes during
2005, which led to the resignation of President Mesa in June.
Peasant farmers: Peasant farmers have formed their own associations in order to protect their interests, although these are not
recognised in law as trade unions. They are particularly angry at what they see as an unfair crackdown on coca leaf production - a traditional crop and their only form of livelihood - as part of the war on drugs. Union action and peasant farmers’ protests are often closely
linked. The national trade union centre, the Central Obrera Boliviana (COB), includes coca growers among its members, and has often
joined forces with the farm workers’ association, the Confederación Sindical Única de Trabajadores Campesinos de Bolivia (CSUTCB),
when organising social protests. Strikes and social protests are almost always met with harsh repression.
Hostile employers: The national trade union centre, Central Obrera Boliviana (COB), reports that for many years employers have discouraged union organising, notably by threatening workers with dismissal if they join a union.
Brazil
POPULATION: 182,800,000 / CAPITAL: BRASILIA / ILO CORE CONVENTIONS RATIFIED: 29 - 98 - 100 - 105 - 111 - 138 - 182
§
There was a resurgence of violence against rural workers in Mato Grosso, Pernambuco and
Pará. At least eight defenders of rural workers were murdered during the year. One trade
unionist from the shoe industry was killed by police while attending a demonstration
protesting at the crisis in that sector. Forced labour continues to be a serious problem in
Brazil.
The central component of Brazilian labour legislation is the Compendium of Labour Laws (CLL) of 1943. It began as a codification of
the laws of the “New State” of former leader Getulio Vargas, and includes articles introduced into the federal Constitution during the
1988 reform. The policy pursued since that time has been to revise individual articles or sections of the CLL to bring them in to line
with prevailing political trends.
“Unicidade” and trade union tax: The Constitution and the Labour Code provide for union representation for all workers, except
the military, uniformed police and fire fighters. The “unicidade” system stipulates that there can only be one trade union per economic
or occupational category in each territorial area. This geographically based single union system means that some sectoral federations
and national trade union centres are not legal. Various federal laws, however, recognise the legitimacy of trade union confederations created since the early 1980s, while the Federal High Court has recognised the sectoral unions set up under a framework system.
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By law, each worker must pay a compulsory trade union tax, equivalent to one day's pay. It is deducted from their pay in March and then
distributed to the unions, federations and confederations. A portion also goes to an employment and wage fund at the Ministry of Labour.
The funds are distributed in proportion to the number of workers legally represented (based on the obligatory single union system, not on
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the number of workers actually affiliated).
Collective bargaining - heavy constraints: Collective bargaining is only open to those unions that are legally registered with the
Ministry of Labour. The monopoly situation excludes workers from sub-contracted firms. The courts interfere in collective bargaining by
making rulings based on petitions from only one of the parties. Owing to the lack of effective arrangements for direct bargaining with
unions in companies, there is a huge number of pending court cases. In 2005 alone, there were 1.4 million new cases.
Right to strike: The 1988 Constitution established the right to strike without restrictions for most workers. However, police and the
military cannot strike. In addition, the Constitution does not allow the right to strike in the public services and, under the legislation
promulgated in 1989, strikes by providers of essential services are subject to tighter restrictions than those allowed by the ILO.
Export processing zones: There is only one export processing zone in Brazil and the legislation applied there is no different from
that throughout the country. The restrictions imposed on workers and their unions in the zone are the same as those suffered by all other
Brazilian trade unions.
Reforms in line with international standards: The Lula government announced its intention to reform the Brazilian Labour Code
to bring it into line with international labour standards, notably ILO Convention 87. In July 2003, the government set up a tripartite
National Labour Forum whose report, in 2004, set out a number of priorities, including the ratification of ILO Convention 87, a review
of the system of financial support for trade unions (trade union tax), a new framework for trade union organisation and representation
(to replace the unicidade), stronger collective bargaining rights and a change in the application of labour laws to take into account small
and medium sized enterprises. The government drafted a bill on the basis of the Forum's conclusions which it submitted to Congress.
Discussions in Congress had not begun by the end of the year, and were not expected to conclude until 2006, at the earliest.
In practice, some of the legal limitations on unions are ignored. At the same time, however, employers blatantly violate union rights.
The three main national centres, Força Sindical (FS), the Central Unica dos Trabalhadores (CUT) and the Confederaçao Geral dos
Trabalhadores (CGT), are all recognised in practice, and take part in tripartite bodies. They want to see the law changed to bring it in
line with reality. As it stands, the government could technically remove them from tripartite discussions. Proposals to this end are before
Congress.
There has been an increase in tripartite consultations aimed at solving labour disputes and in the participation of trade union organisations in governmental bodies dealing with economic and social affairs.
Civil servants: By taking advantage of loopholes in the law, civil servants have managed to strike and even win pay disputes, without
having any pay deducted for strike action.
Discrimination: The authorities have proved incapable of applying the anti-union discrimination laws. Trade unionists are frequently
dismissed, in total violation of their trade union immunity. The courts operate very slowly, and are unable to deal with the two million or
more complaints filed every year. Union officials estimate that 95 per cent of such cases take five to ten years to resolve, and a huge
backlog has built up.
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Blacklists: Brazilian trade union confederations officially complained to the ILO about blacklists created using information taken from
industrial tribunal websites. The blacklists reveal the names of workers who have lodged complaints against companies.
Forced labour - some improvement: Some recent agreements between employers and workers' organisations to eradicate forced
labour shows there's room for an approach combining enforcement of the law, social dialogue and the active participation of trade
unions and employers' associations.
VIOLATIONS IN 2005
Background: President Lula’s government has faced a barrage of accusations over “mensalão”, a system of buying MPs’ votes to
support the government and allegations that public funds were used to finance election campaigns. These allegations have seriously
affected the government and the ruling Workers’ Party (PT) and led to the resignation of some of its main ministers.
In a national referendum, the people voted against a ban on the sale of firearms, despite the fact that in the previous year, 36,000 people had died from bullet wounds. Lack of trust in the police was cited as one of the key reasons for rejecting the proposal. In July, the
President appointed Luiz Marinho, President of the Central Única dos Trabalhadores (CUT), as Minister of Labour. Marinho had criticised the government's stringent budget and signalled that his priorities would be to increase the minimum wage, combat forced and
child labour and reform the law on trade unions. The government proceeded to organise tripartite negotiations on the reforming of
labour legislation and the resulting proposal is before the Parliament.
Rural workers assassinated: On 4 November, the municipal councillor of Pará, Edson Coelho Lara, who had links with the rural
workers’ movement, was assassinated in the town of Itupiranga. On 8 November, Domingos dos Santos Silva (Domingão), coordinator of
the occupation of the Mineira estate, was killed with total impunity in Marabá. One day later, it was the turn of Pedro Laurindo da
Silva, coordinator of the Cabo de Aço estate, in the same municipality. In Pernambuco, the victim was Anilton Martins, a worker killed
in the municipality of Itaiba, who was shot 18 times. Ironically, Anilton had gone to the Palácio do Planalto (the seat of the government) nearly 15 months earlier to ask President Lula for police protection. In Mato Grosso, two fellow workers were murdered in the
municipality of Nueva Guarita. They were Vanderlei Macena and Mauro Gomes Duarte. The workers were part of a group of 350 families that, in 2003, claimed piece of land in that region.
Murdered for defending the rights of landless peasants: On 10 June, Antônio Matos Filho, one of the founders of the rural
workers’ union in Parauapebas, south-east Pará, was assassinated. Matos Filho had been working in the town’s agriculture secretariat
and had been supporting landless peasants, against the interests of the major landowners. The police have opened an investigation into
his death.
Another champion of land rights murdered: On 17 November, Pedro Laurindo da Silva was murdered in Marabá. Laurindo da
Silva was a member of the agricultural workers’ federation FETAGRI and was one of the leaders of the agricultural workers’ union in
Marabá and a coordinator of the “Zumbi dos Palmares II” community, which was claiming its right to the Cabo de Aço estate. The
gunman (later identified as Valdemir Coelho de Oliveira) ran off, but was eventually arrested by the police.
Laurindo da Silva had denounced the violence used by police in dispossessing families, including the violence used against his daughter,
who suffered near fatal burns when her house was set on fire police. In March 2005, he had also reported to the National Programme
for Protection of Human Rights Defenders that he had received death threats from people associated with that estate. His statement was
supported by other members of the community. However, he was not given any protection.
Trade unionist from the shoe industry murdered: In October, Jair Antonio da Costa, a 31 year old trade unionist from the shoe
industry, was killed by police while taking part in a demonstration against the crisis in his sector in the town of Sapiranga, Rio Grande do
Sul. The forensic expert established that his death had been caused by asphyxiation following injuries to the larynx and spinal column.
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Cargill ignores collective agreements and violates the right to strike: Cargill, a company that works principally with agricultural and food products and risk management, increased its stake in the Brazilian poultry industry during the avian flu crisis. But, it
has refused to apply the existing agreements. The company’s employees demanded the application of the agreements applying to their
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sector and the ending of anti-union persecution. However, the company continued to systematically ignor workers’ rights. The union then
decided to call a strike and Cargill responded by trying to break the strike and destroy the union. The courts intervened and ruled that
the company could not take on new staff or transfer workers from other plants. Eventually, on 14 December, the workforce obtained a
5.7 per cent wage increase and a job security guarantee.
Canada
POPULATION: 32,000,000 / CAPITAL: OTTAWA / ILO CORE CONVENTIONS RATIFIED: 87 - 100 - 105 - 111 - 182
§
The retail giant Wal-Mart was found guilty by the Quebec labour relations board of
dismissing workers for their union activities after it closed down its first-ever unionised
store in Jonquière. In several provinces, the law still contains restrictions on the right to
form a union, to bargain collectively and to strike, particularly in the public sector.
The Premier of Quebec imposed a pay deal on public sector employees rather than reach a
negotiated solution.
Under federal legislation, workers in both the public and private sectors have the right to associate freely. Trade union rights are officially guaranteed in federal legislation, although each province also has its own legislation, setting limitations on these rights. All workers
have the right to strike, except for those in the public sector who provide essential services (with a few exceptions such fire fighters in
Nova Scotia who have the right to strike). Replacement labour may be used in industries governed by the Canada Labour Code. Public
and private sector workers have the right to organise and bargain collectively. The law protects collective bargaining, but again there are
limitations which vary from province to province. The law prohibits anti-union discrimination.
Alberta: exclusion and denial of the right to strike: Several categories of workers, including agricultural and horticultural
workers, are excluded from the provincial labour relations’ legislation and, therefore, from the protection this provides. For universities,
the law authorises the Board of Governors to say which staff members may or may not form a trade union.
The law on labour relations in the civil service bans strikes by all hospital workers, including a whole series of workers who do not fall
into the category of essential services. Strikers involved in illegal strikes are liable to receive heavy fines and even prison sentences.
The Labour Relations (Regional Health Authorities Restructuring) Amendment Act, which came into force on 1 April 2003, put an end
to the right to strike for the remaining 10 per cent of health care workers in Alberta, who still had that right. It also took away the right
of nurse practitioners to be unionised. Finally, it forced members of the four functional bargaining units (there were five prior to the Act)
to take part in “run-off” votes. The Alberta Labour Relations’ Board then determines which collective agreement applies to all members,
thereby effectively negating all other collective agreements.
Alberta legislation also authorises extensive intervention by the authorities in collective bargaining and allows the employer to bypass the
trade union as a bargaining agent, and to use replacement workers in a strike.
British Columbia: collective bargaining undermined in the education and health sectors: In 2001, nurses and paramed-
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ical professionals in the province lost their right to strike, with the introduction of the Health Care Services Continuation Act, and had a
collective “agreement” imposed on them by the Health Care Services Collective Agreement Act. Education was designated an “essential
service” under the Skills Development and Labour Statutes Amendment Act, giving the authorities the power to deny teachers the right
to strike.
Further limitations were introduced in 2002, with the adoption of the following three bills: the Education Service Collective Agreement
Act (Bill 27); the Public Education Flexibility and Choice Act (Bill 28), and the Health and Social Services Delivery Improvement Act
(Bill 29). The Acts completely eliminated or rewrote provisions in existing collective agreements that had been freely negotiated and
afforded substantial protection for workers in the province. Furthermore, the removal of restrictive language gave health care and other
employers the right to avoid the terms of binding collective agreements by “contracting out” to related employers who are not covered
by such agreements. The legislation also permits the government to initiate action that could result in the cancellation of bargaining
rights. The case was submitted to the ILO Committee on Freedom of Association, which urged the government to amend some provisions
and review the collective bargaining issues raised. The health care unions challenged the legality of Bill 29. The court ruled in July
2004 that although the bill did affect the unions’ bargaining strength, it was not unconstitutional.
Also in 2004, the Health Sector (Facilities Subsector) Collective Agreement Act (Bill 37) imposed terms and conditions favourable to
the employer, ordered an effective 15 per cent decrease in compensation for the union members covered by the agreement, and ordered
the end of their strike.
Again in 2004, the provincial government passed the Education Services Collective Agreement Amendment Bill (Bill 19) which modified or eliminated numerous provisions from freely negotiated collective agreements in the education sector, undermining the right of
teachers’ unions to act as bargaining agents for their members. The amendment overturned a successful court challenge by the British
Columbia Teachers’ Federation against an earlier arbitration award removing provisions from collective agreements and pre-empted any
further challenges by stating the amendment applied “despite any decisions of a court to the contrary”.
This was followed in 2005 by the Teachers’ Collective Agreement Act (Bill 12), imposed while the teachers were involved in the first
stages of industrial action (a work-to-rule) following a lengthy attempt to negotiate a new agreement. While the Act appeared to set out
an extension of a current agreement, it was the latest piece of legislation taking away contract terms and imposing collective agreements on public school teachers.
The government also introduced the Crown Counsel Agreement Continuation Act (Bill 21) in 2005, rejecting an arbitration award
granted under the terms of other legislation governing Crown Counsel and imposing its own salary terms on lawyers working for the
Crown. The Act also prohibited the withdrawal of services.
British Colombia denies nurse practitioners right to organise: The Health Statutes Amendment Act excludes nurse practitioners in British Columbia from joining a union.
Ontario: many restrictions: Ontario's labour legislation continues to exclude agricultural and horticultural workers, as well as
domestic workers, architects, dentists, land surveyors, lawyers and doctors. People taking part in community activities are also prevented by law from joining a trade union. A ruling by the Supreme Court of Canada in December 2001 declared that the Ontario law
prohibiting the unionisation of agricultural workers was unconstitutional. In October 2002, the government of Ontario passed the
Agricultural Employees Protection Act which, according to the Ontario Federation of Labour, “basically gave agricultural workers the
right to join a social club, but they still can't join a union or bargain collectively.”
The Ontario Labour Relations Board lost the authority to order automatic union certification right after the election of the anti-labour
Harris government in 1995. In early 2005 the new Liberal government tabled a bill that would provide a card check certification
process only to workers in the building trades, but not the rest of the workforce. The automatic certification, based on evidence of a
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signed union membership card, was a key cornerstone of the Ontario Labour Relations Act that applied to all workers prior to the
Harris government. Its reinstatement - only for the building trades - was considered as a partial victory. The Act passed in the Fall of
2005 remains, to many, as a systemic barrier to workers in other sectors joining a union.
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Collective bargaining rights are heavily restricted in education under the terms of a 1997 law. This excludes school principals and assistant principals from taking part in the teachers' negotiating unit, which can only negotiate working conditions on an informal basis. The
Ontario Education Act also establishes a de facto trade union monopoly, by designating the trade union recognised as the bargaining
agent by name. If a dispute leads to strike action, arbitration can be imposed after three weeks. The global trade union federation,
Education International, lodged a complaint with the ILO in October 2003 about legislation adopted by the outgoing government of
Ontario that further narrowed the bargaining rights of teachers. It altered the definition of strikes and expanded the statutorily prescribed duties of teachers. In response to the critical conclusions of the ILO, the new government of Ontario said that it was committed
to creating fair labour relations in Ontario's schools.
With the election of the new government in Ontario in 2005, the requirement to post workplace documents on the process to terminate
bargaining rights has been repealed. The Ontario Labour Relations Act has also been amended to empower the Ontario Labour Relations
Board to certify, without a vote, when the employer has grossly violated the law and intimidated the employees. The labour movement
also gained the right to interim reinstatement for those fired during organising campaigns.
New Brunswick: certain categories of workers excluded: Agricultural and horticultural workers are excluded from the protection provided by the province’s labour relations legislation. Casual workers in the public sector cannot affiliate to organisations of their
choice and therefore cannot enjoy the corresponding rights such as collective bargaining.
Québec: limitations on the right to strike: In 2003, the provincial government introduced amendments to the Act on health and
social services and the Act on early childhood centres and care services, which withdraws the definition of salaried employee from anyone performing a job “outside of the workplace”. Under the Quebec labour code only “employees” enjoy the right to form unions.
Hence, by redefining them as independent workers, the amendments deprived them of their previously recognised right to organise.
Ironically, the Acts concerned were designed to promote a policy of non-institutional and home based care, yet it was the very people
providing this care that were deprived of their basic rights by the amendments. Those unions that had been set up had their union status
revoked, and their right to collective bargaining. The great majority of the workers concerned were women.
The right to strike is limited by two acts that give a very broad definition of essential services.
Manitoba: The Labour Relations Act stipulates that if a dispute lasts for more than 60 days, one of the parties may ask the Manitoba
Labour Board to determine the content of a new collective agreement.
The Public Schools Act bans teachers from going on strike and contains heavy fines for breaches of this law. It also provides for compulsory arbitration at the request of one of the parties if a dispute lasts more than 90 days.
Prince Edward Island: As with Ontario, the law effectively imposes a trade union monopoly by naming a bargaining agent in the
Civil Service Act.
Nova Scotia: The same applies to Nova Scotia, where the bargaining agent is named in the Civic Service Collective Bargaining Act
and in the Teachers’ Collective Bargaining Act.
Newfoundland: The Public Service Act confers broad powers on the employer with regard to the procedure for the designation of
“essential employees”.
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While the law is generally respected in practice, the many limitations it provides are taken advantage of by both private sector employers and public authorities.
Provincial governments have used the law to order strikers back to work, while private employers have brought in temporary workers to
replace strikers.
Ontario: Trade unions in Ontario reported that the changes to the labour law brought in by the conservative Harris government had
made it extremely difficult for Ontario workers to exercise their union rights. Tensions over trade union activity had escalated into
threats and physical violence over recent years, to the extent that workers were afraid to unionise.
VIOLATIONS IN 2005
Background: Prime Minister Paul Martin’s minority Liberal government survived a confidence motion over a financial scandal in
May. Paul Martin was exonerated from misspending government money by a commission set up to investigate the scandal, but his government was brought down by another vote of confidence that went against it in November.
Wal-Mart dismisses workers for their union activities: On 29 April 2005, the retail giant Wal-Mart (whose turnover in 2004
was over $US10 billion) closed its Jonquière store in Quebec, leaving 150 people out of work. The multinational stated that it was
because the store was not making a profit, but the public clearly saw it as an act of revenge. The redundant workers had been the first
Wal-Mart employees in North America to set up a trade union (in August 2004), which the employer was bound to negotiate with under
Quebec law. Furthermore, the company had done nothing to get out of its 20 year lease on the building or to sub-let it, suggesting that
profitability was not the problem and that it probably intended to re-open later.
Several organising initiatives, in many branches, including those in the towns of Brossard and Gatineau were thwarted through a mixture of threats, intimidation and delaying tactics. The management, which has an annual staff turnover of around 75 per cent in some
cases, uses harassment, electronic spying, informing and shadowing of union activists in order to prevent the establishment of unions in
its branches. Several complaints of psychological harassment have been made and have been heard by the Commission on working standards and the Québec Labour Relations Board. The latter ordered Wal Mart to stop the intimidation and harassment. It also found it
guilty of hindering freedom of association.
In this case, the Board accredited the union. Several months later, in December 2005, the employees at the store in Saint-Hyacinthe, a
medium-sized town 55 kilometres from Montréal, were still managing to keep their union going. Wal Mart had run out of all its possible legal recourses and deadlines and was faced with the inevitability of signing the first collective agreement provided for in law. It is
now threatening to close the store or transfer its activities in the near future.
Wal-Mart succeeded a few years ago in convincing the ultra-conservative Ontario government to reduce trade union organising through
changes to the law. In Québec, where a union simply has to get a majority of the workforce to sign union cards in order to have the
union legally recognised, the retail giant is pressing strongly for mandatory votes of allegiance and disputing the legal rulings of state
bodies.
In December, the Quebec Labour Relations Board concluded that Wal-Mart had acted illegally and had dismissed workers for engaging
in union activity when it closed its shop in de Jonquière, rather than accepting a union and collective agreement.
Telecommunications company blocks union websites: On July 22, the telecommunications company Telus sought and won a
court injunction against the Telecommunication Workers’ Union (TWU) which barred union members in British Columbia from picketing
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near its premises or those of its customers in a way that could be perceived as blocking or impeding access. The company flooded the
court with video evidence of its view of events. On the same day, Telus blocked its subscribers from two pro-union web-sites which publicised the union’s view of the strike. The stoppage, over job security, had begun the previous day.
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Transport union official sacked for speaking out: George Crocker, the President of the Amalgamated Transit Union Local
1462, was sacked by the St. John’s Transportation Commission (Newfoundland) on 2 November. He was dismissed after 21 years in the
job after he made public statements criticising the commission’s handling of assaults on Metrobus operators – his members – and for
complaining that the commission had violated the agreement that had put an end to a 19 day strike the previous November. In his letter
of dismissal, he was accused of being “disrespectful” of management and not following the chain of command in representing his
members.
Quebec Premier ignores collective bargaining rights: The Liberal government of Quebec, led by Prime Minister Jean Charest,
imposed a labour contract on 500,000 public sector employees rather than negotiating a collective agreement. The contract was voted
into law on 15 December, ending 18 months of public sector negotiations. The Premier said it was in the public interest, given the
province’s difficult financial situation.
British Colombia teachers fined for strike action: When the Teachers’ Collective Agreement Act (Bill 12) was passed in
November, imposing a collective agreement on public sector teachers, the teachers voted to commence a full strike. The Labour Relations
Board ruled the strike illegal, and the employer successfully applied to the courts to have the teachers found in contempt of court.
Penalties included the imposition of a court monitor to supervise the use of the union’s assets until the job action ceased, and a
$500,000 fine for contempt of court.
Chile
POPULATION: 16,200,000 / CAPITAL: SANTIAGO / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
§
A parliamentary report stated that there was a “persistent culture” among employers
“which precludes harmonious and mutually respectful relations between the social
partners”. The CUT highlighted the need to reform the Labour Code, which is no longer
appropriate for dealing with the modern labour market. In August, President Lagos took
the surprising decision of pardoning the murderer of the union leader, Tucapel Jiménez,
reflecting his view that people obeying orders should be treated leniently.
Basic trade union rights recognised: Workers have the right to form unions without prior authorisation. The right to collective
bargaining is recognised, as is the right to strike, but only in the private sector.
The Trade Union Rights' Law, adopted in December 2001, put an end to many of the restrictions of the President Pinochet era. Notably,
the government is no longer allowed to interfere in the internal organisation of trade unions. The law was designed to facilitate the formation of unions and promote collective bargaining, although the final version was a compromise, watering down the initial measures to
strengthen trade union rights in the face of strong employer-led right wing pressure.
Collective bargaining restrictions: Collective bargaining is only guaranteed at company level. Rather than introducing compulsory
national collective bargaining as promised, the 2001 law provides for “voluntary” collective bargaining, meaning that trade unions can
negotiate national deals only if the employer agrees. Similarly, while temporary workers - defined in the Labour Code as working in agri-
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culture, construction, ports or the arts and entertainment sector - may form unions, they can only conduct collective bargaining if the
employer is willing. Changes in the Labour Code facilitate collective bargaining in the agricultural sector, but it is still subject to the
employers' willingness to negotiate. Company unions can only engage in collective bargaining if the respective employers are prepared to
do so.
Restrictions on strike action: Workers in the public sector do not have the right to strike, although in the past teachers, municipal
workers and health workers have all carried out strikes. In some 30 companies disputes are subject to compulsory arbitration. Strikes
by agricultural workers during the harvest season are prohibited.
Instead of outlawing the practice of sacking strikers, the new law makes it “prohibitively expensive” to lay off workers who have been
involved in industrial action. The law also does not ban companies from employing workers to break picket lines during an industrial dispute, which had been one of the main union demands.
Employers also succeeded in getting the inclusion of “flexibility” measures, such as the introduction of short-term contracts and looser
regulations for employing young workers.
Protection: An employee has the right to sue for unfair dismissal within 60 days. If he or she is found to have been unfairly dismissed,
a 30 per cent surcharge will be added to the redundancy package. If a judge finds that a worker has been dismissed for trade union
activities, he or she has the right to return to work or receive compensation. Some categories of workers are excluded from this clause.
Companies may be penalised for breaking labour laws, and every six months, the government publishes a list of companies that have
breached labour laws.
Anti-union practices remain, including the barring of union leaders’ access to companies, unilateral changes to working times, replacement of striking workers and threatening dismissal in order to prevent the forming of trade unions. Extensive reforms have eliminated
most of the authoritarian aspects of the Constitution introduced by Pinochet in 1990.
In 2004 a Congressional Commission of Inquiry on Workers' Rights was set up to study workers' rights and supervise the application of
Law 19.759, with a view to finding legal solutions to remedy the law's failings with respect to workers' fundamental rights, freedom of
association, forms of subcontracting that undermine employment contracts, and other areas. Another issue to be tackled by the
Commission was the sluggishness of proceedings in the labour courts. The large backlog in the labour courts means 70 per cent of cases
of unfair dismissal are abandoned by workers, owing to excessively long and costly legal proceedings.
VIOLATIONS IN 2005
Background: On 11 December, presidential and parliamentary elections were held in Chile and, for the first time, there was a woman
candidate for President, Michelle Bachelet, of the Concertación party (a centre-left alliance). Although economic growth has been sustained, the high growth figures conceal the hard truth that the Chilean “miracle” has not reached everyone. The National Statistical
Institute calculated that the unemployment rate rose to 9.24 per cent in October 2005. Pinochet has continued to face a series of legal
cases concerning abductions and assassinations, together with other charges relating to tax evasion and forgery.
Presidential pardon for the murderer of Tucapel Jiménez: On 19 August 2005, President Lagos issued a decree through the
Ministry of Justice pardoning the non-commissioned army officer, Manuel Contreras, one of the three actual perpetrators of the assassination of the trade unionist, Tucapel Jiménez, on 25 February 1982. Contreras had been sentenced to life imprisonment by the High
Court of Chile.
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Anti-union practices at Unilever: On 8 June, the CUT issued a complaint to the OECD National Contact Office in Chile denouncing
Unilever’s breach of the OECD Guidelines and of national legislation.
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The dispute started at the end of 2004 when Unilever Chile Ltd announced to its workforce the closure of three production plants. The
closures involved the dismissal of over 200 workers, mostly belonging to a union representing workers at the company that is affiliated to
the CUT, the Sindicato Nacional Nº 1 de Trabajadores de Empresas Unilever Chile Ltda. The union accused Unilever of using illegitimate forms of pressure by announcing the full closure of the factory if a 20 per cent wage cut was not accepted, thereby breaching the
collective agreement regulating wages and working conditions that was applicable up to 1 December 2005.
In the end, after a series of negotiations, in November 2005, the CUT and Unilever signed an agreement whereby Unilever recognised
the irreplaceable role of the union as the workers’ representation body and the right to join the union, and promised to pay the full compensation required by law to all workers leaving the company as a result of restructuring.
Colombia
POPULATION: 45,600,000 / CAPITAL: BOGOTÁ / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
§
The systematic and selective violence against trade unionists continued. Seventy were
murdered during the year, including 15 women. The appalling death toll is in fact lower
than that of previous years, but the recorded cases of harassment against trade unionists
increased and the government sought by every means to weaken trade unions, tarnish their
image and discourage union organising. Attempts have been made to improve the
protection of trade unionists, but clearly these have not gone far enough. Impunity remains
a very serious problem which the new Law on Justice and Peace fails to address.
Freedom of association is enshrined as a basic right in the Constitution. The Labour Code provides for the automatic recognition of any
trade union that has at least 25 members and has complied with a simple registration process. In law, unions are free to decide their
own rules and manage their own activities. Only a judicial authority, as opposed to a government body, may suspend trade unions or
annul their legal identity.
Limited right to strike: The Colombian Constitution recognises the right to strike for all workers, except for members of the armed
forces, the police and workers providing essential public services as defined by law. Similarly, the Constitution charges the legislative
authorities with making provisions governing the right to strike. However, this task has not yet been fulfilled, and in practice, laws dating
back to between 1956 and 1990, which ban strikes, remain applicable to a wide range of public services. These do not necessarily qualify as “essential” services, in contravention of the ILO definition that only covers those “the interruption of which would endanger the
life, personal safety or health of the whole or part of the population”.
Furthermore, the law prohibits federations and confederations from calling strikes, and the Ministry of Health and Social Protection
(responsible for monitoring and administrative control of industrial relations) can impose mandatory arbitration if a strike goes on for
more than 60 days - in contravention of ILO Convention 87 and recommendations by the Committee of Experts.
Trade union officials who engage in strike action that has been declared unlawful can be dismissed. Those engaged in lawful strike action
can also be dismissed, provided six months have passed since the end of the dispute.
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Collective bargaining - discrimination in the public sector: Colombian legislation has introduced clauses that discriminate
against the jobs and collective bargaining rights of public sector workers, by classifying them as “official workers” (“trabajdores oficiales”) or “civil servants” (“empleados públicos”). The unions representing public sector workers are not allowed to put forward
demands or sign collective agreements, since their right to collective bargaining is limited to submitting “respectful requests” that do
not cover key aspects of industrial relations, such as wages, benefits and employment contracts.
Labour reform: A reform of labour regulations was imposed in 2004, without any form of consultation or social dialogue, which
resulted in longer daily working hours, reduced overtime payments, reductions of severance pay, increased worker flexibility, restrictions
on collective bargaining and the loss of previously acquired rights. For example, the new law excludes the possibility of apprenticeship
contracts being covered by collective bargaining. According to the ILO conventions, collective bargaining should cover “all written
agreements concerning working conditions and terms of employment”.
“Law on Justice and Peace”: On 22 June 2005, the Congress adopted the Law on Justice and Peace, which the government
claimed was designed to promote reconciliation and the fight against impunity. The law was strongly criticised by the Colombian and
international trade union movement, human rights and other civil society organisations, as well as in Congress itself. It has been dubbed,
the “Law of Impunity”. The ICFTU lodged an “Amicus curiae” appeal against the law with the Constitutional Court of Colombia, urging that it be declared unconstitutional for failing to genuinely address the problem of impunity. The law falls far short of ensuring justice, as the sanctions foreseen in the law for the perpetrators of very serious crimes, including the torture, abduction and killing of trade
unionists, are inferior to the penalties for some minor offences. Prison sentences in the law do not exceed eight years and may be served
on farms. Furthermore, public prosecutors have to file court cases within 60 days, allowing far too little time to investigate what are
often huge and complex cases of massive violations of human rights. The law does not guarantee that truth will be established, as it does
not address the clarification of the crimes that have been perpetrated, or include any criticism of the political and intellectual leaders of
the groups responsible for the crimes.
Colombian trade unionists, be they leaders or grassroots members, are experiencing a fully fledged humanitarian crisis. They are the victims of selective, systematic and persistent violence. The perpetrators of these crimes enjoy total impunity. Trade unionists face attacks
on their lives, freedom and integrity. These attacks are in addition to the liquidation, reorganisation and merging of companies, the relocation of production to sweatshops (“maquiladoras”) in free trade zones, and the implementation of anti-union strategies by employers
and armed groups.
Impunity: The vast majority of violations, i.e. over 90 per cent of reported cases, remain unpunished and many murder cases are not
investigated. The ILO’s Committee on Freedom of Association noted that most investigations had not progressed beyond the preliminary
stage (84 investigations), while many (55 investigations) had been dismissed for lack of evidence or suspended (four). Only 14 investigations had reached the pre-trial stage by the end of 2005, while seven were at the trial stage, and that there had only been 15 convictions.
In addition to the fact that few investigations yield results, legal punishment is not enforced and reparation for the victims is non-existent. This almost complete impunity occurs because, in most cases, the perpetrator cannot be identified or evidence is insufficient, and
the Colombian government takes no immediate measures to conduct a comprehensive investigation of all cases of violence. The government insists that violence against trade unionists is a result of the internal state of war in the country, rather than a form of selective
and systematic violence directed against workers and their organisations.
Attacked for their union activities: The Colombian NGO, Escuela Nacional Sindical (National Trade Union School), points out
that “most of the violations of the human rights of trade unionists in Colombia are associated with industrial disputes, even though they
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take place in the context of war and are committed, in most cases, by one of the belligerent parties.” The Escuela also reports that
“most of the murders, threats, kidnappings and forced removals suffered by Colombian workers have taken place in periods and contexts
characterised by increased activity and pressure for workers' demands” and that therefore, Colombian trade unionists are not “accidental
or collateral victims of the armed conflict that has been raging in the country for decades”.
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Inadequate government response: The government claims that the new accusatory penal system that has been partially in force in
Colombia since January 2005 will help speed up proceedings and allow more effective action to be taken against impunity. However, the
system only applies to crimes committed after 1 January 2005. The hundreds of murders of trade unionists committed before that date,
including cases dating back to the early 1990s, will not be affected by this new system, and will probably continue to go unpunished.
Furthermore, the so called Law of Justice and Peace, adopted in June 2005, does nothing to address the impunity of the killers of
Colombia’s trade union leaders and activists (see Trade Union Rights in Law, above).
There is some evidence of an effort by the government to improve the protection of trade union officials, and make progress in the investigations into the murders. Some trade unionists believed to be at risk are provided with mobile phones, bodyguards and/or armoured
personal cars. There is also a specialised sub-unit within the National Public Prosecutor’s Office to deal with human rights violations
involving trade unionists. Those efforts are clearly insufficient however, and union organisations regularly complain that some of their
leaders or activists who have received credible death threats or have already suffered physical attacks are being denied official protection
measures. The reasons offered by the authorities are generally either that “the assessment of risks incurred was negative” or that funds
are lacking.
ILO high-level tripartite visit: The ILO organised a high-level tripartite visit to Colombia in October 2005 to gain a more up to date
understanding of the violence faced by trade unionists and the serious situation of impunity. This visit was arranged at the invitation of
the Colombian government as a last-minute, face-saving manoeuvre during the June 2005 ILO Conference, where the government had
come under intense pressure from the Workers’ and Employers’ groups, as well as from European Union member states. That pressure,
in turn, had stemmed from a ten-country EU tour organised by the ICFTU and WCL in May 2005 for a delegation of Colombia’s three
national union centres (sponsored in great part by the ICFTU-affiliated Dutch trade union federation FNV). After years of being unable
to obtain any meaningful measures against the Colombian government from the annual ILO Conference, the decision to send an ILO mission had been seen as a resounding success by the Colombian unions and had generated huge expectations among their members.
The visit was carried out by the Chairperson of the ILO Committee on Freedom of Association, accompanied by the Workers’ and
Employers’ Spokespersons of the ILO Conference Committee on the Application of Standards, and ILO officials. The ICFTU and WCL
also sent observers. The mission concluded that trade unionists continued to be a target for armed groups and that “despite the government’s recognition of the importance of the problem and the numerous efforts made to tackle it…the reality is that impunity prevails”.
The ILO noted that although there had been a reduction in the number of acts of violence, it did not lessen the gravity of the situation
faced by the trade union movement.
Trends: The information provided by the Escuela Nacional Sindical (ENS), which is widely recognised as an authoritative source on
this issue, shows a 35.5 per cent decrease in the overall number of violations of the lives, freedom and physical integrity of Colombian
trade unionists in 2005, compared with 2004. There was a decrease in murders, death threats, and forced and arbitrary disappearances.
At the same time, harassment and persecution of trade union members rose 88.2 per cent compared to 2004, and there was a 20 per
cent rise in abductions of trade unionists.
Even though, generally speaking, the statistics show that violations against the human rights of Colombian trade unionists decreased in
2005 and are continuing their downward trend, there is no clear structural change in the scenario of violations against trade unionists,
since the statistics and the forms of violence in 2005 again show us that the violence is selective, systematic and sustained and enjoys a
high degree of impunity.
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Paradoxically, the overall decrease in the number of violations of the lives, freedom and physical integrity of workers in Colombia
belonging to trade unions is in contrast to the repeated use of measures and more elaborate strategies by paramilitaries and top government officials to denigrate trade union action, immobilise trade union organisations or intimidate or obstruct those wishing to create
new unions. Such practices are observed most clearly in labour disputes (where the safety of union leaders and their families have been
seriously compromised), the shutdown of social dialogue arrangements and the gradual deterioration of relations with public and private
employers.
The education sector was again the one worst hit by anti-union violence in 2005, accounting for 72 per cent of all violations against
union members. The departments of Antioquia, Valle del Cauca and Santander were confirmed as the most dangerous areas for trade
union activity and accounted for 61 per cent of all anti-union violence in the country.
Violence against women trade unionists: The rise in violations against women trade unionists continued in 2005, though the percentage increase, 34.86 per cent, was similar to that registered in 2004, the year in which violence against women trade unionists
accounted for 34 per cent of all violations. In 2005, women trade unionists were the victims of 15 murders, 102 death threats, ten arbitrary arrests, 15 cases of harassment and persecution for union activities, two attempted murders, seven forced removals and one
abduction.
Lack of a social partner: The trade unions do not, in practice, have a credible social partner on the government side. The Ministry
of Health and Social Protection is responsible for labour matters, through its Vice Minister of Labour. However, according to trade
union sources, the Vice Minister tends to hide behind the fact that he or she does not have full ministerial authority, and wherever possible, refers labour matters to the courts.
Implementation of an anti-union culture by the government: The way in which three major state-owned companies
(Ecopetrol in the oil sector, Telecom in the telecommunications sector, and the Instituto de Seguros Sociales in the health sector) were
restructured in 2003 and 2004 speaks volumes about the labour policies of the current government. Telecom was liquidated, without the
company following the required legal procedures, in order to destroy the 6,000 strong union and put an end to collective bargaining. At
the same time, the government used the assets of the liquidated company to set up another non-unionised telecommunications company,
which only employed one fifth of the workforce of the old company under employment contracts and working conditions far worse than
those formerly enjoyed by the workers.
The Colombian oil company ECOPETROL and the Social Security Institute (Instituto de Seguros Sociales, ISS) were divided into two
companies, thereby reducing the unions' influence and denying the workers in the newly formed companies many of the negotiated rights
they had enjoyed in their former companies. The majority of the ISS employees were classified as “civil servants”, thus losing the rights
they had previously enjoyed under the collective agreement signed between Sintraseguridad Social and the ISS - including the right to
be represented by that union.
State violations of human rights: According to the data available up to December 2004, in 69.4 per cent of reported cases, the
material and intellectual perpetrators of the crimes are not known. However in 30.6 per cent of the remaining cases of violation, where
information on the possible perpetrators is held, reports show that 105 cases are attributed to paramilitary forces, 85 to State officials,
13 to social violence and delinquency, and six to rebel groups. The State itself is chiefly responsible for the arbitrary arrests, the house
searches and the extrajudicial executions of trade union activists in the department of Arauca.
Operation Dragon: The Cali Municipal Enterprises Workers’ Union (SINTRAEMCALI) was informed in August 2004 of a plan
named “Operation Dragon”, instigated by the management of the Municipal Enterprises of Cali to eliminate several officials of the
union as well as a member of the House of Representatives and other human rights defenders. Ample evidence was uncovered which
showed that the security firm, composed of members of the armed forces, and hired by the company to destabilise the union had collect-
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ed information on the personal lives of the trade union officials, including the protection systems they used, the identity of their body
guards and their vehicle registration numbers, etc. SINTRAEMCALI believes the personal information was obtained from officers of the
Administrative Department of Security (DAS), the country’s official security service, a unit of which is responsible for providing protection for trade unionists. As SINTRAEMCALI pointed out in a complaint to the ILO, the detailed information seized in the legal proceed1 1 4
ings launched after the union’s formal complaint, was only available to officials of the national government.
The government denies the existence of a plan to eliminate the trade union or its officials. However, the Deputy Procurator General
informed members of the ILO’s tripartite visit that it was undeniable that some State agents were involved in acts of violence against
trade unionists and one operation, carried out by isolated members of the intelligence services or similar agents, had recently been dismantled. This had had a dissuasive effect on other cases discovered in the city of Medellin.
Collective bargaining: In 2004, a total of 628 collective agreements were signed, which is an improvement on the 284 signed in
2003, but remains a rather disappointing result bearing in mind that barely 1.17 per cent of those in employment are covered by collective agreements. What is more, that total for 2004 includes 192 collective accords (“pactos colectivos”), which are supposed to be an
alternative to the agreements negotiated by the unions and apply to non-unionised workers. In reality, there is generally no negotiation in
such cases since the “accords” are imposed by the employer and tend to be used as a pretext for sidelining the unions.
Factors undermining collective bargaining: Numerous factors have contributed to the reduced number of workers covered by collective agreements, though the chief ones are, of course, the low level of union membership and the violent attacks on the unions. In
addition, collective agreements are only negotiated in individual companies and do not cover whole industries or sectors.
Furthermore, in both the public and the private sectors, the new provisions of the labour law, which were purported to introduce greater
flexibility in employment contracts, have led to widespread sub-contracting. The sub-contracting takes the form of employment contracts
which are deregulated or assimilated into contracts under civil law, as for example in the so called “work partnership cooperatives”
(“cooperativas de trabajo asociado”). As the labour regulations do not apply to these types of contract, workers are systematically
excluded from trade union and collective bargaining rights.
Another factor that is having a particularly negative impact on collective bargaining is the new powers given to Arbitration Courts,
which are now entitled to review the provisions of collective agreements in such a way as to allow employers to cut back and/or abolish
rights previously acquired by the workers. This situation has led many unions not to put forward new sets of demands, but instead to seek
to extend the collective agreement in force, rather than face the risk of losing existing rights in an arbitration court.
In some cases, unions have also been forced to dissolve or their members have had to give up established rights as a result of pressure
from armed groups. This was the case, for example, with the health workers affiliated to ANTHOC in La Ceja, Department of Antioquia,
and the municipal workers affiliated to SINTRAOFAN in Cisneros, also in Antioquia.
Assassination of trade union negotiators: In many other cases, trade union leaders were murdered or received death threats
while engaged in negotiations with employers to advance workers' interests.
VIOLATIONS IN 2005
General figures: According to information provided by the ENS, in the period between 1 January and 31 December 2005, Colombian
trade unionists were victims of 444 attacks on their lives, freedom and physical integrity. These can be subdivided as follows: 70 murders, 260 death threats, 56 arbitrary arrests, seven attempted murders (using explosive devices and firearms), 32 cases of harassment
for union activities, eight forced removals, three disappearances and one eviction from the person’s home.
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However, it should be stressed that there are no real figures on forced removals of trade unionists since violations are not always reported out of fear and because the victims and union organisations frequently do not regard them as violations. In some departments
(Antioquia, Valle del Cauca and Santander), denunciations can be even more dangerous than trade union activity, so there is a strong
tendency to remain silent.
Death threats: On 18 February 2005, the name of Juan Efraín Mendoza Gamba, President of the Union of Small Farmers in
Cundinamarca (SINPEAGRICUN) and current General Secretary of FENSUAGRO, appeared with those of eight other people from the
town of Quipile, Cundimarca, on a list of targets for the paramilitaries operating in the region. He had been arrested arbitrarily on 13
September 2003 after his home had been raided.
In April, the leadership of the teachers’ union, Sindicato de Maestros de Nariño (SIMANA), was threatened by paramilitaries from the
Bloque Libertadores del Sur of the Autodefensas Unidas de Colombia (AUC). A note was left under the front door of the home of José
Arturo Guerrero Santander, the President of the union, telling them cynically that they should listen to “our protest” and asking them to
“refrain from taking part in any protest activities”, adding that they were a military target.
On 4 May, many leaders from various unions in the Department of Atlántico were issued with death threats by a group calling itself
MAS (Muerte a Sindicalistas), which means “Death to trade unionists”. The threats were contained in a leaflet announcing that
“though MAS identifies with the struggle led by armed groups throughout Colombia, it has no links to any of them but acts on its convictions and background knowledge”.
On 13 June, death threats were issued to the leadership of the Santander branch of the CUT, in the person of Rafael Antonio Ovalle
Archila, the leader of the public service workers' union, the Sindicato de Trabajadores y Empleados de Servicios Públicos Autónomos e
Institutos Descentralizados (SINTRAEMSDES), by the Bloque Central Bolívar of the AUC. One of the letters included the phrase:
“Death Certificate. For a Colombia free of trade unionist and guerrillas”.
On 12 September, a white car circled the home of José Onofre Esquivel Luna, a leader of the Bugalagrande (Valle del Cauca) branch of
the food workers’ union, Sindicato Nacional de Trabajadores de la Industria de Alimentos (SINALTRAINAL), and on 19 September an
armed man was spotted circling his house. He had previously been declared a military target by paramilitaries in the central part of the
Valle del Cauca department. He fled the country after receiving death threats in his personal locker at the company where he was
working.
On 21 September, death threats were issued to teachers, Gladys Omayra and Matilde Morales, the sisters of Samuel Morales, from the
CUT-Arauca, whose case is mentioned in the section on “Arrests”.
Assassinations: The ICFTU has received from the ENS a list of 70 trade unionists killed during the year, with details including the
names of their union and the date of their murder. The following cases are just 16 examples of those murders.
On 3 February, Lilia Ramírez Ortiz, a leader of the Cundinamarca branch of the hospital workers’ union, the Asociación Nacional de
Trabajadores de Hospitales y Clínicas (ANTHOC), was murdered in Sabana de Torres, Department of Santander.
On 26 February, Efrén Ramírez and Orlando Ariza, two members of an agricultural workers’ union, the Sindicato de Trabajadores
Agrícolas Independientes del Meta (SINTRAGRIM), were found murdered. According a report by the agricultural workers’ union FENSUAGRO, the bodies of these two trade unionists had been dressed in camouflage fatigues and were presented to the media as members
of the FARC’s “26th Front” who had been killed by the army.
On 1 April, Octavia Ramírez, a member of the teachers’ union in the Department of Caldas, the Asociación de Educadores Unidos de
Caldas (EDUCAL), was murdered in front of her pupils.
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On 9 May, teacher and union leader, John Smith Ruiz Córdoba, who was a member of the Cauca teachers’ union, the Asociación de
Institutores del Cauca (ASOINCA), was found murdered three days after being abducted on 6 May. His lifeless body showed signs of torture and 27 bullet wounds.
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On 17 May, Harvey Niño Villareal, a leader of the local branch of the prison workers’ union, the Asociación de Empleados del Instituto
Nacional Penitenciario y Carcelario (INPEC-ASEINPEC), which is affiliated to the national confederation CGT, was murdered in
Cúcuta, North Santander.
On 24 May, Maria Elena Díaz, a teacher at the secondary education establishment INEM and member of the local education workers’
union in the Department of Valle, the Sindicato Único de Trabajadores de la Educación del Valle (SUTEV), was murdered in the city of
Cali.
On 2 June, Myriam Navia Silva, a teacher at the educational establishment “Alfonso López Pumarejo”, and member of the local education workers’ union in the Department of Valle (SUTEV), was murdered in Cali.
On 9 June, teacher Alfredo Mendoza Vega, who worked in the educational establishment “Nuevo Horizonte” and was a member of the
local teachers’ union in the Department of Cesar (ADUCESAR), was murdered in front of her pupils in the municipality of Valledupar.
On 28 July at 10 am, Gilberto Chinome Barrera, former leader of the oil workers’ union, the Unión Sindical Obrera de la Industria del
Petróleo (USO), was murdered by hired killers in the Estrella district of the town of Bolívar, south of Bogotá. Chinome Barrera had been
president of the refinery workers’ federation USO-Refinería. In the course of a strike in 1971 (during which another USO member,
Fermin Amaya, was murdered), he was arrested for upholding workers’ interests and indicted, together with other trade union leaders
and activists, for defending the workforce.
On 17 August, at approximately 9 pm, Factor Antonio Durango, President of the Antioquia branch of the union ASCAPLAN, affiliated
to the national trade union confederation “Central Unitaria de Trabajadores” (CUT), was murdered by gunmen. The Security
Department (DAS) had failed to effectively implement the security scheme under which Durango and other leaders of the union were supposed to receive government protection.
On 20 August, Manuel Antonio Flores, a member of the National Union of the Farming Industry (Sindicato Nacional de la Industria
Agropecuaria – SINTRAINAGRO), who worked at the palm oil factory “Las Brisas”, was murdered in the rural area of
Barrancabermeja, on the road leading to the town of El Llanito.
On 11 September, Luciano Enrique Romero Molina, a leader of the National Union of Food Industry Workers (Sindicato Nacional de
Trabajadores de la Industria Alimenticia – SINALTRAINAL) in Las Palmas, an area of the Nevada district which is controlled by paramilitary forces, was found murdered. His wife had reported him missing on 10 September. Luciano Enrique Romero Molina was also a
member of the Committee for Solidarity with Political Prisoners (CSPP).
On 29 October, Adriana Francisca Padilla, teacher and member of the Magdalena teachers’ union (EDUMAG-FECODE-CUT), was murdered in Santa Marta. She was eight months pregnant.
On 9 December, nurse, Derly Cecilia Goyeneche García was murdered in the locality of Puerto Gaitán, municipality of Tame, in an attack
that was originally attributed to opposition armed groups and, in the course of which, ten other civilians were wounded.
On 14 December, Ángel Manuel Pérez Tobar, a schoolteacher in the locality of Santa Ana, municipality of Arauquita, was murdered by
unknown assailants in the nearby village of El Oasis.
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Attempted murders: On 2 March, at 7 am, Rafael Cabarcas Cabarcas, former member of the National Board of the confederation
USO and currently adviser to the Cartagena branch of USO, was seriously injured by hired killers as he left the FUNFEDHIN educational establishment. His bodyguard, Andrés Bohórquez, also suffered grievous injuries.
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On 14 May, at 8 pm, Jorge Ortega, President of the local branch of USO, was the victim of a new attack in Cartagena while driving in a
car with his family. Four heavily armed men riding powerful motorcycles chased the vehicle for several blocks.
On 10 August, a firearm attack was carried out on Hober Mesa Rendón, regional leader of the National Union of Employees of the
Institute of Legal Medicine and Forensic Science (Sindicato Nacional de Empleados del Instituto de Medicina Legal y Ciencias Forenses
– SINDEMEDILEGAL), which is affiliated to the Pereira branch of CUT. The attack took place in the municipality of Virgina.
On 25 November, a bomb attack was carried out on a trade union meeting held in the conference room of the Maria Inmaculada
Hospital in Florencia, Department of Caquetá. Organised by the national and local management committees of the hospital workers’
union ANTHOC, and chaired by trade union leaders, Wilson Pérez Méndez, Alfredo Castro and Yezid Camacho, the meeting was attended by a large number of people, including politicians, mayors and labour leaders. As a result of the attack, 15 people were seriously
injured (seven of whom were described as being in a critical condition) and prominent labour leader, Jairo Antonio Fajardo, President of
the Cartagena del Chaira Local Councils’ Association, lost his life.
Arrests: On 27 May, Jesús Javier Dorado Rosero, Secretary for Territorial Affairs of the Nariño teachers’ union (SIMANA) and member of the Nariño Branch of the Standing Committee for the Defence of Human Rights, was arrested by members of the Security
Department (DAS) on charges of “rebellion”. The arrest warrant was issued by Office No. 11 of the Pasto district Public Prosecution
Department.
On 30 May, Ricardo Santrich Pernett, a member of the Magdalena teachers’ union (EDUMAG) and teacher at the “Virginia Gómez”
educational establishment in the municipality of Ciénaga, was arrested in that locality and taken immediately to the DAS headquarters
in Barranquilla. At the time of writing, he was still detained in the Barranquilla prison on the trumped-up charge of “rebellion”.
On 1 June, at 2 pm, Hernando Hernández Tapasco was arrested in Bogota on his way into the head office of the national farmers’
union, the Federación Nacional Sindical Unitaria Agropecuaria (FENSUAGRO). His captors, who identified themselves as agents of the
Interior Ministry’s secret police (DAS), carried him to the DAS detention centre in Bogota, where he was detained in isolation for 24
hours. On 2 June, he was moved to Manizales by order of Office No. 7 of the Manizales Public Prosecution Department. He was subsequently released thanks to international pressure.
On 1 November, the DAS arrested Miguel Alberto Fernández Orozco, President of the Cauca branch of the CUT and prominent leader of
the agricultural labourers’ union. Fernández Orozco was indicted on trumped-up charges (based on anonymous accusations), of procedural fraud and making threats. According to the latest reports, the public prosecutor in charge of the case ordered his release on bail
on 8 November. However, his case remains open, since the charges brought against him have not been withdrawn.
Samuel Morales Flores, President of the Arauca branch of the CUT, and María Raquel Castro Pérez, a leader of the Arauca teachers’
union, the Asociación de Educadores de Arauca (ASEDAR), spent the whole of the year in detention following their arrest and subsequent imprisonment on 5 August 2004. At the end of 2005 their court case was still ongoing.
Remains of Gilberto Agudelo Martínez found: On 2 June, the Santander branch of the Technical Investigations Unit (CTI) published an official bulletin (No. 18-05) in which it reported that, following the discovery of a common grave, near the village of Santana,
municipality of Matanza, human remains had been found. The remains were identified as belonging to Gilberto Agudelo Martínez,
President of the university employees’ national union, the Sindicato Nacional de Trabajadores de las Universidades Públicas de
Colombia (SINTRAUNICOL), who had been reported missing five years earlier.
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Abductions and “disappearances”: On 2 March, the following members of the Caquetá branch of the CUT-affiliated Colombian
electrical workers’ union, the Sindicato de Trabajadores de la Electricidad de Colombia (SINTRAELECOL), were abducted by the
FARC: Orlando Paredes, General Secretary; Henry Moreno, Secretary for Inter-Union Relations; Pablo E. Peña, member; and Teódulo
Muñoz, who was driving the van in which they were travelling on trade union business. Fortunately, all four trade unionists were released
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a few days later.
On 16 December, Pablo Darío García Ibáñez, a member of the agricultural workers’ union SINTRAGRIM, disappeared without trace.
According to FENSUAGRO, and also according to members of his family and reports by human rights organisations, his disappearance
was the work of the national army unit called Mobile Brigade No. 12, which is stationed in Granada, Department of Meta. On 20
December, the Technical Investigations Unit (CTI) found and examined an unidentified body that matched the description of Pablo
García. However, positive identification had not been confirmed by any official source at year’s end.
Costa Rica
POPULATION: 4,300,000 / CAPITAL: SAN JOSÉ / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
§
The banana industry continued to live up to its anti-union reputation. One union member
was sacked as part of a systematic anti-union campaign against a branch union, while a
national banana workers’ leader faced trial for his role in seeking compensation for
colleagues affected by toxic pesticides. Three workers on a pineapple plantation were also
sacked as part of an anti-union campaign. Sixty seven municipal workers were sacked for
going on strike over pay.
The law specifies the right of workers to join unions of their choosing without prior authorisation. Unions may form federations and confederations and affiliate internationally. A union must have more than 12 members, denying the employees of small enterprises the right
to organise. The government has repeatedly ignored ILO recommendations to remove the 12 member limit.
Lack of protection: Only a very limited group of trade union representatives are legally protected from dismissal and in practice this
protection is not respected. In fact, some new grounds for dismissal have been introduced that solely apply to union leaders. There is no
legal obligation on an employer to prove grounds for the dismissal of workers covered by trade union immunity.
The law sets out complicated administrative procedures by the national labour inspectorate (DNIT) for the reinstatement of trade unionists claiming unfair dismissal. Even where a violation has been clearly proven, the DNIT has to submit the case to the courts to initiate a
legal process which may take many years. There are no guarantees of reparation for any damages caused, and there is no legal mechanism to oblige an employer to comply with a court order to reinstate a worker.
Foreign nationals excluded: Foreign nationals are prohibited from holding office or exercising authority in trade unions. Again, the
government has repeatedly ignored ILO recommendations to change this.
Right to strike: Strikes are officially permitted in the private sector, provided that strict requirements are met. At least 60 per cent of
workers at the enterprise must support the strike, which is considered excessive by ILO standards, and to prove this, the unions have to
name those workers who support the strike. Furthermore, lengthy legal procedures must be followed.
Strikes are permitted in the public sector with the exception of essential services, where they are banned. There is a clearly defined list of
essential services, which mainly concern the national economy and public health. However, the list also covers railway, maritime and air
transport, and loading and unloading at docks and wharves - which is not compatible with the ILO definition of essential services.
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Collective bargaining: Employers are obliged to enter into collective bargaining with a trade union that represents over one-third of
the workforce.
However, collective bargaining risks disappearing completely. A Constitutional Court ruling of May 2000, declared collective agreements concluded in certain public bodies, institutions and enterprises unconstitutional. This applied to public universities, ministries and
enterprises, etc. Specifically, workers from 52 municipalities, public universities, the highways department, Education Ministry teachers,
all administrative employees, and refuse collectors were deprived of the right to bargain collectively. Since then more charges of “unconstitutionality” have been brought in at least nine cases. This system has been used to remove certain clauses in collective agreements
covering workers in the Social Security Ministry, the state owned Atlantic port company, JAPDEVA, the RECOPE company, the
National Insurance Institute (Instituto Nacional de Seguros, INS), the National Power and Light Company (Compañía Nacional de
Fuerza y Luz) and the Electrical and Telecommunications Workers’ Union (Sindicato Industrial de Trabajadores Eléctricos y de
Telecomunicaciones, SITET).
Labour Reform Bill: On March 12 2002, the government submitted a Labour Reform Bill for approval by the parliamentary upper
chamber (Consejo Superior). The bill proposed amendments to collective bargaining in the public sector and measures to promote
increased labour flexibility. The proposal was strongly criticised by union organisations since it violated previous agreements and failed
to include reforms recommended by the ILO's Technical Assistance Task Force, at the end of 2001. Currently, the reforms are still before
the Legislative Assembly for its consideration. Pending the adoption of the reforms by the Legislative Assembly, the government has
passed a regulation to put them into practice.
Consistent failure to protect trade union rights: The effective exercise of trade union rights is made very difficult in practice.
The citizens' hearing on the quality of democracy in Costa Rica, under the 2001 State of the Nation Project, demonstrated that the
country was failing to ensure freedom of association in various areas, particularly in the private sector and, above all, in the banana
industry and the export processing zones. Proof of systematic limitations on freedom of association and constant complaints to the
Ministry of Labour regarding anti-union harassment were presented at the hearing. At the end of 2001, an ILO Technical Assistance
Task Force carried out a thorough investigation of freedom of association in Costa Rica. The Task Force concluded that there were considerable deficiencies with respect to effective protection of labour legislation, both in freedom of association and collective bargaining
and in the public as well as the private sector.
Employers flout rights: The trade unions have long complained that private sector employers refuse to recognise them and dismiss
workers who seek to join a trade union. Such behaviour, although illegal, is tolerated by the authorities and sanctions are too mild to be
dissuasive. Given the complex procedures involved, seeking the reinstatement of workers who have been unfairly dismissed takes an
average of three years, which is long enough to remove a trade union. The DNIT usually takes longer than the maximum two month
period foreseen by the Constitutional Court to certify a violation. When a trial eventually takes place, it can be several years before a
verdict is reached.
Collective agreements in the public sector: As reported above, many collective agreements in the public sector were cancelled
on the grounds of “unconstitutionality” and more are under threat. The 2001 ILO Task Force concluded that the Constitutional Court
rulings, excluding collective bargaining rights for public sector employees, were in breach of ILO Convention 98.
Solidarismo: One of the biggest obstacles to the free exercise of trade union rights is the culture of “solidarismo” which is deeply
embedded. Created initially in the 1940s to counter the success workers' organisations were then enjoying, the “solidarismo” (solidarity)
associations provided workers with certain advantages. In exchange, they promised not to strike and agreed to avoid other forms of confrontation. Theoretically, these associations should not carry out activities that are the sole prerogative of trade unions, and membership
is voluntary. The reality is very different. Claiming to uphold a national ideology that is opposed to the “foreign” concept of trade union-
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ism, employers try to dismantle the unions to set up the more malleable “solidarismo” associations. Reports from previous years have
shown that the Ministry of Labour and Social Security divulged information to employers about trade unions that had just been created,
allowing employers to set up “solidarismo” associations to counter them. Statistics show that “solidarismo” associations have consistently outnumbered trade unions by four to one, particularly in the private sector.
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Collective bargaining virtually non-existent in the private sector: In the private sector, collective bargaining has been
reduced to a bare minimum. The low level of union membership in the wake of employer repression is partly responsible for this, compounded by the employers' preference for negotiating with solidarity associations. A 1993 law was supposed to have limited the ability of
solidarity associations to undermine unions' bargaining rights, but it does not go far enough. The courts can be very slow when dealing
with the cancellation or non-respect of collective agreements.
Instead of collective agreements, there are many “direct arrangements” with non-unionised workers who are grouped together in “permanent workers' committees”. The legislation allows for the creation of such committees provided there is a minimum of three workers,
whereas for a union to be recognised as a bargaining unit, it must have a minimum of 12 workers and represent at least one third of
employees. The unions have been critical of the fact that, in most cases, these “direct arrangements” are favoured by employers as a
means of avoiding the creation of trade unions and of promoting “solidarismo”.
Banana industry: The banana industry is one of the worst violators of trade union rights. In recent years, there have been many cases
in which falling prices on the banana market have been used as a pretext for the widespread dismissal of unionised workers, who have
been harassed and blacklisted. A report published in July 2004, by lawyers from the plantation workers’ union (Sindicato de
Trabajadores de Plantaciones Agrícolas, SITRAP), stressed the lack of freedom of association and collective bargaining rights in the
banana plantations. According to the report, working conditions are now worse than in the 1970s, when they were organised and the collective agreement was applied. In addition to low pay and long working hours, the trade unions highlight occupational health as a serious
problem. The only way to gain a good reputation as an employee is to be a well-behaved “solidarista” and not to ask for any rights,
according to SITRAP. The report concluded that the sheer volume and systematic and continual nature of violations in the banana plantations amounted to a de facto deregulation of the industry.
Export processing zones (EPZs)
Unionised workers in EPZs also face harassment and unfair dismissal. The ratio of labour inspectors to workers is still far too low to
tackle the number of unfair dismissal cases.
VIOLATIONS IN 2005
Background: Opposition to the proposed Central American Free Trade Agreement (CAFTA) with the United States remained strong
among many social organisations, including trade unions. The government is strongly in favour of free trade.
Municipal workers dismissed for striking: The Mayor of San Juan de Tibás ordered the dismissal of 67 municipal workers on
April 18, following their participation in a strike. The strike had begun in July 2004 in protest at the non-payment of a pay increase, and
their frustration at the Mayor’s seeming inability to negotiate. In August 2005, the Supreme Court ruled that the workers should be
reinstated in their jobs. It was not clear at the time of writing whether the municipal authorities had complied with the ruling.
Banana workers’ leader on trial for role in protest demonstration: On 5 July, Orlando Barrantes and Iván Angulo went on
trial in Guápiles, in the Atlántica region, for their role in a protest demonstration five years earlier. They had been involved in a demonstration against the use of Nemagón, also known as DBCP (1,2-dibromo-3-chloropropane), a toxic pesticide used on large commercial
banana plantations. Some of the anti-riot police sent to control the demonstration were held back by the crowd, in what the Ministry for
Public Affairs described as kidnapping with extortion. The Ministry called for a 60 year jail sentence for Barrantes. As General
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Secretary of the National Banana Workers’ Council, CONATRAB, he had played a leading role in the fight for justice for workers suffering the harmful effects of DBCP exposure, including sterility, impotence, various cancers, visual impairment and permanent skin
damage. Orlando Barrantes and his organisation had submitted 1,600 complaints and were preparing many more. If the big banana
companies were forced to pay compensation, it would cost them many millions of dollars. At the trial, one of the main prosecution witnesses was Orvil Ruiz, former head of the anti-riot police, who had been dismissed for forgery. He gave false information at the trial,
made a lot of statements about Barrantes’s trade union activity, and his testimony contradicted that of his own boss, the National
Director of the police force who said Barrantes was innocent. The trial was called off in November, and Orlando Barrantes and his fellow defendant were awaiting a new trial date.
Electricity workers dismissed for joining a union: In August, six union office bearers were dismissed by the San Carlos Rural
Electrification Cooperative COOPELESCA, after workers at the cooperative had decided in July to join the Industrial Electrical and
Telecommunications Workers’ Union, SITET. Company representatives reportedly went to the homes of the people concerned at night to
announce the dismissals to them in front of their families. COOPELESCA employees then went on strike in solidarity with their six colleagues. The Labour Inspectorate concluded that the dismissals had been unfair, but this did not prevent a ruling by a Labour Tribunal in
September, that the workers’ solidarity strike was illegal. On 16 of September, further to talks between the union and the employer,
mediated by the President of the National Cooperative Council CONACOOP, it was agreed that the strike would end, the dismissed workers would be reinstated and no reprisals would be taken against them. The Cooperative promptly went back on its word, maintaining the
dismissal of the six union leaders, and firing a further 26 employees who had taken part in the solidarity strike. The Labour Inspectorate
then instigated legal proceedings against the employer, which could result in the reinstatement of the dismissed workers. Such cases can
take five years before a final ruling.
Anti-union campaign continues: The anti-union practices on the Cahuita and Tortuguero banana plantations continued (see the
2005 edition of the Survey). The problems began when the plantation workers’ union, SITRAP (Sindicato de Trabajadores de
Plantaciones Agrícolas), successfully organised workers at the plantation in June 2004. The employer, Desarollo Agroindustrial de
Frutales S.A., refused to recognise the branch union, sacked some of the members, threatened others and restricted union access to the
premises. These problems continued throughout 2005, the union reported. On 8 October, for example, a member of the branch union’s
committee, José Castro Zambrana, was dismissed on trumped up grounds. The union took the case to court. On 13 October, SITRAP
representatives were denied entry to meet with their members, despite turning up after 4.00 pm in accordance with the employers’ rules
on access. At a meeting with a representative of the Ministry of Labour on 20 October, the company simply refused to accede to any of
the union’s demands, refused to grant the union free access to its premises, and refused to recognise the branch union. On 29 October,
the head of SITRAP’s legal department was denied entry to attend a meeting with the workers.
Three union members dismissed by fruit company: Throughout the year, members of the agricultural workers’ union, SITAGAH (Sindicato de Trabjadores Agrícolas, Ganaderos y Anexos de Herdia), faced a fierce anti-union campaign by their employer, the
Collin Street Bakery Company, which supplies pineapples to the Standard Fruit Company. SITAGAH had submitted a complaint to the
Labour Ministry’s national labour inspectorate (DNIT) back in November 2004 about anti-union persecution by the company. One year
after receiving the complaint, the DNIT reached the conclusion that the company had prevented the union from carrying out its normal
activities, had shown discrimination in dismissing nine SITAGAH members, had interfered in union activities and had clearly favoured
the “solidarista” association. In the meantime, the company had continued its anti-union activities. It brought in an employee from the
Standard Fruit Company who openly admitted that he and two others were hired to undermine the union. Union members were made to
work separately from non-union members, incentives were offered to union members to leave the union - under threat of dismissal if
they did not - and non-union members were threatened with dismissal if they talked to union members. At the end of the year, three
union members, Lester Quiñones Mondragón, Jaime Martínez Urbina and Juan Manuel Franco Muñoz, were dismissed on what the
union claim were completely false grounds. Many others were threatened with dismissal at the same time.
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Cuba
POPULATION: 11,300,000 / CAPITAL: HAVANA / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138
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§
There still is no freedom of association, no genuine collective bargaining and the right to
strike is still not recognised in law. Six of the seven independent trade union leaders
sentenced to lengthy terms in 2003 remained in prison. An independent trade union leader
was arrested at the beginning of the year.
A single union: The Cuban authorities only recognise a single national trade union centre, the Central de Trabajadores Cubanos (CTC).
The Labour Code, which was published in 1985, does not provide for any genuine freedom of association. The government explicitly prohibits independent trade unions, though it claims there is no legal requirement for workers to join the CTC.
The government has told the ILO that it is undergoing a comprehensive revision of its Labour Code. A new code is unlikely to guarantee
genuine freedom of association, as the government maintains that existing laws already do so. According to the Cuban authorities
“Freedom of association, protected in Convention 87, does not translate into the false concept of ‘trade union pluralism’ imposed by the
main centres of capitalist and imperial power.”
Collective bargaining: The Labour Code requires that in order to be valid legally, collective agreements must be discussed and
approved in workers' meetings and be formally declared in writing and signed by the parties. Any modifications or additions must be
approved in workers' meetings and signed by the parties, i.e. the employing body as well as the trade union organisation.
The State controls the employment market and decides on pay and working conditions in the State sector. In the private sector, the 1995
Foreign Investment Law requires foreign investors to contract workers through State employment agencies. The investors pay the agencies in dollars, but the agencies pay the workers the equivalent figure in pesos, pocketing up to 95 per cent of their salaries.
There is no legislation covering the right to strike. According to the government there is no need to call strikes since the demands of official trade union organisations will always be heard by the authorities.
No independent trade union activity possible: Any attempts to form free trade unions are obstructed by the government, chiefly
via restrictions set out in the Associations Act (Ley de Asociaciones). Anyone who engages in independent trade union activity runs the
risk of being persecuted and losing their job. Workers are required to keep an eye on their colleagues and report any “dissident” activity.
Independent labour activists are periodically arrested, harassed, threatened with prosecution and pressurised into going into exile.
Those organisations that do exist are unable to represent workers effectively. As they are not recognised, they cannot engage in collective
bargaining or take strike action. Workers are not able to exercise their rights or to take part in peaceful marches or demonstrations in
support of their demands. Independent organisations have been set up by dissidents opposed to the Castro regime, and though they do
defend union rights, their main concern is fighting the regime and promoting respect of general human rights. Their offices have been
searched, equipment confiscated and communications intercepted. Some of these unions have been infiltrated by State security agents.
VIOLATIONS IN 2005
Background: About 200 dissidents held a public meeting in May, which the organisers claimed was the first such gathering since the
1959 revolution. In July, Hurricane Dennis caused widespread destruction and left 16 people dead.
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Independent trade union leader arrested: Juan Antonio Salazar, of the independent trade union “Sindicato Libre de
Trabajadores de Cuba” was arrested by two police officers on 10 January. They did not explain why he was being arrested at the time,
but he was later charged with making threats, about which he knew nothing. Juan Antonio Salazar had earlier received a summons to
the police station. He chose to ignore it because it was not on official paper, had no official stamp, and was not spelt or written correctly. His nephew, who was with him at the time of his arrest, believes the real reason was his trade union and political activities, notably
his participation in the celebration of international human rights day on 10 December.
Independent trade union leaders still in prison: Six of the seven free trade union leaders who were jailed in April 2003, together with 66 dissidents who oppose the Castro regime, remain in prison. The trade union leaders received sentences ranging from 12 to 25
years. The seventh, Carmelo Díaz Fernández, was released on medical parole in June 2004, to serve the rest of his 16 year sentence
either in hospital or at home, depending on his state of health.
Calls from the international trade union movement and the ILO for the release of the prisoners have met with total resistance. The government denies that the people concerned are trade union leaders, and says they were not jailed for trade union activity.
Dominican Republic
POPULATION: 9,000,000 / CAPITAL: SANTO DOMINGO / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
§
A textile company fired 17 workers for forming a union, and police fired at a protest
demonstration by dockworkers. Anti-union repression in the export processing zones
continues to be a serious problem.
Freedom of association: All workers are free to organise. Unions must have at least 20 members and are legal once they have been
registered by the Labour Ministry. If the government fails to act on an application for registration within 30 days, the applicants may
declare it in default over the next three days, and then one day later, the union is automatically recognised. Unions may form federations, which may in turn form confederations. There are some restrictions, however. Civil servants may, for instance, only form a union if
at least 60 per cent of the employees of a given governmental body agree to join. Employees of independent and municipal state bodies
are excluded from the Labour Code. The laws and regulations governing these bodies contain no provisions on trade union freedoms.
Collective bargaining - high barriers: To be able to bargain collectively, a union must represent an absolute majority of workers in
an enterprise or branch of an activity.
Restrictions on the right to strike: Strikes can only be called if a majority of employees, whether or not they are trade union
members, vote in favour of action - a requirement which could seriously hinder strike action. There must have been a prior attempt to
resolve the conflict through mediation. If this fails, written notification of the strike must be given to the Ministry of Labour and a 10
day waiting period followed before the strike goes ahead.
People working in key public services and State employed civil servants are not allowed to strike. If a strike that has been declared illegal is carried out, the contracts of those workers involved are terminated, with no remaining responsibilities for the employer, unless the
illegality ruling was for procedural reasons or the workers return to their posts within the 24 hours following the ruling.
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Weak enforcement: The application of the country's extensive labour legislation is inadequate. There are several reasons for this,
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including delays in examining and making decisions on cases. Sometimes this is due to deliberate delaying tactics, such as raising technical issues or other legal tricks when dealing with fundamental rights. Furthermore, despite the modernisation of the legal system, justice
is still administered, albeit to a lesser extent than in the past, by judges and magistrates who are political appointees and who tend to be
in league with employers. Employers enjoy impunity when violating workers' rights because of ineffective sanctions.
Over half of all workers are unable to join unions because they are peasant farmers, “independent” workers, unpaid employees of family
businesses, employees of micro-firms, illegal immigrants, sub-contracted workers or employees in the informal sector.
Relatively few enjoy the right to strike.Over 58 per cent of officially employed workers are State employees. What is more, despite the
Law on the Civil Service and Administrative Careers, mass dismissals take place in the public sector without any guarantee of
compensation.
Collective bargaining restricted in practice: Collective bargaining is restricted, in practice, by the requirement that unions must
represent an absolute majority of workers in a company. Only a minority of companies have a collective bargaining agreement.
At the national level, pay increases need to be approved by the National Wages Committee, a tripartite body. Only two out of three parties need to agree. In practice, the employers and the government tend to make agreements well below workers’ demands. In 2004, the
agreed pay rise was less than half the workers’ initial demand, and was to be paid in two stages.
Appalling conditions in the sugar plantations: The privatisation of former State owned sugar companies has heavily undermined
trade union rights. The unions lost many members as a result of the mass dismissals accompanying privatisation, exacerbated by the fact
that private employers are often reluctant to recognise unions. There have also been cases in the past of union leaders being unfairly
dismissed. Working conditions are often appalling, with low pay, long hours and deplorable sanitary conditions.
Lack of protection for Haitian workers: Many workers in the sugar cane fields and elsewhere are Haitians. They are often in the
country illegally, and therefore cannot join unions. This cheap source of labour is exploited by employers in conditions of near slavery.
Such exploitation also applies to Dominicans of Haitian descent, many of whom are expelled from the country by police, regardless of
their dual nationality. Those expelled are not allowed to claim any unpaid wages they are due.
Export processing zones (EPZs): Although the Labour Code does apply in the EPZs, no real effort has been made by the government to ensure that labour legislation is enforced. Employers only rarely comply with the decisions of the industrial tribunal when it
rules against them.
Employers refuse to recognise trade unions and, in some cases, such as the Santiago EPZ, distribute blacklists of union activists to prevent them finding work. Some companies turn to specialised agencies when hiring staff in order to screen out trade union and human
rights activists. Workers are often reluctant to form trade unions for fear of physical harassment and dismissal. In the same EPZ, there
have been reports of the use of storm-troops to dissuade workers wishing to join a union.
A Global Unions' investigation into anti-union practices at Grupo M factories in the Santiago EPZ, in August and September 2003,
interviewed workers who confirmed such practices and described other forms of persistent anti-union activity.
In an interview for the ICFTU in November 2005, Ignacio Hernández, the General Secretary of the Dominican Federation of Free Trade
Zone Workers (FEDOTRAZONAS) said: “Here the term ‘freedom of association’ is devoid of meaning. It merely exists on paper in the
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law and in the Republic’s Constitution, but not in practice. Any worker who makes a fuss and starts making demands is immediately
sacked under some pretext.” Job losses in the textile sector, due partly to the end of the Agreement on Textiles and Clothing (ATC), have
further exacerbated the situation. “All companies exploit the sector’s critical job losses to disrupt the unions and sack any workers affiliated to them.”
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Yet the workers badly need unions to defend their rights. Working conditions in the EPZs are frequently deplorable. Pay is often very
low, particularly on the border with Haiti and other “economically depressed” areas. Employees frequently have to work unpaid overtime and ask permission to go to the rest room. In several instances, women have been dismissed when they became pregnant.
VIOLATIONS IN 2005
Background: In September, the Congress approved the proposed free trade agreement between the United States, five Central
American countries and the Dominican Republic.
Police fire on dockworkers’ demonstration: Police fired at protesting dockworkers during a demonstration on 1 September. The
dockworkers were demanding the payment of outstanding wages. Police arrived as soon as the demonstration started and were, reportedly, very quick to open fire. Several demonstrators were slightly wounded as a result. The dockworkers were owed a total of half a million Dominican pesos, or $US 20,000 in unpaid wages. They were also expressing concern at plans for the privatisation and commercial
redevelopment of two ports - which could see many of them lose their jobs.
Union denied registration and founding members dismissed at Knitex: On 1 November, the Director of Labour denied registration to a union which had been formed at the Knitex Inc. factory in the Bonao Free Trade Zone, despite the fact that the union’s
founding assembly, on 1 October, had been conducted in strict accordance with the requirements set out in the Labour Code.
Furthermore, the labour authorities chose to notify the company before the union. The response of Knitex management was to fire 17 of
the union’s founding members. The police were brought into the factory to force them to leave.
The decision to deny registration was based on the fact that four workers had since resigned, which meant that the union no longer had
the minimum 20 members required to form a union. The decision failed to take into account the fact that the union did have the necessary minimum membership at the time of its creation.
Ecuador
POPULATION: 13,400,000 / CAPITAL: QUITO / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
§
Banana workers faced mass dismissals for setting up branch unions on several occasions,
and in at least one instance the union obtained clear proof of blacklisting. Tear gas was
repeatedly used to repress strikers. A bottled water company fired 160 workers to avoid
negotiating a collective agreement, while approximately 250 banana plantation workers lost
their jobs for trying to form unions or initiate collective bargaining. Sub-contracting and
“solidarismo” associations remain common employer tactics to avoid having to deal with
trade unions.
The Constitution and Labour Code provide most workers with the right to form trade unions, with the exception of the police and public
sector employees in non-revenue producing areas.
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Obstacles to forming a trade union: Public sector workers are only allowed to submit a list of demands for collective bargaining
or negotiate a collective agreement if they manage to form an ad hoc committee representing more than half the workforce.
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Civil servants and public service workers who are employees or executive staff are subject to the Civil Service and Administrative
Careers Act (Ley Orgánica de Servicio Civil y Carrera Administrativa, LOSCA). Blue-collar workers are subject to the Labour Code. The
former are not allowed to organise in professional associations, trade unions or works’ councils, whilst the latter are able to do so,
depending on their precise work. However, only one organisation, the one with the most members, is allowed to fully represent workers in
discussions with employers. This is what is referred to as “single union” status (“sindicato único").
A minimum of 30 workers is required to form a union. As 60 per cent of enterprises in Ecuador employ less than 30 workers, one million workers are effectively excluded from organising. Workers have to be of Ecuadorian nationality to sit on a union executive.
If the workers that form a trade union in an enterprise represent less than 50 per cent of the workforce, works’ councils have to be set
up. To form a works’ council, 50 per cent plus one of the workforce is needed. If the works’ council has more members than the union,
the union will have no power in the workplace.
Right to strike: The right to strike is virtually non-existent in the civil service. Only workers covered by the Labour Code, with the
exceptions foreseen in article 35 of the Constitution, may go on strike.
The Constitution stipulates that it is prohibited to paralyse activities in the public sector and, in particular, in health, the water service
and electricity supply, which do fall under the ILO’s definition of essential services. Education, justice, social security, transport and fuel
distribution are also included, and are not contained within the ILO’s definition. Pursuant to Decree No. 105, passed on June 5 1967,
those breaching this rule are liable to between two and five years in prison.
In the private sector, strikes can only be called at enterprise or factory level. The law further restricts this right for most sectors by
requiring a 10 day cooling off period and, for some, such as agricultural workers, a 20 day period before strike action can be taken. A
minimum service, of at least 20 per cent of the workforce must be ensured. Before calling a strike, 50 per cent of workers in the enterprise, including non-union members, must vote in favour.
The law prohibits federations and confederations from calling strikes. Solidarity strikes and boycotts are restricted to a maximum of
three days.
No collective bargaining for civil servants: Only the workers covered by the Labour Code have the right to take part in collective
bargaining. For workers covered by the 2004 Civil Service and Administrative Careers Act, Article 110 establishes that working conditions shall not be agreed, but imposed. The same Act effectively prevents the majority of workers in State owned enterprises and any
companies in which the State is a majority shareholder, from engaging in collective bargaining. Teachers are not allowed to negotiate at
the local or workplace level, only at the national level.
The unions complain of the Labour Ministry's slowness in registering trade unions' statutes, thereby giving the employers time to get rid
of unions.
Organising obstructed by management practices: The national trade union centre, CEOSL, reports that in over 90 per cent of
private enterprises where trade unions exist, management seeks to reduce the unions' influence by setting up “solidarismo” (solidarity)
style associations.
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It is also common practice for employers to fail to declare employees to the social security authorities, thereby avoiding payment of
social security contributions - even if they have deducted these from employees' pay packets. Not only are the employees deprived of
social security cover, they are not officially recognised as permanent employees and are therefore denied their organising and collective
bargaining rights.
Another practice that has been used in recent years is subcontracting (or “tercerización”). Workers are either sacked or forced to resign
their posts, receive their severance pay and are then immediately taken on by a sub-contracting firm that generally has the same shareholders as the main company. That prevents the workers from belonging to a union or taking part in collective bargaining. This strategy
is enabling companies to destroy unions and escape from their responsibilities under collective agreements. The CEOSL reported that in
most companies, the percentage of sub-contracted staff has risen to 70 per cent and there is a growing number of companies in which
all the staff are sub-contracted.
Employers are running shift systems, which enable them to exploit the workers more easily without offering them any job security.
Workers can be sacked without receiving any compensation. It is also extremely difficult for workers to defend their rights, as they do
not know who their direct employers are.
Other practices, such as the extensive use of short-term contracts, and the fact that legal penalties against employers who violate the
law are insufficiently dissuasive, prevent workers from enjoying their legally protected right to organise.
Union repression on the banana plantations…: Attempts to organise workers on Ecuador's banana plantations have met with
systematic and often severe repression. Ecuadorian trade unions have constantly denounced the terrible working conditions of the
banana plantation workers. The workers are paid very low wages and are exposed to various chemical substances when working on the
plantations during aerial pesticide fumigation. Child labour is widespread in this sector. About 98 per cent of workers are employed by
sub-contractors, making it easier for employers to avoid their legal obligations.
Most workers are too afraid to organise. Despite the appalling conditions they need their jobs. Only seven of Ecuador's 6,000 banana
plantations are unionised. Those who attempt to organise lose their jobs and are blacklisted.
…and in the flower companies: Workers in Ecuador’s flower companies are too afraid to organise because their employers threaten to fire them if they do. As a result, of the country’s 500 flower companies, only three have unions. It is common practise for workers
who organise, or attempt to do so, to be put on lists that are shared with other companies, with a warning that they should not be hired.
The authorities are complicit in preventing union organising. Flower workers have tried on repeated occasions to set up a federation.
Each time, the Ministry of Labour has refused to register the federation after consultations with the flower producers and exporters’
association, Expoflores. It has done this, rather than base its decision on whether the applicant union has complied with all the relevant
legal requirements.
VIOLATIONS IN 2005
Background: In April, trade unions played a leading role in the demonstrations demanding the departure of President Lucio Gutierrez
following his decision, in late 2004, to replace the Supreme Court by people loyal to himself. Gutierrez became the third President to be
forced from power in eight years when Congress voted to oust him. He was replaced by Alfredo Palacio, who had been critical of
Gutierrez’s failure to tackle poverty.
Union denied registration: In February 2005, Ecuadorian flower workers tried again to apply for the registration of a union, the
“Federación de Trabajadores Floricultores 14 de Febrero”. Registration was denied again.
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Strikers attacked on banana plantation: On 2 May, 12 hooded men stormed the Maria Teresa plantation, where workers were on
strike over unpaid wages and other overdue payments, such as overtime and holiday pay. The men tied up striking workers and their families and stole their water pumps and tools. Their union, FENACLE (National Federation of Agribusiness Workers and Free Peasants’
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and Indigenous Peoples’ Associations, which represents 250,000 banana workers), believes the attack was aimed at intimidating them
into ending their strike.
Banana workers sacked for forming a union: On 4 May, police broke down doors and tear gassed striking workers at the San
José plantation in the Guayas province. The strike began after 44 workers were sacked for forming a union and presenting a list of
demands to management. Elias Arias Santana, leader of the FENACLE youth department, was arrested as the supposed “agitator” of
the strike. The strike was peaceful and the strikers had not caused any damage.
Banana union officials arrested: At the La Primavera plantation, workers held a two hour stoppage to demand that their employer
sign an accord agreed previously in mediation with the regional Labour Ministry. A few days later, on 10 May, police broke their way
into the plantation, using tear gas. Three union officials were arrested, including Angel Rivero Douguer, a FENACLE organiser, who was
accused of being the strike “agitator” and held at the police station for five hours. On 1 June, workers rejected an offer made by the
plantation owners and voted to take strike action, because a seemingly attractive package also involved the sacking of five union leaders.
Trade unionists blacklisted on the banana plantations: In May FENACLE saw copies of a recent letter from the administrator
of the Josefa plantation. The letter listed the names of workers at the Hacienda who had formed a committee to set up a trade union,
and asked that it be distributed to other employers in the Los Ríos province “so that these people cannot cause harm to other
employers”. The writer also promised to forward the names of any more union members as soon as they had them. All the workers on
the list were dismissed.
More banana workers dismissed for forming unions: In October, approximately 250 workers on the Zapote, Maria Elisa and
San Luis banana plantations were fired for organising unions and seeking collective bargaining.
Workers at the Zapote plantation decided to go on strike. On 21 October, a group of about 100 police and armed guards arrived at the
plantation to evict the strikers.
Mass dismissals to avoid collective bargaining obligations: Without warning, on 15 October, Tesalia Springs, an Ecuadorian
bottled water company, fired 160 workers. The company also paid severance pay that was below the levels established in the collective
agreement. The measure was taken to avoid negotiating a new collective agreement. The dismissed workers were replaced with sub-contracted workers.
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El Salvador
POPULATION: 6,700,000 / CAPITAL: SAN SALVADOR / ILO CORE CONVENTIONS RATIFIED: 29 - 100 - 105 - 111 - 138 - 182
The trade union rights situation in El Salvador has progressively deteriorated. 34 members
of the port workers’ union, Sindicato de la Industria Portuaria de El Salvador, were sacked
despite the government’s assertions that union rights are respected in the country.
Employers and the Ministry of Labour take pleasure in consistently deploying anti-union
tactics aimed, the unions argue, at destroying the union movement.On the other hand,
it would seem that the government is indicating its readiness to sign and ratify ILO
conventions 87 and 98.
§
The Constitution and Labour Code recognise the right of private sector workers and employees of autonomous public agencies to form
unions. All public sector workers not employed by autonomous agencies, such as public hospitals and the State owned electricity company, do not have the right to join or form trade unions, and cannot engage in collective bargaining. The government still refuses to ratify
ILO conventions 87 and 98, arguing that there are discrepancies between the country's Constitution, in particular its Article 145, and
those conventions. Most of the obstacles alluded to are applicable to public sector employees, since the Constitution excludes them from
the right to form unions on the grounds that they provide essential services. The Constitution does, however, allow State employees to
organise themselves in associations in order to defend their interests.
Restrictions on freedom of association: To be legally registered, trade unions must follow complex procedures, including the
requirement to obtain prior authorisation from the government. A union must have a minimum of 35 members in the workplace and
members of a unions' leadership bodies must be Salvadorian by birth. Trade unions cannot take part in political activities.
Strike restrictions: There are restrictions on the right to strike, including the requirement that 51 per cent of workers, whether or
not they are members of a union, must support a strike in an enterprise. A strike can only be called if it concerns a change or renewal of
a collective agreement or the defence of the workers' professional interests. According to the Ministry of Labour, all strikes in El
Salvador have been illegal.
Inadequate protection against unfair dismissal: The Labour Code does not provide for the reinstatement of dismissed workers,
although that right does exist within the Protocol that El Salvador signed under the American Declaration on Human Rights. Some time
ago, an ILO recommendation stated that the reinstatement of dismissed workers was a necessary component of protection against unfair
dismissal.
Weak protection and anti-union tactics: There is severe discrimination against workers because of their union membership or
activities, despite the fact that anti-union discrimination is banned by law. The ban on discrimination includes the period prior to the
legal registration of a union, when workers cannot theoretically be dismissed since their names are included on the application to register the union.
Labour inspectorate - failing in its duty: Another obstacle to the observance of trade union rights is the Labour Inspectorate's
failure to apply proper inspection procedures or enforce the law, ignoring anti-union behaviour and preferring not to fine big companies.
Unions have complained they are not notified when inspections take place, while workers have reported that labour inspectors do not
even speak to the workers.
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Arbitrary denial of legal recognition: The Ministry of Labour very often denies legal recognition to unions. It did this in the cases
of the metalworkers’ union, Sindicato de Trabajadores Salvadoreños de la Industria Metal Mecánica (SITRASAIMM), and the private
security workers’ union, Sindicato de Trabajadores del Sector de la Seguridad Privada de El Salvador (SITRASSPES). Both unions
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have filed complaints to the ILO for violation of freedom of association and discriminatory action.
Mass dismissals: Mass dismissals of workers and union leaders, without severance pay, are very common in El Salvador. The de facto
acceptance of that practice has encouraged employers’ use of the strategy to undermine trade unions. At Hermosa Manufacturing, for
instance, 64 employees were sacked in 2005 so as to destroy the existing branch union at the company. At CTM, 35 workers, including
five union leaders, were suspended.
Export processing zones (EPZs): Although the right to collective bargaining is recognised in law, it is not applied in the EPZs,
owing to the extreme anti-union discrimination practiced by employers and the government's abdication of its responsibility to defend the
collective bargaining rights of workers in EPZs. Any attempt at organising is repressed and the workers are threatened with dismissal if
they attempt to form or join or a union. Various reports referred to the sacking of union organisers and the failure to sign collective
agreements in the zones, despite the fact that there have been 11 trade unions in Maquiladoras since September 2004. The majority of
these are yellow unions controlled by the Consejo Superior del Trabajo (Higher Labour Council), which is itself close to the government.
Workers reported verbal abuse, sexual harassment and, in a number of cases, physical abuse by supervisors.
VIOLATIONS IN 2005
Background: Spiralling social violence and inaction in the face of the violation of human and trade union rights are part of daily life
in El Salvador. The country has the highest murder rate in Latin America - 56 for every 100,000 inhabitants. The government has
shown little willingness to take urgent and effective measures to address the root causes of this violence, which has reached disastrous
levels, and thereby to guarantee fundamental rights.
Violation of freedom of association and denial of legal recognition: On 7 January 2005, the Ministry of Labour carried out
– at the union’s request – an official labour inspection at the Port of Acajutla. On 14 February, the Ministry of Labour reported that the
employers had not included the founding members of the port workers’ union on the pay-roll, arguing that the legal requirement for
establishing an industrial union had not been met. In December 2004, 34 workers belonging to this union had been dismissed. The union
denounced the anti-union attitudes of the managers of the Port of Acajutla and of the Executive Committee of the Autonomous Port
(Comisión Ejecutiva Portuaria Autónoma, CEPA). The union also denounced the complicity of the Labour Ministry in carrying out
inspections that concealed violations of workers’ and trade union rights and the delaying of the legal recognition of the union.
Although the Labour Ministry reversed its original decision on 11 July 2005, and granted legal recognition to the union, in November
the management of the Port of Acajutla was still refusing to reinstate the dismissed workers and to pay them their back pay.
Anti-union offensive by the Lido S.A. company: The union at Lido S.A. (SELSA) has criticised the continuing anti-union attitudes of the company (see Survey in 2003 and 2004). Despite the decision to reinstate the members of the SELSA leadership in October
2005 (who had been refused entry to their workplace since 2002), the company remained set on getting rid of the union using a series of
tactics, including sub-contracting staff from other firms belonging to the owners of Lido S.A.. These sub-contracted workers are not covered by the collective agreement, receive lower wages and cannot join the union. The workers belonging to SELSA are sacked and then
re-employed by Lido S.A. Even if they refuse to leave the union, the company unilaterally refuses to check off their union fees, and puts
pressure on them to leave the union so that the union could lose its right to negotiate a collective agreement.
Anti-union campaign by food company DIANA S.A.: On 19 August, Daniel Morales, the disputes officer for the confectionary
and pastry workers’ union, Sindicato Industrial de Dulces y Pastas Alimenticias (SIDPA-DIANA), addressed a complaint to the Ministry
of Labour concerning the dismissal of five employees for joining the union. The Ministry replied that it was not the competent body for
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receiving the complaint. The day after, Morales was denied access to his workplace and has so far failed to get the Ministry of Labour
to get the management to attend hearings requested by the union.
The company, which is owned by Hugo Barrera, the Environment Minister, has begun an anti-union harassment and intimidation campaign against the union leaders. The campaign includes dismissal for refusing to leave the union and a rejection of any social dialogue.
The company has set up its own union and its members enjoy many benefits.
Adviser from the Social Security Doctors’ Union (Sindicato de Médicos Trabajadores del Seguro social, SIMETRISSS) brutally
expelled from the country
On Thursday 28 April, Dr. Pedro Enrique Banchón, an adviser at SIMETRISSS and an Ecuadorian national, who had been living in El
Salvador for several years (and was married to a Salvadorian citizen), was forcibly expelled from the country. In this brutal attack by
police, other people were also assaulted, including a number of union leaders and officials and staff of the Procuraduría de Derechos
Humanos (human rights mediation body) who were trying to protect him during his detention. SIMETRAISSS believes that this
extreme measure was a reprisal against the union and Dr. Banchón for denouncing corruption at the national social security institute,
Instituto Salvadoreño del Seguro Social (ISSS).
SUCEPES continues its fight for the reinstatement of its members: There was no progress in the case of the members of
the Executive Committee of the postal workers' union, the Sociedad Union de Carteros y Empleados Postales (SUCEPES), who were
sacked at the end of 2004 (see 2005 Survey). On 26 May, after unsuccessfully attempting all manner of measures and requests, six of
the sacked workers started a hunger strike.
Suspected cover-up in investigation into Gilberto Soto murder: The mother-in-law of Gilberto Soto, the Teamsters (US)
organiser murdered in November 2004 (see 2005 edition of the Survey), remained in custody throughout the year. She was arrested in
December 2004, along with two alleged hitmen and charged with ordering the murder because of a supposed family dispute. There was
little to support this theory and a report by El Salvador’s Human Rights Ombudswoman revealed serious flaws in the police investigation into the case, including the torture of suspects. It looked to many observers like a cover-up. Furthermore, the law enforcement
authorities refused to investigate the possibility that Gilberto Soto had been murdered for his trade union activities. He had recently
arrived in El Salvador to begin organising port workers, notably truck drivers employed by a transport company that had a long history
of union busting.
Guatemala
POPULATION: 12,700,000 / CAPITAL: GUATEMALA / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 – 182
§
Trade unionists continued to face hostility and intimidation. There were several cases of
death threats, in the form of threatening phone calls, and fake death notices - and one
union leader, who had been sacked for his union activities - narrowly escaped an attempt on
his life. There were also raids on and attempted burglaries at union offices. In some cases,
the intimidation appeared to have increased in the wake of the unions’ involvement in
protests against the free trade agreement with the United States.
The Constitution and the Labour Code recognise workers' freedom of association and all workers have the right to form and join trade
unions, including public sector employees, with the exception of members of the security forces.
The law provides for a system of labour and social welfare courts to rule on violations of the Labour Code.
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Workers have the right to strike, provided 50 per cent plus one in an enterprise support the strike, a requirement considered excessive by
the ILO.
Workers have the right to organise and bargain collectively, provided the union represents more than 25 per cent of workers in an enter1 3 2
prise.
Restrictions: Labour Code reforms, introduced in 2001, removed a number of legal restrictions on trade union rights. However some
restrictions remain:
T the requirement to be of Guatemalan origin and to be actively employed by a company in order to be elected to union office (articles
220 and 223 of the Labour Code);
T the sanction of one to five years' imprisonment for persons carrying out acts aimed at paralysing or disrupting enterprises that
contribute to the country's economic development;
T the requirement for compulsory arbitration, without the possibility of recourse to strike action, in public services which are not
“essential” in the strict sense of the term, such as health, public transport and services related to fuel, and the prohibition of solidarity
strikes;
T the absence of a consultation procedure to allow trade unions to express their views to the financial authorities when they are drawing
up the budget.
The Labour Code applies to the export processing zones.
Unions may become members of international confederations.
Continuous anti-union discrimination: Anti-union discrimination takes different forms. In addition to the extremes of assassination, attempted assassination and imprisonment, it includes dismissals of workers who attempt to set up unions, bargain collectively or
carry out trade union actions. There are also blacklists of union leaders and members, and temporary plant closures. The International
Textile, Garment & Leather Workers' Federation (ITGLWF) reported to the World Trade Organisation (WTO) in January 2003, that it
was common practice for a company to close down a plant and transfer its operations after a trade union had been established.
An ILO Direct Contacts Mission in May 2004 expressed concern at the violent and arbitrary acts against trade unionists. It asked the
government to take all necessary legal and practical measures to bring an end to these violent acts. However, the failings of the
Guatemalan system and the unwillingness to introduce policies aimed at ensuring scrupulous respect of freedom of association have once
again turned trade unionists and workers wishing to join a union into targets for employers in both the private and public sectors.
Hostile employers: The exercise of trade union rights remains severely hampered by hostility towards the trade unions and the failings of the legal system. Employer intimidation against trade unionists is common, and usually goes unpunished. As a result, union membership is very low - only about three per cent of the work force. This inevitably has an impact on collective bargaining, as does the
requirement that 25 per cent of workers in an enterprise must be union members for bargaining to take place. Even where employers
recognise the union and agree to bargaining, there is a tendency to ignore collective agreements. Another common practice is for
employers, who are well aware of the poverty of most workers and the ineptitude of the Labour Ministry, to sack trade unionists in violation of labour laws and later to buy their favours, sometimes forcing them to denounce the presence of trade unions at the company.
Another technique used by companies to avoid their obligations is to change their names, even though there has been no change in
ownership.
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Local authorities also hostile: Both the Confederación Unitaria de Sindicatos de Guatemala (CUSG), an ICFTU affiliate, and the
Unión Guatemalteca de Trabajadores (UGT), have reported dismissals following the formation of trade unions in at least 21 local
authorities in recent years. The CUSG has also reported that trade union leave has been refused and collective agreements and collective
bargaining rights have been breached. In addition, labour inspectors have been refusing to protect workers. The inspectors have based
their decisions on an old and repealed ministerial agreement ordering them not to intervene in local authority labour disputes.
Weak judicial system leads to impunity: The country has a poor record of labour inspection. According to workers, the inspectors are more likely to persuade them to renounce their rights than seek to protect them, and often give employers’ advance warning of
their visits. A study carried out in September 2004 by the Centre for Legal Action on Human Rights (Centro de Acción Legal en
Derechos Humanos, CALDH) reported that since the adoption of reforms to the Labour Code in 2001, considerable progress had been
made in applying the legislation, and the government claimed that labour inspectors had been given specific instructions to protect trade
union rights. However, the CALDH study also pointed out that the Labour Inspectorate did not have an effective system for registering
and following up complaints and sanctions, so it is not clear whether fines are actually paid or merely imposed.
In addition, the country's judicial system is still on the brink of collapse. Over time, there have been numerous attacks on judges, some of
whom have been forced into exile whilst others have simply been assassinated. Labour laws are systematically ignored in this climate of
injustice and impunity.
The labour courts are overrun with applications for the reinstatement of workers, and cases can drag on for over ten years. The majority
of dismissals are groundless, which is why judges order reinstatement. Employers tend to ignore court rulings, however, and the courts
do nothing to make sure that their own decisions are respected. The national trade union centre, UNSITRAGUA (Unión Sindical de
Trabajadores de Guatemala), is of the view that the attitude of the courts has served to legitimise the violation of workers’ and trade
union rights.
Export processing zones (EPZs): Unions also have to compete with the “solidarismo” (solidarity) associations set up by employers
as a more compliant alternative to trade unions. In the EPZs or “maquiladoras” (assembly plants), labour law enforcement is particularly weak, and so far only one collective bargaining agreement has been signed. Workers are subjected to constant harassment and the
flouting of their most basic rights. Women make up an estimated 80 per cent of the workforce in maquilas and are continually subjected
to wage discrimination, increases in working time, a lack of benefits and sexual harassment. According to FESTRAS, there is a trade
union in just three of the 230 maquilas. And the unions in these maquilas are finding it very hard to survive owing to constant antiunion persecution and the passive acceptance by the Ministry of Labour of the violations committed. In the Choi Shin maquila, for
instance, where the first collective agreement in the EPZs was signed in 2003, the company encouraged a group of workers not to
recognise the union’s leaders.
VIOLATIONS IN 2005
Background: In March, the government ratified the Central American Free Trade Agreement (CAFTA) with the United States amid
strong popular opposition and street protests in the capital. Police used tear gas and water cannons against the marchers. Two people
were killed in the ensuing violence, after government forces reportedly opened fire. Arrest warrants were later issued against the leaders
of the protest, including trade unionists. In October, hundreds of people were killed when Tropical Storm Stan swept through country
causing landslides and floods.
Attempted assassination of union leader: The General Secretary of the municipal workers’ union of San Miguel Pochuta, in the
Chimaltenango department (Sindicato de Trabajadores de la Muncipalidad de San Miguel Pochuta), Leonel García Acuña, narrowly
escaped an attempt on his life on 7 January. At about 5.00 pm he and several others were on their way to the “California” farm on
union business when they were attacked by four heavily armed men. As Leonel García and his colleagues ran away, they were chased by
1 3 3
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their attackers who continued to fire at them and were heard to shout “Kill the son of a bitch. He must not be left alive.” Leonel García
managed to run to San Miguel Pochuta where he sought help and his attackers were later captured.
There is every reason to believe Leonel García was attacked for his union activities. He had received many death threats for setting up a
1 3 4
union and he and all of the founding members of the union were dismissed from their jobs by the Mayor of San Miguel Pochuta. The
Mayor warned them that he considered them his worst enemies for having set up a union. After the workers were dismissed, they submitted a list of demands to the authorities. When they got no response, they lodged a complaint with the general labour inspectorate. On 5
January 2005, the labour inspectorate sent two of its officers to the town hall, but their meeting was unsuccessful as the Mayor walked
out, without explanation.
Death threats against “maquila” workers’ leaders: In April, unions representing workers in the “maquilas”, the companies
operating in the export processing zones, reported death threats against their leaders. Gloria Córdova of the Cimatextiles Workers’
Union, (Sindicato de Trabajadores de Cimatextiles, SITRACIMA), had been receiving threats against her and her family on her mobile
phone. Meanwhile, Members of the NB Guatemala factory workers’ union, (Sindicato de Trabajadores de la Maquila NB, SITRANB),
had faced hostility and threats ever since the union was formed in 2003. Maria Rosa López, SITRANB Organising Secretary, was targeted in phone calls to her home, warning her that if she did not give up her union work, she would be killed together with the other
members of the union’s Executive Committee. She had also been hit by the general manager in front of colleagues when, on 20 January,
nine illegally dismissed workers were reinstated, thanks to union action. The same general manager later prevented Neil Kearney,
General Secretary of the ITGLWF, from visiting the factory, and refused entry to local union leaders. One union member, Yolanda
Secaida Mash, was reportedly beaten by company thugs on 18 February. The SITRANB General Secretary, Vidalia García, was followed
in an intimidating manner by a beige car with darkened windows. The car blocked her way and was later seen parked outside her son’s
nursery. Finally, on 10 June, management took advantage of the absence of the union leaders (on union business) to announce the closure
of the Korean-owned factory, giving their employees just two hours to collect their redundancy pay and leave.
Attempted break-ins at union premises: In what appeared to be a concerted effort to intimidate the unions, attempts were made
to break into the premises of two national centres. On 10 May, an unsuccessful attempt was made to enter the building of the General
Workers’ Centre of Guatemala (Central General de Trabajadores de Guatemala – CGTG), through the roof. On 11 May, there was an
attempted break-in at the head office of the ICFTU-affiliated Confederation of Trade Union Unity of Guatemala (Confederación de
Unidad Sindical de Guatemala – CUSG). The intruders tried, but failed to break down the metal door at the main entrance.
The peasant farmers’ organization, CNOC (Coordinadora Nacional de Organizaciones Campesinas), was the victim of a successful breakin at its head office on 9 May. The intruders removed 15 computers containing important information, one video camera and ransacked
the files. The CNOC office occupies the same building used by the newly-created “Movimiento Indígena, Campesino, Sindical and
Popular” (MICSP), which brings together a number of trade union and citizens’ organisations and was the principal organiser of the
anti-CAFTA protests. It is believed that the break-ins and attempted break-ins may have been in retaliation for this.
Raid on education union offices: A raid was carried out on the offices of the Education Workers’ Union of Guatemala (Sindicato
de Trabajadores de la Educación de Guatemala – STEG), on 25 and 26 June. In addition to seizing the communication equipment (telephones, fax, computers) and the organisation’s paper files, the intruders destroyed all the office furniture. The computers contained
extensive information on the National Assembly of Teachers’ programmes and its plans for the future. They also painted red crosses on
walls, desks and union posters, presumed to symbolise death threats (such symbols had been used on other occasions) against the union’s
leaders and staff. An arrest warrant was issued for the General Secretary of the STEG, Joviel Acevedo, over his participation in the
anti-CAFTA protests in March. Intimidation against STEG staff increased after the CAFTA protests, with unidentified vehicles parked
outside the STEG building. The occupants of the vehicles appeared to be monitoring the movements of the staff. The STEG, as a member of the MICSP, was also involved in a lawsuit against the Guatemalan authorities for the death of one of the CAFTA protestors, Juan
López Velásquez.
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Death threats against leaders of bank workers’ union: Death threats were made against members of the Executive Committee
of the Workers’ Union of the National Mortgage Bank (Sindicato de Trabajadores del Crédito Hiptecario Nacional – STCHN), affiliated
to UNSITRAGUA.
1 3 5
On the morning of 25 July, a funeral wreath was found hanging on a window at the offices of UNSITRAGUA, together with two death
notices. The first notice said “May STCHN rest in peace” and listed the names of eight of the organisation’s leaders - Edgar Vincicio
Ordóñez García, General Secretary; Luis Fernando Sirin Aroche, Labour and Disputes Secretary; Efraín López Quiché, Communications
Secretary; Danilo Enrique Chea Herrera, Organising Secretary; Elio Santiago Monroy López, Finance Secretary; José Douglas Asencio,
Sports Secretray; Manuel Francisco Arias Virula, Secretary for Social Protection and Luis Ernesto Morales Gálvez, a member of the
Advisory Board. The second notice contained a list of insults and the words “2005: the unforgettable year of the destruction of a belligerent trade union”.
The death threats were thought to be related to an industrial dispute which began on 22 March 2002, when 170 members of the
STCHN were forced to take “voluntary redundancy”. The same fate befell more union members on 21 July 2002. In 2003, the union’s
leaders began receiving threats, after the union denounced corruption during the merger of the Banco de Ejército (the Army Bank) and
the BANORO. A policy of systematically pressurising workers to leave the union emerged, resulting in a reduction in union membership
from 450 in 2002, to 210 in 2005. Collective agreements were not respected and the authorities threatened to lift the legal protection
on union leaders and trade union activists. Union members also reported that their phones had been blocked.
On 22 July, when union members met an official from the Ministry of Labour at the personnel offices of the Crédito Hipotecario Nacinal
to record their complaints about management’s actions against them, the bank manager publicly insulted them and threatened that
“from now on things are going to change”.
Armed attack on rural workers’ union: At 12.30 pm on 27 September, heavily armed men burst into the head office of the Rural
and City National Workers’ Centre (Central de Trabajadores del Campo y de la Ciudad – CTC). They attacked the CTC General
Secretary, Miguel Angel Lucas Gómez, CTC administrative staff, two visiting rural workers’ leaders from Tres Arroyos de Alta Verapaz
and an Italian journalist who was there for a meeting. The intruders also sought to humiliate their victims, forcing them to remove their
clothes and hand over their personal possessions, including the Italian journalist’s passport.
Death threats against union activist: José Armando Palacios became the subject of repeated threats and harassment after
becoming a union activist. He worked for INCASA, a Guatemalan-owned company that produces Coca Cola syrup and owns a Coca
Cola bottling plant. He joined the INCASA workers’ union, STINCA, in 2004, and quickly became an active member, recruiting fellow
workers. A series of threats failed to deter him and he was sacked in May 2005. When he asked for an explanation, the company told
him they just did not like him. He began to fight for his reinstatement along with 10 other dismissed workers and union members. One
day armed men entered his house. When they found he was not at home they tied up his nine-year-old daughter and 17-year-old son.
They held a gun to their heads and demanded to know where their father was. The children did not know. The armed men told them:
“We are going to get that son of a bitch for his trade unionism, and he is going to die”. In a similar incident on 30 October, while José
Armando and his family were away, an armed man arrived at the house, shoved a gun through the window and threatened the woman
who was taking care of the house for them. He told her he would come back looking for José Armando, and that if he couldn’t find him,
he would look for his wife or son. Constitution and the Labour Code recognise workers' freedom of association and all workers have the
right to form and join trade unions, including public sector employees, with the exception of members of the security forces.
The law provides for a system of labour and social welfare courts to rule on violations of the Labour Code.
Workers have the right to strike, provided 50 per cent plus one in an enterprise support the strike, a requirement considered excessive
by the ILO.
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Workers have the right to organise and bargain collectively, provided the union represents more than 25 per cent of workers in an enterprise.
Restrictions: Labour Code reforms, introduced in 2001, removed a number of legal restrictions on trade union rights. However some
1 3 6
restrictions remain:
T the requirement to be of Guatemalan origin and to be actively employed by a company in order to be elected to union office (articles
220 and 223 of the Labour Code);
T the sanction of one to five years' imprisonment for persons carrying out acts aimed at paralysing or disrupting enterprises that
contribute to the country's economic development;
T the requirement for compulsory arbitration, without the possibility of recourse to strike action, in public services which are not
“essential” in the strict sense of the term, such as health, public transport and services related to fuel, and the prohibition of solidarity
strikes;
T the absence of a consultation procedure to allow trade unions to express their views to the financial authorities when they are drawing
up the budget.
The Labour Code applies to the export processing zones.
Unions may become members of international confederations.
Continuous anti-union discrimination: Anti-union discrimination takes different forms. In addition to the extremes of assassination, attempted assassination and imprisonment, it includes dismissals of workers who attempt to set up unions, bargain collectively or
carry out trade union actions. There are also blacklists of union leaders and members, and temporary plant closures. The International
Textile, Garment & Leather Workers' Federation (ITGLWF) reported to the World Trade Organisation (WTO) in January 2003, that it
was common practice for a company to close down a plant and transfer its operations after a trade union had been established.
An ILO Direct Contacts Mission in May 2004 expressed concern at the violent and arbitrary acts against trade unionists. It asked the
government to take all necessary legal and practical measures to bring an end to these violent acts. However, the failings of the
Guatemalan system and the unwillingness to introduce policies aimed at ensuring scrupulous respect of freedom of association have once
again turned trade unionists and workers wishing to join a union into targets for employers in both the private and public sectors.
Hostile employers: The exercise of trade union rights remains severely hampered by hostility towards the trade unions and the failings
of the legal system. Employer intimidation against trade unionists is common, and usually goes unpunished. As a result, union membership is very low - only about three per cent of the work force. This inevitably has an impact on collective bargaining, as does the requirement that 25 per cent of workers in an enterprise must be union members for bargaining to take place. Even where employers recognise
the union and agree to bargaining, there is a tendency to ignore collective agreements. Another common practice is for employers, who
are well aware of the poverty of most workers and the ineptitude of the Labour Ministry, to sack trade unionists in violation of labour
laws and later to buy their favours, sometimes forcing them to denounce the presence of trade unions at the company. Another technique
used by companies to avoid their obligations is to change their names, even though there has been no change in ownership.
Local authorities also hostile: Both the Confederación Unitaria de Sindicatos de Guatemala (CUSG), an ICFTU affiliate, and the
Unión Guatemalteca de Trabajadores (UGT), have reported dismissals following the formation of trade unions in at least 21 local authorities in recent years. The CUSG has also reported that trade union leave has been refused and collective agreements and collective bargaining rights have been breached. In addition, labour inspectors have been refusing to protect workers. The inspectors have based their
decisions on an old and repealed ministerial agreement ordering them not to intervene in local authority labour disputes.
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Weak judicial system leads to impunity: The country has a poor record of labour inspection. According to workers, the inspectors are more likely to persuade them to renounce their rights than seek to protect them, and often give employers’ advance warning of
their visits. A study carried out in September 2004 by the Centre for Legal Action on Human Rights (Centro de Acción Legal en
Derechos Humanos, CALDH) reported that since the adoption of reforms to the Labour Code in 2001, considerable progress had been
made in applying the legislation, and the government claimed that labour inspectors had been given specific instructions to protect trade
union rights. However, the CALDH study also pointed out that the Labour Inspectorate did not have an effective system for registering
and following up complaints and sanctions, so it is not clear whether fines are actually paid or merely imposed.
In addition, the country's judicial system is still on the brink of collapse. Over time, there have been numerous attacks on judges, some of
whom have been forced into exile whilst others have simply been assassinated. Labour laws are systematically ignored in this climate of
injustice and impunity.
The labour courts are overrun with applications for the reinstatement of workers, and cases can drag on for over ten years. The majority
of dismissals are groundless, which is why judges order reinstatement. Employers tend to ignore court rulings, however, and the courts
do nothing to make sure that their own decisions are respected. The national trade union centre, UNSITRAGUA (Unión Sindical de
Trabajadores de Guatemala), is of the view that the attitude of the courts has served to legitimise the violation of workers’ and trade
union rights.
Export processing zones (EPZs): Unions also have to compete with the “solidarismo” (solidarity) associations set up by employers
as a more compliant alternative to trade unions. In the EPZs or “maquiladoras” (assembly plants), labour law enforcement is particularly weak, and so far only one collective bargaining agreement has been signed. Workers are subjected to constant harassment and the
flouting of their most basic rights. Women make up an estimated 80 per cent of the workforce in maquilas and are continually subjected
to wage discrimination, increases in working time, a lack of benefits and sexual harassment. According to FESTRAS, there is a trade
union in just three of the 230 maquilas. And the unions in these maquilas are finding it very hard to survive owing to constant antiunion persecution and the passive acceptance by the Ministry of Labour of the violations committed. In the Choi Shin maquila, for
instance, where the first collective agreement in the EPZs was signed in 2003, the company encouraged a group of workers not to
recognise the union’s leaders.
VIOLATIONS IN 2005
Background: In March, the government ratified the Central American Free Trade Agreement (CAFTA) with the United States amid
strong popular opposition and street protests in the capital. Police used tear gas and water cannons against the marchers. Two people
were killed in the ensuing violence, after government forces reportedly opened fire. Arrest warrants were later issued against the leaders
of the protest, including trade unionists. In October, hundreds of people were killed when Tropical Storm Stan swept through country
causing landslides and floods.
Attempted assassination of union leader: The General Secretary of the municipal workers’ union of San Miguel Pochuta, in the
Chimaltenango department (Sindicato de Trabajadores de la Muncipalidad de San Miguel Pochuta), Leonel García Acuña, narrowly
escaped an attempt on his life on 7 January. At about 5.00 pm he and several others were on their way to the “California” farm on
union business when they were attacked by four heavily armed men. As Leonel García and his colleagues ran away, they were chased by
their attackers who continued to fire at them and were heard to shout “Kill the son of a bitch. He must not be left alive.” Leonel García
managed to run to San Miguel Pochuta where he sought help and his attackers were later captured.
There is every reason to believe Leonel García was attacked for his union activities. He had received many death threats for setting up a
union and he and all of the founding members of the union were dismissed from their jobs by the Mayor of San Miguel Pochuta. The
Mayor warned them that he considered them his worst enemies for having set up a union. After the workers were dismissed, they submitted a list of demands to the authorities. When they got no response, they lodged a complaint with the general labour inspectorate. On
1 3 7
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5 January 2005, the labour inspectorate sent two of its officers to the town hall, but their meeting was unsuccessful as the Mayor
walked out, without explanation.
Death threats against “maquila” workers’ leaders: In April, unions representing workers in the “maquilas”, the companies
1 3 8
operating in the export processing zones, reported death threats against their leaders. Gloria Córdova of the Cimatextiles Workers’
Union, (Sindicato de Trabajadores de Cimatextiles, SITRACIMA), had been receiving threats against her and her family on her mobile
phone. Meanwhile, Members of the NB Guatemala factory workers’ union, (Sindicato de Trabajadores de la Maquila NB, SITRANB),
had faced hostility and threats ever since the union was formed in 2003. Maria Rosa López, SITRANB Organising Secretary, was targeted in phone calls to her home, warning her that if she did not give up her union work, she would be killed together with the other
members of the union’s Executive Committee. She had also been hit by the general manager in front of colleagues when, on 20 January,
nine illegally dismissed workers were reinstated, thanks to union action. The same general manager later prevented Neil Kearney,
General Secretary of the ITGLWF, from visiting the factory, and refused entry to local union leaders. One union member, Yolanda
Secaida Mash, was reportedly beaten by company thugs on 18 February. The SITRANB General Secretary, Vidalia García, was followed
in an intimidating manner by a beige car with darkened windows. The car blocked her way and was later seen parked outside her son’s
nursery. Finally, on 10 June, management took advantage of the absence of the union leaders (on union business) to announce the closure
of the Korean-owned factory, giving their employees just two hours to collect their redundancy pay and leave.
Attempted break-ins at union premises: In what appeared to be a concerted effort to intimidate the unions, attempts were made
to break into the premises of two national centres. On 10 May, an unsuccessful attempt was made to enter the building of the General
Workers’ Centre of Guatemala (Central General de Trabajadores de Guatemala – CGTG), through the roof. On 11 May, there was an
attempted break-in at the head office of the ICFTU-affiliated Confederation of Trade Union Unity of Guatemala (Confederación de
Unidad Sindical de Guatemala – CUSG). The intruders tried, but failed to break down the metal door at the main entrance.
The peasant farmers’ organization, CNOC (Coordinadora Nacional de Organizaciones Campesinas), was the victim of a successful breakin at its head office on 9 May. The intruders removed 15 computers containing important information, one video camera and ransacked
the files. The CNOC office occupies the same building used by the newly-created “Movimiento Indígena, Campesino, Sindical and
Popular” (MICSP), which brings together a number of trade union and citizens’ organisations and was the principal organiser of the
anti-CAFTA protests. It is believed that the break-ins and attempted break-ins may have been in retaliation for this.
Raid on education union offices: A raid was carried out on the offices of the Education Workers’ Union of Guatemala (Sindicato de
Trabajadores de la Educación de Guatemala – STEG), on 25 and 26 June. In addition to seizing the communication equipment (telephones,
fax, computers) and the organisation’s paper files, the intruders destroyed all the office furniture. The computers contained extensive information on the National Assembly of Teachers’ programmes and its plans for the future. They also painted red crosses on walls, desks and
union posters, presumed to symbolise death threats (such symbols had been used on other occasions) against the union’s leaders and staff.
An arrest warrant was issued for the General Secretary of the STEG, Joviel Acevedo, over his participation in the anti-CAFTA protests in
March. Intimidation against STEG staff increased after the CAFTA protests, with unidentified vehicles parked outside the STEG building.
The occupants of the vehicles appeared to be monitoring the movements of the staff. The STEG, as a member of the MICSP, was also
involved in a lawsuit against the Guatemalan authorities for the death of one of the CAFTA protestors, Juan López Velásquez.
Death threats against leaders of bank workers’ union: Death threats were made against members of the Executive Committee
of the Workers’ Union of the National Mortgage Bank (Sindicato de Trabajadores del Crédito Hiptecario Nacional – STCHN), affiliated
to UNSITRAGUA.
On the morning of 25 July, a funeral wreath was found hanging on a window at the offices of UNSITRAGUA, together with two death
notices. The first notice said “May STCHN rest in peace” and listed the names of eight of the organisation’s leaders - Edgar Vincicio
Ordóñez García, General Secretary; Luis Fernando Sirin Aroche, Labour and Disputes Secretary; Efraín López Quiché, Communications
Secretary; Danilo Enrique Chea Herrera, Organising Secretary; Elio Santiago Monroy López, Finance Secretary; José Douglas Asencio,
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Sports Secretray; Manuel Francisco Arias Virula, Secretary for Social Protection and Luis Ernesto Morales Gálvez, a member of the
Advisory Board. The second notice contained a list of insults and the words “2005: the unforgettable year of the destruction of a belligerent trade union”.
1 3 9
The death threats were thought to be related to an industrial dispute which began on 22 March 2002, when 170 members of the
STCHN were forced to take “voluntary redundancy”. The same fate befell more union members on 21 July 2002. In 2003, the union’s
leaders began receiving threats, after the union denounced corruption during the merger of the Banco de Ejército (the Army Bank) and
the BANORO. A policy of systematically pressurising workers to leave the union emerged, resulting in a reduction in union membership
from 450 in 2002, to 210 in 2005. Collective agreements were not respected and the authorities threatened to lift the legal protection
on union leaders and trade union activists. Union members also reported that their phones had been blocked.
On 22 July, when union members met an official from the Ministry of Labour at the personnel offices of the Crédito Hipotecario Nacinal
to record their complaints about management’s actions against them, the bank manager publicly insulted them and threatened that
“from now on things are going to change”.
Armed attack on rural workers’ union: At 12.30 pm on 27 September, heavily armed men burst into the head office of the Rural
and City National Workers’ Centre (Central de Trabajadores del Campo y de la Ciudad – CTC). They attacked the CTC General
Secretary, Miguel Angel Lucas Gómez, CTC administrative staff, two visiting rural workers’ leaders from Tres Arroyos de Alta Verapaz
and an Italian journalist who was there for a meeting. The intruders also sought to humiliate their victims, forcing them to remove their
clothes and hand over their personal possessions, including the Italian journalist’s passport.
Death threats against union activist: José Armando Palacios became the subject of repeated threats and harassment after
becoming a union activist. He worked for INCASA, a Guatemalan-owned company that produces Coca Cola syrup and owns a Coca
Cola bottling plant. He joined the INCASA workers’ union, STINCA, in 2004, and quickly became an active member, recruiting fellow
workers. A series of threats failed to deter him and he was sacked in May 2005. When he asked for an explanation, the company told
him they just did not like him. He began to fight for his reinstatement along with 10 other dismissed workers and union members. One
day armed men entered his house. When they found he was not at home they tied up his nine-year-old daughter and 17-year-old son.
They held a gun to their heads and demanded to know where their father was. The children did not know. The armed men told them:
“We are going to get that son of a bitch for his trade unionism, and he is going to die”. In a similar incident on 30 October, while José
Armando and his family were away, an armed man arrived at the house, shoved a gun through the window and threatened the woman
who was taking care of the house for them. He told her he would come back looking for José Armando, and that if he couldn’t find him,
he would look for his wife or son.
Guyana
POPULATION: 768,000 / CAPITAL: GEORGETOWN / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
For the fifth year, the government unilaterally decided the level of the public sector pay
rise. Restrictive strike legislation remains in place.
§
The Constitution recognises the right of workers to form and belong to trade unions, except members of the Guyana Police Force. There
is no law prohibiting anti-union discrimination. The right to strike is recognised. Public employees providing essential services may
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strike if they provide the proper notice to the Ministry of Labour and leave a skeleton staff in place. However, all strikes in the public
utilities are subject to binding arbitration. Both public and private sector employees can bargain collectively.
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The law on trade union recognition has not proved effective in practice, and employers take advantage of the absence of a law against
anti-union discrimination.
Ethnic/political discrimination: Political colour and ethnic membership weigh heavily on the trade union movement, and the
authorities play on that, creating a very tense situation. Thus, unions are branded “pro-government” or “opposition,” “Afro-Black” or
“Hindu.” Hindu workers, for instance, have been pressured not to vote for “Black” unions to represent them in the Labour Relations
Board. The government has manipulated the process to insure that only “friendly unions” have been elected to the Board. As a consequence, there is no trust between the government and the unions, and this affects social dialogue.
In December 2005, the government again set the level of the public sector pay rise without consulting the Guyana Public Service Union
(GPSU) - in breach of the collective agreement with the union. Wage talks were deadlocked in June and the union asked to go to arbitration, but the government chose not to.
Haiti
POPULATION: 8,500,000 / CAPITAL: PORT-AU-PRINCE / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111
§
Haiti’s difficult political and economic situation continued to provide an excuse for little to
be done to ensure the respect of trade union rights - which have little protection in law.
There was good news, however, in the Ouanaminthe export processing zone, where CODEVI
clothing factory workers finally won union recognition and signed a collective agreement.
A union Treasurer was fired by a brewery after his union protested at the company’s failure
to implement a collective agreement.
Restrictive labour code: The 1987 Constitution provides for freedom of association and the right to strike in all sectors. The Labour
Code, which mainly covers the private sector, dates back to the Duvalier dictatorship and is very restrictive. It excludes many categories
of workers, such as domestic employees, from its coverage.
Only ten members are needed to form a union. Once it is formed, a union must inform the employer of its existence and provide the name
of at least one of the leaders. However, the Penal Code requires prior authorisation by the government for the establishment of any association comprising more than 20 people, if the latter is to obtain government recognition. Article 51 of the Labour Code explicitly bans
dismissal of workers on account of their union activities. However, it does not provide for the reinstatement of trade unionists who have
been unfairly dismissed.
Civil servants, agricultural workers, freelance workers and workers in the informal economy are not covered by the Labour Code.
Reforms of Haitian legislation aimed at bringing it into line with ILO standards on trade union rights have been under discussion for several years, but have still not been introduced, largely due to the unstable political situation.
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Collective bargaining: The Labour Code does not oblige employers to meet or negotiate with trade union organisations.
Dispute resolution: The Labour Code stipulates that parties must try to resolve their differences by using mediation, conciliation and
arbitration processes under the auspices of the Ministry for Social Affairs and Employment. Disputes are submitted to the Labour
Directorate and if agreement cannot be reached, they then go to a tripartite Arbitration Committee. If no agreement is reached, a tripartite Consultation and Arbitration Committee gives a final ruling on the dispute.
In practice, it is not possible to appeal against the Committee’s rulings. Several labour lawyers have pointed out the dangerous effects of
these arrangements. They argue the creation of a new jurisdiction “outside” the legal system increases the chances of contradictions
between the law and the judicial role played by the Committee, in resolving labour disputes.
The law also provides for the existence of an industrial tribunal, the task of which is supposed to be to resolve conflicts resulting from
violations of provisions in the Labour Code. However, the tribunal is not competent to rule on labour disputes arising in the public
sector.
Restriction on the right to strike: The right to strike is recognised by the Labour Code, but with restrictions. The Code defines
three types of strike. Any strike that does not fit one of those definitions is considered illegal. Once a strike has been deemed illegal, the
workers may be sacked for breaking their contracts - after three days’ absence. The parties in a dispute must take steps towards conciliation prior to calling a strike. A 48 hour notice period is compulsory and strikes may not exceed one day.
Strikes are illegal in public sector enterprises. Mediation is the only method available for resolving conflicts. If strikes occur, the Code
allows the State to intervene and use force in order to re-open the enterprise.
Employers abuse rights: In practice, the right to organise and collective bargaining are virtually non-existent. As a result of political chaos, a climate of violence, record unemployment rate and the complicity of a weak State, employers have enjoyed absolute freedom. In most cases, employers set wages unilaterally. Working conditions are generally disgraceful and do not meet sanitary and safety
standards. On the pretext that Haitians are willing to work at any price, employers regularly behave abusively by making general reductions in wages. Many workers are employed without contracts and are unaware of the existence of the Labour Code. Occasionally, workers do not even know the name of the company they are working for and so are unable to protect their rights. Those people trying to
organise workers in a union are constantly harassed or dismissed, generally in breach of labour legislation.
To prevent workers from joining unions, employers give bonuses to those who are not union members.
Failings of governments: Successive governments have taken no concrete measures to enforce the law. The Minister of Justice and
Public Security under the Aristide administration even told representatives of an international trade union mission that visited Haiti in
mid-February 2004, that teachers and journalists in Haiti “should not be allowed” to join trade unions. Corruption within the administration often constitutes a barrier for trade unionists when they attempt to get their organisations registered.
Employer impunity: Despite a provision in the Labour Code, the government has never fined an employer for interference in a
union's internal affairs. Enquiries into abuses committed against trade unionists rarely produce results.
Mediation is virtually non-existent: Workers’ organisations have been questioning the work of the Tripartite Committee. Since the
cases submitted to it are never resolved, the Committee has failed in its task of helping to create a regulatory environment that encourages workers to take their disputes to it.
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The industrial tribunals system is completely dysfunctional. Trials are rarely fair, judges are poorly trained and deadlines are not respected. Using a lawyer is often prohibitively expensive. Sometimes lawyers flatly refuse to defend someone if they are offered too little
money. As a result, workers hardly ever use industrial tribunals.
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Ineffective labour inspectorates: The labour inspectorates, charged with enforcing legislation, are often short-staffed, poorly
equipped and badly trained, or even directly threatened by employers. A report by the American Center for International Labor
Solidarity (ACILS/AFL-CIO) in 2003, showed that inspectors often fail to understand their role and enforce their authority. An inadequate budget is a problem, together with a lack of political will on the part of successive governments.
Right to strike restricted: As the law makes it virtually impossible to hold strikes legally, workers often hesitate to exercise this
right, particularly owing to the required notice period.
Nevertheless, despite the ban against their doing so, public service workers have exercised the right to strike.
Industrial zones and export processing zones: The CODEVI (Industrial Development Company) free trade zone was set up in
Ouanaminthe, on the border with the Dominican Republic, under the management of the clothing group Grupo M in August 2003. The
company, based in the Dominican Republic, built the plant using a $20 million loan from the International Finance Corporation (IFC) the World Bank’s private sector lending arm. The loan was conditional on the company’s respect for freedom of association and the right
to collective bargaining. However, workers’ rights were regularly abused and attempts to form a union met with dismissals, including the
mass dismissal of 350 workers in June 2004. That situation now appears to have changed. Further to a national and international campaign, the workers have been reinstated, the union has been recognised and a collective agreement was signed at the end of 2005 (see
“Violations” section). Considering Grupo M’s poor track record on trade union rights, it remains to be seen how well it respects the
agreement it has signed.
The five industrial parks in and around the Haitian capital strongly resemble the majority of EPZs in the Americas in terms of trade
union rights. The only real difference is their name and the fact that they offer investors few fiscal incentives. Trade unions are not welcome and organisers face intimidation.
The garment workers, mainly women aged 25 to 35, are pushed by poverty into accepting wages of between €2 and €3.50 a day, three
times lower than in the neighbouring Domincan Republic.
VIOLATIONS IN 2005
Background: The country was governed by an interim government, and a UN stabilisation force was deployed to restore order. Violent
confrontation between rival gangs and political groups continued, and the UN described the human rights situation as catastrophic.
Raid on trade union offices: On the morning of 7 July, armed police entered the premises of a trade union umbrella group, the
“Coordination Syndicale Haïtienne (CSH) as a meeting was about to be held. The police reportedly pointed a gun at CSH members present, and claimed they were looking for “bandits”. A journalist, who was also present, was threatened when he tried to film the event. The
police left shortly after.
Union Treasurer fired by brewery: Workers at the “La Couronne” brewery founded a union, affiliated to the May First Batay
Ouvriye Federation, in August 2005. The union gained legal recognition, held a meeting with management, and presented a list of
demands, including the payment of a wage adjustment and overtime that had been due to them for over eight months. Although agreement was reached on several points, two months later, management had still done nothing to implement the agreement. The workers held
a series of stoppages in protest. The brewery’s regional directors responded by dismissing the union’s Treasurer, Semeran Philome. When
called on to examine the case, the Ministry of Social Affairs and Labour concluded that the firing had been illegal.
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Union victory for CODEVI/Grupo M workers: After a long battle against anti-union discrimination, culminating in the dismissal
of over 350 workers in June 2004 (see the 2005 edition of the Survey), the union representing workers at the CODEVI clothing factories in the Ouanaminthe export processing zone, SOKOWA (Sendika Ouvriye Kodevi Wanament), finally signed a memorandum of understanding with CODEVI management. This agreement, reached after a high-profile national and international trade union campaign,
included the rehiring of the workers dismissed the previous June, recognition of the local trade union, and the establishment of a collective agreement. The dismissed workers were gradually reinstated over the course of the year, and a collective agreement was signed on
13 December 2005, resulting, inter alia, in a doubling of the basic salary. Workers in the CODEVI factories, owned by Grupo M, said
they felt that they were at last respected and their rights were much better protected, although many practical problems, regarding poor
working conditions, had still to be addressed. Previously, workers feared being sacked if they dared to complain.
Honduras
POPULATION: 7,200,000 / CAPITAL: TEGUCIGALPA / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
A trade union leader was shot and killed in December. A mining company failed to respect
crucial clauses in a collective agreement concerning occupational health and medical costs.
Companies in the export processing zones continued the practice of blacklisting union
activists.
§
Freedom of association: The law recognises the right to form and join trade unions, but imposes restrictions. At least 30 workers
are needed to form a trade union, and there cannot be more than one union in a given enterprise or institution. Trade union officials
must be Honduran nationals and must be engaged in the activity concerned. Workers on farms, that do not continually employ more
than ten workers, are not covered by the Labour Code.
Right to strike: The right to strike is also recognised, but limited. Federations and confederations may not call a strike. A two-thirds
majority of the votes of the total union membership is required to call a strike. Civil servants may not strike. Employees of State owned
enterprises must give six months notice or have the government's approval before striking. The Ministry of Labour and Social Security
has the power to end disputes in oil production, refining, transport and distribution services. But, it has no power to ensure that employers comply with the law. Collective disputes in non-essential public services are subjected to compulsory arbitration and it is not permitted to call a strike while the arbitration process is under way (two years).
Collective bargaining: The right to collective bargaining is protected by law, and retribution by employers for trade union activity is
prohibited.
Draft reform: The government has prepared a draft reform of the Labour Code which includes several amendments requested by the
ILO. The preparation of the draft was preceded by a study carried out on a tripartite basis.
Lack of protection: In practice, workers have no law to protect them adequately from anti-union discrimination. Workers are
harassed and even sacked as a result of their union activities. In the export processing zones (EPZs) workers are exploited and there are
reports of workers trying to form unions being sacked and blacklisted, as well as being subjected to harassment, separation from their
colleagues and psychological and even, physical abuse.
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These problems continued throughout 2005, confirmed Fabia Gutiérrez Reyes, Organising Secretary of the United Workers’ Centre of
Honduras (Central Unitaria de Trabajadores de Honduras CUTH), in an interview with ICFTU “OnLine”. She described blacklisting as
the most effective of anti-union practices. Many complaints had been submitted to the Labour Ministry and Labour Court and were being
investigated. However, women were often reluctant to lodge complaints, for fear of reprisals. Some had found themselves out of work
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and unable to find a job in another maquila. Fabia Gutiérrez declined to name the companies concerned, because of the power they held
in the country.
Some companies have set up “solidarismo” (solidarity) style organisations as a compliant alternative to trade unions, notably in the
EPZs. It is virtually impossible to sign collective agreements in the EPZs throughout the country.
Attitude of the Ministry of Labour: The Ministry of Labour does not ensure that employers respect freedom of association, in
accordance with its non-interventionist approach. The violations of workers’ rights and the tendency of the Ministry of Labour to side
with the employers are strongly criticised by citizens and trade unions.
Collective bargaining: In practice, the right to collective bargaining is violated, since negotiations and the reaching of collective
agreements mean improvements for workers in their standard of living. Employers are only forced to share a small proportion of their
profits. This is the main reason for the strong objection of employers, in alliance with the government, to the application of these rights.
VIOLATIONS IN 2005
Background: The Central America Free Trade Agreement (CAFTA) with the U.S. was ratified by Congress in March. The Liberal
Party candidate, Manuel Zelaya, was declared the winner of the presidential elections in early December, promising to tackle corruption
in government and create badly needed jobs.
Union leader murdered: Francisco Cruz Galeano was shot dead on Sunday, 10 December, as he was returning home to the village of
Ojo de Agua, near the city of Comayagua. Francisco Cruz was the Regional Coordinator of the General Confederation of Workers (CGT)
in the central Honduran departments of Comayagua, Intibuca and La Paz. Police reports said he had been hit by at least 25 bullets,
fired from automatic rifles with great precision. A friend travelling with him was hospitalised with two bullet wounds. Mr Cruz was travelling in his own car, which appeared to have been ambushed by his killers. It was clearly not a robbery as nothing was taken.
Collective agreement violated by mining company: Serious violations of their collective agreement led to a strike by Entre
Mares de Honduras S.A.’s Workers’ Union (SITRAMEMHSA), on 25 October. The company, a subsidiary of the Canadian transnational
mining company, Glamis Gold Ltd., had signed a collective agreement with the union in September, but failed to respect key clauses in
the agreement. One of the clauses stipulated that the company would pay 100 percent of the costs of occupational accidents and illnesses
and non-occupational illnesses. However, the company continued to deduct 20 per cent of those costs from workers’ salaries and
described the deductions as loans, instead of medical costs. Cyanide solution was used in one of the mine’s grinding operations, leading
to a high incidence of occupational illness and subsequent medical costs. The union met with the company, supposedly to discuss the issue
of these “loans” on 24 October. Instead, they were told that 27 workers, all from the “grinding” section, would be laid off because part
of the operation was to be transferred elsewhere. Three of those to be laid off were already seriously ill. A strike was called for the next
day. The interest and solidarity aroused by the case led Glamis to agree to negotiate with the union and to reinstate the dismissed workers, who returned on 1 November. Those who were ill continued to have serious health problems.
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Jamaica
POPULATION: 2,700,000 / CAPITAL: KINGSTON / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
§
Collective bargaining rights are limited by the requirement that a union must represent
at least 40 per cent of employees and that over half of the workers must vote in favour. The
Ministry of Labour still has excessive powers to intervene in industrial disputes. Employers
in the export processing zones remain hostile to the unions.
Limitations on collective bargaining: The Labor Relations and Industrial Disputes Act (LRIDA) provides for the right of freedom
of association and collective bargaining and applies to most workers. Collective bargaining is denied in a bargaining unit if no single
union represents at least 40 per cent of workers or when the union seeking recognition for collective bargaining does not obtain 50 per
cent of the votes of the total number of workers.
The LRIDA prohibits anti-union discrimination. Employees may not be fired solely for trade union membership.
Ministerial powers: The right to strike is neither protected nor prohibited in law, except for workers in essential services who are
banned from striking.
The Ministry of Labour has the power to refer an industrial dispute to compulsory arbitration and to terminate any strike. As the ILO
has commented, the notion of “a strike which is likely to be gravely injurious to the national interest” can be interpreted very widely,
and compulsory arbitration should be limited to essential services or situations of acute national crisis.
The law applies to export processing zones.
Employer resistance: The unions report that many employers still continue to prevent workers from seeking union representation.
This is particularly the case in the foreign-owned and multinational companies based in the country’s three export processing zones. No
unions exist in the zones. Employer-controlled “workers’ councils” handle grievance resolution in most companies, but do not negotiate
wages and conditions with management. Wages in the zones are set by management.
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Mexico
POPULATION: 106,400,000 / CAPITAL: MEXICO CITY / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 100 - 105 - 111 - 182
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§
The social situation has worsened even further owing to the constant violations of workers’
rights tolerated by the biased Ministry of Employment. Almost 85 per cent of collective
agreements are “protection contracts”, which are mostly not negotiated with unions and
effectively deny workers the right to strike. Such agreements do not offer workers anything
in addition to the minimum benefits afforded by Mexican legislation. Workers trying to
form free trade unions run the risk of losing their jobs and the government tends not to protect them from the dismissal they face in reprisal. There were many cases of mass dismissals during the year as a result of trade union activities. One textile firm sacked 163
workers for protesting about their working conditions, while another sacked 60, simply for
joining a union.
Registration of unions: No prior authorisation is required to create a trade union. To obtain legal status, however, the unions must
be registered in the Register of Associations, an office of the Labour and Social Protection Secretariat. The authorities may decline to
“take note” of a request if they consider that the union has breached or does not meet the requirements established in the Federal
Labour Law (Ley Federal del Trabajo). That judgement involves an examination of trade union procedures. Although it is possible to
appeal against an inspector's report, there is no legal recourse for changing it or requiring that a new inspection be carried out. An
unregistered union cannot call a strike or participate in collective agreements, and is excluded from all tripartite committees.
Foreigners may not become members of trade union executive bodies.
Despite the ILO's request, the State has still not fulfilled its promise to ratify Convention 98.
Restrictions in the public sector: The law imposes a trade union monopoly on State employees, prohibiting the coexistence of two
or more unions in the same State body. Workers are obliged to join unions affiliated to the public service union, the Federación de
Sindicatos de Trabajadores al Servicio del Estado (FSTSE). State employees may not leave their union. Public sector trade union officials may not stand for re-election.
The law also imposes a trade union monopoly on bank workers, who may only belong to the National Federation of Banking Unions.
Restrictions on right to strike: Clause XVIII of Article 123 of the Mexican Constitution states that “strikes shall be legal when
their purpose is to establish equilibrium between the diverse factors of production, harmonising the rights of labour with those of capital.
In the public services workers shall be required to provide ten days' notice to the conciliation and arbitration board (Junta de
Conciliación y Arbitraje, JCA), of the proposed date on which work is to be suspended. Strikes shall be regarded as illegal only where the
majority of the strikers carry out violent attacks on persons or property, or, in the event of war, where the former belong to government
bodies and departments”.
Employees in the public service may only call a strike in the event of the general and systematic violation of their rights set out in the
Constitution. They must have the support of two thirds of the workers in the public body concerned. The law also enables the government
to requisition workers in a national emergency, including when it is caused by an industrial dispute.
Labour reform still pending: Adoption of the proposal for reforming the Federal Labour Law put forward by the ruling Partido
Acción Nacional (PAN) is still pending in the parliament. If passed it, would seriously undermine the rights of Mexican workers.
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Workers have been faced for some time with many unacceptable constraints on their ability to exercise their rights to join free trade
unions, bargain collectively and call strikes. The reforms proposed by the Fox government would make it virtually impossible to exercise
those rights.
Trade union monopoly, protection contracts and exclusion clauses: The Supreme Court of Justice ruled in 1999 that the
imposition of a trade union monopoly in the public sector was a violation of the freedom of association as set out in the Constitution.
The government has yet to bring the law into line with this ruling.
Deficiencies in the Federal Employment Law have been exploited in order to create false collective agreements called “protection contracts”. These contracts consist of an agreement whereby the company pays a monthly sum to the union. In exchange, the union guarantees industrial peace. The exclusion clauses in these protection contracts give pro-management unions the right to demand the dismissal
of certain workers. These clauses are often used to obtain the illegal dismissal of workers who prefer free trade unions. It has been noted
that most protection contracts are signed by lawyers’ clients who represent so called trade unions. There are even websites containing
“model contracts” that employers simply need to modify.
Precarious contracts: Many education, media, government agency and maquiladora workers, and the researchers at the Instituto
Nacional de Antropología e Historia, are employed through “civil contracts for the provision of professional services” and are obliged,
in some instances, to sign a declaration to acknowledge that these are not employment contracts. Under these terms, they are not legally
permitted to organise or join a union, can only become members of civil associations, and do not have the right to take strike action or
negotiate collective agreements.
Maquiladoras: opposition to the establishment of democratic trade unions: Maquiladoras are continuing to exploit local
workforces and increasing numbers of indigenous workers are swelling the ranks of this category of insecure workers. Whilst depicted as
a “necessary evil” for reducing unemployment, maquiladoras are characterised by unpaid overtime, sexual harassment, discrimination
in employment, non-existent health and safety precautions, unfair dismissals and the denial of any organising rights. The dismissal of
pregnant women workers is also endemic. The sub-contracting of women workers is frequently used as a means of avoiding any responsibilities. The sector is currently facing the worst crisis in its history, since around 545 maquiladoras have fled Mexico to set up operations in China or Central America.
Freedom of association: Establishing an independent trade union, in other words a union that is not controlled by the employers,
can resemble an obstacle course. The difficulties associated with obtaining legal status are used by the government to deny a union the
right to register or to give preference to a particular union leader over another.
Ghost unions: Employers themselves sometimes set up a union, although workers may not even know there is a union in their factory.
They have come to be known as “ghost” unions, because there are no meetings, no elections and no collective bargaining.
Blacklists: Blacklists of trade unionists' names regularly circulate in the factories.
Undermining of the right to strike: Every year, thousands of strikes are called, of which only 0.3 per cent go ahead. The Labour
Secretary claims that this is an indication of “industrial peace”. In reality, the explanation lies in the complexity of the mechanisms for
calling a strike and the workers' lack of confidence that the State will fulfil its obligation to defend the right to strike. In addition,
employers often turn to the local conciliation and arbitration boards (JLCAs) to request that strikes be declared illegal, accusing the
organisers of violating their own union statutes.
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To prevent strikes from being declared illegal, employees constantly have to ensure that the employers do not remove the machinery from
the plants. The State or employers often deploy tactics to have a strike declared illegal, such as hiring strike breakers to provoke acts of
violence and calling on government forces. Another ploy is to draw out the procedure for as long as five years by filing never-ending lawsuits to break the workers' resolve and make it impossible for them to meet their own and their families' needs.
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The government has also resorted to “requisitioning”, which in practice means calling on government forces or strike breakers to take
over the operations in workplaces. According to Article 123 of the Constitution, requisition is only permitted in times of war.
VIOLATIONS IN 2005
Background: The country is still struggling to develop a more democratic social and economic order. Mexico has five million unemployed, and over 9 per cent of the economically active population is underemployed. President Fox’s economic policies – regarded by a
vast majority of Mexicans as a great disappointment – have worsened the situation of working people, fuelling their mass migration to
the United States. On 16 December 2005, the U.S. Congress passed the Border Protection, Anti-Terrorism, and Illegal Immigration
Control Act. This law provides, amongst other things, for the construction of a 1,130 kilometre steel wall to seal the border between the
United States and Mexico against illegal immigrants. It is estimated that some 6.3 million undocumented Mexicans live in the United
States. Between January and December 2005, no less than 441 illegal migrants died in attempts to cross the border.
Barbie, a toy that stands for exploitation: Sixty out of the 85 workers of the company, Rubie’s, were unlawfully dismissed after
joining in August the Progressive Union of Workers of the Textile Industry, which is affiliated to Vanguardia Obrera, a federation of the
Revolutionary Confederation of Workers and Peasants (Confederación Revolucionaria de Obreros y Campesinos, CROC). The plant in
Tepeji del Río produces garments under the Barbie label and its main customer is U.S. toy manufacturer Mattel.
An employment agreement between the union and the company was endorsed by the President of the Conciliation and Arbitration Board
(JFCA) on 11 May, but two days later, this official declared the agreement null and void because, in the meantime, a “ghost” union had
been formed.
The workers then went on strike to demand the reinstatement of their unfairly dismissed colleagues, compliance with the agreement and
implementation of Mattel’s code of conduct in all Mattel and Rubie’s establishments in Mexico. Rubie’s – which in addition to its U.S.
branches in New York, Phoenix and San Diego, also has subsidiaries in France, Portugal and Germany – is accused of employing children aged between 13 and 16. The children are forced to work nine to twelve hours a day (with no extra pay for overtime) in dismal conditions. For example, they are prevented from drinking water so as to reduce the frequency of visits to the toilet, they are forced to
obtain fake birth certificates to apply for the job and are registered with Social Security under a false name, which results in them missing out on benefits.
Abuses in Macoelmex assembly plants: The workers of the Macoelmex “maquiladora” in Piedras Negras, a subsidiary of the
Alcoa Fujikura Group, which manufactures wire harnesses for the Ford Motor Company, are still being denied their right to the legal
registration of their union. Labour law violations in this company date back to 2002. In March 2005, negotiations between the union
and Macoelmex came to a standstill. The union was told, moreover, that they must either accept pay cuts or face the closure of the plant,
since management was considering the possibility of relocating away from Piedras Negras.
In May 2004, the Border Committee of Women Workers filed a compliant with the ILO, requesting that the government guarantee a fair
and equitable trade union registration process in Piedras Negras and protect trade unionists from vicious employer tactics, including
interference and the use of violence, intimidation, harassment, retaliatory dismissals and blacklisting.
LAJAT sacks members of Negotiating Committee…: Eight members of the Negotiating Committee were sacked from the
LAJAT plant in Gomez Palacio (province of Durango). The workforce of this company, which manufactures jeans for Levi’s and Mudd,
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had organised to improve the poor health and safety conditions in the factory and had concluded an agreement with management to this
end. Instead of complying with the agreement, the company resorted to unfair dismissals.
…refuses to reinstate dismissed workers and makes unlawful offer: Subsequently, the CEO of LAJAT offered to place the
sacked workers on a waiting list with a view to re-employing them as “new” employees with a 45 day employment contract, clearly an
illegal arrangement. The company’s management insists that the workers concerned were dismissed on grounds of inefficiency, in spite
of the fact that they all had eight years’ seniority with the company.
Recording company violates collective agreement: On 23 February, Mexican actors who are members of the National
Association of Actors (ANDA) went on strike when their employer, Grabaciones y Doblajes Internacional (GDI), refused to honour the
collective agreement which protects their right to work. The actors have pointed out that the company wants to hire less expensive, nonunion actors. ANDA members dub the programmes distributed by Fox Entertainment Group in Latin America, including The Simpsons.
One activist arrested and 163 dismissed for protesting against violations of their rights: At the beginning of the year,
the clothes making maquiladora, “Calidad en Confecciones SA de CV”, dismissed 163 workers who had staged a protest against labour
rights violations in the company. Martín Barrios Hernández, a Nahua native and Chairman of the Human and Trade Union Rights
Committee of Tehuacan, was arrested by the police on 29 December, having been accused of blackmail by Lucio Gil Zárate, the owner of
the maquiladora. Barrios Hernández had supported the workers of the company in their struggle to stand up for their rights in the face
of numerous abuses, including the lack of employment contracts, 12 hour shifts, child labour and a disciplinary system based on pay
cuts (even for minor offences such as clocking in one minute late). Workers lose on average 40 per cent of their wages through unfair
cuts imposed by the company as a means of reducing costs. When the employer failed to comply with an agreement he had signed, the
workforce went on strike. In retaliation, the employer locked the workers inside the factory for nine hours. When they turned up for
work next morning, they found the gates locked and were informed by the gate attendant that they had been sacked.
Five teachers arrested for protesting: Five teachers from Branch 7 of the National Education Workers’ Union (SNTE), in the
State of Chiapas, were jailed after being charged with involvement in a defamatory campaign against the state government. On 1 May,
more than 60,000 education and health workers rallied outside the local government buildings in the town of Tuxla Gutierrez to demand
more resources for schools, as well as student grants and other essential items. The police met the demonstrators with beatings, threats
and arrests followed by trumped-up charges. As a result of these events, the teachers called an indefinite strike.
Successful end to three-year struggle for trade union rights: After a bitter three year struggle, on 17 January, the Euzkadi
Revolutionary Workers' Union (SNRTE) signed an agreement with the German-based, Continental Tire, and the company, Llanti
System, to reopen the tyre production plant. The plant had been closed for three years. The agreement brought a successful end to the
dispute that started in December 2001 when Continental Tire closed one of its plants in the country and the Federal Conciliation and
Arbitration Board (JFCA) ruled that the strike, organised by Basque workers in response to the closure, was “inadmissible” (See 2004
Survey).
Unlawful ruling on strike at Sicartsa: On 1 August, a strike was called at the steelworks, Siderúrgica Lázaro Cárdenas Las
Truchas (Sicartsa) and the related industrial technical consultancy company, Asesoría Técnica Industrial del Balsas. Both are owned by
the Villacero Group. Ten days into the strike, in which some 2,000 workers of the Mexican National Mining, Metalworking and Allied
Workers’ Union (SNTMMRP) took part, the action was declared inadmissible by the Federal Conciliation and Arbitration Board (JFCA)
on the flimsiest of pretexts. The JFCA alleged that the strike had started a few minutes earlier than the time announced by the union.
Despite the JFCA’s untenable ruling, the strike continued.
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Nicaragua
POPULATION: 5,700,000 / CAPITAL: MANAGUA / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 – 182
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Employers in the export processing zones remained fiercely anti-union, circulating
blacklists, refusing to allow union organising, and dismissing union members. Many workers
were intimidated into leaving their union at a bottling plant. Anti-union harassment was
also reported in the banana industry.
Freedom of association: All public and private sector workers, with the exception of the armed forces and the police, may form
trade unions and join the trade unions of their choice. They are also free to create federations and confederations, and to join international organisations. At least 20 people are required to form a trade union; no prior authorisation is needed. Once created, it must be
entered in the Register of Trade Union Associations, thereby endowing it with legal status. The members of the union's steering committee must be Nicaraguan.
Limited protection: Union leaders have protected status, but this is limited to nine executive members per union and three branch
members. The Labour Code allows enterprises to dismiss any employee, including union organisers, provided they have the permission of
the Ministry of Labour and pay double the usual severance pay.
Strikes and collective bargaining: The right to strike is recognised, albeit with some limitations. To be considered officially
approved, a strike must have the support of at least 50 per cent plus one of the total number of members of the trade union. Votes on
strikes are held at an extraordinary general meeting. The trade union must receive the approval of the Ministry of Labour before engaging in strike action. A mediation procedure involving the Ministry of Labour, must first be exhausted. Once a strike has been declared
legal, the authorities have 30 days to exercise their right to demand compulsory arbitration in order to resolve the conflict. Labour law
allows sympathy strikes in support of another legal strike in the same industry or business.
The Regulation on Trade Union Associations (Reglamento de Asociaciones Sindicales) also limits the right to strike by federations and
confederations. In the event of a dispute, federations and confederations may only provide the workers in question with advice and moral
or financial support.
The right to collective bargaining is recognised in the Labour Code, which stipulates that companies engaged in disputes with employees
must negotiate with the union, where one is present.
Legal strikes are virtually impossible: The Labour Ministry recognises that it would take about six months for a union to go
through the entire process in order to be permitted to hold a legal strike. As a result, only one strike has been declared legal since the
1996 Labour Code came into effect.
Union leaders not protected in practice: As a result of the alliance between the government and employers, trade union protection is now no longer respected and whole leadership bodies of trade unions have been dismissed, especially in the EPZs. More recently,
the Labour Ministry has been asking for copies of personal identity cards when unions are registered. Workers often do not have them
and this becomes an additional pretext for barring the registration of a union.
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Export processing zones (EPZs): The worst violations occur, as is often the case, in the export processing zones (EPZs). Barely 6
per cent of the workforce are union members, largely due to the employers' hostility towards unions. Very few of the unions in the zones
have real collective bargaining power. Workers are not represented on the EPZ National Committee.
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These problems persisted throughout 2005. Marcelina Garcia, General Secretary of the garment workers’ union “Sindicato de
Costureras y Modistas”, told the ICFTU that union organising has to be carried out without the employers’ knowledge, which meant
meetings had to be held outside the workplace. This poses major logistical problems, as many workers live far from the maquila. All
attempts at negotiating collective agreements are met with hostility. Furthermore, the employers keep the names of union members and
organisers on a data base and circulate these “blacklists” between each other to avoid hiring union labour. The companies practising
this type of discrimination are mainly owned by Taiwanese, Korean and US businesses.
The appalling working conditions in the EPZs illustrate just why employers are not willing to deal with unions. The average monthly
salary is 1,300 cordobas, whereas a monthly shopping basket is estimated to cost 4,800 cordobas. Health and safety conditions are
appalling. There is very little or no access to medical care, and employers do not pay social security contributions for their workers.
Banana workers: The banana plantations are another hostile environment for trade unionists. It was reported in 2005, for example,
that on the El Relampago plantation, the owner told his management that any union activity was forbidden. If employees attempted to
organise they were dismissed immediately. Banana workers’ unions, such as the Federación de Trabajadores Bananeros de Chinandega
(FETRABACH), and the Nicaraguan Banana Workers Union (TRABANIC), say that trade union members and organisers are regularly
harassed.
VIOLATIONS IN 2005
Background: In February, thousands of banana workers set out on the “March of No Return”, to demand justice for all of those suffering from exposure to the pesticide, Nemagon. Over one thousand people have died in Nicaragua as a result of Nemagon poisoning
over the decades. Many others have suffered serious health problems. The protestors camped out in Managua for eight months, finally
winning a commitment from the government for medical, social and economic assistance for the victims. A rise in fuel prices in April
sparked weeks of street protests that sometimes turned violent. There were also protests against the Central American Free Trade
Agreement with the US which was finally approved by Congress in October.
Union busting at Coca Cola bottling plant: Workers at the FEMSA Coca Cola bottling plant faced a campaign of intimidation
to force them to either leave, or not join the union. The company decided to reclassify a broad range of staff, from supervisors to administrative assistants and secretaries as “personas de confianza” (persons in a position of trust), who did not have the right to union membership. They were warned that they would lose their jobs if they did not leave the union, with the result that by the end of the year, over
100 workers left the Sindicato Único de Trabajadores de la Empresa Coca Cola (SUTEC). All new employees were warned not to
approach the union. Several “personas de confianza” were dismissed during the year, including two people who were fired on 28
December. The two concerned had signed a list of demands presented by the union in November. The SUTEC was not consulted over the
dismissals. SUTEC was convinced that in addition to firing loyal union supporters, the company had a list of people it wanted to hire in
their place - who would work against the union.
EPZ Company sacks union members: In June, the US company, Chapirh S.A., sacked over 45 workers affiliated to the company
union, including union officials. Nine of them took their case to the labour courts for unfair dismissal and repression at work. The company supplies a buyer, “Catherine Charmeen Choopy”, which uses the blacklists which circulate among EPZ companies to avoid recruiting unionised workers and forces newly employed workers to sign a pledge that they will not join a union.
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No change was reported in Panama where the law still imposes excessive requirements for
union membership and restricts the right to strike. The interpretation of the law and the
attitude of employers further limit trade union rights.
Limitations on organising…: Private sector workers have the right to form and join unions of their choice. There are limitations,
however. Only a single trade union is authorised per establishment. Trade unions may only open one branch office per province and a
minimum of 40 members are required to set up a branch union, a number excessive by international standards. All members of a trade
union executive must be Panamanian.
…and the right to strike: For a strike to be legal, an absolute majority of workers in the enterprise concerned must vote in favour.
Strikes can only be called to demand an improvement in working conditions, in relation to a collective agreement or in protest at the
repeated violation of legal rights. Strikes cannot be called to protest about government policy, to demand an increase in the minimum
wage or to demand union recognition. Federations, confederations and national centres may not call a strike.
The 1994 Civil Service Act grants civil servants the right to organise and bargain collectively. The government may put an end to strikes
in the public sector by imposing compulsory arbitration. The law requires State employees to provide a minimum service, and the government can requisition at least 50 per cent of employees for this purpose in essential services, the list of which includes transport exceeding the ILO definition of the term.
No public sector unions: Public sector workers do not have the right to form unions. They may form “associations”, but only if they
have a minimum of 50 members, and can only form one association per institution. The association can form federations and engage in
collective bargaining.
The law governing the autonomous Panama Canal Authority prohibits the right to strike for its employees, but does allow unions to
organise and bargain collectively.
Export processing zones (EPZs): In the export processing zones, all labour disputes are subject to compulsory arbitration. A strike
is only considered legal after 36 working days of conciliation are exhausted. If this requirement is not met, striking workers may be fined
or dismissed. The law governing EPZs also applies to call centres.
The Civil Service Act provides little protection, given that in practice only about 10,000 people have civil service status. The remaining
140,000 public sector workers are effectively denied the right to form trade unions.
In the private sector, employers often hire workers on temporary contracts to avoid Labour Code requirements. Their three month contracts are often renewed continuously, for years on end.
Bypassing the unions: Employers are allowed to draw up collective agreements with non-organised groups of workers, because of the
interpretation of the law by the administrative authorities and the courts. This happens, say the unions, even where a union exists, and
even where a collective agreement already exists.
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The administrative procedures which must be followed before a strike can take place are used to declare strikes illegal. A list of
demands may, for example, be considered unacceptable if it involves changes to an existing collective agreement.
A 1998 decree concerning workers at sea and on navigable waterways makes collective agreements optional, rather than obligatory, as
is the case for other workers under the Labour Code. The national trade union confederations claim that this loophole is being used to
deny workers in the sector the right to bargain collectively or strike in order to demand a collective agreement.
EPZs: There are no collective bargaining agreements in the export processing zones.
Paraguay
POPULATION: 6,200,000 / CAPITAL: ASUNCIÓN / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 – 182
The legal restrictions on trade union rights remain in place, notably the excessively high
membership threshold for the formation of a union. A newspaper closed down its offices
rather than work with unionised employees.
§
Many restrictions: The Constitution allows both private and public sector workers to form and join unions. There are strong restrictions, however. A minimum of 300 workers is required before a trade union can be established. Workers may not be members of more
than one union. Candidates for trade union office must work in the enterprise and be active members of the union. All unions must be
registered with the Ministry of Justice and Labour, and the procedures are cumbersome. Employers can file a writ opposing the registration of a union. Trade unions must comply with all requests for consultation or reports from the labour authorities.
The law provides for collective bargaining, and prohibits anti-union discrimination. There are few real sanctions to prevent discrimination, and labour courts are not obliged to reinstate unfairly dismissed trade unionists. Collective disputes must be submitted to compulsory arbitration.
The Constitution provides for the right to strike, but strikes can only be called for the sole purpose of the direct and exclusive protection
of workers' occupational interests. A minimum service must be ensured in the event of a strike in essential public services.
No progress on law reform: The government has failed to act on ILO recommendations. Although a bill was prepared in 2000 to
amend legal provisions not in compliance with the conventions on freedom of association and collective bargaining, it has still not been
approved. If it became law, this proposal would reduce the minimum membership requirement to 50 and allow workers engaged in more
than one occupation to join more than one union. Trade union statutes would be able to specify less stringent requirements for candidates for union office, while requests from the labour authorities would be limited to annual financial statements and complaints of violations of trade union law or union statutes. The definition of the right to strike would be relaxed, while specifying that trade unions be
prohibited from involvement in purely party political matters.
Private sector employers have ignored anti-discrimination laws and have antagonised and sacked trade unionists. The industrial tribunals take a long time to respond to complaints, with dismissed trade unionists waiting for up to eight years for their cases to be settled. Even when the tribunals order the reinstatement of employees, such legal decisions are often ignored with impunity. Another practice on the rise, is for employers to sack workers before they have been employed long enough to be protected by law.
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The unions have reported that in some cases management have created their own “parallel” unions to compete with bona fide unions.
Majority excluded from right to organise: A large section of the workforce is involved in sub-contracted or informal employment,
while child labour is heavily used in both the informal sector and agriculture. According to UNICEF and ILO sources, one in every four
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Paraguayan children works. For those reasons, and given the legal restrictions on union rights, over half the workforce is unable to join
unions and, therefore, to combat the abuses of their rights by employers.
The government says that, in practice, it does not apply the minimum membership rule of 300 people before a union can be formed.
VIOLATIONS IN 2005
Background: A series of protests were launched in July to oppose the law on privatisation, and roads were blocked in some cities.
Anti-union closure: Management at the Asunción-based newspaper, “Diario Noticias”, owned by Editorial Continental, began to systematically harass unionised staff members. It also drew up a list of 75 unionised employees whom it asked to leave “voluntarily”. If
they didn’t, it would close down the office. The deadline for the “voluntary” departures was 5.00 pm on 10 February. When staff arrived
for work the following morning, they found the offices had been closed down. The newspaper employed a total staff of 260.
Acepar violates collective agreement: On 21 October, the steel company Aceros del Paraguay (ACEPAR), signed an agreement
with its workers’ union SITRASA, in which it promised to reclassify all its employees in accordance with their collective agreement. It
failed to do so however. In protest, the union’s General Secretary, Noclás Caballero, went on a hunger strike on 5 December. A new
agreement was reached, and by the end of the year, nearly all of the workers had received their reclassification.
The union had already been involved in a lengthy dispute with ACEPAR, principally over a series of unfair dismissals, many against
union activists. The dispute was resolved in August 2005 after four years, following a trade union solidarity campaign at the international level. By the end of August, most of the unfairly dismissed workers, who wanted their jobs back, had been reinstated.
Peru
POPULATION: 28,000,000 / CAPITAL: LIMA / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
§
Employers, particularly multinational companies, appear to be able to flout trade union
rights with impunity, repeatedly ignoring rulings by the labour courts and recommendations
by the Ministry of Labour to recognise and negotiate with their workers’ unions.
Two multinationals responded to the creation of a union by dismissing leaders and founding
members. Both tried to avoid collective bargaining, as did an oil multinational, which
also harassed union leaders. Another multinational sacked union leaders during collective
bargaining.
Freedom of association: The Constitution provides for freedom of association, and recognises the right of public and private sector
workers to organise. Workers may form unions on the basis of their occupation, employer affiliation or geographic territory. No prior
authorisation is required. There are no restrictions on the unions' right to affiliate to international organisations.
Some restrictions: Temporary workers may not participate in the same union as permanent workers. A minimum of ten members are
required to form a union, although, in certain occupations, the threshold is 20, and the maximum requirement is 50 - which is too high
by international standards.
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Collective bargaining: The Constitution recognises the right of workers in the private and public sector to bargain collectively. A
union has to represent at least 20 workers to become an official collective bargaining agent. The law governing workers in the public
administration restricts the scope for collective bargaining.
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Right to strike – Ministry has veto: Workers have the right to strike, but this right is limited by the fact that unions must have
the permission of the Ministry of Labour.
Export processing zones: There are six export processing zones in the country governed by special regulations. These allow for
greater flexibility in labour contracts. The use of temporary labour is widespread and wages are set on the basis of supply and demand,
all of which restricts the ability of unions to organise and bargain collectively.
Fujimori’s legacy: Under the Fujimori regime, there were widespread, chronic and systematic violations of trade union rights.
Employers found it increasingly easy to fire workers involved in union activities, and many workers were reluctant to organise, for fear
of dismissal. Privatisation became an effective tool in anti-union discrimination, with privatised companies taking on employees on different conditions of employment, with lower pay and no union representation. The effects of that process are still being felt. Many workers lost their jobs after the national telephone company was privatised, while others were obliged to work for sub-contracted companies,
losing many of the rights they had built up over the years.
“Tercerización”: the increasing use of contract labour: The current government is continuing the trend, contracting out many government services, leading to more job losses in State owned enterprises and in public administration. These developments make it harder
for workers to organise.
Discrimination against union leaders: A series of laws and regulations have been introduced, beginning with the 2002 Law on
Collective Dismissals, to counteract the massive job losses in State owned enterprises and local government during the Fujimori era.
When it comes to reinstatement however, the trade unions report that union leaders and activists are being discriminated against, and
are not being given the chance to return to work.
Collective bargaining: The national trade union centre, CUT (Central Unitaria de Trabajadores), reports that in practice, collective
bargaining is limited by the attitude of employers, who prefer to settle matters on an individual and ad hoc basis and avoid collective
agreements. They also sack union leaders to avoid collective bargaining agreements.
Temporary contracts favoured to undermine unions: Some employers hire as many workers as they can on a temporary basis,
partly in order to restrict the number of union members. Although the law limits the number of temporary workers in an enterprise to
20 per cent of the total workforce, it has been reported that not all employers respect this limit.
Informal workers: Over half of the working population is employed in the informal economy. There are laws to protect domestic
workers and porters, but they are not enforced, and all other informal economy workers fall outside the protection of the law.
VIOLATIONS IN 2005
Background: In March, the trade unions organised major demonstrations in Lima in opposition to the free trade agreement being
negotiated with the United States. Tragedy struck in August when a TANS flight heading for Pucallpa in the Amazon region crashed in
a fierce storm. Of the 100 people on board, 44 perished in the burning wreck, including five trade union leaders on their way to help
negotiate a collective agreement for gas workers. The five were: Ever Rodriguez Flores (head negotiator, from the national centre
Confederación General de Trabajadores del Perú - CGTP); Luis Rojas Rojas, (the General Secretary of the Continental Bank Workers’
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Union); Jose Flores Arroyo (legal advisor to the local NGO PLADES); Roberto Palma Guevara (an official from the Peruvian University
Academics’ Union -FENDUP), and Jose Lino Reyna (from the regional branch of FENDUP).
Intimidation and dismissals aimed at destroying union: Shortly after the workers at ITETE Peru created a union on 5
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February (the Sindicato Unitario de Trabajadores de la Empresa ITETE – SUT-ITETE), the employer began dismissing its members. By
the end of March, 12 had been dismissed, including two union office bearers - the Press Secretary and the Defence Secretary. ITETE
Peru Telecomunications is a branch of Itete Spain, which provides services to the Spanish multinational Telefónica. Through its managerial staff, the company threatened to dismiss all members of the union. It offered bonuses to those who did not join the union, transferred
some of the union members to lower paid jobs, and offered some of those who had been dismissed the chance of returning to their jobs if
they promised to leave the union. Some union members were suddenly sent on leave without warning, and phone calls were made to the
homes of others to tell their families that they would be better paid if they left the union.
On 29 March, the union submitted its list of demands for negotiation with management. Management refused to negotiate on the
grounds that two of the leaders were no longer employees of the company, having just been dismissed. On 8 April, the union duly provided the names of two new leaders, to both the employer and the Ministry of Labour. The company still refused to negotiate, despite the
fact that the Ministry had given its approval for the negotiations to go ahead.
On 19 April, SUT-ITETE members held a peaceful demonstration just outside the company’s premises, calling for the reinstatement of
their dismissed colleagues, the negotiation of their demands, and an end to anti-union harassment. The company placed a masked man at
the top of the building to film the demonstration, and a van with more cameras two blocks away. At the end of April, a further ten
founding members of the union were dismissed.
ITETE continued to refuse to negotiate with the union, leading to a request from the union for conciliation, which the company appealed
against. The delaying tactics continued, and in July, the company dismissed the union’s Organising Secretary, supposedly for mistakes he
made in his work in January.
On 4 November, the Ministry of Labour carried out an inspection at the company’s offices in response to complaints lodged by SUTITETE. Two of the union’s leaders, the General Secretary, Héctor Díaz Chávez, and the Organising Secretary, Luis Alberto Nizama
Quiroz, took part in the inspection at the invitation of the Ministry. The company’s response was to suspend both men without pay - for
15 days in the case of the General Secretary, and six in the case of the Organising Secretary.
Bargaining obstructed and union leaders harassed at Petro-Tech: For the third consecutive year, the U.S. owned oil company, Petro-Tech Peruana S.A., sought to prevent collective bargaining with the union and harassed the union’s leaders. (See the 2005
Survey). When its workers’ union, the Sindicato de Trabajadores Mar y Tierra de la Empresa Petro-Tech Peruana S.A., submitted its list
of demands at the end of January, the company consistently stalled. It demanded minutes of meetings, claiming the union negotiators
didn’t have proper accreditation, and appealing, unsuccessfully, to the regional labour authorities to have the negotiations suspended. The
Assistant General Secretary of the union, Cléber Céspedes Zarate, was then suspended for three days (from 11 to 13 February). This was
seen by the union as intimidation, particularly given the company’s decision in February 2004 to dismiss the head of the union’s negotiating committee.
The company also continued its harassment of the union’s General Secretary, Leonidas Campos Barranzuela. He had been dismissed by
Petro-Tech in December 2002. Petro-Tech was ordered to reinstate him in September 2004, after a lengthy court case, but put off doing
so for over six months. The company did not pay him the benefits he was owed, and sought to obstruct his trade union activities, by
changing his shifts to make it difficult for him to meet with union members. The company also persisted throughout the year with a court
case against him in which it accused him of forging the signatures of 13 of the union’s founding members. This was despite three separate court rulings that Leonidas Campos was innocent. All 13 testified in court that the signatures were theirs and that they had voluntarily joined the union.
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Workers dismissed and others harassed for forming a union at AJEPER: Just a few days after forming their union, the
Sindicato Nacional de Trabajadores Obreros de AJEPER, several of the founding members were dismissed, including two of the leaders
- Pedro Rivas Lopez, Economy Secretary, and Luis Torres Alcántara, Defence Secretary. The Peruvian-owned soft drinks multinational,
replaced them with workers sub-contracted from service companies. Management then sought to make things difficult for the remaining
union members. More than 20 of them were moved from their posts to tasks they were not trained or qualified to perform, union members were no longer allowed to work overtime, and were not given proper meal breaks. AJEPER refused to negotiate a collective agreement. The union lodged a complaint with the Labour Ministry over the dismissals and the company’s refusal to enter into collective bargaining. But the company did not attend any of the meetings called by the authorities.
The company was later fined by the labour authorities. It did begin negotiations with the union, but constantly dragged them out, seemingly to avoid reaching agreement. On 11 July, a further eight union members were dismissed, supposedly for failing to sign a pay slip in
2003. The union saw it as a further pretext to remove more of its members.
By September, over 30 union members had been dismissed, including six of the union’s leaders. A further 29 had renounced their union
membership because of the constant anti-union harassment by the employer.
On 19 October, AJEPER dismissed the union’s General Secretary, Amilcar Gonzales Medina, claiming that he had committed a serious
offence by falsely claiming a legal identity he had no right to - his position as union General Secretary! AJEPER claimed the union had
been dissolved, but it continued to exist and function. The company also found fault with a letter he had sent to it, which he and other
union members had signed. The company complained that the other union members were no longer employed by it. One of the real reasons behind his dismissal, the union believes, was that Amilcar González had complained to the authorities, notably the Ministry of
Labour and Congress, about the abuse of workers’ rights at the factory.
Union recognition still denied at CAM Peru: The leader of the branch union at CAM-Peru, Elman Martínez, was denied time
off for trade union work (a right recognised in Peruvian legislation). The employer did this because it did not recognise his union, a
branch of SUTREL, the electricity and allied workers’ union of Lima and Callao, (Sindicato Unificado de Trabajadores de la
Electricidad y Actividades Conexas de Lima y Callao). CAM Peru is a service company for the electricity company EDELNOR, itself a
branch of the Spanish multinational ENDESA. When 50 workers, who were members of SUTREL, were transferred from EDELNOR in
2000, they set up their own SUTREL branch union. CAM Peru refused to recognise the branch union on the grounds that the workers
were not electricity workers. It persisted in this refusal, despite the fact that the Ministry of Labour did recognise the right of SUTREL
to represent CAM Peru employees. In September, the Ministry of Labour authorised it to conduct collective bargaining.
In November, the branch union submitted its list of demands. As on previous occasions, CAM Peru refused to enter into collective bargaining. At the same time it sought to threaten and pressure workers into signing individual agreements. At the end of the year CAM
Peru was still refusing to enter into collective bargaining.
Drinks multinational dismisses union leaders during bargaining: On 10 June, Gloria S.A., a Peruvian owned multinational
dairy products company, sent warning notices to nine members of its workers’ union, threatening them with dismissal. Seven of them
were office bearers. The union was in the process of negotiating a new collective agreement with the company, and four of the nine were
on the union’s negotiating team. On 18 June, three were informed they could return to work, while a further three were suspended, as a
disciplinary measure. On 21 June, the remaining three, General Secretary, Felipe Fernández Flores, the Organising Secretary, Miguel
Moreno Avila, and the Defence Secretary, Gilber Arce Espinoza, were dismissed. The company claimed the reason for their dismissal
was the union’s decision to publicise confidential information. The union had circulated, internally, information to the workers about a
discriminatory pay rise. Supervisors were being awarded rises far higher than those being given to the ordinary workers. The information was widely known long before it was circulated to the workers.
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The dismissals were the latest move in an anti-union campaign by the employer, which included incentives, including pay rises, for workers to leave the union, and extra pay rises for non-union workers.
Luz del Sur continues to block reinstatement of union leader: On 1 July, the company, Luz del Sur S.A.A., appealed against
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the decision of the labour court to order the reinstatement of Luis Martín Del Río Reátegui, the former General Secretary of the electricity workers’ union, SUTREL. He had been dismissed in September 2003 after commenting publicly on observations by the tax
authorities, the “Superintendencia Nacional de Administración Tributaria – SUNAT”, concerning privatised electricity companies. He
also warned of the negative effects of privatisation.
Banco del Trabajo refuses to recognise union: Workers at the Lima branch of the Banco del Trabajo, owned by the Chilean
multinational Altas Cumbres, formed the Banco del Trabajo employees’ union, SEDEBANTRA, on 9 April. In September, the bank
applied to a Labour Court in Lima for the dissolution of the union, claiming that a notary had not been present at its founding ceremony
(el acto de fundacion). The law requires a notary to certify the official record of a union’s foundation (Acta de Fundación), but the notary
does not have to be present at the ceremony. The move appeared to be designed to avoid having to negotiate the demands submitted by
the union. As reported in the previous edition of the Survey, the Banco de Trabajo had also refused to recognise the workers’ union created at its Piura branch. In August 2005, a Piura Labour Court rejected the bank’s attempts to have the union’s creation declared illegal.
Trinidad and Tobago
POPULATION: 1,300,000 / CAPITAL: PORT-OF-SPAIN / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
§
No change was reported in Trinidad and Tobago, where strong restrictions, including heavy
penalties, are imposed on the right to strike. Proposed legislation to give contract workers
collective bargaining rights was delayed.
The 1972 Industrial Relations Act (IRA) allows workers to form or join unions of their own choosing and establishes the right of collective bargaining. Teachers and public servants are excluded from the scope of the Act, but are covered by separate legislation.
Heavy limitations on the right to strike: Industrial action is strictly regulated by the IRA which stipulates that strikes may only
be over unresolved “interest” disputes, i.e. concerning the formulation of terms and conditions of employment. Strikes are banned in
essential services, which are too broadly defined by ILO standards, including, for example, the public school bus service. Strikes can also
be prohibited at the request of one party, if they are not declared by a majority union or when the government considers that the national
interest is threatened. There is a penalty of up to six months’ imprisonment.
Members of the teaching service and employees of the Central Bank are prohibited from taking industrial action, with a penalty of up to
18 months’ imprisonment.
Bargaining restricted: Collective bargaining is restricted by the requirement that, to obtain bargaining rights, a union must have the
support of an absolute majority of workers. Furthermore, collective agreements must be for a maximum of five years, and a minimum of
three years, making it almost impossible for workers on short-term contracts to be covered by such agreements. Amendments to the legislation to make it easier to ensure union representation for workers on short-term projects, and industrial agreements for periods of less
than three years have been drafted. However, although they were put before the Cabinet in 2004 to be included on the government’s legislative agenda, the proposals were sent back to the Ministry of Labour.
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EPZs: The same labour laws apply in the export processing zones as in the rest of the country.
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The government has consistently been unwilling to negotiate with public sector unions. It has consistently refused to amend its legislation on essential services and collective bargaining to bring it into line with ILO Conventions.
United States of America
POPULATION: 295,000,000 / CAPITAL: WASHINGTON / ILO CORE CONVENTIONS RATIFIED: 105 - 182
§
Two more state governments removed the right of public employees to bargain collectively
during the year, while a raft of decisions by the labour relations board further undermined
trade union rights. At New York University teaching assistants were denied collective bargaining rights, two ballet dancers lost their jobs as a result of their union activities, and in a
typical example of employer led anti-union campaigns, the management at an abrasives
factory succeeded in bringing about the decertification of their workers’ union.
Many excluded: The National Labour Relations Act (NLRA) is the primary federal labour law in the United States, and is binding on
the states. The NLRA guarantees the right of freedom of association, the right to bargain collectively, and the right to join trade unions
to private sector employees. However, in addition to excluding public sector workers, the statute excludes many categories of private
sector employees from its scope, including agricultural and domestic workers, supervisors, and independent contractors. In 2002, the
U.S. General Accounting Office found that some 25 million private civilian workers, as well as 6.9 million federal, state and local government employees, did not have the right under any law to negotiate their wages, hours or employment terms. Since then, even more
workers have been denied coverage.
Private sector: In the private sector, the law requires proof of majority status in order for a union to become the exclusive representative of employees within a bargaining unit. The National Labour Relations Board (NLRB), the administrative agency that enforces the
NLRA, will only certify a union that obtains a majority vote during a Board-supervised election although, as discussed below, voluntary
recognition agreements are also legal.
Employers - allowed to hold anti-union meetings: Employers have a statutory right under the NLRA to express their views
during a union campaign, so long as they do not interfere with their employees’ free choice. In practice, however, employers have a legal
right to engage in a wide range of anti-union tactics that discourage the exercise of freedom of association. For example, employers
have the right to hold “captive audience” meetings, which they use to make anti-union presentations, (see below). Under the law, it is
perfectly legal for employers to discipline or even fire workers for failing to attend these meetings. The law also allows employers to
“predict” (though not “threaten”) that a workplace will shut down if workers vote for the union.
Public sector - collective bargaining denied to many…:
…at federal level: In the public sector, approximately 40 per cent of all workers are still denied basic collective bargaining rights.
While the Federal Labour Relations Act covers over two million employees of the federal government, the statute outlaws strikes, proscribes collective bargaining over hours, wages, economic benefits, and imposes extensive management rights that further limit the
scope of collective bargaining.
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…and state level: Collective bargaining for state employees varies from state to state. Only a little more than half of the states allow
for collective bargaining in the public sector; several more allow it only for narrow categories of workers. Even where public sector
workers have the right to bargain, they generally do not have the right to strike. In North Carolina, all public employees are denied col1 6 0
lective bargaining rights. In 2005, newly-elected Republican governors of Indiana and Missouri stripped public employees in those states
of collective bargaining rights.
“War on Terrorism” used as pretext to restrict rights: The ongoing “War on Terrorism” has been used as a pretext to significantly roll back labour rights for employees of the U.S. government. In 2003, Congress authorised two Departments, Defence and
Homeland Security, to create a new system for resolving labour-management disputes for the next six years. It stipulated, however, that
any new system maintain the right of employees to join unions and the right of unions to bargain collectively. However, both departments
misused this authorisation to propose a new labour relations system that virtually eliminated collective bargaining. In August, 2005, a
federal judge blocked the Department of Homeland Security’s proposal. The Department of Defence’s proposal is on hold until 1 March,
2006, when another judge is set to rule on that plan.
Restrictions on collective action: The NLRA and judicial decisions interpreting the law place limitations on the ability of workers
to engage in “concerted activity,” such as intermittent strikes, secondary boycotts and other forms of aid. The law also allows employers
to replace striking workers permanently. Permanent replacement workers can vote in a decertification election to eliminate union representation.
Undocumented workers: The NLRA, anti-discrimination laws, and wage and hour standards apply to employees regardless of their
immigration status. However, the U.S. Supreme Court ruled in 2002 that undocumented workers are not entitled to back pay as a remedy for unfair labour practices under the NLRA, and they are not entitled to reinstatement. These restrictions have made it difficult to
enforce trade union rights on behalf of the millions of undocumented workers in the United States. The ILO’s Committee on Freedom of
Association recommended, in November 2003, that the government should amend the legislation to bring it into line with freedom of
association principles.
Employee Free Choice Act: The Employee Free Choice Act, before Congress at the time of drafting the Survey, is the first legislation to be proposed in nearly 30 years that could lead to a real expansion of workers' rights in the private sector in America. The proposed Act would provide statutory protection for employees’ right to choose freely whether to join unions and engage in collective bargaining by signing cards authorising union representation. The Act would also provide mediation and arbitration for first contract disputes and would establish stronger penalties for violations of employee rights when workers seek to form a union and during first contract negotiations.
Anti-worker government: John Sweeney, President of the AFL-CIO, has stated that: “The present administration is the most antiworker government since Herbert Hoover. It has stripped 40,000 of its own employees of the freedom to bargain collectively, and threatened many more workers' freedom to form a union.”
Union busting consultants: An entire industry exists in the United States to defeat union organising drives through coercion and
intimidation. In fact, a recent study found that 82 per cent of employers hire these high priced union busting consultants to fight organising drives. Consultants employ a wide range of tactics, including many which skirt the law.
Anti-union terminations, meetings and threats: A survey into employer behaviour during organising campaigns was carried out
by the University of Illinois and commissioned by “American Rights at Work”. The results, published in 2005, show that 91 per cent of
employers, when faced with employees who want to join together in a union, force employees to attend closed-door meetings to hear anti-
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union propaganda. In 70 per cent of organising campaigns in the manufacturing sector, employers threaten to move the plant if the
union wins. Thirty percent of employers fire pro-union workers.
Unions frequently establish initial majority support among a workforce, only to see it erode under employer threats. According to the
survey, in 91 per cent of the union recognition petitions filed with the NLRB as a prerequisite to an election, a majority of employees
indicated they wanted a union. However, unions were victorious in only 31 per cent of these campaigns. In addition, employers often
challenge the results of union elections, which can delay union representation and contract negotiations for several years.
Bad-faith bargaining: Even after a union becomes certified as the exclusive representative of the workers, employers engage in badfaith bargaining in order to prevent the union from winning a first contract. As a result, 45 per cent of all attempts at winning a first
contract fail.
Graduate teaching assistants denied bargaining rights: In 2000, in a case involving New York University, the NLRB ruled
that graduate teaching assistants are employees within the scope of the National Labor Relations Act and therefore have the right to
engage in collective bargaining with their employer. In 2004, largely as a result of the concerted efforts of major American universities,
joined by anti-union groups, the Board – now dominated by Republican members appointed by the Bush administration - overturned that
decision and held that graduate teaching assistants and research assistants were not employees under the NLRA, thereby nullifying their
bargaining rights. The impact of that decision has stifled organising for these workers, particularly at institutions such as Yale
University, University of Pennsylvania, Tufts University, and Brown University, where union organising drives were already in progress,
along with legal challenges by the institutions.
In contrast to the NLRB’s denial of collective bargaining rights at private schools, graduate students in public universities often have the
right to organise and bargain under state public sector collective bargaining statutes. The oldest such unit is at the University of
Wisconsin.
Justice ineffective: Remedies for intimidation and coercion, such as the illegal firing of workers who seek to form unions and bargain collectively, are both limited and ineffective. The most recent statistics show that a backlog of some 16,741 cases of unfair labour
practices by employers were pending in 2004. Workers waited a median of 690 days from the filing of a charge until the NLRB
resolved a case, discouraging many from invoking the Board’s procedures to protect their rights. Many employers who violate labour
laws are never punished. Even when they are, the penalties are too weak to deter them from doing it again. According to Human Rights
Watch: “Many employers have come to view remedies like back pay for workers fired because of union activity as a routine cost of
doing business, well worth it to get rid of organising leaders and derail organising efforts”. According to Cornell University research,
one quarter of private sector employers fire at least one worker during union organising campaigns.
The story of the Bakery, Confectionary, Tobacco Workers and Grain Millers at Consolidated Biscuit exemplifies many of the practical
struggles workers face when seeking to organise. Despite the workers’ success in obtaining 70 per cent initial support for unionisation,
in the three months leading up to the election, employer intimidation created a climate of fear in which the workers lost the election. An
administrative law judge found many of the employer’s tactics to be illegal, but by the end of 2005, fired workers had yet to be reinstated after two years because the employer had tied the case up in appeals.
Rash of anti-worker NLRB decisions in 2005 weakens freedom of association: Over the past year, the NLRB has continued to issue a rash of badly-reasoned decisions that severely undercut employee’s labour rights and reduce the number of employees who
are protected under the NLRA. At Flying Foods, for example, the NLRB ruled that the employer was allowed to show new employees an
anti-union film as part of their orientation. In the case of Macerich Management, the Board upheld the right of the company, which
manages shopping centres, to ban picketing at a Californian mall, citing California’s protection of free speech at public shopping locations. The NLRB also held that Johnson Technology lawfully reprimanded an employee for using scrap paper to make a notice about a
union meeting, on the grounds that the scrap paper was the employer’s property.
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The NLRB also restricted the Act’s coverage in 2005. For example, in Wilshire at Lakewood, the NLRB expanded the definition of
“supervisors,” who are not protected under the statute, to include nurses who occasionally discuss the performance of other employees
with management or allow nurses aides to go home when they are sick.
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Voluntary recognition at risk: Since 1935, employers have been allowed to recognise and bargain with a union in the absence of an
NLRB-conducted election, if the union can demonstrate majority support through cards signed by employees. As NLRB enforcement of
worker rights becomes increasingly less effective, workers are struggling to win elections in the face of stiff and often illegal employer
anti-union tactics. Although a recent survey found that 57 million non-union workers would vote for a union if they had a chance, only
70,000 workers in 2005 succeeded in gaining union representation through the NLRB election process. In this environment, voluntary
recognition has become a critical tool to enable workers to organise outside of the NLRB election procedures that thwart their rights.
The legality of voluntary recognition agreements was challenged in 2004 by the NLRB decision to re-examine, at Dana Corporation and
Metaldyne Corporation, the longstanding application of the principle whereby a voluntarily recognised union enjoys a presumption of
majority status for a reasonable period of time. The board will also examine whether it is acceptable for the United Auto Workers
(UAW) and Dana Corporation to have identified, in advance, certain conditions to include in a collective agreement once the union
achieved majority status. An adverse decision by the Board would cause major setbacks in the ability of workers to fulfil their rights of
freedom of association and effective collective bargaining.
Employers use bankruptcy to avoid collective bargaining obligations: 2005 showed a disturbing trend of employers using
the bankruptcy system to declare collective bargaining agreements no longer valid. Employers also use the threat of voiding such agreements as leverage to negotiate wages and benefits downwards or to seek the outsourcing of work.
Auto-parts maker, Delphi, for example, has used the threat that it might ask a bankruptcy court to void its collective bargaining agreement with the UAW as leverage in its push for drastic wage and benefits cuts. Delphi has recently moved to early 2006, the deadline on
which it plans to file to void its labour agreement. Northwest Airlines has threatened to ask a bankruptcy court to void collective agreements. United Airlines and US Airways have both terminated pension plans after filing for bankruptcy.
VIOLATIONS IN 2005
Background: During the year, the Bush administration became increasingly unpopular, due to mounting criticism of the war on Iraq
and because of the poor response to the devastating effects of Hurricane Katrina, which killed hundreds of U.S. citizens in and around
New Orleans.
New York University sets precedent as graduate teaching assistants denied bargaining rights: At New York University,
teaching and research assistants had been working under a collective bargaining agreement that expired August 31, 2005. For two
months the University refused to negotiate with the union, further to the NLRB’s 2004 decision that graduate teaching assistants were
not employees under the NLRA. As a result, the teaching assistants went on strike in November 2005. Many professors have moved
classes to off-campus sites to avoid crossing picket lines, and a number of departments have expressed support for the union’s efforts.
There had been no progress by the end of the year and the strike continued.
NYU was the only private university that had ever bargained with its graduate workers. Thousands of student workers at other schools
had been part of the movement for graduate student unionising, but now face a harsh organising terrain, in the absence of the NLRA’s
legal protections, and in the wake of the NYU precedent of a vindictive employer response. The NLRB has also impounded ballots at several research foundations connected with public universities on the grounds that the employees are also research assistants at the universities.
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Union busting campaign succeeds at Saint Gobain: After an aggressive anti-union campaign, a slim majority of workers at St.
Gobain, a company manufacturing abrasive products for the engineering industry, voted to decertify their union, the UAW, on 26 and 27
January. The union filed charges at the NLRB objecting to the company’s conduct and called for a new election. Local U.S. management at the Massachusetts branch of Saint Gobain Inc., a French owned conglomerate, had been engaged in a classic anti-worker campaign of harassment, intimidation, and coercion. In 2001, more than 600 workers had voted for representation by the UAW, but the
employer refused to recognise the union. Management used stalling tactics to avoid reaching a collective bargaining agreement and, as a
result, workers grew increasingly frustrated. Saint Gobain seized on this disappointment and encouraged its workers to launch a campaign to get rid of their union. Management also continued with its scare tactics. Three days before the decertification vote, a trade
union delegation led by the International Federation of Chemical Energy, Mine & General Workers' Unions (ICEM), presented documentary proof to senior St. Gobain managers in Paris that managers had warned employees that if they were to vote in favour of their
union, it could result in the closure of the plant. The UAW’s case was still pending with the NLRB at the end of the year.
Verizon Wireless workers struggle for rights on the job: Workers in Verizon’s wireless division faced the full range of union
busting tactics from their employer as they sought to organise. In April 2005, 113 members of the United States House of
Representatives urged Verizon’s chief executive to investigate the wireless division’s anti-union activities. Verizon Wireless had signed a
four year neutrality agreement with the Communications Workers of America (CWA), under which it committed itself to remain neutral
during the union’s organising drive. The agreement expired in 2004. Even during the period of the agreement, however, Verizon defied
the agreement and thwarted workers’ hopes for organisation.
Workers took action to the floor of Verizon’s shareholder meeting, questioning the company’s union busting tactics, including its refusal
to combine wireless and wireline services. This would have brought wireless workers under Verizon’s collective bargaining agreement
with CWA for wireline workers.
Chinese Daily News – an example of the failure of labour law to protect workers: After years of struggle, workers at The
Chinese Daily News/World Journal (CDN) have lost any chance of collective bargaining (see the 2005 Survey). This happened, in large
part, because the NLRB has failed to protect or enforce their rights in the face of their employer’s anti-union conduct. In June 2005,
the NLRB dismissed the results of an election in 2001 in which workers voted in favour of union representation and ordered a new vote.
In that decision, the Board overruled a hearing officer who had found no merit in the newspaper’s appeals against the initial election.
Blue Diamond workers take charge of their future: In June 2005, a complaint was filed with the NLRB protesting at the firing of six union supporters at Blue Diamond Growers (BDG), an almond processing plant in Sacramento, California. The company had
consistently blocked efforts by its workers to join the International Longshore and Warehouse Union (ILWU) Local 17. According to the
ILWU, the company told workers that they could not participate in the company pension plan if they were part of a union. Blue
Diamond also bombarded the workers with more than 30 anti-union flyers and forced them to attend individual and small group meetings where they were fed anti-union propaganda. The company’s own spokesperson stated in a local paper that it had organised on “an
aggressive union avoidance campaign”. After a three month investigation, the NLRB found strong evidence that Blue Diamond broke
the law, and issued a complaint against the company citing 28 separate violations by 14 managers and supervisors. An NLRB administrative law judge began hearing the case on 5 December.
Fired for union activism: Nikkia Parish and Brian Corman, dancers with the Washington Ballet, were informed in February 2005
that their contracts would not be renewed after the spring season. The American Guild of Musical Artists (AGMA) believed that they
were discriminated against in retaliation for their union activities. Nikkia Parish, who had been pursuing a successful career at the company, had become alarmed at the frequency of injuries. When elected by fellow dancers as their representative, she raised her concerns
and proposed solutions, such as better schedules and regular breaks. She also added her voice to the growing campaign to organise
workers at the Washington Ballet. In December 2004, workers signed a petition to be represented by the AGMA. The AGMA called on
Nikkia Parish and Brian Corman to stand as union representatives. On 14 February 2005, the dancers voted to allow the AGMA to rep-
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resent them. All the dancers had their contracts renewed another year, except Parish and Corman. The NLRB investigated the dismissals
and decided the case had sufficient merit to go before an NLRB administrative law judge. Brian Corman was later rehired by the company, but the AGMA lawyer pointed out the fact that sacking the two dancers had had an intimidating effect on their colleagues.
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Venezuela
POPULATION: 26,200,000 / CAPITAL: CARACAS / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
§
Venezuela’s law and Constitution remained in breach of international treaties on trade union
rights, including key ILO Conventions which it has ratified. After taking four years to rule
on an alleged fraud in union elections, the authorities finally cancelled the 2001
election of the Executive Committee of the country’s main trade union organisation, the
CTV. They also issued new regulations on trade union elections, allowing for interference by
the National Electoral Council. That body is appointed by the National Assembly, which is
entirely controlled by parties loyal to President Hugo Chavez, since an opposition boycott of
national elections in December. The CTV President was arrested in February and sentenced
in December to a long prison term for civil rebellion. The charges related in part to his role
in a failed coup d’état in April 2002. He claimed the sentence was in retribution for his leading an oil strike which crippled the oil industry in December of that year. Chavez, since an
opposition boycott of national elections in December. The CTV President was arrested in
February and sentenced in December to a long prison term for civil rebellion. The charges
related in part to his role in a failed coup d’état in April 2002. He claimed the sentence was
in retribution for his leading an oil strike which crippled the oil industry in December of that
year.
Restriction of freedom of association in the LOT: The Constitution of 1999 and the 1990 employment law (“Organic Labour
Act” or “Ley Orgánica del Trabajo”, LOT), promote freedom of association for all workers, apart from members of the armed forces.
Certain legislative measures contradict the stated desire to respect freedom of association.
Promised improvements fail to materialise: A draft law – entitled the “Organic Law Reforming the Organic Labour Act” – has
been on the statute book for years. If adopted, it would make some improvements to the legislation. It incorporates some of the comments made by the ILO over a number of years and was approved at its first reading in June 2003. However, in spite of repeated promises by the government to the ILO, the law had still not been adopted by the end of the year. According to the government, in a letter sent
to the ILO, the bill was “in its second and final reading by the National Assembly” in October 2005.
The draft law repeals articles 408 and 409 of the LOT, which contains an excessively long list of the tasks and aims that workers' organisations should set themselves. It also modifies Article 418, reducing the excessively high number of workers required to establish independent trade unions from 100 to 40. Similarly, the unduly long period of residence required by Article 404 before foreign workers are
allowed to stand for leadership of a trade union is reduced from 10 to five years. In addition, the draft law will allow a union to negotiate collective agreements for its own members, even if it has not affiliated an absolute majority of a given workforce. It will also increase
protection against anti-union discrimination and interference by introducing effective sanctions.
The draft law also interferes in trade union affairs however by limiting the mandate of a union executive to three years. In October
2004, an ILO direct contact mission stressed the need to include in the draft law a provision expressly allowing for the re-election of
trade union leaders. The ILO repeated these comments in 2005 but the government had failed to take action by the end of the year.
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Interference in union affairs allowed by the Constitution: Whilst containing some innovative elements on human rights, the
Constitution also contains some provisions which constitute interference in internal trade union affairs. Under the pretext of guaranteeing fresh union elections at the end of each mandate, Article 95 of the Constitution requires union constitutions to make their leaders'
mandates non-renewable and submitted to a universal, direct and secret ballot.
National Electoral Council: Article 293 of the Constitution compounds this interference by delegating the calling, organisation and
supervision of trade union elections to a National Electoral Council (CNE), until such time as new laws contained in the Constitution are
introduced. However, in November 2002, Article 33 of the new law on elections stipulated that the CNE was the body in sole charge of
organising union elections, but must respect their autonomy and independence, in accordance with international treaties. Article 33
remains in breach of freedom of association by making the CNE responsible for organising union elections, announcing the elected candidates, noting and announcing the annulment of an election, investigating the resources available and resolving disputes.
The ILO has objected for several years to the role assigned by the Constitution and the law to the National Electoral Council in organising and supervising trade union elections, including the power to cancel elections; it has considered that the organisation of elections
should be exclusively a matter for the organisations concerned, in accordance with Article 3 of Convention No. 87, and that the power
to cancel elections should be given only to an independent judiciary, which alone can provide sufficient guarantees of the right to defence
and due process . Although the government contends that the CNE is “fully independent from the other branches of government”, the
ILO has noted that, under art. 296 of the Constitution, it is in fact appointed by the National Assembly. The ILO therefore considers that
“the CNE is not an independent judicial body which could afford sufficient guarantees of the right of defence and due process and, consequently, it should not have the authority to declare trade union elections null and void”.
CNE statute on trade union elections: The “Statute on the election of trade union officials”, enacted by the CNE on 20
December 2004, contains very meticulous, detailed and binding rules on elections in trade unions, federations and confederations, and
gives the CNE a central role in the various stages of the election process, including the preparatory phase and the post-election phase.
Amongst other prerogatives, it grants it the right to rule on any appeals presented. The ILO Committee on Freedom of Association considers that, in the form it was adopted in 2004, this Statute constitutes a “serious breach” of Art. 3 of ILO Convention 87, which guarantees the right of workers’ and employers’ organisations to elect their representatives in full freedom. It has consequently asked that
the Statute be amended “without delay”, in order to make it compatible with the Convention.
The ILO has also urged the government to speed up the process of adoption by the National Assembly of the draft “Organic Law” which
should grant the CNE the possibility to intervene in trade union elections only at the request of trade union organisations.
Unions ordered to submit members’ identity: On 3 February 2005, the Ministry of Labour issued a Resolution (n° 3538) giving
trade union organisations 30 days to provide information on their administration and register of members in a form that includes each
worker’s full identity, place of residence and signature. In doing so, the Confederación de Trabajadores de Venezuela (CTV) claims, the
government has demonstrated its lack of impartiality and trade union members risk acts of anti-trade union discrimination. Commenting
on these new regulations, the ILO has ruled that “the confidentiality of trade union membership should be ensured” and suggested that
a code of conduct should be established between trade unions, which would govern “conditions in which membership data is to be
supplied, with the use of appropriate means of personal data processing, with guarantees of absolute confidentiality”.
The government's policies on freedom of association continued to be heavily influenced by the political context. Industrial relations deteriorated further since the demands of workers were associated with the verbal attacks on the government, despite the government's
desire to silence the dissent prevalent in the country. The repeated attacks by the authorities on trade unions opposing the interventionist
policies of President Hugo Chávez Frías continued to negatively influence trade union rights, in contrast to the government's claim to be
respecting human rights.
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Limitations on social dialogue: Nearly four years after the 2001 trade union elections, in which the CTV, the main confederation in
the country and an ICFTU affiliate, had won nearly 69% of the vote, the National Electoral Council (CNE) issued its ruling in a case of
fraud alleged to have taken place during those elections (see below: “Violations in 2005”). Ever since these elections, the government
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had refused to recognise de jure the Executive Committee of the CTV and had privileged a rival union organisation, UNT, which it had
helped to establish. This attitude continued in 2005. Although the authorities purportedly included the CTV in various social dialogue
bodies, the CTV – as well as the national employers’ organisation – claimed that little progress, if any, had been achieved. In December,
the ILO Committee of Experts considered that “the fact that meetings are held does not necessarily ensure that there are meaningful
consultations and agreements”. The Committee consequently requested the government to “enhance dialogue with the most representative organisations”.
Unions resist interference in internal elections: Faced with the possibility that the CNE would issue regulations providing it
with undue capacity to intervene in union elections, the main union organisations - CTV, UNT, CUTV, CODESA and CGT – had in
November 2004 issued a joint statement calling on the CNE to refrain from issuing regulations governing the electoral procedures of
union organisations, and to restrict its involvement to providing the technical and logistical support requested by the unions and ensuring
that these procedures were applied in accordance with the unions’ constitutions. But, on 20 December 2004 the CNE did indeed issue a
Regulation containing rules on the election of trade union governing bodies, thereby totally ignoring the comments made by the union
organisations. (See below: “Violations in 2005”).
VIOLATIONS IN 2005
Background: Deep political divisions continued to affect the country throughout 2005. President Chavez signed a decree on land
reform, saying land redistribution would bring justice to the rural poor, while ranchers said the move was an attack on private property.
Rising petroleum prices on world markets appeared to strengthen Chavez’s grip on power, while critics said poverty was in fact increasing, owing to the government’s mismanagement of the country’s vast oil resources.
Cancellation of 2001 union elections: On 12 January, the (CNE) issued a resolution under which it cancelled the 2001 elections
of the CTV Executive Committee. The government had refused to recognise the CTV leadership ever since the results of the 2001 elections had been challenged, and as the ILO observed the January 2005 decision was taken in the last year of the term of office of the
CTV’s Executive Committee, which meant that it was too late for any judicial action. According to the ILO, the CNE’s decision constitutes a “serious violation” of art. 3 of Convention 87. It has urged the government to ensure that the next trade union elections are held
“without any interference” by the CNE.
CTV President sentenced to heavy prison term: Carlos Ortega, President of the country’s largest trade union organisation, the
ICFTU-affíliated CTV, was detained on 28 February and formally arrested on 1 March on charges of civil rebellion. He had reportedly
been captured in a Caracas nightclub after he returned to Venezuela from Costa Rica, where he had been granted political asylum.
However, due to his critical remarks against the Chavez government, the Costa Rican authorities had asked him to waive asylum and
leave the country. The move was unnecessary, however, as the union leader had already returned in secret to Venezuela.
After six hearings in a trial started on 16 November, Ortega was sentenced on 11 December to 15 years, 11 months and five days in
prison, following a trial for civil rebellion, incitement to commit a crime and use of forged identity documents. The charges related in
part to his role in a filed coup d’état in April 2002, but they also referred, to a large extent, to his leading role in a general strike which
had lasted from December 2002 to January 2003 which had paralysed the national oil company, PDVSA, and, according to the government, had cost the country over 14 billion US dollars. Both Ortega and his defence lawyers complained about numerous irregularities
during the proceedings.
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Ortega was expected to serve his sentence at the military penal centre Cepromil, also known as Ramo Verde. At year’s end, his lawyers
indicated they would appeal the sentence, exhausting all available national procedures, before appealing to international bodies. Their
client said he was not surprised by the ruling and planned on “continuing to work for democracy from prison”.
Collective bargaining results cancelled unilaterally: In December, 18,000 teachers from Maracay (Aragua State) protested at
a new policy introduced by the government, which unilaterally eliminated compensation for teachers working in remote or difficult
areas, which their union had obtained through collective bargaining.
Threats against teachers’ union meetings: Also in December, Oswaldo Pantoja, the General Secretary of one of the largest
teachers unions, Sitraenseñanza, reported that Ministry of Education officials in Miranda were intimidating teachers who had signed
petitions in the 2004 political referendum, which had confirmed Hugo Chavez’s presidency. According to Pantoja, the officials used
threats, firings, and compulsory transfers to different schools. Ministry officials also threatened teachers who had planned a union meeting, indicating they would be placed under observation and telling them that all those who attended in the meeting would face disciplinary action. Three hundred teachers had reportedly been fired in the preceding weeks and months.
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There was a disturbing level of violence against trade unionists,
often as a result of police repression against strikes and protests.
Particularly violent incidents were reported in Bangladesh,
Cambodia, China, India, South Korea and the Philippines. In
many countries in the region the strikes were technically illegal,
usually because strike legislation is so cumbersome as to make
legal strikes virtually impossible.
Some of the most serious incidents were reported in Bangladesh.
Hundreds of striking workers were injured, some seriously, when
police brutally attacked striking workers in three separate incidents. In each case they were protesting at management ill-treatment, including physical violence, of workers. In India over 300
protesting trade unionists were seriously injured as a result of
police intervention. In Cambodia a peaceful protest by factory
workers over unpaid wages was broken up by police using truncheons, rifle butts and tear gas, while in South Korea police violence was regularly used to break up workers’ protests and
demonstrations. In the Philippines too, serious violence against
labour leaders and activists occurred with impunity.
Trade unionists died for their activities, usually as a result of
police violence, in Bangladesh, South Korea and the Philippines.
In Bangladesh, three trade unionists were killed, and hundreds
injured, when police intervened in a protest at the Sinha Textile
Mills in November. In South Korea, Kim Tae-hwan, of the
Federation of Korean Trade Unions was killed when he was run
over by a cement truck while on a picket line. In the Philippines,
at least four union leaders were murdered in separate incidents.
Diosdado Fortuna, leader of the food and drug industry union was
shot dead by two unidentified gunmen, Victoria Ramonte of the
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Andres Soriano College Employees’ Union was stabbed to death,
Ricardo Ramos, President of the Sugar Workers’ Union was shot
and killed, and a local union president of a transport group also
died at the hands of gunmen.
Anti-union hostility remained rife in the export processing zones
(EPZs). Problems were reported in Bangladesh, India, Pakistan,
the Philippines and of course Sri Lanka, where WorkWear Lanka
continued to wage an anti-union campaign.
Women are frequently the main target of the anti-union hostility
described above, given that the industries targeted, notably textile
and electronics companies, especially in the EPZs, have a predominantly female workforce, while in the public sector many
education workers and public sector workers are women.
Many of the problems reported in previous years persisted. The
Free Trade Union of Workers of the Kingdom of Cambodia
(FTUWKC) still faced problems. Chea Mony, FTUWKC president
and brother of the murdered former leader of the union Chea
Vichea, faced five hours of police interrogation. At the end of the
year he was in self-imposed exile in fear of his life, while the
president of the Cambodian teachers’ association, Rong Chhun,
was in prison on charges of defamation. In Nepal all trade
union rights were suspended in a State of Emergency declared by
King Gyanendra following his coup d’Etat on 1 February. Many
trade union leaders were arrested and held in preventive detention
while others were driven into hiding.
In Burma the total suppression of trade union rights continued.
Ten organisers from the independent national centre FTUB
received prison sentences ranging from three to 25 years, and one
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died in prison after five months. In China dozens of independent
labour activists jailed in previous years remained there. There
was violent police suppression of workers’ protests, with unconfirmed reports that two women protestors had been killed. There
are still no trade union rights in North Korea, Laos or the
Maldives, while in Vietnam the single trade union federation
remains firmly under Communist Party control.
Migrant workers often fared badly. In South Korea the government refused to recognise the newly-formed migrant workers’
trade union, whose president was arrested and savagely beaten by
police. In Thailand migrant workers were threatened and blacklisted for their union activities.
The region’s newest independent country, East Timor, marks its
entry into the Survey this year for the weak enforcement of laws
protecting workers’ rights, particularly in foreign companies.
Finally, in the fully industrialised countries, strong legal restrictions on trade union rights in Japan’s public service remained in
place, and in December the government decided unilaterally on
severe job cuts. Australia’s government again proved itself to be
one of the most severely anti-union in the industrialised world,
bringing in new legislation that imposed heavy restrictions on
union organising and collective bargaining rights. The new laws
gave employers greater powers to push workers onto individual
contracts and removed protection from unfair dismissal for most
workers.
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Australia
POPULATION: 20,300,000 / CAPITAL: CANBERRA / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111
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It was a difficult year for Australian trade unions. New legislation that was finally passed at
the end of the year imposed heavy restrictions on union organising and collective bargaining
rights; gave employers greater powers to push workers onto individual employment contracts; removed protection from unfair dismissal for most workers, and weakened mechanisms for setting minimum wages.
The law establishes freedom of association for workers, including those in the public sector, and the right to bargain collectively, but
increasing restrictions have been imposed on those rights. While the law affords protection from anti-union discrimination, this has been
watered down, so that an employer is only prohibited from discrimination against a union activist if that is the “sole or dominant reason” for the less favourable treatment.
New Workplace Relations Act: On 2 December 2005 a series of Workplace Relations Amendment Bills became law. The bills
undermine many basic workers’ rights, particularly collective bargaining rights. The original 1996 Workplace Relations Act (WRA)
already contained curbs on trade unions and restrictions on strikes and radically altered the nature of collective bargaining.
Collective bargaining undermined: Once the WRA was passed, the negotiation of contracts covering wages and working conditions
shifted from the centralised collective agreements system to enterprise-level agreements and, under the recent amendments, to individual
agreements.
The Act places union and non-union collective agreements on the same footing and gives preference to workplace or enterprise level bargaining over other levels. Multi-employer agreements can only be negotiated if the employees gain prior approval form the Employment
Advocate. Unions are not able to seek approval for multi-employer bargaining, and unions are liable to fines and damages if they pursue
pattern agreements across two or more employers.
At the same time, the Act limits the access of union representatives to the workplace.
A majority of the whole workforce must approve a collective agreement.
Australian Workplace Agreements: Australian Workplace Agreements (AWAs) are enforceable, individual agreements negotiated
between an employee or their agent and management. AWAs are subject to far fewer government regulations than awards or enterprise
bargaining agreements. Under the previous law they were supposed to improve upon the working conditions found in a comparable samesector award. But, under the new laws, they need only meet five basic requirements, and can legally remove a number of employee
rights, such as retrenchment pay, meal breaks, and penalty rates for long, unsocial or irregular hours of work. Their actual content is
confidential. Thus they cannot be checked for breaches of minimum wages and employment conditions. AWAs have primacy over federal
and state awards or agreements. Once an AWA is in force it cannot be displaced by a collective agreement. However, a collective agreement may be overridden at any time by an AWA.
Restrictions on the right to strike: The WRA also sets out considerable restrictions on the right to strike and sets relatively high
penalties for breaking the law. Strikers negotiating multi-business collective agreements are not protected against dismissal or other
sanctions. The restrictions on strikes include heavy fines for industrial action during the life of a collective agreement and tough secondary boycott provisions. The WRA dictates that strikes may only occur during the negotiation of a new enterprise agreement, that they
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must relate to the issues being negotiated. This is known as “protected action”. Protected action provides employers, employees and
unions with legal immunity from claims incurred by industrial action.
Strike pay and a range of other matters considered to be “not pertaining to the employment relationship”, such as limits on the number
of contractors that can be engaged, cannot be a subject for negotiation. All strike pay is unlawful, and both employers and employees
face fines for making or receiving strike pay.
Workers cannot take protected action in pursuit of a pattern agreement, and all industrial action must be authorised by a secret ballot
of employees.
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The law also allows industrial action to be banned if it disrupts national economic or commercial activity. This is clearly in contradiction
with international jurisprudence on the right to strike, which states that strikes may be restricted or prohibited only in certain cases,
including acute national emergency, and essential services, which are defined as those the interruption of which threatens the life or
safety of part of the population. A threat to trade is not included in the cases in which strikes may be prohibited, but the Australian government has ignored ILO recommendations to lift the ban.
The new laws also make it unlawful for a union to seek, or an employer to agree to, paid time off for union meetings, paid leave to
attend training provided by a union, and a range of other matters. Unions breaching these laws are open to substantial fines.
Dismissal: The Act establishes an unfair dismissal system which further limits redress and compensation claims by dismissed workers.
The new laws also make it unlawful for a union to seek, or an employer to agree to provide a remedy against harsh or unjust dismissal
in a collective agreement. Unions seeking such protection are open to substantial fines.
2005 WorkChoice legislation severely cuts basic rights:
More power to employers to impose individual contracts: Under the revised 2005 laws, any worker can be put onto an AWA
individual contract at any time. The conditions guaranteed by collective agreements are not protected when a worker is transferred to an
AWA. Hence, take home pay can be cut, and provisions regarding overtime, meal breaks, public holiday penalty rates, weekend rates
and redundancy pay can all be lost. Practice suggests that this is, and will be, the case. There is no obligation on an employer to negotiate a collective agreement with their employees, even if 100 per cent of workers in a workplace are union members and want a collective agreement.
The new laws also scrap the yearly review of minimum wages by the Industrial Relations Commission. The Prime Minister refused to
guarantee that the real value of minimum wages would be maintained.
More power to employers to prevent industrial action: Employers and other third parties who are not even involved in a dispute will now be able to prevent employees from taking industrial action under the legislation.
The new legislation provides for cooling-off periods during industrial disputes, and suspends bargaining periods where industrial action
threatens to cause significant damage to third parties. It also allows those affected third parties to apply to end industrial action.
Restricting union access to workplaces: The new law severely curtails the right of union representatives to visit workplaces,
thereby restricting their ability to ensure that workplaces are safe, to advise employees of their rights and to recruit members. The Act
includes a rigid set of requirements for unions seeking to enter workplaces, including very detailed written information; a limit on visiting workplaces to sign up new members to twice a year; a ban on including “right of entry” provisions in Certified Agreements; and a
lifetime ban on visiting workplaces for union officials who breach the new laws.
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Exempting 99 percent of private sector employers from unfair dismissal laws: All workers in business with less than 100
staff no longer have protection from unfair dismissal.
The government’s argument was that it would significantly reduce unemployment, although the Federal Court concluded that there was no link
between unfair dismissal laws and employment, while a previous Senate inquiry found that it would have a negative impact on employment.
In workplaces where there are more than 100 employees, a new defence to an unfair dismissal claim has been introduced, whereby an
employer can prevent the claim form proceeding if they can show the dismissal was on operational grounds. This is defined as including
economic, technical and structural reasons. Within a week of the law’s passage, 29 meat workers were dismissed and offered their jobs
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back at reduced rates, purportedly under this law. Following widespread media commentary, the dismissals were withdrawn, and the
scope of the defence remains untested.
New building industry Act restricts union rights: As promised, Australia’s conservative government re-introduced its controversial
Building and Construction Industry Improvement Bill, rejected by the Senate the previous year. The Bill was passed into law on 12
September 2005. The initial 2003 Bill had been the subject of much criticism, including by the ILO’s Committee on Freedom of Association,
for restricting collective bargaining and industrial action. The new version removed some of the restrictions contained in the initial bill, but
still fell short of international labour standards. Notably, it imposes even stronger limitations on the right to strike than the WRA, imposing
a blanket prohibition on unprotected action (i.e. strike action not specifically protected by the WRA) and introduces the notion of “unlawful
industrial action”, accompanied by severe penalties and sanctions (of up to A$110,000 for bodies corporate and A$22,000 for individuals).
The Act also interferes in collective bargaining through a list of provisions that render project agreements (i.e. those negotiated at a multiemployer level) unenforceable, and by restricting the issues that can be the subject of collective bargaining. Furthermore, the Act gives considerable powers to the Australian Building and Construction Commissioner (ABCC) to investigate compliance with the law, including the
power to enter premises and confiscate documents. There are insufficient safeguards against interference in trade union activities.
Western Australia – more rights than at federal level: In August 2002, the Western Australian Labour government enacted
the Labour Relations Reform Act. The Act repealed laws that permitted individual contracts to override collective agreements, reversed
many of the discriminatory measures against trade unions contained in 1997 legislation, and removed requirements that unions undertake complicated pre-strike ballots.
Queensland – possible sanctions for protest action: In Queensland, the 1999 law on labour relations states that an organisation’s registration can be cancelled if its members participate in protest action that prevents or disrupts economic or commercial activity
or the provision of a public service.
AWAs used to undermine unions: Employers use the legislation on workplace agreements to undermine collective bargaining and
promote individual agreements. Australian Bureau of Statistics (ABS) figures show that most workers on AWAs are paid between
A$100 to A$193 less per week than workers doing similar work under collective union agreements.
There has been a marked increase in individual workplace agreements, which is redefining employer-employee relations. The number of
AWAs approved rose sharply from 290,029 signed between 1997 and 2002 to 570,000 by October 2004.
The drive to shift more workers onto AWAs was particularly strong in Victoria, where, in 2004, small business employers sought to
move thousands of employees onto individual contracts before the introduction in 2005 of the “common rule” formula, whereby workers
not covered by federal awards would enjoy equal benefits to their counterparts who were covered by awards.
At the time of writing, however, AWAs still only covered three per cent of workers. The new laws are expected to see strong growth in
the use of AWAs.
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VIOLATIONS IN 2005
Background: January saw the worst bush fires for more than 20 years, killing at least nine people in South Australia. In November,
Parliament began to debate controversial new anti-terrorism laws, while in December, Sydney was hit by racial violence involving thousands of youths. Huge public demonstrations in protest at the government’s proposed industrial relations laws took place in May, and
again in November, thought to be the country’s biggest ever mobilisation, involving some 500,000 people around the country.
Sacked for refusing to sign individual contracts: Merbein Mushroom Investments sacked six women workers in February
because they refused to sign AWAs that would have cut their weekly take home pay by over 25 per cent. The new agreement imposed by
the company on its workers replaced the hourly pay rate with a “piece” rate per kilogram that in practice gave them an average of
A$150 a week less. The remaining 39 workers did agree to sign and their pay fell as a result.
In a similar case, a carpenter who had worked for the housing construction company Masterton Homes was sacked after he refused to
sign an individual contract. He was asked to agree to an AWA that would have lost him many of the rights he had under the union-negotiated collective agreement, including overtime and penalty rates. He was reluctant to sign and asked that he bring a representative of
the Construction, Forestry, Mining and Energy Union (CFMEU) with him at the next meeting with the company. The following day he
was made redundant.
Unfair dismissal of union safety officer: On 10 October, the John Holland construction company dismissed Rick Kavanagh, a
health and safety representative for the Construction, Forestry, Mining and Energy Union, CFMEU. The CFMEU were convinced that
the union representative had been dismissed as a direct result of his proactive approach towards maintaining a safe workplace on the
construction project. Four days later the Western Australian Industrial Relations Commission ordered the suspension of Mr. Kavanagh’s
termination. The company had earlier unsuccessfully tried to dismiss a shop steward, and had sought to withdraw from the collective
agreement with the CFMEU.
Hardie tries to divide and weaken collective agreement: When workers’ at the James Hardie building products company
sought to negotiate a new collective agreement to improve their pay and conditions, the company’s response was to try to divide their
collective agreement in two, thereby potentially weakening their bargaining position. The workers at the companies Meeandah and
Carole Park facilities in Brisbane, Queensland, had hitherto been covered by a single collective agreement between James Hardie and
the Australian Manufacturing Workers’ Union (AMWU). The dispute led to protests, strikes and lockouts in October. Managers at both
plants punished workers by withholding production bonuses amounting to A$1,200 per worker. The company had made the headlines
when it was forced in December 2004, following a lengthy battle, to pay A$4.5 billion in compensation to workers suffering from deadly
asbestos-related diseases, which developed as a result of working with Hardie products.
Refusal to negotiate collective agreement: Boeing consistently refused to negotiate a collective agreement with 25 AWU members employed at the Williamstown Royal Australian Air Force base in New South Wales, leading to a lengthy strike. It was acknowledged by the Australian Industrial Relations Commission that it has no power to assist employees when their employer simply refuses to
bargain. The workers returned to work following intervention by the New South Wales government.
Anti-union legislation passed: The adoption on 2 December of the WorkChoices legislation marked a radical shake up of industrial
relations, severely undermining basic trade union rights (see “Trade Union Rights in Law”) and confirming the government’s drive to
force workers onto individual agreements. “We should be trying to move to an industrial relations system where the predominant instrument is the individual contract” said Federal Government Treasurer Peter Costello. Democrat politicians were concerned at the way the
legislation appeared to have been forced through parliament, with little time for proper debate, and at the vast cost of producing the
legislation. The advertising campaign alone was said to have cost over A$40 million.
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POPULATION: 152,600,000 / CAPITAL: DHAKA / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 182
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Consistent anti-union discrimination by employers ensured Bangladesh maintained it sorry
reputation as one of the worst countries for trade union rights violations in the region.
Collective protest action by textile workers in July and October, for example, resulted in
fierce retaliation by police, leaving hundreds injured. Legal limitations on union recognition,
the right to strike and collective bargaining remain firmly in place.
Many restrictions: The Constitution provides for the right to form or join unions. There are many restrictions, however. Before a
union can be registered, 30 per cent of workers in an enterprise have to be members and the union can be dissolved if its membership
falls below this level. The ILO has informed the government that this is a clear barrier to freedom of association and recommended the
law be amended, but that advice has been continuously ignored (see case of Immaculate Pvt. Ltd.).
Unions must have government approval to be registered, and no trade union action can be taken prior to registration.
Candidates for union office have to be current or former employees of an establishment or group of establishments. The Registrar of
Trade Unions has wide powers to interfere in internal union affairs. He can enter union premises and inspect documents. The registrar
may also cancel the registration of a union, with Labour Court approval.
The ILO also recommended that the government do away with provisions that force unions to be “enterprise” unions, because the law
prevents the registration of any union which has different workers from different workplaces, owned by different owners.
Exclusions from union membership: Under the Industrial Relations Ordinance, workers in the public sector and state enterprises
may not belong to a trade union, with the exception of railway, postal and telecommunications workers. Members of the security forces
are also denied the right to form unions. Teachers are also forbidden to form trade unions, in either the public or private sector.
Managerial and administrative employees can form welfare associations, but they are denied the right to join a union.
Right to strike not recognised: The right to strike is not specifically recognised in law. Three quarters of a union’s members must
agree to a strike before it can go ahead. The government can ban any strike if it continues beyond 30 days (in which case it is referred to
the Labour Court for adjudication), if it involves a public service covered by the Essential Services Ordinance or if it is considered a
threat to the national interest. In this last case, the 1974 Special Powers Act can be used to detain trade unionists without charge. The
government may ban strikes for renewable periods of three months.
Sentences of up to 14 years’ forced labour can be passed for offences such as “obstruction of transport”.
Collective bargaining limited: Only registered unions can engage in collective bargaining, and each union must nominate representatives to a Collective Bargaining Authority (CBA) committee, which is subject to approval by the Registrar of Trade Unions. The
National Pay and Wages Commission, whose recommendations are binding, sets public sector workers’ pay levels and other benefits.
EPZ Law – significant restrictions continue: The EPZ Trade Union and Industrial Relations Bill 2004 provides for the formation of trade unions in EPZs from 1 November 2006. The ILO Committee on Freedom of Association recommended numerous amendments to the law to bring it into compliance with Conventions no. 87 and 98 which Bangladesh has ratified. During the year, the government of Bangladesh fundamentally failed to take any appreciable steps to comply with the ILO CFA’s ruling.
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The law foresees the phased introduction of freedom of association, providing for a different type of workers’ organisation at each stage.
It does not go so far as to say that trade unions with full associational rights will be allowed to exist in EPZs after the last stage outlined, which will be after 1 November 2008.
Stage one – worker representation and welfare committees: In 2005, workers were still at the first stage of the law. They
were only allowed to set up Worker Representation and Welfare Committees (WRWC), which must be established through secret ballot.
The law requires all enterprises in the EPZ to have one WRWC. WRWC elected representatives have the power to negotiate and sign
collective agreements, but not to strike or organise demonstrations.
Under the law, all WRWCs will cease to exist on 31 October 2006. The only way for a WRWC to continue is if the employer gives an
explicit agreement that the WRWC should do so. It is unclear whether an employer’s decision to continue the WRWC will require an
election for a new leadership of the WRWC. Many observers believe that the EPZ employers will interpret the law in this fashion, and
use this opportunity to effectively rig new WRWC elections to ensure that leaders who are more compliant with employers’ interests are
elected.
Stage two – workers’ associations: The second stage of the law starts on 1 November 2006. A trade union, referred to as a
Workers’ Association (WA) in the law, can be organised provided over 30 per cent of the workforce requests that the association should
be set up.
The Bangladesh Export Processing Zone Authority (BEPZA) will organise a referendum, in which more than 50 per cent of the workers
in the factory must vote affirmatively for the WA to be formed.
In new enterprises that start operations after 1 November 2006, workers are not permitted to form an association for the first three
months after the commencement of commercial activities.
Only one federation can be formed per EPZ, and over 50 per cent of the registered WA in the zone must vote to affiliate before a federation can be formed.
The BEPZA Executive Chairman also has almost unlimited authority to deregister a Workers’ Association, should he determine that the
WA has committed an “unfair practice”, contravened any part of the WA’s own constitution, violated any aspect of the EPZ Law, or
failed to submit a report to him. Essentially, the law has made illegal the right of workers to talk about unions in their workplaces or to
engage in pressure tactics to persuade recalcitrant employers to sign a collective agreement.
Finally, the law explicitly forbids any strikes in the EPZ until 31 October 2008.
Frequent bans on assembly: The law allows the government to ban any public gathering of more than four people, ostensibly only
in cases where “public order” or “public health” are at risk. In fact, the government applied this banning power much more indiscriminately, banning 73 different public events in the first eight months of 2005.
The trade union movement is relatively weak in Bangladesh. This is partly owing to the multiplicity of trade unions - there are 5,450
unions affiliated with 25 officially registered national trade union centres - and partly owing to the considerable intimidation imposed in
practice, especially workers’ fear of losing their jobs should they show any sign of union activity. The right to freedom of association and
to collective bargaining at the workplace is not respected in the garment sector or on the tea estates.
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Strike bans: The government makes regular use of the Essential Services Ordinance in order to ban strikes. The government’s use of
this order was continuously applied over the past three years to the Power Development Board, the Dhaka Electric Supply Authority, the
Chittagong Port Authority, Biman Airlines, and the Bangladesh Petroleum Corporation.
Restrictions on bargaining and union meetings: Since 2003, the government has banned any collective bargaining in jute mills
during production time. In the past, the government has also levied this temporary ban on bargaining, which is renewable every three
months, on other groups of workers, including shipping employees, pilots with the national airline, and those working in the water supply
sector.
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Only pro-government supporters are allowed to hold meetings during work time and unions not affiliated with the government’s labour
grouping are not allowed to hold protests even on their day off.
Employers take advantage of legal loopholes: Private sector workers are discouraged from undertaking any union activity. The
Industrial Relations Ordinance gives considerable leeway for discrimination against union members and organisers by employers.
Workers who try to create a trade union are not protected before registration and are therefore often persecuted by their employers,
sometimes by violent means or with the help of the police. The names of workers who apply for union registration are frequently passed
on to employers who promptly transfer or dismiss them, particularly in the textile sector. Even after registration, workers suspected of
carrying out trade union activities are regularly harassed. One popular ploy is to dismiss a worker for misconduct, as they are then no
longer entitled to become a trade union officer. A complaint to the Labour Court is of little use given the underlying corruption and serious backlog of cases which, in some instances, can stretch back more than several years.
Export processing zones – anti-union employers: Employers in the EPZs have been consistently hostile towards trade unions,
claiming that many of the companies would be ruined and jobs would be lost if they had to have unions. Some employers in the zones
take advantage of the absence of trade unions to commit violations of international labour standards, such as sexual harassment, physical violence, unpaid overtime, child labour, non-compliance with minimum wage regulations and deplorable safety conditions.
In elections for workers’ committees overseen by the BEPZA, workers made numerous reports of employer interference, or irregularities
in the election process. Discrimination against leaders of active WRWCs was reported, and an undetermined yet significant number of
these leaders and activist members were terminated with permission from the BEPZA in processes that workers claimed were biased and
unfair. Since there is no dispute resolution mechanism or tribunal for workers, except to appeal to the BEPZA, workers in the EPZs had
few other options but to protest.
Garment industry anti-union: Textile workers outside the zones fare no better. An estimated two million women workers toil for
3,300 employers to make clothes for export in Bangladesh. Workers are regularly sacked, beaten or subjected to false charges by the
police for being active in unions. The General Secretary of the United Federation of Garment Workers (UGFW) has been arrested 12
times. Meanwhile, the country’s garment workers are among the lowest paid in the world. They work long hours with very little leave,
and face physical, verbal and sexual abuse.
Employer negligence and government indifference kills hundreds of workers: The following example illustrates the consequences of negligence by employers and the authorities that a strong, vigilant trade union could help to avoid. Based on its analysis of
publicly available sources, the respected Bangladesh Institute for Labour Studies found that in 2005, there were 480 workers killed by
accidents or violence against workers in the workplace, and 950 injured. The ready-made garment sector led the way in its toll on workers, with 130 killed, and 480 hurt or maimed. On 22 January 2005, for example, 22 women workers were killed and over 50 injured in
a fire that broke out during a night shift at the Shan Knitting and Processing Mill. The factory gate was locked. On 11 April 2005, 64
workers were killed and another 84 injured when the nine storey Spectrum garment factory collapsed. The building was only three years
old and had been built in defiance of all building regulations.
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In September, after a number of grievous factory fires during the first nine months of the year, the Commerce Minister stated that the
government was planning to amend the Factories Act of 1965 to provide better protection for workers, and added that taskforces on
occupational safety and health, and on labour welfare, had been created to carry out this work. Yet, by the end of the year, the pledges
still remained just that – no concrete progress had been made in changing the law.
Ship recycling industry effectively prohibits unions: The Bangladeshi ship recycling industry is based at Chittagong Port.
Workers are employed on an as-needs basis, have no contract and do not sign any document which could link them to a specific yard.
Thus workers have no legal recourse in the event of a dispute. Largely owing to the fear instilled in them – through violence and the precariousness of their employment situation - workers have no way of standing up for their rights or even claiming their dues. Any claim
would provoke instant dismissal. Unions are de facto forbidden on the sites and union organisers find it very difficult to gain access.
No progress on legislation: Despite promises some years ago to “examine the issue”, the government has not brought its labour
legislation into line with ILO conventions. There has been no progress since it ratified Conventions 87 and 98 in 1972.
VIOLATIONS IN 2005
Background: The four party coalition government led by the conservative Bangladesh National Party continued in power, with the
opposition led-Awami League continuing to boycott the Parliament. The country’s ready-made garment industry was severely impacted
by the end of the quota system under the Multi-Fibre Agreement. The US national trade union centre, the AFL-CIO, filed a petition to
strip Bangladesh of its ‘Generalized System of Preferences’ (GSP) trade status because of the government’s continued failure to provide
for meaningful freedom of association rights for the nation’s EPZ workers.
Harassment of unions and supporting organisations by government: In July, the Bangladesh Independent Garment
Workers’ Union (BIGUF) reported significant harassment by national intelligence authorities owing to the federation’s efforts to support
workers in the EPZs, and the decision by Russell Athletic Company to pull orders out of Bangladesh.
The Solidarity Centre (the AFL-CIO’s American Centre for International Labor Solidarity) continued to receive numerous “visits” and
ad hoc investigations amounting to harassment from the government’s intelligence services, Rapid Action Battalion Forces, and other
official authorities, despite being legally registered to operate in the country. The authorities seemed particularly concerned about work
being done to assist EPZ workers, and collaboration with local trade union partners to insist that the government enforce its labour
laws. The work of the Solidarity Centre to help workers contact international labour rights organisations and overseas garment companies/brands to rectify problems at the factories was also evidently unwelcome.
Following a visit by the General Secretary of the International, Textile, Garment and Leather Workers’ Federation (ITGLWF) in
November, in which discussions were held with government officials about unions and the EPZs, and demands made for better enforcement of labour laws, foreign investors formally complained to the authorities about the activities of both the ITGLWF and the Solidarity
Centre. These investors called on the government to fully enforce the EPZ Labour Law, especially the provisions which call for levying
fines against and imprisoning workers and representatives of “outside organisations” who violate the law.
Police violence and anti-union discrimination at Ringshine Textiles: Workers at the Taiwanese-owned Ringshine Textile,
operating in the Dhaka Export Processing Zone, walked out of the factory on 13 June after a manager in the factory took a steam iron
to one woman worker’s back, and threw a metal bobbin into the face of another worker. The workers stayed out of the factory on 14
July after a breakdown in negotiations between management and the Ringshine WRWC.
Police responded by arresting two workers on 17 July. Management filed a case against the workers, claiming they had physically
attacked a supervisor who had been verbally abusing the workers. The representatives of the WRWC denied the charge. However, the
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employer’s case immediately prompted a massive police round-up of over 69 workers, who were seized from their homes on the night of
19 July. WRWC leaders said many of those arrested had nothing to do with case, but the police action caused many Ringshine workers
to leave their homes and hide in order to avoid further police retaliation.
On 20 July, a protest was mounted over the police arrests the night before. Over 150 workers were injured as police attacked them with
truncheons and batons, and fired rubber bullets, at the protesters at the Dhaka EPZ. At least five workers reportedly received critical
injuries.
In September, after significant international pressure, a settlement was reached with management, ITGLWF, and European clients of the
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factory which resulted in reinstatement of all fired WRWC members, and all workers dismissed during the July protests. Ringshine management also agreed to drop all legal charges filed against the workers. The package of agreements provided that human resources/
management systems be designed to recognise the role the WRWC, linked to mutually acceptable procedures for complaints, grievances
and disputes handling, as well as a step-by-step disciplinary process.
Police violence against protesting workers at Sinha Textile Mills in Kanchpur: On 19 October, security guards at Sinha
Textile Mills severely beat two workers at the entrance gate of the factory which is owned by the former President of the BGMEA. One
of the workers, Ratan Ali, was detained because, as a new worker, he had not yet been given a factory identity card. Despite his protestations that he belonged at the factory, he was taken to a separate room, beaten, and hung by the neck by a rope from a ceiling fan.
Another worker, Sajal Saha, intervened to try to help, and was also severely beaten. Their colleagues reacted against this violence by
walking off the job, rallying outside the factory, and blocking local roads. Police were called in, and in the ensuing violence over 150
people (mostly workers) were injured as police hit protesters with batons, and fired tear gas and live ammunition. At least seven badly
injured workers were hospitalised. Workers responded to the police violence with rocks and other projectiles, injuring several police. At
least 14 workers were arrested, and arraigned for causing violence. The factory reopened on 20 October.
On 16 November, another factory worker at Sinha Textiles was beaten by security guards, and accused of stealing from the factory. As
workers demonstrated for justice, police again savagely attacked the rallies, reportedly killing three workers and injuring hundreds of
others. Workers blocked the national highway between Dhaka and Chittagong, causing long delays. Instead of looking at the conduct of
the factory’s private security forces, the BGMEA blamed labour unions which, it said, were receiving support from foreign organizations.
It claimed that these foreigners were manipulating the situation to try and destroy Bangladesh’s garment industry.
A-One Factory – firing the WRWC leadership: At the Korean owned A-One Factory, a WRWC was organised, and elected in
February 2005. The WRWC then applied for and was registered by the BEPZA on 4 April 2005. Negotiations were held between the
WRWC and management on workers demands during the months of July and August. However, in September, management ceased negotiations, and unilaterally fired 255 workers, including the WRWC leaders.
Textile workers’ union crushed: The consistent refusal of the authorities to recognise the Immaculate (Pvt.) Ltd. Sramik Union, an
affiliate of the Bangladesh Independent Garment Workers’ Union (BIGUF), despite ILO recommendations, together with the company’s
dismissal of the union’s most active members, finally led to the disappearance of the union in 2005.
Victory at Square Fashions – workers fired for organising reinstated: In March 2005, 32 garment workers at the Square
Fashions Company in Dhaka were finally reinstated after a long campaign led by BIGUF, with support from global union federations and
engagement by some international brands sourcing from the factory. In December 2004 they had been summarily dismissed, thrown out
of their dormitories, beaten and robbed because they joined a union.
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Brunei Darussalam
POPULATION: 366,000 / CAPITAL: BANDAR SERI BEGAWAN / ILO CORE CONVENTIONS RATIFIED: —
There was virtually no union activity in Brunei, and there is no legal basis for either collective bargaining or strikes. Non-Brunei citizens are excluded from coverage of most labour
laws.
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Limited rights in law, no provision for collective bargaining, no coverage of migrant workers: The 1961 law on trade
unions authorises the creation of trade unions, which must be registered with the government. The law prohibits employers from any sort
of discrimination against workers connected to trade union activities, and unions are permitted to form federations. However, the law
prohibits unions and federations from affiliating with international trade union bodies.
Civil servants are permitted to form and join unions, except for those in the army, police, and prisons, but none have done so.
There is no provision in law that underpins the right to collective bargaining. An individual contract is required between an employer
and each employee, and legal trade union activities are not allowed to violate these individual employee contracts.
The law does not explicitly recognise any right to strike.
The majority of labor laws only apply to citizens of Brunei, thereby failing to cover skilled and unskilled migrant workers, who comprise
between 30-40 per cent of the total workforce.
There is one export processing zone, the Muara export processing zone, where labour laws apply in full.
Brunei is one of the few countries in the world that has not joined the ILO.
Suspension of democratic rights prevents trade union activity: Constitutional provisions regarding fundamental rights of
freedom of speech, association, press and assembly remain suspended under a state of emergency declaration dating from 1962 and
renewed by the government every two years. The government uses an Internal Security Act (ISA) to imprison opponents without charge
or access to counsel for up to two years. The Sultan and his family control the major government portfolios, and judges serve at the
Sultan’s pleasure.
There are only three trade unions registered in the country, all in the oil sector, representing a total of 1,500 workers. Two representing
office workers are allegedly inactive, while one comprised of manual oil field workers, has limited activities. Not surprisingly, given the
absence of human rights and strict political controls, these unions exercise little independence from government authority. As a result,
there was virtually no discernible trade union activity during the past year.
Migrant workers: There are over 100,000 migrant workers, none of whom are members of a trade union. Many have complained of
poor working conditions and a failure to respect their terms of employment. Some have reportedly carried out work stoppages in
protest. Migrant women domestic workers have complained of beatings, long working hours, and pay being withheld.
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NGO advocates for greater rights for migrant workers, such as the Consumers’ Association of Brunei (CAB), have been subjected in the
past to police harassment and threat of closure for their activities.
Burma
POPULATION: 50,700,000 / CAPITAL: PYINMANA / ILO CORE CONVENTIONS RATIFIED: 29 - 87
§
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The total suppression of trade union and other human rights continued in Burma, where
trade unions are banned and independent trade unionists must work underground. Ten
organisers from the independent FTUB trade union federation were arrested, and received
prison sentences ranging from three to 25 years. One of them died in prison after five
months, although he had been in good health at the time of his arrest. A village that was
preparing to host May Day celebrations was shelled, and ten people were taken away to
work as forced labour porters for the army. Strike leaders at a garment factory were arrested and an agricultural workers’ leader was shot dead.
Obscure legislation: It is difficult to have a clear idea of the legal system in force. Burma’s legislation is a combination of old British
common law that dates back to English colonial rule, as well as other laws remaining from the period before the present military regime
took over power, and more recent legislation in the form of military decrees and orders issued by the military junta. Any legal institutions
still existing in Burma can be overruled by military decrees or by the action of any powerful official.
Burma’s one-party Constitution, which dates back to 1974 but was suspended in 1988, provides for freedom of association, in theory. In
a communication to the ILO dated 23 September 2004, the SPDC claims that since the Constitution was suspended, it is not possible to
legally establish a trade union in Burma that conforms to the requirements of ILO Convention no. 87. However, the SPDC has no difficulties in enforcing colonial and more recent legislation, as well as military decrees and orders (which take precedence over any other
legal provision) that impose severe legal limitations on this right.
In particular, much of the British-era legislation has so far not been repealed, amended or officially abrogated. This is the case with the
1926 Trade Union Act which has been the subject of comment by the ILO for many years. One of the problems in the law is the excessively high threshold required to establish a trade union (50 per cent of workers must belong for the union to be legally recognised). In
1964, the Law Defining the Fundamental Rights and Responsibilities of the People’s Workers was adopted. The 1926 Trade Union Act
remained in force in so far as it was compatible with the 1964 Law. For many years, the ILO has sought, without success, to obtain clarification from the government on the extent to which the 1964 Law had repealed the Trade Union Act.
Single trade union system: Moreover, the 1964 Law establishes a compulsory system for the organisation and representation of
workers, which is contrary to ILO standards. The 1964 Law was amended in 1976. In its 1977 comments, the ILO noted, however, that
the Law as amended still “… imposes a single trade union system contrary to Article 2 of the Convention [No. 87], under which workers
have the right to form organisations of their own choosing”. That situation remains unchanged.
Other restrictions are imposed under the 1929 Trade Disputes Act. This Act, amended in 1966, appears to define the means of resolving
industrial disputes. However, a number of provisions appear not to be in conformity with freedom of association. These concern, for
instance, the power of the President of the Union of Burma (former name of the country, changed by the SPDC to “Myanmar”) to refer
trade disputes to Courts of Inquiry or to Industrial Courts, the definition of public utilities, the definition of a trade dispute and that of a
strike, as well as the circumstances under which strikes can be held, and the criminal sanctions facing workers who violate these provisions. On the other hand, it is difficult to assess whether this Act is still in force, and the ILO has so far proven unable to obtain firm
explanations from the government on this subject.
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Military orders and decrees further limit freedom of association: One such example is Order 2/88 on the Organisation for
Building Law and Order in the State, issued on 18 September 1988 by the State Law and Order Restoration Committee (previous name
of the junta). It prohibits any activity by five persons or more, such as “gathering, walking or marching in procession … regardless of
whether the act is with the intention of creating disturbances or of committing a crime or not.” It furthers bans the opening of “strike
centres regardless of whether or not the intent is to create disturbances or to commit crime”. It adds that, “No one is permitted to
block roads or to demonstrate en masse” or “interfere or obstruct people carrying out security duties”. Order 2/88 is further strengthened by the 1908 Unlawful Association Act which, under its Section 17.1, provides that “whoever is a member of an unlawful association, or takes part in meetings of or receives or solicits contributions for an association … shall be punished with imprisonment of not
less than two years and not more than three years.”
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Furthermore, on 30 September 1988, the military regime issued Order 6/88 known as the Law on the Formation of Associations and
Organisations. This Order states that all “organisations shall apply for permission to form to the Ministry of Home and Religious
Affairs”. It also provides that “organisations that are not permitted shall not form or continue to exist and pursue activities.” The definition of “organisation” in the Order, is extremely detailed and sweeping, and includes “an association, society, union, party, committee,
federation, group of associations, front, club and similar organisation that is formed with a group of people for an objective or a programme either with or without a particular name.” There is no doubt that Order 6/88 applies to workers’ and employers’ organisations,
and means that they have to request previous authorisation from the military to be established or to pursue their activities. This is a blatant violation of ILO Convention 87. Penalties provided in the Order for punishing violations are particularly harsh and may entail
imprisonment of up to five years.
In recent recommendations to the SPDC, the ILO Committee on Freedom of Association summed up the situation by noting that “…currently there is no legislation that affords a legal basis to the respect for, and realisation of, freedom of association in Myanmar…” and
calling on the SPDC to develop such legislation, while also immediately abolishing Orders 2/88 and 6/88.
Whatever the written law, in practice, workers who fight to redress often atrocious working conditions in turn face threats, violence and
murder by the authorities who equate trade unionism with treasonous behaviour.
No trade unions allowed: All trade unions that existed before the present military regime came to power have been disbanded.
There is a complete lack of legally registered workers’ organisations in Burma. Any workers’ organisation in Burma has to function
underground and its members face constant threat of repression and reprisal, including detention, torture and criminal prosecution.
Government controlled organisations: The military has set up an organisation called Union Solidarity and Development
Association (USDA). This association, which workers and other citizens are forced to join, is a governmental creation designed to substitute for workers’ organisations and all other civil society institutions. It was created in September 1993 by the military regime and is
officially reported to count some 13 million members. Following an attack on her motorcade by vigilantes allegedly led by USDA members in November 1996, Nobel laureate Aung San Suu Kyi stated in an interview that it was a “deliberate attempt to harm us badly or
even kill us” and compared the USDA to the Nazi Brown Shirts. At public rallies throughout the country in 2005, USDA leaders
repeatedly praised the work of the Tatmadaw (Burmese Army) and referred to the USDA as “an auxiliary force of the nation.” The
USDA is quite simply a political mobilisation tool of the regime.
The SPDC has also overseen the creation of the Myanmar Overseas Seafarers’ Association (MOSA), through which it seeks to control
Burmese seafarers. Launched in 2002, MOSA was inaugurated by then Prime Minister General Khin Nyunt, who warned delegates
against “elements” that are “striving against the interests of the state” and engaging in “anti-Myanmar activities.” He further called
that “all seafarers serving under this association must unite with one accord, and refrain by their words and actions from harming the
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State…” The SPDC incorrectly asserted to the ILO that MOSA was an affiliate of the International Transport Workers’ Federation
(ITF), which is a Global Union Federation associated with the ICFTU.
In general terms, the junta’s vast military and security apparatus continues to attempt to ensure that no new leaders or independent
institutions emerge to challenge its rule, using detention and torture as its tools of trade.
“Workers’ committees” organised by the authorities: In July 2004, the government announced that all factories employing
over 100 workers were to establish “Workers’ Supervision Committees” (WSC). They comprise four representatives elected by the workers, but are chaired by the factory owner. Each Committee was instructed to meet once a month. A set of rules dealing with how to
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process workers’ demands was distributed. Grievances are discussed in the workplace WSC before being submitted to the factory owner.
If no agreement is reached at factory level they go to the Township WSC.
While negotiations are underway under the chairmanship of the Township WSC, “the workers are to continue work so as not to affect
production”. No demonstrations are allowed either inside or outside the factory and “serious action” will be taken against anyone
destroying the owners’ property.
FTUB - independent workers’ organisation forced to work underground: The independent Federation of Trade UnionsBurma (FTUB) has been forced to operate clandestinely since its inception in 1991. It maintains structures both inside and outside the
country. It is the effective voice of over 1.5 million Burmese migrants working in Thailand. But the FTUB also maintains underground
unions in key industrial sectors in Burma proper, and operates in all the major cities of the country. It actively collects evidence of violations of workers’ rights and monitors the denial of collective bargaining rights in industrial sectors, as well as evidence of forced labour,
which it communicates to the ILO and to the international labour movement. FTUB members caught doing so are accused of treason and
other offences, and have been sentenced to life imprisonment, and in some cases, incurred the death penalty. The government’s propaganda apparatus and diplomats regularly and virulently attack the FTUB, calling it an expatriate terrorist gang. The ICFTU itself has been
accused of assisting and encouraging the FTUB to commit terrorist acts.
On 28 August 2005, the SPDC Ministry of Home Affairs issued Notification No. 3/2005, which officially declared the “FTUB, its members, and other related groups and individuals” as a threat to Burma, and classified it as an unlawful association under section 15 (2) of
the Unlawful Associations Act.
FTUB accused of terrorism: The Secretary General of the FTUB, Maung Maung, had to leave the country at the time of the 1988
military crackdown, owing to his involvement in the democratic trade union movement. He is under constant attack from the SPDC
regime, which continually accuses him of leading a terrorist organisation, and being involved in bombings, planned assassinations, and
other violent activities. During the year, he was prominently mentioned in virtually every SPDC public relations attack on Burma democracy campaigners in exile. He was also accused by representatives of the Ministry of Labour of deceiving the ILO to take action against
Burma, and was prominently vilified at rallies organised throughout the country by government controlled civic organisations, like the
USDA, the Myanmar Women’s Affairs Federation, and the War Veterans’ Organisation.
Seafarers repressed, even overseas: The Seafarers’ Union of Burma (SUB), originally organised by the FTUB, and now affiliated
to the FTUB and to the ITF, is also illegal in Burma. The SUB seeks to protect Burmese seafarers sailing on foreign ships, mostly under
flags of convenience (FOCs). Burmese seafarers typically have to pay three months’ wages in advance to state-controlled or private shipping agents in Rangoon before they are allowed to take up their assignments on foreign ships. Their contracts are also subject to
approval by the regime-controlled Seaman’s Employment Control Division (SECD). As a condition of employment, seafarers are required
to sit through lectures where SECD officials – including the Director, Thaung Kyai – verbally warn them to stay away from the SUB and
the ITF, and refer to the SUB as an underground organisation undertaking illegal political activities. Once aboard, they are prohibited
from complaining about their working and living conditions, which are notoriously bad aboard FOC ships. The SPDC and SECD have
retaliated against seafarers who sought or accepted assistance from the SUB or the ITF. Retaliation includes a range of punishments,
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including imprisonment, seizure of repatriated wages, suspension of licenses, and blacklisting so that the seafarer is unable to obtain
another overseas seafarer position. The SPDC and SECD also use the MOSA to deter seafarers from becoming involved with the SUB
or ITF.
Detention of trade unionists: Independent trade union leaders are punished with heavy prison sentences. FTUB Central Executive
Committee members, U Myo Aung Thant and U Khin Kyaw, were arrested in June 1997 in Burma’s capital, Rangoon. Myo Aung Thant
was a member of the All Burma Petro-Chemical Corporation Union, formed in 1988. He was charged with high treason for maintaining
contacts with the FTUB and tried at a secret trial where he was denied the right to legal counsel. Government newspapers reported that
he was sentenced to life imprisonment. His wife was arrested at the same time and sentenced to ten years’ imprisonment as an accomplice to her husband. She was released in July 2002 and has since fled the country.
However, as shown in a communication to the ILO Committee on Freedom of Association on 28 January 2005, the SPDC now states
Myo Aung Thant was jailed for ten years for high treason under section 122(1) of the penal code, plus seven years for violations of the
Emergency Provisions Act, plus three years for violating the Unlawful Associations Act.
Myo Aung Thant is detained in a remote part of the country at Myitkyina Prison in Kachin State, and, according to his family, was in
the course of 2005 held in solitary confinement in a small, windowless cell.
Khin Kyaw is a member of the Seafarers’ Union of Burma. He was also arrested in 1997 along with his wife. He had earlier been
detained for trade union activities in 1993 and had been tortured in detention. The authorities never stated the charges made against
him. The FTUB received information in the past that he was sentenced to 17 years in prison and was held in Thayarwaddy Prison in
Pegu division. However, the SPDC informed the ILO in a letter dated 28 January 2005 that “…there is no record of imprisonment of
Khin Kyaw.” At year end, it was finally discovered that Khin Kyaw had been released on 5 January 2005. The circumstances surrounding his release have not been revealed, but he is believed to be living in a town just outside of Rangoon.
Thet Naing, another underground FTUB leader, was released from Myitkyina prison in November 2004 after serving a seven year sentence. Originally arrested for political activities in 1990, he was released in 1994. He was rearrested in 1998 for his role in leading a
workers’ protest at the Yan Ze Kyang garment factory, and tortured heavily by military intelligence and police during his interrogation
at Pegu MI 3 camp. He continues to be affected by nerve damage suffered from that torture, and subsequent mistreatment while in jail.
He has now left the country, and joined the FTUB abroad.
VIOLATIONS IN 2005
Background: The year saw the consolidation of power by hard-liner General Than Shwe, and reorganisation of the regime after the
purge of the military intelligence service led by former Prime Minister General Khin Nyunt. A high-level ILO delegation visited Burma
in February, but was unable to meet the top leadership of the SPDC in order to obtain clear commitments to end forced labour. For this
reason, it cut its visit short. The USDA and other junta-controlled mass organisations verbally attacked the ILO on a daily basis, and
called for Burma to withdraw from the organisation. During the months of August and September, the ILO Liaison Officer in Rangoon
received 21 written death threats. In early November, the regime took its neighbours and the international community by surprise by
announcing the relocation of the government to a new capital, Pyinmana, being constructed in the jungle several hundred kilometres
north of Rangoon. At the end of the year, the SPDC was actively considering the option of quitting the ILO.
Military interference in labour dispute – shutting down the strike, arresting leaders: A dispute over a Buddhist New
Year bonus and holiday pay at Myanmar Guston Molinel Co., a wholly owned French garment factory in Hlaingthayar industrial zone,
sparked a wild-cat strike by 450 workers on 9 April. Local authorities, supported by representatives of the Ministry of Labour, were
able to facilitate a compromise settlement on that day. However, on 17 April, when workers returned after the Buddhist New Year, four
workers (Hlae Hlae Khaing, Zin Min Khing, Moe Thi, and Mar Mar) were arrested by police and taken to Insein prison, in Rangoon.
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The senior local official (Township Peace and Development Council chairman) alleged that these four workers had broken the law
through their actions connected with the factory. The workers refused the authorities’ explanation, and went on strike on 18 April inside
the factory, demanding immediate release of their four colleagues. On 19 April, police and military, led by Major Tin San, converged on
the factory, which they unilaterally declared closed until further notice. Threats of arrest were made against the workers if they didn’t
cease their strike. Finally, at 6:30 pm, Major General Myint Swe, the Rangoon Army commander, arrived on the scene with nine prison
transport trucks and delivered an ultimatum – either all the workers vacated the compound immediately or the Army would arrest them
all. The workers immediately ceased their strike, and left the factory. On 2 May, the four arrested workers were released from prison.
Karen Agricultural Workers Union (KAWU) leader killed: Saw Thoo Di, a.k.a. Saw Ther Paw, a KAWU committee member
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from Kya-Inn township, Karen state, was arrested by an armed column of Infantry Battalion 83 outside his village on 28 April. The soldiers dragged Saw Thoo Di back to his house, and in front of his family, interrogated and tortured him with sticks and knives to reveal
any connections he had with Karen organisations. Saw Thoo Di stated he had no involvement in such organisations. Finally, at the end of
the interrogation, he was led away by the soldiers, and shot dead.
Mortars on May Day – army shells Workers’ Day commemoration: On 30 April, the FTUB and Federation of Trade Unions –
Kawthoolei (FTUK) were preparing a May Day workers’ rights commemoration in Pha Pya village, Kya Insek Kyi township, Karen state,
where ceremonies had been organised in each of the previous three years. Participants were invited from throughout Mon and Karen
states. SPDC military learned of the plans, and sent in Light Infantry Battalion 308, which indiscriminately shelled the village with mortars and rocket propelled grenades, seeking to kill the organisers and disrupt the preparations. No one was killed in the barrage, but the
army column then invaded the village, arrested 24 villagers, and took them back to their camp for interrogation. Most were later
released within several days, but ten men were kept to serve as forced labour porters for the army. The May Day ceremony was reorganised at another nearby village, and took place on 1 May, as planned.
Network of FTUB organisers in Pegu arrested, imprisoned: Starting in early June 2005, the SPDC uncovered an underground network of ten FTUB organisers in the Pegu area (80 kilometres from Rangoon) who were providing support and education to
workers, and serving as a networking and information link to FTUB structures abroad. Seven men and three women were arrested; Win
Myint, otherwise known as Kyaw Aung, a teashop owner; Hla Myint Than, a lawyer; Wai Lin, an industrial zone supervisor; Major Win
Myint, a retired former military officer, aged 77; Ye Myint, a leather worker; Thein Lwin Oo, a lawyer; Aung Myint Thein, an industrial
worker; Ma Aye Thin Khine, a bank employee; Aye Chan, a teacher and Yin Kyi, also a teacher. In a press conference on 28 August,
SPDC leaders alleged the organisers had used satellite phones to convey information from inside Burma to the FTUB, which then provided that information to the ILO and the international trade union movement.
These FTUB members were taken to the infamous Aung Tha Pay interrogation centre in Mayangone district of Rangoon where they were
investigated and tortured by Special Branch police and Bureau of Special Operations (military intelligence) personnel during the months
of June and July. On 29 July, they were transferred to Insein Prison, and their cases sent to a special court that conducts its hearings
inside the prison. During the secret trial, they were denied access to outside council or witnesses, and the proceedings clearly did not
meet international judicial standards. They were all found guilty and the court sentenced them on 10 October. Wai Lin and Win Myint,
as key leaders of the network, respectively received sentences of 25 years, and 18 years. The other five men, and two of the women, each
received seven year jail terms. Finally, bank clerk Ma Aye Thin Khine was imprisoned for three years.
FTUB Organiser Aung Myint Thein dies in prison: On 3 November, Aung Myint Thein died under mysterious circumstances in
his cell at Insein prison. When arrested on 2 July, along with other members of the FTUB Pegu network (see above), he was physically
fit and in good health. The authorities told the family that he died of dysentery, but refused to turn over the body to his relatives for a
funeral, making it impossible to accurately ascertain whether he died from abusive treatment, disease, or other causes. Prison officials
cremated the body themselves.
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Three FTUB activists in high treason case released from jail: Three FTUB activists, Nai Min Kyi, Aye Myint and Shwe
Mahn who had originally been sentenced to death for high treason in November 2003 (see 2004 Survey), were released in 2005. They
were among the mass prisoner releases prompted by the purge of General Khin Nyunt and the military intelligence apparatus. Nai Min
Kyi and Shwe Mahn are still residing in Rangoon, and remain under surveillance by the military’s Bureau of Special Operations. Aye
Myint has been sent back to prison (see below).
Turning complainants into criminals – SPDC and the ILO monitoring process for forced labour: As the SPDC’s relations with the ILO have soured, citizens and advocates are being targeted when they bring information to the ILO concerning the authorities’ use of forced labour and seizures of land and property. Aye Myint, a lawyer who is a FTUB member released from prison in 2005
(see High Treason case above), brought to the attention of the ILO the complaints of residents in Phanungdawthi village tract who
claimed their land had been seized by the military. Authorities alleged that he provided incorrect and false information in the complaint
and arrested him on 27 August. He was charged with violating section 5 (e) of the catch-all Emergency Provisions Act. The trial did not
meet international standards, and the verdict was predetermined. On 31 October, the Daik-U Township Court in Pegu division found him
guilty, and sentenced him to seven years in prison.
Ma Su Su Nwe, the community activist who brought a forced labour complaint to the ILO (which subsequently resulted in the first successful conviction of four local Burmese officials for procuring forced labour), was also jailed in a clear case of retaliation by local
authorities. Officials alleged she had abused and threatened them, when in fact Su Su Nwe and other villagers were threatened with violence and destruction of their houses during the trial of the four officials. On 13 October, she was imprisoned for 20 months on charges
of damaging the reputation of local officials and abusive behaviour.
Cambodia
POPULATION: 14,800,000 / CAPITAL: PHNOM PENH / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 – 138
§
Restrictions on trade union rights for public servants remained in place, and private sector
unionists faced a gauntlet of police violence, weak law enforcement, and employer impunity. Senior labour leaders remained vulnerable to violence and arrest, and Rong Chhun, the
President of the Cambodia Independent Teachers Association (CITA) was in jail at year end,
charged with defaming the Prime Minister. Courts were not independent of the
Government, and remained liable to political influence, as evidenced by the imprisonment
of two innocent men for the 2004 murder of FTUWKC President Chea Vichea.
Freedom of association - civil servants excluded: Workers are free to form and join trade unions under the 1997 Labour Law.
However, this law does not apply to civil servants, including teachers, judges, military personnel and household servants. Personnel
working in air and maritime transportation are not fully subject to the law, but are free to form unions.
The Labour Law requires unions and employers’ organisations to file a charter and list of officials with the Ministry of Labour and
Vocational Training (MOLVT). The Bureau of Labour Relations has the responsibility to facilitate union registration and the application
for “most representative” status. The MOLVT is also responsible for enforcement of the Labour Code and the application of ILO
Conventions.
Excessive eligibility criteria: Article 269 of the Labour Code provides that union leaders must have been engaged in the profession
their union represents for at least one year. This restricts a union’s right to choose their own representatives, and deprives it of the benefit of skills or experience it may not have in its own ranks. The law also requires that leaders of a union must be at least 25 years of
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age, must be able to read and write, and not have been convicted of any crime. Foreigners seeking to lead a workers’ organisation have
equally burdensome requirements – according to Article 270, they must be aged 25 years or older, have been working two consecutive
years in Cambodia, and be able read and write Khmer.
Restrictions on the right to strike: The law guarantees the right to strike, but limits that right by imposing a minimum service
requirement in all enterprises, regardless of whether they are public utilities or not, and exceeding the need to comply with statutory
safety requirements. Workers who are required to provide a minimum service but stay out on strike are considered guilty of serious misconduct.
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Requirements which must be fulfilled for a strike to be considered legal are also quite cumbersome, and thereby are frequently ignored
by workers. Disputes must be first subjected to labour conciliation conducted by an inspector of the MOLVT, who has 15 days to seek a
settlement. If there is no mutually satisfactory result, the dispute must be submitted to the tripartite Council of Arbitration for investigation and a decision, which also must come within 15 days of the dispute being referred to the Council. During the period when the
MOLVT is conciliating, or the Council considering the case, it is illegal to strike.
For a strike to be legal, the union must obtain a majority in a secret ballot of its members. The union must also provide seven days
advance notice to the employer and the MOLVT. If the enterprise is engaged in what the Government considers an “essential service”,
and the strike could “endanger or be harmful to life, safety, or health of all or part of the population…”, then the law stipulates the
waiting period must be a minimum of 15 days.
Collective bargaining: The law obliges the employer to negotiate collective bargaining agreements with unions that have been granted “most representative” status, and bargain with minority unions on issues covering members of that union. The employer must meet
with representatives designated by the union. Negotiators are protected by law and are entitled to full salary during negotiation.
A new Ministerial regulation (Brakas no. 13), promulgated at the end of 2004, caused significant problems for unions in 2005. The regulation allows third parties (such as employers or another union) to challenge the majority union’s petition for “most representative” status. By filing these challenges, management/employer groups or pro-management unions can tie up a majority union time and resources,
and prevent them from negotiating a collective bargaining agreement.
Another major problem in law is caused by confusion between the role of shop stewards and labour union leaders. Each workplace with
over eight employees must have a shop steward. Shop steward elections are held at the factory, and the law provides that employers are
the ones who must organise them. The law gives representative unions the right to nominate the shop stewards to stand for election. But,
often, stewards are elected before a union is organised in a factory. Article 284 gives shop stewards the duty to present to employers
issues related to grievances and wages, and to enforce labour law and collective agreements. These are functions that rightfully belong in
the hands of elected trade union leaders. In a number of cases, employers have used shop stewards (who are elected for two years, and
cannot be forced out) to block the path of unions to the bargaining table, because shop stewards are the only worker representatives in
the law with legally enforceable bargaining rights. The labour law fails to provide a similarly enforceable right for trade union leaders.
Only a small proportion (about one per cent) of the total labour force is unionised, and outside the garment and tourism/hospitality sectors, the trade union movement remains very weak. Most workers have little or no knowledge of trade unions, or of their labour rights.
Poor enforcement: Where unions do exist, in the garment and footwear industries, as well as in the tourism and education sectors, it
is difficult for them to negotiate with management on equal terms. Many of the garment workers are young women from rural areas.
Employers do not hesitate to use anti-union discriminatory practices such as dismissals. For its part, the government seldom takes action
against employers or punishes acts of anti-union discrimination. Workers complained that with the creation of the new MOLVT, which
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was separated in July 2004 from the previous Ministry (MOSALVY) that included both labour and social affairs, the efficacy of enforcement declined even further. The US Embassy characterised the MOLVT as ‘significantly less active’ than the predecessor Ministry in
enforcing the law. More often than not, the Ministry of Labour’s advice is for workers to take their case to court - which is costly and
ineffective - or accept cash settlements from employers. Labour inspectors are poorly trained and, given their low pay, open to bribery.
In cases where the MOLVT decided in favour of workers, it rarely used its legal authority to penalise employers who did not follow its
orders.
Still no labour courts: The Cambodia Labour Code of 1997 provides in Articles 387, 388, and 389 that a system of Labour Courts
shall be created to rule on “individual disputes occurring between workers and employers regarding the execution of the labour contract
or the apprenticeship contract.”
The Arbitration Council, a tripartite body established under the labour law, has effectively substituted the Labour Courts. The council is
widely respected for its even-handed and impartial investigations and rulings. However, its decisions are not final, and employers found
to have engaged in anti-union discrimination usually appeal against the council’s decisions in the provincial courts.
Strikes: The government generally tolerates strikes and demonstrations, although the police are sometimes called in and have been
known to use violence. Strikes are frequent in garment factories, with workers protesting against long hours, forced overtime, low pay
and poor treatment.
A total of 67 strikes were recorded in 2005 by the MOLVT, and the vast majority of these strikes violated the requirements that must be
undertaken before a strike for it to be considered legal.
Pressure to respect labour rights is off – end of US textile agreement: There had been attempts at improving the respect
of labour rights in the garment industry following a landmark US-Cambodian Bilateral Textile Agreement in 1999. The United States
agreed to increase its quotas for Cambodian textiles in return for positive evidence that Cambodia was complying with international
labour standards. Similarly, pressure from unions and the US government improved legal protection for union leaders and the collective
bargaining process, at least on paper. However, with the end of the quota system in December 2004, the incentive of factory owners and
labour authorities to maintain respect for workers’ rights, diminished significantly.
Collective bargaining: Collective bargaining is difficult and only a few unions have achieved an enforceable agreement. Only five
genuine collective agreements have been registered with the MOLVT, though an additional 15 “conciliation” agreements, facilitated by
MOLVT mediation of labour disputes, were also registered. It was not until late 2003 – six years after the passage of the labour law that garment and tourism worker unions won their first proper collective bargaining agreements.
Teachers’ association activity obstructed: The Cambodian Independent Teachers Association (CITA) is registered by the Ministry
of Interior as a civic association, but is not recognised by the MOLVT as a trade union. CITA has repeatedly been harassed and monitored by local public authorities and the police when organising meetings, especially in rural provinces outside the major cities. CITA is
not recognised by the government as having the right to collectively bargain on behalf of teachers. During the year, the President of
CITA spent three months (October-December) in jail (see Violations section).
Civil servants association not recognised for bargaining: Like CITA, the Cambodian Independent Civil Service Association
(CICSA) is registered as a civic association under guidelines of the Ministry of Interior, but is not recognised by the Government as a
union, and does not enjoy collective bargaining rights. The President of CICSA was forced to remain overseas to avoid arrest for three
months (see Violations section).
Party links and company unions: Fifteen labour federations have historical ties to the government or to Prime Minister Hun Sen’s
political party, the Cambodian Peoples Party (CPP). One example is that of the Cambodia Union Federation (CUF) which has a history
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of creating company unions in garment factories to serve the interests of employers and government leaders. Eleven federations are
grouped in the pro-government Cambodian Confederation of Trade Unions (CCTU), and independent trade union federations frequently
levied complaints that the CCTU interfered with their activities and, in some cases, threatened opposing union leaders.
On 17 June, the President of the Federation of Khmer Youth Unions (KYU), Yun Rithy, filed a complaint with police, accusing CUF
President Chuon Mom Thol and his eight bodyguards of severely beating four KYU activists during a rally at Best Honor International
Garment factory in Phnom Penh. 900 factory workers at the factory supported this call by signing a petition on 30 June, demanding the
arrest of Chuon Mom Thol on assault charges. Despite these complaints, no action was taken by the authorities.
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In September, the FTUWKC filed a complaint with the Kandal province police, alleging that local CUF leader Phat Den had threatened
FTUKWC leader Yorn Yen of the ECENT Factory, both in person and over the phone. Again, no action was taken by the authorities.
Tripartite policy mechanism fails to meet during the year: The tripartite Labour Advisory Committee (LAC), established pursuant to the Labour Code, serves as the sole formal channel for labour union participation in the Government’s policy determination
processes on labour matters. Unfortunately, the LAC, which has the duty to review proposed regulations, and to recommend increases in
the minimum wage to the MOLVT, has inexplicably not met since July 2004.
VIOLATIONS IN 2005
Background: Respect for human and labour rights was in a downward spiral as the year ended, with senior labour leaders and human
rights activists in jail, and the opposition party leader, Sam Rainsy, in exile after being stripped of his parliamentary immunity. Prime
Minister Hun Sen used criminal defamation laws to go after his opponents, leading to a major outcry from the international community.
Arrested without charge — Chea Mony, President of FTUWKC: On 20 January, a group of 300 striking workers from the
Free Trade Union of the Su Tong Fa Garment factory marched to the Commerce Ministry, located in central Phnom Penh, to protest
against the firing of one of their colleagues, and the beating of another worker by a factory security guard. The march, which the police
declared was illegal, was forcibly dispersed. A smaller group of these workers then went to meet Chea Mony, the President of the
FTUWKC, at the union’s headquarters, which is near a number of foreign embassies. Daun Penh district police intervened in the meeting
in front of the FTUWKC office, and seized and pushed Chea Mony and Heng Sophorn, President of the Su Tong Fa union, into a waiting
police vehicle. They were taken to a local police station, where they were detained without charge for over five hours, and interrogated.
Finally, they were released only after signing a statement in which they pledged to “remain silent”, to refrain in the future from “breaching public security and public order”, to undertake “activities that could affect the honour of the nation”, to “respect laws on demonstrations” and to “order workers to return home.” No charges were filed against them at any time.
Fortune Garment using the court to crack the union: In early February 2005, factory worker Sok Vy was taken before the
Kandal court in a long-forgotten case in which the management of the Fortune Garment Co. accused him of being the ‘ring-leader’ of a
strike in June 2004. The court convicted him on flimsy evidence, and gave him a suspended prison sentence of 14 months, and five years
probation. The court also indicated that Fortune management could file in the civil courts a case against Sok Vy for compensation for
damages. He had been charged with “damaging company property” even though the strike had been entirely peaceful.
Sok Vy had initially been suspended by management for organising the strike, which originated from a pay dispute, but the workers then
stopped the strike in exchange for an agreement to drop the charges against Sok Vy and rescind the suspension. The CCAWDU organised a union at the factory and on 8 August 2004 Sok Vy was elected President of the union. In December 2004, another union in the
factory declared a strike, but management retaliates against CCAWDU, firing ten union activists and seeking damages worth
US$50,000 from these workers.
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Case of violence against Teratex union leader remains unresolved: In early 2005, Pul Sopheak, the President of the local
union affiliated to the FTUWKC, disappeared from the Teratex Garment factory, evidently fearful for his safety. In December 2004, he
had been attacked by three men with chains outside the factory. The FTUWKC filed a complaint with police, but it appears there was no
investigation of the incident.
The FTUWKC union vice President at the factory, Keo Channak, was dismissed on 18 May 2005 in an act that the FTUWKC claims
was connected to her union activities. After intervention by buyers, both union leaders were offered (and ultimately agreed to take) severance pay since management refused to allow them to return to work.
Hana Garment – workers fired, taken to court for organising: On 9 March a judge ruled that a garment company could dismiss two suspended trade union leaders, as well as the union president, and ordered the three unionists pay restitution of US$300,000
to the factory. Hana Cambodia, owned by Korean multinational Hana Global had suspended the two shop stewards in October 2004
after they formed a union and organised several strikes to demand better pay and conditions. Agreements mediated by the Ministry of
Labour were ignored by the company. When the Arbitration Council ruled that the suspensions were illegal and the workers should be
reinstated, Hana management filed criminal charges against the union leaders in Kandal Provincial Court, seeking damages. This case
led to the 9 March ruling. After intervention by third parties, including clients of the factory, management dropped the legal case in
exchange for the three workers taking severance pay and leaving the factory. As a result, the union largely ceased to function.
Flying Dragon 3 Garments – firing union leaders, tearing up contracts: Flying Dragon 3 factory, employing over 2,000
workers, fired the President, vice President and Secretary General of the union affiliated with the CCAWDU federation in September
2005. Without consulting the union, factory management forced all employees to accept short-term contracts of two or three months
duration, causing a loss of benefits to the workers. The union filed complaints on both the firings and unilateral change of contracts with
the Ministry of Labour, which was unable to resolve the matter. At year end, the dispute was under consideration by the Arbitration
Council.
Grand Diamond City Casino and Hotel fires 24 for union activities: The CTSWF attempted to organise the Thai-owned
Grand Diamond City, located in Poi Pet city on the Thai-Cambodia border, in December. However, when the employer learned of the
workers’ effort, all 24 union leaders and activists in the organising committee were summarily dismissed. Ministry of Labour reconciliation attempts failed because of the intransigence of the employer, so the Federation filed an appeal against the firings. As the year
ended, the matter was being considered by the Arbitration Council
Teachers’ union leader arrested for defamation, jailed: Rong Chhun, President of the Cambodian Independent Teachers
Association (CITA) continued to face intimidation and threats, after the appearance of his name in 2004 on an alleged black-list of people to be assassinated by the CPP, printed on paper carrying the national assembly’s letterhead.
On 11 October, Rong Chhun joined two other trade union leaders – Chea Mony of the FTUWKC and Men Nath of the Civil Servants
Independent Association – in issuing a statement criticising the border agreement signed with Vietnam. The Prime Minister immediately
responded by attacking the statement as an ‘act of treason’ and ordering the issuing of arrest warrants for defamation for Rong Chhun
and his associates on the Cambodia Watchdog Council. On 15 October, Rong Chhun was captured and detained in Poi Pet, on the ThaiCambodia border, as he was preparing to flee the country. He was transported back to Phnom Penh, charged with the crime of defamation, denied bail, and locked in Prey Sor prison where he remained at the end of year.
Meanwhile, Chea Mony and Men Nath were outside of the country at the time the statement was issued. Arrest warrants issued for
them effectively made them forced exiles, since they were unable to return without facing immediate apprehension and imprisonment.
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Maurea Garment – entrapping labour leaders: During the year, the management of Maurea Garment filed charges against five
local leaders of the CUF-affiliated union in the factory, claiming that they had been extorted for money in exchange for union guarantees
that workers at the factory would not strike. The CUF claimed entrapment, and threatened industrial action. Factory management,
assisted by a senior opposition party official, persuaded a court to jail three of the union leaders for five days until an arrangement could
be negotiated between the President of the CUF and senior opposition party officials. The CUF union in the factory effectively ceased to
function as a result of that agreement.
Union marches and rallies prohibited, broken up and attacked by police: Police and military police continually prevented
rallies and marches by workers in Phnom Penh. Rallies by workers in front of their factories were generally allowed, but efforts to march
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to petition government offices, employer associations, or foreign Embassies were met with threats and violence.
In February, the Sam Han factory closed and the factory manager, a Korean, returned to South Korea claiming he had to get financial
resources to pay the 1,500 workers. He failed to return, and workers staged demonstrations in March to demand government action to
secure unpaid wages and severance pay legally owed to the workers. However, on 16 February, police broke up peaceful protests with
charges, and used truncheons and rifle butts to hit the workers, and tear gas to disperse them. On some occasions, like on 22 February,
police fired their guns in the air to chase away the protesting workers. The union in the factory, affiliated to the Coalition of Cambodian
Apparel Workers Democratic Union (CCAWDU), estimated that over 40 workers had to seek medical treatment or were hospitalized as
a result of police beatings of protesting workers in February and March. On 3 March, an ICFTU researcher was present and witnessed
first-hand a vicious police attack on the workers outside the factory. Police intimidation was effective in gradually forcing many workers
to abandon the protests. CCAWDU filed a court case against the owner, seeking payment for the workers, but the owner, Kim Do Sam,
was a repeated no-show for the court hearings.
On 28 April, over 900 workers from In Kyung Garment Factor in Phnom Penh started a march to the National Assembly building after
they were refused a meeting by factory management to discuss grievances. They were met by approximately 100 police and military
police, who severely beat one worker, and intimidated the rest into giving up the march.
On 1 May, the Phnom Penh Municipal Authority did not allow trade unions to hold their annual May Day march. Police cited unnamed
security reasons, and potential obstructions to traffic, but permitted a rally at a public park. A march of about 60 workers from the
FTUWKC to the site where trade union leader Chea Vichea was killed in 2004 was closely monitored by heavily armed police, but not
broken up.
Over 1,500 protesting workers from the You Min Garment Factory in Phnom Penh held a rally starting on 12 June to demand their
Korean factory owner respect the labour law. The next day, they began a march from the factory to go to the National Assembly, the
MOLVT, and the Korean Embassy. However, after marching only 100 metres, the march was forcibly dispersed by riot police.
Approximately 50 workers from XSN Factory were forcibly dispersed on 1 July from their protest site outside the office of the Garment
Manufacturers Association of Cambodia. The same day, approximately 100 riot police attacked a march of 1,000 workers from GW
Factory, using electric batons, tear gas, and gun-shots in the air. 19 workers were arrested.
Police broke up a strike rally of 200 workers from the Sytany factory on 11 September, claiming that their violent action was necessary
to prevent violence from occurring.
Himawari Hotel Apartments – workers sacked for organising are still out of work: The elected union president, Sok Thol,
and three union leaders – Ean Kimhun, Kram Sokheang, and Ul Sereyvathannea – were all fired by the Singaporean-owned Himawari
Apartment Hotel (formerly known as MiCasa Apartment Hotel) for organising a union in March 2004. Management organised a yellow
union to try and divide the workers.
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The union appealed to the Arbitration Council which ruled on 6 August that all four unionists must be reinstated with back pay. Since
the time of that decision, the union, supported by the Cambodia Tourism and Service Workers Federation (CTSWF), has tried to negotiate with management for implementation of the Arbitration Council decision, without success. In April 2005, the legal representative of
the hotel owner, Global Ariel Company, sent a letter to the IUF Asia-Pacific office stating that their management firm’s employment
contracts fully comply with Singapore law. This effectively implies the displacement of Cambodian labour law as the law of the land.
Yet, despite pressure from the Cambodian Senate and others, the Ministry of Labour continued to fail in taking any meaningful action
to resolve this dispute or pressure Himawari management to comply with Cambodian law.
Scapegoats jailed for 20 years in case of killing prominent union leader Chea Vichea: On 1 August 2005, Born
Samnang and Sok Sam Oeun were convicted of the murder of trade union leader Chea Vichea and each sentenced to 20 years in jail.
They were also ordered to pay compensation to Chea Vichea’s family. Chea Vichea, President of the Free Trade Union of the Workers of
the Kingdom of Cambodia (FTUWKC) was killed on 22 January 2004. His union activities had brought him into confrontation with garment factory managers and the authorities on many occasions, and he had been warned to leave the country because his life was in danger. The investigation into his murder had all the appearances of a cover-up. It was deeply flawed, ignoring the alibis of both men and
the evidence of key witnesses. The outcome of the trial was condemned as a travesty of justice and a charade by numerous respected
persons and organisations, including the retired, former King of Cambodia, Norodom Sihanouk; the UN Secretary-General’s
Representative for Human Rights in Cambodia; the family of Chea Vichea; FTUKWC, the ILO, the ICFTU; and numerous other national
and international trade union organisations and human rights NGOs.
The family of Chea Vichea refused to accept compensation from the two men, who they said were innocent. An appeal against the conviction was lodged with the court, and the two men also filed an appeal for a royal pardon to King Norodom Sihamoni.
Killer convicted in the murder of Ros Sovannareth, FTUWKC: On 15 February 2005 a soldier was sentenced to 15 years in
jail for the murder of Ros Sovannareth, and ordered to pay compensation to members of his family, who fled abroad after the killing,
fearing for their lives. Ros Sovannareth was president of the local union at the Trinongal Komara factory, affiliated to the FTUWKC. He
was shot on his way home from the factory on 7 May 2004 and died in hospital. Key witnesses to his murder had clearly been intimidated and refused to come forward.
Chea Money, who took over from his brother as president of the FTUWKC, believed that Ros Sovannareth may have been killed by the
same people who murdered Chea Vichea, because both murders were executed in the same manner. Trade unionists in the country felt
that the murder was a clear warning designed to frighten them and warn them not to be too active.
China, People’s Republic of
POPULATION: 1,308,873, 000 / CAPITAL: BEIJING / ILO CORE CONVENTIONS RATIFIED: 100 - 111 - 138 - 182
§
Once again, many workers found themselves detained or arrested, charged and imprisoned
for their involvement in collective protest action during the year in the People’s Republic of
China, where trade union rights are not respected. Workers are prevented by law from
organising outside the All-China Federation of Trade Unions (ACFTU), which is bound by its
constitution to accept the leadership of the Chinese Communist Party (CCP). The Trade
Union Law bans workers from organising independently.
No freedom of association: China’s Trade Union Law was adopted in 1950. It was amended in 1992 and again in October 2001.
Workers are not free to form or join the trade unions of their choice. Only one “workers’” organisation is recognised in law, the All
China Federation of Trade Unions (ACFTU).
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According to the revised version of the law, “the ACFTU and all organisations under it represent the interests of the workers and safeguard their legitimate rights”. Trade unions must also “observe and safeguard the Constitution (…), take economic development as the
central task, uphold the socialist road, the people’s democratic dictatorship, leadership by the Communist Party of China, and MarxistLeninism, Mao Zedong Thought and Deng Xiaoping Theory (…) and conduct their work independently in accordance with the
Constitution of trade unions”.
Among their basic duties and functions, trade unions shall “coordinate labour relations through consultation”, “mobilise workers to
strive to fulfil their tasks in production” and “educate them in the ideological, ethical, professional, scientific, cultural and other areas,
as well as self-discipline and moral integrity”. The law also gives trade unions ample prerogatives in various areas such as “democratic
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management and supervision” (see below).
Trade union monopoly: Article 10 of the law establishes the ACFTU as the “unified national organisation”. Under Article 11, the
establishment of any trade union organisation, whether local, national or industrial, “shall be submitted to the trade union organisation
at the next higher level for approval”. Trade union organisations at a higher level “shall exercise leadership” over those at lower level.
The law also empowers the ACFTU to exercise financial control over all its constituents.
Collective bargaining: There is currently no law governing collective bargaining procedures, only regulations on collective contracts
(CC). However, if a collective contract is established in line with the regulations, it is legally binding. The new labour law (effective
1995) adopted collective consultation as a key medium for settling disputes between employers and workers, with the government pushing the ACFTU to “consult” with employers on labour terms for workers as a way of pre-empting independent efforts at negotiations.
Article 33 of the Labour Law states that workers have the right to conclude a collective contract “in an enterprise where the trade union
has not yet been set up”. The CC regulations also reinforce this.
The 2004 government “white paper” on employment encourages the ACFTU to conclude “collective contracts” in order to protect workers’ rights, and the labour law permits collective consultation and contracts to be concluded between the ACFTU (or workers representatives) and the management. According to official statistics, collective contracts cover almost 100 million workers with some 80,000 sectoral/industrial contracts for 33 million workers while 61.7 million workers are parties to contracts with their individual employers.
In May 2004, amendments to the Provisions on Collective Contracts came into force. They call for more detail in the collective contracts
signed. The regulations also outline the procedures involved in the consultation and the theoretical equality of both parties. However
despite greater opportunities for collective bargaining and the obvious need for worker protection for many workers – including migrants
– there has been little progress towards any form of genuine collective bargaining. Instead the ACFTU continues to “represent” the
workers to management and government structures, without seeing the need to discuss, inform, listen to or be guided by the workers who
still have little say in policy. In the private sector, where branches of the ACFTU are largely inexistent, workers denied the ability to
organise independently face almost insurmountable obstacles to collective bargaining and representation.
Right to strike not protected under the law
The right to strike was removed from China’s Constitution in 1982, on the grounds that the political system in place had “eradicated
problems between the proletariat and enterprise owners”. Despite expectations that the revised Trade Union Law would include the right
to strike, the revised law skirts around the issue by stating (Article 27): “In case of a work-stoppage or a go-slow in an enterprise, the
trade union shall represent staff and workers in consultation with the enterprise, institution or relevant party, and shall reflect the opinions and demands of staff and workers as well as raise solutions. The enterprise or institution shall strive for a settlement with the reasonable demands made by the staff and workers”. Article 27 does not employ the term “strike”(bagong), but instead refers to instances
of “work-stoppage” (tinggong) and “go-slows” (daigong). There are increasing calls within China for legislation of the right to strike and
continued academic debate on the issue.
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Health and safety - stoppages allowed: Article 46 and 47 of the new Work Safety Law, promulgated in November 2003, state
that workers who encounter a situation at work that directly endangers their personal safety have the right to refuse orders which violate health and safety rules, and the right to stop work and leave the workplace.
Dispute resolution: In the last decade, the government has made considerable efforts to create a dispute resolution system that
involves three stages: mediation, arbitration and the courts. China’s 1994 Labour Law assigns trade unions the roles of chairing enterprise-based “labour dispute mediation committees” and of participating as a member in tripartite “labour dispute arbitration committees” (LDAC), the latter being chaired by the local labour bureau.
An increasing number of labour disputes end up in the law courts. This is because the LDACs are overwhelmed and their decisions often
ignored by employers; the courts are seen as a better bet by workers taking legal action. Much of this is due to the unprofessional behaviour of LDAC personnel and to the fact that employers take court decisions more seriously.
There is an ongoing year-on-year increase in collective cases being brought to court or to arbitration, especially those of migrant workers. This has implications for labour dispute settlement, as well as migrants’ growing consciousness of their rights - migrants are emerging as a more powerful bloc in society. One 2005 study showed that the number of collective labour disputes nationwide increased more
than five times, from 1,482 in 1994 to 11,000 in 2003 and some 515,000 in 2003. Participants in labour disputes rose from 77,794
in 1994 to about 800,000 in 2003.
International obligations: China has ratified neither of the two fundamental ILO Conventions on freedom of association; the right to
organise and to bargain collectively (ILO Conventions No. 87 and No. 98). In February 2001, it ratified the International Covenant on
Economic, Social and Cultural Rights (ICESCR), but announced at the same time that provisions guaranteed under Article 8,1 (a) of
the covenant, namely the right to establish and join workers’ organisations of one’s own choosing, would be dealt with in accordance
with Chinese law. In doing so, the government effectively entered a reservation concerning a fundamental element of the Covenant,
thereby putting itself in breach of internationally recognised principles on the law of treaties. It did not, however, enter any such reservation concerning Article 8, 1 (d) of the covenant which, alone amongst international legal instruments, explicitly guarantees the right to
strike.
In April and May 2005, the United Nations Committee on Economic, Social and Cultural Rights, which monitors State parties’ compliance with the ICESCR, examined the first report submitted to it by China following its ratification of the Covenant. In its “Concluding
Observations”, the Committee “regretted” China’s “prohibition of the right to organize and join independent trade unions”. It also
“urged” China “to amend the Trade Union Act to allow workers to form independent trade unions outside the structure of the All China
Federation of Trade Unions. Further, the Committee strongly urge[d] the State party to consider withdrawing its declaration on article
8, paragraph 1, of the Covenant.” These issues had been strongly underscored in comments presented to the Committee by the ICFTU.
In the course of the year, the Standing Committee of the National People’s Congress, China’s top legislature, ratified ILO Convention
111 concerning Discrimination in Respect of Employment and Occupation. At year’s end, discussions were continuing with the ILO concerning the ratification of several other Conventions.
All attempts to establish independent trade unions repressed: No independent trade unions are allowed to exist, and all
attempts at establishing independent workers’ organisations are repressed, sometimes violently. Organisers of worker groups or protests
are often arrested. Some are sentenced to terms of imprisonment (officially called “reform through labour”, or “lao gai”) after criminal trials which fall well short of international standards. Others can be assigned to terms of “re-education through labour” (“lao jiao”,
sometimes called “rehabilitation through labour”), an administrative process which bypasses the few safeguards of the criminal justice
system. The result of such repressive measures is that examples of independent unions are rare and short lived. Organisers of collective
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actions operate at great risk. The fear of detention also makes negotiations between workers’ representatives and the authorities and
employers extremely difficult. However, there has been a marked trend of worker organisers being prepared to take this risk, and a rise
in collective action generally.
Role of the ACFTU and new developments: The ACFTU has a monopoly over union organisation - one which it and the government strictly enforce. The ACFTU has the unenviable position of being asked to assist the government in the primary task of ensuring
social stability during the economic changes in Chinese industry, while on the other hand being urged to represent the demands of workers to ensure that obvious problems and inequalities emerging in the new “socialist market economy” do not lead to an independent
worker movement. As a result, it actively calls on employers to follow the labour law, while at the same time urging workers to better
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equip themselves with knowledge of the law. It generally argues that to pursue what it regards as a “foreign” type of trade unionism
would threaten the government’s policy of putting “development first”. It quietly promotes the view that instability on the shop floor
would threaten “social stability” and produce “chaos”, usually with a reference to the Cultural Revolution, the collapse of social order in
the former Soviet Union and what it sees as negative developments in Indonesia, in reference to the multiplicity of trade union organisations in that country after the fall of the Suharto regime. Increasingly the authorities are referring to the need to ensure political aspirations for democracy, and worker-led initiatives are kept in check in order avoid a “colour revolution” similar to the events which took
place in Ukraine at the end of 2004 and in early 2005.
The Chairperson of the ACFTU, Wang Zhaoguo, is also a member of the Communist Party’s Politburo and a former Governor of Fujian
province. There has been no indication that Wang, appointed in 2003, has departed from the ACFTU’s traditional role of maintaining
political and economic stability in favour of representing its members. The organisation remains firmly under the leadership of the Party,
the interests of which always take priority.
There is little doubt that the organisation is under huge pressure to meet the government’s target of avoiding a repeat of the large-scale
collective action that took place in northeast China during the spring of 2002. Several new policies were discussed at the 14th Congress
in 2003, including direct trade union elections of enterprise-level branch Chairpersons and the opening of the union to migrant workers,
whose formal status as farmers previously excluded them. In 2005 the ACFTU announced that it was expecting some 6.5 million
migrant workers to join in 2006. However, welcome though these initiatives were, there have been no open signs of the organisation
making even token efforts to distance itself from its constitutional acceptance of Party leadership. It remains a tool of government policy.
In January 2005, the State Council sent out a circular calling on local governments to enforce the Trade Union Law and support trade
unions in playing their role. The circular stressed the role of the ACFTU in policy making and in the restructuring of SOEs. It is believed
that the circular is part of a general push to make the ACFTU’s work more relevant to current industrial relations, for workers and
employers alike. In 2005, the ACFTU also highlighted that it will continue to focus on issues relating to migrant workers and on increasing the percentage of migrant members of the ACFTU. The ACFTU continues to publicise the need for unions in private companies, and
in particular has been highlighting Wal-Mart. It has officially reported that it is not going to take on lawsuits to push for unions, but
rather continue to “urge” companies to do so.
Where detailed reports of social unrest are available, workers generally dismiss the official trade union as unhelpful or ineffective at
best. At local level, ACFTU officials usually either deny any knowledge of independent workers’ action, or hint that their dual function as
upholders of Party and government, and representatives of the working class, renders them unable to defend workers’ interests in the
face of massive restructuring in the state sector and investor-friendly environments in the private sector. While claiming that its key concern is the welfare and protection of the more than 21 million workers who have been dismissed in this restructuring process, the
ACFTU appears to be helpless in negotiating, let alone enforcing, any social safety provisions that may have been obtained. The privatisation of state, or other collectively-owned assets, frequently goes hand in hand with the corruption of local and regional government
officials, over whom the ACFTU appears to have no influence. It should be noted, however, that, while major labour unrest is generally
not reported, smaller collective actions increasingly are, thanks chiefly to the initiatives of workers and courage of individual journalists
and editors.
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On 4 January 2005, 83 migrant workers in Chongqing briefed a lawyer to sue the Chongqing Federation of Trade Unions in the
Chongqing Middle People’s Court. The 83 workers were employed by the Changan Automobile Company. In October 2003, they were
sacked after a conflict with the company on issues such as compensation and social security insurance. On 22 December 2004, the
workers appealed the company’s action through the Chongqing Arbitration Committee of Labour Disputes, which accepted the case.
However, the workers could not pay the 210,000 Yuan required in fees and applied for a late submission of charge. However, to do so
under law they needed to obtain approval, which they are required to do via the Chongqing Federation of Trade Unions. They applied for
approval twice but the federation rejected the applications. The workers believe that the federation is in breach of its statutory duty as it
did not approve the application.
Elections: Although the trade Union law states clearly that trade union officers at each level should be elected, this is usually ignored
and most officials are appointed. Many provinces are now developing regulations on union elections. Elected candidates are subject to
approval by the provincial-level ACFTU committees. The majority of workers, if aware of the existence of a branch union, have little
idea if their chairperson has been elected or not. In many cases workers, are simply unaware that they have a trade union.
Many provinces have developed – or are in the process of developing – regulations which guide the obligation to hold trade union elections stipulated in Article 9 of the Trade Union Law: “Trade union committees at various levels shall be democratically elected at members’ assemblies or members’ congresses. No close relatives of the chief members of an enterprise may be candidates for members of the
basic-level trade union committee of the enterprise.” A few of the elections taking place in workplaces are not confined to electing the
chairperson of a workplace union branch, but concern the full membership of the union committee as well.
Membership: Official ACFTU figures claim over 150 million members - a sharp increase from the 90 million it claimed in 1998/99
and even the 134 million for 2003. However, it should be noted that the recruitment campaign launched in 1998 has essentially been a
paper campaign. The legal procedure for registering a union office in an enterprise can be completed without trade union officials even
entering the workplace, and branches can be set up in some enterprises simply by carrying out administrative procedures.
Disputes: Collective disputes are defined as involving three or more people. The overwhelming majority are small-scale incidents - an
average of 38 people in 2003 - that are mostly settled via mediation at enterprise-level, arbitration or the courts, with the latter channel
becoming increasingly popular with workers in large cities, as seen above. Workers feel they will get a fairer hearing in court than at
arbitration committees, despite the lengthy processing time and low success rates. On average, half of the judgements and arbitrations
or more are found in workers’ favour although serious problems remain over the timely enforcement of court decisions in favour of
workers.
While the Labour Law, Trade Union Law and Occupational Safety and Health Law make mention of “work-stoppages”, workers who
put these vaguely-worded provisions to the test are likely to face a host of problems. They are usually picked up by the police and
warned about public order offences, traffic violations, breaking the law on parades and demonstrations, or much more serious political
charges. Strike organisers and independent labour activists also face the threat of re-education through labour (RTL), a form of administrative detention. Though in principle limited to three years, in practice, these periods of forced labour can be extended at the authorities’ will, as has been proven in many cases. The Trial Implementation Methods For Re-education Through Labour state: “Those who
have a job but who for a long time refuse to labour or destroy labour discipline, and who ceaselessly and unreasonably make trouble,
who disturb the order of production or work, or the order of teaching or research and the order of life, who hinder public affairs and
who do not listen to advice and instructions to stop,” are eligible for RTL. RTL is an administrative punishment which is imposed without recourse to the criminal justice system and which the ILO considers to be in violation of ILO Convention 29 on forced labour.
However, the government gave indications in 2004 that it was seriously contemplating ratification of Convention 29 and is reportedly
well aware of the legal and practical implications which this might have in the context of the present RTL system.
Collective bargaining remains ineffective: Collective bargaining remains severely handicapped by the non-existence of independent organisations on either side. Almost all contracts are drawn up by employers and simply reflect minimum legal requirements or the
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continuation of past practice - though privatisation makes the latter increasingly rare. The subordinate position of the ACFTU to the government and the Party means that it will often work with the employer in drawing up collective agreements which simply mirror - at
least on paper - the labour law. There is very little actual bargaining and in fact the Chinese term employed is “collective consultation”
rather than “collective bargaining”. Very often workers are offered no formal contract at all, especially migrants in export processing
zones (EPZs). If they do sign a contract, they are rarely given a copy. ACFTU officials have been quoted as opposing wage increases in
order to avoid triggering demands for similar deals.
Tripartism: Tripartite consultative bodies are rapidly being established throughout China as a means to ensure industrial peace and a
way of tackling disputes that are not resolved through the formal disputes settling procedures. However, the presupposition of tripartite
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consultation - the independent representation of the interests of the three parties - is absent in China and the subordination of trade
unions and whatever employers’ organisations exist to the Party is clearly in gross violation of what the ILO regards as the most fundamental precondition for real social dialogue. Against the background of such fundamental limitations, an ILO mission examining tripartite consultation in China, while pessimistic about the future development of genuine bargaining within the current political arrangements
in China, nevertheless reported that “in all our interviews with trade union and employer representatives at municipal and national levels, we found a clear commitment to developing the capacity of their respective organisations as independent representatives, able to
articulate the interests, aspirations and grievances of their members within the system of social dialogue.”
Worker protests - numbers, forms and causes: While it remains difficult, if not impossible, to estimate the total number of
worker protests in China due to media censorship and continuing secrecy regarding statistics, is clear that the trend of increasing
protests has continued throughout 2004. In addition to regular collective protests against non-payment of wages, fake and genuine bankruptcies and corruption involved in the privatisation of state-owned industrial assets, there has also been a rise in individual protest.
Some media reports have concentrated on workers who have jumped or threatened to jump off buildings to claim unpaid wages. This is a
tactic of some workers, aimed at attracting attention, either through physical harm or risk thereof, or through arrest. Hardly ever do
people actually jump. The workers who have developed this tactic are almost exclusively migrant workers.
According to figures from the Ministry of Public Security, there was a sharp rise in officially registered public disturbances in 2005.
Large scale incidents of “mass gatherings to disturb social order” rose by 13 per cent. In one report, “mass protests” or “mass incidents” including riots, demonstrations, and collective petitions, rose from 58,000 in 2003 to 74,000 in 2004. Many mass disputes were
about land seizures in rural areas, about half of which are labour-related. Low and missing back wages were the main causes of mass
labour disputes which, according to Chinese academics, rose from 1,482 in 1994 to 11,000 in 2003. The number of workers involved in
labour disputes reached some 800,000 in 2003. During the first half of 2002, there were 280 mass labour incidents of 100 workers or
more, a 53 per cent rise on the previous year. In 2003, mass incidents involving currently employed, laid-off, or retired workers constituted 46.9 per cent all mass incidents.
Right to “stoppages” over health and safety issues not respected: The numerous examples of workers being forced to continue working in unsafe conditions reveal that, in practice, workers have little confidence in using their new found rights to “work-stoppages” foreseen under the Labour Law, Trade Union Law and Occupational Safety and Health Law. Many incidents continue to be monitored where workers are refused the right to stop work when they believe they are faced with an impending accident or dangerous situation. One example was the December 2004 Chenjiashan mine fire which killed at least 166 workers. According to miners who escaped
the mine, the manager had ordered miners to continue working, despite a large underground fire in one of the shafts. Miners who initially refused to continue working were ordered back, with threats of dismissal and other penalties.
VIOLATIONS IN 2005
Background: Privatisation continues to be a major cause of labour unrest and is plagued by massive corruption. Many workers have
been affected by the embezzlement and misappropriation of factory assets and funds set aside for redundancy and other benefits during
state-owned enterprises’ (SOE) restructuring. Many of the larger protests in 2005 can be traced back to the issue of corruption, the non-
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payment of earmarked funds for workers, and the widespread flouting of local or national regulations on pensions, health care and
redundancy.
Restrictions on worker rights and the role of the ACFTU are partly driven by the government’s fear of losing control of its decentralised
organs, but also fear that such rights may lead to an erosion of its low wage advantage for investors. For example, in August 2005, at
the same time as discussing the ratification of ILO Convention 111, the NPC Standing Committee also passed a revised Security
Administration Punishment Law outlining administrative penalties for public order offences. This regulation includes detention for the
new offences of “instigating” and “masterminding” illegal public demonstrations, thus bringing a further sanction down on potential
labour disputes and the workers involved in them.
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International Solidarity
Jewellery and battery workers campaign in Hong Kong and internationally: In a new development, workers from various
gem and jewellery factories in southern China grouped together to campaign for proper compensation for contracting silicosis and to
highlight the endemic existence of silicosis in China’s gemstone industry. Workers from the Eryou Factory in Foshan, Hao Xin Precious
Metals Jewellery Factory, Perfect gems, Ko Ngar and Lucky Jewellery Company have all been working with local labour groups and
Hong Kong unions in calling for adequate compensation and changes to the compensation system, after many tried unsuccessfully to
gain compensation to cover medical treatment for their diseases despite having had to stop work. Several have been dismissed and
detained for their actions.
At the same time workers from the Gold peak-owned battery factories who have been affected by cadmium poisoning have also been
lobbying for compensation in Hong Kong.
Chronological List
January - Xianyang Textile workers strike: More than twenty Xianyang China Resources (Huarun) Textile Factory workers,
detained by the police in Xianyang (Shaanxi Province) in October 2004 for their involvement in mass protests and strike action against
unfair labour contracts, were reportedly all freed and were released without charges in December 2004 and February 2005. From
September until the end of October 2004, almost 7,000, mainly female, workers had staged an unprecedented strike at the factory, following its transfer to new ownership by China Resources, a Hong Kong-based conglomerate, and the new management’s attempt to
impose harsh labour contracts and working conditions on the workforce. All production at the enterprise was halted for almost seven
weeks, making the strike one of the longest known in recent years. Shortly after the initial arrests were made, several key concessions
were offered, including the promise of longer contracts for workers and the cancellation of threatened wage cuts. Workers had been in
the process of trying to obtain legal advice, but their lawyer was detained by police. Instead, the General Trade Union of Xianyang City
appointed a “trade union organising committee” at the factory. This effectively prevented the striking workers from continuing with
their own trade union election and their attempts at starting negotiations with the factory management.
April - Shenzhen Uniden strike: Over 10,000 workers of the Japanese-invested Uniden Electronics factory in Fuyong Town,
Shenzhen, staged a strike in April 2005 in an effort to win the right to set up their own trade union in the factory. The strike was
prompted by the forcible dismissal of an active organiser, Chen Yongshun. According to media reports, this is the fourth or fifth such
strike to have occurred at the factory since it started operating in 1987. In December 2004, following reports that a Japanese supervisor had beaten up several workers at the factory, several thousand workers staged a strike and sent a collective petition to the factory
management, listing a total of 15 demands, including that workers should be allowed to set up a trade union at the factory, as agreed to
by Uniden management in 2000, as well as payment during sick leave and other salary-related demands. The management then promised to raise the workers’ salaries and said it would permit the workers to set up a trade union, but these promises were never kept.
According to one worker involved, an official union was founded in late July, but was controlled and led by Uniden management. After
the strike in April, management instead sacked many of the most active workers.
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Shehong county silk factory: In 2000, the Shehong County government declared the county silk factory bankrupt, without the necessary approval of the enterprise’s Workers’ Congress. The workers were then paid only a 120 Yuan monthly living allowance. Workers
believed that the original cause of the factory’s problems was embezzlement of funds by officials. In April 2005, the county government
attempted to formally dissolve all labour relations with the 2,800 ex-workers and set the compensation per year of work at 606 Yuan.
On 24 April, several thousand workers staged a demonstration outside the county government offices to demand a fairer compensation
plan.
June – official union idle at Siemens: As part of the takeover of Siemens by the Taiwanese company BenQ, 95 per cent of the
China sales staff of Siemens was dismissed in June with one day’s notice and no time to negotiate adequate compensation. Workers
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claimed that the trade union at the company had done nothing to negotiate compensation terms or halt the dismissals and only undertook
social events. On 29 June, laid-off staff demonstrated outside the company’s headquarters in Beijing.
July - machinery plant protest: At the start of July, some 200 retrenched workers staged a sit-in outside the gates of the Inner
Mongolia North Heavy Industries Group Ltd Factory (NORHEINCO), demanding negotiations over unilateral retrenchment measures
and missing wages dating back to the late 1990s. Three workers were subsequently injured in a clash with police. In 1999, The Inner
Mongolia Number Two Machinery Factory (later known as NORHEINCO) had begun retrenchment measures affecting over 2,400
workers.
October - Over 10,000 steel workers protest in Chongqing municipality: On 7 October, some 10,000 protestors, many of
whom were laid off workers from the Chongqing Tegang Special Steel Plant, were dispersed by police who detained several dozen protesters, including three identified as leaders. It was also reported that two female protestors had been killed in the violent confrontation
but no confirmation was available. The steel plant declared bankruptcy but workers claimed that the bankruptcy was fake and that management were keeping the company’s profitable assets. The workers had been protesting since August while worker representatives negotiated retirement terms with the management. A subsequent agreement in September was not honoured by the management and the
workers then resumed their protests on 7 October.
November – beating at Italian sofa factory: Several workers at an Italian owned sofa factory – Decoro – in Shenzhen were
reportedly beaten by their Italian supervisors over a pay dispute, after several workers attempted to negotiate over pay cuts and were
later effectively dismissed. Workers informed labour groups that they did not receive the obligatory one day rest per week and did not get
any medical insurance or pension benefits. Workers also reported having to work in unsafe conditions with little protection against toxic
fumes. After the beating, some 3,000 workers launched a strike and a public demonstration on 1 and 2 November.
Repression of rural workers’ protests over land seizure: In 2005 there have been an increasing number of incidents involving
violent repression, by both public security forces and privately-hired armed gangs of rural and urban workers resisting land seizure. The
practice of forcible seizure by local officials of generally attractive land (in terms of infrastructure access or location) has increasingly
added to the pressure felt by rural workers and farmers, who often turn to work in small village and township enterprises to supplement
or supplant their decreasing farm earnings. Some join the ranks of China’s illegal coal and other miners working in village mines. There
were violent confrontations in Hebei, Guangdong and Zhejiang. A significant example was the killing of six farmers from Shengyou
Village, Dingzhou, Hebei Province, in June over the illegal seizure of village land (and the embezzlement of the compensation paid for it)
to build a private factory. Some 100 villagers were injured and at least six killed after violent clashes with armed groups hired by the
local officials to stop the village blockade of the construction. The local party secretary and other officials were dismissed after the riots.
In July, nine farmers from Anyue County, Sichuan, were injured in a violent clash after villagers protested against a forcible eviction
from village land in order to build a new development. Many similar incidents were reported in the course of the year.
Long term detainees: Dozens of independent labour activists and leaders jailed in previous years remained in prison in 2004. The following is a partial list. More information about some of these and about earlier cases may be found in previous issues of this survey. They
include activists, notably members of the Workers’ Autonomous Federations (WAF), arrested in the wake of the Tiananmen Square
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massacre of 4 June 1989, and the protests that followed. Most of those imprisoned at this time were sentenced to harsh prison terms
for crimes such as “counter-revolution” or “hooliganism”, neither of which exist in present Chinese criminal law (although they have to
a large extent been replaced by charges such as “threatening the security of the State” and “disturbing public order”). Shao Liangshen
(Liangchen) was sentenced to death in September 1989 and is now believed to have passed away (see below). Hu Shigen, who helped
establish the Free Labour Union of China (FLUC) Preparatory Committee and who was jointly indicted in 1993 with fifteen others,
including Liu Jingsheng, on “counter-revolutionary” charges, received a 20 year sentence. He is reported to be suffering from chronic
migraines, intestinal illness, malnutrition and a spine problem which could lead to paralysis if not treated. In 2004, the ICFTU, affiliates, GUFs and other bodies called for his release on medical grounds. Several leaders and activists detained at the same time as Hu
Shigen are believed to remain in detention; Liu Zhihua and Liu Jian, of whom little is known and Kang Yuchun, sentenced to 17 years,
seriously ill with heart problems. Zhu Fangming, a worker at the Hengyang City (Hunan Province) Flour Factory and vice Chairman of
the Hengyang City Workers Autonomous Federation, allegedly led workers to the municipal Public Security Bureau after 4 June to
demand justice and was sentenced in December 1989 by the Hengyang City Intermediate People’s Court to life imprisonment on a
charge of “hooliganism”. In November 2004, Liu Jingsheng, sentenced to 15 years, was released. Peng Shi was also reportedly
released in 2004, but there has been no confirmation.
Medical Concerns and deaths: In addition to concerns over Hu Shigen, fears were heightened over the deteriorating health of Yao
Fuxin and Xiao Yunliang, who were sentenced in May 2003 to four and seven years imprisonment respectively for their part in the mass
protests in Liaoyang in March 2002. Since their imprisonment, the health of both men has been deteriorating. Prison authorities are
currently providing them with little or no medication or other medical care. Despite repeated calls during 2004 and 2005 by their families, the ICFTU and the international trade union movement, and despite the clear legal basis for their release, medical parole was
denied to Yao and Xiao. As a result, both men were reportedly very ill, suffering from chronic illnesses which have not being successfully
treated. Neither of the two men was able to receive full and proper medical treatment for their illnesses while in prison, and their condition deteriorated rapidly. Yao Fuxin reportedly suffered a heart attack in August. The health of their families was also affected and Xiao
Yunliang’s wife suffered from cerebral thrombosis. The ACFTU still failed to provide any response whatsoever to repeated calls by the
international union movement that it intervene on their behalf. At year’s end, both remained in detention.
Shao Liangchen was a leading member of the Ji’nan Workers’ Autonomous Federation in Shandong Province during the May 1989 prodemocracy demonstrations. He was detained by police on 15 June 1989, tried in September that year by the Ji’nan Intermediate
People’s Court on charges of “sabotaging communications equipment” and then sentenced to death with a two year reprieve. His sentence was subsequently reduced to life imprisonment, and then in July 1994 to 17 years’ imprisonment. He received two further sentence reductions in 1998 and 2000, totalling three years and six months, bringing his date of release to 4 November 2007. He was
reportedly diagnosed with leukaemia in 2004 and, according to credible sources, passed away in late 2004, two months after having
been released on medical parole, most probably from Weihu Prison, in Shandong Province.
Psychiatric detention – effective and possible releases: Wang Wanxing and Wang Miaogen, both involved in the Workers’
Autonomous Federations (WAF) of 1989 and both incarcerated in psychiatric hospitals for over ten years, are now both believed to be
released. After many reports of the ill treatment of Wang Wanxing, including his move to a “secure ward” where he was being held
with violent patients, Wang was finally released in August 2005 after 13 years imprisonment. According to reports, Wang is recovering
from his ordeal and is not suffering from mental illness. Wang Miaogen is presumed released in 2005 but there has been no confirmation. Another labour activist, Pen Yuzhang, a member of the Changsha Workers’ Autonomous Federation in 1989, has also been held in
a psychiatric institution. Government reports about his release have not been independently confirmed.
Mental illness as a result of imprisonment: Cases have been reported of detained labour activists becoming mentally ill after
being severely mistreated in jail or labour camp. One such case is that of Yao Guisheng, another member of the Changsha WAF, responsible for helping WAF leaders to escape arrest in the immediate aftermath of the country-wide repression which followed the Tiananmen
Square events. He was sentenced to 15 years’ detention in October 1989 on charges of “robbery and assault” (trumped up after an
argument with a taxi driver), later changed to “looting”. According to former prisoners, he was periodically placed in solitary
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confinement for refusing to “admit his guilt”, was regularly beaten and forced to wear shackles. He became mentally ill as a result. His
case was later taken up by the Special Rapporteur on Torture of the UN Commission on Human Rights. In 1994, the government told
the Special Rapporteur that Yao had never been ill treated. Yao was due for release in 2004 but there have been no reports of his actual
release.
Recent cases: In September 2004, Kong Youping and Nin Xianhua were sentenced to 15 years and 12 years imprisonment respectively on charges of attempting to “subvert state power” after reportedly posting articles on the internet which supported the establishment
of independent trade unions, freedom of association and the banned China Democracy party. Other relatively recent cases include Lu
Wenbin, a special correspondent for the Textile Daily newspaper, arrested on 22 December 2001 for documenting a strike and interview2 0 2
ing workers at the Huainan Textile Factory in Dafeng.
Yang Jianli is a US-based researcher who participated in the Tiananmen Square pro-democracy movement in 1989; his name was on a
1994 PRC police blacklist of 49 Chinese pro-democracy activists who were barred from re-entering China. Yang Jianli entered China in
April 2002 by using a friend’s passport, as part of a plan to try and investigate the rapidly growing labour unrest situation in Shenyang
City, Liaoyang City and Daqing City in north-eastern China. He was detained on 26 April 2002 and officially arrested by the Beijing
State Security Bureau on 28 April 2002. He was then held in solitary detention for the next 15 months, well beyond the legally permitted maximum period for pre-trial detention. On 13 May 2004, Yang was tried in a closed court hearing on charges of “espionage” and
“illegal entry,” and was duly pronounced guilty and sentenced to a term of five years’ imprisonment.
Hu Mingjun and Wang Sen were leading members of the Sichuan branch of the banned China Democracy Party (CDP). On 18 December
2000, some 1,000 workers from the Dazhou Steel Factory staged a public protest demanding 12 months of unpaid wages. Hu and Wang
contacted the demonstrating workers and the CDP then issued a statement in support of the workers. After calling for the establishment
of independent trade unions, Hu and Wang were sentenced to 11 and 10 years imprisonment respectively. A third man, Zheng Yongliang,
was believed to have been released. Hu Minjun is due for release in May 2012 and Wang Sen in April 2011.
Zhang Shanguang, a teacher from Hunan and a veteran independent labour activist and prisoner was sentenced to ten years in 1998
under charges of “threatening the security of the State” after attempting to set up an independent trade union. There have been repeated
reports of the ill treatment and torture of Zhang, which increased after he attempted to improve conditions at the Hunan Provincial
Prison N°1 where he is detained. He suffers from tuberculosis and heart disease, but is reportedly forced to work in shackles.
Yue Tianxiang and Guo Xinmin were both drivers at the state-owned Tianshui City Transport Company. In 1995 they were laid off
despite being owed three months back pay. When the company refused to negotiate a settlement regarding wage arrears and a legallyentitled living allowance, the two workers decided to take their case to the Tianshui Labour Disputes Arbitration Committee. The
Committee’s decision stipulated that the company should find new positions for the two as soon as possible, but the manager refused to
abide by the decision. When Yue and Guo realised that many fellow workers faced the same treatment, they set up a journal called China
Workers Monitor and used it to publish reports of corruption at their former company. They also wrote an open letter to then-President
Jiang Zemin and asked for official intervention from Beijing. When they received no answer they sent the same letter to the international
media. Within two weeks they were detained by the police and charged with subversion. On 5 July 1999, Yue was sentenced to 10 years’
imprisonment and is now due for release in January 2009. Guo’s situation was unclear at the time of writing.
Du Hongqi was a worker at an artillery factory run by the South China Industries Group. The arms factory was going bankrupt and
taken over by another enterprise, which was planning to convert it for civilian production. Due to a much reduced need for labour, 700
out of the 1,500 factory workers were laid off. Husband and wife, Du Hongqi and Li Yanying, two of the laid-off workers, had already
founded an underground trade union in September 2003 to fight for better working conditions and had organised several petitions and
protests. After the mass lay-offs, their union helped to voice the workers’ demands for unemployment compensation and aid to find new
jobs. The leaders were subsequently apprehended. Du was detained on 24 November and formally arrested on 8 December 2003 under
the charge of “assembly to disturb social order” On 18 October 2004, he was tried and sentenced to three years’ imprisonment, and is
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due for release in October 2006. His wife is also believed to have been sentenced but her fate was not clear as this issue of the survey
went to press.
In April 1999, Gao Hongming and his friends Xu Yonghai and Zha Jianguo established the China Free Workers Union. Shortly after
that, Gao was detained and charged with “incitement to subvert state power” and sentenced to eight years’ imprisonment. He is due for
release in June 2007. Zha was detained on 29 June 1999 and sentenced to nine years’ imprisonment under charges of “incitement to
subvert state power”.
Other labour activists who remained in detention include Li Bifeng, Zhao Changqing, and He Chaohui. All had tried to protect workers’
interests, by protesting, organising or representing workers.
Workers whereabouts unknown: In addition to several detained workers mentioned earlier, the plight of many workers detained
during labour protests remains unclear. While it is assumed most are usually released after a few days or weeks in administrative detention, no formal notification is forthcoming. Two female labour activists, Liu Meifeng and Ding Xiulan, were arrested for “disturbing
social order” and detained on 20 October 2004. Their case was reported earlier. The two women are now presumed released but no confirmation has been given.
Li Wangyang, a veteran independent trade union activist, was sentenced to ten years’ forced labour on 20 September 2001. His sister Li
Wangling was sentenced to three years’ re-education through labour on 7 June 2001 for helping him to publicise his demands. It is
believed that Li Wangyang’s sentence is now finished but there has been no confirmation of his release.
Cai Guangye, a doctor employed in a military hospital, was arrested in December 2001 for supporting protesting workers at a chemical
company in Jilin and sentenced to three years’ re-education through labour in July 2003. Cai was believed to be due for release in
December 2004 but there has been no confirmation of his release.
The whereabouts of seven miners from Neijiang City detained following a protest remain unknown. They are: Wang Changchun, Wang
Fanghua, Wang Heping, Wang Liguo, Wang Qun, Zhang Jun and Zhu Wanhong. Information on Ni Xiafei and Li Keyou has not been
made public and it is assumed they remain in detention.
Workers released in 2005: In addition to the August release of Wang Wanxing, Liao Shihua, sentenced in December 1999 to six
years’ imprisonment after organising a protest by workers of the Changsha Automobile Electrical Equipment Factory was (according to
information provided by the Chinese government) released from Chishan Prison at the conclusion of his sentence on 9 June 2005
According to reports, the writer Yang Tianshui was released on 25 January 2005. Yang was arrested on 24 December 2004 in
Hangzhou on charges of “inciting subversion of state power” after his work on the commemoration of 4 June and writings on migrant
labour issues.
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A major strike in July by hotel workers was declared illegal by the Minister of Labour, leading to reprisals against workers by employers. In the private sector, employers regularly
ignored union recognition orders with impunity. The FTUC and its members continued to
push for labour law reform, but despite government promises, the process was still stalled in
the Parliament at year’s end.
Freedom of association: Under the Fiji Constitution and the Trade Unions Act, workers have the right to form and join trade unions
and they have the right to organise and bargain collectively. The Trade Unions Act requires a minimum of seven people to form a trade
union. All unions must be registered with the government. The Act does not apply to the Navy, the Military and Air Service of the
Crown, the Royal Fiji Police Force, or the Fiji Prisons Service. Restrictions can be applied in government employment, in the interests of
defence, public safety, public order, public morality or public health.
Employers are required to recognise a union for collective bargaining if more than half of their employees have joined it. While they
should also recognise minority unions, they normally fail to do so, and unrecognised unions have little redress except to attempt to
achieve 50 per cent membership, and then file appeals to the Ministry of Labour, and ultimately, the courts, to overturn this refusal of
their rights.
The Permanent Secretary for Labour has the power to decide on the registration, suspension or cancellation of trade unions, after consultation with the Advisory Committee, which is appointed by the Minister of Labour and Industrial Relations. The Advisory Committee
has four members: one from an employers’ organisation, one from a workers’ organisation, and the other two are “independent”. Union
expenditure is closely monitored, and unions can have their registration suspended or cancelled if they fail to file required annual financial reports to the Ministry of Labour.
The government also continued a restriction on the key elected office of union Secretary General, under which any individual occupying
that position is required to work (or have previously been employed) in the industry or trade with which the union is directly concerned.
Right to strike: The right to strike is recognised for all matters except those relating to trade union recognition. Under the Trade
Unions Act, unions are required to give 21 days’ notice to the Registrar of Trade Unions (who reports to the Minister of Labour) before
putting a strike to the ballot. The strike is allowed if more than 50 per cent of the paid-up members vote in favour. This applies to all
unions, in both essential and non-essential industries. With respect to “essential” industries, however, the Trade Disputes Act imposes a
further 28 days’ notice and organisers must provide the Ministry of Labour with information concerning the date, time and location of
the strike, together with a list of participants. The list of “essential” industries claimed by the government remains far more extensive
than provided for under ILO convention no. 87, despite ILO recommendations to the government to amend the list.
Ministerial powers: The Minister of Labour has the right to declare existing or proposed strikes unlawful. If he or she does so, the
dispute is referred to a Permanent Arbitrator and workers are obliged to return to the workplace. Trade unionists can face criminal
charges if they persist with strike action
Lack of protection in law: There are no provisions requiring the reinstatement of workers who have been sacked for carrying out
trade union activities, nor are there provisions prohibiting employers from hiring strike breakers.
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Amending the Labour Law – Employment Relations Bill under consideration: The government is currently reviewing all
labour legislation. The Fiji Trades Union Congress (FTUC) has made a comprehensive submission to the government with the assistance
of the ILO, and followed that up with testimony to public hearings, Parliamentary hearings, and other forums. According to the FTUC,
the draft Employment Relations Bill proposed by the government does not comply with key provisions of the ILO’s eight core conventions, notably in its provisions on the right to strike. Other important concerns that have been raised by the FTUC include coverage
under the labour law, definition of essential services, failure to decriminalise violations by workers under the labour law, and the unnecessary interference by government officials in internal union affairs. At the end of the year, the revised draft was being studied by the
Parliamentary Committee on Economic Services, and the government was promising it would be formally considered in 2006.
While the right to organise, collective bargaining, fair labour practices and humane treatment are enshrined in the Fiji Constitution, the
Minister of Labour does little to enforce these rights.
Registration of unions by Ministry of Labour slow, overly bureaucratic: The FTUC complained that since the law does not
provide any specific timeframe for the Registrar of Trade Unions in the Ministry of Labour to act on applications to register a union, or
amalgamate unions, the registration process is very slow. The FTUC adds that in some cases, registering a union has taken over a year
to complete.
Anti-union employers: Many employers have been known to refuse to recognise trade unions. The police sometimes help employers
fight against trade unions, for example by preventing union representatives from entering company premises. Police have also been used
very effectively in intimidating workers during strikes and serious industrial disputes. The Ministry of Labour and Industrial Relations,
and the Director of Public Prosecution’s Office, often call on the police to act swiftly against strikes but do very little to help when
employers illegally lock out workers.
Numerous cases of victimisation of workers who show any inclination to join a union are reported to the Ministry each year. The
Employment Act Section 59 makes it an offence for an employer to victimise any worker or make it a condition of employment for a
worker not to belong to a union. To date, not a single employer has been prosecuted.
Failure to prevent anti-union discrimination: The Ministry of Labour does not protect workers effectively from anti-union discrimination. Further, since there are no laws to protect workers who organise unions in a factory, employers can, and do, fire them.
The Arbitration and High Courts have usually taken the position that reinstatement is not the remedy when employers interfere in union
activities and, instead, highlight the employer’s loss of trust and confidence in the employee.
The weakness of the Ministry of Labour’s response to anti-union discrimination and labor rights abuses was demonstrated again in the
disproportionate number of labour-related cases filed with the Fiji Human Rights Commission. In the first six months of 2005, 19 cases
were filed – essentially one in every five cases – alleging violations of Article 33 of the Constitution that covers labour rights. In 2004,
labour cases constituted the second highest category of complaint received by the Commission.
Arbitration not neutral: The neutrality of the Permanent Arbitrator has been called into question. He or she is appointed by the
President of Fiji after consultation with the Minister of Labour and Industrial Relations. Although not a public officer, the arbitrator’s
offices are in the Ministry, the staff are officers of the Ministry, and the arbitrator does not have a separate budget.
Right to strike undermined: The government consistently declares all strikes illegal, even when workers comply with notice provisions to strike and receive endorsement by secret ballot. Several such cases were reported in 2005 (see “Violations in 2005”). In previous years, trade unionists have been charged in the criminal courts for taking part in strikes declared unlawful.
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Unions not consulted over representation: The FTUC was recognised by the government in 1992 as the most representative
organisation of workers. As a consequence, appointments to the boards of various national institutions were made by the Minister of
Labour from amongst trade union officers, nominated by the FTUC. Since 2001, the Minister alone has determined who is appointed to
the different boards and committees. The Minister does not, however, apply this policy when appointing members from the employers’
organisation.
Unions repressed in the EPZs: Although export processing zones (EPZs) should be subject to the same legislation as the rest of the
country, in reality workers who try to organise are subject to illegal and intimidating practices, including the threat of losing their jobs.
The FTUC has found it extremely difficult to conclude collective bargaining agreements in the EPZs.
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VIOLATIONS IN 2005
Background: In June, the government introduced a deceptively titled “reconciliation” bill to give amnesty to imprisoned coup makers
who took the Prime Minister hostage in 2000. This was despite widespread opposition from many of the people of Fiji, including the Fiji
Trade Union Congress (FTUC).
National hotel union strike declared illegal by government: In July, a national strike called by the National Union of
Hospitality, Catering and Tourism Industries’ Employees was declared illegal by the Minister of Labour. The strike resulted from a failure
by the Fiji Hotel and Tourism Association to bargain in good faith since 2004. Employers issued both warning and suspension letters
against union members participating in the strike. The Minister also unilaterally suspended the union’s right to “check off” procedures to
collect union dues of workers at hotels represented by the union. A second strike called by the union, which was scheduled to take place
in December, prompted an agreement between the union and the Association that resolved all outstanding issues and restored the previous dues “check-off” arrangement.
More strikes declared illegal, with pay cuts for striking nurses: In January 2005, Holiday Inn Workers had their strike
declared illegal. In August, striking nurses in the Fiji Nurse Association were threatened with fines and jail terms by the Minister of
Labour. Even after winning the strike and reaching an agreement, the nurses were subjected to police investigation and pay cuts by the
government for their actions. Even before going on strike in September, the Fiji Electricity Workers’ Association was hit with a ministerial order, calling their strike illegal.
Renewed anti-union discrimination at Pacific Fishing Company (PAFCO): PAFCO management and PAFCO Employees’
Union reached an agreement on terms and conditions of work in September 2003 following an intensive eight week strike, and the workers celebrated a major victory. However, the union now reports that management has failed to implement key provisions of that agreement, and has demoted members at the level of “supervisor” who participated in the 2003 strike. In 2005, a campaign of anti-union
discrimination also included threats, suspensions, and additional demotions, and a continued refusal to reinstate 64 members who were
fired during the strike. Numerous complaints have been filed with the Department of Labour and the Fiji Human Rights Commission, but
to no avail.
Ongoing rights’ violations at Turtle Island: The dispute at the luxury Turtle Island resort remained unsolved, as resort owner
Richard Evanson continued to refuse to recognise the National Union of Hospitality, Catering and Tourism Industries Employees (NUHCTIE) despite a compulsory recognition order. In June 2004, the ILO ruled on a complaint brought by the NUHCTIE and the IUF, calling
on the government to ensure enforcement of the implementation order and guarantee protection against acts of interference. It also
urged the government to take all necessary measures “to investigate and put an end to any acts of anti-union discrimination and
interference”.
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POPULATION: 6,898,686 / CAPITAL: — / ILO CORE CONVENTIONS RATIFIED: —
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Workers can form trade unions but collective bargaining is still not recognised in law, and
so there is little they can do to protect their rights in practice. The law is likely to remain
unchanged until real parliamentary democracy is introduced, but calls for universal suffrage were again rebuffed in 2005. There were two cases of union officers being dismissed
for their union activities, while another office bearer faced disciplinary proceedings.
Although the Basic Law, which is the Constitution of Hong Kong, contains provisions guaranteeing freedom of association, the right to
organise, and the right to strike, no laws have been implemented to secure the effective application of these fundamental rights.
The Employment and Labour Relations Ordinance (ELRO) was introduced in 1997 specifically to repeal the laws brought in immediately prior to Hong Kong’s reunification with China, which had been designed to implement the ILO core conventions. The ordinance withdrew the right to collective bargaining while retaining the basic right of workers to form trade unions. Two conditions apply to the formation of a union: a minimum number of seven people is necessary at the union’s inception, and the union must be registered under the
Trade Union’s Ordinance. The Employment Ordinance includes provisions that protect workers against anti-union discrimination, but
other fundamental trade union rights are denied to workers.
Lack of protection for strikers: If a worker is dismissed for strike action, he or she has the right to sue the employer for compensation. There is still no legal entitlement to reinstatement, even if a worker is found to have been unfairly dismissed for participating in a
strike or sacked due to discrimination against unionists.
According to the Public Order Ordinance, a “notice of no objection” is required from the police seven days in advance (24 hours for
emergencies) in order to stage an assembly or protest. It also authorises the use of force to break up strike pickets and demonstrations.
Bargaining not recognised: The law still does not guarantee the right to collective bargaining.
Limitation on use of funds: The ELRO restricts the freedom of a trade union to manage and use its funds as it wishes, particularly
the use of funds for political ends or for transfer to foreign trade union organisations.
Eligibility for trade union office restricted: Only persons actually or previously employed in the trade, industry or occupation of
the trade union concerned are permitted to become trade union officers. The Committee on Freedom of Association of the International
Labour Organisation has on several occasions since November 1998 urged the HK SAR Government to relax the conditions on eligibility of trade union officials and the restrictions on the use of union funds as mentioned above.
Universal suffrage called for
The current electoral system means that it is effectively impossible for non-government proposals on legislation or proposals to improve
labour laws to get passed. Elections were held in September 2004 under the current system whereby half of the 60 seats for the
Legislative Committee (LegCo) are won through direct elections, with the other 30 seats remaining in the hands of the “functional constituencies”, seats that are almost entirely held by pro-business and pro-government candidates. Hence, universal suffrage is seen as a
prerequisite for attempts to introduce more labour-friendly legislation.
The pro-democratic and independent Hong Kong Confederation of Trade Unions (HKCTU) is closely involved in the struggle for democracy and labour rights in China. The central government stated that existing clauses relating to the introduction of universal suffrage
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expressly rule out any such moves for the 2007 elections and stressed that any moves towards expanding democracy must be previously
approved by Beijing.
In 2005 there were growing calls for democracy and the introduction of “one person, one vote”, culminating in a demonstration on 4
December when some 100,000 people took the street to demand universal suffrage. The government offered a constitutional reform
package on the electoral methods for the 2007 Chief Executive (CE) and the 2008 Legislative Council (LegCo) elections. The measures
did not go nearly far enough, however, and the package was voted down by pro-democracy legislators who insisted that the government
should introduce a timetable for universal suffrage.
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Right to strike denied: The right to strike is limited in practice by clauses in many employment contracts stipulating that absence
from work may lead to dismissal. Strikes are a rarity in Hong Kong. Protest actions do occur, but very often as a result of government
actions. Only two formal strikes - by the Hong Kong and Kowloon Lifeguards’ Union - were reported in 2005.
No recognition of collective bargaining rights: Collective bargaining is neither promoted nor encouraged by the authorities, and
employers generally refuse to recognise unions. Although almost 25 per cent of the workforce is unionised, unions are not strong enough
to force management to engage in collective bargaining. Thus less than one per cent of workers are covered by collective agreements,
and those that exist are not legally binding.
HKCTU is consistently excluded from the LAB, the tripartite consultative body established by the government, unlike pro-government
and pro-Beijing unions federations. This exclusion means that HKCTU is denied the right to participate in tripartite negotiations on
labour laws and policy and excluded from bodies such as the Committee on the Implementation of International Standards, which
reports to the ILO.
Without legal protection to guarantee collective bargaining rights, workers are subject to the arbitrary and unilateral actions of employers, and as a consequence are denied job and income security.
Consultation rather than bargaining: The government has consistently claimed that there is no need for collective bargaining
rights in the public sector because the administration “consults” civil servants over their pay and conditions. However, recent civil service reforms, involving transfers, reductions in wages and benefits, retrenchment and contracting-out to the private sector, have demonstrated very clearly that the government is free to act unilaterally without consulting the affected civil servants. The introduction of legislation on wage cuts of civil servants is a self-evident example.
Ongoing outsourcing: Basic organising and bargaining rights are also undermined in the public sector by the government’s policy of
outsourcing of its services. According to government figures for 2004-05, outsourced contractors for the Food and Environmental
Hygiene Department alone have hired 7,921 workers. About 70 per cent of street cleaning is outsourced. Low-wage workers are being
exploited by the government’s HK$1.6 billion outsourcing strategy. HKCTU says it received 600 complaints from employees of contractors for the Food and Environmental Hygiene Department in the first ten months of 2005. Workers complain of being forced to work
overtime, not receiving full wages and not getting rest days. The HKCTU accused the department of not monitoring the labour practices
of its contractors and also urged the government to stop outsourcing public projects. According to the HKCTU, under WTO auspices, the
government will sign a revised GATS confirming that garbage disposal, sewage, sanitation services, libraries, archives, museums and
various other public services will be open for bidding by international corporations without limitation.
Migrant workers’ rights violated: There are at least three migrant workers’ unions, including the 1,000-strong Indonesian Migrant
Workers’ Union, and the Filipino Domestic Helpers’ General Union, affiliated to the HKCTU. Immigration Department figures show
there were 223,390 foreign domestic helpers in Hong Kong as of October 2005, mostly women from Indonesia and the Philippines.
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Unlike other expatriate workers, FDWs are subject to deportation if they lose their employment and as a consequence they often suffer
extreme exploitation and ill treatment on the part of their employers. However, they have begun organising to defend their rights. In
2004 and 2005, a coalition of migrant workers’ groups lobbied the government to reinstate the minimum wage of HK$3,670, cut to
HK$3,270 in 2003 during the economic downturn. The government granted the foreign domestic workers a HK$50 increase in their
minimum monthly wage, but domestic worker groups have described the amount as a token gesture.
Illegal employment: With a more relaxed visa application system, illegal workers from mainland China are becoming increasingly
common in Hong Kong. They are usually hired by employers who pay them much less than the going rate for legitimate members of the
workforce; in restaurants, construction sites and other industries. There was also discussion on closing the loophole that allows illegal
workers and their families to claim compensation for injuries and deaths at work. While the pro-Beijing Hong Kong Federation of Trade
Unions (HKFTU) proposed the amendments, other unions, including HKCTU’s affiliate, the Federation of Hong Kong and Kowloon
Labour Unions, argued that stripping illegal workers of such compensation is unconstructive, and that the penalty for bosses who hire
these workers should be increased instead.
VIOLATIONS IN 2005
Background: Hong Kong’s first Chief Executive under Chinese rule, Tung Chee-hwa, formally submitted his resignation to Beijing on
10 March, citing health reason. Donald Tsang resigned from his position as Hong Kong’s chief secretary to run in the by-election. He
won the 16 June vote with the support of 714 members of the Election Committee, a majority of whom were appointed by Beijing. The
unemployment rate fell dramatically during year from 6.4 per cent in January to 5.5 per cent in September 2005, the lowest level in
four years. However, the ongoing loss of manufacturing jobs to mainland China continued.
First official case of discrimination against union members: For the first time in Hong Kong, government contractor Wai
Hong Cleaning and Pest Control was found guilty of discriminating against its employees - Amy Shum, Wan Hang-ying and Fan Ah-tai because they were members of the Hong Kong Confederation of Trade Unions (HKCTU). Company management tried to bribe its
employees to quit HKCTU by offering them better positions or transferring them to better cleaning sites. When they refused, their contracts were terminated in December 2004. Only one worker admitted to voluntarily resignation. The company claims the other three
also resigned voluntarily, but the magistrate found that they were dismissed and the company was trying to eliminate their influence on
other employees. In handing down a fine of HK$234,000, (including HK$150,000 fine for the union discrimination charge), Magistrate
Ernest Lin commented Hong Kong labour laws “were behind other countries.’’
In September 2005, British Airways was fined HK$5,000 for breaching the labour rights of the head of its Hong Kong cabin crew
union, Carol Ng Man-yee, in the first successful prosecution of its kind in the city.
Union officers dismissed: Andrew So Tsz-koon, a committee member of the Hong Kong Productivity Council Employees
Association, was sacked in June 2005 after nearly six years of service, first as an editor and later also as a training coordinator. Mr So
believes his sacking was in retaliation for a labour dispute earlier this year and a feud with the council, as the dismissal letter offered no
reason and was signed by only his deputy divisional head.
A union secretary, Chan Chun-sheng, complained at the Labour Department and Labour Tribunal that Worldwide Flight Services sacked
him after giving him wrong working instructions. He believes the dismissal is directly related to his involvement in union activities.
Union office holder being investigated: More than 200 ambulance workers and civil servant union members marched through
central Hong Kong to the Central Government Offices on 7 December, protesting disciplinary proceedings against Wat Kit-on, a
spokesperson for the ambulance workers’ union, for his speech on WTO issues. The union believes the Fire Services Department’s disciplinary action would hurt freedom of speech among the workers.
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Cathay Pilots still fighting unfair dismissal: In January 2005, Cathay Pacific offered payouts of about HK$1 million, or the
chance to reapply for jobs, to pilots sacked during a 2001 industrial dispute - if they agreed to drop legal action against the airline.
Forty-one said they opposed it and only four said they approved it.
Excessive police force during the WTO protests: During the WTO protest in December 2005, some 900 protesters, most of
them Korean farmers and trade unionists who came to HK to protest at the rising poverty and unemployment they face as result of trade
polices, were subjected to what many local rights groups called the “excessive use” of police force, particularly the use of tear gas and
pepper spray without prior. Foreign protesters were arrested without evidence and not allowed to apply for bail. During the detention of
the 900 people, it was reported that local protestors were allowed to leave while all foreigners were kept under police watch and later
detained. Often they were not provided with proper translation during the questioning in detention.
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India
POPULATION: 1,100,000,000 / CAPITAL: DELHI / ILO CORE CONVENTIONS RATIFIED: 29 - 100 - 105 - 111
§
The savage beating by police of hundreds of unarmed Honda Motorcycle workers in Haryana
put the plight of workers on the front pages of the newspapers, and at the centre of policy
discussions, for months. Barriers to the creation of trade unions remain in law and practice,
as do strong limitations on the right to strike. Government employees are barred from striking by a High Court ruling, and the government ignored comprehensive ILO recommendations to revise Tamil Nadu states’ repressive laws and practices against public servant unions.
Workers may establish and join unions of their own choosing without prior authorisation. However, there is no legal obligation on
employers to recognise a union or engage in collective bargaining.
The legislation makes a very clear distinction between civil servants and other workers. Public service employees have very limited
organising and collective bargaining rights.
Freedom of association limited: The 1926 Trade Unions Act was amended in 2001. Under the amended Act, a union has to represent a minimum of 100 workers – which is excessive by international standards – or ten per cent of the workforce, whichever is less,
compared with a minimum membership of seven workers previously. The amendment also reduced the number of “outsiders” (those not
employed at the enterprise) allowed to sit on a union executive and requires unions to submit their accounts for auditing.
Anti-union discrimination: The Trade Unions Act prohibits discrimination against union members and organisers, and employers can
be punished if they discriminate against employees engaged in union activity.
Restrictions on the right to strike: Under the 1947 Industrial Disputes Act (IDA), industry workers in public utilities have to
announce a strike at least 14 days in advance. In some states, the law demands that certain private sector unions must submit formal
notification of a strike before it is considered legal.
Workers in the banking industry have to give six months’ notice before going on strike. The industry has been declared a public utility
under the Industrial Disputes Act.
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Strike bans: The Essential Services Maintenance Act (ESMA) enables the government to ban strikes and demand conciliation or
arbitration in certain “essential” industries. However, the Act does not define which these essential services are. Interpretation therefore
varies from one state to another. Legal mechanisms nonetheless exist for challenging a decision taken under the terms of this Act, if a
dispute arises.
The Central Civil Services (Conduct) Rule, 1964, stipulates that no government servant shall resort to, or in any way abet, any form of
a strike.
In August 2003 the Supreme Court ruled that government employees did not have the right to strike because it “inconvenienced citizens
and cost the state money”. The ruling came following a strike in the Tamil Nadu state, whose government dismissed 350,000 striking
employees. In December 2003, the Court ruled that lawyers had no right to go on strike, or to boycott the courts.
The Industrial Disputes Act prohibits retribution by employers against employees involved in legal strike action.
Increased threat of “reforms” to gut labour laws: The government finalised amendments to labour laws in 2003 which were
aimed at empowering the employers to hire and fire at will, legalise contract work in a wide range of occupations and introduce unilateral changes in service conditions. In May 2004, however, following the general election which saw a change of government, the new
governing coalition pledged to consult the trade unions in advance before tabling any amendments to labour law.
In October 2005, the Ministry of Labour followed up that pledge by sending a proposal on “Making Labour Markets Flexible” to the
major trade union congresses. The proposal was met with outrage by trade union bodies across the political spectrum.
Among the changes proposed were amendments to the Contract Labour (Regulation and Abolition) Act, 1970, which would open up huge
swathes of the economy to contract labour arrangements by expanding exclusions to the Act for work of a year-round nature. Among the
new sectors that the Ministry proposed to exclude are information technology and support services in establishments at ports and dockyards, airports, railway stations, interstate bus terminals, hospitals, educational and training institutions, and guesthouses and clubs. The
Ministry also recommended that export oriented activities, including those in special economic zones, and support services for those zones,
should be on the list, which would make contract labour available for these sectors. Another problematic proposal is raising the threshold
(from 100 workers to 300 workers) of the size of enterprises that do not need government permission to lay off workers.
At the end of the year, no concrete legislative action had been taken on the government’s proposals.
Sikkim - excluded from the law: The Trade Unions Act, even after its amendment in 2001, does not apply in Sikkim, a State
annexed to India in 1975. Consequently, workers there do not benefit from trade union rights. Although there are some workers’ associations, no one sector, as such, is organised. Registration of trade unions is subject to a police inquiry and then depends upon receiving
the permission of the Land Revenue Department of the Government of Sikkim. One negative comment by the police about a member of
the union’s executive can be grounds for refusing registration. Furthermore, the public too has an opportunity to state its objections to
the creation of a trade union, which can also prevent its registration. According to the State government, however, no such instance of
objection by the public to the creation of a union had come to its notice.
Repressive legislation in Tamil Nadu State: The Tamil Nadu Essential Services Maintenance Act (ESMA) was passed in May
2002. Characterised by trade union leaders as one of the most repressive pieces of legislation enacted against workers in India since
Independence, the Act prescribes a punishment of up to three years’ imprisonment and a 5,000 rupee fine against participants in a strike
involving “essential services”. A large number of public services are included within the definition of “essential”, such as those relating to
the supply of water and electricity, passenger and goods transport, fire fighting and public health. Activists who call for a strike or instigate workers to go on strike, or anyone who provides financial assistance for the conduct of a strike, risks the same penalties. Under the
Act, the word “strike” not only includes the refusal of employees connected with these “essential services” to “continue to work or to
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accept work assigned”, but also a “refusal to work overtime” and “any other conduct which is likely to result in, or results in, cessation or
substantial retardation of work in any essential service”. The government has ignored ILO recommendations to amend the Act.
General strikes banned in Kerala: In 2002, the State of Kerala declared that all general strikes were illegal when they involved a
complete close down of all activities. This was upheld in the courts.
Export processing zones (EPZs): The right to join trade unions and bargain collectively exists in law for EPZs. In the 2001 Trade
Union Act, the government designated the EPZs and Special Economic Zones (SEZs) as “public utilities”, requiring a 45-day strike
notice period.
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The Mahanagar Asangathit Mazdoor union reported that the government of Delhi State has exempted EPZs from most labour legislation and there is a ban on the formation of trade unions.
Only a small minority of workers protected: In practice, workers’ rights are only legally protected for the small minority who
work in the organised industrial sector.
Over 90 per cent of workers belong to the agricultural and informal sectors where there is almost no union representation, and where it
is difficult to enforce legislation. The growing use of contract labour also creates problems for organising, and weakens the unions. Even
governments are turning to contract labour. In 2004, the government of the Tamil Nadu state ordered its health department to recruit
personnel, other than doctors, on a contract basis through private agencies.
The Tamil Nadu state government also continued to refuse to recognise and bargain with unions of government employees and teachers,
and continued to seal off the Tamil Nadu secretariat building, which served as the Tamil Nadu Government Employees’ Union headquarters until a 2002 strike. The ILO CFA called on the Government to immediately extend recognition to these unions, and cease to hold the
building. Unfortunately, the government declined to send any communication to the ILO CFA regarding the case, indicating a continued
unwillingness to seriously consider trade union rights for its public servants.
Hostile employers, poor law enforcement: The hostile attitude of employers towards trade unions is clearly a deterrent to organising. Employers tend to either ignore the law making it illegal to dismiss a worker for their trade union activities or circumvent it by
transferring workers to other locations to disrupt union activities or discourage union formation. Seeking justice through the judicial
process is time consuming and costly. Unions report that some employers resort to intimidation, threats, demotion, beatings and, in
extreme cases, death threats or even attempted murder against trade unionists. A more popular form of harassment, however, is the filing of false criminal charges.
One problem with such charges, in addition to unfair dismissal, is that the courts are excruciatingly slow. Legal charges were brought by
a police officer against 12 leaders of a tea workers’ union, the Hind Khet Mazoor Panchayat (HKMP) in 1995. They related to a peaceful demonstration in the Araria district in December 1993 attended by thousands of workers, which allegedly blocked the passage of the
police officer. The case didn’t come to court until 12 years later, in September 2005. Three of the accused had passed away in the interim. There is no concrete evidence to support the charges filed, but the legal battle has effectively distracted the officers from their union
work for all that time.
Globalisation and economic liberalisation have created a climate in which there is further pressure to dilute labour standards, in particular labour inspections and the enforcement of labour legislation.
New employment sectors such as call centres, the visual media and telecommunications are not covered by any explicit employment
regulations and employers obstruct the formation of unions. High levels of casual employment were built into the structure of the call
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centre/business process outsourcing (BPO) industry, affecting many of the approximately 400,000 of these workers in India, and making
it difficult for them to organise.
Repression in the construction and ship-breaking industries: Contractors and sub-contractors in the construction industry
are loathe to allow workers to exercise their right to trade union membership, and are likely to threaten them with dismissal should they
try. Since all work is project-based, the possibilities for engaging in collective bargaining are extremely limited.
Similarly, in the ship-breaking industry, employment is so precarious that workers do not try to enforce their right to organise trade
unions. Anyone who even attempts to demand a wage increase is fired instantaneously. Intimidation is commonplace and the
“muqadam”, who is responsible for hiring and supervising the workers, sides more with the ship-breaker than with the workers.
Collective bargaining: In the absence of a statutory right to collective bargaining, employers are frequently reluctant to negotiate,
and in particular, refuse to negotiate with the unions of the workers’ choice.
Strikes: The procedures for holding a legal strike are so cumbersome that unions rarely fulfil them completely. Most private sector
strikes are therefore technically illegal, although reprisals have been rare so far.
In the public utilities, unions tend to take strike action, despite the ban. Such strikes are declared illegal and, if the union is not strong
enough, can lead to reprisals.
Export processing zones (EPZs): The government seeks to keep trade union activity in the country’s seven EPZs to a minimum.
Although the right to join trade unions and to bargain collectively exists in law, in reality entry to the zones is restricted to the workers,
who are transported in by their employers. Since trade unionists are not able to enter, organising is extremely difficult and union activity
rare in the EPZs.
There are moves to exempt the zones from the application of labour laws. Some states, such as Andhra Pradesh, have even dissuaded
labour departments from conducting inspections in the zones.
The majority of workers in the EPZs are women, employed in industries such as ready-made garments, electronics and software. In the
Santacruz Electronics Export Processing Zone (SEEPZ) near Bombay, 90 per cent of the workers are women who are generally young
and too frightened to form unions. Working conditions are bad and overtime is compulsory.
Workers fear victimisation by management and those who protest are immediately sacked. It is common for workers to be employed by
fictitious contractors on temporary contracts rather than directly by the company. In the Noida EPZ, workers have been sacked for
demanding that labour laws should be implemented.
VIOLATIONS IN 2005
Background: The UPA (United Progressive Alliance) government of Prime Minister Manmohan Singh continued to promote economic
reforms, but was unable to pass major labour legislation during the year. Southern India, especially the Tamil Nadu state, was struggling to recover from the Asian tsunami of 26 December 2004, which killed thousands and destroyed the economic livelihoods of the
survivors.
Busting the union at Pepsi: Workers at PepsiCo’s directly-owned bottling plant in Bajpur, Uttaranchai, formed a union in June
2005, and applied for official registration. Within days of this application, management transferred seven officials and activists (all of
them production workers) to distant facilities. When the union responded by calling a strike on 8 June, PepsiCo suspended the transferred workers and followed this up by suspending seven more union activists for their activities during the strike. A month long strike
ensued, with 87 permanent workers on the picket line. During this time, PepsiCo hired temporary workers to replace the strikers.
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PepsiCo maintained that the strike was illegal since statutory notice had not been provided, and they had no obligation to bargain with
the strikers. Tripartite mediation by the Ministry of Labour was initiated to resolve the dispute, yet no solution was found. At the end of
the year, the dispute was still unresolved.
Police violence against Honda workers in Haryana: Using lathis, which are heavy wooden clubs bound with iron, over 100
Haryna police and security officials surrounded and viciously attacked a group of protesting unionists from Honda Motorcycles and
Scooters India (HMSI) Co. on 25 July. More than 250 workers were seriously injured, one worker was killed and an undetermined number went missing after the attack, which drew national and international condemnation, and compelled the direct involvement of the
Prime Minister, Manmohan Singh, and UPA leader, Sonia Gandhi, in seeking solutions. The incident confirmed Haryana’s reputation as
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a state where there is close collaboration between the local government and employers in the violent suppression of workers’ rights.
Over the six months leading up to the incident, HMSI engaged in a systematic campaign to prevent the formation of a union by employees unhappy with the poor treatment of workers, and sharp increases in workload without a commensurate wage rise. The union’s application for registration was in its final stages when Honda began its anti-union tactics in February. In April, management decided to terminate four workers without notice, including union President, Suresh Gaur, and one other officer-holder in the nascent union. In May,
Honda management suspended more union leaders and activists – first 13 workers, and subsequently another 37. The union continued to
mobilise and seek supporters, and the conflict escalated. On 27 June, workers reporting to the factory found themselves illegally lockedout. Management required workers wanting to enter the factory to sign an anti-union “good conduct” letter, which most refused to do.
As the lock-out continued, police surrounded the factory, giving the first hint of the close relationship between factory management and
authorities. Mediation by the Department of Labour in early July failed, as management reneged on an agreement to allow the return of
workers to the factory, and refused outright to reinstate the four fired and 50 suspended union activists.
On 25 July, approximately 2,700 workers gathered peacefully in Kamla Nehru Park to protest the lock-out. Without provocation,
Haryna police brandished lathis, and charged the rally in an unsuccessful attempt to disperse it. An undetermined number of workers and
at least one policeman were injured when workers defended themselves. Approximately five hours later, leaders were invited to meet with
the Deputy Commissioner of Police, Sudhir Rajpal, for talks at a local government office. A large group of unarmed workers accompanied the leaders, and sat peacefully outside the office, waiting for the outcome. Public security officers – who appear to have been organised in advance for this purpose, since the force included Haryana police, fire brigades, Rapid Action Force members, and police officials
from neighboring police stations – then surrounded the protesters and brutally attacked to them. Eyewitnesses say that the attack started
in the presence of the Deputy Commissioner. Claims by the Deputy Commissioner and police that the workers were armed, and that the
police action was in self-defence, were exposed as lies by media videotapes and independent investigations into the incident.
Among the approximately 400 workers arrested, 340 were released after being held overnight, while 63 were kept locked up and
charged with offences ranging from assault to attempted murder. Union sources reported that only two of the 63 held were spared grievous injuries to the head, arms, or legs, and that many had single or multiple bone fractures from the beating.
National outrage prompted the Haryana Chief Minister to accuse the media of engaging in a “conspiracy to defame” his government by
reporting the incidents. Haryana police alleged they were acting in retaliation for attacks earlier in the day, further eroding the credibility of those responsible for this police riot. After five independent inquiries and a debate in the national Parliament, the Haryana Chief
Minister finalised a “settlement” between the local union (national labor leaders were excluded by the government) and the HMSI management on 26 July. HMSI agreed to take back the 54 fired and suspended workers, but only provided that these workers could be shifted off the line where the majority of workers are. Recognising the lock-out had been illegal, the HMSI also agreed to back-pay to all
locked out workers for May and June. The union in turn was required to forego a wage hike for one year, withdraw its collective bargaining demands, and “maintain discipline” at the factory. Both the Deputy Commissioner of Police and the Police Superintendent were
transferred out of the area.
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Protesting workers beaten in Haryana: On 14 August, in Rohtak, Haryana, a large group of police, armed with lathi, charged a
group of 70 protesting workers who were former members of the disbanded Haryana Industrial Security Force. The former security
guards were seeking an audience with the Chief Minister of Haryana. Eight workers, including two women, were injured seriously
enough to be hospitalised, while another 30 were treated at private clinics and released. The police arrested 40 workers, of which 19
were women, in connection with the incident.
Protesting teachers attacked by police: On 26 December, police armed with lathi used water cannons and then charged and beat
hundreds of contractual, temporary teachers who were protesting in front of the Birla Institute of Technology in Patna. The attack sent
25 educators to the hospital. The teachers were seeking to meet the Chief Minister to press demands about about pay and conditions.
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Tamil Nadu arrests picketing Electricity Board workers: Members of the Tamil Nadu Electricity Board Employees’ Union
conducted non-violent pickets to pressure Board to consider regularising field staff. The protests occurred in early and mid-November,
and on 12 November, public pickets in prominent areas prompted police to make mass arrests. They included 301 arrested in Dindigul,
197 in Tiruchi, 273 in Pudukottai, 80 in Perambular, 137 in Karur, and several thousand in Chennai. The workers were released soon
after their arrests.
Self-Employed Women’s Association (SEWA) under attack: SEWA, a dynamic trade union of 700,000 informal sector
women workers operating in Ahmedabad and surrounding areas, reported that it was facing a campaign of systematic harassment from
the conservative BJP-led government of Gujarat state. Using its power as an intermediary to the international community, the Gurajat
government halted funding from the UN’s International Fund for Agricultural Development (IFAD) to SEWA for the support of 14,000
families impacted by a devastating 2001 earthquake. Government allegations that there were “financial irregularities” were belied by
the fact that its own auditors had examined SEWA’s accounts, and already approved the audits. The Government also sought the return
of other monies given for previous programmes completed (and audited successfully) as long as five years ago. The government’s activities effectively paralysed SEWA and prevented it from carrying out a range of its representation activities. Over 11 months of effort by
SEWA to negotiate with government officials was frustrated by an unwillingness to resolve matters in good faith. This brought SEWA
to publicly state in October 2005 that the government’s campaign seeks “to destroy our credibility, our solidarity, and our reputation.”
Support from three Global Union Federations to which SEWA is affiliated, and letters endorsing SEWA’s integrity from IFAD, have
fallen on deaf ears. SEWA has been given no option but to end all cooperation with any government agencies, and as the year ended,
the campaign of financial harassment and slander against SEWA continued unabated.
Stallion Garments – bringing union activity to a standstill: Stallion Garments, a leading member of the Tirupur Exporters’
Association, engaged in a systematic campaign to harass unionists, fire workers, and threaten labour support organisations. The problems began in June 2004, when workers held demonstrations seeking pay raises in line with a regional wage accord. Management
responded by firing 20 worker activists in the factory. This in turn sparked further demonstrations, and the company sought (and
received) interim stays from three district courts. The three courts’ overlapping rulings prevented unions from entering the factory area,
from raising banners or chanting slogans within 100 meters of the factory, from holding meetings within 300 meters of the factory, and
from holding any sort of assembly at all. Management then alleged violations of these orders and filed court cases against the six labour
unions involved in the struggle. International solidarity support from the NGOs in the Clean Clothes Campaign brought pressure on the
factory, and resulted in threats of violence being made by the locally influential factory owner against a labour NGO involved in the
campaign. At the end of 2005, the workers had not been reinstated, the unions were fighting legal cases in the courts, and the campaign
for better wages and union representation was stalled.
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Indonesia
POPULATION: 225,300,000 / CAPITAL: JAKARTA / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
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Indonesia faced a wave of factory closures in West and Central Java, as high energy costs,
poor infrastructure, official corruption, and the end of the multi-fibre agreement took their
toll. Many of the remaining factories marginalised and broke unions by exploiting loopholes
in the law and weak law enforcement to increase the use of contract labour. Government’s
poor management of the process of decentralisation of government authority from the central level to the provinces created confusion, and fostered collusion between employers and
local authorities to undermine worker rights. High unemployment and a rapidly rising cost
of living, led by skyrocketing fuel prices, were key challenges faced by workers. As the year
ended, massive worker protests for hikes in the legal minimum wage underscored the desperate situation faced by many industrial labourers.
Private sector workers are by law free to form unions and draw up their own rules. Under the Trade Union Act, adopted in 2000, it is
mandatory for unions to register with the Manpower Ministry in order to be recognised. They are required to have at least ten members
and there can be more than one union at a workplace. Furthermore, the law allows unions to form nationwide and across business sectors, not just at enterprise level. Employers who prevent a worker from joining a union are liable to a fine or imprisonment. The law also
gives civil servants the right to organise, but their activities are carefully regulated.
Restrictions: A court can dissolve a trade union if its basic principles conflict with the 1945 Constitution or with the “Pancasila”, the
national ideology which puts the emphasis on consensus and national unity, or if its members or leaders have committed a crime against
national security in the union’s name and have been sentenced to at least five years in prison. Once a union is dissolved, its leaders cannot form another for three years.
The law makes state interference in the internal affairs of the trade unions legal. The unions have to keep the government informed of
nominations to, and changes in their governing bodies. If they do not, the union could lose official recognition and, therefore, the right to
represent its members in collective bargaining and other areas of union activity.
Under Article 119 of the Manpower Act, in order to negotiate a collective agreement, a union must recruit more than 50 per cent of the
total workforce in the establishment, or must receive more than 50 per cent support in a vote of all the enterprise’s workers on its
demands.
Collective agreements must be concluded within 30 days after the beginning of negotiations or must be submitted to the Manpower
Ministry for mediation, conciliation or arbitration. A collective agreement is valid for two years and may be extended for a maximum of
one more year.
Teachers: Teachers mainly belong to the Teachers’ Association (PGRI), which has now been registered with the Ministry of Manpower at
the national level as a trade union. However, because of the Decentralisation Law (Law 22/1999), PGRI branches at the district level must
also register as unions with local Ministry officials to receive legal status. Based on Suharto-era arrangements, the Indonesia Corps of
Civil Servants (KORPRI) also claims PGRI as an affiliate and has sought to maintain an automatic dues’ deduction from teachers’
salaries, despite a national PGRI decision to distance the organisation from KORPRI. Resistance from KORPRI, combined with confusion
and corruption by local Manpower authorities, has been a consistent barrier to local level PGRI union registrations. Failure by district officials to count PGRI members in their census of union members has resulted in massive undercounting of PGRI members. Recently only
approximately 116,000 of PGRI’s claimed 1.6 million members were recognised. This has negatively affected PGRI’s capacity to operate.
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The 2003 Manpower Act: The Manpower Act meets many, but not all, of the ILO standards on fundamental human rights at work.
Notably, it still does not comply with the child labour conventions. Section 106 of the Act compels all companies with more than 50
employees to establish a “bipartite cooperation institution”, with representation proportionate to the number of union and non-union
workers in the factory. It requires that the institution be registered with local government authorities. The role of these institutions overlaps with the representative role of unions.
The Act includes a specific statement on the right to strike, the use of outsourcing and contract labour (now being abused with impunity
by employers), a clause on the payment of wages during strikes over “normative” issues (management policy and a right guaranteed by
law or a collective bargaining agreement), a prohibition on replacement workers during legal strikes and higher pay if a worker is suspended during the labour dispute process. While it remains difficult to strike, it is somewhat less difficult than under previous legislation
and repressive security practices.
Restrictions on the right to strike: Under the Manpower Act, workers who intend to go on strike must give written notification to
the authorities and to the employer seven days in advance for the strike to be legal, specifying the starting and ending time of the strike,
venue for the action, reasons for the strike, and including signatures of the chairperson and secretary of the striking union. Ministerial
regulation KEP.232/MEN/2003 declares illegal all strikes at “enterprises that cater to the interests of the general public and/or at
enterprises whose activities would endanger the safety of human life if discontinued…” What types of enterprises are included in this
classification is not specified, leaving it to the government’s discretion. The same regulation also classifies strikes as illegal if they are
“not as a result of failed negotiations” and gives employers leeway to obstruct a union’s move to strike because failure is classified as
negotiations that lead to a deadlock “that is declared by both sides.”
Before the workers can proceed with a strike, they must also engage in lengthy mediation with the employer, beginning with bipartite
bargaining and, if that fails, proceed to mediation facilitated by a government mediator. Ministerial regulation KEP.232/MEN/2003
also provides that in the case of an illegal strike, an entrepreneur must make two written appeals within a period of seven days for workers to return. Workers who do not respond to those appeals are considered to have resigned. Such appeals are commonly used by
employers as intimidation tactics against strikers.
In practice, strikes have been prohibited in the public sector, in essential services, and at enterprises that serve the public interest. This
clearly goes beyond the definition of acceptable prohibitions on strike action by the ILO Committee on Freedom of Association, which
has held that strikes may only be restricted where there exists “a clear and imminent threat to the life, personal safety or health of the
whole or part of the population”.
The Industrial Relations Disputes Settlement Act of 2004: The Industrial Disputes Act was signed into law on 15 January
2004, but the government delayed implementation until 14 January 2006, owing to the need for additional time for the appointment of
judges and to ensure they received proper training.
The act sets up a new system of tripartite labour courts as part of the justice system, replacing the previous system of labour dispute
committees. Under the new law, settlement of industrial disputes is first to be sought through bipartite negotiation. If no resolution is
reached at this level, a mediator or councillor can be brought in within 30 days. If that too fails, the dispute can be brought before the
Industrial Relations Court and a verdict should be issued within 50 working days of the first hearing of the case. The verdict is final if
the case involves a dispute between labour unions, or a “dispute over interests”, defined as a dispute over changes in work regulations
or the collective bargaining agreement. In other cases, such as dismissals and violations of rights, an appeal is only acceptable if it is
filed within seven days to the Supreme Court, and that Court must make its ruling within 30 days.
Labour leaders who become “Ad Hoc Judges” of the Court must temporarily resign from their positions as members of labour unions.
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Using contract labour to undermine unions: Unions have been directly affected by the increasing trend of using contract labour.
Rustam Aksam, the President of the Indonesian Trade Union Congress has stated that this is “one of the most serious problems” that is
systematically undermining unions in the country. In Section 59 of the Manpower Act, contract labour is supposed to be used only for
work that is “temporary in nature”. However, many employers are wilfully violating these provisions with the connivance of local offices
of the Ministry of Manpower and Transmigration (hereinafter: Ministry of Manpower), as a means of reducing labour costs and eliminating unions. Typically, companies declare bankruptcy in order to avoid paying the significant severance payments provided for under law,
close the factory for several days, and then rehire workers as contract labour at a lower cost. Leaders and activists in the union are usu2 1 8
ally not re-hired. Employers have done so with the apparent approval of both Provincial and Central Committees for the Settlement of
Labour Disputes.
Anti-union discrimination: According to the Indonesian Prosperity Trade Union (KSBSI), relations between government, employers
and workers are still tense. Frequently, when workers try to set up trade unions, companies either terminate their employment or demote
union leaders and members, making workers afraid to organise or join a union. Some unions claim that strike leaders were singled out
for lay-offs when companies downsized their workforce.
Trade unionists also cite a number of attacks on their organisers by paramilitary groups, supported by the military and police and paid for
by employers, to intimidate workers or break strikes. Such retribution against unionists has not been prevented or remedied effectively.
Justice slow and not guaranteed: Although the decisions of regional and national labour dispute resolution committees, which
judge anti-union discrimination cases, can be appealed to the State Administrative Court, legal procedures are long, sometimes taking up
to six years. Bribery and corruption of judges have been a huge problem for workers involved in disputes, and accordingly decisions are
often not in their favour. While dismissed workers may be financially recompensed, they are rarely reinstated. It remains to be seen
whether the new Industrial Relations Court will solve this problem.
Collective bargaining: According to the Manpower Ministry, about 25 per cent of companies with over ten employees have collective
bargaining agreements. However, in reality these agreements rarely go beyond the legal minimum provisions set by the government and
often result from employers unilaterally drawing up agreements and presenting them to workers’ representatives for signature rather
than negotiation.
Strikes: The legally-mandated mediation procedures which must be followed before calling a strike are so lengthy that they are almost
never adhered to. As a result, strikes tend to be wildcat strikes that break out after the failure to settle long-term grievances or when an
employer refuses to recognise a union.
Dues: There is no indication in the legislation as to whether management should play a role in collecting dues. Trade unions regularly
have problems persuading employers to deduct dues directly from workers’ salaries. During the Suharto era, the law allowed for the collection of union dues by local offices of the Ministry of Manpower, which regularly kept large chunks, if not all of these dues, for themselves. Though this legislation has been repealed, it is difficult to assess whether the practice has in fact disappeared.
Export processing zones (EPZs): Despite the fact that the labour laws apply in the country’s seven EPZs, there is generally
stronger anti-union sentiment in the zones.
Police intervention: The police has a long history of intervening in workers’ demonstrations and strikes at the behest of employers.
Violence is not unusual. Labour activist, Dita Sari, says they are often supported by militias or thugs who are hired by the employers.
The police claim it is these thugs who are responsible for the violence.
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In January 2004, the Jakarta Post reported the then Minister of Manpower, Jacob Nuwa Wea, as saying that “if workers are out of
order, it’s OK for the police to slap them around a little bit.”
However, on 24 March 2005, the Indonesian National Police officially issued a regulation entitled “Guidelines on the Conduct of the
Indonesian National Police in Handling Law and Order in Industrial Disputes.” Developed by the police with the support of the ILO, the
Ministry of Manpower, and trade unions and employer associations, the guidelines limit police involvement in such disputes to the maintenance of law and order. The guidelines further provide that police shall “act in professional and proportional manner, and uphold
human rights”, “remain impartial in dealing with the parties…”, “have a principle that all parties are equal before the law”, and finally, “not be involved in any industrial dispute mechanisms.”
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While clearly a step forward, at least on paper, it was clear that despite the best efforts of the ILO and labour leaders, implementation
of the guidelines remained uneven, particularly outside Jakarta and other main industrial areas. For example, over 200 police intervened in September to violently break up a one month strike by the Medan Independent Workers’ Union at PT Shamrock
Manufacturing Company in Medan.
VIOLATIONS IN 2005
Background: Indonesia continued to recover from the impacts of the Asian tsunami, which devastated Aceh province in December
2004, and made a major breakthrough for peace by signing a political settlement with Aceh’s armed rebels, the GAM. However, new
terrorist bomb attacks in October against tourist targets in Bali, allegedly committed by Jemaah Islamiah, caused continued jitters and
punctured a recovery in the tourism industry that had been underway since the previous Bali bomb attacks in 2002. During the year,
labour leaders strongly condemned Indonesian President Susilo Bambang Yudhoyono for being indecisive and not fulfilling campaign
pledges made to improve the situation of workers.
PT Musim Mas – busting the union, imprisoning the leaders: The union at the PT Musim Mas plantation and refinery, based
in Riau province, was organised in October 2004 by workers complaining that conditions did not comply with minimum standards set in
the law. When the union raised demands with management in February 2005, the response was to fire Robin Kimbi, the chairman of the
Kahutindo PT Musim Mas union. The union’s appeal against this unfair dismissal was denied by the local branch of the Ministry of
Manpower, and later the provincial Committee for Settlement of Labour Disputes. The employer next tried to blunt Kahutindo’s efforts
by setting up a management-controlled union, SP Musim Mas, and issuing fake union ID cards with the names of Kahutindo’s members
on them. When management pressure resulted in the unjust firings of four union officers and forced the resignation of another five officers, the union took strike action – first in April and then in August. The local Ministry of Manpower office finally recognised one of the
union’s demands, to require that the company enforce labour standards required by law in the workplace, but this instruction was
ignored by the company.
The union members signed a petition on 6 September to the company demanding that the company: a) re-instate Robin Kimbi and withdraw charges on his dismissal; b) implement the Ministry’s instruction on enforcement of labour standards; and c) clarify the employment status of contract workers and ensure they have the same rights as permanent workers. Management refused to come to the bargaining table, so a longer strike was called by the union to start on 13 September.
When the union members went on strike, replacement workers were brought in, allegedly in collusion with local officials. On 14
September, company security guards drove a company truck into the union’s picket line, seriously injuring two workers who had to be
hospitalised. The union filed a formal complaint with the local authorities, but no action has ever been taken by police against those
responsible for running over these workers. Yet, when a group of enraged strikers responded by attacking and pulling down the company’s gate, police immediately used force to suppress the strike. Police then pressed charges against six union leaders on trumped up
charges of violence against persons or property. Five union leaders were detained on 15 September and a sixth leader was arrested on
18 October on the same charge. In addition to union chair Robin Kimbi, those imprisoned include Masri Sebayang (Kahutindo Riau
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Regional Secretary) and Syafrudin, Aken Pane, and Surhaftowo (all union vice Chairmen). If convicted, these leaders face a potential of
up to five and half years in prison. At year’s end, the trial was continuing and the detained unionists remained in jail, after having been
refused release on bail.
The union’s call for an inquiry by the provincial Parliament was received, and a hearing was held that excluded the union from its deliberations. Improper “mediation” between local authorities and PT Musim Mas management was apparent when the inquiry finished with
a company statement, acknowledged and approved by the chiefs of the District and Regional offices of the Ministry of Manpower, stating
that the company had upheld workers’ rights in accordance with the labour laws. The National Dispute Settlement Committee further
approved the company’s dismissal of 701 workers without compensation for striking in support of the union, effective 30 September. The
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union has appealed that decision. At year end, the factory hired local police officers to forcibly evict hundreds of these workers and their
families from factory housing, despite the fact that the law provides these workers remain employees of PT Musim Mas until their appeal
is decided.
PT Sinar Apparel Internasional firing union chair: PT Sinar Apparel International, located in Cibitung near the town of Bekasi
(West Java), produces garments for prominent brands such as Marks & Spencer, GAP and John Apparel. When a union was organised at
the factory in January 2005, management initially refused to bargain in good faith, instead pursuing tactics that included trying to bribe
union leaders. When this tactic failed, PT Sinar management sacked the union’s chairman, Arifin, on trumped up allegations of violating
company regulations. Disputes over late payment of wages, which led to a one day strike in October, also resulted in the dismissal of a
union activist, Dedeh. At year end, pressure by the KASBI (Congress of Indonesia Unions Alliance), supported by the ITGLWF and international brands sourcing from the factory, forced the factory to reinstate Arifin, cease all anti-union harassment, and initiate efforts to
reach a collective bargaining agreement with the union. However, Dedeh’s case remained unresolved at the end of the year.
New dawn for sugar workers dimmed by union busting, threats against the IUF: Since its founding on 22-23 February,
the Federation of Independent Tobacco, Cane and Sugar Workers (FSPM TG) has been the subject of a severe and worsening campaign,
apparently aimed at destroying the federation. The campaign is being led by a colluding group of employers (private and state enterprises), local and national Ministry of Manpower authorities, and Suharto-era labour leaders. The treatment of FSPM TG caused the
Director-General of the ILO to raise his concern about these “very serious violations of freedom of association” directly with the government. The IUF filed a complaint against the government of Indonesia at the ILO’s Committee of Freedom of Association, which was considering the matter as the year ended.
FSPM TG President, David Sukamto, was suddenly sacked in the third week of March, with his employer, Gunung Madu Plantation,
alleging “gross misconduct”. The union appealed the dismissal. When the case was considered by the local Dispute Settlement
Committee (P4D), its decision upholding the employers’ action confirmed that Sukamto had been dismissed for actions in connection
with his union role. The P4D found “gross misconduct” in his action to recommend union members not to accept a management wage
proposal in January 2005, and for his involvement with the IUF. The P4D essentially served as a rubber stamp for management’s
request to fire him, ignoring that these representation functions of a union leader are protected in Article 28 of Law 21/2000, the Trade
Union Act.
The 24 unions that joined the FSPM TG face concerted campaigns of harassment from management and their former labour federation,
KSPSI, to resign from the FSPM TG. Following the dismissal of the federation’s President, at the PTPN X plantation and sugar mill
complex located in various parts of eastern and central Java, all FSPM TG unions were forced to disaffiliate. The harassment has
encompassed abuse of the government’s power to control registration of trade union bodies. The local office of the Ministry of Manpower
in Kediri, East Java, challenged the government registration of FSPM TG, which had been issued only months before, in accordance with
regulations. The Manpower office sought a retroactive and illegal “deferral” of the registration, which effectively deprived the FSPM TG
of its right to represent workers in collective bargaining. This deferral has been used by the company as a rationale to not allow the federation’s General Secretary to visit workers, and perform his rightful union functions.
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On 5 October, the Minister of Manpower ruled that FSPM TG would have to re-register, effectively revoking the FSPM TG’s previous
registration which had complied with all applicable laws and procedures. Under strong protest, for tactical reasons and as a show of
good faith, the federation reluctantly agreed to follow the Minister’s order. A new registration number for the federation was issued, but
there was no indication from the Kediri Manpower office that this new registration number would not be questioned, or even revoked as
happened with the previous registration. PTPN X management continued to harass FSPM TG members with impunity, and prevented
local union leaders from carrying out their duties.
FSPM leaders and Hemasari Dharmabumi, an IUF staff member, were threatened with violence if they continued their activities on
behalf of the federation. A group of Suharto-era unions, the self-titled All Indonesia Sugar Mills Unions Solidarity Forum, issued a letter on 27 September, in which it accused the FSPM TG of “hijacking” members of other unions, unfairly attacking the government, and
encouraging foreign groups (the IUF) to interfere in Indonesia. One of the signatories, SP-BUN PTPN IX General Chairperson Djoko
Moeridno, issued another letter on 30 September which accused the FSPM TG Secretary General Legimin, aswell asw Hemasari, of
violating unspecified laws. It added that he and his union would “sacrifice body and soul to oppose the intervention of foreign parties
who wish to destroy” the workers of Indonesia, and specifically threatened “physical action” against Hemasari and Legimin if they did
not cease their work for FSPM TG. In a meeting with the IUF General Secretary in Geneva on 14 November, senior Ministry of
Manpower officials stated that they did not consider signed threats on official letterhead worthy of further investigation. Complaints by
Secretary General Legimin in mid-October, that he was under constant surveillance by two unknown men in Surabaya, received no government response. As the year ended, the government had failed to reply to calls by the ILO and international trade union bodies to protect the FSPM and IUF leaders from these threats, and to launch a criminal investigation to find those responsible.
Gran Mahakam Hotel – refusing to bargain, supporting a yellow union: The owner of this five-star hotel in Jakarta, and
the direct hire human resources manager reporting to him, have continually refused to bargain in good faith with the Independent
Workers’ Union, Gran Mahakam, which was organised in October 2003. Anti-union tactics included trying to bribe union leaders, and
when that failed, direct management involvement in organising a competing, yellow union – the Organisation for the Aspirations of Gran
Mahakam Employees –composed of a small number of management personnel. Management successfully pushed for registration of this
“organisation” with the Jakarta Department of Manpower, and then contended it had no obligation to recognise or negotiate with the
legitimate union. The IUF put pressure on the French-based hotel chain Accor, which manages the hotel and with which it has a Global
Framework Agreement on the respect of trade union rights. Although the general manager resigned from his position and the human
resources manager was sacked, Accor was unable to convince the owner to stop the anti-union activities. In August, the Department of
Manpower ordered that negotiations be conducted with the employer, the union, and the management-controlled “organisation”. At
year’s end, those negotiations were continuing.
Securicor/G-4 firings and police harassment: On 25 April, over 600 Securicor/Group 4 Falk workers in Jakarta and Surabaya
went on strike over terms and conditions of employment in the newly merged security company. The next day, the company barred the
union’s President from entering the company’s premises and refused all requests for negotiations. One month later, on 25 May, the company unilaterally dismissed 203 union members who were participating in this legal strike, falsely claiming they had resigned. The union
filed an appeal to the local authorities, asserting the workers had been illegally fired for participating in a legal strike. On 8 June, the
local Ministry of Manpower office upheld the union’s appeal, finding that the strike was indeed legal. The government mediator recommended that all 203 workers be re-hired. Securicor/G-4 refused to comply with this recommendation. The union appealed the matter to
the tripartite National Dispute Resolution Committee (P4P) which, on 18 July, upheld the Ministry of Manpower ruling and ordered the
company to reinstate all fired workers. The employer then appealed that decision to the High Court for State Administrative Affairs,
where the case was still being considered as the year ended.
Using compliant police and prosecutors, the company counter-attacked with its own campaign of harassment by proxies. Starting on 18
July, and contravening recently promulgated regulations against police involvement in labour disputes, South Jakarta police called in
ten union leaders for questioning over an alleged violation of a Dutch colonial law prohibiting vague and unspecified “unpleasant acts”
against employers. Leaders were requested to identify fellow strikers from photographs, and questioned about the content of banners
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confiscated by police during the union’s peaceful demonstration. Over several months, union President Fitrijansjah Toisutta, and members
Tri Muryanto and Edi Putr, were required to report for interrogation by police and state prosecutors at least twice a week, and were continually informed they were suspects of a criminal investigation. Finally, union President Toisutta was formally charged with this trumped
up charge, and at the end of the year, his case was awaiting trial. The case strongly suggests that arbitrary and biased police involvement
in labour disputes continues with impunity in Indonesia.
Intransigent employer locks out union at PT Takeda: Starting in January, the pharmaceutical manufacturer PT Takeda
Indonesia refused to comply with various sections of its collective bargaining agreement with the local union, including failure to pay previously agreed wage increases, and the punitive transfer of an employee for union activities. When the union pressured the management
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in negotiations in May, the factory responded by issuing “suspension” letters to 39 union members, and “final warning” letters (later
converted to “suspension” letters) to another 19 members. Replacement workers were found, in collusion with the local Manpower
office, and hired to perform the jobs of these 58 locked-out workers. At the behest of the employer, local police compelled the President,
vice President, secretary, and treasurer to appear for questioning, and harassed them for union activities. A Manpower office mediator’s
decision that the employer should reinstate all 58 workers was appealed by the employer. The Indonesian Pharmaceutical and Health
Workers’ Union Federation Reformed (FSP FARKES/R Indonesia) filed a complaint with the ILO which was accepted by the Committee
on Freedom of Association.
Garuda Airlines retaliates against the union: The refusal of the management of Garuda Airlines to bargain in good faith on
wages and working conditions with the Association of Garuda Flight Attendants (IKAGI) resulted in the union calling for a legal, nationwide strike between 12 and 14 August. A last minute intervention on the eve of the strike by three government Ministers persuaded
IKAGI to call off the action, despite management’s continued intransigence. However, this good faith action by the union has been
answered by a punitive, anti-union campaign by Garuda management aimed at harassing IKAGI’s leaders and destroying the unity of the
union.
Prior to the strike, Garuda’s Director of Operations signed threatening notices that were posted in Garuda offices, and sent text messages
to flight attendants’ mobile phones, warning that any employee participating in the strike would be punished. The IKAGI headquarters
office at the Soekarno-Hatta airport, in Cengkareng, West Jakarta, was forcibly closed by Garuda and the union denied access. The
union filed a complaint with police about this closure, but nothing was done. Since then, Garuda management has reneged on an agreement to allow IKAGI to return to office space at least the same size as it previously occupied on the Garuda premises. It has unilaterally
decided to offer a space of less than six square metres for the entire union office.
Starting in August, management also systematically intimidated IKAGI union activists. All flight attendants received a formal warning
from Garuda management, and internal investigations were started against union activists. From September onwards, IKAGI activists
were compelled on several occasions to attend intimidating “interview” meetings with management where they were informed their
union activities and protests, conducted on their personal time, was “counter-productive” and could result in cuts in pay or termination if
they continued. Ten IKAGI leaders, including union General Secretary Haryo Santoso, were punished with administrative sanctions such
as wage cuts. At the end of the year, IKAGI President, Zainudin Malik, and two IKAGI activists, Mona Lapian and Yuli Winarko, were
being threatened with dismissal.
Despite the fact that Garuda Airlines is a state enterprise under the control of the government, there have been no efforts by Indonesian
authorities to stop Garuda’s anti-union retaliation.
Three years on, Bridgestone still continues to deny union rights: The leaders of four branches of the union at Bridgestone
Tyre continued to contest their dismissal for union activities. Julio Setio Raharjo, union Chairperson of the branch union at the company’s head office in Jakarta; Sarno H., Chairperson of the company’s factory in Bekasi; Hazrial Nazar, Chairperson at the Karawang factory; and Machmud Permana, union Secretary at the Bekasi factory, were all suspended without pay following a dispute in 2002 over
wage negotiations. Furthermore, Bridgestone continued to refuse recognition of these four union leaders as representatives of the union’s
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negotiating team, saying it would only negotiate with union officers “still having the status as worker in the company”, thereby violating
the union’s freedom to choose who should represent them.
At the end of the year, the company was still refusing to recognise the union negotiating team, hence no agreement had been negotiated.
The case was also still pending before the ILO Committee on Freedom of Association, which had addressed a number of requests to the
government. These included the extent of anti-union discrimination provisions in the Industrial Relations Disputes Settlement Act of
2004, the means of redress used in the case of the four union officials, the limitations on their union activities while they still enjoyed a
formal employment relationship with the enterprise, and the need for the procedure they had launched for anti-union discrimination to
take precedence over their dismissal procedures.
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State-owned bus company still refuses to recognise union: Perum Damri, a large state-owned bus company refused to recognise three legally registered unions organized by the Transportation and Delivery Workers’ Federation Indonesia Prosperity Trade Union
(FTA SBSI). The company claimed that only two unions organised by management were representative, and denied appeals by FTA
SBSI to involve them in ongoing contract negotiations. The Secretary of the FTA SBSI Perum Damri Semarang received a punitive
transfer to Jogjakarta as a result of his union activities, and management threatened other union activists with similar transfers in order
to reduce support for the union.
Failing the test, PT Busana Prima Global continues anti-union efforts: This factory, located in Bogor (Java), produces
sportswear for Dutch, Italian and other brands, including Head, Lotto, Le Coq Sportif, Ecko and Bear USA. An independent monitor,
hired by representatives of international brands and Oxfam Australia, and allowed access to the factory by PT Busana management,
issued a report on 31 March that found clear evidence of management intimidation and harassment of the union. This included the
union being forced to turn over membership lists, a refusal to recognise and bargain with the union, the demotion and transfer of union
leaders, and the hiring of local thugs to threaten union activists. Following a strike in July 2003, the factory terminated four union leaders, and around 170 other rank and file members, 30 of whom were still seeking to return to the factory.
At year’s end, no progress had been made to reinstate these workers, despite management’s pledge to overseas campaigners and garment buyers that the workers would be allowed to return. On the contrary, supervisors in the factory (with encouragement from management) were persuaded to draw up a petition, opposing the return of these unionised workers. The factory also facetiously claimed it
could not locate the 34 fired workers.
PT Panarub refuses to reinstate union leaders: Despite an ongoing investigation by the Workers’ Rights Consortium, and pressure from the ITGLWF and other international labour groups, the management of PT Panarub, a sport shoe manufacturer located in
Tangerang and producing for Adidas, continued to refuse to reinstate 33 top leaders and activist members of the Perbupas union who
were fired for undertaking strikes at the factory in September and October. The firings effectively decapitated the union, leaving it without a leader in the factory. This latest action is the most severe instance of anti-union discrimination directed at the Perbupas union over
the past three years. At year’s end, the case was being considered by the Central Labour Court in Tangerang.
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POPULATION: 127,900,000 / CAPITAL: TOKYO / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 138 - 182
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Strong legal restrictions on the trade union rights of public servants remained in place. For
a second straight year, the government failed to substantively discuss reform proposals
made by the national trade union centre, JTUC-RENGO. The government also continued to
ignore the recommendations of the ILO CFA to amend its legislation to bring it into compliance with its obligations under ILO Convention 87, ratified by Japan.
The Constitution recognises workers’ freedom of association, and their right to organise, bargain and act collectively. There are limitations, however, particularly for civil servants and, to a lesser extent, for employees of state-run companies and private companies with
“higher social responsibility” such as the electric power industry.
Private sector …
Legislation: There are three major labour laws governing private sector workers, including foreign workers, two of which have a direct
bearing on their trade union rights. The Trade Union Law (TUL) guarantees the right to organise and bargain collectively, and the
Labour Relations Adjustment Law (LRAL) covers dispute settlements. The third law, the Labour Standards Law (LSL), governs working
conditions.
The LSL was amended in June 2003 to include a provision, for the first time, limiting an employer’s right to dismiss workers. It is now
unacceptable to dismiss an employee if the employer “lacks an objective and logical reason” to do so. However, the LSL was also
changed to weaken the protection of temporary workers.
Right to strike: The right to strike is protected in the private sector, but ten days notice must be given within privately-owned utilities,
such as electric power generation and transmission, transportation and railways, postal services, telecommunication services, water supply, and medical care and public health. Discrimination or retribution against strikers is prohibited, and there are provisions in the law
for the reinstatement, with back wages, of any workers fired for union activities.
Collective bargaining: Collective bargaining is very strong in Japan. Although the TUL provides for regional collective agreements,
in practice it is for the most part enterprise-based and affects primarily those workers who are union members. During the “Spring
Struggle”, union representatives meet with management to determine wages; this is known as the “shunto”.
… Versus public service
Heavy restrictions: Labour relations in Japan’s public service are governed by the National Public Service Law and the Local Public
Service Law, dating back to 1948, which both heavily restrict basic trade union rights.
Staff may organise at a national level, with the exception of members of the police force, fire fighting services, penal institutions, the
Maritime Safety Agency, and the Self-Defence Forces. The system of trade union registration requires separate unions to be created in
each municipality, and places restrictions that the ILO has described as “tantamount to prior authorisation” to form unions. Most staff
in senior executive grades cannot be part of the same union. Administrative and clerical workers do not have the right to bargain or conclude collective agreements at local or national level. Their wages are set by law and/or regulations, partly based on recommendations
issued by NAP and local personnel commissions.
Strikes banned: All public employees are banned from striking. Trade union leaders who incite strike action in the public sector can
be dismissed and fined or imprisoned for up to three years.
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Government intransigence on trade union rights for public sector workers: Over the years, the Japanese government has
repeatedly ignored ILO Committee on Freedom of Association (CFA) recommendations that it amend its legislation to remove the
restrictions on public workers’ rights and bring them into line with international standards. On the contrary, on 25 December 2001, it
unilaterally adopted the General Principles of Administrative Reform. Under the General Principles, the authority of the government as
an employer was greatly expanded, while the current restrictions on the fundamental labour rights of public workers were maintained.
In November 2002 and June 2003, the government determined that, because the ILO recommendations were outlined in an “interim”
report, they were not for immediate consideration. RENGO also reported that the Minister responsible for administrative reform had
publicly stated the Committee did not understand the situation, and was interfering in Japan’s internal affairs. It has also been claimed
that restrictions exist because of the distinctive status of public workers, and that they are compensated by the National Personnel
Authority (NPA) system.
Collective bargaining limited in state-run enterprises: Article 8 of the Law on Labour Relations in public companies excludes
from collective bargaining all issues to do with the management and operation of public companies. This includes promotion and demotion, transfer, dismissal, seniority and disciplinary measures. A number of other matters, such as education, training, health care, leisure
time, and staff safety and well-being are also excluded from collective bargaining, although when working conditions are affected by
decisions taken in these areas, a collective bargaining process may be launched.
Government fails to commit on proposals for reform: In November 2003, RENGO set up the “Study Group on the Reform of
the Public Service System” composed of labour law and labour administration specialists. In June 2004, the study group issued an
interim report whose three principle recommendations included the granting of fundamental trade union rights to public servants.
RENGO engaged with the government to discuss its proposals, but the government failed to articulate a clear position or respond substantively to labour’s positions. Consultations were effectively suspended from the autumn of 2004 until May 2005, when the President
and senior officials of RENGO met Prime Minister Koizumi, the Minister of Labour and the Chief Cabinet Secretary. RENGO again
received a pledge that government-labour consultations on reform of the public servants’ system would occur. Specifically, the Minister
of Labour promised “the government [would] retain the framework of government-labour consultations for the reform of the public servants’ system.” However, again, little substantive progress was made. In November, the Council on Economic and Fiscal Policy, which
operates as an advisory board to the Prime Minister, recommended reductions in the number of civil servants to save on labour costs.
RENGO strongly opposed this recommendation when its leaders met the Prime Minister on 16 December. The result of RENGO’s pressure campaign was positive. On 24 December, the Cabinet adopted a “Basic Policy for Regulatory Reforms” which indicated an interest
in ensuring that reform of the public servants’ system would occur within the framework of the current system. However, no commitment to review basic labour rights of public servants was received.
Judicial system slow and inadequate: Legal provisions against unfair labour practices and anti-union discrimination and their
implementation are inadequate, and the procedure slow. The Central Labour Relations Commission (CLRC), a body established to implement measures to protect workers’ and trade unions’ right to organise, took, on average in 1999, four years and one month to hear
cases. It took as long as five years and one month after the filing of a complaint to issue a decision.
A new tri-partite system of “Industrial Tribunals” was expected to become operational in April 2006. It was designed to handle individual cases involving dismissals, working conditions, and reassignments. The enabling law for these Tribunals was passed by the Diet in
2004. First step procedures were to consist of mediation. If disputes failed to be resolved, they were to be solved through a trial – with
the objective that decisions could be reached at the latest three months after the beginning of formal consideration of the case. Decisions
of the Tribunals could be appealed before district civil courts if needed.
Rights generally respected in private sector: In the private sector, trade union rights have generally been well respected by
employers, although recent abuses suggest this may be changing. The prohibition on discrimination against strikers has generally been
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observed. However, the above-mentioned problem regarding the time taken to process workers’ complaints against employers can result
in a lack of effective protection for union members and other workers.
Growing anti-union attitude: There are increasing signs of anti-union attitudes in the private sector, and some worrying cases of the
authorities not defending workers’ right to unionise, particularly in companies which are restructured or foreign capital-owned ones. A
law regarding the division of businesses into new entities that came into force in 2001 effectively weakened workers’ rights.
Concern for rights of part-time, atypical and contract workers: During the year, RENGO stepped up campaign efforts for the
introduction and passage of “equal treatment legislation” for part-time and contract workers. There was increasing concern about
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employers’ use of “non-regular” workers, who remain effectively outside of the labour movement. The top leadership of RENGO pledged
to increase its work to organise and support these workers. A survey by the Ministry of Labour in 2003 found that 34.6 per cent of the
workforce was considered “non-regular”, up seven per cent from the previous survey four years before. Only approximately three per
cent of part-time workers are organised in unions at this time.
VIOLATIONS IN 2005
Background: Parliamentary elections in September returned the coalition of ruling parties (LDP and New Komei) to power with an
increased majority, despite the unified support of RENGO for the opposition Democrat Party.
Unilateral determination of public service job cuts: The negative impact of the lack of full freedom of association and collective bargaining rights in the public sector was seen when the government unilaterally decided in December that the number of civil servant positions would be reduced by 1,455. This was triple the level of the previous year, and the highest annual reduction since 1985.
The government has adopted a policy to reduce public service employment by five per cent over five years.
Police harassment of Japan Confederation of Railway Workers Unions (JR Soren): In December 2005, RENGO reported
that police searched the offices of JR Soren and its affiliates, as well as residences of union officials, for four consecutive days on the
grounds of inappropriate use of union money. No evidence was produced to substantiate the accusations, leading RENGO to charge the
police had damaged the reputation of the unions. Meanwhile, the case of another seven JR Soren officials continued in the courts.
Recommendations by the ILO to the Government of Japan to return confiscated property to the union were ignored.
Korea, Democratic People’s Republic of
POPULATION: 22,900,000 / CAPITAL: PYONGYANG / ILO CORE CONVENTIONS RATIFIED: NOT A MEMBER STATE
§
There was no change in the total lack of respect for trade union rights in one of the world’s
most tightly controlled and secretive states. Despite rhetoric about worker rights in the
Constitution, the country has only one trade union federation to which all unions must
belong, and which exists solely to carry out the ruling party’s orders. Economic engagement
increased significantly between North and South Korea at the Kaesong Industrial Zone,
where workers are strictly controlled.
No freedom of association: Article 67 of the Constitution of North Korea provides that “citizens are guaranteed freedom of speech,
of the press, of assembly, demonstration and association.”
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In reality, there is no freedom of association in North Korea. Independent trade unions are prohibited. The only authorised trade union
organisation, the General Federation of Trade Unions of Korea, is controlled by the single party, the Korean Workers’ Party (KWP).
It operates according to the old “Stalinist” model of trade unions, with responsibility for mobilising workers to meet production targets
and providing health, education, culture and welfare services.
In April, the UN Commission on Human Rights passed a resolution on North Korea in which it condemned “…all pervasive and severe
restrictions…on peaceful assembly and association…”, and urged the government to address these human rights problems by, among
other things, “…adhering to internationally recognised labour standards…”.
No collective bargaining: Workers do not have the right to bargain collectively. Government ministries set wages.
The state assigns all jobs. Joint ventures and foreign-owned companies have to hire their employees from lists of workers vetted for their
“ideological purity” and drawn up by the KWP.
Repressive system: Article 30 of the Constitution says that “the State shall organise labour effectively, strengthen labour rules and
take fully utilise labour’s working hours”. Furthermore, Article 83 of the Constitution stipulates that all citizens of working age must
work in full compliance with working discipline and working hours. The penal code provides for the death penalty for any individual who
hinders the nation’s industry, trade or the transport system, by purposely failing to fulfil a specific duty “even though he or she claims to
be working normally”. The penal code also states that anyone failing to carry out an assigned task properly shall be subject to at least
five years in prison.
The UN Special Rapporteur of the Commission on Human Rights, and numerous government and NGO sources, found that the North
Korean government consistently used forced labour. This is arguably the antithesis of workers being freely able to associate.
A North Korean functionary once described the North Korean labour force to an audience of foreign businessmen in the following terms:
“There are no riots, no strikes and no differences of opinion” with management.
The Government even controls the most basic aspects of employer-worker relations. In the Kaesong Industrial Zone, set up just across
the de-militarized zone in North Korea with support from the South Korean government and business leaders, a reporter on a government-led press excursion learned that firms in the zone are required to pay salaries for workers directly to the North Korean government. The journalist found that, of the monthly wage of US$57.50 paid by the companies to the government for each worker, only a
fraction of this is actually given to the worker. Repeated requests by South Korean managers of the eleven factories, employing over
6,000 workers, to be allowed to pay wages directly to the workers have been refused. Surrounded by barbed wire and soldiers, North
Korean workers are tightly controlled and under constant surveillance by the authorities. The Kaesong Industrial Management
Committee which oversees the industrial zone indicates that, by 2012, they expect 2,000 factories employing over 700,000 North
Koreans to be operating in the zone. In 2005, output from these factories of government controlled workers accounted for much of the
51 per cent increase (year-on-year) in the value of trade between North and South Korea.
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Korea, Republic of
POPULATION: 48,200,000 / CAPITAL: SEOUL / ILO CORE CONVENTIONS RATIFIED: 100 - 111 - 138 – 182
§
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The year was marked by the continued heavy persecution of the public servants’ union and
the arrest of its leaders and dismissal of hundreds of its members. Despite the promulgation
of a law allowing public servants to organise, the overall government policy can only be
described as anti-union. The government used its authority to compel mandatory arbitration
in strikes by pilots of Asiana Airlines and Korean Air. Government efforts to pass a new
labour law, covering irregular or contract workers, was a major source of contention with
the unions. Police violence was regularly used to break up worker protests and demonstrations, resulting in the death of at least one trade unionist, and the hospitalisation of many
others.
Law recognises union rights for civil servants: Broad categories of civil servants have long been denied the right to organise,
but on 31 December 2004 the law on the Establishment and Operation of Public Officials’ Trade Unions passed through the National
Assembly. The law goes into effect on 28 January 2006, a full year after its promulgation. Civil servants will be allowed to legally
organise within administrative units predefined by the law with the exception of managers, human resources personnel, personnel dealing
with trade unions or industrial relations, and special public servants such as military, police, fire-fighters, politically-appointed officials,
and high level public officials. A union member can work fulltime for the union, but only with the authority of the employer and while
taking unpaid leave.
Civil servants will have the right to collective bargaining, but the subjects of negotiation are limited to matters concerning trade unions,
members’ pay and welfare and other working conditions. Hence trade unions cannot address other economic and social issues. Law and
budgets prevail over Collective Bargaining Agreements (CBAs), which makes it possible for the government to propose a budget that will
nullify them. Trade unions can file complaints about unfair labour practices, but no sanctions for such practices are foreseen. The law
maintains a ban on industrial action, such as strikes and work slow-downs.
The law also prohibits public sector unionists from engaging in “acts in contravention of their duties prescribed in other laws and regulations when doing union activities”. This is a very broadly worded provision that is open to abuse. Finally, public sector unionists are not
permitted to be involved in any sort of “political activities”.
Right to strike - denied to many: The 1997 Trade Union and Labour Relations Adjustment Act (TULRAA) and public service legislation ban strikes by people working for the central government or local governments, and by those involved in the production of military goods. The law sets out a long list of “essential services” where the right to strike can be heavily restricted by the imposition of
mediation and arbitration procedures.
Under the 1999 law on establishment and operation of trade unions for teachers, members of this profession do not have the right to
strike on the pretext of protecting students’ right to learn.
Compulsory arbitration: The TULRAA provides for compulsory arbitration for disputes in “essential public services” if the parties
cannot come to an agreement on their own. The Labour Relations Commission (LRC) conducts mandatory mediation or “adjustment,”
lasting 15 days for public service enterprises. Recommendations arising from mediation, however, are not binding on any party. In industrial disputes in “non-essential” public services, the conclusion of mediation opens up the possibility of taking industrial action, including
a strike or lockout.
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For “essential public services”, however, the mediation committee can recommend that the chairperson of the LRC refer the dispute to
arbitration. Once a dispute is referred to arbitration, industrial action is prohibited. The arbitration award produced by an arbitration
committee ends the dispute, and the award has the same effect as a collective agreement. If industrial action is taken, it is by definition
illegal, and management can initiate criminal proceedings. Arrest warrants can be issued against union leaders, and management can
call on the police to remove striking workers from the premises.
Strikes are also illegal if they are not specifically about labour conditions, such as wages, welfare and working hours. This is contrary to
ILO standards.
Striking workers and union leaders can be prosecuted and sentenced under Article 314 of the Penal Code, which prohibits “obstruction
to business”.
Right to demonstrate limited: Under the Law on Assembly and Demonstration, any gathering is banned within a hundred metres
of foreign diplomatic missions. As a result many large companies, such as Samsung, have invited embassies to rent offices in their buildings, this effectively prevents workers from demonstrating in front of company headquarters.
Interference in internal trade union affairs: The TULRAA initially prohibited employers from remunerating union leaders from
1 January 2002, a ban later extended to 2006. The law also bans dismissed workers from remaining members of a union, and states
that non-union members are not eligible for trade union office. Under ILO standards, such matters should be left to the discretion of the
trade unions’ statutes.
The TULRAA allowed for immediate trade union pluralism at industrial and national level from 1997, but the ban on union pluralism at
company level was extended until 31 December 2006.
Third party intervention still hindered: The Ministry of Labour must be notified of the identity of third parties involved in collective bargaining and industrial disputes. Sanctions are foreseen if they intervene without the Ministry being notified. Current requirements for the registration of third parties make this a very cumbersome operation.
Special economic zones (SEZs): The law on Special Economic Zones (SEZs) of July 2003 contains preferential provisions in relation to foreign companies investing in the SEZs. It exempts them from many national regulations on the protection of the environment
and labour standards. It is feared that this will result in further violations of workers’ rights. The trade unions have objected particularly
to the fact that the new law makes it easy to hire “irregular” workers, who will have little or no protection.
Bill on irregular workers erodes protection: The government continued to try and push through Parliament a bill that would
allow expanded use of temporary contracts. For example, it would allow three year temporary contracts. Such contracts deprive workers
of certain rights under the law, and entail less advantageous working conditions and less pay. Employers are able to hire them without
significant constraints. Both the Federation of Korean Trade Unions (FKTU) and the Korean Confederation of Trade Unions (KCTU) vigorously opposed the bill with a series of general strikes. The unions feared that it would make temporary contracts the prevalent form of
employment, eroding existing labour protection. Cases cited by the KCTU include Korea Telecom, service workers at hotels, Disabled
Persons Call Taxis in Seoul, Hyundai Heavy Industries, Seoul Grand Park. All these companies had significant numbers of union members who were contract workers, identified as union activists by management, and who did not have their contract renewed when it
expired.
In a freedom of association complaint filed at the ILO in April 2005 against the government, the KCTU argues that irregular workers constitute 55.9 per cent of the work force (approximately 8.16 million people), according to the 2004 survey of the Korean National Statistical
Office. The government disputes that figure, claiming 36.6 per cent are irregular. The KCTU notes that the government’s bill would lift
almost all restrictions on which industries can use contract labour, and would extend the period of time contract labour can be used.
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“Roadmap of Labour – Management Relations” released: In September, the government released a “Roadmap” of 34 labour
reform issues to be proposed to Parliament. It was released through the national tripartite Labour Commission, which lacks labour participation because of a boycott by the unions. Unionists have been demanding the withdrawal of the package, saying most of the measures are in favor of management and do not meet the international standards.
Reprisals for opposition to new law on public officials’ unions: The Korean Government Employees’ Union (KGEU) decried
significant restrictions on trade union rights in the law on the Establishment and Operation of Public Officials’ Unions, which the union
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claimed were contrary to guarantees of freedom of association in the Constitution. The KGEU took the position that the law was
“invalid”. It added that it believed that the restrictions would result in as many as 60,000 of their 140,000 members being forced to
resign their membership.
KGEU leaders proclaimed clearly that they would not register as a union under the provisions of the new law, and the government
warned it would then consider the KGEU an illegal organisation. The second largest civil servants’ union, the Confederation of
Government Employees’ Unions (CGEU), took a similar position and refused to register under the law.
The government threatened to cut central budget support to any local authority that negotiated a collective agreement with the KGEU.
In 2003 and 2004, the government forced authorities from 36 localities to repudiate agreements they had reached with the KGEU. The
government further prohibited local government authorities from conducting check-off for KGEU dues, maintaining that the union was
an unlawful organisation and that therefore permitting the collecting of dues would abet its illegal acts.
Illegal strikes: While it is not mandatory for the LRC to refer all disputes in “essential public service” enterprises to mediation, the
practice so far has been to do so systematically, thus consistently denying workers in this sector the right to strike. The practice has been
to delay or stall negotiations to the point where the union feels it has no solution other than to take strike action.
Collective action often becomes “illegal” outside of essential services as well, given the complicated legal procedures for organising a
strike. Such action continued to be severely repressed by the government after being criticised for leniency at the beginning of its term of
office. During the past six years, over 1,000 unionists have been imprisoned. In the vast majority of cases, the principal charge has been
“obstruction of business”, or trying to illegally organise trade unions in the public sector.
The authorities use the violence that takes place in some demonstrations and strikes to justify the detention of trade union leaders.
Unions insist police action is unnecessarily provocative and disproportionately brutal. Prosecutors are quick to issue arrest warrants as
soon as workers go on strike, or sometimes when one simply is announced. Police or security agencies mount surveillance operations occasionally sophisticated ones - in order to capture strike leaders. Unions’ offices and telecommunications are routinely monitored.
Unionists striking “illegally” often receive a one year prison sentence or are fined up to three million won (2,700 USD).
Prison conditions: Imprisoned trade unionists are generally isolated from one another in order to prevent them from taking collective
action while in jail. Like many other prisoners, they are confined to their cells 23 hours a day and are allowed only one seven minute visit
from lawyers or relatives per day.
“Paper unions”: In a context where trade union pluralism is prohibited by law at plant level, many employers have resorted to creating management-controlled unions, known as “paper unions”. As they are impossible to democratise from within, owing to management’s hostility, and since it is legally forbidden to organise alternative unions, workers are left with few, if any, rights and cannot engage
in genuine collective bargaining.
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Law on damage suits still to be reviewed: A spate of suicides led to a wave of demonstrations across the country on 29 October
2003, in protest at the lawsuits brought by employers. These lawsuits are also believed to have been the main cause of the suicides. On
the same day, the government announced plans to draft legislation preventing employers from abusing their right to file compensation
suits for illegal strike action and seize assets. It proposed, inter alia, to lower the maximum limit for the provisional seizure of an individual’s wages, fixed at 50 per cent, and limit the range of provisional seizures. It also promised to request the Supreme Court to be
more cautious when ordering provisional seizures. However, the law has still not been changed.
VIOLATIONS IN 2005
Background: Efforts by the government to push through a law on contract workers over union objections caused relations between it
and the two labour federations, the Federation of Korean Trade Unions (FKTU) and the Korean Confederation of Trade Unions (KCTU),
to deteriorate significantly. In July, in protest against the government’s labour policies, both the KCTU and the FKTU pulled out of all
panels connected to the Ministry of Labour, including the national tripartite Labour Commission. The federations subsequently called for
the Minister of Labour’s resignation, and declared a boycott of the annual ILO Asia Regional Meeting, scheduled for October in Pusan,
on the grounds that South Korea’s anti-union record was in direct contravention of the ILO’s standards. The ILO postponed the meeting.
Meanwhile, the two public sector union federations representing civil servants both rejected the government’s public section union rights
law.
Run down on the picket line – the death of Kim Tae-hwan: Kim Tae-hwan, the chair of FKTU’s Chungju regional chapter,
was killed on 14 June when he was run over by a cement truck while on the picket line in front of the Sajo Remicon cement factory. At
the wheel of the truck was a replacement worker, who FKTU witnesses report was ordered by a plain-clothes policeman to drive through
the picket line. The driver fled, but was later arrested by police and released without charge after the police classified the case as a traffic accident. The striking drivers were demanding the company end their classification as self-employed contract workers, and allow
them to join the Chemical Workers’ Union of the FKTU.
Formation of Migrant Trade Union and immediate reprisals by government: The government policy of targeting activist
migrant union leaders and members, arresting, and deporting them continued apace in 2005. The Migrant Trade Union (MTU) was
organised on 24 April by labour unions and migrant support groups to help migrants defend themselves from harassment. However, the
government refuses to recognise the MTU as a legal union, nor will it permit the MTU to engage in trade union representation or bargaining. The government also does not recognise the MTU’s affiliation to the KCTU.
On the early morning of 14 May, more than 30 police arrested and savagely beat Anwar Hossain, President of the Migrant Trade
Union, as he was heading home. Officials stated he overstayed his visa, and that he would be deported as soon as they received his passport. However, the MTU filed a court appeal, and at year end he was still in detention. An investigation by the National Human Rights
Commission found that the issuance of the arrest warrant was improperly done, but still Hossain was not released. Shortly after his
arrest, police attempted to raid the MTU office to arrest the acting president, but failed.
The Act on Employment of Foreign Labourers, and the Employment Permit System, allows employers to violate migrant workers’ trade
union rights with impunity. Migrant workers are permitted only three years’ work before they must return to their own country, and are
strictly forbidden from changing their employer during their stay in South Korea.
Collective bargaining denied by imposed arbitration: Mandatory arbitration was imposed by the Central Labour Relations
Commission on the Korean Federation of Hospital Workers’ Unions (KFHU) on 7 July. This was despite the fact that negotiations had
been ongoing since April, and were focused on critical issues for the bargaining process, such as the creation of an employer bargaining
partner to the KHWU, and the length of the CBA to be negotiated. The KFHU represents workers in 113 hospitals.
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Continued repression and arrests of KGEU officers and activists: As a result of the KGEU’s campaigns against the law on
the Establishment and Operation of Public Officials’ Unions, numerous national and regional leaders and activists in the union were beaten, arrested and imprisoned, or dismissed from government service. On 6 January, the KGEU held an extraordinary congress in Seoul, at
which it assessed the extent of government repression directed against the union. The President and General Secretary were being sought
on arrest warrants. On 7 January, five senior KGEU officers, who were sought by police on arrest warrants, turned themselves in and
were arrested. Those arrested were first vice President Yong-Cheon Jeong, and vice Presidents Jeom-Gee Min, Myeong-Ja Bahn, JeongSoo Kim, and Il-Soo Kim. The total tally of imprisoned KGEU leaders was six vice Presidents and 15 chairs of department or regional
branch, as well as four senior members under arrest. By the first week of January, disciplinary actions had been taken against 1,451
KGEU members; 397 were dismissed from government service; another 636 suspended from duty; 342 had money deducted from their
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salaries; and 76 were reprimanded. Another 610 were waiting for action by the disciplinary committees.
Arrests of KGEU President and General-Secretary: General-Secretary Byeong Soon Ahn, after evading arrest for 130 days,
was arrested by police on 15 March and imprisoned in Seoul. The year before, in June, he had received a four month prison sentence,
suspended for two years for violation of Election Laws, and a six month prison sentence, equally suspended for two years for violation of
the Public Officials Act.
On 8 April, police located and raided the house where KGEU President Young-Gil Kim was sleeping, and arrested him.
Harsh prison sentences for legitimate trade union activities: On 24 June, Young Gil Kim, President of the KGEU, received a
one year jail sentence, with a two year suspension of sentence under probation for violation of the Public Officials Act. General Secretary
Byeoung Soon Ahn was sentenced on April 28 to eight months in jail, with a two year suspension, also for violating the Public Officials
Act.
Minister harasses and intimidates the KGEU: The Minister of Government Administration and Home Affairs (MOGAHA) continued a policy under which KGEU rallies and demonstrations were technically illegal, since the organisation itself was considered illegal.
The Minister repeated threats made in 2004 to withhold subsidies from local government authorities negotiating with the KGEU on
CBAs. Ministerial directives issued on 9 and 13 September 2004, which prohibit government departments from permitting the collection
of union solidarity funds and the collection of union fees for the KGEU, remained in effect.
On 21 and 22 June, the KGEU held rallies calling on the government to stop the repression against trade unions, and urging the authorities to come to talks with the union in Wonju City, Gangwon-Do province. Although the rally was reported in advance to the police as
required by law, hundreds of riot police surrounded the rally and violently pulled participants out of the rally one by one. On 22 June,
126 KGEU members were arrested during a peaceful rally. They were subsequently released on 24 June.
Ministry interferes in organisation of workers’ groups: The MOGAHA started a “New Wind Campaign” at the end of 2004,
targeting the KGEU and promoting a reform of organisational structure and management of workers groups and workplace councils.
This campaign continued and intensified in 2005.
Strike by Ulsan Local Union results in beatings by police, arrests: The Ulsan Local Union, an affiliate of the Korea
Federation of Construction Industry Trade Union (KFCITU), went on strike on 18 March against 58 construction sub-contractor firms in
the Ulsan area working for SK Petrochemicals and Samsung Fine Chemicals. Starting in mid-2004, the union made than half a dozen
requests for negotiations with these firms, and each time was refused. Formal union complaints against the employers’ failure to bargain,
filed with the Ministry of Labour, also produced no results. A strike was called on 18 March, with the union alleging that SK
Petrochemicals and Samsung were behind the sub-contractors intransigent stance. During a protest in front of Ulsan City Hall, strikers
were surrounding and attacked by police, resulting in five strikers being hospitalized and 825 workers arrested. On 23 May, the KFCITU
and the Ulsan labour union conducted a legal march in Seoul which was again broken up by police, with over 600 workers arrested.
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Government shuts down strikes at Asiana Airlines and Korean Air: The Government decided to use one of its major weapons
to openly repress trade union rights – the power to compel emergency arbitration by employing overly broad powers to designate strikes in
a particular sector as a threat to the economy, or a danger to the public. Airline pilots bore the brunt of this anti-union policy, which had
only been used against unions twice in the country’s history before the Asiana strike, and had been last deployed in 1993.
Pilots at Asiana Airlines, the country’s second largest carrier, went on strike on 17 July, seeking reduced hours, a change in retirement
age, and more say in the management of personnel disciplinary matters. Despite the fact that union-management negotiations were proceeding, and that Asiana Airlines is a privately-held company, the government ordered the pilots back to work, citing provisions of TULRAA that allow the Minister of Labour to announce a mandatory 30-day cooling off period if he finds that the strike threatens the economy or presents a danger to the public. Adding insult to injury, the Ministry of Commerce also announced plans to designate aviation as
a “public service”, enabling the government to intervene to prevent strikes in the future. When the pilots’ union refused the arbitration
proposal mediated by the National Labour Relations Commission – marking the first time in Korean history that emergency arbitration
ended without resolution – the government imposed a settlement that has the legal status of a bargained agreement.
Meanwhile, ongoing negotiations from October to December between the pilot’s union and the nation’s largest carrier, Korean Airlines,
failed. This resulted in a decision by the union to strike starting on 8 December. The government’s new willingness to use this anti-union
weapon was clear when, after only four days, the government unilaterally closed down the strike using the same mandatory arbitration
provisions of the law used in the Asiana case. The Korean Air dispute was still in mandatory arbitration when the year ended.
No recognition for police trade union: The National Police Agency Employees’ Trade Union was continually refused recognition
by the police, or an opportunity to dialogue with the government. Protesting 673 unjustified dismissals of primarily women clerical staff,
and the hiring by police of irregular, contract workers, the union conducted 70 days of daily rallies and hunger strikes in front of national police headquarters before management would meet with them. However, at that meeting, police management refused to recognise
the union or receive its demands. The union’s rally at the National Police Agency on 4 March was violently broken up by police, resulting in three workers being hospitalised, and the remaining 38 workers arrested.
Anti-union dismissals at hospital: In February, hospital management unilaterally decided to fire 30 dieticians, all union members,
at Our Lady of Mercy in Seoul. The move was designed to get rid of union activists as well as to replace permanent workers with shortterm, contractual workers. The Korean Health and Medical Workers’ Unions, with international support from its global union federation, Public Service International, mounted a pressure campaign for reinstatement.
Laos
POPULATION: 5,900,000 / CAPITAL: VIENTIANE / ILO CORE CONVENTIONS RATIFIED: 29 – 138 - 182
§
There was no change in Laos, one of the few remaining communist states in the world and
one of the poorest countries in Asia. The 1994 Labour Law does not protect trade union
rights. The one and only trade union is very closely linked to the single political party and
serves primarily as a political organisation. There is a pattern of systematic non-enforcement of the provisions of the law that do provide protections to workers. The media is
strictly controlled by the government, and there were no reports of any labour disputes
occurring during the year.
No freedom of association: Trade union freedom does not really exist in Laos. Under the 1994 Labour Law, “workers and employers shall have the right to organise and belong to any mass and social organisation that has been formed lawfully”. Labour unions may
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therefore be formed in private enterprises, but they must be affiliated with the government sanctioned Lao Federation of Trade Unions
(LFTU). This body is directly controlled by the single political party, the Lao People’s Revolutionary Party (LPRP). The LFTU’s four
yearly congresses and leadership elections all take place with the authorisation of the LPRP. LFTU representatives are usually LPRP
members or part of the management of state-run companies. Moreover, the Constitution actually states that the LFTU’s role is “to unite
and mobilise all … people for taking part in the tasks of national defence and construction.” The Constitution further limits trade union
rights by stating that Lao citizens can only set up associations or hold demonstrations that are “…not contrary to the law” – making
independent unions un-Constitutional. The labour law echoes this formulation, indicating that workers and employers can belong only to
any organisation “that has been formed lawfully.”
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Civil servants employed in state administrative and technical services, national defence and public order constitute the overwhelming
majority of the LFTU’s 77,000 members. They are excluded from the remit of the labour law.
Article 11 states that all enterprises covered by the law must establish a trade union “in accordance with specific regulations of the sectors concerned”. Workers’ organisations are supposedly free to set their own rules and elect representatives, but their “functions and
activities” are actually set by regulation.
Protection against anti-union discrimination: According to the labour law, employers may not fire employees for conducting
trade union activities “with the approval of the employer or outside working hours”, nor for filing complaints against employers about
labour law implementation.
Severe limitations on bargaining and strikes: The 1994 Labour law was supposed to establish certain minimum labour standards. However, despite the fact that trade unions are allowed to negotiate with employers over wage levels, there is no provision which
compels employers to bargain.
Although strikes are not illegal, the right to strike is severely restricted by dissuasive penalties. The penal code provides for one and five
years’ imprisonment of those who join an organisation that encourages protests, demonstrations and other actions that might cause “turmoil or social instability.” The labour law does not allow strikes in “disputes over interests”, while “disputes over rights” must be mediated through procedures that produce a final decision that cannot be appealed. Therefore, there is no way to legally strike under the law,
meaning all strikes are de facto illegal and subject to penalty.
Dispute resolution: According to the Labour Code, disputes must be resolved through workplace committees made up of employers,
representatives of the local labour union and representatives of the LFTU. Final authority lies with the Ministry of Labour and Social
Welfare (MOLSW). The LFTU would also claim to mediate between workers and employers to resolve any issues.
Union and party hand in glove: Given the fact that the LFTU and LPRP are so closely knit, the union does not really exist to protect workers’ rights. It is rather a labour front for the ruling party. Indeed, the President and two vice Presidents of the LFTU are
accorded status equal to a Minister and vice Ministers in the government, and the LFTU presidium and top officers are all paid salaries
by the government. In March 2001, then LFTU President Venethong Luangvily stated in a speech to the 7th Congress of the ruling party
that the LFTU operates “under the Party’s leadership”, and according to government policy. There have been no indications since then
that the relationship between the government and the LFTU has changed.
Few unions in the private sector: There is little workers’ representation in the joint ventures funded by private capital, despite the
requirement of Article 11.
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No bargaining: The government usually sets wages for government employees, while management sets wages for private sector
employees. There is no provision in law for collective bargaining, and no indication that it occurs in either the public or private sector.
Lack of law enforcement: Observers from international NGOs and embassies based in Vientiane indicate that non-enforcement of
the labour law by the MOLSW, particularly in dealings with joint ventures in the private sector, is the norm.
Dispute resolution in practice: Given that the LFTU needs government permission to enter factories and must provide advance
notice of such a visit, the LFTU is effectively powerless to protect workers who file complaints. The dispute mediation system apparently
only usually works in the most grievous of cases.
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Macau SAR (China)
POPULATION: 449,198 / CAPITAL: — ILO CORE CONVENTIONS RATIFIED: —
§
Legislation is not favourable to trade unions and workers wishing to protect their rights.
Freedom of association is guaranteed in law but does not extend to public servants or
migrant workers. Collective bargaining is not guaranteed.
Freedom of association: Freedom of association is guaranteed under section 4 of Law No. 2/99/M. So trade unions may be formed
and anyone can join one. Section 45 of Decree-Law No. 24/89/M prohibits the dismissal of workers on the grounds of their membership
of a trade union or their trade union activities. Section 347 of the Penal Code is ostensibly a deterrent against public authorities interfering in workers’ freedom of association.
However, new guidelines developed by the Commission Against Corruption (CCAC), require that civil servants must obtain approval
from their managers before joining associations or becoming leading figures in labour associations, in violation of the Macau SAR Basic
Law. Secretary for Administration and Justice, Florinda Chan, accepted criticism from pro-democracy legislators and said that supplementary guidelines would be published to clarify the concerning stipulations. No further information is available.
No guarantee of collective bargaining: Section 6 of Decree-Law No.24/89/M provides that agreements concluded between
employers and workers shall be valid. However, it does not explicitly state that such agreements should be concluded or that they should
involve collective bargaining.
Public servants excluded: Certain clauses such as sections 3(2) and 3(3) of Decree-Law No. 24/89/M specifically exclude public
servants and migrant workers from the protection of the labour law.
Trade union law vetoed: In July, the General Association of Trades Union, a pro-Beijing union, introduced a trade union bill to the
legislature which was later rejected. The independent Macau Union of Workers’ and other civil society groups saw the proposals as an
electioneering gesture proposed primarily to gain public approval, but with no chance of introduction as they were proposed in the run
up to the September election. Groups reported that the proposed bill did not intend to empower trade unions, but was designed to act as
a legal reference for trade unions to conduct their activities.
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Many unions tend to resemble local traditional neighbourhood associations, promoting social and cultural activities rather than issues
relating to the workplace.
Employers’ power: It is common practice in Macao for workers not to have formal employment contracts with their employers. The
power of employers to change unilaterally the wages and working conditions of employees or to terminate their employment (which is
equivalent to dismissal) is therefore unchecked. In the context of this excessive employer power and with no legal-institutional framework
for collective bargaining or even employment contracts, workers are easily victimised and discriminated against for their union activities.
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The use of temporary contracts has reportedly been increasing, thereby reducing the number of workers covered by pensions, sick leave,
paid holidays and other benefits, as well as effectively reducing wage bills.
No protection for strikers: While the right to strike is supposed to be protected by law, there is no legal protection against retribution by employers for involvement in strike action. Striking workers may therefore be dismissed during or after industrial action, regardless of the negotiated outcome. Strike leaders and union activists also report that they are blacklisted by the local business sector.
China’s influence: It is widely believed that the central government of the People’s Republic of China has a strong influence over
local trade union activities, including the direct selection of the leadership of the largest private sector union, the Federation of Trade
Unions. Nearly all of the six private sector unions belong to this pro-Beijing federation. This has undermined the independence of trade
unions, since support for central government policies, such as the minimization of workplace disruption, overrides the protection of the
rights and interests of trade union members. There have been reports of intimidation of those who do speak out against the Beijing government both politically and in terms of labour rights. Civil society is extremely weak in Macao and the growing influence of the central
government, combined with increasing prosperity for many residents, will help further reduce independent worker movements.
Migrant workers: Migrant workers make up nearly a fifth of the workforce. They are denied the most basic forms of protection.
Although migrant workers usually have employment contracts, they have no right to collective bargaining and no effective legal recourse
in the case of unfair dismissal. While they are entitled to compensation as a result of dismissal before the termination of their contracts,
it is common practice for migrant workers to be issued with short-term contracts under which the non-renewal of the contract amounts
to dismissal. The use of illegal (and hence unprotected) labour is also a problem for Macao authorities who regularly launch crackdowns
on the use of illegally imported workers, from southeast Asia and mainland China. They mainly work in construction and as domestic
helpers. It is claimed that the high percentage of foreign labor is eroding the bargaining power of local residents to improve working conditions and increase wages. With the increasing number of construction projects (Casinos and hotels primarily) there has been a relaxation of regulations allowing the importation of labour from the mainland. Many unions and other groups have been trying to ensure that
the use of imported labour does not unduly affect wage rates for local workers and that migrants are covered by union bodies.
VIOLATIONS IN 2005
Background: The economy has steadily grown, thanks to investment from foreign casino groups. However, the money has tended to go
back to the home countries of the groups concerned, so that growth has not benefited the local population. In September 2005, the second Legislative Assembly Election since Macau’s return to Chinese sovereignty was held. There were extensive reports of irregularities in
voting cards, and vote-buying was widely reported. Three pro-democracy legislators were directly elected in comparison to the previous
one, while at least five legislators from the gaming industry were also directly elected. Chief Executive Edmund Ho informed legislators
that universal suffrage is “impossible” in 2009, because of the experience in Hong Kong where demands for one person one vote in 2007
led to a reinterpretation of the Hong Kong Basic law by the central government.
Hospital tries to establish system of prior approval for unions: According to a Portuguese-language newspaper in October
2005, supervisors at the S. Januário Hospital and related health centres were requested by their directors to find out if their workers
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were planning to become involved in labour associations. Any worker who wanted to join a new association was requested to submit an
application to their superior, and could only choose one association to join. The paper reported that the directors had been asked by the
Minister for Social Affairs and Culture to implement these restrictions, but that many supervisors were not following these instructions.
Malaysia
POPULATION: 25,300,000 / CAPITAL: KUALA LUMPUR / ILO CORE CONVENTIONS RATIFIED: 29 - 98 - 100 - 138 - 182 (105 – DENOUNCED)
§
The 30-year ban on the formation of an independent industrial union in the electronics
industry remained in force, as did the other extensive legislative restrictions on union
rights. No measures were taken to speed up union recognition, despite previous promises
by the government. Employers continued to fire union leaders with impunity, forcing workers to seek justice through legal appeals that take years to resolve.
The law recognises the right of most workers to form and join trade unions, although the procedure for obtaining union recognition is
lengthy and cumbersome. Furthermore, the 1959 Trade Unions Act and the 1967 Industrial Relations Act (IRA), as well as subsequent
amendments, place extensive restrictions on freedom of association. A decision by the ILO Committee on Freedom of Association (CFA)
in 2004 found many provisions of the Trade Unions Act violate the principles of freedom of association, and decried the fact that,
despite unambiguous recommendations made to the Government (in this and other similar cases filed in the past 15 years), to amend the
law, no such action has been taken.
Other laws not directly related to labour issues also place restrictions. For example, the Malaysian Penal Code requires police permission for public gatherings of more than five people.
Many restrictions on union formation, wide discretion in de-registering unions: The Director General of Trade Unions
(DGTU) has the power to supervise and inspect trade unions, can refuse to register a trade union without giving any reason for the
refusal, and can withdraw registration. Unions which do not register are considered illegal organisations. The DGTU is given very broad
discretion in deciding these matters. For example, a union’s registration can be withdrawn if the DGTU ‘is of the opinion’ that the union
is “likely to be used for unlawful purposes”, or “for purposes contrary to… its objects and rules.” Registration can also be withdrawn if
the DGTU is “of the opinion” that the union has not complied with any section of the Trade Union Act or its regulations. The DGTU
may also deregister a union if he finds that two or more registered trade unions exist in a “particular establishment, trade, occupation
or industry”, or order the smaller of the two unions to remove members in that industry from its registry of members. The operative
clause for the DGTU to decide this is “if he is satisfied it is in the interest” of the workers to do so.
The DGTU also has the authority to suspend a branch of a trade union if he “is satisfied” that the branch has contravened any part of
the Act or the rules of the union.
The Minister of Human Resources may also suspend a trade union for up to six months in the interests of national security or public
order. Trade unions whose registration has been denied or withdrawn are considered to be illegal associations.
The DGTU can specify the category in which a union would be permitted to organise. He must also give his approval before a trade
union is permitted to join an international organisation. Section 9 of the Trade Unions Act, that limits trade union membership to workers in similar trades, has allowed the DGTU to promote in-house, enterprise-level unions. This has served to keep the labour movement
small and fragmented.
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Restrictions on union officers: Membership of a trade union executive committee is reserved for citizens of Malaysia, who must
have worked for at least one year in the establishment, trade, occupation or industry with which the trade union is connected. They cannot hold a position in a political party, nor can they work as an employee of a political party.
Banned from organising: The law prohibits industrial unions from organising employees in managerial and executive positions, or
those entrusted with “confidential” matters or performing security-related tasks. This definition is extensively abused by most employers
to deny union membership rights and often to demand the removal of experienced union leaders. The government does not allow national
unions in the electronics industry, the country’s largest sector, only in-house ones.
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General unions are prohibited and mergers between unions in different professional sectors are practically impossible.
Requirement of union to receive recognition from employer: Section 9 of the Industrial Relations Act of 1967 provides that
a trade union must apply for recognition from the employer, who then has the discretion to recognise the union, deny recognition, or
appeal to the Director General for a ruling on whether the members of the union are, in fact, really members.
The public sector: Trade unions in the public sector are permitted to organise unions per ministry, department, profession or activity,
as well as to join federations. Employees in statutory bodies (such as ports and the Employees’ Provident Fund) are only authorised to
join internal trade unions, which, in turn, may join the Civil Service Federation and the national trade union centre. Employees working
for the defence sector, police force or prisons do not have the right to form or join trade unions.
Restrictions on the right to strike: The right to strike is not specifically recognised, and legislative restrictions make it practically
impossible for workers to hold a legal strike. Trade unions are not allowed to go on strike for disputes relating to trade union registration
or illegal sackings. General strikes and sympathy strikes are not permitted either.
Penalties for executive committee members of a union that engage in an illegal strike include fines and imprisonment for up to one year.
Rank and file workers who engage in an illegal strike are considered by the Government to be automatically stripped of their union membership, and cannot join another trade union in the future without the written approval of the DGTU.
Pre-strike authorisation procedures are cumbersome. Two thirds of the members of a trade union must vote in favour of a strike in a
secret ballot and the ballot must include a resolution that states “the nature of the acts to be carried out or to be avoided during the
strike”. The results of the ballot are passed to the DGTU for verification. Once all procedures have been complied with, a seven-day cooling off period is imposed. During the cooling off period, the Ministry of Human Resources’ Industrial Relations Department can attempt
conciliation and, if this fails, refer the dispute to the Industrial Court. While the dispute is before the Industrial Court, strikes and lockouts are prohibited.
Trade unions in “essential services” face additional restrictions on their right to strike, including the requirement to give at least 21
days’ strike notice. Essential services are very broadly defined, but include health care, education and transportation.
It is almost impossible to strike in the public sector.
Restrictions on political activities by trade unions: Trade unions are not permitted to use their assets for political purposes,
which are defined as an indirect or direct payment to a political party or “in furtherance of any political object.” This is widely defined
to include not only support for candidates, but also holding of political meetings, and distribution of political literature or documents of
any kind.
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Prior approval needed for international affiliation: Section 76a of the Trade Union Act requires that trade unions seek prior
permission from the DGTU before affiliating with any “consultative body…established outside of Malaysia” and that consideration of
that application will be subject to whatever conditions the DGTU sees fit to impose.
Restrictions on collective bargaining…
… In the private sector: The Industrial Relations Act excludes hiring and firing, transfer and promotion, dismissal and reinstatement from the scope of collective bargaining. This provision allows employers to get rid of union activists with impunity, and thus serves
to intimidate other workers into leaving the union. The IRA also limits collective bargaining in “pioneer” companies. The electronics
industry, among others, still has this status. Since 1994, the government has claimed that measures were being taken to repeal this provision, but nothing has been done so far.
… In the public sector: In the public sector, the joint council system limits public sector unions to a consultative role where their
only power is to “express their point of view” on principles regarding wages and working conditions. Trade unions do not have the right
to take their disputes to the industrial court without the specific permission of the King of Malaysia.
The threat of the Internal Security Act (ISA): Under the Act, any person suspected of threatening national security may be
detained by the police for up to 60 days without trial, a period during which the person is held incommunicado, with no access to
lawyers or to family members. After this initial 60 day detention period, a two year detention order may be issued with the Home
Minister’s approval. The detention order is renewable indefinitely. Trade union leaders have been repeatedly threatened with this draconian law.
Government interference: Only about 8.5 per cent of the total workforce is unionised. Unions try to maintain independence from
both the government and political parties, but government control is pervasive, even extending to the internal affairs of a union.
Ban on general confederations: Owing to the ban on forming general confederations of trade unions, the Malaysian Trades Union
Congress (MTUC), which covers both private and public sectors and has 500,000 members, is not recognised as a trade union confederation in law. Instead, the MTUC is registered under the Societies Act, and therefore does not have the right to conclude collective bargaining agreements, nor to undertake industrial action, but provides technical support to affiliated members.
Union recognition extremely slow: Obtaining a response from an employer to a request for union recognition should take a maximum of 21 days. However, in reality this takes much longer if a dispute occurs, as it gets taken to the Director General of Industrial
Relations (DGIR), the DGTU, then to the Minister of Human Resources, who has the final say, unless that is challenged in the High
Court. The High Court is fairly limited, in practice, in its ability to overturn a previous decision. It is not uncommon for recognition
claims to take between 18 and 36 months to settle, particularly if a dispute develops.
About eight years ago, the government drafted legislative changes to speed this process up, such as allowing for automatic recognition
of a union if it represents 50 per cent plus one of all employees in an enterprise. However, it has so far failed to take any action to bring
that legislation into force.
Furthermore, the government fails to implement the powers it already has to speed up union recognition. If an employer fails to grant
recognition to a union within 14 days of notification by the DGIR, the Minister of Human Resources has the power to make a final decision, but does not do so. At the end of 2005, the MTUC had recorded at least 24 cases in which the Minister had failed to issue a
recognition order, in some cases 12 months after the expiry of the 14 days’ notice.
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Arbitrary refusal of union recognition: In a complaint to the ILO lodged in September 2003, the MTUC listed cases over the previous 36 months in which the DGTU had arbitrarily denied organisational and collective bargaining rights to more than 8,000 workers in
the manufacturing companies. In these companies, unions had accepted members but, based on objections raised by the companies, the
DGTU ruled that the unions were not permitted to represent the workers. As a result, the unions’ right to bargain collectively was denied.
In many cases, it had ruled that a union was not competent to represent workers in the company, even though they were producing identical products to workers in other companies already represented by the same union. The ILO Committee on Freedom of Association
(CFA) found the Government’s policies constituted “previous authorisation” in registration of trade unions which is “not compatible with
freedom of association principles.”
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By the end of 2005, the MTUC had listed more cases in which the DGTU had refused union recognition.
Employers impose extra restrictions: Employers tend to take advantage of the legal limitations on who can organise to prevent as
many people as possible from joining a union. Employers often interpret the managerial and executive category to include supervisors,
assistant supervisors, section leaders and lower level supervisory personnel. There has also been a tendency to consider all workers in
information technology as being in the “confidential” category, which effectively prevents them from joining the same trade union as the
rest of employees. In this manner, employers are able to maintain a series of small-sized, and therefore weaker, trade unions.
Inefficient labour courts: So far, the government has failed to apply any sanctions against employers who have opposed its directives granting trade union recognition or who have refused to comply with industrial court orders to reinstate illegally dismissed workers.
In some cases, companies have changed their name or ceased to exist during the court case.
The MTUC has criticised the delays in processing claims filed with the industrial courts. Even if a worker has been fired for carrying out
trade union activities and is later reinstated following a court decision, it can take three or four years, during which time the worker has
no income.
Although the Minister of Labour responded positively to the MTUC’s proposal to increase the number of Industrial Courts at the end of
2005, there was still a long delay in handing down awards. In some cases, the MTUC reports that no award handed was down as long as
12 months after completion of the case.
Migrant workers barred from trade union membership: Notices on work permits state that workers who are not Malaysian
nationals are not allowed to join associations. This particularly affects women domestic workers, 90 per cent of whom are Indonesian.
Most work long hours, for very low pay, if any, and are often subject to verbal and physical abuse. The MTUC continually called for
migrant workers to be given full rights to associate and form labour unions, and continued to advocate for that right.
Police intimidation: Intimidation and obstruction by police at legally conducted, peaceful pickets have become common. The MTUC
has been called in on several occasions to seek the intervention of the Inspector General of Police.
Increasing anti-union activity: There has been increasing union-busting activity in recent years. Notably, the MTUC claimed that
former officers of the Department of Trade Unions and the Department of Industrial Relations had been involved in obtaining information, from serving officers, on unions involved in recognition claims and collective bargaining. They then approached the employers with
an offer to remove the union, and advice on how to prolong the settlement process.
At the end of 2005 as many as ten cases involving employers’ challenge against Ministerial order to recognise trade unions were pending
at the High Courts and Courts of Appeal. The MTUC noted that anti-union employers, including multinational companies, are choosing
this path in order to evade union recognition for five to seven years.
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VIOLATIONS IN 2005
Background: The year began with the continuation of a four-month amnesty for illegal migrants, during which time hundreds of thousands of migrants left the country. The amnesty ended in March and those who stayed risk jail, a fine or whipping. The Malaysian
Trades Union Congress (MTUC) elected a new leadership in February.
AmBank fosters a yellow union to keep organisers out: The National Union of Bank Employees (NUBE) ran a continuous
campaign in 2005 in protest at the formation of a yellow union, KEPPA, at the AmBank Bhd., and registered by the DGTU on 13
December 2004. NUBE’s evidence included the fact that management hand-picked the seven KEPPA officers, organised and paid for
KEPPA meetings at its various branches, and the General Manager of the AmBank Branch Network required at those meetings that
clerical and non-clerical staff sign KEPPA membership forms. NUBE wrote to the DGTU, and subsequently met him on 3 February to
protest his decision to register the union, which NUBE claims is a violation of the Trade Union Act. Yet the DGTU did nothing. In May,
AmBank signed a collective agreement with the KEPPA, the union it had created.
In September, the NUBE filed a case in the High Court of Kuala Lumpur, seeking a court order to direct the DGTU to de-register the
yellow union. The hearing for the case was set for January 2006.
Box Pak fires union leader: Box Pak Co., located near Kuala Lumpur, began a prolonged campaign of anti-union discrimination
after the workers organised and joined the Paper and Paper Products Manufacturing Employees’ Union in 2004. The local union secretary, V. Rani, was suspended and then fired while seeking to negotiate a collective bargaining agreement. Management intimidation ultimately failed, and a CBA was reached with the union, but at year end the union leader was still seeking reinstatement with back pay.
Police ban picket at Sharp-Roxy Co.: A union picket at Sharp-Roxy at Sungai Petani in Kedah, was threatened with violent
action by police in mid-January, who declared that the protest in front of the factory was in violation of the penal code requirement that
police authorisation be sought for gatherings of more than five persons. Workers abandoned the picket, and the MTUC filed a complaint
with Suhakam, the national human rights commission of Malaysia, and appealed to the inspector general of police in Kuala Lumpur.
Entire union leadership dismissed at light fittings factory: On 21 March, United U-Li took over ownership of Chee Keong
Sdn, a manufacturer of light fittings, and immediately issued dismissal orders for all the union leaders from the Electrical Industry
Workers Union (EIWU). The union immediately condemned this unfair discrimination, and filed an appeal with the Director General of
Industrial Relations. The case was still pending at year’s end, but past practice has seen Government authorities uphold companies’ contention that new ownership (or even a changed name of the company) means that the union must entirely reorganise and seek recognition from the new employer, as was done in the past in the Ericsson-Flextronic case.
Anti-union discrimination, firings at Sinora Sdn: The long struggle of the Sabah Timber Employees Union (STIEU) continued
during the year when 23 union leaders were fired for their roles in organising a legal picket at the Sinora factory between August and
December 2004. Sinora is a state-owned company, with holdings by the Sabah state government. The picket ended when management
agreed to bargain on outstanding issues related to forced overtime. But, anti-union retaliation followed instead. Sinora has a long history of anti-union activities, but both state and national governments have done little to hold them accountable. After the union was first
organised in 2001, management identified and fired 525 union supporters, and replaced them with foreign migrant workers. The union
has challenged the latest union terminations in the court, and the case was continuing at year end.
Firing union leader at Kamaya Electric: Kamaya Electric, a Japanese firm operating in Ipoh, fired Helen Mary April in retaliation for her efforts to organise a union at the factory. Before her involvement with the union, she had been promoted three times in
four years, and sent for training in Japan. Yet, when she was fired, management claimed it was for poor performance. Prior to her
firing, management threatened they would get the authorities to arrest her under provisions of the Internal Security Act. Other union
members were intimidated, and told to not try to organise a union but rather select a joint consultative council to discuss matters
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with management. The union was finally recognised on 30 March. At year’s end, Helen Mary’s appeal against her unjust termination
was still pending at the Department of Industrial Relations.
Maldives
POPULATION: 338,000 / CAPITAL: MALE / ILO CORE CONVENTIONS RATIFIED: —NOT A MEMBER STATE
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§
A violent crackdown on calls for democratic reforms during the year suggests political
change will be slow, despite the election of a constitutional assembly and the registration of
political parties. There was no progress on the recognition of trade unions’ rights, which are
not protected in law or exercised in practice.
No recognition of union rights: There are no trade unions in the Maldives. The law does not specifically ban trade unions but it
does not recognise the right to form or join a trade union or to strike. There is no legal protection from anti-union discrimination.
The Constitution of the Maldives provides in Article 27 that persons “shall be free to form societies and associations”, but restricts that
right in cases where such societies are deemed by authorities as endangering “protection of sovereignty” or “maintenance of public
order”. Article 26 of the Constitution further provides that persons are permitted to “assemble peaceably”, but then restricts that right
by noting such assemblies must “not contravene the law”.
The right to bargain collectively is not recognised either. Wages in the private sector are set by a contract between employers and
employees, and are usually based on the rates for similar work in the public sector.
The Labour Dispute Settlement Unit of the Ministry of Human Resources, Employment and Labour resolves wage and labour disputes,
visits worksites and enforces labour regulations.
Despite discussions of constitutional and political reform, there was no indication of any commitment by the government to draft a
labour law that would comply with international labour standards on trade union rights.
Associations, but no unions yet: Workers have not sought to form trade unions as such, but do form associations. In May 2004,
the government enacted a new law to strengthen the legal regime governing voluntary, not-for-profit associations. Small groups of similarly employed workers with mutual interests have formed associations, some of which include employers as well as employees. These
associations have not acted as trade unions.
The government has, in the past, exerted pressure to discourage seamen from joining international seamen’s unions.
There were no reports of efforts to form unions or take strike action during the year.
Poor rights record: The Maldives has a poor record in terms of democratic and trade union rights. In 1995 the US government suspended the country’s eligibility for tariff preferences under the US Generalized System of Preferences because the government failed to
take steps to afford internationally-recognised worker rights to workers. There has been no improvement since then.
While the government did finally allow the registration of political parties with the promulgation of the Political Party Regulations in
mid-2005, resulting in the registration of at least five parties, authorities continue in practice to harass opposition political leaders and
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their groups, through surveillance, arrests, and in some cases, violence. Unprecedented mass protests in August 2005, calling for democratic reform, led to the arrest of over 180 people, including Constitutional Assembly members and MPs.
The judiciary is not independent, since the President retains the absolute right to appoint and dismiss judges at will, and retains the right
to review and overturn High Court decisions.
Nepal
POPULATION: 26,300,000/ CAPITAL: KATHMANDU / ILO CORE CONVENTIONS RATIFIED: 29 - 98 - 100 - 111 - 138 - 182
§
All trade union rights were suspended in the state of emergency declared by King
Gyanendra following his coup d’état on 1 February. Many trade union leaders were arrested
and held in preventive detention, while others were driven into hiding. Trade union offices
and the homes of their leaders were raided by the security forces. Even after the state of
emergency was lifted in April, fundamental human and trade union rights were not
restored, and trade union leaders continued to be arrested.
Trade union rights suspended by state of emergency: Citing an ill-defined section of the Constitution which empowers the
King to “issue necessary orders to remove…any difficulty” that “arises in connection with the implementation of the Constitution”,
King Gyanendra issued a decree on 1 February 1, proclaiming a state of emergency and assuming full executive authority. He immediately suspended all civil liberties provided for in the Constitution, including “the freedom to form unions and associations” in Article
12(2) (c) and “freedom to assemble peaceably…” in Article 12(2) (b). Also suspended was the Constitutional guarantee “against preventive detention” in Article 15. This opened the way for the government to engage in arbitrary detentions of trade unionists and other
perceived opponents.
The government used the Essential Services Act to bar any trade union activity or industrial action. The order also banned any meeting
of five or more persons.
The King lifted the state of emergency on 29 April but, within hours of his action, state radio in Kathmandu announced that “the holding of protests, strikes, mass meetings... in sensitive areas” of the city was banned so that “law and order” would be upheld.
Associational rights severely restricted: Under orders issued by the palace on 7 February, no workshops, meetings, conferences
or interaction programmes could be held outside a union office unless without prior approval from the Regional Administrator or Chief
District Officer or designated officer, and “without undermining the Kingdom’s sovereignty and integrity, without disturbing the law and
order of the country and without causing any adverse effect on the current State of Emergency”. Without this approval, such meetings
are considered illegal and participants subject to arrest.
In November, the government promulgated a “Code of Conduct for Social Organisations” that prohibited any action the government
deemed to undermine “social harmony”. The code also directly attacked the associational rights of NGOs, including those which are
allies of workers in Nepal, by banning all “politically active” persons from working for NGOs, and prohibiting existing NGO staff from
having any sort of political affiliation.
Widespread use of the Public Security Act for preventive detention: The Public Security Act authorises preventive detention for a period of up to six months for anyone the authorities deem a threat to domestic security and peace, amicable relations
between with other countries, or relations between Nepali citizens of different classes or religions. No charge needs be filed against the
accused, and the detention period can be extended by simply filing notice with the Ministry of Home Affairs.
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Trade unionists and other opponents of the Government were frequently jailed during the year under the authority of the PSA. The
National Human Rights Commission of Nepal estimates that 3,284 persons were arrested between 1 February and 29 April while the
state of emergency was in force, many under the terms of the PSA.
Labour rights in law: The right to form and join trade unions is recognised in both the Constitution and labour legislation. There are
two main laws relating to trade unions: the 1992 Labour Law, which lays down the legal framework and regulations for any enterprise
employing ten or more people; and the associated 1993 Trade Union Act, which defines the procedures for establishing a trade union, as
well as a union’s role and responsibilities. The Trade Union Act prohibits anti-union discrimination and protects union officials from lawsuits which may arise as a result of performing union duties. However, the government has not yet implemented all the provisions of
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these laws.
Since 1996, Nepal has had a Labour Court to deal with industrial disputes.
Forming trade unions: At enterprise level, the formation of a union requires 25 per cent of the workforce and a minimum of ten people. A maximum of four unions are allowed per enterprise. The collective bargaining agent should be determined via elections within the
enterprise.
Trade union federations can be formed through the association of 50 enterprise-level unions, or of 5,000 individuals working in enterprises of the same nature. This is a barrier high enough to be considered restrictive by international labour standards. A confederation
requires ten federations to join together, of which six must be from the organised sector.
Rights recognised in the informal economy: An amendment to the Labour Act in 1999 brought the informal economy and agricultural sector under the scope of the law, although the thresholds are high. In the informal economy, 500 people in similar work are
required in order to create a federation, whilst in agriculture a minimum of 5,000 workers are needed, covering at least 20 districts and
with at least 100 people from each district.
Government revokes public servants’ right to belong to unions: In a surprise move without consultation with workers or
their representatives, on 14 July the government issued a Civil Service Ordinance which tramples on the rights of public servants to form
and belong to unions of their own choosing. The amendment made to the Civil Service Act of 1992 forbids the formation of any association or union of civil servants except for those specified by the government. The ordinance also undercuts the ability of civil servants to
collectively bargain, by unilaterally determining conditions of employment in the civil service. Specifically, the ordinance increases workers’ vulnerability to intimidation through a plan to start hiring based on contracts (rather than permanent status) and to create a permanent reserve pool of civil servants. The Nepal Government Employees’ Organisation (NGEO) announced strong opposition to these
changes and filed a legal challenge with the Supreme Court.
Police roughed up marchers and snatched away theirs signs and materials during a march of civil servants, led by NGEO, in Kathmandu
on 22 July. An alliance of 38 unions and civil society organisations supported NGEO in its demands.
Strike restrictions: Although strikes are permitted, there are a series of restrictions. A strike must be authorised by a vote of 60 per
cent of the union’s membership - an excessively high level according to international standards. The government may stop a strike or suspend a trade union’s activities if it disturbs the peace or is deemed to adversely affect the economic interests of the nation.
Strike bans – Essential Services Act: Over the last few years, the government has also had recourse to the 1957 Essential
Services Maintenance Act, which allows it to ban strikes for up to six months. This has been used in many sectors, including banking,
telecommunications, electricity, water supply, road, air and sea transport, the print industry, the government, press, and hotels and
restaurants. This far exceeds the ILO definition of essential services.
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Collective bargaining: The Labour Act provides for collective bargaining, but the structures to implement the necessary provisions
are not in place.
Almost 90 per cent of the workforce is engaged in the informal sector, where few workers are unionised.
Women workers: Discrimination against women and girls, notably in education, has meant that 76 per cent of the female population
is still illiterate. Few are aware of their trade union rights, and many are confined to low-skilled, low-paid jobs. Every year, thousands
more women find themselves in domestic service, where there are no trade unions.
Strikes restricted: Both the authorities and employers have sought court injunctions to prevent workers from going on strike.
Collective bargaining weak: Owing to a combination of worker inexperience and employer reluctance, there is, in practice, little
collective bargaining. The large number of unions aggravates workers’ weak bargaining power. Collective bargaining agreements cover
some ten per cent of the workforce in the organised sector.
Climate of fear deepens: During the first eight months of the year, the Communist Party Nepal (Maoist) - or CPN (M) - continued
its guerrilla war against government officials and other targets that it considered supportive of the ruling order. Since 1996, when the
civil war broke out, over 10,000 lives have been lost in fighting. The use of intimidation tactics continues in CPN (M)-controlled
regions. Those who have been killed during the civil war by both the CPN (M) and the Nepalese army include over 250 leaders and
members of the NTUC - mostly teachers. CPN (M) called a unilateral ceasefire in September, but resumed fighting as the year ended.
VIOLATIONS IN 2005
Background: A royal coup d’état took place on 1 February. King Gyanendra dismissed the Parliament, declared a broad and draconian
state of emergency, temporarily cut lines of communication and transport, and arrested all the major political party leaders. Constitutional
rights were suspended, strict media censorship was imposed and labour and civil society leaders were pursued by the army and incarcerated.
International labour leaders, meeting at the time of the announcement in Kathmandu for the ICFTU-APRO’s 18th regional conference,
immediately condemned the action. Throughout the year, they continued to provide critical solidarity support for Nepal’s labour leaders.
Amnesty International reported that over 3,000 people were arrested in the crackdown. The lifting of the state of emergency order in
late April changed little, as fundamental human and trade union rights remained suspended. In September, the CPN (M) declared a unilateral ceasefire. Late in the year, opposition political parties and the CPN (M) reached an agreement to form a political alliance
against the monarchy.
Nepal Press Union leader killed: Shambhu Prasad Patel, vice President of the Rautahat Branch of the Nepal Press Union (NPU),
was shot and killed by two unidentified gunmen on 23 January at his home; by year’s end, nobody had been held accountable.
Trade union leaders in hiding, union offices repeatedly raided, shuttered: Following the 1 February declaration of a state
of emergency, labour leaders, including NTUC President and International Labour Organisation (ILO) Governing Body member Laxman
Basnet, went into hiding. The King’s announcement was made as the ICFTU-APRO was holding its 18th Regional Meeting in
Kathmandu. Nepal army troops searched the NTUC and Basnet’s home that day, and were posted outside the hotel where the conference
was being held. During the month of February, Basnet’s house was raided twice more by army forces seeking to arrest him.
Similarly, many union leaders from local trade unions and national trade union congresses GEFONT and DECONT were also targeted
and arrested in the four weeks immediately following the King’s announcement.
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Repeated raids by the army were staged against the NTUC office in February, and photos and documents of senior NTUC leaders were
seized.
The trade union centre GEFONT, which is politically aligned with the legal, opposition Communist Party of Nepal (United MarxistLeninist) was locked out of its offices on 18 February.
The offices of the Federation of Nepalese Journalists, both in Kathmandu and in regional centres, received regular visits and harassment
by the police. Army representatives raided the FNJ office on 4 February, seeking to arrest FNJ President Tara Nath Dahal after he
issued statements condemning the King’s seizure of absolute power.
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Trade unionists jailed under the state of emergency: Immediately following the King’s proclamation, security officials sprang
into action, allegedly acting on the basis of a 1,400 person “black-list” of leaders and activists to be arrested or closely monitored.
Union offices and leaders’ homes were raided in efforts to catch and incarcerate any labour leader deemed to be a threat or to cause
unrest. Those arrested were detained under preventive detention orders allowing detention for 90 days. All those arrested during the state
of emergency phase were released by June.
Nepal Trade Union Congress: Pushkar Acharya, the senior vice President and Central Committee Member of the NTUC, was
arrested on 2 February in the city of Biratnagaar. Bhakta B. Karki, a NTUC vice President and head of the Western Region (Dhangadi),
was detained by authorities. Manju Bhattaraj, another NTUC Central Committee member, was detained in Kathmandu. She was given
inadequate food and clothing, and denied access to health care. Kishore Gautam, a former NTUC district president in Kathmandu, was
also arrested by the authorities. Also detained in the crackdown was Murari Sharma, the President of the NTUC’s Kaski district and a
leader in its transport union affiliate. He was finally released on 10 May.
Nepal National Teachers Association (NNTA) and Teachers Union of Nepal (TUN): Ramakanta Sapkota, a well known
teacher and trade unionist who was the former General Secretary of the NNTA and a former executive board member of the Asia-Pacific
Regional Committee of Education International, was arrested on 1 February. He was released on 2 March.
Keshav Bhattarai (President, TUN), Mohan Gyanwali (President NNTA), Prem Singh (vice President NNTA), Bauram Thapa (vice
President, NNTA), and a number of activist members of both unions were arrested. All were released in mid-February.
Federation of Nepalese Journalists (FNJ): On 4 February, soldiers arrested Bishnu Nisturi, the Secretary General of the FNJ. He
was charged with violating a government directive by issuing a statement on that day strongly condemning the King’s seizure of power.
Meanwhile, on the same day, the FNJ President, Tara Nath Dahal, was luckily able to avoid squads of soldiers sent to his home and went
into hiding. In a statement smuggled out to the International Federation of Journalists, he reported his wife and family were being continuously harassed by the military.
On 13 February, police arrested and briefly detained Dev Kumar Yadav, a Maoist-leaning newspaper reporter and council member of the
Federation of Nepalese Journalists, Siraha (FNJS), as well as Nagendra Kumar Paswan, a reporter and vice Chairman of the FNJS.
Construction Workers’ Union: The authorities quickly arrested a number of leaders of the Construction Workers’ Union, including
Chandra Bhattarai, the union’s senior vice President, Shamsher Bd. Thapa (vice-President), and Gita Pathak, a Central Committee member.
General Federation of Nepalese Trade Unions (GEFONT): Dharmananda Pant, the Chairman of the Mahakali Zonal committee
of GEFONT, was arrested on 25 March at his home. During that day, he was re-elected to a three-year term at the GEFONT zonal meeting. He also led a peaceful march in the city calling for peace, democracy and trade union rights. He was subsequently sentenced to three
months in prison.
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On 8 April, the government arrested three senior GEFONT leaders – Lalit Basnet (National vice Chair, and zonal Chief for Hetaunda);
Madhusudan Khatiwada (National Executive Committee member); and Kamalesh Jha (National Executive Committee member and
zonal Chief for Bara).
Permission for rally on International Women’s Day revoked: Marches and rallies to mark International Women’s Day on 8
March, which were being organised by the NTUC and had already received permission from the Ministry of Labour and District
Administration office in Kathmandu, were cancelled when, at the last minute, security personnel revoked permission for the events.
Unionists detained after the lifting of the state of emergency: On 8 June 2005, police detained for nearly 18 hours Shiva
Gaule (vice President of the Federation of Nepal Journalists, FNJ); Bishnu Nisthuri (president of the FNJ); Mahendra Bista (General
Secretary of the FNJ); and Balarn Baniya (secretary of the FNJ). The detentions came after they participated in a rally to stop curbs on
press freedom imposed by King Gyanendra. The participants in the protest carried banners protesting against the continuing bans on FM
radio stations broadcasting news items. Police officers claimed to be following government orders to prevent the rally passing through
restricted areas. They were released on 9 June.
Murari Kumar Sharma, president of the Nepal Press Union (NPU), and four colleagues, were arrested on 29 June while staging a
peaceful protest in Kathmandu. Police arrested five journalists - Sharma, NPU vice President Bindu Kanta Ghimire, NPU Central
Committee members Kiran Pokhrel and Shital Koirala, and district unit President Shiva Devkota – as they tried to enter a government
building to hand over a memorandum to the Minister of Information and Communications.
Arrests and police violence during September protests: Between 4 and 14 September, trade unions supported mass mobilisations by political parties and opponents of the government, who attempted to lead a pro-democracy march into a prohibited area of
Kathmandu. According to local human rights groups and international observers of the protests, police used excessive force, including
attacking peaceful marches, beating protesters, and using tear gas. A total of 248 people were injured, and police arrested 1,563 people
during this period. Most of those arrested were released within 24 to 48 hours after the protests. The violence was denounced forcefully
by international trade unionists, who joined the ‘Wider National Workers Conference’ held from 10 to 12 September in Kathmandu.
Police violence against protesters on Human Rights Day: On 10 December, police used batons, beatings, and water cannons
to disperse a march of trade unionists and other civil society organisations heading towards Ratna Park in Kathmandu to commemorate
international human rights day and to call for an end to restrictions on freedom of association, assembly and expression in Nepal.
Five star lock-out at the famed Yak & Yeti Hotel: The Indian-owned, five star Yak & Yeti Hotel is a landmark at the historical
Durbar Marg in Kathmandu. Over the past ten years, the hotel has been the largest foreign exchange earner in the hotel sector, yet management was not willing to share that with the workers who made it possible. The hotel was also a landmark in labour disputes in the
country in 2005. Management continually refused to implement the terms of a mediated collective agreement signed on 20 April with
the Nepal Tourism and Hotel Labour Union, in the presence of MOL mediators. The union went on strike in early July to press its
demand that management abide by its contractual agreement. Management termed the strike illegal. After tripartite discussions were
held, facilitated by the MOL, management again made a commitment to implement the agreement, and workers were allowed to return
to work. The promise was not fulfilled and on 2 December a tribunal under the MOL ruled that Yak & Yeti management must abide by
the agreement. Union members started, on 23 December, to wear black bands on their arms to silently protest management’s non-compliance with the tribunal’s order. On 24 December, the day before Christmas, management unilaterally closed the hotel, throwing tourists
(the hotel was 40 per cent full) and the 288 staff out on to the street. Incredibly, management put out a statement that it “had no
option but to empty out the hotel after union’s non-cooperation brought the hotel to a halt”. This was at a time when all workers had
reported to work and were doing their jobs. The lock-out continued as the year ended.
Suspending union leaders as a negotiating tactic – Nepal Bank Ltd (NBL): NBL management strongly resisted demands
by the two unions representing NBL staff to change proposed regulations that would bar managerial staff from participating in trade
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union activities. The union was also protesting at new regulations that threaten the job security of its members. On 28 August, when
management ceased to negotiate on these points, a strike was called. Management said the strike was illegal, since it was against the
Essential Services Act. The next day, NBL suspended seven top leaders of the unions, including the President, General Secretary and
Secretary of the Nepal Bank Employees’ Association (NBEA) and the President, General Secretary, and a central committee member of
the Nepal Financial Institutions Employees’ Association (NFIEA). The leaders were also ordered to provide reasons why they should not
be terminated 15 days hence. Another three union activists were suspended from service on 30 August. Marathon negotiations finally
resulted in an agreement on 3 September to suspend introduction of new anti-union regulations, and permit the ten union leaders to
return to work.
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Pakistan
POPULATION: 161,100,000 / CAPITAL: ISLAMABAD / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 182
§
For yet another year, the government failed to fulfill its promise to the workers, international trade unionists, and the ILO to amend its labour laws to bring them into compliance with
international standards. Many sectors remained excluded from the labour laws governing
the right to form unions and collective bargaining in industry. Obstacles to the right to
strike in the private sector remained in place, as did the strike ban in most parts of the public sector. The struggle for union rights continued at Liaquat hospital and the Pearl
Continental hotel.
Restrictions on freedom of association: Article 17 of the Constitution of Pakistan states: “Every citizen shall have the right to
form associations or unions, subject to any reasonable restriction imposed by law”. However, restrictions under law are expansive, unreasonable, and clearly in violation of ILO Convention 87 ratified by the government. The 2002 Industrial Relations Ordinance (IRO)
remained in force, as the government once again failed to fulfil promises to the unions, the ILO, and the international community to
amend the law to bring it in line with international standards.
Many sectors excluded: The IRO 2002 only covers industrial workers, and only those producing goods or services for sale. Thus
many sectors are excluded and workers in them may not form unions or bargain collectively. The list of excluded industries and enterprises includes the railways, ports, security printing facilities, oil and gas industries, post and telecommunications, the Pakistan Television
and Pakistan Broadcasting companies, civil aviation, fire fighting, agricultural workers, teachers and education institution workers, hospitals, clinics, and nursing homes, non-profit organisation workers, and security/watch services at energy or transport facilities.
Supervisory and managerial personnel are also all excluded.
The IRO also contains a special provision that allows the government to restrict associational rights of any category of workers by
declaring them to be “servants of the state.”
There is a legislative barrier to registration owing to the wide powers given to the Registrar of Trade Unions who can refuse or cancel a
union’s registration.
Lack of protection: The IRO allows labour courts to grant financial compensation (12 to 30 months’ wages) to wrongfully dismissed
workers in lieu of reinstatement. This enables employers to simply sack “troublesome” workers, such as trade union representatives.
The IRO also restricts the possibility of seeking interim relief from the National Industrial Relations Commission (NIRC) or the Labour
Court against unfair labour practices. Furthermore, the penalties imposed on trade union representatives found guilty of unfair labour
practices are comparatively heavier than those imposed on employers.
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Reform of labour laws – workers still waiting: The government set out in its “Labour Policy 2002” a goal of consolidating the
over 60 laws covering aspects of labour into six core laws. Yet so far, only one law, the IRO 2002, has been promulgated. Further to a
complaint brought before the ILO Committee on Freedom of Association against the Pakistani government in 2002, the ILO recommended many changes to that law in April 2003. The Ministry of Labour has submitted proposed amendments of the IRO 2002 to the
Cabinet, but no decision was taken before the end of the year.
Strike limitations: There are many legal obstacles to the right to strike. For example, it takes a least one month before a strike can
be legally declared. The period for bilateral dialogue between management and the union is 15 days. Where settlement is not reached,
the conciliation procedure also lasts 15 days. Cooling off periods also must be observed before a legal strike can be held.
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Leaders of legal strikes are protected in law from retribution.
Employers engaged in serious anti-labour practices are liable to fines, but not imprisonment.
The government has the right to ban any strike that may cause “serious hardship to the community” or prejudice the national interest.
The government may also put an end to any strike that has lasted for more than 30 days. The 1999 Anti-Terrorist Ordinance codifies the
crime of a “terrorist act”. This includes “acts of civil commotion” which carry a penalty of imprisonment for terms ranging from seven
years to life, as well as fines. Illegal strikes and go-slows are considered “civil commotion”. Picketing is also prohibited.
Collective bargaining: Industrial workers may elect representatives to act as collective bargaining agents and legal unions generally
have the right to bargain collectively. Every collective bargaining agent is required to affiliate with a federation at the national level that
is registered with the National Industrial Relations Commission.
Limited rights in public sector: The Civil Servants Act, 1973, sets the terms and conditions of employment for this category of
public sector workers. These employees may not engage in collective bargaining. Their organisations do not have the right to be fully
independent and merely exist as associations, not trade unions. The Act does not allow civil servants to form and join trade unions, to
draw up their constitutions and rules, or to organise their administration, activities and programmes without previous authorisation.
The 1952 Essential Services Maintenance Act (ESMA) covers state administration, government services, and state enterprises such as
oil and gas production, electricity generation and transmission, the state-owned airline and ports. Workers in most of these sectors may
form unions, but cannot go on strike. The ESMA provides for up to one year’s imprisonment for anyone who contravenes the ban.
Hospital staff, some civil servants and workers in many defence-related establishments may not form unions. These definitions are
broad, effectively denying many workers their rights. Forestry workers, for example, are considered civil servants, while many railway
lines are classified as “defence installations”, and consequently their workers as defence personnel.
The ESMA also restricts collective bargaining. In sectors covered by ESMA, wage levels are decided by special tripartite wage boards.
Decisions of these boards, which usually were not acceptable to unions, can only be appealed to the NIRC.
In November 2001, the government amended the Civil Servants Act to prevent public sector workers from appealing to the National
Industrial Relations Committee and labour courts against dismissal, and to prohibit any court intervention in such matters. This applies
to almost two million workers.
No freedom of association for airline, or electricity workers: In 2001, Chief Executive Order 6.2001 was passed to suspend
trade unions, associations, organisations, or any other groups of employees in the Pakistan International Airlines Corporation, as well as
agreements between the Corporation and its employees or groups of employees. Trade union rights are also suspended by law at the
Karachi Electric Supply Corporation (KESC). These suspensions of rights continued in 2005.
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Restrictions in banking sector: Amendments to the Banking Companies Ordinance in 1997 state that a worker cannot become a
union member or official in a banking institution unless he or she is employed by the bank in question, thereby restricting the right of
union members to choose who will represent them. They also stipulate that no officer or member of a trade union in a banking institution
shall use any bank facilities including a car or telephone to promote trade union activities. Similarly, trade union activities are restricted
in office hours. Any person violating such provisions shall be liable to a fine or imprisonment of up to three years, or both. Restrictions
have also been imposed on the collective bargaining rights of banking staff.
Export processing zones (EPZs): There are a total of 22 EPZs established under the authority of the Export Processing Zones
Authority of Pakistan (EPZA).
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The ESMA prohibits workers in EPZs - who could otherwise have come under the IRO - from forming or joining unions, bargaining collectively or striking. They have no protection against employer interference or anti-union discrimination. The Export Processing Zones
Act of 1980 also provides for notifications to exempt the zones from coverage under the major labour laws.
The government reported in 2002 that it had authorised the EPZA to frame draft legislation, and that draft labour laws were being
finalised by the authority. However, no further details have been forthcoming. However, the EPZA advertises on its website that one of
the incentives for investors is “production-oriented labour laws to be solely regulated by the Authority”.
Code of Criminal Procedure: Section 144 of the Code of Criminal Procedure makes any gathering of more than four people subject
to police authorisation. Hence it can easily be used against any trade union gathering.
According to government estimates, about ten per cent of the industrial workforce is unionised and three per cent of the total workforce,
but unions contest those figures as too low. No non-nationals are members or leaders of a union, despite the fact that the law does not
specifically prohibit their participation.
Employers circumvent legislation: Employers artificially promote workers to managerial status, usually without the concomitant
salary increase, so that they no longer qualify for union membership. Employers often strongly resist the unionisation of their employees,
with management resorting to intimidation, dismissal and blacklisting. Moreover, if an employer is opposed to the formation of a union,
the procedures for union registration and the appeals process can take many years.
However, there was some hope for workers when in June 2005, the NIRC found that government employees working temporarily in
supervisory capacity were workmen and entitled to trade union activities. The NIRC set aside a government notification of 8 April 2004,
through which the Secretary of the House Building Finance Corporation Workers’ Union and 718 others were restrained from carrying
out trade union activities after being promoted to assistant managers. The council submitted that only those who were given regular promotion could not be treated as workmen. As for those promoted to assistant managers, the council stated, the nature of their job had not
changed. They were therefore deemed to be workmen.
Strikes: The rare strikes that do occur are, given the complications attached to organising a strike, usually illegal and short. They are
often broken up by police and used by employers to justify dismissals.
Anti-union discrimination in banks: The United Bank Employees’ Federation reported that, further to the amendments to the
Banking Companies’ Ordinance, union members have been ruthlessly victimised by the management of banks, particularly in United
Bank Limited (UBL). Over 500 trade union leaders have been dismissed, including the President of the UBL Employees’ Federation of
Pakistan and the General Secretary of the UBL Labour Union Karachi. The Federation believes the dismissals are being used by the
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UBL management as a pretext to undermine the very existence of the United Bank Employees’ Federation. The government has not
acted on the ILO’s request that it amend the Act.
Women: Rubina Jameel, President of the Working Women’s Organisation (WWO) reported that women trade union activists face
accusations of “bringing dishonour” on their families if they try to organise women workers. Ms Jameel herself has been criticised by
religious groups for “corrupting women” and being “against Islam” because of her work.
New regulations promised on labour protection and inspection: During the year, the Ministry of Labour drafted a new policy
on labour protection and inspections, and conducted several public consultations at the provincial level. According to the Pakistan office
of the “Solidarity Centre” (the American Institute of International Labour Solidarity, set up by the US national centre the AFL-CIO),
feedback from tripartite stakeholders was mixed. Many say the policy is very ambitious, and will be difficult to implement in practice.
Slow courts and employer impunity: The delays in the judicial system, and the ease with which local employers can flaunt government orders for reinstatement, were apparent in the successful case of Khalid Pervez, the President of the Coca-Cola Workers’ Union
in Rahimyar Khan, Punjab Province. He returned to work four years after he was unfairly dismissed for union activities in October
2001. Only the determination of his union, and a major pressure campaign mounted by the IUF (that took the matter to Coca-Cola
headquarters in Atlanta), finally persuaded local factory management to implement the decision of the Punjab High Court, three months
late, and reinstate him with back pay.
VIOLATIONS IN 2005
Background: During May Day rallies, there were renewed demands from the trade unions to scrap the IRO. But these calls were
ignored by the government. A major strike at the state-owned telecommunications company was called to oppose privatisation.
In September, the three major labor congresses (APFOL, APFTU, and PNFTU) merged to create the Pakistan Worker’s Federation
(PWF), representing 880,000 workers, or more than three-quarters of the country’s organised workforce. A massive earthquake struck
Pakistan on 8 October, leaving 40,000 dead and hundreds of thousands without homes. The ILO estimated that as many as 1.1 million
Pakistanis lost their jobs as a result of the earthquake.
Pakistan International Airlines (PIA) – suspended unions, agreements: PIA continued a systematic policy of anti-union
discrimination and harassment during the year, in collaboration with the government. Pakistan Chief Executive Order no. 6/2001, which
suspended the status of all the unions in PIA and abrogated the agreements between PIA management and unions, continued in force in
2005. This was despite an ILO CFA finding that the order clearly violates the right of freedom of association. The General Secretary
and Publicity Secretary of the Air League of PIAC Employees (representing cabin crew) were dismissed for union activities.
Management refused to engage in consultations or negotiations with the Pakistan Airline Pilots’ Association, and has effectively suspended all cooperation with the pilots. Following support by the ITF for its union affiliates at PIA in December, PIA management suspended an additional six unionists at the end of 2005 for criticising the company’s anti-union actions. Appeals by the unions to rescind
the order, and enter in negotiations have been completely ignored by the government and PIA management.
Arrests and dismissals after strike at Pakistan Telecommunications Company, Ltd. (PTCL): Government plans to privatise PTCL sparked one of the largest nationwide strikes in Pakistan’s history, led by the nine unions making up the PTCL Action
Committee, and joined by over 65,000 workers. The immediate result was that the full repressive weight of the Pakistani government
and security forces was brought to bear against the leaders and unions involved. During the strike, the government arrested over 600
workers in Islamabad, Lahore, and Karachi, in efforts to pre-empt the unions’ efforts. The government sent security forces in to control
the key facilities of PTCL during the strike and intimidate strikers. The Army Signals Corps played a key role,. At least 28 union
activists trying to enforce the strike among workers were sacked, including nine members of the leadership of the Action Committee.
Three top level leaders of the Action Committee - Haji Khan Bhatti, Sirajul Hassan and Qazi Abdurehman - were arrested.
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However, the Action Committee maintained its solidarity, and ultimately reached an agreement with the government that settled the
major issues of the strike.
Liaquat National Hospital – union registration still denied: The Liaquat National Hospital Workers’ Union (LNHWU) continued to be denied registration. The LNHWU applications for registration as a trade union in 2001 and 2003 were both turned down by
the Director of Labour in Karachi, on the grounds that the Liaquat National Hospital was a charitable institution and that its personnel
were therefore not entitled to trade union representation under the IRO. In fact, the hospital had long ceased (in 1990) to be a charitable
institution and was run on a commercial basis. 75 union members were forced to resign their jobs, in many cases after being physically
beaten, and made to sign blank papers that later became their letters of resignation. They are still out of work. None of the union’s offi2 5 2
cers have been able to find jobs at other hospitals. The union filed appeals in the court against the illegal dismissals and the failure to
register the union, but these cases have met with continual delays.
Pearl Continental Hotel – continued struggle for union rights: The struggle for trade union rights at the Pearl Continental
Hotel in Karachi entered its fifth year. The Pearl Continental Hotel Employees’ Trade Union held meetings and rallies to mark the day on
which over 300 workers were terminated in 2001. Union demands for negotiations over the layoffs were ignored, and fired workers
informed by an advertisement in the newspaper. The union campaign to defend the rights of hotel employees rapidly escalated into an allout management attack on the existence of the union and the safety of its members and leaders, including arrests and dismissals (see
previous issues of the Survey). The ILO Committee on Freedom of Association concluded “the acts of management…constituted antiunion discrimination”.
At year end, union appeals through the labour directorate and the courts regarding the dismissals, management abolition of the union
check-off, and attempts to deregister the union, remain tied up in various legal processes. Neither the labour directorate nor the state
Labour Ministry have taken the required steps to investigate and rectify the illegal firings. Management succeeded in obtaining the registration of a yellow union, thanks to the complicity of the authorities. The workers’ union has challenged the registration of the yellow
union in court. Meanwhile, management still refuses to recognise the workers’ union as representative.
Capital Industries Pvt., Ltd. – shutting the door on the union: Capital Industries, a factory producing bicycles based in the
Gulberg Industrial Area in Lahore, was the site of a successful union organising campaign in which the workers won a referendum for
the union in April. However, when the Capital Industry Workers’ Union put forward collective bargaining demands in the first week of
June, the factory refused to bargain and began a campaign of anti-union harassment. Finally, in July, the factory fired 24 union activists,
including the six leaders of the union. Led by the All Pakistan Trade Union Federation (APTUF), the union appealed to government
authorities, including the Minister, yet management refused to reinstate the workers or bargain with the union. Protests in front of the
factory by the union were met by a court order banning protests within 200 feet of the facility. The union counter-sued, asking the court
to prevent any lay-offs of workers while the dispute was ongoing.
Anti-union dismissals at motorway construction project (Islamabad-Peshawar): APFOL reported that efforts to organise
the Awami Labour Union in the motorway construction project met with determined anti-union discrimination by employers. Soon after
the union was organised, all 25 leaders and activists in the organising committee were terminated.
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Philippines
POPULATION: 82,800,000 / CAPITAL: MANILA / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
§
Violence against labour leaders and activists occurred with impunity, with several prominent labour leaders assassinated by unknown assailants during the year. The government
did little to investigate violence against trade unionists in a thorough and impartial fashion,
and police implicated in the shooting deaths of Luisita Hacienda workers were not charged.
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The law recognises the right of Filipino workers to form and join trade unions. Public servants, with the exception of the military and
police, are also allowed to trade union rights.
Obstacles to trade union activity: A union must represent at least 20 per cent of the workers of a given collective bargaining entity in order to register. The law also requires unions to provide various documents for registration. This is deemed by unions as unnecessary and tedious. Furthermore, say the unions, the process forces unions to risk exposing leaders to employer retaliation at a critical
stage in a union’s formation. In 2003, unions succeeded in removing these restrictions, but in 2004 they were restored by the government in the implementing rules and regulations of the Labour Code. Unions have repeatedly appealed to the authorities for the immediate withdrawal or cancellation of these provisions.
Before a federation or national centre can be created, at least ten collective bargaining agreements must have been registered by its
member unions. Trade union leaders must be employed in the same enterprise as the workers they represent. Foreign nationals may not
establish or join a trade union unless there is a reciprocal agreement between their respective countries and the government of the
Philippines.
Cumbersome delays in registration of new unions and collective bargaining agreements to be eliminated: In
September 2005, the Department of Labour and Employment (DOLE) amended the existing implementing rules of the Philippine
Labour Code. It shortened the period to one day for government action on a range of requirements: registering a collective bargaining
agreement; processing an application for union registration; or handling an application from an existing union for change of the name of
the union, affiliation, or merger and consolidation.
Right to strike: The right to strike is recognised under Philippine law. In order to obtain permission to strike, a trade union is
required to give advance notice, respect mandatory cooling off periods, and obtain the agreement of a majority (50 per cent plus one
vote) of its members. All avenues of conciliation must have been exhausted. If the Minister of Labour and Employment considers that
the industry concerned by the strike is “indispensable to the national interest”, he or she can impose compulsory arbitration and compel
the workers to return to their jobs. The Labour Secretary also has the power to deputise the police and the military to enforce a returnto-work order under the Assumption of Jurisdiction Order. Unions have continuously insisted that the power to assume jurisdiction must
be limited to “essential services” as defined by ILO, and that the Labour Department should issue a Department Order that clearly
defines the industries that are essential and indispensable to the national interest.
Potentially heavy penalties for striking: The law prescribes heavy penalties for participation in an illegal strike. Trade union
leaders are liable to prison terms of up to three years. Anyone who organises or directs any “meeting for the purpose of spreading propaganda against the government” is liable to life imprisonment or the death penalty. The term “meeting” covers picketing during a
strike.
Abandoning labour inspection in favour of voluntary compliance: An order, promulgated in 2004 (the Labour Standards
Enforcement Framework), essentially abandons the principle of government labour inspection for workplaces with more than
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200 workers. Instead of a formal labour inspection, the order requires self-regulation of labour standards among large companies (to be
undertaken at least once a year by an employer-worker committee of uncertain provenance, according to a government-issued checklist),
and in companies where there is a union that has registered a CBA. Following the inspection, the completed checklist must be mailed
back to DOLE for evaluation by officials in the regional DOLE office. Spot-checks of factories can be authorised, but are not required.
For workplaces with 10-199 workers, normal inspections will continue. The order provides that advisory services be made available for
workplaces with less than ten workers and those registered as village-level micro-business enterprises, or BMBEs. Unions have insisted
that sampling-based inspection of large companies must be undertaken to mitigate violations of core labour standards, since large companies are as guilty of violations as smaller ones.
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Public sector workers: Despite the presence of a number of public sector unions, organising is still restricted in the public sector and
strikes are banned. Public sector workers also have limited bargaining rights. The government’s Rationalisation Programme, purportedly
designed to streamline redundant offices and posts and realign personnel, poses a further challenge to public sector workers.
Although some regard the Philippines as the most democratic country in Asia, it still has a poor human rights record. The execution of human
rights defenders, journalists, native leaders and even children has been reported. The country’s trade union rights record is equally poor.
Restrictions by employers: Employers can and do appeal against unions’ right to registration. This seriously hampers organising
efforts as the appeal process can be very lengthy.
In 2005, it was common practice for employers to file administrative and criminal charges against union leaders and activists. This
involved, for example, filing charges of theft of company assets and products; forgery of union registration documents; fraudulent union
documents; and libel cases for making labour claims against the company. Among the tactics seen frequently during the year to frustrate
the formation of unions were: physical isolation of union officers and activists; physical prevention of union certification elections, despite
lawful orders and the presence of officials from the Department of Labour and Employment (DOLE); and instant court-issued temporary
restraining orders (TROs) alleging damage to the enterprise if workers are allowed to voice their choice. Employers, taking advantage of
the Labour Code provision that worker-owners of cooperatives are prohibited from forming or joining unions, heavily promoted labourmanagement councils and bogus workers’ cooperatives as alternatives to unions. Employers also resorted to using internal company email and communication systems, flyers and t-shirts to urge workers not to support the union.
Intervention by the higher courts (Supreme Court and Court of Appeals) on labour cases (e.g. issuance of temporary restraining orders
(TROs) against certification election; election of officers and other labour cases), were additional obstacles used to block workers in the
exercise of freedom of association and resolution of disputes.
Undermining the right to strike: Both employers and the government take advantage of the restrictions in the law in order to
obstruct the right to strike. The requirement to give advance notice to the Ministry of Labour gives employers ample opportunity to
divide workers among themselves and, in most cases, to organise reprisals against them. If the workers still go ahead with the strike call,
the employers can request that the National Commission on Labour Relations issue an injunction against the strike. Instead of playing an
impartial role, the government tends to interfere in labour disputes to the benefit of the employers.
The Labour Secretary has assumed jurisdiction on a number of cases clearly outside the “industry indispensable to national interest” criterion. This does not comply with the ILO definition which restricts intervention to “essential and indispensable to national interest.”
Export processing zones (EPZs): As of 2005, there were 109 EPZs, and some 1,094 export firms operating in them. The zones
are known for low wages, punishing working hours, breakneck production rates and strong repression. Overtime is the norm, and the factory gates are often locked to prevent workers leaving before their tasks are finished or their quotas filled.
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Trade union activity is strongly discouraged in the EPZs. The officials who govern the zones try to block organising by maintaining a
“union free, strike free” policy. They claim to have the right to carry out their own labour inspections. There have been many cases
where workers who form or join a union, or take union action, have been dismissed. Employers have refused to recognise unions, refused
to negotiate, or have set up their own “sweetheart” unions. The DOLE has proved unable or unwilling to enforce labour legislation in
the EPZs.
There were a number of cases in 2004-2005 where companies closed as soon as unions were organised, or when unions formally proposed collective bargaining demands to the company. The closures were clearly an attempt to thwart union organisation and collective
bargaining, because in many cases, the same company would then reopen under a new name, but with the same owner/s.
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Despite the restrictions, the Trade Union Congress of the Philippines (TUCP) has intensified efforts in organising workers in EPZs and
reported significant successes in organising new unions in various zones.
Unemployment and sub-contracting: The unemployment rate, estimated at 7.4 per cent in 2005 (based on a new definition of
unemployment), and the widespread use of contract labour are both obstacles to union organising. Although the government has promised to create ten million more jobs, so far most new jobs have been low paid, contractual, part-time or temporary work. Under-employment is a serious problem. At 19.9 per cent, it is almost three times the unemployment rate. This gives a clear indication of the low
wages being paid, and the low quality of jobs that are being created.
The government’s goals and policies on employment matters, as defined under the country’s medium term development plan (MTDP),
recognise flexible work arrangements (sub-contracting, flexi-work, flexi-wages) as a central strategy, resulting in significant outsourcing
of production by businesses. This has a negative impact on unions’ ability to effectively bargain good contracts.
VIOLATIONS IN 2005
Background: Political instability and security fears plagued the country and accelerated in July. President Gloria Macapagal-Arroyo
faced a slew of major protests against her government because of strong allegations that she was personally involved in rigging the
2004 elections that returned her to power. Congressional investigations took place, but an effort to impeach her failed in September.
President Macagapal-Arroyo blamed a mix of political opponents, communists, and military coup-plotters for her troubles, and a crackdown against those challenging the status quo at the grassroots was the immediate result.
Four union leaders murdered: On 22 September 2005, Diosdado Fortuna, President of the Union of Filipino Employees’ in the
Drug, Food and Allied Industries (UFE-DFA-KMU) was shot dead by two unidentified gunmen (who then sped away on a motorcycle)
while on his way home from a picket line. He had been leading striking workers of Nestle Philippines, a Swiss-owned food and beverage
manufacturing firm. After his murder, the Kilusang Mayo Union (KMU) labour federation stated that they believed the killing of
Fortuna was politically motivated. The KMU alleged that, since the strike started at the Cabuyao Nestle factory in January 2002,
Fortuna had been under surveillance and had been repeatedly harassed both by thugs, reportedly hired by local Nestle managers, and by
the military. At the time of his killing, Fortuna was also chairman of the KMU’s Solidarity of Workers in Southern Luzon, as well as the
chairman of the Southern Tagalog chapter of Anak-Pawis, (Toiling Masses, KMU’s legally registered party-list organisation). Diosdado
was also the Southern Tagalog chairperson of the Bagaong Alyansang Makabayan (Bayan or New Patriotic Alliance).
On 30 September, Victoria Ramonte, President of the Andres Soriano College Employees’ Union and a regional vice President of the
KMU Caraga section, based in Mindanao, was stabbed to death while leaving the college and going to a local housing project, by a man
who shared a ride in her rickshaw.
On 25 October 2005, Ricardo Ramos, President of the Sugar Workers’ Union CATLU (Central Azucarera de Tarlac Labor Union),
was shot dead by two unidentified gunmen at his residence in Tarlac, central Luzon. The CATLU had been celebrating a negotiated
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settlement with the sugar mill management from the Hacienda Luisita Inc, in which the workers received payment of unpaid back wages.
The union blamed the killing on the management of Hacienda Luisita, which is headed by the Aquino-Cojaungco clan. The union alleged
that locally-based soldiers pulled the trigger. Police investigated and filed murder charges against the two soldiers in mid-November.
A local union president of a transport group closely associated with the KMU and Bayan Muna was shot dead on 26 October.
Reports of significant increase in anti-union violence: The Centre for Trade Union and Human Rights (CTUHR), a religious
labour NGO, reportedly discovered through its field investigations that 31 of what it termed “union leaders, union and party list organisers and supporters” were killed during 2005. CTUHR identified the National Federation of Sugar Workers (NFSW) and the PISTON
transport group as suffering the greatest loss of leaders and organisers. CTUHR also reported a significant increase in anti-trade union
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violence – 226 cases in 2005, an increase of 86 per cent from 2004. It included killings and attempted killings, assaults on and away
from the picket line, threats and intimidation, and the filing of criminal charges against unionists and advocates.
The KMU and allied political organisations (Bayan Muna and Anak-Pawis) held a series of protest actions to denounce the killings of its
union leaders and activists. Meanwhile, President Arroyo has ordered an investigation into the killings of union leaders Fortuna and
Ramos and other leftist leaders in central Luzon and other parts of the country.
Despite both national and international calls from labour and human rights groups, leading organisations such as Amnesty International
have criticised the fact that, in most cases, the government has still not conducted “prompt, thorough, impartial, and effective investigations”.
Hacienda Luisita – no arrests for deaths of workers, union leaders dismissed: An investigation into the killing of seven
protestors at the Hacienda Luisita Plantation and Sugar Mill in November 2004, conducted by the National Bureau of Investigation,
recommended charges against Philippines National Police (PNP) officers. Two police commanders were dismissed shortly after the incident but, by the end of 2005, not a single arrest had been made. The killings occurred when the police and army intervened with tear gas
and water cannons to break up a protest strike by workers. The victims died from gunshot wounds. PNP’s own investigation, released in
December, was a whitewash. It found no police officers guilty, stated that police had used ‘maximum tolerance’, and blamed unidentified
communist provocateurs for the violence.
In January 2005, the DOLE ordered management to pay its workers their unpaid salaries, and grant wage adjustments covering the
fourth and fifth years of their collective bargaining agreement. The company, Central Azucarera de Tarlac (CAT), was also ordered to
immediately pay each employee covered by the ruling a one-off lump sum of P12,500 (US$240). The Labour Secretary ruled that the
strike staged by the CATLU was illegal. As a result, all union officers, apart from one (who had returned to work on 14 November), who
participated in the strike lost their employment status. CATLU members who participated in the strike and were still on the picket line
were ordered to return to work, and the company was directed to immediately accept them without retaliatory action. The DOLE ruled
the strike illegal because, except for filing notice of the action, the CATLU failed to comply with the other mandatory requirements. It
failed to hold a strike vote and failed to give notice to the DOLE of the results at least seven days before the intended strike.
Also, according to the DOLE decision, although they did not heed the return-to-work order issued earlier, union members who participated in the strike were excluded from those who were deemed to have lost their employment status because “it appears that the members
… were misled into believing that their right to strike was unlimited and their refusal to return to work was not illegal, or at least had
no adverse consequences.” The DOLE decision on the CATLU labour dispute was affirmed by the Court of Appeals in August 2005. The
case involving the United Luisita Workers’ Union (ULWU) remained in the process of settlement at year’s end. The NLRC continues to
hear the case. In October, the President of the CATLU was assassinated (see earlier entry).
Little change in 2005 - Toyota still refuses to recognise union: The Toyota Motor Philippines Corporation (TMPC) continued
to ignore a Supreme Court order to recognise and enter into bargaining with the TMPC Workers’ Association (TMPCWA). It also
continued to refuse to reinstate the 227 workers dismissed in 2001 for taking part in peaceful protests over the company’s refusal to
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recognise the union. The government failed to implement a recommendation by the ILO to amend its legislation to allow for “a fair,
independent and speedy certification process”, and to “make every effort to ensure that the TMPCWA and Toyota Motor Philippines
Corporation negotiate in good faith in order to reach a collective agreement.
While the TMPCWA’s campaign for recognition continues, a new union supported by management – the TMPCLO (Toyota Motor
Philippines Labour Organisation) - was organised, and immediately filed a petition for certification election. The DOLE granted a
Certification Election Order on 30 June 2005, and in December the DOLE Secretary issued an order to conduct a certification election
on 16 February 2006. The certification election is being held because Toyota’s intransigence has meant that the TMPCWA has not been
able to conclude an agreement for five years, allowing another union to challenge for the right to be the certified bargaining agent.
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The ILO, in its statement issued in November 2005, reaffirmed its earlier recommendations.
Systematic anti-union discrimination and firings at Easy Group: The Taiwanese conglomerate Easy Group engaged in a systematic anti-union campaign in its three clothing manufacturing factories – Easy Fashion, Kasumi Apparel, and Allen Garments – located in the Bataan economic zone. A comprehensive investigation by the Worker Rights’ Consortium (WRC) uncovered a series of illegal
practices, whereby workers were systematically threatened with dismissal if they joined the Easy Fashion Workers Union (EFWU-ALUTUCP). This put union supporters on forced, unpaid leave, and resulted in en masse firings of union members. Ultimately, when management realised that it could not stop the union at Easy Fashion, it shut the factory down and terminated all workers. It then re-opened
under the same management as Allen Garments 2, a non-union factory.
Engagement by the WRC and clients ordering university garments from the factories resulted in demands that Easy Fashion recognise
the union, reinstate 105 workers who were forced to resign or fired, and agree to abide by the labour law. Easy Group management
agreed to these core recommendations in multi-stakeholder talks held in June 2005. It then reneged on these pledges when asked for a
timeline for implementation of the agreement.
Union busting at plastic moulding factory: On 22 March at Moriroku Philippines, Inc. (MPI), a Japanese supplier of plastic
moulds to Honda and Toyota Motors Philippines, the local union was due to hold a certification election. Instead, however, it received a
temporary restraining order notice from the Court of Appeals. The DOLE election officers were ordered to temporarily cease all election
activities and the union was directed to file a comment on the issue. The union insisted that the election should proceed, and the order of
the mediator/arbiter which, by law, has jurisdiction over the case, should be upheld. It was overruled. The union filed a motion for reconsideration before the Court of Appeals.
However, the employer took advantage of the time to bust the union. The union treasurer was terminated from the company, and another
union executive committee member, who was six months pregnant, was also fired. Complaints were immediately filed with the National
Labour Relations Commission (NLRC) and, in one of the subsequent hearings, a company personnel manager submitted an affidavit
stating that he was hired by the company to bust the union, and that the termination of the two union officers was illegal and was done
because of their involvement with the union. The case remains pending at the NLRC.
Framing and firing the union president at Tie One Subic Electric: A few days before a union certification election was
scheduled, management at Tie One Subic Electric brought a case of criminal forgery to discredit and fire the union president. This was
the culmination of an anti-union campaign involving harassment, punitive transfers, and the isolation of union leaders and activists. The
TUCP noted that, when the fraud case was brought, management compelled 13 union members to withdraw from the union, and alleged
that fraud had been committed. This led the DOLE to cancel the certification election two days before it was to occur. As the year
ended, management was trying to have the registration of the union cancelled, and the union was having difficulty finding new leaders to
continue the fight.
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Death threats and libel case to discourage union formation: At Intel Philippines - an American-owned manufacturer of
microprocessors and integrated circuits for Pentium, which operates a factory in the economic zone in Cavite - a union president received
death threats through SMS messages sent to his mobile phone. The union president also believed his movements were being monitored –
indications of this included the regular appearance of an unknown car near his residence. In November, he filed a formal report raising
his concerns with the local police.
At the factory, he was continually harassed. An administrative case was filed against him for allegedly using the company computer for
union activities. The union president and three other union officers were subsequently charged with libel for allegedly producing and disseminating false information about the company, its policies and practices. The union officers adamantly denied the charges against
2 5 8
them, contending that they had no access to the information contained in the document. A formal complaint has been filed against Intel
for union interference, and was under consideration by the DOLE as the year ended.
Singapore
POPULATION: 4,400,000 / CAPITAL: SINGAPORE / ILO CORE CONVENTIONS RATIFIED: 29 - 98 - 100 - 138 - 182 (105 – DENOUNCED)
§
Several restrictions in the labour law are outdated and not applied in practice; unions have
asked for the law to be revised in order to reflect that. Under a legislative amendment introduced in 2004, union members no longer have the power to accept or reject collective
agreements negotiated between their representatives and the employer. They do, however,
retain the power to vote their union leadership out of office.
Private sector – limitations on the right to organise: The Constitution gives workers the right to join trade unions in the private
sector, although the Trade Unions Act makes an exception for uniformed personnel. Any group of seven or more prospective members
can form a union, which is acceptable by international labour standards. However, parliament may impose restrictions on the formation
of a union on the grounds of security, public order or morality. Formation is also subject to the approval of the Registrar of Trade Unions
who has wide-ranging powers to refuse or cancel registration, particularly where a union already exists for workers in a particular occupation or industry.
Public sector: The Trade Unions Act still prohibits government employees from joining trade unions, although the law gives the power
to the President of Singapore to make exceptions from this provision. The Amalgamated Union of Public Employees (AUPE) was granted such an exemption, and its scope of representation has expanded over the years to cover all public sector employees except the most
senior civil servants. In addition to AUPE, 15 other public sector unions, including public employees paid on a daily rate, are exempted.
Interference in internal trade union affairs: The Trade Unions Act restricts the right of trade unions to elect their officers, and
whom they may employ. Foreigners and those with criminal convictions may not hold union office or become employees of unions.
However, exemptions can be granted by the Minister.
The Act also limits what unions can spend their funds on, and prohibits payments to political parties or the use of funds for political
purposes.
Collective bargaining rights restricted: Under an amendment to the Trade Unions Act adopted on April 20, 2004, union members no longer have the power to accept or reject collective agreements negotiated between their union representatives and the employer.
The change in the law was in direct response to a dispute involving the pilots’ union, Airline Pilots Association – Singapore (ALPA-S),
described in the previous issue of this Survey (2005). The NTUC, however, notes that union members retain the power to vote out their
leaders by secret ballot during elections at the union delegates’ conference, or at an extraordinary meeting called by members.
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The amendment also does not preclude union leaders from consulting their members to secure a mandate on terms of the collective
agreement that are acceptable to them, at any time before the executive committee reaches agreement with the management. Union
members are also not precluded from demanding that their unions reflect their views before making any proposal or concluding a collective agreement. Both happen in practice.
Restrictions on the right to strike: To call a strike, 50 per cent plus one of all the trade union’s members must vote in favour,
rather than the internationally accepted standard of over 50 per cent of those actually taking part in the vote. Workers in “essential
services” are required to give 14 days notice to an employer before taking strike action, although strikes are prohibited in some essential services such as water, gas and electricity.
2 5 9
There is no specific legislation which prohibits retaliation against strikers.
Collective bargaining – court can reject agreements: Collective agreements between labour and management are renewed
every two to three years, although wage increases are generally negotiated annually. Guidelines for negotiations are recommended by the
National Wages Council, which includes labour, industry and state representatives. The aim of the council is also to provide a means by
which labour can influence government policy on wage-related issues.
Collective agreements must be certified by the tripartite Industrial Arbitration Court (IAC) before they come into effect. The IAC can
refuse certification on the grounds of public interest, although in practice it has never refused to certify a collective agreement for this
reason. Certification protects union members, in that a certified agreement is legally binding to both the employers and the union.
Transfers and lay-offs are excluded from the scope of collective bargaining, although unions have the right to ask for the reasons behind
the retrenchment and are not precluded from negotiating compensation for workers in such cases.
Disputes can be settled by means of consultations, negotiations and conciliation through the Ministry of Manpower, where the procedures are clearly laid down by the Industrial Relations Act. If conciliation fails, the parties may submit their case to the IAC. In limited
situations, the law provides for a system of recourse to compulsory arbitration, which can put an end to collective bargaining at the
request of only one of the parties, although this provision of the law is rarely invoked.
The last time it was invoked was in 2004, when the Minister of Manpower compulsorily referred a dispute between the Singapore
Industrial and Service Employees Union (SISEU) and a textile company to the IAC over the management’s delay in concluding a collective agreement.
Increased representation for executives: Trade unions succeeded in getting the Industrial Relations Act amended in July 2002,
to allow rank-and-file unions to represent executive employees in disputes concerning dismissal, retrenchment benefits and breach of
individual contract. This amendment does not affect the right of executives to form their own unions.
With the exception of five unions representing about 2,400 workers, the rest of the country’s 63 unions are affiliated with the National
Trades Union Congress (NTUC), an umbrella organisation closely linked to the ruling People’s Action Party (PAP). During the 2001
elections, a number of NTUC labour candidates ran for Parliament on the PAP ticket, and all were successfully elected. The NTUC’s
current Secretary General also serves as the Chairman of the PAP. Both the current NTUC Secretary General and Deputy Secretary
General hold seats in the Cabinet as Ministers in the Prime Minister’s Office. The NTUC-PAP relationship, which dates back to elections
for Singapore’s first democratically elected legislature in 1955, is described as “symbiotic” and was formally endorsed in 1980 at the
NTUC Ordinary Delegates Conference. It was publicly reaffirmed in December 2004.
Union leaders are elected through secret ballot.
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Restrictions not applied: Practice suggests that many of the laws are outdated, as in practice, many of the potential restrictions are
not applied.
The unions have called for these outdated restrictions to be removed from the country’s legislation.
Strikes: The government’s tight rein on industrial action, and the tradition of non-confrontational industrial relations, has meant that
there have been only two recorded days of strike action since 1978.
Migrant Workers
Foreign domestic workers have little opportunity to organise to defend themselves, or demand improvements in their conditions of work.
However, the NTUC reports that it does seek to advocate for their rights through its Migrant Workers’ Forum.
2 6 0
Sri Lanka
POPULATION: 19,400,000 / CAPITAL: COLOMBO / ILO CORE CONVENTIONS RATIFIED: 29 - 87 - 98 - 100 - 105 - 111 - 138 - 182
Progress was made in organising unions in Sri Lanka’s three export processing zones
(EPZs), but employers often refused to recognise unions or bargain with them, and provoked confrontations leading to strikes and lock-outs. Public sector unions are still banned
from forming federations. Enforcement of labour laws remained generally weak.
§
Freedom of association and collective bargaining: All workers have the right to form and join unions, including public sector
workers, with the exception of members of the armed forces and police officers, who are not entitled to unionise, and staff in the judicial
service, prison officers and agricultural corporations who should have the right to organise according to international standards. A minimum of seven workers is required to found a new union. The Industrial Disputes Act grants compulsory recognition to any union which
represents over 40 per cent of workers at any given workplace. The Department of Labour said, in September 2004, that this threshold
might be lowered in line with the recommendations of the ILO, which considers it too restrictive. The Act prohibits employers from sacking a worker because of their union activities.
Young workers can be employed from the age of 14, but are not permitted by law to join a union until they are 16 years old.
Public service unions are not allowed to form federations.
Right to strike: The right to strike is recognised for all workers except the police, armed forces, prison service, and those in essential
services. However, the law allows the President to designate any service as essential. In 1989, for example, the President declared the
garment export trade an essential service, although this clearly does not fall within the ILO’s definition of essential services. Similarly
the postal service was declared an essential service in 1998, and does not fall within this definition. Strikes are not banned, but those
working in an “essential” industry must given written notice 21 days in advance, giving valid reasons for their strike action.
Collective bargaining – denied to public sector workers: The law provides for the right to collective bargaining, but this right
is denied to public sector workers.
Export processing zones: The law grants workers in Sri Lanka’s export processing zones (EPZs) the same rights to join unions as
other workers.
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Weak enforcement of union recognition law: The recognition of unions for collective bargaining purposes is dogged by excessive
delays. Employers tend to delay the holding of union certification polls for a long time, and use this time to identify, victimise and, frequently, fire the union activists concerned. As a result, workers are afraid of being identified with the union, and the union loses the poll.
The Department of Labour has recently sought to address the problem, issuing instructions in 2004 to labour officers on the implementation of the law and where pro-active measures are to be taken to hold polls to prevent any delays in the process.
Alternatively, employers change their workforce figures to ensure the 40 per cent recognition target is not met, for example in the case
of Lanka Walltiles Ltd.
Victimisation of union activists: The 1999 Industrial Disputes (Amendment) Act, which is supposed to protect workers against
acts of anti-union discrimination in taking up employment and in the course of employment, has not been effectively applied and the
maximum penalty of US$250 is not a strong enough deterrent. Since the Act was adopted, many serious cases have been reported of
anti-union discrimination and non-recognition of trade unions.
The Labour Department often fails to file complaints against employers alleged to have engaged in unfair labour practices. Such
offences are tried before a Magistrate’s Court and only the Labour Department can submit cases. There is no time limit on bringing
cases to court, hence they can be delayed until the union has been weakened and disbanded. According to the Labour Department, there
are “instructions” for filing complaints within 30 days, but these are not enforceable.
Collective bargaining: There are relatively few bargaining agreements in the private sector compared to the total number of enterprises and unions.
EPZs – a history of anti-unionism: There have been widespread violations of trade union rights in Sri Lanka’s Free Trade Zones.
The zones are managed by the government’s Board of Investment (BOI), which sets wages and working conditions and has a history of
discouraging union activity. In the past, union members have faced intimidation, including threats of beatings from security guards, and
new workers have been warned not to join unions. Labour representatives say that the Labour Commission, under pressure from the
BOI, has failed to prosecute employers who refuse to recognise, or enter into collective bargaining with, trade unions.
Employees’ councils: Employees’ councils are structures funded by the employer, without the workers needing to make contributions. This gives them an advantage over unions, which rely on membership dues. This consideration inevitably influences the choice of
workers. They have been promoted by the BOI as a substitute for trade unions. In theory their role, according to the BOI, is to promote
“the effective participation of employees in the affairs of the enterprise through consultation.” In reality, the great majority of companies do not have employees’ councils, as these councils tend to be created primarily as a barrier, or a last defence, against an attempt by
workers to set up a trade union.
Improvements since Jaqalanka …: There have been some changes since the bitter, but ultimately successful, battle for union
recognition at Jaqalanka Ltd. The BOI no longer handles industrial disputes and has given the trade unions a written undertaking not to
intervene. The BOI Labour Standards and Employment Relations Manual, revised in March 2004 to come further in line with ILO recommendations, still states that one of the functions of an employees’ council is to represent employees in collective bargaining and
industrial disputes, but only where a recognised union does not exist.
The Free Trade Zone and General Service Employees’ Union (FTZGSEU) reported that, since Jaqalanka, it has been able to organise
workers in factories in the zones. It says a number of its branch unions have been recognised, including those at Jaqalanka Ltd,
Jaqalanka International and Gartex Ltd. All three unions were operating successfully in 2004 and both Jaqalanka companies had granted check-off facilities to union members.
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…but anti-union attitudes persist: Anti-union attitudes persist, however. The National Association for Trade Union Research has
pointed out that the new BOI guidelines do not reflect all the ILO recommendations. For example, it is the BOI that convenes the first
meeting of the elected Council, and facilitates the conduct of elections.
The Joint Apparel Association Forum reported in September 2004 that trade unions are still not allowed in some of the Free Trade
Zones. Forming trade unions is still difficult in the zones, and some employers are still trying to undermine the formation of unions. In
2005, only eight factories had recognised unions representing their work forces, out of the approximately 200 enterprises in the EPZs.
Public service federations tolerated: The legal provision preventing the federation of public service unions has reportedly never
2 6 2
been invoked and there are presently seven public sector federations. The public sector unions have also ignored the ban on international
affiliation, and no action has been taken against them. However, these federations still have no legal validity.
In practice, public sector unions do not engage in collective bargaining.
VIOLATIONS IN 2005
Background: On 17 November, President Mahinda Rajapaksa was elected to a six-year term. The Liberation Tigers of Tamil Eelam
(LTTE) enforced an election boycott in the north and eastern parts of Sri Lanka that they control. Acrimony between the Government
and the LTTE, possibly leading to a restarting of the war between them, was an ominous possibility that looked more likely as the year
ended. Massive efforts by the international community, including international trade unionists working with Sri Lankan unions, provided
assistance to the families of the 30,000 people killed in the Asia tsunami in Sri Lanka, and supported those who lost homes and
possessions.
Union picket attacked by management thugs: When the FTZGSEU branch union at Ceyenergy Electronic Company, a light
bulb manufacturer, organised a picket line on 2 February, protesting at a management decision to deny a cost of living increase approved
by the Board of Investment for all firms, the union members were set upon by thugs. The unionists were attacked with wicket stumps
(used in the game of cricket). Five unionists, including the union branch president, were left badly injured. Two workers had to be admitted to hospital.
The union had already been the target of management harassment following its formation in November 2004. Three union officials and
one activist were dismissed, the branch president was demoted and workers were denied their annual bonus. The Assistant Commissioner
of Labour called for an inquiry into the dispute on 26 January 2005, but company representatives failed to appear at the meeting.
New Design Manufacturing – reprisals for strike action: On 11 January, three weeks after the tsunami hit southern Sri Lanka
where Matara-based New Design has its factory, management instructed three supervisors to insist workers accept a new piece-rate
scheme. Among the work-force, one worker had died during the tsunami, and many others lost homes and family, and were living in displaced persons’ camps. When the workers refused to accept the scheme, management arbitrarily fired the supervisors, sparking a stoppage
by the 300 workers at the factory. Workers filed a complaint with the Department of Labour on 13 January, and were instructed by officials to return to work. However, when they returned to work on 15 January, they were informed they must apply for their jobs as “new
recruits.” The workers refused, a lock-out ensued, and the FTZGSEU was brought in to support the workers’ cause. During February, the
employer resisted repeated recommendations from Department of Labour officials to reinstate the workforce and supervisors, and resume
production. Management refused and continued to insist that workers restart as new hires, suffering losses in accrued benefits.
G.P Garment – threatening union leaders, calling in police, busting the union: Starting in early 2005, G.P. Garment,
located in the Biyagama EPZ, engaged in a systematic anti-union intimidation campaign as part of its effort to reorganise the company
for greater “productivity.” Insulting letters from the chairman of the company, aimed at intimidating workers, were accompanied by
threats by the local manager that a US$100,000 fund had been put aside to break the union. On 25 February, management posted an
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anti-union notice in the factory, which provoked heated arguments between management and the union. Threatening phone calls were
received at the home of the union President, Upul Jayashantha, who then accused factory management of complicity in a complaint to
the police. The factory manager then brought Special Forces police to the factory on 23 March, who proceeded to conduct a hostile
investigation of a key union organiser, Anura Kirithi Rajah, threatening him with life imprisonment. On that evening, local thugs
appeared around the house of the union President, and threatened to assault him.
The workers and the union reacted with demands to end police interference in trade union affairs, and for protection against threats
being generated by management. Management’s refusal prompted a work stoppage by the union on 24 March. While the factory was
closed from 25 to 27 March, management suspended 13 leading members of the union executive committee. A negotiated return to
work, with payment of outstanding wages, was reached, but when workers returned to the factory on 18 April, the payments were not
available. The union then occupied the factory in a sit-in. Another negotiated settlement was reached, but before this could be implemented, management issued letters terminating its entire workforce of 480 employees. The factory subsequently reopened with a smaller, non-union work force.
Swedish employer Trelleborg refuses union recognition: In March, a full 14 months after the branch union of the FTZGSEU
was organised at Trelleborg Wheel Systems factory in Biyagama EPZ, Trelleborg was still refusing to recognise the union, despite clear
pronouncements in its company code of conduct that it respects its workers’ rights to form a union. Pledges by the company in June
2004 to the Commissioner of Labour that it would allow for dues check-off, and enter into negotiations with the union were

ICFTU - Annual Survey of Violations of Trade Union Rights

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