ASIAN LAW STUDENTS‘ ASSOCIATION

ALSA LAW REVIEW

2010

Protection on Labour Rights in Asian Countries

CONTENTS

1. INTRODUCTION OF ASIAN LAW STUDENTS‘ ASSOCIATION

2. MESSAGE

- PRESIDENT OF ALSA INTERNATIONAL BOARD

- ACADEMIC ACTIVITIES COORDINATOR OF ALSA INTERNATIONAL

BOARD

3. LAW REVIEW

INDONESIA

SINGAPORE

MALAYSIA

THAILAND

PHILIPPINES

SOUTH KOREA

JAPAN

CHINA

HONGKONG

BRUNEI DARUSALAM

4. CONCLUSION

ASIAN LAW STUDENTS‘ ASSOCIATION (ALSA)

The richness of natural resources, the

uniqueness of every Asian countries‘

heritage that influences much on the

professionalism and hard-working-

ethic of its people, the promptness of

modern scientific and technology

researches and inventions, the

popularity of international trade, and

the rapid development of

international cooperation among

Asian countries are the very evident

characteristics of Asian region

nowadays. With such rising

development, Asia surely has great

potentials to grow even more and to

be place as the major player in the

global development.

Implementation of law performs as the main key in the succession of such ideal future pictured by

Asia. Thus, Asian Law Students‘ Association as a non-political, non-governmental, and non-profit

organization of the future leaders and legal exposure would depend on, would surely be a great

investment for Asia in general, and each of Asian countries in particular, to pursue the bright future

ahead.

Cooperation with The European Law Students‘ Association (ELSA)

On the 16th

December 2009 ALSA and ELSA have signed a Memorandum of Understanding which

entered into force at the beginning of the year 2010. From now on ELSA has become Partner Law

Students‘ Association for ALSA and both associations are looking forward to achieving a new level of

the cooperation between them.

According to its preamble both organizations recognize mutual interest in establishing and

developing the cooperation with an aim to give to their members a broader outlook on legal systems

of the world and to enhance exchange of knowledge and experience among law students and young

lawyers from Europe and Asia.

The Memorandum provides for implementing a better communication between ALSA and ELSA,

mutual promotion of events, cooperation within the international traineeship exchange program as

well as setting frames for the future developments such as joint initiatives within the ELSA Moot

Court Competition and Law Reviews of the associations.

PRESIDENT OF ALSA INTERNATIONAL BOARD 2009/2010

Dear Reader,

Greetings from the Asian Law Students‘ Association (ALSA). ALSA is an established law

student association which is currently Asia‘s largest law student association comprising of more than

10.000 members from across the continent, consisted of more than 100 reputable universities. It is

also an established partner association of the Australian Law Students‘ Association and the

European Law Students‘ Association.

On behalf of ALSA International Board, allow me to say that it‘s within our pleasure to

once again present the 2009-2010 edition of ALSA Law Review. As one of our organization‘s most

important academic works, the current law review with the theme ―Protection on Labour Rights‖ is

a compilation of of brilliant minds from across the continent that serve to promote the protection of

migrant labours and address the issues pertaining the violations of their rights. It is expected that

this will raise the awareness of the public in regards to migrant labour rights which has been a

sensitive issue within the region

Moreover, I would also like to use this opportunity to thank the coordinator of Academic

Activities Coordinator (hereinafter AAC) of ALSA International Board, AAC of each national

chapter and our respective authors of this year‘s law review. If it weren‘t for your hardships, the

current law review would have never been published. Thus, I am more than glad to say that all your

efforts have not ended in vain.

Last but not least, though it may not be perfect, I sincerely hope that the thorough review

concerning the existing laws and regulations within different countries would be able to enhance

your analysis between distinct legal systems, broaden your view and fill your thirst for knowledge.

May you find the current edition useful for your research and studies. All the best!!

DIMAS NANDA RADITYA – President of ALSA International Board 2009-2010

ACADEMIC ACTIVITIES COORDINATOR OF ALSA INTERNATIONAL BOARD 2009/2010

This year‘s law review with the theme ―Protection on Labour Rights‖ has witnessed the

hard work of Academic Activities Coordinator (AAC) Team during this one year period. I personally

thank you for every individuals involved in realizing these enlightening reviews written by future

lawyers of this continent.

Taking into account that globalization nowadays has brought every state to foster

international relations, then there is no doubt in saying that international law is being the core part

in supporting such relations and International issues are climbing the chart as main concerns of

every government in any part of the world.

Back to ALSA Annual Forum 2009 in Manila, every National Chapter of ALSA had agreed

to focus on Labour Law as the general theme of ALSA Academic Activities. One of AAC main

concerns was because many citizens in each country tend to work abroad.

I personally believe that this law review will enhance our understandings about labour law,

particularly labour rights. Besides, we surely need such knowledge as we are all future leaders of

legal field in our own countries. These law review is not merely a symbol of each country‘s points of

view, but also to represent Asia‘s points of view, particularly to say, represented by: Indonesia,

Singapore, Malaysia, Brunei, Japan, Korea, Hongkong, Philippines, Thailand and China.

By the existence of Memorandum of Understanding (MoU) between Asian Law Students‘

Association (ALSA) and European Law Students‘ Association (ELSA), I‘m proudly saying that this

law review will also be distributed in Europe. In return, we will distribute ELSA Selected Papers on

European Law. Hopefully this law review will initiate further academic activities relations between

both organizations.

This law review will also remark the end of the current International Board‘s term. On

behalf of ALSA International Board, I appreciate for the efforts that every National Chapter has

made during this one year period, I hope this law review will be a useful reference for those who are

focusing on labour issues, and as we all are aware; ALSA Always Be One!

AGANTARANANSA JUANDA – Academic Activities Coordinator of ALSA International Board

2009-2010

This year’s ALSA Law Review Magazine is aimed to examine the impact of

recent economic and political change on collective and individual labour rights in

Asia. Democratization has produced stronger collective labor rights in much of the

region, but labor laws in most countries still fall far short of international labor

standards. Asia’s labour laws offer similar levels of protection for individual labor

rights to the rest of the world when firing costs are taken into account. Few

countries have revised their labor laws in the direction of greater labor market

flexibility. However, the distance between law and practice is wide, so improvements

in laws are not necessarily reflected on the ground. Flexibility enters through the

back door of ineffective labor law enforcement, which in turn has affected the

organizing efforts of unions.

2010

Law Review: Protection

on

Labour Rights

Protection on Labour Rights in Indonesia

By: Nur Ramadhan Suyudono

1. Background

Labor is one of the main aspects of economic activity. Because of their efforts, goods could

be produced from a factory and distributed to the society. History has even noted that the

establishment of magnificent buildings such as pyramids is possible due to their efforts. In our time,

the difference of the term ―labor‖ rests on the scope of human rights issues. Modern labor ought to

be equipped with fundamental rights and these rights should be acknowledged by a company. In this

legal review, I shall discuss more on the rights of labor in Indonesia and policies relating to the issue.

Labor law is the body of law that governs the employer-employee relationship, including

individual employment contracts, the application of tort and contract doctrines, and a large group of

statutory regulation on issues such as the right to organize and negotiate collective bargaining

agreements, protection from discrimination, wages and hours, and health and safety.1

The history of Indonesian labor law began during the Dutch Colonialism Era.2 Before that

time, workers were considered as slaves and governed under Adat Law. The modern employment

relation was established in 1819 during Dutch Colonialism Era, where there is no coercion on the

relation of employee and employer. This principles was stipulated under Staatsblaad 1819 No. 10.

Even though such right was recognized, rights of Indonesian labors were still violated by the Dutch

since they wanted Indonesian labors to work in their plantation companies for a long period of time.

One of the inhuman policies at that time was Algemene Politie Strafreglement 1872 No. 111

which regulated that Indonesian labor will be punished (fine of 16-25 Rupiah or forced works for 7-

12 days) if they refused a job without any basis (Poenale Sanksi)3. This law was condemned by

international society and terminated in 1879. Subsequently, Dutch Colonialism government kept on

changing their labor policies, but none of them accommodated the needs of Indonesian labor. Soon

after Indonesia declared its independence, the valid Indonesian Labor Law was born. Until now,

Indonesian Labor Law is mainly governed under Law No 13/2003 regarding Employment.

On the Indonesian labor law itself, there is a difference of characteristic before the

Reformation Era (after 1998). During the New Order regime (1966-1998), there was a limitation to

1 http://legal-dictionary.thefreedictionary.com/Labour+law

2 Imam Soepomo, Hukum Perburuhan Bidang Kesehatan Kerja (Perlindungan Buruh)

3 Ibid

“There should be a “meeting of minds”

between company, labor and labor union,

and government”

the labor union due to dictatorship regime at that time. This act clearly violated a freedom to

associate which is one of the primary labor rights.

The international standards on protection of labor are issued by the International Labor

Organization (ILO). The ILO was created in 1919, as part of the Treaty of Versailles that ended

World War I, to reflect the belief that universal and lasting peace can be accomplished only if it is

based on social justice.4 At that time ILO was a part of the League of Nations. The ILO later became

incorporated into the United Nations until now.

The fundamental rights of labor are stipulated under United Nations Declaration of Human

Rights:

Article 23

1. Everyone has the right to work, to free choice of employment, to just and favorable

conditions of work and to protection against unemployment.

2. Everyone, without any discrimination, has the right to equal pay for equal work.

3. Everyone who works has the right to just and favorable remuneration ensuring for himself

and his family an existence worthy of human dignity, and supplemented, if necessary, by

other means of social protection.

4. Everyone has the right to form and to join trade unions for the protection of his interests

Article 24

1. Everyone has the right to rest and leisure, including reasonable limitation of working hours

and periodic holidays with pay

The other core labor standards are stipulated under the Declaration of the Fundamental

Principles and Rights at Work in conjunction with the Convention on the Rights of the Child

(CROC) and the International Covenant on Civil and Political Rights (ICCPR)5. These core

standards are:

1) Freedom of association: workers are able to join trade unions that are independent of

government and employer influence;

2) The right to collective bargaining: workers may negotiate with employers collectively, as

opposed to individually;

3) The prohibition of all forms of forced labor: includes security from prison labor and slavery,

and prevents workers from being forced to work under duress;

4) Elimination of the worst forms of child labor: implementing a minimum working age and

certain working condition requirements for children;

5) Non-discrimination in employment: equal pay for equal work.

2. Current Affairs of the Issue

2.1 Legislative Action

Speaking of Indonesian Labor Legislations, we could analyze it into two parts which are:

Indonesian law that is originally enacted by the government and International Treaties that has

ratified by Indonesian government.

The most vital Indonesian Labor Law are Law No. 13/2003 regarding Employment and Law

No. 2/2004 regarding Dispute Settlement of Industrial Relations. Law No. 13/2003 compiles earlier

labor regulations and contains full aspects on employment such as health and safety of workers,

working period, protection of female worker, etc. Nevertheless, there are some critics regarding this

law, mostly from the labor unions. Those critics are:

1) The Law legalized ―out-sourcing‖ which would have the effect of reducing job security for

Indonesian workers.

4 http://www.ilo.org/global/About_the_ILO/Origins_and_history/lang--en/index.htm

5 http://www.adb.org/Documents/Handbooks/Core-Labor-Standards/default.asp

2) The Law legalized the ―specified time contract‖ which was thought to jeopardize permanent

employment security previously enjoyed by workers who would now be forced on to

temporary or non-permanent work contracts.

3) The Law restricted the right to strike to specific types of labor disputes.

4) The Law gives authority to employers to terminate their workers for the alleged commission

of a crime without the need to await a binding criminal conviction to be handed down by the

relevant court of law.

5) Some of the articles of the Law are inconsistent and thus create legal uncertainty.

Indonesia is a member of the ILO. Thus, we have obligation to ratify some of its

conventions. The 8 ILO Core Conventions that have been ratified by Indonesian Government are6:

4) Convention No. 29/1930 on Forced or Compulsory Labor which is ratified with Law No.

261/1933.

5) Convention No. 98/1949 on the Application of the Principles of the Right to Organize and to

Bargain Collectively which is ratified with Law No. 18/1956.

6) Convention No. 100/1951 on Equal Remuneration for Men and Women Workers for Work

of Equal Value which is ratified with Law No. 80/1957.

7) Convention No. 87/1948 on Freedom of Association and Protection of the Rights to Organize

and which is ratified with Presidential Decree No. 83/1998.

8) Convention No. 105/1957 on the Abolition of Forced Labor and which is ratified in Law No.

19 /1999.

9) Convention No. 138/1973 on the Minimum Age for Admission to Employment and which is

ratified with Law No. 20/1999.

10) Convention No. 111/1958 on Discrimination in Respect of Employment and Occupation and

which is ratified with Law No. 21/1999.

11) Convention No. 182/1999 on the Prohibition and Immediate Action for the Elimination of

the Worst Forms of Child Labor and which is ratified with Law No. 1/2000.

The supreme achievement afterwards is the enactment of Law No. 21/2000 regarding Labor

Unions as the continuation of ILO Core Convention No. 87 of 1948. According to the law, every

worker now had a right to form or to become a member of a labor union. Prior to the enactment of

Law No. 21/2000, there was no single union could be legally established in Indonesia except for All

Indonesian Labor Union (SPSI) or All Indonesian Labor Federation (FBSI) and both of these unions

were sponsored by government. At that time, it was suspected that the New Order regime was

limiting the movement of labor unions due to trauma of attempted coup by the communist in 1965

which was promoted by labor unions. Objectively speaking, the New Order regime‘s act was a form

of violation on basic labor rights (freedom of association).

Another essential labor law is the Law No. 39/2004 regarding Placement and Protection of

the Indonesian Labor Abroad. This national law is important since there are a lot of Indonesian

working in neighboring counties such as Malaysia, Singapore, Hong Kong, etc. This law enables the

Labor Placement Companies to recruit and to conduct labor training. The Labor Placement

Company also has an obligation to protect migrant workers before placement, during placement, and

after placement. It is stating that protection of migrant workers abroad is the authority of

Indonesian government through its embassy abroad.

These conventions mentioned above have given a contribution in shaping Indonesian Labor

Law to fulfill the international standards relating to labor rights. In 2008, Indonesia has ratified ILO

Convention No. 185 Concerning Revising the Seafarers‘ Identity Documents Convention 1958 with

6 http://www.labourstart.org/rights/

Law No. 1/2008. This convention is important to us, because Indonesia is a maritime country and

many Indonesian are working as seafarer.

2.2 Executive Action

Employment issues in Indonesia are managed under the Ministry of Manpower and

Transmigration. Ministry of Manpower and Transmigration is a ministry in charge of affairs of the

Government of Indonesia's manpower and transmigration. Ministry of Manpower and

Transmigration is headed by a Minister of Manpower and Transmigration.7 This ministry is within

the scope of Indonesian executive institutions as well as the other ministry.

To support the development and protection of labor, Ministry of Manpower and

Transmigration has enacted its strategic plan for 2010-2014 which are8:

1) Encourage the creation of decent employment opportunities, namely the protection

of productive employment and adequate social security;

2) Encourage the creation of employment opportunities as wide as possible and evenly

distributed in the sectors of development;

3) Improve conditions and industrial relations mechanisms to encourage employment

opportunities;

4) Improve the labor regulations and implementing the main labors principal

according to international law;

5) Develop social security and worker empowerment;

6) Increase the workers competence and its productivity;

7) Creating employment opportunities through government programs;

8) Improving migration policy;

9) Develop labor market support policy through the labor market information.

According to Ministry of Manpower and Transmigration, the development of labor in

Indonesia has seen obstacles due to the high rate of unemployment, the low expansion of employment

opportunities, the low competence and productivity of labor, and the industrial relations is not

conducive yet.9

2.3 Judicial Action

Disputes on employment relations in Indonesia should be settled through Industrial

Relations Court. Industrial Relations Court is a special court created in the scope of State Court

which has authority to examine, adjudicate and give the verdict against industrial relations

disputes.10

This law also enables alternative dispute resolution such as mediation or conciliation on

this matter.

In the Industrial Relations Court, industrial relations disputes are reviewed and decided by

the judges, consist of career-judges and ad-hoc judges which appointed by labor union and

employers' organizations.11

Based on the 2009 Research that was conducted by the Ministry of Manpower and

Transmigration with 27 companies as respondents, 5 cases were settled on bipartite level, 5 cases

were settled on mediation level and 17 cases were settled on bipartite and mediation level. None of

them were settled through Industrial Relations Court.12

7 Presidential Decree No. 47 Year 2002 regarding Position, Duty, Function Authority, Organization

Structure and Work Procedures. 8 Regulation of Minister of Manpower and Transmigration No. 03 / MEN/I/2010

9 http://www.nakertrans.go.id/uploads/doc/5%20RENSTRA%20%2824%20Feb%29.pdf

10 Law No.2/2004, Article 1 par 17

11 Tim Pengajar Fakultas Hukum Universitas Indonesia, Bahan Kuliah Hukum Perburuhan

12 http://www.nakertrans.go.id/litbang.html,37,naker

3. Conclusion and Proposition

The development of labor law in Indonesia is quite drastic if we take a look on the first

savage labor policies at the time of Dutch Colonialism Era. Soon after Indonesia declared its

independence, we have found ourselves a valid labor law of our own. However, after the New Order

regime ruled our nation, few rights of labors were still violated such as freedom of association for

example.

As a result, it is correct to say that Indonesian labor law reform began after the Reformation

Era. One of its achievements would be the ratification of the 8 ILO Core Conventions which are the

standards of labor rights and also the enactment of national laws regarding labor.

On the other hand, there are some critics on our labor law – mostly few provisions on Law

No.13/2003 – such as allowance of out-sourcing which would be risky to labor‘s welfare. Public also

has a doubt to settle this kind of matter through Industrial Relations Court. It is because of reasons

such as incompetence and dishonesty of its officers. The problems on labor will also be felt

increasingly greater if there is still paltry view of their rights (feudalism).

If we examine the Indonesian labor policies in a whole, I am confident that we are on the

right path concerning the protection on labor rights. Even though there are some problems on few

articles of the law (mostly on Law No.13/2003), the only problem we are facing today is the law

enforcement itself.

Another problem that we are facing today is the violation of Indonesian labor rights abroad.

The number of this kind of violation is quite high.13

This matter could be settled through diplomatic

negotiation in order to respect the sovereignty of a state and maintain bilateral relation between two

countries. ILO as an international organization governed under the United Nations is required to

focus more on the welfare of migrant workers around the world. It could be done through its

recommendation to state members relating to migrant workers issues.

The best solution relating to the protection on Indonesian labor rights is through education

and socialization that is provided by government and/or NGOs. There should be a ―meeting of

minds‖ between company, labor and labor union, and government. A reform on several provisions of

our law is also necessary in order to support labor rights. Not to forget, a reformation on Indonesian

court and its officers which could be proved through law enforcements.

13

http://web.bisnis.com/umum/sosial/1id167208.html

Life‘s Labour‘s Lost: The Migrant Domestic Worker Lacuna in Employment Laws of Singapore

By: Adrianni Marhain

Chua Jiahui Charmaine

Chua Ming Ying Elizabeth

INTRODUCTION

While the Singapore‘s labour laws are by and large comprehensive enough to meet the needs of most

employees in the nation-state, a specific group of persons are excluded from its benefit. This category

includes persons employed in managerial positions, seamen and – more prominently – domestic

workers.

In a country where as many as one in seven families employ a full-time migrant domestic worker14

,

majority of whom hail from the neighbouring Philippines, Indonesia and Sri Lanka, the exclusion of

domestic workers from the Employment Act15

, and the Workplace Safety and Health Act16

, has had

severe detrimental effects on the lives of domestic workers in Singapore.

Where the domestic worker phenomenon is concerned, Singapore has found itself over-familiar with

headlines for all the wrong reasons. Most prominently, the Human Rights Watch Report in

December 2005 by Nisha Varia thoroughly denounced how the Singapore Government has handled

the domestic worker situation, drawing international attention to what the author called ―conditions

amounting to forced labour‖.

Among some of the predicaments enumerated in the report were the lack of rest hours and poor

working conditions leading, in some cases, to employer abuse that domestic workers were forced to

cope with. Both these issues are still hotly debated in Singapore and this article seeks to clarify how

the exclusion of domestic workers from the key legal instruments that give rights to employees and

impose legal obligations on employers are the main causes of these problems. Additionally, this

14 Nisha Varia, “Maid to order: Ending abuses against migrant domestic workers in Singapore” (New York:

Human Rights Watch, 2005) at p 15 15 Cap. 91, 1996 Rev. Ed 16 Cap. 354A, 2009 Rev. Ed.

“These factors lead to the average

Singaporean being more

concerned with how much they

have to pay their maid, instead of

ensuring humane conditions for

their maids and not long work

days for such low pay.”

article seeks to contextualize the legal situation of domestic workers in a socio-political and economic

setting and provide further recommendations as to how this problem can be ameliorated.

THE LEGISLATIVE LACUNA

Singapore has no single body of law governing the rights and regulations of foreign domestic

workers. The most relevant piece of legislation pertaining to this issue is the Employment of Foreign

Manpower Act17

. However, an examination of the provisions of the Act reveals nothing that serves to

protect the interests of foreign domestic workers – academic papers have noted that the act is merely

regulatory18

. While the Act sets out the rules that employers must abide by in order to employ a

foreign worker, it provides no legal recourse to the migrant worker, nor does it enforce any

obligations on the employer with regard to the welfare of the domestic worker.

A prominent drawback to the exclusion of foreign domestic workers from the Employment Act

pertains to the amount of hours for rest and leisure that they are able to enjoy. Singaporean

employees covered under the Employment Act have the benefit of not having to work more than 8

hours in a day or 44 hours in a week pursuant to s.38(b). However, there are no similar provisos in

the Employment of Foreign Manpower Act and as such, there are no effective restrictions to hold an

employer back from demanding round the clock attendance from a migrant domestic worker.

Unfortunately, such extreme cases of overwork are not merely theoretical deficiencies of the migrant

domestic worker lacuna in the Singapore legal system, but form part of the harsh reality. Employers

take advantage of the leeway that the law has given them, and it is the norm for employers to call the

shots on their employee‘s working hours however they see fit. The typical daily routine of a live-in

domestic worker involves waking up before her employers do to prepare their breakfast, doing the

chores she is assigned throughout the day while they go to work, and being at their beck and call

when they return. She is only able to go to bed at when her employers see fit.

Live-in domestic workers have no clearly demarcated difference between their work and rest time in

the week. This is exacerbated by the fact that few are able to enjoy a day off even on weekends. The

standard employment contract does not provide for paid sick leave, annual leave and public holidays

for maids.19

According to a straw poll of 50 employers, only 62 per cent gave their maids a rest day.20

Our Malaysian neighbours have drawn similar flak for prolific cases of maid abuse, which

culminated in Indonesia introducing an enforced ban (as of January 2010) on sending maids to

Malaysia in June 200921

, and established a compulsory day off as a result22

. However, there are no

17 Cap. 91A, 2009 Rev. Ed. 18 Cham, Mark Shan Jie. (2006) Aliens and alienation in a foreign land : a critical examination of the legal

protection of the maids diaspora in Singapore. National University of Singapore. 19 “NGOs want migrant workers to be brought under law‟s protection too” TODAY [of

Singapore] (25 September 2008). 20

Lin Yanqin, “2 years on, employers still skirt day-off clause” TODAY Online (25 April 2008)

online: Transcient Workers Count Too <http://www.twc2.org.sg/site/migrants-in-the-

news/2-years-on-employers-still-skirt-day-off-clause-2.html>. 21 Nik Naizi Husin, "Indon maid ban issue likely to be resolved in Jan", The Star (11 December 2009),

online: The Star Online

<http://thestar.com.my/news/story.asp?file=/2009/12/11/nation/20091211194427&sec=nation>

indications that the Singaporean government will move in a similar direction. This is in spite of a

large scale campaign to do so on http://www.dayoff.sg/, which is supported by non-profit

organisations such as Unifem, Humanitarian Organization for Migrant Economics (H.O.M.E.) and

Transient Workers Count Too (TCW2).

SOCIAL INFLUENCES AND OTHER REASONS

The failure of the standard employment contract lies in the fact that it assumes equal bargaining

power between the maid and employer. This is not the case in reality - the maid who is typically

younger than their employer, heavily in debt after travelling to Singapore23

, and thus needs to start

earning money as soon as possible to repay their debts. The heavy debts inflicted on them by maid

employment agencies themselves reflect the naivety of the maids, for maid employment agencies do

not break down these fees, which are often in the range of SGD 2,500 – 3,000.24

This is far above the

estimated SGD300 for regional airfares, and contrary to the Second Schedule of the Employment

Agencies Act, where agencies are not supposed to collect more than 10% of the first month‘s

earnings of applicants placed in employment.25

It must be noted, however, that the minimum

working age of maids was raised from 18 to 23 years in 2005.26

The maid levy imposed on employers also contributes to the high expectations from employers yet

low wages paid to maids. The levy, which goes directly to a central government fund and is not used

especially for migrant workers27

, gives employers the impression that their maids cost more, and thus

should work more. The actual salary going to the maid is sometimes even less than the levy

imposed28

; consequently the maids are overworked for the amount they actually get. The mismatch

of expectations that arises causes both employers and domestic workers to expect better for what it

costs them.

Another major reason that employers can get away with treating maids badly is the fact that

Singaporeans just do not have a human rights mindset. One article evaluated how the Employment

22 Zalinah Noordin, " Compulsory day off for maids ", The Star (17 June 2009), online: The Star Online <http://thestar.com.my/news/story.asp?file=/2009/6/17/nation/4132651&sec=nation> 23

Esther Ng, “Give FDWs details of fees charged: NGOs” TODAY [of Singapore] (7

December 2009), online: TODAYonline <

http://www.todayonline.com/Singapore/EDC091207-0000066/Give-FDWs-details-of-fees-

charged--NGOs>. 24

Esther Ng, “Give FDWs details of fees charged: NGOs” TODAY [of Singapore] (7

December 2009), online: TODAYonline <

http://www.todayonline.com/Singapore/EDC091207-0000066/Give-FDWs-details-of-fees-

charged--NGOs>. 25

Esther Ng, “Give FDWs details of fees charged: NGOs” TODAY [of Singapore] (7

December 2009), online: TODAYonline <

http://www.todayonline.com/Singapore/EDC091207-0000066/Give-FDWs-details-of-fees-

charged--NGOs>. 26

Theresa Tan, “Manpower Ministry says foreign maids faring better today than 5 years

ago” The Straits Times [of Singapore] (12 December 2009), online: Migrant Workers

Singapore < http://migrantworkerssingapore.blogspot.com/2009/12/manpower-ministry-

says-foreign-maids.html>. 27 Nisha Varia, “Maid to order: Ending abuses against migrant domestic workers in Singapore” (New York:

Human Rights Watch, 2005) at p 15 28 Nisha Varia, “Maid to order: Ending abuses against migrant domestic workers in Singapore” (New York:

Human Rights Watch, 2005) at p 15

Act dovetailed with the right to rest and leisure, and the reasonable limitation of working hours and

periodic holidays with pay, in Article 24 of the Universal Declaration of Human Rights.29

He did not

evaluate the situation of those excluded by the Act. Singapore society holds the ‗eastern mindset‘ that

only a narrow core of absolute human rights exist,30

and that many human rights championed by the

West are far from universal.31

As penal killing in Singapore is permitted, so too is the status as a

maid as a worker without rest days. It is furthermore uniquely Singaporean to say that human rights

are not independent from economic circumstances,32

that pragmatic goals must be achieved before

contending with human rights issues.33

These factors lead to the average Singaporean being more

concerned with how much they have to pay their maid, instead of ensuring humane conditions for

their maids and not long work days for such low pay.

RECOMMENDED CHANGES TO THE LAW

vOne suggestion to eliminate problems relating to domestic worker labour law would be to include

maids under the Employment Act.34

This would extend benefits such as fixed hours of work, rest

days, paid annual leave and sick leave, and maternity benefits to maids. It would also specify

expected work hours and payment for overtime work. However, as noted by the Singapore

government, this would be difficult to enforce. Singapore society may not be ready to accept

mandatory weekly rest days or maternity benefits as yet, with some employers restricting their maids

from taking their day offs in case they get into a relationship during their period of employment.35

A better solution would be to introduce a Foreign Domestic Workers Act,36

which would specify a

minimum wage, following Hong Kong‘s example, and include having at least one rest day a month,

that cannot be substituted for pay.37

This would not be too onerous to enforce. As the attitude of

society softens towards the rights of domestic workers, the Act can be amended to allow more

privileges to domestic workers. Moreover, the formation of a new act specifically to deal with foreign

domestic workers would send a clear message that the government is prepared to take into account

the particular circumstances of the employer in a domestic environment and will not impose too

strict a standard to be followed.

29 Kevin YL Tan, “Fifty Years of the Universal Declaration of Human Rights: A Singapore

Reflection” (1999) 20 Sing.L.R. 239 at 270. 30 Thio Li-Ann, “Singapore Human Rights Practice and Legal Policy: Of Pragmatism and

Principle, Rights, Rhetoric and Realism” (2009) 21 Singapore Acad. Law. J. 326 at 329. 31 Kevin YL Tan, “Fifty Years of the Universal Declaration of Human Rights: A Singapore

Reflection” (1999) 20 Sing.L.R. 239 at 241. 32 Thio Li-Ann, “Singapore Human Rights Practice and Legal Policy: Of Pragmatism and

Principle, Rights, Rhetoric and Realism” (2009) 21 Singapore Acad. Law. J. 326 at 327-328. 33 Kevin YL Tan, “Fifty Years of the Universal Declaration of Human Rights: A Singapore

Reflection” (1999) 20 Sing.L.R. 239 at 240. 34 “NGOs want migrant workers to be brought under law‟s protection too” TODAY [of

Singapore] (25 September 2008). 35 Nisha Varia, “Maid to order: Ending abuses against migrant domestic workers in Singapore” (New York:

Human Rights Watch, 2005) at p 15 36

Joy Frances, “Call for laws to protect maids” TODAY [of Singapore] (4 December 2003)

4. 37

Joy Frances, “Call for laws to protect maids” TODAY [of Singapore] (4 December 2003)

4.

Another suggested change is to include an explicit clause in work permits to ban maids from cleaning

outsides of windows in high rise buildings.38

However, this may not be the best way to deal with the

problem of maids being forced to work in dangerous situations.

The last suggested change would be to raise standards in accrediting employment agencies that bring

in maids. The Employment Agencies Act should be changed to require that employment agencies

break down their fees to all foreign domestic workers, and make the process more transparent.39

More checks should also be done to ensure that employment agencies properly recommend rest days

to their customers.40

There is a slow but steady struggle to achieve better working conditions for FDWs, with less pay

disputes, deaths and abuse cases in 2009 than in 2004.41

Perhaps the greatest indicator of the future

of maids‘ working conditions is the fact that Singaporean NGOs, as opposed to maids themselves, are

checking Singaporeans‘ assumptions as to how they can treat their maids. With the government

lending support to these NGOs42

, and with Singapore achieving economic stability and increased

awareness of human rights in civil society, there is hope that the working conditions of maids will

gradually improve.

38

Chow Penn Nee, “Ban windows cleaning: MP” TODAY [of Singapore] (18 December

2006) 2. 39

Esther Ng, “Give FDWs details of fees charged: NGOs” TODAY [of Singapore] (7

December 2009), online: TODAYonline <

http://www.todayonline.com/Singapore/EDC091207-0000066/Give-FDWs-details-of-fees-

charged--NGOs>. 40

Lin Yanqin, “2 years on, employers still skirt day-off clause” TODAY Online (25 April 2008)

online: Transcient Workers Count Too <http://www.twc2.org.sg/site/migrants-in-the-

news/2-years-on-employers-still-skirt-day-off-clause-2.html>. 41

Theresa Tan, “Manpower Ministry says foreign maids faring better today than 5 years

ago” The Straits Times [of Singapore] (12 December 2009), online: Migrant Workers

Singapore < http://migrantworkerssingapore.blogspot.com/2009/12/manpower-ministry-

says-foreign-maids.html> 42

Neo Chai Chin, “Human Trafficking: US report „unjustified‟” TODAY [of Singapore] (23

July 2008).

Witter Yee Yeoh Jit Wei

Protection of Labour Rights in Malaysia

Malaysia is still a young developing country especially in the industrial field. Apart from the

country‘s natural resources, Malaysia‘s most important and valuable asset for growth and

development still lies in its workforce, the labour. There are currently more than five million labours

in the country employed in various sectors of the economy and in many diverse occupations. It is also

universally recognised that a healthy, satisfied labour force working under environmentally safe

conditions will contribute towards greater productivity and national growth, bringing benefits to

both the people and the country‘s development.

However, it is sad to say that most labours are still ignorant or uninformed about their basic

working rights and benefits provided to them by law. There have been quite a number of cases

reported with regards to labour exploitation. While some may be ignorant, others do not know how

or where to lodge complaints against their employers. The trade unions function to educate and

represent the labours but only seventeen percent (17%) of the workforce are unionised. The majority

of the labours, who are non-unionised, are subjected to abritary decisions and authority of their

employers. Only a handfull of employers are conscientious and follow the labour laws in the terms of

contract they set with their employees, thus resulting in exploitation.

The labour law and the legal redress mechanism are set up to guarantee both the employer

and employee certain basic rights and benefits in order to realise industrial peace and social

progress. In this law review, the law protecting labour rights and the legal redress mechanism will be

discussed. It is also the modest purpose of this law review to gauge the effectiveness of the law and its

enforcement, besides proposing solutions to its problem.

Labour rights are mainly conferred by the Employment Act 1955 in Malaysia. Labour is

most productive where its wages are reasonable. Poorly paid labour is inefficient labour. Wages is a

pledge of payment of monetary remuneration by an employer for labour or service according to the

contract of service on an hourly, daily or piece work basis and often included bonuses, commission

etc. According to Section 2 of the Employment Act 1955, ―wages‖ means basic wages and other

payment in cash payable to an employee for work done in respect of his contract of service. Note how

ever the Act is silent as to the minimum amount of wages payable to employee.

An employer is prohibited from making any deduction from the wages of an employee,

unless permitted by the Employment Act 1955. it shall be lawful to make deduction on the following

such as, deduction on the request of the employee, deduction for overpayment made by the employer

and for the deduction for indemnity due to the employer by the employee. The Employment Act 1955

however gives the power to the Director General to allow deduction by the request of the employee

for payments into any provident fund, employer‘s welfare scheme and insurance. This Act also

“Apart from the country’s natural

resources, Malaysia’s most important and

valuable asset for growth and

development still lies in its workforce, the

labour”.

protects employees by entitling them overtime wages even the contract of employment is silent or

contrary to the overtime wages.

In the case of Eng Giap Public Motor Bus Co. Ltd v Gan Eng Keng & 36 ors, the Federal

Courts held that the respondents were entitled to wages of 2 hours overtime per day though there

was no any written contract which permits such between the appallent and their employer. Under

Section 59 and 60 of the Employment Act 1955, an employee is entitled to know the rest days and also

when he is entitled to double wages, when he works on rest days on the employer‘s request. In the

case of Sundram v. Veemah & Ors, the respondent, a toddy tapper, lodge a complaint on behalf of

himself and his 12 fellow employees for rest day pays and holiday pay. The High Court confirmed

that the refusal of the employer to issue the appellant back wages of rest day pay and holiday pay is a

clear cut violation of Section 59 and 60 of the Employment Act 1955. The court confirmed the order

of the labour office that a sum of $3,366 being rest day pay at $6 for 44 days per person, be paid to

the respondents.

The Employment Act 1955 also provides certain safeguard to female employees. Section 34

of the Act prohibits an employer from employing female employee to work in industrial or

agricultural undertakings between the hours of ten o‘clock in the evening and five o‘clock in the

morning. No female employee can commence work for the day without having a break of eleven

consecutive hours. However, the Director General may in any particular case exempt any female

employee from such restriction subject to any condition he may impose. Any person aggrieved by

such decision may appeal to the Minister within 30 days of such condition or decision, and the

minister may make such decision or alteration or removal of the condition as may appear just and

fair to him. No female employee shall be employed in any underground work.

Every female employee is entitled to maternity leave of sixty consecutive days, also referred

as eligible period, in respect of each confinement. She shall be entitled to receive from an employer

for each day of the eligible period a maternity allowance at her ordinary rate of pay for one day or at

the rate prescribed by the minister pursuant to Section 102(2)(c), whichever is the greater, provided

that she was employed at any time during the four months immediately preceding her confinement

for a period of or periods amounting in the aggregate to, not less than 90 days during the nine

months immediately preceding her confinement. A female employee employed on a monthly rate of

pay shall be deemed to have received her maternity allowance, if she continues to receive her

monthly wages during her abstention from work during the eligible period without abatement in

respect of such abstention.

Moreover, the Malaysian Industrial Relation Act 1967 clearly recognizes the need to have an

effective mechanism for speedy and equitable settlement of industrial disputes, often referred as

trade disputes. Thus, the preamble of the Act states: ―An Act to provide the regulation of the relations

between employers and workmen and their trade union and the prevention and settlement of any

differences or disputes arising from their relationship and generally to deal with trade disputes and

matters arising therefrom.”

In Malaysia, there are four preliminary stages to settle a trade dispute which is direct

negotiation, conciliation, mediation and arbitration by the industrial court. However the decision of

the Industrial Court is not final and can be reviewed by the civil court if agreed by the parties in

dispute. When a dispute arises between an employer and employee/trade union, the parties involved

can try to settle the dispute through direct negation, following grievance procedure and if fail, the

dispute will be referred to the Industrial Relations Office for reconciliation. If this step fails the

Minister Labour will try to resolve the dispute via mediation (where the minister acts as a mediator)

and if it remains unsuccessful, the dispute will be refer to the Industrial Court. However for the

purpose of this publication, only the arbitration and the appeal to civil courts will be discussed in

depth.

Section 30(5) of the Industrial Relation Act 1967 states that the purpose of the Industrial

Court is to resolve trade disputes as simple as possible. This point was emphasize by the Court of

Appeal in the case of Harris Solid State where Gopal Sri Ram J.C.A held that Section 30(5) imposes

duty upon the Industrial Court to have regards to the substantive merits of the case rather than

technicalities. It also requires the court to decide in equity and conscience. In exercising its

jurisdiction in arbitration, the Industrial Court can settle the following trade disputes, namely;

1. Recognition of a trade union by the employer

2. Collective bargaining on the terms and conditions of employment.

3. Non-compliance

4. Breach of contract

5. Dismissals/termination

6. Constructive dismissal

The salient feature of the Industrial Court is it pushes to resolve disputes in a fast and

affordable way, without being constrain with technicalities. Hence when a trade dispute is referred to

the Industrial court, the court shall have power to grant award (including interim awards) relating to

the dispute to the grieving party without any undue delay. Under Section 30(2) of the Industrial

Relation Act 1967, the Industrial Court is required to make award where practicable within thirty

(30) days of the date of reference to it of the trade dispute. The Industrial Relation Act 1967, states

that the Industrial Court shall settle disputes according to equity and conscience without regards to

technicality and in making award, shall not be restricted to the specific relief or demands claimed by

the parties in the course of trade dispute but also may include in the award any matter or thing

which it thinks necessary or expedient for the purpose of settling trade disputes. However, if the

dispute is not solved, Section 33A of the Industrial Relation Act 1967 allows parties to the dispute to

apply to the civil courts (High Court) for decision on the question of law.

The Industrial Relation Act 1967 provides for the settlement of disputes by the Industrial

Court, which is a tribunal and not a court of law. However, Industrial Court awards are not final

and conclusive. The High Court is empowered to exercise judicial review over these awards. The

High Court is empowered to exercise judicial review over these awards. Section 33A of the Industrial

Relation Act 1967 on the other hand allows the parties to apply to the High Court for the decision on

the question of law. This section provides;

(1) Where the Court has made an award under section 30 (1) it may, in its discretion, on the

application of any party to the proceedings in which the award was made, refer to the High Court a

question of law -

a. which arose in the course of the proceedings;

b. the determination of which by the Court has affected the award;

c. which, in the opinion of the Court, is of sufficient importance to merit such

reference;

d. the determination of which by the Court raises, in the opinion of the Court,

sufficient doubt to merit such reference.

This section applies to a situation where any party to the award seeks the Industrial Court to

refer certain questions of law to the High Court for determination, and once such questions are

determined, the High Court would remit them to the Industrial Court for its final reward.

The issues that arise are, whether the Industrial Court has an unfettered discretion on this

matter. The word ―in its discretion‖ has been interpreted narrowly by the court. In the case of Hotel

Equatorial v National Union of Hotel, Bar and Restaurant Worker, the Federal Court decided that

the discretion conferred by Section 33A is not an unfettered discretion. In the exercise of its

discretion, the Industrial Court must have regards to the four paragraphs enumerated in Section

33A of the act. The Federal Court emphasizes that if the four matters in the paragraphs existed, the

industrial court should refer the question of law for determination by the High Court.

Other than Section 33A of the Industrial Relation Act 1967, there is no other provision

which allows parties to the employment disputes to appeal to higher civil courts. Nonetheless, with

the power to review decisions made by quasi-judicial bodies given to the High Court in Section 25 of

the Courts of Judicature Act 1964, and the strict approach on ouster clause, the civil courts are

providing sufficient supervision on the Industrial Court.

On the part of the executive body, the Ministry of Human Resource is particularly put in

charge of protecting labour rights besides promoting it. Amongst the Ministry‘s missions is to

encourage, maintain conducive and harmonized industrial relation between employers, employees

and trade unions for the nation's economic development and wellness of people. It also strives to

uphold social justice and ensure harmonious industrial relations through solving industrial dispute

between employer and employee and awarding collective agreement. The Ministry plays a very

important role in updating and implementing labour policies and law in order to create a

harmonious working environment. It serves as a platform where industrial dispute between

employer and employee are efficiently manage and resolve independently.

The Labour Department was specifically formed in 1912 under the Ministry of Human

Resource to handle matters related to labour affairs. Prior to 1960's, the objective of the department

is to protect the interests and welfare of workers in mining and plantation sectors. However, it has

since change to be more focused on protecting and promoting the interests and well-being of the

industrial community. Through this department, the public at large or employees may lodge

complaints against their employer should their rights be infriged. The department is responsible to

look into, investigate and resolve complaint once they received them. In order to minimise the

procedures and to save time, complaints can be made through various channels such as online,

telephone, walk-in or by mail.

In its mission to protect labour rights, an Advisory Services and Labour Education

Programme was introduced in early 1992, aimed at implementing promotional measures in

delivering advisory and counselling services in a proactive manner whereby departmental officials

will meet with clients. The programme provides advisory and educational services to the employee/

employer in order to create awareness among them of their rights and responsibilities under the

labour laws enforced by the department.

The Labour Court which handles claims by worker against their employers is a mechanism

implemented by the Labour Department. The Court‘s objective is to hear and settle claims in speedy,

simple and cost effective way. As such, employees as well as employers would be able to save their

time and money. However, it is to be noted that this mechanism is not final as the aggrieved or

dissatisfied party may appeal against its decision in the High Court which then falls within the

judiciary body.

Despite the fact that Malaysia has enacted a number of laws to protect the labour rights, it is

undeniable that the level of protection is still unsatisfactory. The main problem does not seem to lie

on the enforcement of the law itself nor is it the redress mechanism that fail to compensate them, but

it is the lack of concern and ignorance of the labours to protect themselves. While it is true that some

may be ignorant, some are too afraid to lodge complaints against their employer as they would

probably lose their job. Therefore, most of the exploitations and infringement of labour rights goes

unreported and employers continue to exploit their employees.

It is our hope that there will be more trade union established to protect the labour rights.

Once these labours are unionised, employers would always think twice before exploiting their

employees. Besides, more campaigns promoting labour rights should be held especially in the

industrial areas where the labours are concentrated.

Protection on Labour Rights in Thailand

By: Purachate Manussiripen

Sakolrat Srangsomwong

I. INTRODUCTION

Definition of ―protection on Labour rights‖

Protection on labour rights refers to the setting up of the minimum standards for employees‘ work

condition. Since many problems related to labour nowadays often occurred from the ineffective

enforcing protection on labour rights, the objective is to protect the employees from over working,

relieve their sufferings and lessen all problems relating to labours.

History of labour protection in Thailand

Although Thailand had law concerning labours, there had been no specified law regulated labour

rights or the relationship between employers and employees until after World War II.

The early laws concerning labours were more likely to establish the power of employers to control

their employees and ruled in favour of the employers. However, the evolution of the law has been

gradually improved. In B.E. 2447, the first basic law on the minimum standard of wage was

introduced and other laws followed including: the law which regulated on foreign labours‘

requirement and the law which controlled the use of foreign labours.

After the enforcement of Thai Civil and Commercial Code in B.E. 2472, specified laws on labour

have become more visible. The first specified law on labour issue was introduced in Book III Chapter

VI Section 575-586. The motivation for the law to be enforced was mainly because of the

transformation of Thai economical transformation from agricultural economics to industrial

economics.

The transformation of Thai economical system created many labour problems because the nature of

the two systems was totally different. The agricultural one was called the family system which had no

rule to follow and depended on relationships between people, while the industrial one was chiefly

about investments and profits. To deal with all the problems; therefore, the new law was drafted to

be enforced.

“Beside the economical

problem which led to the

development of labour

protection law, there were also

statistics showed that many

employees’ health was affected

because of the working

circumstances”

Changing to democratic country in B.E.2475, Thailand developed many new policies including

labour: Office of Employment Service was set up to help the unemployed. The attempt to legislate

labour protection law was risen; however, no practical law had been enforced yet.

After World War II, many associations gathered altogether and claimed for labour protection and

also an organization to be responsible for any issues related to labour. As a result, Department of

Labour in Department of Public Welfare was established.

In B.E.2499, when Labour Act B.E.2499 was enforced Thailand finally achieved the goal to legislate

the law on labour protection. There were regulations about working hours, day offs, medical cares,

wages, overtime wages, reparations, etc. Nonetheless, no matter how great this law was, it lasted only

for 18 months.

Fortunately, many laws had been developed since then, for example:

Employment Service and Job Seekers Protection Act B.E.2511

Labor Relation Act B.E.2518.

Beside the economical problem which led to the development of labour protection law, there were

also statistics showed that many employees‘ health was affected because of the working

circumstances. Hence, a need to have the standard for employees‘ safety has brought about many

ministerial regulations.

Furthermore, there was an improvement of the administration of justice, labour court was

established by the Establishment of and Procedure for Labour Court Act B.E.2522. In B.E.2528,

Employment Service and Job Seekers Protection Act B.E.2511 was denounced by Employment

Service and Job Seekers Protection Act B.E.2528 to improve the regulations especially that about

employment agency.

Not only the legislative that had been developed, the administrative also took part in the development

of its structure to improve the labour protection. In B.E.2545, Ministry of Labour and Social Welfare

was changed to Ministry of Labour in order to enable any action or decision about labour

independently.

In conclusion, Thailand has developed labour protection gradually since when it was absolute

monarchy. Although sometimes there were problems about the sufficiency of law, the attempt to

legislate efficient laws has always been seen.

II. CURRENT SITUATION

Legislative action

Thailand has adopted the idea to protect labour rights in Thai legal system by applying many

international provisions, such as Universal Declaration of Human Rights (UDHR)43

and many

43

UDHR Article 23 :

(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions

of work and to protection against unemployment. (2) Everyone, without any discrimination, has the right to equal pay for equal work.

(3) Everyone who works has the right to just and favourable remuneration ensuring for himself and

his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social

protection.

(4) Everyone has the right to form and to join trade unions for the protection of his interests.

conventions of International Labour Organization (ILO), of which Thailand is the founder and

current member, into the national laws.

In our municipal law, the Constitution has created the idea and intention to protect labour rights and

reassure the rights and liberties in occupation in section 4344

and section 4445

. These sections do not

rule any direct legal sanctions. However, by stating the rights and liberties in occupation in the

supreme law of Thailand, it has a benefit of making these constitutional rights as supreme as the

constitution itself; government cannot enact the laws in violation of these rights and the employer

cannot claim general rules of law such as freedom of will to deprive these rights from the employees.

Applied the concept of protecting labour rights from the Constitution, the legislature legislated

Labour Protection Act (No.3) B.E. 2551, which is the key and fundamental law to protect labour

rights. This law establishes the minimum rights of employees working in Thailand, covering working

hours, overtime, holidays, sick leave, maternity leave, annual leave, work rules, change of work

place, welfare committee, termination and severance and other basic employee rights. This law

applies to all "employers" employing "employees" in Thailand. Under the act, "employer" is defined

broadly and can include persons who do not have a direct employer-employee relationship in the

traditional sense. Notably, "employer" includes persons designated to act on behalf of an employer,

authorized directors of an employer and some firms that provide management services within the

scope of the employer's responsibility, so the damaged employees will have more choices in claiming

responsibility from the employers according from the definition and scope stated in this law. By

enacting this law, the minimum standards of labour protection are required to all employment

contracts, which means both parties are able to make the agreements out of the provisions of law if

those terms in the agreements are favorable to the employees and do not violate minimum

requirements stated in the law.

The Labor Protection Act also contains provisions relating to protection of use of female and child

labor such as employers shall treat male and female employees equally, it is prohibited for the

employer, supervisor or inspector to commit sexual harassment against employees who are female or

children, pregnant female employee is entitled to maternity leave for a period of time with salary

payment. It prescribes also the interventions by government officials in providing protection to

labour so as to ensure fairness and sound occupational health for the maximum benefit of both

employers and employees, which will ultimately be beneficial for the national development.

The Act also regulates an employer employing 10 or more employees shall have work rules in Thai

languages and shall file the same with the Labor Department. The work rules shall contain

particulars for example: working days, regular working hours and rest period, discipline and

disciplinary actions, procedures for submission of grievance.

44

Constitution of the Kingdom of Thailand B.E.2550 Section 43

A person shall enjoy the liberties to engage in an enterprise or an occupation and to undertake a fair

and free competition.

The restriction on such liberties under paragraph one shall not be imposed except by virtue of the law

specifically enacted for maintaining the security and safety of State or economy of the country, protecting the

public in regard to public utilities, maintaining public order and good morals, regulating the engagement in an

occupation, consumer protection, town and country planning, preserving natural resources or the environment,

public welfare, preventing monopoly, or eliminating unfair competition.

45 Constitution of the Kingdom of Thailand B.E.2550 Section 44

A person shall enjoy the right to work safety and welfare and to living security irrespective of whether

he is employed or unemployed in accordance with the provisions of the law.

Apart from that, the legislature also set the rules concerning this issue in many laws.

The provisions about employment contract in Civil and Commercial Code46

, which rules on

the definition of the employment contract, the formation, wages, term of the contract, duties

of the employers and employees, the assignment and the termination of contract.

The Recruitment and Job-seeker Act (No. 3) B.E. 2544, which Expand job seeker protection

approaches and activities to ensure fairness and appropriate assistances when job seekers

are in trouble, and Establish requirements for overseas employment service providers.

Labour Relations Act B.E. 2518, which aims to set good understanding and successful

reconciliation between employers and employees, which will result in a peaceful atmosphere

and co-existence in the industry by enhancing favorable employer-employee relationship

and setting rules in dispute resolution.

Workmen‘s Compensation Act B.E. 2537 requires employers to pay annual contributions at

the rates of 0.2-1% of wage depending on risk levels of any given business. This

contribution is to be used for paying workmen‘s compensation in respect of work-related

injury, or sickness, or loss of organs, or invalidity, or death, or lost to employees who are

insured persons. All insured persons will be eligible to receive medical expenses,

compensatory income for incapacitated period, funeral allowance, or rehabilitation

expenses depending on the seriousness of injuries.

Social Security Act (No.3) B.E. 2542, which sets aside supporting funds and compensation

and establishes the securities to the employees and other people who are injured physically

and mentally ill, disabled and died from the circumstances apart from those in employment

contracts including pregnancy, retirement and unemployed status.

Executive action

The Department of Labor Protection and Welfare under the Ministry of Labor and Social Welfare is

charged with administration of these rights. The Department and Ministry issue regulations

clarifying and sometimes modifying the rights under the Labour Protection Act. The vision of this

department is to formulate and develop labour standard with efficient and effective labour

management for international acceptance. This department is responsible for five major tasks

concerning labour ,which is

Labour relation : encourage and develop labour relation system suitable to and in

line with the economy and social situations , protect any conflict that may arise and

as well as strengthen a participation among an employer and an employee

Labour welfare : promote and develop suitable labour welfare provision so as to

improve the quality of workers‘ life

Labour standard development : formulate a national labour standard in

compliance with international standards

Labour protection : ensure suitable and fair treatment for both formal and

informal workers

Occupational safety , health and environment : promote , develop and supervise on

occupational safety , health and environment in line with a national labour standard

in order to reduce an occupational injury rates

Regarding the wages, Labour Protection act rules on section 5347

about non-discrimination rules

against some workers on their sex or age. If the characteristics of the work are the same as other

46 See, Civil and Commercial Code Section 575 to 586 47 Labour Protection Act B.E.2551 Section 53 : The employers shall prescribe wages, overtime pay, holiday pay and holiday overtime pay to employees equitably for work which has the same

workers‘, the equal works must get equally paid. However, the minimum wage rate is not issued in

the law due to currency fluctuation, so labour protection law rules that issuing the minimum wage

rate is the duty of Wage Committee, which equally includes the representatives from the

government, employers and employee, to issue the Ministerial Regulation concerning the minimum

wage rates. By this, labour rights on wages are guaranteed.

Judicial action

According to Act on Establishment of Labour Court and labour procedures, which aims to set the

procedure dealing with labour disputes due to the special characters of the dispute under labour

laws. This law empowers the judge and both parties to bring the specialists who know the problem

and real work conditions to the case. In case of legal dispute arising, the employee may bring claim

against the employer at the Central Labor Court in Bangkok or Provincial Labor Courts

within Thailand as the first instance labor court.

characteristics and quality and when the amount of work is the same, regardless of whether those employees are male or female.

By: Charlotte S. Silungan

WORKERS SECURITY OF TENURE AND DUE PR OCESS: WAS IT

NEGLECTED OR PERSECUTED? ―Any necessary work that pays an honest wage carries its own honor and dignity‖

-W. Kelly Griffith

INTRODUCTION

One‘s work does not only guarantee a person that just compensation equivalent to the services he has

renders is given to him, but ultimately, it give him his main source of living, enabling him to support

himself and his family. This is especially true when a person has no other property to rely on, making

his job his only possession which could assure him of decent human existence. For these reasons, his

job is entitled to great protection. Thus it has been repeatedly emphasized that an employee may only

be terminated from his work upon observance of due process, both substantive and procedural.

―Due process must be observed in dismissing an employee because it affects not only his position but

also his means of livelihood. Employers should, therefore, respect and protect the rights of their

employees, which include the right to labor.‖ 1

An employee‘s employment may only be terminated for causes specifically provided for in the law. In

addition, the employee is entitled to notice and hearing in cases of termination for just causes and to

notice, in case the dismissal is for an authorized cause. on the other hand, the company is entitled to

management prerogative s and so long as these are ―exercised in good faith for the advancement of

the employer‘s interest and not for the purpose of defeating and circumventing the rights of the

employees under special laws or under valid agreements, the Supreme Court will uphold them.‖2

The value of one‘s job is no less recognized by our Constitution. Deeply enshrined as a State Policy,

―the State affirms labor as a primary social economic force. it shall protect the rights of the workers

and promote their welfare.‖ 3 In addition, Article XIII of the Philippines Constitution guarantees

protection to labor, while the same recognizing the rights and joint responsibility of both labor and

management, to wit;

Section 3. The State shall afford full protection to labor, local and overseas, organized and

unorganized, and promote full employment and equality of employment opportunities for all.

It shall guarantee the rights of all workers to self-organization, collective bargaining and

negotiations, and peaceful concerted activities, including the right to strike in accordance with law.

They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall

also participate in policy and decision-making processes affecting their rights and benefits as may be

provided by law.

“.. an employee may

only be terminated

from his work upon

observance of due

process, both

substantive and

procedural”

The State shall promote the principle of shared responsibility between workers and employers and

the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce

their mutual compliance therewith to foster industrial peace.

The State shall regulate the relations between workers and employers, recognizing the right of labor

to its just share in the fruits of production and the right of enterprises to reasonable returns to

investments, and to expansion and growth.4

These provisions of the constitution clearly guarantee the right of an individual to security in his

employment. However, such security of tenure does not mean that a person has a perpetual right

over his job. The right of the employer to sanction or dismiss an employee is likewise recognized as a

management prerogative, provided that such action shall be in accordance with law. ―The right of an

employer to freely discharge his employees is subject to the regulation by the state, basically the

exercise of its paramount police power. This is so because the preservation of the lives of the citizens

is a basic duty of the state, more vital than the preservation of corporate entity.‖5

EMPLOYEE DISMISSAL AND DUE PROCESS: THE CHANGEABLE WIND:

There is no Dispute as to what constitutes the substantive due process which provides for the causes

of dismissal since the law expressly enumerates the grounds for dismissing the employee and this is

primarily a factual issue to be determined by the courts. The real issue is with respect to procedural

due process. Diverse opinions have been laid down by the Supreme Court, each case presenting

different factual circumstances, laying sown different doctrines and providing for numerous

dissenting opinions.

The latest doctrinal decision of the Supreme Court on this issue is the case of Agabon v. NLRC.6

this

decision reverts back to the doctrine in the 1989 case of Winphil v. NLRC, 7 thus abandoning the

principle laid down in Serrano v. NLRC.8

These three cases all sustained the validity of a dismissal for a just or authorized cause albeit without

notice and hearing. The difference lies on the sanction or penalty imposable upon the employer for

his non compliance with the procedural requirements in dismissing his employee. The Serrano case

provided for the payment of back wages to the dismissed employee since the dismissal, though not

illegal, is ineffectual. The Agabon and Wenphil cases on the other hand, provided for the payment of

nominal damages and indemnity, respectively, in accordance with the circumstances of the case.

However, to all these cases, there are strong dissents. Disagreement not on the how much should be

given, but on the issue of whether or not the absence of ―due process‖ could really be compensated

with any monetary value.

The issue lies on the effect of the non observance of procedural requirements in effecting dismissal.

Are the procedures parts of due process? If affirmative, what is the consequence for their non

observance? Will they invalidate the dismissal or should monetary sanctions to the employer suffice?

The following provisions provide for the procedural requirements:

Article 277, paragraph (b) 9 provides:

Subject to the Constitutional right of workers to security of tenure and their right to be protected

against dismissal except for a just and authorized cause and without prejudice to the requirement of

notice under Article 283 of this code, the employer shall furnish the worker whose employment is

sought to be terminated a written notice containing a statement of the causes for termination and

shall afford the latter ample opportunity to be heard and to defend himself with the assistance of his

representative if he so desires in accordance with company rules and regulations promulgated

pursuant to guidelines set by the Department of Labor and Employment.xxx

As to the effect of non compliance with these procedural requirements, the Supreme Court has laid

down various jurisprudence, laying down different doctrines which intend to balance the right of the

employer to terminate he employment of an employee if just and or authorized causes are present,

and the right of the employee to twin requirements of notice and hearing is effecting the dismissal. In

the Process, the Supreme Court has dealt extensively with the Due Process Clause, touching on other

matters such as Social Justice and the concept of Damages. It is in the light hat the three cases above

mentioned will be discussed.

Before the Wenphil case in 1989, the rule was that a dismissal or termination, even if based on a just

or authorized causes, if made without notice to the employee, is illegal, thereby making the employee

entitled to reinstatement and back wages. However this was abandoned in the Winphil case. In this

case, it was held that the dismissed employee, even if he was not given any notice and hearing, was

not entitled to reinstatement and back wages because his dismissal was a just cause, having

committed grave misconduct and insubordination. The infraction of the notice requirement only

gave rise to a sanction to the employer, to indemnify the employee in the amount of one thousand

pesos.

This was abandoned in the Serrano case, wherein it was held that the non compliance f the

procedural requirements, provided the dismissal is for a just and authorized cause, does make the

dismissal illegal but renders it ineffectual. Therefore the employer is liable to pay full back wages

from the time the employment was terminated up to time it is judicially determined that the

termination is a just or authorized cause. The high Court revisited the Winphil doctrine also known

as ―Belated Due Process Rule‖, due to the fact that after its rendition, cases of illegal dismissal

continued to swamped the dockets since the indemnity which through the years ranges from one

thousand pesos to ten thousand pesos is too small an amount to dater the employers from dismissing

their employees without due process. Since in the Serrano case , the Liability is for the payment of

full back wages, the Supreme Court thought that it would prevent employers from their ―dismiss

now, pay later‖ habit.

Thereafter the Agabon case laid down the present doctrine on the effect of non compliance by the

employer of the twin requirements of notice and hearing. In this case, the Supreme Court held that in

accordance with Article 279 of the Labor code, the only way that the termination of employment will

be held illegal is id it is not grounded on a just or authorized cause. Hence a dismissal for a just

cause, even without compliance with the 2 notice requirement and hearing, just like in this case, is

still valid and legal. the only effect is that the employer is subjected to pay nominal damages, in this

case in the amount of Thirty thousand pesos, for the non compliance with statutory due process and

for the vindication and recognition of the employees right thereto. This ruling brings us back to the

doctrine enshrined in the Winphil case and abandons the rule laid down in the Serrano case. The

only difference id that in the Winphil case, considering that it was promulgated in 1989, speaks of

one thousand pesos as indemnity while in the Agabon case, the amount of nominal damages was

already increased to thirty thousand pesos, although both cases recognize that the factual

circumstances of each case determine the actual amount that will be awarded.

JUDICIAL ACTIONS

The Higher Court discussed Constitutional Due Process vis- a vis Statutory Due Process.

Constitutional Due process is that which comports the deepest notions of what is fair, right and

just.10

it is a Constitutional restraint on the legislative as well as on the executive and judicial powers

of the government provided by the Bill of rights.

On the other hand, the Supreme Court held that the due process under the Labor Code, like

Constitutional Due process, has two aspects: substantive, i.e., the valid and authorized causes of

employment termination under the Labor Code; and procedural, i.e., the manner of dismissal.

Breaches of these due process requirements violate the Labor Code. Therefore, statutory due process

should be differentiated from failure to comply with constitutional due process. the former protects

employees from being unjustly terminated without just cause after notice and hearing while the

latter protects the rights of an individual from the government and assures him of his rights in

criminal, civil and administrative proceedings.

Social Justice Clause may Not Justify the Acts of the Employee

The Social Justice Clause of the Constitution may not be used to protect an employee who is clearly

guilty of conduct violative of Article 282 of the labor Code. Justice in every case should not be

presumed every case of illegal dismissal would automatically be decided in favor of labor, as

management has rights that should fully be respected and enforced by the court. As independent and

indispensable partners in nation building, labor and management need each other to foster

productivity and economic growth; hence the need to weigh and balance the rights and welfare of

both employer and employee.

The ten years experience with Winphil is not a happy one considering that unscrupulous employers

have abused the Winphil ruling. They dismissed the employees without notice as a general rule when

It should be the exception. This defeats the purpose of the pre dismissal notice since employers were

too willing to pay an indemnity for their violation. The Winphil indemnity doctrine has proved to be

highly inimical to the interest of our employees, and the solution is to return to the pre-Winphil rule

where a reasonless violation of the pre-dismissal notice requirement makes the dismissal of an

employee illegal and results in reinstatement. The Serrano ruling is more pernicious than Winphil

ruling since the majority view in Serrano declared that a violation of the pre dismissal notice

requirement does not even concern due process.

In the stream of ceaseless cases, the Supreme Court adhered to the doctrine that ―failure to comply

with the two notice rule makes the dismissal illegal and reinstatement or payment of separation pay

in order‖ 11

He also added that the High Court has consistently nullified, simply on constitutional

grounds, dismissal in violation of procedural due process, notwithstanding the absence of an express

provision of any statute. To uphold Winphil, Serrano and Agabon rulings, is to dilute the protection

to those who need it most despite the constitutional mandate which in the language of Justice

Cardozo speaks with ―a reverberating clang that drowns all weaker sounds.‖ The only one main

relief in cases of dismissal without notice and hearing is reinstatement.

EXECUTIVE ACTIONS

Private Due process has long been recognized and adopted in our jurisprudence. the

constitutional protection to labor, especially the right to security of tenure was not included in the

Bill of Rights which is directed to the State, but was included in the separate article entitle Social

Justice Human Rights. This strengthens the argument that the constitutional rights of labor should

be safeguarded against from both government and private parties. The rights of labor should be

protected whether the government or a private party is the culprit. A private person does not have a

better right than the government to violate en employee‘s right to due process. ―To be sure, the

violation of the particular right of employees to security of tenure comes almost always from their

private employers.‖ 12

The Executive Branch came with a deliberation on the need of wage hike. The Department

of Labor and Employment (DOLE) reported to President that the wage boards in a majority of the

country's regions have completed their wage deliberations and granted wage hikes to the minimum

wage workers in the private sector. Labor Secretary narrated that the affectivity of the wage hike is

based on Wage Order No. 14 issued by the Regional Tripartite Wages and Productivity Board, which

approved a P20 per day increase for minimum wage workers in private sector in the region.13

This is

to compensate the needs of the employees to sustain their basic needs. The executive also tries to

punish through Police Power, the employers who repeatedly abuse their discretion in management

prerogative and regulate the harmonious relationship between the employer and employee. The

employee does not go for the price for reinstatement. The policy of ―dismiss now, pay later‖ favors

the moneyed employers and is a mockery of the right of employees to Social Justice.

Our Government exercises police power to regulate and protect the rights of the employees

to security of tenure and due process against abusive employers. To an employee, a job is everything

and that dismissal id their lethal injection. Mere payment of money by way of separation pay and

back wages will not secure food on the mouths of employees who does not even have the right to

choose what they will chew. Work is the means of sustaining life and meeting essential needs.

Quoting Shylock, ―You take my life when you do take the means whereby I live.‖ 14

LEGISLATIVE ACTIONS

The Constitutional mandates of protection to labor and security of tenure may be deemed as self

executing, however, the legislature may still enact legislation to facilitate the exercise of powers

directly granted by the constitution, further the operation of such a provision, provide a convenient

remedy for the protection of the rights secured or the determination thereof, our place reasonable

safeguards around the exercise of the right.

The Congress, on 2008 enacted the Senate Bill 1576 15

, which was a purposely exempt

minimum wage earner in the private sector and government workers in Salary Grades 1 to 3 to pay

income tax. This act gave the employees the time to collect fully their salary. In 2009, the Congress

amended the Presidential decree 442 16

, which provides for the workers‘ right of tenure. The

Congress explained that since the passage of the Labor Code, there had been numerous

interpretations by the executive branch, through implementing rules, and by the judiciary, through

jurisprudence, on the provisions on security of tenure and regular employment extensively defining

and providing rules on the matter. The amendment of the Labor Code, they said, will create a

coherent and fair set of rules regarding the classification and rights of employees and prescribe clear

parameters on when the flexible forms of employment may be allowed. The bills clarify what

constitutes regular employment from the non-regular or flexible labor arrangements such as those

employed on casual, contractual, seasonal, project or ―extra‖ basis.

The Congress also enacted the Republic Act 8188 17

amending Republic Act 6727 which provides that

the employer concerned shall be ordered to pay an amount equivalent to double the unpaid benefits

owing to the employees: Provided, That payment of indemnity shall not absolve the employer from

the criminal liability imposable. Through these Bills the Government is trying to create laws

according to the mandate of the constitution, which protects the rights of the employees. Thus, the

welfare of the laborers was given preference rather than the employers. That equal protection and

due process must be given to our laborer.

CONCLUSION

The State recognizing the need to balance the rights of the employer and employee as far as

dismissals are concerned, laid down different doctrines, each having well considered justification for

the sanction that should be imposed. There must be a formula which will be reasonable on both sides,

sufficient to deter the evil of dismissing without due process, commensurate to the infraction done,

and completely not within the control of any of the parties.

Undeniably, protection to labor should be the paramount concern of the State. One‘s job is

his means of existence, an exercise of hid profession, and an expression of his passion. An individual

does not only gain monetary compensation from his work, likewise he receives fulfillment and

satisfaction. These things are enough to justify the high level of protection given to labor.

Social Justice is for all. though it is often said that those who have less in life must have more

in law, it is likewise true that all rights must be exercised with due regard to the rights of others, with

the ultimate end of rendering justice. As Domitus Ulpian said, ―Justice id the constant and perpetual

will to allot to every man his due.‖ 18

ENDNOTES

1. Rance, et. al. v. NLRC, 163 SCRA 279.

2. San Miguel Brewery sales v. Ople, 170 SCRA 25.

3. 1987 Philippine Constitution, Article II Section 18.

4. Id, Article XIII, Section 3.

5. Manila Electric Company v. NLRC, 175 SCRA 277.

6. S.R. Co. 158693, November 17, 2004.

7. 170 SCRA 69 (1989).

8. 323 SCRA 445 (2000).

9. The Labor Code of the Philippines, Article 277 (b).

10. Solesbee v. Balkcom, 339 U.S. 9, 19 (1950).

11. BLTB Co. v. NLRC, 209 SCRA 430, 439

12. Justice puno‘s Dissenting Opinion, Serrano v. NLRC, 323 SCRA 517 (2000).

13. http://www.op.gov.ph/index.php?option=com_content&task=view&id=2675&Itemid=2

14. The Merchant of Venice

15. http://www.senate.gov.ph/lis/bill_res.aspx?congress=14&q=SBN-1576

16. http://www.congress.gov.ph/committees/commnews/commnews_det.php?newsid=1048

17. http://www.chanrobles.com/legal4wagepenalty.htm

18. Domitus Ulpian, Roman Jurist (100 AD- 228 AD).

Protection on Labour Rights in Korea Kim Soo Yeon

Lee Ju Yeon

Ahn Hye Sung

Choi Som-e

Cho Eun Byul

I. Introduction

1. Definition

Workers are incorporated into the employer's corporate organization, and under the supervision of

the employers in deciding working time, place and system according to the company regulations.

Consequently, the relation about workers' offering their labor under the supervision of the

employers is 'subordinate labor relation', and the law related to this is 'the Labor Law'. '

2. Background

2-1. Amendment of the Principle of the Modern jus civile

The principle of social law was on the rise to promote real freedom and equality by amending the

principle of the modern jus civile causing formal freedom and equality.

The principle of absolute ownership was amended (ex: the charge of unemployment insurance) by

recognizing the basic legal rights of labor as opposed to the right of ownership. And the liberty of

contract was amended (ex: liaison between civil liability and criminal liability about legal industrial

action) by the government's enforcing standard of a labor contract. The principle of liability with

fault was also amended by recognizing the employer's liability without fault in workmen‘s accident

compensation insurance.

3- 1. The enactment

Koreas Labor Law was established after 1953 and most of them followed the Labor legislation. This

is because the conservative Chosun-Dynastys maintained its economic system for 30 years and was

suddenly occupied under America after liberation. As a result Korea couldn‘t experience the whole

process of the historic creation of Labor Law which the advanced capitalism had already gone

through.

3-2. Situations between the 60's-70's

3-2-1. Forming the base of labor movement

3-2-1-1. Situations of the times

After April 19 revolution which overthrew Seung-Man Lee's dictatorship, the military authorities

and conservative forces felt the crisis because of the rapid spread of social movements. Therefore

they institutionalized repression about labor movement of the nation by amending the labor law in

1963.

3- 2-1-2. Evolving labor law after civil action

Even under the oppressive military regime, Labor Law struggled to win the ‗right of strike‘, oppose

to the upbringing of the capital market, the labor union or the labor dispute against the investing

companies. These can be said the reform of the labor union as well as the political struggle is formed

“..As a result Korea couldn’t experience the

whole process of the historic creation of Labor

Law which the advanced capitalism had already

gone through”

up of national organization or the trade union. Also even though it is a limited level it shows there

was a certain amount of free activities.

Continuing with the Park-jung-hee regime the whole country was placed under martial law then

dissolved the National Assembly and established the Revitalizing Reforms system.

The countries regulation policy under the Revitalizing Reforms system became known as a sweeping

change.

The retrogressive revision of the Labor Law denied the ‗strike‘ which is the core of the three basic

labor rights. In addition the intervention of the country was strengthened against the relations

between labor and capital and tried to deny even the rudimentary labor union movement to

institutionalize the pressure of the labor movement.

Ⅱ. Current Situation of protection for labor right

1. Legislative action

1- 1. Right to work amendment written in constitution

1-1-1. Right to work

All people have a right to work; the nation has a responsibility of promoting worker's increase in

employment and of maintaining optimal wage.

1-1-2. labor condition legal principle

According to constitution clause 32-2, 'The nation will decide the duty and the following conditions of

work labor in accordance with procedures and methods determined by law',' and also according to

constitution clause 32-3, 'the standard of condition of work labor is that it protects the human dignity

by law,' it is said that working condition and its standard will be made under the legal principle.

1- 1- 3. Three rights for labor

1-1-3-1. Right of solidarity

This right protects the right of workers to unite within them in order to maintain or promote their

working condition. To improve working condition

The right of solidarity is one of the basic rights of work labor along with the right for collective

bargaining and the right for organized act.

1-1-3-2. The right for collective bargaining

This article which is protected by under the constitution clause 33 is closely related to the right that

allows organization which stands to maintain, promote the condition of work to negotiate. Thus labor

union and labor relationship mediation law is to confirm the right of collective bargaining by law, the

right of labor union to demand the right for collective bargaining and the duty of employer to accede

to the demand.

1-1-3-3. The right for organized act

This right protects the workers right to do an organized act such as strike, slowdown in order to

maintain, promote the condition of working. Thus works can justify their act of hindering the normal

operation of work by excluding the right of employer's command under the exercise of the right of

strike.

1-2. Labor Law

Labor Law is the totality of laws and regulations which let the worker secure the right of survival

with their works including Labor Standard Law, Industrial Security Law, Labor Association and

Labor Relation-Mediation Law, Labor Community Law, Repayment-Insurance for Industrial

Accident Law.

1-2-1. Labor Standard Law

1-2-1-1. The meaning of Labor Standard Law

It is the law enacted to secure and improve the basic life of worker and make balanced growth of

national economy according to the constitutional law.

1-2-1-2. The application of Labor Standard Law

Department of Labor prescribes a guide about the application of Labor Standard Law.

1-2-1-3. The security of practical effect of Labor Standard Law

The practical effect of the lowest labor standard should be secured by being observed as an enforcing

laws and regulations from the viewpoint of Labor Standard Law. Labor Standard Law is prescribed

as three aspects such as civil affairs, criminal cases and administration for the security of practical

effect.

1-2-1-3-1. The aspect of civil affairs

Under Article 22 of the Labor Standard Law, the labor contract which determined the condition of

labor short of the standard of Labor Standard Law will be invalidated and invalidated parts follow

the standard of Labor Standard Law.

Although the worker concluded violated labor contract, he/she can demand the performance of a

criterion determined by Labor Standard Law regardless of the contract in obedience to an effect of

the law. Also the worker cannot give up the right as a matter of Labor Standard Law.

1-2-1-3-2. The aspect of Criminal cases

Labor Standard Laws is the means of the security of the practical effect, having the penal regulations

against offender.

1-2-1-3-3. The aspect of administration.

Under article 104 of Labor Standard Law, by prescribing that the department of labor and

organizations of its position have supervisors to secure a criterion of the labor condition, the

guidance of administration is executed through pre-publication and supervision about the

observance of Labor Standard Law for the observance of the lowest labor standard. If the matters of

violation is exposed, those will be corrected and disciplined to prevent illegality.

The supervisor of labor has the right of visitation that the supervisor can make an examination of

business place to inspect whether they violated or not and the right of the demand on a document

presentation and a trial. Besides he/she can use the right of judicial police within the limits of

violation of Labor Relation Law. Also the supervisor of labor takes exclusive responsibility of a

criminal investigation concerned with the visitation, the document presentation, and the trial and

such like things based on Labor Relation Law.

1-2-2. Labor Protection Law

Labor Protection Law is the totality of a series of laws to improve and better various positions of

workers referring to the fact that the worker is weaker socially and economically than a capitalist

who possesses the means of production and user. It is ultimately the laws that remove disadvantages

of the worker which are attendant on the typical labor contracts.

2. Current State of Protection

2-1. Executive Actions for the Protection of Women's Right to Work

2-1-1. Restriction of Pregnant Women's Working Hours

According to the Labor Standards Act, Elastic working hour system is not applied to pregnant

women. Also, the same law restricts the working hour as the employer cannot make the pregnant

woman to work during the time from 10 pm to 6 am and in holidays except for the case that the

directly-concerned person and the Minister of Labor have permitted. Moreover, the employer cannot

make the pregnant women, who has not been over 1 year after their childbirth, work more than 2

hours a day, 6 hours a week, and 150 hours a year (after the working hour).

2-1-2. Restriction of Pregnant Women and The Whole Women's Working Environment

The employer cannot use the woman who is pregnant or has not been over a year after the childbirth

in the industry which is harmful or dangerous in the moral or sanitary aspect. Also, the employer

cannot make the women work in the mine.

2-1-3. Protection of Women's Right To Work with the Vacation

Protections for women's physical features are being exerted well in executive ways via the legislation

of vacation such as menstrual leave, maternity leave, and the stillbirth leave. The employer must

permit 1 day a week as the menstrual leave when the employee demands, and also the employer must

permit 90 days of protection leave during the maternity days to pregnant women. In this case, 45

days among that leave should be after the childbirth and if the employee who suffered a miscarriage

after 16 weeks pregnant demands the protection leave, the employer has to permit it according to the

presidential rule.

2-1-4. Protection of Maternal Instinct

To minimize the cases that the maternal instinct get harmed by the labor, if the women employee

who has the child under 1 year old demands, the employer has to permit paid-nursing-time 2 times a

day, (each of them should be more than 30 minutes). Also, except for the cases the presidential rule

decides, if the employee with a child less than 1 year old demands the maternity leave for raising the

kid, the employer should permit it.

2-1-5. Protection of Right to Work from Sexual Discrimination

The protection of women's right to work from the sexual discrimination is being done executively via

the legislation of Equal Employment Opportunity Law. It eliminated the vagueness by concretely

defining the discrimination, and protects the women's right to work executively by the bans of sexual

discrimination in different specific types -such as the recruitment, employment, retirement and its

age, and the removal of women- and the prohibition and prevention of sexual harassment that could

occur in the work after the employment.

2-2.The executive action for protecting Foreign Labor

2-2-1. Building some organization

In the ―act on foreign workers‘ employment, etc‖, there are some article that the Foreign Workforce

Policy Committee should be established under the control of the Prime Minister to deliberate and

decide important matters concerning the employment management and protection of foreign

workers.

2-2-2. Permission of foreign labor‘s employment

By ―act on foreign workers‘ employment, etc‖, an employer who has applied for domestic workers

and has been unable to hire workers can apply for permission to employ foreign workers to an

Employment Security Office under the conditions prescribed by the Ordinance of the Ministry of

Labor. Through this process, domestic workers‘ labor right and foreigner worker‘s right is granted

in a same time.

2-2-3. The executive action for foreign labor‘s financial safety

In the ―act on foreign workers‘ employment, etc‖, a business or the employer of a workplace hiring a

foreign worker must take out insurance or trust (hereinafter referred to as "departure guarantee

insurance") with the foreign workers as the insured or beneficiaries in order to provide severance

pay to foreign workers due to causes such as the departure, etc. of the foreign worker. In this case,

the employers should pay or entrust the payment of the monthly premium or trust amount. In

applying the National Health Insurance Act, an employer and foreign workers employed by the

employer should be regarded as the employer under the workplace-based policy holders,

respectively.

A foreign worker shall take out return cost insurance or trust in order to finance the costs of

returning to his/her home country. A business or the employer of a workplace prescribed by the

Presidential Decree in consideration of business size and industry-specific characteristics must take

out guarantee insurance for their foreign workers to cover them against overdue wages.

2-2-4. The executive actions for treating humanly

Carrying out education for foreign labor, unfair discrimination is banned. The organization which is

related to foreign labor can be applied by government. In case an employer intends to cancel labor

contract during the contract period or to reject the renewal of a contract after its expiration for

justifiable reasons, they can transfer to other workplace or work. It is also applied in case it is

deemed impossible to continue to work in a workplace because of business shutdown, closure and

other reasons not attributable to the foreign worker, changing to other workplace or work is

guaranteed.

2-3. The executive action for North Korean defector

2-3-1. Building organization

There are an organization named ―Council of measuring North Korean defectors‖ in the Ministry of

Unification for deliberating and mediating the policies about North Korean defector. In the council,

the council members considerate about protecting the object and helping the defectors settlement,

deciding the protecting period and determining yes or no protection, discontinuing and expiring

labor protection and safety protection. Next, prescribing ―Organization for supporting North Korean

defector‖ by law, through the organization, hiring support is carrying out.

2-3-2. Supporting to get employment and inaugurate an enterprise

The ministry of Unification should carry out the working practice for North Korean defectors who

want to be trained, and enforce employing protection for 2 years from first working point by actual

hiring days. This protection can be extended in 1 year. In addition, the Ministry of Unification can

supply the financial support to the employer who hires the protection object. The financial support‘s

extension is limited in 1/2 of the wage. The employer who hires the protection object should effort to

consider the status and career of the object in occasion of employment.

When it comes to the support for the settlement of agriculture, the Minister of Unification can

support the defectors who want farming by providing the training and lecture of agriculture or work

experience of agriculture according to the presidential rule.

In the case of special appointment system, It is defined by law that someone who wants, among the

defectors that used to be the public official or the service person, can be especially appointed to be

the Korean Army, regarding the past rank, job position or career in North Korea.

Finally, there are the regulation that says if North Korea defectors apply for the installation of

convenience enterprise or convenience facilities in the nation, local government and the other public

organization's public facilities, they have to give these defectors priority rather than any other

ordinary citizens according to criteria written in the president rule, so it regulates the support of

occupation.

3. Legal protection

3-1. Protection of females‘ labor rights (Overtime pay about menstrual leave: constitutional court

case no. 2006나60054)

Facts about major ruling are: first, legal characteristic of menstrual leave, second, whether employer

paid female employees for allowance about menstrual leave when they didn't use that system, third,

whether female worker renounce their wage claim when they didn't use the menstrual leave by

themselves.

Menstrual leave is ruled for women workers' health since female has different physiological feature

from male, also for protecting motherhood. Also, menstrual leave is in "the fifth chapter: female and

minors" at the Labor Standards, therefore, menstrual leave must be guaranteed thoroughly.

Workers who are females work if they didn't use leave during the menstrual leave, employer has to

pay overtime payment about menstrual leave as their work because they provided their labor when

they need not to work.

As the overtime pay about menstrual leave has characteristic of overtime pay since female workers

provided their labor during leave, it is not easy for them to forgive their wage claim that they just

didn't use menstrual leave.

3-2. protection of foreigners' labor right (case about foreign industrial trainee's labor right:

constitutional court case no. 2004헌마670)

Certain of articles which are Ministry of Labor's published ruling in 'Guideline about protection and

management of foreign industrial trainees' ruled that these followings are objects of protection:

prohibition of forced labor, guaranteeing minimum wage level, and the Occupational Safety and

Health Act. However, these articles accepted repayment of wage claim, annual paid leave and

protecting pregnant women as objects of protection.

In 2004.3, claimant who entered a country asserted that Ministry of Labor's published ruling

infringed their equal right by discriminating against foreign industrial trainees and constitutional

appealed whether this published ruling is unconstitutional.

Then the Constitutional Court ruled that Ministry of Labor's published ruling about this case is

unconstitutional in this case.

First, Right to work means 'right about work place' and also this involves 'right about surroundings'.

Therefore, we can't deny their independence of basic human right simply because they are foreign

workers.

Second, if industrial trainees are in the real labor contract which they provide their labor under the

supervision and get rewards, it is not easy to find reasonable legal basis that major facts of the Labor

Standards are not applied to foreign industrial trainees.

In line with Labor Standards Article 5 and 'International Rule about UN‘s economical, social and

cultural right' Article 4, to circumscribe ‗right to enjoy equal working condition about equal worth

of work‘ has to be deal with law. Then it goes against principle of deferring law since this is ruled in

administrative rule.

The government abolished the foreign industrial trainee system on 2007. 1. 1 and the government

adopted the employment permits system. The employment permit system guarantees the foreign

workers' basic human rights of the Labor Standards such as severance pay, vacation, and so on. So

this point of view, guarantee foreigners' right to work is already improved in institutional level.

Generally, labor law is ruled for removing labors‘ disadvantage. That is, labors are weaker than

capitalists who have social and economical means of production, so, it is saying a series of law system

for improving their social status.

Ⅲ. Conclusion

There is security of right to live in protection of labor right, but protection of labor right underwent

intrinsic transition based on historic background in Korea. Korea underwent colonization reign by

Japan for 30 years when Korea didn't complete economical and social development from feudal

society to modern society. In the wake of colonization reign, Korea suffered trusteeship by America.

These historic backgrounds hindered the development for protection of labor right. However, Korea

raised protection degree quickly. Korea legislated minimum standard of working conditions in 1948

and the act for protection of labor right which states something more than this law should be decided

by laborers, but the labor right was highly limited by undemocratic regimes, dictatorship, military

regime and the principle of ―National security first‖. The history of Korean labor right repeated

retreat because of these situations, but there was a movement to revision of labor law. Moreover,

Korean labor law which has repeated revision and establishment shows us considerable development

in constitution, law and special law.

As labor right is defined as the right of citizens to work, Korea protects labor right, not by regular

law, but by the Constitution, so the interlude of the right is strictly assured; article number 32 and

article number 33 of Korean Constitution are the provisions of the right to work, law court principle

and labor's three primary rights; right to independent association, right to collective bargaining and

right to collective action. Especially for labor's three primary rights, it is very meaningful that the

law is interpreted as the right to live, so the matter came able to be assured in the Constitution, as it

is the law is to enhance working condition. Labor laws other than the Constitution, to protect labor

right, are the Labor Standard Act, the Industrial Safety and Health Act, labor union or the National

Labor Relations Act, the Labor Relations Board Law, the Industrial Disaster Compensation

Assurance Act. Among these law, the Labor Standard Act regulates overall Korean labor law with

great deal. The Labor Standard Act is considered as enforcement law, and regulated in three aspects;

civil case, criminal case, and administration. Not only the extensive protection of labor right written

above, some remarkable condition of labor right protection in Korea can be found within under-

ages, women, the physically challenged, foreign workers, North Korean Refugees, suitors, and elders.

Authors:

Protection of Labour Rights in Japan

By: Atsushi FURUSAKA

Takashi KAWATO

Seisuke OTSUKA

Table of contents

I: Introduction

Written by Seisuke Otsuka

II: Historical Background

Written by Seisuke Otsuka

III: Current Administrative and Legal Discussion

Written by Takashi Kawato

IV: Judicial Actions

Written by Atsushi Furusaka

V: Conclusion

Written by Takashi Kawato

“Japanese-style employment

system is said to have three

specific characteristics, that

is to say, “lifetime

employment (shuushin-

koyou)”, “seniority-based

wage system (nenkou-

joretsu)”, and “labor union

organized on a company

basis (kigyoubetsu-kumiai)”

I: Introduction

In this part, we would like to explain briefly about the Japanese-style employment and how it has

developed from the bubble economy during the 1990‘s in Japan.

General practices in the Japanese-style employment was built up around 1950‘s since there

were many worker‘s strikes broke out due to massive dismissals. Those practices were part of the re-

structuring of corporations so that corporations can get through with the economic recession with

less expected damages to them. One of the typical things of the general practices under Japanese-

style employment system is that it is based on labor policy restraining massive dismissals. In other

words, this system aimed for protecting the laborers, including their labor rights, in a sense that it

guaranteed the workers to be able to work for long period without the fear of dismissals (unless if

they do something stupid) under the Japanese-style employment.

However, this system of employment has gone stuck during the 1990‘s since this system has

encouraged massive employment and excessive personnel expenditures under the huge economical

recession which Japan has experienced in those times.

II: Historical background

Japanese-style employment system is said to have three specific characteristics, that is to say,

―lifetime employment (shuushin-koyou)‖, ―seniority-based wage system (nenkou-joretsu)‖, and

―labor union organized on a company basis (kigyoubetsu-kumiai)‖. From the end of Meiji48

period to

the beginning of Taisho49

period, many large-scaled corporations or nation-owned companies started

to take in systems which make workers wages to increase in periodical scale and provide retirement

fees. This eventually becomes the basis of Japanese-style employment system with its significance to

the system of wages based on seniority.

After the WWII, there were some disputes arising from massive dismissals done by many

large-scaled corporations50

. Thereafter, many corporations avoided dismissals of specified workers,

and the courts have put limit on the employers so that they won‘t make improper use of dismissal

rights. This limit from the courts has become the legal basis for the lifetime employment.

However, from the 1990‘s to the beginning of 21st century, Japan experienced an enormous

economic crisis resulting in making Japanese corporations to restructure themselves, since those

corporations faced pressures caused by lack of personnel expenditure and excessive employment. As

a consequence, many of the employees, who worked under the lifetime employment system, lost their

jobs since the corporations were no longer able to hire people for lifetime due to their financial

problems.

At those times, the Japanese social security system was only aiming to guarantee the

minimum standard of living based on the idea from the 25th

article from the Japanese constitution51

,

which guarantees the right to life to the nationals. In addition, it was very difficult to change from

one job to another under the Japanese-style employment system; since each corporation is educating

their newly entered employees based on their respective corporate objectives hence it was less

adaptable to other corporations. If there are many people trying to get social security for assuring

the minimum standard of their daily lives, the cost will be obviously enormous. So the Ministry of

Health, Labor and Welfare in Japan started to hold activities or seminars to develop unemployed

people‘s potential so that they can get more opportunities to work in broader area of job52

s.

48

1868 C.E～1912 C.E. 49

1912 C.E～1926 C.E 50

For an example, Toho, one of the largest film-making companies in Japan, cut off approximately 1200 workers after WWII without

good reasons. 51

The Japanese Constitution Article 25; All people shall have the right to maintain the minimum standards of wholesome and cultured

living. 2) In all spheres of life, the State shall use its endeavors for the promotion and extension of social welfare and security, and of

public health. 52

“Wakamonojiritsu-juku”, literally translated as “training school for youth to live in society”. This school provides special programs

for young people to acquire skills and to learn how to live as an adult in society, for an example, manners

III: Current administrative and legislative actions

In this section, we would like to focus on administrative and legislative actions that protected or

meant to protect the labor rights during the 1990‘s and the beginning of 21st century.

1. Before the collapse of Bubble Economy

After the oil crisis53

in 1973, Japan took what is called ―Japanese-style employment‖ for granted and

the Japanese policies attached importance on rising up retirement age of regular employees and

maintenance of their employment. Japanese -style employment started to lose its function due to the

economic crisis that hit Japan and a series of labor deregulation measures were taken. At the same

time along with those deregulation measures, there were some changes in Japanese social policies,

including regular employee-centered labor protection and those were reflected in a decision by the

Cabinet in 1999 for the first time. After that, the policy began to be changed from the protection of

the employment of regular employees to the correction of gap between regular and irregular.

2. Deregulation measures on labor market

Chronology of deregulation on labor market

1985: Establishment of ―Law for Securing the Proper Operation of Worker Dispatching

Undertakings and Improved Working Conditions for Dispatched Workers‖

1987: Expansion in ―variable working hours system‖ and introduction of ―discretionary system‖ and

―flextime‖

1997: Abolishment of female protection regulation

1998: Deregulation of term limitation of fixed-time employment

1999: Expansion of permitted services for the manpower dispatching business

2003: Deregulation of manpower dispatching business

○ Revision of the Manpower Dispatching Business Law

85. (Establishment) To make a just balance between supply and demand of labor, only highly

specialized jobs were permitted.

99. (Revision) In general, all services are permitted excluding some special jobs such as manufacture,

construction, port transportation, and guarding.

03. (Revision) Manufacture is permitted.

*After the financial crisis in 2008, many enterprises stopped dispatch contract and many dispatched

workers became unemployed. Because of the nation-wide criticism for this situation, or ―dispatch-

cutting‖ (haken-giri), ruling DPJ (Democratic Party of Japan), PNN (The People‘s New Party) and

SDP (Social Democratic Party) reached accord on revision of this law on 10.8.09. The contents of the

agreement are below.

1. Prohibition on manpower dispatching which term is shorter than 2 months

2. Guarantee of equal treatment

3. Prohibition on dispatching for manufacture

4. General prohibition on registration type dispatching

5. Duty for direct employment when there is illegal dispatching by the employer

The tendency for labor deregulation itself continued till 2006 and it was referred to as ―labor big

bang‖. This is based on the requirement of JBF (Japan Business Federation). The contents of the

requirement are three points.

First point is the abolishment of duty to propose direct employment for dispatched workers. Second

point is the early introduction of ―white-collar exemption‖. Final point is the monetary resolution of

conflict around discharge. Above these three points by JBF, the Cabinet added a new point, which is

the preparation of labor protection laws. However, this policy was influenced by the election of the

53

The Oil Crisis caused by the outbreak of the Yom Kippur War in 1973

members of the House of Councilors in 2007 and by the change of government from the previous

Prime Minister Asou‘s LDP (Liberal Democratic Party) to the current Prime Minister Hatoyama‘s

DPJ (Democratic Party of Japan) in 2009; the tendency of ―labor big bang‖ was stopped completely.

3. Towards the reconstruction of labor protection

Through 1990‘s, enterprises repressed regular employment and promoted introducing part time

labors, dispatched workers, and contract employees so that those corporations can spend more

money on developing the efficiency of running businesses rather than spending expenditure on

educating new employees. This is because many corporations, even the large-scaled ones, were not

capable to guarantee lifetime employment to the workers due to the economic crisis that hit Japan in

the 1990‘s.

As a result, from 1990‘s to the beginning of 21st century, the ratio of non-regular employees, in whole

labor population, continued to increase. According to ―Labor survey‖54

, ratio of non-regular

employee to whole labor population reached more than one third (33.9%) in 2006, though this

number decreased to 33.3% in 2009. Thus, regular employee centered social policy is confronted in

big pressure for change.

Below we show some examples of new policies.

○ Part Time Labor Law

1993. (established): employment management, human resources development of part time labor is

obligated to employers to make a sincere effort.

2007. (revision): ban on discrimination from regular employees under certain conditions.

*The establishment in 1993 was pushed by the emergence and increase of part time labor in 1980‘s.

As a result of the above-mentioned development of diversification of employment patterns, many

non-regular employees have to earn their basic income by their wages. So revision in 2007 is by this

social requirement.

○ The Employment Measures Law

The employment measures law is revised twice in 00‘s (01, 07) to regulate age discrimination. Despite

the collapse of life time employment, employment of new graduates55

and other age discriminative

sub-systems of it have survived. Besides traditional difficulties of job hopping, depression in the ―lost

decade‖ generated many unemployed people and to expedite reemployment was necessary to society.

*Labor contract law is established in 07 and became the first law regulates labor contracts. The main

purpose of this law is to establish accumulated case laws about unemployment but it also includes the

principal of ―equal treatment‖ and ―work life balance‖, both were required by labors strongly.

○ Policy shift of social security

Now the shift of social security policy is undergoing by MHLW (Ministry of Health, Labor and

Welfare). The core of the shift is from protection of the employment of regular employee to support

of reemployment in the fields of basic income and human resource development.

There are some examples to that and those are ―re-challenge courses‖, ―young self-support school‖ (a

type of human resource development school for young people) and Japan version dual system

education56

are focused on the young, and education training benefit system and career consulting

are general support to develop human resources.

54

This is the survey carried out by Ministry of Health, Labor, and Welfare. 55

Though it became easier to do job hopping today, the custom of employment of new graduates is still strong in Japan. 56

Related to the collapse of life-time employment system, a movement to adjust Japanese job training system, which was too

dependent to OJT. MHLW and MES are promoting introduction of Japan version Dual System.

MES’s plan targets in education and it intend to add some OJT subjects in the curriculums of technical high school, which have only

OffJT subjects now.

MHLW plan is public training school for labor, while they get OJT in their business, they learn OffJT on this school. Plans of two

ministries are not connected because of the sectionalism.

As you read, recent labor legislation in Japan is featured as countermeasures against social

contradiction made by remaining sub-system of JSE, such as age discrimination, unequal treatment

and job training in business. In this situation, MHLW is groping a new unemployment support

system.

At a glance, ruling DPJ seems to be in line with this policy too. Considering the bad employment

situation of new graduates, the DPJ would publicize Emergency Human Resources Training and

Employment Support Project for people graduate university without employment57

. But, political

parties‘ attitude changed after 08‘s ―Riemann shock‖ and nation-wide criticism against ―dispatch

cutting‖ following the crisis. We can‘t change this trend in labor market by just strengthening the

regulation given the ongoing collapse of JSE. So, we have to be conscious whether DPJ is just a

―reactionary‖ or not.

IV: Judicial actions

In this section, we would like to introduce some judgments made by Japanese courts to show

the transition of the court‘s decision on the employment of the workers. We‘ve picked a case before

the dysfunction of Japanese-style employment, and another case which occurred after the

dysfunction of it.

1. Abuse of dismissals (A case from 25th

April 1975)

1-(1): Summary

Mr../Mrs. X (Claimant) was a member of the Labor Union ―A‖, however a labor dispute

between the labor union and the Company ―Y‖ (Respondent) has resulted in to resign Mr../Mrs. X

from the Company. But, since Mr../Mrs. X refused to resign from Company ―Y‖ the Claimant has

been excluded from the member of the Labor Union ―A‖. Since there was a union-shop treaty58

between the Labor Union ―A‖ and the Company ―Y‖ which stated that ―those workers who left or

excluded from the labor union shall be dismissed by the Company‖, the Company dismissed the

Claimant. Hence the Claimant contended that the exclusion from the labor union shall be void and

sued the Respondent to confirm his/her position in the labor contract.

In this case, the court argued whether the dismissal based on union-shop treaty.

1-(2): Judgment:

Generally, the dismissals from the employer are considered void unless if there are any

subjective reasons as well as the correspondence with socially accepted ideas. However, based on the

union-shop treaty, the dismissals made by the employers, who are obliged to dismiss a worker who

has gone out from labor union, shall be considered approved because it is regarded that those

dismissals are associated with subjective and rational reasons and they correspond to socially

accepted ideas.

2. Labor relationship between Companies (Case of Hitotsubashi-Shuppan, 2006)

2-(1): Summary (shortened)

A press company Hitotsubashi Shuppan59

(defendant), which accepted temporary staffs from a

staffing agency My-Staff,60

dismissed a temporary staff from the staffing agency (claimant). The

claimant accused the defendant for dismissing him/her unjustly. However, the defendant regarded

the claimant‘s dismissal as responsibility of My-Staff, since the claimant was a temporary staff from

the same branch. In this case, they argued whether the labor contract between the claimant and

57

PM Hatoyama’s remark from Asahi Shinbun on Oct 22nd

2009 58

It’s a system which asks any workers to join a specific labor union in order to be employed and the workers will be dismissed if the

workers lost its position as the member of the labor union. 59

One of the press companies publishing .text books for schools. Staffing agency My-Staff was established by the company. 60

A Staffing agency, sending dispatched workers to other corporations with labor demands

defendant was legally expired or not. Term of contract was six months and renewed three times, but

he/she worked for the defendant even after the contract was expired.

2-(2): Judgment

The High court of Tokyo judged that this contract was expired legally for those reasons.

2-(3): From the view of relationship between companies

Temporary staffs contracts with companies that offer their salary and working condition. In

this case, he/she contract with My-Staff, not Hitotsubashi Shuppan. And he/she recognizes he/she

registered for recruitment of My Staff. So, he/she does not contract with Hitotsubashi Shuppan

directly and contract between My-staff and him/her was legally expired.

In Japan, Japanese-style employment protected labors and rarely admitted dismissal.

However, because of the corruption of the bubble economy in the 1990‘s in Japan, the Japanese

companies faced difficulties in maintaining the Japanese-style employment, since the companies had

to cut off the number of workers so that they can survive the economic crisis among the other

competitors. Considering this situation, the courts admitted the dismissal with ―social

correspondence‖ and judged cases based on the social correspondence. Judges interpreted ―social

correspondence‖ in each case with thinking what happened in those cases. However, nowadays, the

courts are trying to limit the practice of the dismissals with social correspondence, since it‘s an

obvious violation of labor rights and the discussion towards limiting the practices of the dismissal

with social correspondence is in progress.

V: Conclusion

Throughout this review, we‘ve made analysis on Japanese labor protection system under

Japanese-style employment system. The protection system is now under development since the labor

environment in Japan is changing and the protection system itself is in a transitional stage. What

accelerate this development are the legal protection itself and some feedbacks made from Japanese

society. Laws or rules are fundamental elements of political system in democratic countries, and

therefore there are always 3 actors playing important roles in it; legislation, administration, and

jurisdiction. Under the Japanese style employment system, labor protection is not so strong, because

enterprises guaranteed the welfare for its regular employees. So, some big parts of labor protection

are covered by case laws which fill the deficiency of legislation. But, after the collapse of bubble

economy, this situation began to change. Non-regular employees, who appeared because of the

deregulation, are not protected by any sector. They are not protected by enterprise, because they are

not regular employee, and they are not protected by government, because social protection is

targeted to regular employees. So, the sphere of labor protection became a core issue in Japan, not

just a "deficiency" and it became to need more solid, stronger policy. Codification of case law on

unemployment as "labor contract law" is a model case about that. It means that now the center of

labor protection is legislative and administrative sections.

Yu Ka Mei

Labor Right Protection

Problems about the Law of the People‘s Republic of China on

Employment Contracts (Employment Contract Law)

The Employment Contract Law has a rather short history in China (it was passed by the Standing

Committee of the National People‘s Congress in 2007), but it draws hot discussion among people. The

conflicts mainly exist between employers and employees. The legislation chooses to protect the

employees more in essence. But should the law protect employees only or should it meet the

employer‘s concern in some way? Employers express their concern that it is the heritage of the

planned economy and would be harmed and as a result, so will the business world and the nation‘s

economy. The law also places an excessive burden on them and it would not benefit the employees‘

either, since consequently the unemployment rate can grow sharply.

The main intention of the law is to protect labor interests and we do appreciate this intention a lot.

But two years of practice has shown that the law cannot work properly and that the legislation may

not achieve its aim. Therefore, it is important to find out why the law cannot work and try to solve

the problems.

According to article 82, ―If an Employer concludes a written employment contract with an

Employee for more than one month but less than one year, beginning the day the employee is

employed, the employer should each month pay to the Employee twice his wage.‖ The aim of this law

is to provide a stable working environment for labor by establishing a contract system. However, the

news from the Chu Chiang Delta in Mainland China shows that it is the labor who does not want to

sign contracts with the employers.

Moreover, article 38 states that ―An Employee may terminate his employment contract if his

Employer: (3) Fails to pay the social insurance premiums for the Employee in accordance with the

law.‖ According to this article, employers need to insure their employees from day one. The

phenomenon after the law came into force is that many employees want to cancel the insurance

policies. After the Spring Festival, thousands of workers in Shenzhen demanded to cancel the

policies. I wonder why it is that they are doing this to harm their own interests as the social insurance

system protects the interests of labor force.

“The main intention of the law is to protect labor

interests and we do appreciate this intention a lot”

Article 31 states that ―Employers shall strictly implement the work quota standards and may not

compel or in a disguised manner compel Employees to work overtime. If an Employer arranges for

an Employee to work overtime, it shall pay him overtime pay in accordance with the relevant state

regulations.‖ The fact is that employers tend not to arrange for employees to work overtime as it

increases the cost for them. Despite this, workers tend to work overtime to earn more. They even

demand working overtime without extra pay.

This phenomenon is very interesting and the problems of the Employment Contract Law are good

subjects for research.

Many people lay their blames on the legislation, complaining that the Employment Contract Law

cannot balance the interests between the employers and the employees. Moreover, it is too advanced

for the present China. People also claim that legislators have foreseen these problems beforehand but

they have ignored them. This law is inappropriate for Mainland China and some of the articles are in

need of amendments.

The problem probably lies within the economic structure of Mainland China. A large proportion of

the labor force in China is in fact seasonal workers. Research on the background of workers (their

hometown, age group, skill variety, wage range, non- monetary benefits, proportion of labor serving

in primary, secondary and tertiary industry and education system) shows that the typical

characteristic of this kind of labor is high mobility. They tend to change their jobs frequently and go

back to their hometown during reaping seasons. The articles mentioned above in the Employment

Contract Law are not practical for them because seasonal workers do not desire long term contracts

and they prefer keeping their wages rather than ―giving‖ it to insurance companies.

Apart from the economic structure, the social security system also contributes to the problems of the

Employment Contract Law. It is noted that Mainland China does not have a very comprehensive

system for social security. Though the Employment Contract Law states that the State will take

measures to establish a comprehensive system that enables employees‘ social insurance accounts to

be transferred from one region to another and to be continued in such other region, at the moment

such a system does not exist. The progress of developing such a system is rather slow. Industries in

Mainland China are decentralized; some rural areas do not even have the concept of social

insurance. There is still a long way to go.

Despite all these problems, the enforcement of the Employment Contract Law is a great progress as

it shows the positive attitude of China towards the protection of labor rights.

Hyacinth Kong Ka Yung Eric Ip Tung Shing

Protection of Labour Rights in Hong Kong

1) Introduction

Hong Kong has long been regarded as the classic example of a laissez-faire economy. In respect to

this, the government adopts the ‗positive non-interventionism‘. Though the Hong Kong government,

legislature included, always avoid intervention to the free market economy, it is active in areas

regarding labour laws which protect labour and help promote trade. Improved working conditions,

Occupational Safety and health and employees‘ rights and benefits has been kept up through an

extensive programme of labour legislation. Some 42 pieces of legislation were enacted between 1997

and 2001. More are in the pipeline. Hong Kong aims at applying relevant International labour

standards as the local circumstances allow. As of 28 April 2000, Hong Kong is following 40

Conventions, more than most of the countries in Asia.

2) Legislations

2.1) Employment Protection and Rights

The Employment Ordinance (Chapter 57 of Laws of Hong Kong, referred to as “Cap 57” hereafter)

provides the framework for a comprehensive code of employment. It governs the payment of wages,

the termination of employment contracts and the operation of employment agencies.

The law provides statutory holidays with pay, sick leave, maternity protection, rest days, paid annual

leave and employment protection for all employees. It also provides for severance pay to workers

made redundant and long service payment to workers with long service who are dismissed for

reasons other than redundancy, or on disciplinary grounds, who die in service, or who resign for

illness or old age.

Those who are owed wages in lieu of notice and/or severance payments by insolvent employers may

apply for ex-gratia payment from the Protection of Wages on Insolvency Fund which is financed by

an annual levy on business registration certificates.

There are also regulations governing child labour in Hong Kong. The Employment of Children

Regulation prohibits the employment of children aged 15 or below in all industrial undertakings.

Children aged 13 and 14 are generally prohibited from working saved for taking up part-time

employment in the non-industrial sectors. The Employment of Young Persons (Industry) Regulations

govern the employment conditions of working teenager aged 15 to 17 in industrial undertakings.

These young persons are not allowed to work more than eight hours a day and 48 hours a week.

Eight special enforcement teams of labour inspectors are responsible for monitoring employers‘

“Hong Kong aims at applying relevant International

labour standards as the local circumstances allow”

compliance with various labour legislations to safeguard the rights and benefits of local and imported

workers.

Regarding injuries or fatal cases of employees during work, the Employees‘ Compensation

Ordinance (Cap 282) provides remedies. The laws provide formula to estimate the amount of

compensation for injured or deceased employees of different ages. Additionally, Employees'

Compensation (Ordinary Assessment) Board and Employees' Compensation (Special Assessment)

Board are established by this Ordinance, aiming to provide accurate and fair assessment to the loss

of earning capacity of the injured employees. This enables a just and fair estimation to the amount of

compensation. Other than the compensation system, section 40 of the Ordinance compelled

employers to purchase insurance for their employees. The compulsory purchase of insurance ensured

the compensation can be given to the injured or deceased employees regardless of any financial

difficulties of the employing companies.

2.2) Law Against Discrimination

There are four Ordinances in Hong Kong to protect people, employees and job applicants included,

from being discriminated by others. They are namely Sex Discrimination Ordinance (Cap 480),

Disability Discrimination Ordinance (Cap 487), Family Status Discrimination Ordinance (Cap 527)

and the new Race Discrimination Ordinance (Cap 602) which was enacted in 2009.

The four Ordinances make employers liable for unjustifiable discriminatory acts on various bases,

for example sex, disability, pregnancy, divorcement, race and so on. Discriminatory acts in this

context include lowering payment for the same work performed, refusing job applicants, requiring

longer working hours, providing differential occupational welfare, etc. However, as all the causes of

action against discrimination are civil, the laws only provide civil remedies to the victims on

compensatory basis. No punishment by law is imposed.

Other than resorting to the judiciary, employees or job applicants who are allegedly discriminated

against can also report to the Equal Opportunities Commission for resolving the dispute through

mediation.

2.3) Dispute Resolution

2.3.1. Executive Branch: Minor Employment Claims Adjudication Board

To speed up the settlement of minor employment claims, the Minor Employment Claims

Adjudication Board was set up in the Labour Department in 1994 for the adjudication of rights

claimed under the Employment Ordinance and in accordance with individual employment contracts.

Hearings are conducted in public and procedures are simple and informal, and hence it works

efficiently.

2.3.2. Judicial Branch: Labour Tribunal

The judicial proceedings conducted in the Tribunal are, unlike normal courts, quick, inexpensive and

informal for settling labour disputes. It accepts monetary claims arising from any breach of

employment contract or cause of action under the Employment Ordinance or the Apprenticeship

Ordinance.

3) Pending Issues

3.1) Collective bargaining

The first issue arising after the resumption of sovereignty by China after 1997 was the abolishment of

the Employee‘s Rights to Representation, Consultation and Collective Bargaining Ordinance.

Enacted just before the change of sovereignty, the Ordinance aimed to ―provide for the rights of

employees to representation, consultation and collective bargaining‖. However, it did not survive

across the remarkable and historical moment of Hong Kong. The Ordinance was repealed officially

by passing the ―Employment and Labour Relation (Miscellaneous Amendment) Bill 1997‖ by the

controversial Provisional Legislative Council. With the legality of the PLC being justified by the

Court of Final Appeal of HKSAR in Ng Ka Ling v Director of Immigration [(1999) 2 HKCFAR 4], the

laws enacted thereby are valid laws in HKSAR. Hence, the Ordinance concerned had lost its force

after the passage of that Bill by the PLC.

Scholars have observed that there is a lack of measures to promote machinery for negotiations in

Hong Kong. Indeed, it is true. Although there are collective bargaining agreements between

employers and trade unions or staff associations, without the statutory recognition of the agreements,

they merely fall under the governance of the law of contract. However, one of the elements required

by the contract law in Hong Kong is the parties‘ intention of entering into the legally enforceable

contract. Yet, it can easily be rebutted by the lack of intention by the employers as the general

agreement in this regard are written in a language mixing policies, aspirations and obligations

together in the document. The court, taking the language used into account, can hardly uphold the

intention of the document to be a legally recognized and enforceable contract. Two remarked cases,

Cable & Wireless (Hong Kong) Limited Staff Association v Hong Kong Telecom [2001] 2 HKLRD 809

and Aircrew Officers Association v Cathay Pacific Airways Limited [1994] 1 HKLR 367, remain as good

case laws with respect to collective bargaining agreement. In both cases, the agreements were held

unenforceable due to the lack of contractual intention. In other words, the supposed protection of the

rights of labour under the agreement is unenforceable. The bargaining power of the trade union or

staff association, supposed to be derived from such an agreement, simply goes in vain when the

disputes arise between employers and employees. Without the unified power of bargaining,

employees are readily exposed to the risk of deprivation by their employers, for example salary cut

or over-time work without any means of bargaining to even seek a middle ground.

While the International Labour Organization had declared the legislation striking out the Ordinance

has contravened the International Labour Conventions in November 1998, the Hong Kong

Legislature remained silence over the year without rectifying the situation. The simplest solution to

this problem would be to provide statutory recognition to a specific form of collective bargaining

agreement. The Legislative Council of HKSAR should make serious consideration towards the re-

enactment of the repealed Ordinance to cater for the current situation of Hong Kong. With the

statutory provision governing the enforceability of such a kind of agreement, along with the

promotion by the normal practice of the Labour Department of the government to provide for Code

of Practice to the concerned industries, it is predictable that the collective bargaining system would

be a powerful protection of rights of labour against the deprivation of employers.

3.2) Minimum wage legislation

While the limelight shining on collective bargaining is going dimmer for the time being as no new

progress was made as to the issue in recent years, the public have shifted the focus of legal work on

the recently introduced Minimum Wage Bill. The issue has long been discussed in Hong Kong and

gained much weight since the economic downturn from 1997 to 2003. Since then, it has become the

leading controversial topic of labour rights protection.

Conceivably, the Bill points to the problem of low wages offered by the employers in the Region. It is

obvious that poorly paid jobs are those requiring little or no technique in performing the duties.

Generally speaking, employees are having little say against their bosses as to wages, as the

employment market, if not in surplus, is in no way having shortage. From the perspective of

economics, the further imposition of the minimum wage law in the society in which employment

market is not in a shortage would generate unemployment problem for those who are less productive

than others. Hence, under the imposition of minimum wage, young people who are not skillful

enough and the elderly who are not as productive because of their age would be exposed to a way

higher risk of being unemployed.

Though doubts are casted on the effectiveness and the side effects of the legislation, many still

support the proposed Bill. The situation of deprivation of unskilled labour by providing low wages

yet heavy workload and requiring long hours at work is deteriorating. In the light of the results of

the voluntary minimum wage scheme announced alongside the declaration of failure of such a

scheme in the Policy Address 2008, reflecting lamentably the low standard of social responsibility of

employers in this metropolitan financial centre, trade unions and political units strongly urge for the

passage of the Bill to protect labour from deprivation.

It would be hard to tell whether the benefit of protecting labour rights of such legislation would

outweigh its defects by generating the possible unemployment issue. However, as observed by many,

merely emulating the law in other countries regardless of the difference between HKSAR and these

countries would not benefit Hong Kong the most. The minimum wage legislations in other countries

are coupled with systems of unemployment benefits, pension and so on. These systems ensured the

welfare of the affected parties and balanced the setbacks brought by the legislation. Unfortunately,

Hong Kong does not have well-established system on these fields. Thus, the disadvantages of the

legislation are not at its minimal in this regard.

Irrespective of the effect of the legislation, there are something more that Hong Kong can do. The

promotion of social responsibility in private sector would be of uttermost importance. The weak

social responsibility of employers has been the culprit of the problem of low wages. Although the

business culture cannot be changed in short term, the continuous effort put into promotion of social

responsibility of business would gradually lift up this deep-rooted problem. Offering low wages yet

great workload, as for a practice against public interest, would be in one day eliminated with the

promotion of the importance of business citizenship.

3.3) Discrimination

Although, as mentioned, there are four Ordinances against discrimination based on sex, disability,

family status and race, the discrimination on other bases remain. A major issue that has been

brought attention to the government is the discrimination against new immigrants from mainland.

The discrimination is left unprotected by law. During the discussion of the Race Discrimination

Ordinance Bill, the government expressed its concern on the situation of the new mainland

immigrants who are discriminated against by employers. Majority of the cases are that the new

immigrants, who are lacking in skills and are with poor language ability, are required by their

employers to work long hours for low wages. However, the government thereby expressly excluded

new mainland immigrants from the protection of the Ordinance, the reason for which being that the

mainland immigrants and the majority of Hong Kong people belong to the same race. (see Hong

Kong Legislative Council Document CB(2)859/06-07(01) for further information) Till now, cases of

discrimination against new immigrants are often reported by the media, yet they are not governed by

law.

The aforesaid Minimum Wage Bill, while aiming to protect labour from deprivation, also contains

exception for domestic helpers, regardless of the fact that the field is of workers mostly, if not all,

from the Philippines, Indonesia and other South-eastern Asia countries. As some scholars have

pointed out, this seemingly amounts to a justification by law to apply differential treatment on

domestic helpers who are from foreign countries by depriving them of their rights to obtain the

minimum wage which is available to most other occupations. Apart from domestic helpers, disabled

persons are also exempted from the proposed minimum wage law. Thus, the Minimum Wage Bill is

criticized to be discriminatory in some sense and should be amended before passing.

4) Conclusion

Hong Kong is a world-class city with a renowned legal system famed in its strong emphasis on rule of

law. However, the laws to protect labour from deprivation are still with blemishes including the

abovementioned problems. While protection of human rights are of soaring importance in the legal

culture of Hong Kong, expectedly the legislature will strive for further development on the labour

and employment law. The laws for protection of labour rights and employment protection are

expected to be guided by and should be improved to reach the respective international standards.

Thus, we can expect that further perfection of the labour law could be seen with the concerted effort

exerted by Hong Kong people from all walks of life.

Labour Rights in Brunei Darusalam

By: Md. Aiman Adri bin Ahmad Zakaria

What is the state of Labour Law in Brunei?

There is an established labour department to preserve the rights of labour/protect their rights. The

Employment Order came into effect on 3rd

September 2009 with the combined effort of relevant

agencies (Ministry of Home Affairs and Attorney General‘s Chambers).

The ILO

Brunei Darussalam became the ILO‘s 180th member state on 17 January 2007. The ILO‘s function is

to develop the policies and programs that will allow them best to govern labour migration. In this

way countries can try to ensure that migrant workers do not displace national workers and are not

subjected to unfair treatment or abuse. Another function of the ILO is to offer a wealth of

information on international migration, as well as technical assistance to countries on many different

issues, from training to social security. Finally the ILO fosters networking opportunities between

governments, employers organizations, trade unions and organizations of migrant workers.

The issues that are covered by the ILO involve:

Discrimination: on the grounds of gender, recruit staff, race or nationality, disabled persons and

payment to the workers. The law does not contain specific provisions prohibiting discrimination

based on race,gender, disability, language, or social status.

Non-citizens of Brunei face serious discrimination on the labour market as they are not covered by

labour law. Many have complained of poor working conditions and a failure to respect their terms of

employment. Migrant women domestic workers have complained of beatings, long working hours.

Issues

Issues that have been discussed in the Employment Order 2009 are as follows:

• Termination of workers by the employer especially in private sector.

• Failure to pay salaries to foreign workers.

• Annual leave

• retirement benefits

• Issues concerning on maids: whether the employer or the agents should send the

maid back to his/her country?

“So far, labour law in Brunei seems to protect both

parties’ interest (win-win situation), all the procedures

are being followed before the workers start to work”

• Women-maternity leave (Some companies may reluctant to give salaries to those

women who have been given a maternity leave.

• The problem of unemployment (and youth employment in particular) remains

critical issues. There is an apparent mismatch between job-seekers expectations, job

opportunities and the skills requirements of employers. It is estimated that just under half of

the workforce is employed in the public sector, while private sector jobs tend to be filled by

migrant workers.

Solutions

The solutions or steps that have been taken by the government to overcome the problems include:

• Different Acts / regulations that were established to protect the rights of the

labourers.

• Establishment of Labour Department

• Employment Order 2009 is one of the steps taken to settle the existing problems.

• Protect both parties(employers and employees) interest

• Outlining rights and responsibilities of employers and employees in the public

sector. Workers under a contract of services are protected against unfair dismissal/termination

without notice. (The employers should have been given notices to the employees before the

termination, because if they did not do so, the workers has right to make a report to the

Department of Labour.

• to protect the rights and the welfare of the workers

• to give awareness to the employers to be more responsible.

• TAP (Tabung Amanah Pekerja Cap 167) -aimed at protecting the rights of the

employees after their retirement.(retirement benefits)

• Role of the Government

• The Government promotes competitiveness and job creation in the private sector.

This work includes gender equality, social security, better occupational safety and health, more

informed labour migration, increased social dialogue-

• Protection to children

Various laws prohibit the employment of children under age 16. Parental consent and approval by

the Labour Commission is required for those under 18. Female workers under 18 may not work at

night or on offshore oil platforms. The Department of Labour, which is part of the Ministry of Home

Affairs, enforces the employment law for Bruneian children.

How is Labour Law approached in Brunei?

So far, labour law in Brunei seems to protect both parties‘ interest (win-win situation), all the

procedures are being followed before the workers start to work. (Relevant regulations, Act, Order

must be satisfied first). The Department of Labour has been given a vast mandate in handling the

problems concerning on labours. That means it includes all workers i.e. locals and also foreign

workers. However normally it‘s the foreign workers who keep on complaining if they felt unsatisfied

with their employers. It has to be noted that heavy cases like abuse cases, misconduct of the

employees or employers (falls in jurisdiction of the Civil Court not the Department of Labour). Only

minor cases like termination of workers, failure to pay salaries to maids, satisfaction issues etc are

taken into consideration in the Department of Labour provided if their cases are covered in the

statute. This is actually to avoid clashes between two parties and also to give rights to the police and

the Court to preserve justice. But the employers and employees can make a decision whether they

want to settle the problem in the Labour Department or in the Court.

What about the His Majesty The Sultan Yang Di-Pertuan?

The power to make rules are put in the hands of His Majesty the Sultan dan Yang Di-Pertuan.

According to the Labour Act, section 121(1):

- His Majesty in Council may from time to time make rules generally for carrying out the provisions

of this Part.

- Capacity to enter into a contract.

24. (1) A person whose apparent age is less than 16 years shall not be capable of entering into

contract.

(2) Notwithstanding anything contained in any written law a person whose apparent age

exceeds 16 years but is less than 18 years shall be capable of entering into a contract for employment

in an occupation approved by the Commissioner as not being injurious to the moral and physical

development of non-adults.

Here, this part of the act gives out the age limit for those who are willing to enter into a contract

based on labour. Anyone under the age of 14 is seen to be labelled in the 'children' category, so if

anyone under the age of 14 were to enter into a contract, they would be deemed to be under age and

would not be allowed to enter contract. It is however, alright for those who are above the age of 16

years to enter a contract for employment in an occupation approved by the commissioner as not

being injurious to the moral and physical development of non-adults.

What happened to the Labour Act?

It was replaced by the new 'Employment Order 2009' lets the employees have more holidays through

their annual leave and public holidays. This benefits the employees and employers. Even though the

employers may be in a loss in terms of money, but it ensures the employee's happiness and would

prevent the employee from leaving employer due to stress and possible unfair working hours.

Ensuring the employees happiness would lead to people staying with a company longer.

The well being of the employee is ensured with the rules of the Labour Act, under section 60(1), it is

stated that :

60.

(1) Every employer shall provide and maintain —

(a) sufficient and hygienic house accommodation;

(b) a sufficient supply of wholesome water; and

(c) sufficient and proper sanitary arrangements,

For every worker who resides on the place of employment and for such other employees who reside

on the place of employment. Such house accommodation, water supply and sanitary arrangements

shall conform to such requirements and standards of health and hygiene as may be prescribed.

Section 60(2) then states that no employer shall be allowed to house their employee in a house that is

deemed inappropriate by a Health Officer, such as to endanger the health of the worker.

Medical care is also provided by the employer according to article 65(1) where, At every place of

employment the employer shall provide for all workers such medical attention and treatment with

medicines of good quality, first aid equipment and appliances for the transportation of sick or

injured workers as may be prescribed.

Section 60(4) indicates:

―Where any such worker or dependant has been admitted to a Government hospital or dispensary,

the cost of maintenance and treatment at such rate as may from time to time be prescribed and, in

the event of the death of such worker or dependant in such hospital, any reasonable burial expenses

incurred shall be recoverable from the employer at the suit of the Medical Officer in Charge.‖

Even though the expenses will be on the employer, if the employee were to fall ill and had to be

admitted to the hospital, the employer could still recover the expenses made if the employee were to

have passed away at the time of being admitted in the government hospital.

Looking at the Labour law in Brunei's legal system, we do not see any spaces where there would be

any further improvements. it is quite clear cut with the rules and regulations. The act benefits both

the employer and the employee as well. The women and children rights according to the labour act

in chapter XI, also shows the rights and the boundaries to follow when employing women, and that

children under the age of 16 may not be employed under the law.

Perspective: Trade Unions Act of 1961

The rights of the Association

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 law.

The Trade Union Act of 1961 authorizes 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 unless they

receive prior written consent from both the Minister of Home Affairs and the Labour Department.

Under the Trade Unions Act, unions are legal and must be registered with the government. All

workers, including civil servants other than those serving in the military and those working as prison

guards or police officers, may form and join trade unions; however, in practice trade union activity

was minimal. The government did not encourage unions or facilitate their formation, and employers

in the industrial sector did not encourage foreign workers to form unions.

The law makes no explicit provision allowing the right to strike.

Prohibition of forced or compulsory labour

The law prohibits the force labour or compulsory labour including children

Prohibition of child labour

The law prohibits the employment of children under age 16, but parental approval is required for

those under 18 years old. However, female workers under 18 may not work at night or an offshore of

oil platforms

Acceptable conditions of work

The standard workweek is Monday through Thursday and Saturday, with Friday and Sunday off,

allowing for two rest periods of 24 hours each week. Overtime is paid for work in excess of 48 hours

per week, and double time is paid for work performed on legal holidays. Occupational health and

safety standards were established by government regulations. The Department Of Labour inspected

working conditions on a routine basis and in response to complaints

Protection of foreign workers in Brunei

Government protective measures for foreign workers included arrival briefings for workers,

inspections of facilities, and a telephone hot line for worker complaints. Government mediation

continued to be the most common means used to resolve labor disputes.

Abusive employers faced criminal and civil penalties. When grievances could not be resolved,

repatriation of foreign workers was at the expense of the employer, and all outstanding wages were

ordered paid.

The majority of abuse cases were settled out of court by the employer paying financial compensation

to the worker.

Illegal foreign workers

The government also prosecuted employers who employed illegal immigrants or did not process

workers' documents, rendering them in illegal status.

Immigration law allows for prison sentences and caning for workers who overstay their work

permits and illegal immigrants seeking work, as well as for foreign workers employed by companies

other than their initial sponsor.

While the majority of prosecutions were for long-term overstayers, many workers stayed in an illegal

status due to their former employers' negligence.

Perspective: Tabung Amanah Pekerja

The government has introduced various kinds of schemes which aim to benefit labour, for instance;

Tabung Amanah Pekerja (TAP)

Tabung Amanah Pekerja Act, Cap 167

What is Tabung Amanah Pekerja?

By referring to section 2 of the TAP Act, it is;

• a provident fund or other scheme for the benefit of employees established by an

employer or by a group of employers an declared by the Board under section 34\to be an

approved fund, and includes any scheme in respect of –

• persons in pensionable employment with the government

• persons in employment with any organization where the appointment to any such

employment is made or by the approval of the government.

• any scheme expressly established by any written law for the benefit of the

employees in any trade, business, industry or occupation:

Critical Analysis

There are Limited rights in law, no provision for collective bargaining, no coverage of migrant

workers: The Trade Union Act of 1961 authorizes 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 unless

they receive prior written consent from both the Minister of Home Affairs and the Labour

Department. 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 recognize any right to

strike.

Why is it approached in such a way?

To protect the rights of labours and the employers and it helps the government to handle the labour

problem easily.

What needs to be improved?

The employers need to protect their interest as well as their employees. Awareness of labour rights to

the employees-they did not know that they can make a report or complaint to the Department of

Labour. Also, it is so that there is a border line to limit the labour from seeking his/her right as the

employer himself has his own right too.

Are there any advantages to Labour Law in Brunei's legal system?

Yes, rights for the locals and also for the migrants are protected as shown by TAP. The

Government‘s role, as shown by The Department of Labour, is ready to give assistance to Labour.

The Labour Act (Cap 93) showed significant progression and has been succeeded by the Employment

Order 2009.

The establishment of a trade union through the Trade Union Act (Cap 128) was hoped to benefit the

employees, employer as well as the government in promoting the industrial relationship between

employers and their workers. These relationships not only heightened the condition and environment

of the workplace as well as the living standards of the workers but also raised the productivity of the

organization and contributed to the nation's economy. He also stressed to the leaders and

management of both parties the importance of the resolving any situation which may arise through

negotiations and cooperation in avoiding the practices used by some trade unions abroad.

These foreign trade unions influence the managing of the organization and ensure that it was headed

in the best possible direction towards the development and advancement of the organization. In this

era of globalization, the relationship between employer and its workers was vital to ensuring that the

organization could be competitive in the today's world, which is full of challenges.

Any suggestions and recommendations?

There should be a clear communication between the labors and the employers. Cooperation between

both parties is highly required. Motivation to the labors helps to increase the quality of their working

style and output. Payments such as commission to those who are working overtime. Female workers

should enjoy equal access to work than their male counterparts. In particular women should have

access to permanent positions on the same basis as men.

Governmental roles

The government of Brunei;

must ratify all ILO core Conventions.

needs to ensure that all workers enjoy freedom of association and have a right to bargain

collectively and to strike through adopting legislative provisions recognizing these rights.

needs to ensure that foreign workers are covered by labour legislation.

must enact legislation to stipulate that all workers must enjoy equal opportunities on the

labour market regardless of their origins, sex, religion, or political convictions.

recognize that legislation regarding protection against discrimination must be strengthened.

So as to protect migrant workers adequately against abuses, the situation of foreign domestic

workers requires greatly increased attention from the Government.

should implement policies and programs to achieve equal opportunities for men and women

in employment and occupation.

ensure that its legislation on the protection of children is in conformity with the ILO Conventions.

ensure that legislation on forced labour must be in conformity with the ILO Conventions concerned.

take all necessary measures to prevent abuses and exploitation of foreign workers in conditions

amounting to forced labour. This should include more and better preventive measures as well as

assistance to victims of forced labour.

HIGHEST APPRECIATION TO:

ALSA International Board 2009-2010

AAC of ALSA Indonesia

AAC of ALSA Singapore

AAC of ALSA Malaysia

AAC of ALSA Thailand

AAC of ALSA Philippines

AAC of ALSA Hongkong

AAC of ALSA Japan

AAC of ALSA Korea

AAC of ALSA China

AA Coordinator of ALSA Observer Brunei Darusalam

All writers of this Law Review with the theme ―Protection

on Labour Rights‖

All ALSA members

ALSA always be one!