FoA and ILO supervisory procedures Jun Coue Specialist – Int’l labour standards and labour law DWT - Bangkok

(C. in force) Brunei (1) 2008 Cambodia (13) Indonesia (18) Lao PDR (8) Malaysia (14) x 2000 Myanmar (19) 1955 Philippines (34) Singapore (20) x Thailand (15) Viet Nam (18)

Ratification in Asia Pacific Ratification average at about 66 % of world average, 40 % of OECD average Ratification average at about 66 % of world average, 40 % of OECD average 60 – 40 – 24 – – 40 – 24 – 15 East Asia ratifications significantly lower than in the rest of Asia East Asia ratifications significantly lower than in the rest of Asia Conventions 87 and 98: 16 and 19 ratifications respectively, out of 33 countries Conventions 87 and 98: 16 and 19 ratifications respectively, out of 33 countries 92 ratifications short of universal coverage, out of 138 globally. AP region accounts for 66% of missing ratifications of fundamental ILS 92 ratifications short of universal coverage, out of 138 globally. AP region accounts for 66% of missing ratifications of fundamental ILS

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CEACR – latest comments BANGLADESH BANGLADESH Arrests of and acts of violence against TU leaders, esp. in garment sector Arrests of and acts of violence against TU leaders, esp. in garment sector Refusal to register, among others Bangladesh Garments and Industrial Sramik Federation (BGISF) Refusal to register, among others Bangladesh Garments and Industrial Sramik Federation (BGISF) Host of FoA restrictions in EPZ Workers and IR Act (2004), primarily regarding restrictions on right to organise and establish unions, arrest of BIGWUF Host of FoA restrictions in EPZ Workers and IR Act (2004), primarily regarding restrictions on right to organise and establish unions, arrest of BIGWUF Similar restrictions in Bangladesh Labour Act Similar restrictions in Bangladesh Labour Act

CEACR – latest comments 2 CAMBODIA CAMBODIA Lack of progress with respect to justice being done concerning the murders of TU leaders Chea Vichea, Ros Sovannareth and Hy Vuthy Lack of progress with respect to justice being done concerning the murders of TU leaders Chea Vichea, Ros Sovannareth and Hy Vuthy Lack of progress with respect measures to ensure independence of judiciary so as to ensure FoA rights Lack of progress with respect measures to ensure independence of judiciary so as to ensure FoA rights Development of new TU law so as to bring legislation into conformity with C. 87 requirements Development of new TU law so as to bring legislation into conformity with C. 87 requirements

CEACR – latest comments 3 INDONESIA INDONESIA Acts of violence by police in re strike actions Acts of violence by police in re strike actions Right to organise of public servants Right to organise of public servants Serious restrictions on right to strike in legislation (penal sanctions for strike action, prohibition on strikes in railway service, Serious restrictions on right to strike in legislation (penal sanctions for strike action, prohibition on strikes in railway service,

Convention No. 98 ALL 3 COUNTRIES ALL 3 COUNTRIES Severely inadequate protection against acts of anti-union discrimination (even though Bangladesh law has provisions EPZ labour tribunal yet to be established) Severely inadequate protection against acts of anti-union discrimination (even though Bangladesh law has provisions EPZ labour tribunal yet to be established) Extremely low levels of collective bargaining Extremely low levels of collective bargaining Absence of statistical information on instances of discrimination and bargaining as baseline for active policy measures Absence of statistical information on instances of discrimination and bargaining as baseline for active policy measures

Overview of CFA cases in AP 21 active, 36 follow-up cases 21 active, 36 follow-up cases Latest report of CFA (June 2011): 3 cases Latest report of CFA (June 2011): 3 cases Bangladesh (Cha-Sramik Union) – Interference in elections of Executive Committee, violent suppression of protests against interference Bangladesh (Cha-Sramik Union) – Interference in elections of Executive Committee, violent suppression of protests against interference Malaysia (BATEU) – Reclassification by mgmt of posts to exclude employees from U membership and render U unable to function Malaysia (BATEU) – Reclassification by mgmt of posts to exclude employees from U membership and render U unable to function Philippines (KMU) – Violence, discrimination in EPZs Philippines (KMU) – Violence, discrimination in EPZs

Overview of CFA cases in AP AP cases constitute <25% of CFA caseload AP cases constitute <25% of CFA caseload Slight uptick in recent years (Malaysia, Cambodia, Indonesia) Slight uptick in recent years (Malaysia, Cambodia, Indonesia) No. of cases concern violence and impunity No. of cases concern violence and impunity Majority of cases concern discriminatory dismissal of trade unionists Majority of cases concern discriminatory dismissal of trade unionists Implying lack or inadequacy of protective machinery against discrimination (or contradictory laws) as required by C. 98 (CFA = ‘supranational’ court or tribunal) Implying lack or inadequacy of protective machinery against discrimination (or contradictory laws) as required by C. 98 (CFA = ‘supranational’ court or tribunal)

Importance of ratification CFA cases underscore need to ratify and implement C. 87 and 98 to guarantee FoA CFA cases underscore need to ratify and implement C. 87 and 98 to guarantee FoA In spite of its mandate’s importance, availability of CFA is NOT a proxy for ratification of FoA Conventions In spite of its mandate’s importance, availability of CFA is NOT a proxy for ratification of FoA Conventions

Committee on Freedom of Association of GB FOA complaints mechanism set up in 1951 FOA complaints mechanism set up in 1951 originally to examine complaints for referral to Fact-Finding & Conciliation Committee originally to examine complaints for referral to Fact-Finding & Conciliation Committee authority derives from ILO Constitution authority derives from ILO Constitution composition : tripartite - 9 Governing Body members composition : tripartite - 9 Governing Body members meeting : 3 reports a year (GB) meeting : 3 reports a year (GB) Examines complaints and issues recommendations Examines complaints and issues recommendations

CFA (cont.) NO RATIFICATION REQUIRED NO RATIFICATION REQUIRED no exhaustion of national procedures required no exhaustion of national procedures required not bound by national recognition of “unions” not bound by national recognition of “unions” specific infringements, no purely political allegations specific infringements, no purely political allegations no general conclusions – scope of recommendations limited to facts alleged no general conclusions – scope of recommendations limited to facts alleged

Compare with… Invokes system of regular supervision Invokes system of regular supervision PERIODIC evaluation of country’s performance by the CEACR and the Conference Committee PERIODIC evaluation of country’s performance by the CEACR and the Conference Committee On ALL aspects of freedom of association, not limited to contents of Govt reports and W comments On ALL aspects of freedom of association, not limited to contents of Govt reports and W comments Ratification locks in int’l commitments

Regular supervision (cont) Ratification also implies consent to have performance supervised on basis of democratic participation of SPs Ratification also implies consent to have performance supervised on basis of democratic participation of SPs CONFERENCE COMMITTEE ON APPLICATION OF STANDARDS CONFERENCE COMMITTEE ON APPLICATION OF STANDARDS Tripartite, reviews CEACR report and selects 25 cases each June Tripartite, reviews CEACR report and selects 25 cases each June calls for HLM to Cambodia (2007) and Philippines (2008) led to TC agreements to improve FoA situation calls for HLM to Cambodia (2007) and Philippines (2008) led to TC agreements to improve FoA situation Cambodia – ILO support to tripartite labour law reform Cambodia – ILO support to tripartite labour law reform Philippines – TC project to comprehensively improve FoA rights Philippines – TC project to comprehensively improve FoA rights Ratification and supervisory work = platform for engagement Ratification and supervisory work = platform for engagement

Other arguments for ratification C 87/98 guarantees essential for ensuring fairer distribution of wealth workers help generate C 87/98 guarantees essential for ensuring fairer distribution of wealth workers help generate Middle-income countries, fair distribution also crucial to avoiding MIT Middle-income countries, fair distribution also crucial to avoiding MIT AP region characterised strongly by strong growth and flat wages (ADB) AP region characterised strongly by strong growth and flat wages (ADB) Beyond questions of basic human rights, lack of FoA is hindering efforts to improve LMG through i.e. labour law reform Beyond questions of basic human rights, lack of FoA is hindering efforts to improve LMG through i.e. labour law reform

Other arguments (cont.) Increasingly, ratification of ILS is used to substantiate the expectations of bilateral trading partners Increasingly, ratification of ILS is used to substantiate the expectations of bilateral trading partners US FTAs, EU GSP system – ratification of core ILS one conditionality of conferring trading status US FTAs, EU GSP system – ratification of core ILS one conditionality of conferring trading status