Promotion and Protection of the Rights of Workers: Gender Equality and Women Workers’s Right in ASEAN
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ABSTRACT
A LEGAL STUDY ON THE IMPLEMENTATION OF THE DRAFT ASEAN AGREEMENT ON THE PROMOTION AND PROTECTION OF THE RIGHTS OF WORKERS REGARDING THE GENDER EQUALITY AND WOMEN WORKERS’S RIGHT IN ASEAN
The Association of Southeast Asian Nation is consist of ten developing country member states including Indonesia, Malaysia, Philippines, Singapore, Thailand, Brunei, Vietnam, Laos, Myanmar and Cambodia. Comparatively, ASEAN is suffering under a gender inequality in regard with labor’s right abusing where women are struggling and discriminate in her/their workplace. The key issue arising under gender inequality in workplace are normally resulting as gender wage gap, sexual harassment in workplace and maternity protection. However, there are several factors leading to the issues of gender inequality and women worker’s right abuse arising in ASEAN due to the lack of state awareness, lack of social protection, weak law and policy enforcement. Fortunately, there exist a draft ASEAN agreement on the promotion and protection of the right of workers suggested by the Law Reform Commission of Thailand (LRCT) covering on all of labor rights protection including right to work and employment, right to association and collective bargaining, right to social security, women worker’s rights, child labor, right to nationality, right to health, right to training and education, right before the law, right to compensation, right to housing, right to found a family, right to freedom of movement and rights of migrant workers. Significantly, ASEAN shall implement the present draft ASEAN agreement on the promotion and protection of the right of workers for there shall be several possible impact on the labor right protection in ASEAN region both national and regional level. In national level, ASEAN member states shall boost up their attention toward the protection of labor right specifically gender equality in workplace along with their national effort in order to compliance with the articles citing within the draft agreement. In regional lever, implementing the draft agreement shall reduce the disparity of labor law in ASEAN region as well as to ensure the respect of human right and labor right protection in the ASEAN region. It should be optimistic that ASEAN in regard with the promotion and protection of the labor rights specifically gender equality in workplace and women worker rights will be more protective after implementing the draft ASEAN agreement on the promotion and protection of the rights of work.
LIST OF ABBREVIATIONS
ACW ASEAN Committee on Women
ACWC ASEAN Committee on the Promotion and Protection of the Rights of Women and Children
ACWO ASEAN Confederation of Women’s Organizations
ACMW ASEAN Committee on Migrant Workers
AICHR ASEAN Intergovernmental Commission on Human Rights
ASEAN Association of Southeast Asian Nations
ASEAN RPA on EVAW ASEAN Regional Plan of Action on the Elimination of Violence against Women
CLMV Cambodia, Lao, Myanmar, Vietnam
CEDAW Convention on the Elimination of all Forms of Discrimination against Women
CJEU Court of Justice of the European Union
EU European Union
GDP Gross Domestic Product
ICESCR International Covenant on Economic, Social and Cultural Rights
ILO International Labour Organization
LWU Lao Women Union
LRCT Law Reform Commission of Thailand
NGPES National Growth and Poverty Eradication Strategy
NCAW National Commission for Advancement of Women
NSPAW National Strategic Plan for the Advancement of Women
SLOM Senior Labor Officials Meeting
TOR Term of Reference
UDHR Universal Declaration of Human Rights
UNGA United Nation General Assembly
UN United Nation
UK United Kingdom
US United State
Contents
2.1 General Introduction to the gender equality
2.1.1 General concept of the gender equality
2.1.2 Definition of gender equality
2.2 Facts and Key challenges of the gender equality and women worker’s right in regions
2.2.1 Overview on the arising facts of gender equality and women’s workers in regions
2.2.2 Key challenges of the promotion and the protection of gender equality and women worker’s right
2.2.2.1. Lack of state awareness
2.2.2.2. Lack of social protection
2.2.2.3. Weak law and policy enforcement
2.3.1 Convention on the elimination of all forms of discrimination against women (CEDAW)
2.4.1 The Equal Remuneration Convention
2.4.2. Discrimination (Employment and Occupation) Convention
2.4.3. Workers with Family Responsibilities Convention
2.4.4. Maternity Protection Convention
2.5.1 ASEAN Committee on Women (ACW)
2.5.3 ASEAN Confederation of Women’s Organizations (ACWO)
CHAPTER THREE: GENDER EQUALITY AND WOMEN WORKERS’S RIGHT IN ASEAN COUNTRIES
3.1 The key issues of the gender inequality and women rights violation in workplace
3.1.1 Gender wage gap and mistreatment
3.1.2 Sexual harassment in workplace
3.1.3 Maternity protection in workplace
3.2 Case studies of gender equality and women worker rights situation in ASEAN
3.2.1.2 Workers situation in Cambodia
3.2.2.2 Workers situation in Lao
3.2.3.2 Workers situation in Myanmar
3.2.4.2 Workers situation in Vietnam
CHAPTER FOUR: LESSON LEARN FROM EUROPEAN UNION LABOUR LAW
4.1.1 EU Charter of fundamental rights
4.1.2 The European Union Labour law
4.1.2.1. European labour law on employment contract law
4.1.2.2. European labour law on the protection against discrimination within the employment
4.1.2.3. European labour law on the protection of employees
4.1.2.2.1 Heath protection and safety at work
4.1.2.2.2 Maternity protection and Parental protection
4.1.2.2.3 The protection of Young people in workplace
4.1.2.4. Collective labour law
4.2 Court of Justice of the European Union (CJEU)
5.1 Draft ASEAN agreement on the promotion and protection of the rights of workers
5.1.1. Overview of the draft agreement
5.1.2. Objective and purpose of the draft agreement
5.2.1.1. National efforts and ensure effective balance of gender equality and labor protection
5.2.1.2. Strengthen policy and law enforcement
5.2.2.1. Reduce disparity on labor rights between ASEAN
5.2.2.2. Ensure gender equality and labor rights protection in the region
CHAPTER ONE: INTRODUCTION
1.1 Background of study
Gender equality generally refer to the role that men and women play in all sectors include social-cultural, economic and political; however, gender equality usually came along with the focus on women’s rights because the role of women in history has not been treat equally with men but it is significantly improves during the later decades. Indeed, gender equality and women’s rights known as one of a main factor encouraging the protection of human rights as well as the economic development of the country. Evidentially, the 1945 United Nation adopted the gender equality as one of the fundamental principle of human rights by addressing equal rights of men and women in regard with rights and obligation in all share of life around the world.[1]Moreover, Gender equality considered as a main supporter of economic development and poverty reduction since women globally accounted for 49.6 percent whereas men accounted for 50.4 percent of the world population[2]; yet, women only share 50 percent in labour force comparing to men who share 77 percent of labour participants[3]. Fortunately, labour force and labour market play an important role in developing countries and region such as ASEAN as a mean to boost up the economic growth situation within the country so the need of the involvement of women is very important to contribute the growth and to increase the productivity of the country. Unfortunately, there are plenty of job provided for both men and women but the gap between men and women in regards with gender inequality still remain large even though the progress toward gender equality are incredibly advancing yet it seem to be uncertain as can be seen in the case of several ASEAN countries. In this respect, the international organizations as well as the regional organizations were putting their attention with close watch on the protection and promotion of gender equality and women’s rights by establishing numbers of international law and legal binding instruments such as treaty, conventions, agreement to expect for the effective solution.
1.2 Purpose of the study
The purpose of this study is to comprehensively look into the protection and promotion of gender equality and women rights in Southeast Asia by selectively chose the countries with comparatively higher rank of gender inequality within Southeast Asia countries known as CLMV countries which consist of Cambodia, Lao PDR, Myanmar and Vietnam. Furthermore, this study will emphasise the issue and the important of improving gender equality by suggesting ASEAN to implement the draft ASEAN agreement on the promotion and protection of the rights of workers by providing legal analysis to the actual fact and problems of ASEAN countries. Thus, this legal study will also share the lesson learn from European Union Labour law to study for the improvement of ASEAN law related with labour specifically gender equality and women’s rights.
1.3 Legal issue
The aim of the present dissertation will examine the case and legislations regarding gender equality and women’s rights in ASEAN with special focus on gender wage gap, sexual harassment in workplace and maternity protection of female workers in ASEAN particularly CLMV countries . Literally found, the study of the protection and promotion of the rights of workers are consist of several issues such as the lack of the protection and promotion of gender equality and women worker rights, the lack of social protection, the lack of state awareness, weak state law practice, and weak law and policy enforcement.
What are the important of gender equality and women worker’s rights to ASEAN?
- How does the international arena react to the protection and promotion of gender equality and women worker’s rights?
- What can ASEAN learn from Europe Union labour law?
- What are the future prospect of the implementation of draft ASEAN agreement on the promotion and protection of the rights of workers?
1.4 Scope and Delimitation
This paper will prioritizes on the study on gender equality in workplace especially concerning women’s rights in workplace. This paper will not cover gender equality or gender discrimination based on education, nationality, ages, religious, ethnic and races since the paper is focus only in the field of gender equality in workplace and labour force. Furthermore, this study will not discuss about the political related causes and issue but the study is conducts in the respect of economic development, international human rights law, international labour law and other convention related with the gender equality and women rights in workplace.
1.4 Significance of Study
This legal study provide insightful outcome and proposal to the protection and promotion of the rights of worker in ASEAN specifically focus on the gender equality and women worker’s rights. Although some previous studies have been conducted on this respective issue, this research can be relatively distinguished from those studies in some characteristics. First, the former researcher studies have given the attention only on ASEAN in broad sense, yet this study conduct the focus on ASEAN specifically the CLMV countries namely as Cambodia, Lao PDR, Myanmar and Vietnam. Second, the previous studies tend to conduct the study on gender equality in broad sense; however, this study will focus on gender equality specifically in workplace. Third, the study will also comprehensively evaluate the current issues and key challenge arising from the practice of gender equality and the protection on women worker rights. Fourth, this study attempt to propose for the implementation of the draft ASEAN agreement on the promotion and the protection of the rights of workers for the effective protection toward progressive advance of gender equality and women worker’s rights. Theoretically, this study will serve as the guideline for further researchers who fascinated in this field of study.
1.5 Methodology of Study
The nature of this study bases primarily on qualitative study design. Most of information and data are collected in two distinctive categories, both primary and secondary data. The study attempts to gather relevant statements from government officials and statistical data from national institutions of countries. In addition, documents from reliable websites, journal articles, online articles, newspapers, working papers, and reports from well-known institutions, in terms of secondary sources of information, are utilized to fulfill objectives of this research. Economically focused, statistics from credible institutions of national and international organizations are also collected. For instance, data from national institutions on gender labor force, panel data from the World Bank Website, and the legal binding instruments on related fields from other international organizations such as International Labor Organization, The Universal Declaration of Human Rights, United Nation and ASEAN. Moreover, the study will conduct under the comparative study by addressing the fact and situation of United State, European Union and ASEAN regions. Plus, this paper will conduct the lesson learn in the form of comparative study between ASEAN and European Union labor law will be critically analyzed.
1.6 Structure of Paper
This paper is divide into five chapter and the study is structured as follows:
Chapter one: This part is initially described the background of the study, purpose and objective of the study, legal issue, research methodology, significance of the topic, research rationale and conceptual frameworks used to approach the issues.
Chapter two: This chapter will discuss about the general concept and definition of gender equality follow by the brief overview of the arsing fact and key challenges of gender inequality and women worker’s right in Europe, US and ASEAN. Last but not least, the paper will point out and discuss on the protection and the promotion of the rights of worker specifically gender equality and women worker’s right under international and regional legal framework.
Chapter three: This section elaborates the key issues of gender inequality and women worker right violation in ASEAN. This part provide crucial case studies and analysis on the fact, condition and the response from the each national government of ASEAN countries particularly Cambodia, Lao PDR, Myanmar and Vietnam.
Chapter fourth: The purpose of this chapter is to examine the lesson learn from European Union labour law as a scheme to practice in ASEAN labour law.
Chapter fifth: This particular chapter will demonstrate a proposal on the implementation of the draft ASEAN agreement on the promotion and protection of the rights of workers with the possible impact prospect regarding implementing the present draft ASEAN agreement.
Chapter sixth: This chapter attempts to summarize main points of the research and draws some implications. The contextualization of this study will yield the understanding towards the protection and promotion of the rights of workers base on gender equality and women worker’s rights in ASEAN as the whole.
CHAPTER TWO: THE PROTECTION AND THE PROMOTION OF THE RIGHT OF GENDER EQUALITY AND WOMEN WORKERS IN INTERNATIONAL LEGAL FRAMEWORK
2.1 General Introduction to the gender equality
2.1.1 General concept of the gender equality
Historically, women comparatively not able to enjoy the same opportunity as men in society including economic, political and labour force opportunity. This generated from the old traditional concept that women is the one responsible for taking care of children and household yet men is the one responsible for providing money to the family. Moreover, the daughter is considered as a burden of the family whereas the son is considered as a treasure since they are allow to find a job and providing the money to support the family[4]. This concept is mentally and physically stated that women are weaker than men in all senses which lead to the gender inequality and gender discrimination.
Unfortunately, the idea is no longer reasonable and acceptable in the recent centuries since women and men are require equal rights, equal opportunity and equal pay with the same jobs. Also, the gender equality is a critical issue that has been discussed and mandated in the national law of states as well as the international law. Even though there are plenty of international laws and agreements within the scope of the gender equality and women rights protection but still gender inequality and gender discrimination remain higher ranking in ASEAN region comparing with European Union region[5]. Hence, many countries from ASEAN are already sign and ratify the international convention or agreement related with the gender equality protection specifically on the protection of women welfare and rights but the violation of gender equality and women worker rights still remain. Notably, many women in ASEAN are recently increase in the labour force market but most of them are mistreatment and given the opportunity only by the underpaid and low security job which provide no access to health care, health insurance, unhealthy working environment and no any standard protection[6].
2.1.2 Definition of gender equality
Gender equality refer to a state in which women and men are enjoying the same rights and opportunity regardless of one’s gender. Practically, gender is distinguishable from sex because sex refer to the physically different that define men and women whereas gender focus on the social and cultural role appropriated given by the society to both men and women[7].
2.2 Facts and Key challenges of the gender equality and women worker’s right in regions
This section will discuss briefly about the facts and key challenges which occasionally occur in the society regarding gender equality in workplace and women worker’s rights in the regions including European Union, United State and ASEAN.
2.2.1 Overview on the arising facts of gender equality and women’s workers in regions
Gender inequality is truly a global concern happening in all regions around the world; yet, the level of gender inequality is vary from one region to another. There are three main regions that gender equality gap index is remarkably different from each other due to several factors and those regions are European Union, United State and Association of Southeast Asia Nation.
2.2.1.1 European Union
European Union (EU) or we can simply call EU member states are comparatively advance in term of economic, social and security as well as the protection of human rights in regard with the gender equality protection. Although the gender inequality in EU still exist but it is comparatively in a smaller scale since EU has made a significant move in the last decades. Fortunately, EU gain the name of one among the best supporter of gender equality in the world as can be seen in the establishment of the Equal pay act in 1970 in which EU has adopted and respected the protection and promotion of gender equality specifically stated in article 191; later article 141, that states must ensure the protection of gender equality in term of equal pay for equal work[8]. Moreover, the Equal pay act 1970 considered as a strong legal commitment from the EU to primary focus on the prevention of gender discrimination in regard of payment in the employment favourably on the like work, equally related work and equal value work[9].
As a result, women workers in EU proved their rights base on the rights and obligation stated in the above equal pay act 1970 and able to win the claim against the employer who violate their payment rights and some women even able to raise their job value to a higher skill paid base on the equal pay amendment regulation in 1983[10]. Likewise, the protection of the maternity is highly encouraging in EU as it stated about the rights to health and safety of pregnant women and new mother. As can be seen in the case of Jessy Saint Prix who originally from France and migrant to Britain in 2006 and she quitted her job as agency six months prior to her pregnancy; yet, she looking for a job but unable to find any job. As a result, the UK government refuse to support her by declining her not as a worker but a normal migrant person and Jessy Saint Prix brought the case against the UK government and CJEU favour to her ruling[11]. Evidentially, this case brought EU law to focus more on the free movement of workers and the protection of maternity and pregnancy workers since the equal treatment of gender is highly encouraging in EU labour market[12]. In short, it can said that the gender equality in EU comparatively good in the protection and promotion of gender equality and women’s worker rights and still EU struggling to provide measure for improving gender equality in all aspects.
2.2.1.2 United State
Even though United State is a superpower country who wield the superpower in light of political influence, military and economic capacity as a single country in the world but the gender inequality still exist inside the country. In fact, US women accounted only for 78 cents of a dollar made by US men[13]; however, US rank number 5 among 187 states in term of gender equality protection in labour market so we can say that United State gender equality is comparatively good among other states[14]. Consequently, gender equality was addressed across US national law as a core human right fundamental principle as it can be seen that US has supported the protection of gender equality remarkably in 1920 US constitution regarding a first right to vote for women or we can called women suffrage movement[15].
Furthermore, US also conduct the civil rights act in 1964 under title VII to precisely protect any violation based on sex discrimination in workplace as a US federal law[16]. Plus, the title VII of civil rights act 1964 are authorizing cover all employers and all local governments in US. As a result, women accounted for 50 percent of overall workers in US within 2010 yet the position of women workers are quite lower skill job than men since women are accounted mostly on health and services whereas men are accounted mostly on professional, technological and technical sectors[17]. All in all, we can clearly say that even though the gender equality in US is comparatively have a better ranks then some other nations but the gender inequality still remain within the low skill and high skill job.
2.2.1.3 Asia focus on ASEAN
Women in Asia are facing and insisting on the equal rights with men in all term including family relation, working participation and decision making. Particularly, there is quite a similar and different situation and condition for women in the East Asia and the South Asia. However, I would like to raise the study on the ASEAN region since this region is one of the largest economy in the world with the rapid growth of labour force expansion; yet, the region is still in a big problem relating the protection and the promotion of worker’s rights especially women worker’s rights and gender inequality. The Association of Southeast Asian Nations or we can shortly called ASEAN were consist of 10 developing member countries who are struggling for economic development and regional cooperation namely as Brunei Darussalam, Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar, Philippine, Singapore, Thailand and Vietnam[18]. Moreover, the rising size of labour forces is one of the main engine factor encouraging the economic development of ASEAN by reducing poverty, increasing productivity, increasing the employment rates; however, many challenges appeared[19]. Furthermore, gender inequality in workplace and women worker rights violation is the main challenges that preventing ASEAN from reaching the peak of human right protection and economic growth since gender inequality cause enormous of economic cost, social disvalue and health challenges[20]. As can be seen in Cambodia, women share 60 percent for an informal work comparing to men who share only 30 percent, 89 percent of child domestic workers are girls, 85 percent of migrant workers are women from far local areas and only 23 percent of women under public sector employment whereas men accounted for 77 percent of public sector employment and other higher position[21]. Evidentially, in the United Nation development program report in 2013 claimed that most of ASEAN countries are comparatively in between the rank of medium and low human development as well as the gender inequality comparing with EU and United State[22]. Despite the fact that many challenges occur regarding the gender inequality and women worker’s rights, ASEAN are striving on the improvement of gender equality by establishing numbers of declaration, convention and agreements toward the gender equality protection.
2.2.2 Key challenges of the promotion and the protection of gender equality and women worker’s right
There are plenty of obstacles to the development of gender equality in workplace and women worker’s rights. However, there are three main challenges that considered as a threat to the improvement of gender equality and women worker’s rights such as the lack of state awareness, the lack of social protection, weak law and policy enforcement. These three main challenges will be discuss in the following part:
2.2.2.1. Lack of state awareness
A basic problems of gender inequality across the globe is the lack of state awareness in broad sense. Comparatively, state awareness is one of the main strategic addressing the state commitment in the respect of improving the gender equality. Generally, the lack of state awareness would partially effect to the promotion and protection of gender equality specifically the gender equality in workplace. Thus, state can prove their awareness through the conduct of actions such as studying and investigating the issue, establishing new policy and guideline and providing proper solutions to the issues which play a very crucial role in promoting and protecting the gender equality by government.
As a result, the lack of state awareness is one of the reason of the gender inequality in the country as well as a region as a whole[23]. Thus, we can visibly see that women who are not aware of their rights, they cannot claimed their rights so state awareness could link to public awareness in which government can promote the gender equality protection by sharing the knowledge directly to women workers and by providing the useful information through social media such as television, radio, newspaper and other online media.
2.2.2.2. Lack of social protection
The social protection concept are rooted conducted under the Universal Declaration of human rights as a tool to reduce poverty and protect the standard living of human being[24]. Indeed, social protection are addressed under the article 9 of the International Covenant on Economic Social and Cultural Rights (ICESCR) in 1966 stated that state parties are obliged to provide the right to every individual person including the social security which refer as social protection under ILO and other UN bodies[25]. Moreover, social protection could lead to the improvement of gender equality under a mean of providing social insurance, net incomes, access to healthcare and food, maternity allowance and promote the gender equality specifically in work place with the public awareness to raise the concern and respect toward the gender equality in work place[26]. So social protection is an important key to achieving gender equality and women empowerment specifically the protection of women worker’s rights.
2.2.2.3. Weak law and policy enforcement
Indeed, law and policy of a country play a very important role in monitoring and limit the action of citizen for social orders protection. Yet, weak law and policy enforcement is one of the most challenges in gender inequality across the globe because law and norm are simultaneously justifying the patterns of social, economic and legal endowment between men and women[27]. In addition, improving the law and policy regarding the gender equality are critically contributed to gender equality specifically on women worker’s rights by strengthening policy addressing on equal pay, equal treatment, parental leave or maternity leave[28]. Additionally, in worst case, there are some law regulating to restricted women from the certain kinds of employment as women globally face job restrictions in 100 countries out of the 173 countries limited the job capacity of women and 18 countries of them even allow the husband to decide whether or not a wife can do the job[29]. All in all, reforming the law and strengthening the law are really important and contributory toward gender equality and women worker’s rights.
2.3 International human rights on the protection and promotion of the gender equality and the right of women’s worker
International world has address the issue of gender equality as one of the fundamental principle of human rights. As can be seen in the article one of the United Nation charter stipulated clearly that one of the main purpose of the establishment of UN is for the respect of human rights and fundamental freedom as well as the principle of equal rights and self-determination of peoples[30]. Furthermore, women rights are appropriated considering as human rights under Universal Declaration of Human rights by addressing the principle of the inadmissibility of discrimination based on sex in which required a strong attention with effective solution from the international arena[31]. As a result, a significant conventions relating with the promotion and the protection of gender equality and women rights including women workers are adopted.
2.3.1 Convention on the elimination of all forms of discrimination against women (CEDAW)
As tensions occur, the adoption of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 1979 is compulsory to be conducted by UN General Assembly[32]. Indeed, the convention entered into force in 1981 and it consists of 30 articles with 188 member states with the purpose of eliminate all forms of discrimination against women in accordance with the principle of equality, asking for state actions along with responsibility and establish proper court of justice and other institutions to ensure the effective protection of women against discrimination in all forms[33]. Moreover, article 11 of CEDAW are intentionally correlated with the protection and promotion of gender equality in workplace and women worker’s right and the article stated that:
“1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular:
(a) The right to work as an inalienable right of all human beings;
(b) The right to the same employment opportunities, including the application of the same criteria for selection in matters of employment;
(c) The right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining, including apprenticeships, advanced vocational training and recurrent training;
(d) The right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work;
(e) The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave;
(f) The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.
2. In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, States Parties shall take appropriate measures:
(a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status;
(b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances;
(c) To encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life, in particular through promoting the establishment and development of a network of child-care facilities;
(d) To provide special protection to women during pregnancy in types of work proved to be harmful to them[34]”.
All in all, this article is purposely protect the equality based on gender in term of employment by providing equal treatment in regard with rights, obligation, and opportunity along with special protection to pregnant women workers. Resultantly, the establishment of this convention is a proof of how important it is to eliminate all forms of discrimination against women including gender equality in workplace and women worker’s rights of each nations under international society.
2.4 International labour organization on the protection and promotion of the gender equality and the right of women’s worker
Originally, the international labour organization (ILO) was established in 1919 with the purpose of promoting labour rights in accordance with human right in order to pursue social justice[35]. Moreover, one of the main principle of ILO is to promote gender equality between men and women based on decent work which refer to dignity, equality, fair income and safe working condition[36]. Furthermore, ILO play an important role specifically in promoting gender equality in work place as well as women worker’s rights as it stated clearly in its objective elements to promote the standard and rights at work, create greater opportunity for both men and women in term of income, ensure effective social protection and strengthening the legal framework institutions such as tripartism[37] and social dialogue[38]. Therefore, ILO progressively approach to the protection of gender equality in work place and women worker’s rights by establishing four specific conventions in regard with the protection of gender equality and women worker rights.
2.4.1 The Equal Remuneration Convention
The Equal Remuneration convention under a code no.100 was adopted in 1951 and entered into force in 1953 by attempting to achieve equal pay for work of equal value base on legal principle of the equal remuneration. Meanwhile, the legal term of remuneration critically refer to wage or salary and other payable emolument in all forms by employer to employee[39]. Moreover, this convention is specifically contribute to the improvement of gender equality in workplace between men and women base on the arising issue concerning the mistreatment of wage between men and women.
Therefore, this convention play a crucial role in coordinating the state actions and practices for the effective promotion of gender equality as can be seen in article 2 (2) that “the principle may be applied by means of national laws or regulations, legally established or recognized machinery for wage determination, collective agreements between employers and workers, or a combination of these various means”[40]. Plus, the equal remuneration convention has significantly moving forward as a result of the further discussion and recommendation toward the topic of equal remuneration[41].Thus, this convention is particularly important on the protection and promotion on the specific issue regarding the equal pay for the work of equal value or we can technically called the equal remuneration.
2.4.2. Discrimination (Employment and Occupation) Convention
The discrimination based on sex in workplace are commonly occur in all kinds of employment and the discrimination can be in a form of sexual harassment and unequal opportunity provided[42]. Evidentially, there is an establishment of Convention concerning Discrimination in Respect of Employment and Occupation that adopted in 1958 under an International Labour Organization within the code of convention no. 111. Therefore, the Convention concerning Discrimination in Respect of Employment and Occupation is conducted under a purpose of preventing any act of discrimination in workplace as it specially defined a term of discrimination in article one of the convention as “any distinction made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin that may affect the equality of opportunity or treatment in employment or occupation”[43]. Also, this convention has a follow up recommendation known as R111 in an attempt for the effective abolition and elimination of discrimination in workplace specifically for women workers[44]. Hence, this convention is contributable to the protection and promotion of gender equality in workplace as well as the women worker’s rights.
2.4.3. Workers with Family Responsibilities Convention
This convention of Workers with Family Responsibilities Convention was adopted in 1981 and entered into force in 1983 as one of the main convention regarding gender equality in an International Labour Organization[45]. Moreover, this convention is important because the issue of unbalance between work and family are mainly contributed to the poverty and gender inequality. As can be seen that every workers have family and most of them are women who carried on the family responsibility and carer responsibility which referring on children, aged parents or relatives that would be a big challenge for women to actively involved in the job productivity and working management[46]. Furthermore, the convention stated clearly that states shall make a special support to workers with family responsibility inside a national policy to enable them to work without discrimination and without conflict between their employment and family responsibilities[47]. As a result, the adoption of Workers with Family Responsibilities Convention is very important to support workers with responsibility specifically women for their special needs and improve the working conditions as well.
2.4.4. Maternity Protection Convention
Generally, having a family and baring a child is an avoidable outcome for all working women that would inconvenient to women for fulfil the job responsibility since it may take a huge amount of time for mother to give birth, to recover and to nurse the baby. On the other hand, this may adversely affect to employment in a risk of losing their job so considering the important of the maternity protection, there is an establishment of maternity protection convention. Moreover, the maternity protection convention adopted specifically to protect women worker who are absent from work for a parental leave or maternity leave by providing the health protection , non-discrimination, breastfeeding break and also a permission leave in case of illness[48]. Thus, the adoption of this convention contributed to the improvement of women health care and women special protection as well as the improvement of women worker’s right.
2.5 ASEAN Regional Organization on the protection and promotion of the gender equality and the right of women’s worker
The Association of Southeast Asia Nation’s women still trail behind men in workplace in term of treatment such as wages and other benefits[49]. Comparatively, ASEAN have a lower gender equality in workplace comparing with European Union and United State who have higher protection and promotion of gender equality specifically in term of workplace[50]. However, ASEAN also engaged in the protection of gender equality and women worker rights by establishing several organizations and conventions in regard with women and gender protection.
2.5.1 ASEAN Committee on Women (ACW)
Originally, ASEAN Committee on Women (ACW) was established in 1976 in order to monitor, developing policy and implementing on Women related issue in ASEAN regional in order to ensure the effective protection on women rights[51]. Historically, ACW known as an oldest existing body on women issue which accomplished in the adoption of the Declaration on the Elimination of Violence against Women in the ASEAN and later on establish ASEAN regional plan of action on the elimination of violence against women (ASEAN RPA on EVAW) in 2014 in order to effectively eliminate any act of gender based violence against women that may result in physical violence or threat against women in ASEAN[52].
2.5.2 ASEAN Commission on the Promotion and the Protection of the Rights of Women and Children (ACWC)
The ASEAN Commission on the Promotion and the Protection of the Rights of Women and Children (ACWC) was established in 2010 as an intergovernmental body and an integral part of the ASEAN organisational structure. Systematically, the commission comprises two members from each of ten ASEAN member states to discuss the issues critically and cooperate for the effective solutions[53]. In fact, ACWC was adopted in an aim to protect and to promote women and children rights as a mandate to look after a human right in ASEAN as well as encouraging the empowerment of the women participation in labour force for the economic purpose and the development purpose as it was addressed in the ACWC term of reference (TOR).[54] The commission represent the regional cooperation toward the protection of women and children’s rights and it also assist state members to fulfil its obligation in regard with the ACWC mandates.
2.5.3 ASEAN Confederation of Women’s Organizations (ACWO)
ASEAN Confederation of Women’s Organizations (ACWO) was officially established on 1981 in Jakarta-Indonesia under the involvement from national council of women from each of the ten ASEAN member states[55]. Hence, the purpose of ACWO is to ensure the equality, to coordinate women practices in regard with human dignity, to carry out study and investigations on ASEAN women issue and also to effectively cooperate with the UN or other international institution in the respect of women right protection[56]. Thus, the ACWO meeting agenda that the organization are progressively discuss on all the matters related with women issue that[57]:
| Year | Theme |
| May 2000 | “The New Millennium, ASEAN Women Taking Stock and Moving Forward” |
| July 2002, | “Globalization – Economic, social and political empowerment” |
| July 2004, | “Elimination of Violence Against Women” |
| September 2006, | “ICT: e-commerce and e-government bringing a higher quality of life in ASEAN” |
| November 2008 | “Empowering women and expanding their participation in the globalized economy” |
| Oct. 2010 | “Enhancing Women’s Effective Participation toward a Peaceful, Prosperous and Sustainable ASEAN” |
| November 2012 | Accelerating the Achievement of the MDGS through Gender Equality and the Economic Empowerment and Protection of Women in ASEAN |
| August 2014 | Equality For Women Is Progress For All: Achieving the MDGs In ASEAN” |
| Oct 2016 | THE UN 2030 SDGS: ACWO Leading ASEAN Women Towards A Prosperous Economy, Social Harmony And Sustainable Environment |
As can be seen that the above ACWO meeting agenda started from 2000 until 2016 has discussed on the matter of women involvement in economic, social and political in ASEAN which partially contribute to the promotion and protection of gender equality as well as women worker’s rights.
CHAPTER THREE: GENDER EQUALITY AND WOMEN WORKERS’S RIGHT IN ASEAN COUNTRIES
3.1 The key issues of the gender inequality and women rights violation in workplace
Gender equality implementation are not smoothly conducted by states and individual practices so there are quite a number of gender inequality issues occurring in the history of gender equality development. Among those issue of gender inequality, there are three main gender inequality issues in which it should be discussed in this paper and those significant gender inequality issues are referring to gender wage gap and mistreatment, sexual harassment in workplace and maternity protection.
3.1.1 Gender wage gap and mistreatment
ASEAN women were long suffering from the mistreatment in term of wages gap comparing with men in workplace by the employers mostly under an old traditional perception that women are mentally and physically weaker than men. To be precise, gender wage gap refer to the relatively different between men and women earning in the employment while doing the same job and it happened on the full employment workers and self-employed worker[58]. Specifically, most of ASEAN’s women workers in the a higher position claimed to have equal pay with men whereas women workers in the field of garment factory sector claimed to be suffer under an imbalance pay between men on the work of equal value in an amount of 17 to 25 percent of the pay rang between men and women as a result that women tend to be lag behind men in term of earning potential in the employment[59]. Moreover, women workers in some cases received mistreatment from their manager or employer by asking before signing the contract to stay single and never pregnant as long as the contract is valid and during their term of employment[60]. In addition, the gender wage gap is one issue of the gender discrimination and it remain a considerable challenge and obstacle in the gender equality and economic development in ASEAN society[61].
3.1.2 Sexual harassment in workplace
According to ILO, sexual harassment in work place is defined as an unwelcome advance of any act of conduct including physical sexual assault or attempted rape, verbal including sexual comments and questions on a person and non-verbal including cornering, whistling and sexual suggestive gesture[62]. Sexual harassment is one of the issue that likely to happen in workplace to both men and women but mostly suffering by women from her male college, male manager or male employer. Thus, the conduct of sexual activities formally come from the use of force or an exchange suggestion from the employer to women workers for the working benefit such as pay or promotion which is violate to women rights and human rights. Likewise, there is an adverse effect from the sexual harassment to the women worker in workplace toward the opportunity and treatment between men and women as well as the quality of work since women may get shock, traumatized and sick from the sexual harassment and it would increase the absenteeism which will effect to the person’s ability to work[63].
3.1.3 Maternity protection in workplace
Maternity protection in workplace is known as one of the main fundamental labor right which conducted in the treaties of the universal human rights including women’s right. In addition, maternity protection in workplace are specifically covering on maternity leave, cash benefits, medical care, protection from workplace risks, protection from discrimination and dismissals, and the right to breastfeeding on return to work[64]. Moreover, maternity protection in workplace is very crucial to enhance and strengthen the social protection for female workers because around 8 million women are suffering from the pregnancy and more than half a million of women die in a period of before, during and after giving birth[65].
Furthermore, the protection of maternity of female workers is to ensure the comfortable environment and acceptable working condition for women in which it does not harm to the health of the women and her child as well as to ensure her employment security since pregnant women are in a high risk of losing their job for an absenteeism due to child birth and maternity leave[66].
3.2 Case studies of gender equality and women worker rights situation in ASEAN
ASEAN countries are known as developing countries who comparatively has higher gender inequality and low protection of women worker’s rights as can be seen that women regionally share only 58.8 percent of labor force participant whereas men share about 81.8 percent[67]. To be more precise, we will conducted a further case studies on national labor law, workers situation and government response in several ASEAN countries focus on the CLMV countries such as Cambodia, Lao PDR, Myanmar and Vietnam.
3.2.1 Cambodia
Cambodia formally known as a Kingdom of Cambodia and joined ASEAN as a tenth member on April 30, 1999[68]. The country experienced almost a decade on a serious civil war of Khmer Rouge and was considered as one of the country with largest gender gap in education, economy and political empowerment in the East Asia and Pacific region[69]. However, Cambodia regain peace and reconstruct its national administration and follow up with the international relations by adopted, signed and ratified numerous of treaties and conventions. Specifically; Cambodia are actively improve and involved in regard with gender equality and the protection of women’s rights by ratifying the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in October, 1992 and its optional protocol[70] and it was recognized as a fundamental legal basic in article 31 (1) and 45 (1) of Cambodian constitution[71].
3.2.1.1 National labor law
The development of Cambodia national labor law have been through five main stage of period started from the eras of 1953 to 1970, 1970 to 1975, 1979 to 1992, and 1993 to the present[72]. In the period of 1953 to 1970, Cambodia regain the control over its own administration from French and provide some related labor law whereas in the period of 1970 to 1975 was under Khmer Rouge and the national labor law were revised. Thus, Cambodia were conducted a new labor law from the period of 1979 to 1992 and numerous of law and regulations relating with labor law were created under a period of 1993 until present including the 1997 labor law, 2002 law on social security and other international conventions from the international labor organization (ILO)[73].
Moreover, the present 1997 labor law were consist of 396 articles and it stated clearly in article 12 related with non-discrimination that no employers shall consider on an account of sex, race, color, creed, religion, political opinion, birth, social origin, membership of workers union or involve in union activities[74]. Furthermore, Cambodia national labor law are proved to be in respect of gender equality since it expressed clearly in article 106 that:
“for work of equal conditions, professional skill and output, the wage shall be equal for all workers subject to this law, regardless of their origin, sex or age”[75].
Also, Cambodia national labor law encouraging the protection of women worker’s rights specifically on maternity rights clearly in article 182-187 that employers shall provide maternity leaves, breast feeding break, nursing room and a comfortable environment to women[76]. Even though there are plenty of laws and regulations regarding labor law were conducted but it does not ensure the possible outcome since the problems is the process of the implementation and the enforcement by government and employers.
3.2.1.2 Workers situation in Cambodia
Gender balance in workplace between men and women in Cambodia remain a large gap in public administration related job such as civil services, decision making level and higher position. As can be seen that the percentage of female worker participate in civil service field are[77]:
| 2007 | 2008 | 2009 | 2010 | ||||
| Total | Women | Total | Women | Total | Women | Total | Women |
| 176,344 | 57,114 | 182,228 | 61,298 | 184,961 | 61,946 | 183,835 | 62,377 |
However, working groups of industrial sector comparatively suffer a gender inequality and labor right abuse since there are several life story told by women workers in few industrial sectors especially in the Garment and Textile factory regarding their working situation and environment. The first story has been told by Srey Mao who is one of a garment factory worker that join a worker union and was discriminated by her manager to an isolate workplace in order to observe her actions and she was fired twice by her managers since she is brave enough to ask for a rights for herself and even for her college who is suffered the same issue of wages, long hours and discrimination[78].
Another story has been told by Leouk Thary who worked for a four month short term contracts in one garment factory in Cambodia; yet, she worked overtime until she got a serious nose bleeding and asking for a permission to go to hospital but was rejected and fired a next day after she asked for a sick leave[79]. Moreover, in an amount of more than 23 percent of women workers were fired because of their pregnancy in Siem Reap province of Cambodia in which the employers considered pregnant women as burden and useless[80]. All of the above statements from female workers in Cambodia showed the labor rights violation and ineffectiveness of the implementation of national and international labor law in Cambodia since most women were mistreatment and discriminated due to their pregnancy, sick leaves and member of unions.
3.2.1.3 Government response
Historically, the implementation of the national and international labor law remain slow and ineffective since Cambodia is mainly lack of financial and human resources. However, the implementation of the law is practically improved recently proving by the increasing minimum wages to 140$ a month for all garment factory workers who make a long serious strike for wages increase[81]. Knowingly, Cambodia has a poor and corrupted labor inspector so the labor ministry established labor inspectorate team with a cooperation with ILO in 2014 to observe, to investigate, to inspect and to report on the factory inspectors and the factory working conditions in an aim for accelerating factory improvement[82]. Moreover, Cambodia established a 2014-2018 development plan on labor sector and training sector focusing on many field including the working safety of workers, health insurance, improvement freedom of working union and gender balancing[83]. As a result, even though Cambodia progress on the implementation and enforcement of labor law remaining slow and ineffective but the practice is comparatively better than the past.
3.2.2 Lao PDR
Lao People’s Democratic Republic is the only land lock country in ASEAN and became a member of ASEAN on 23 July 1997[84]. Noticeably, the country regain its political stable after the collapse of Soviet Union and regain its business and economic reform from 2005 yet the country known as one of the East Asia’s poorest country[85]. Regarding the gender equality, Lao respected the protection and promotion of gender equality by addressed clearly in its national constitution article 37 that both gender of citizen shall have equal rights in term of political, economic, cultural and social and family affairs[86]. Moreover, Lao acceded to the convention on the political rights of women in 1969[87] and committed itself to reduce violence against women and gender inequality in all forms by ratifying CEDAW in 1981 and establishing Lao Women Union (LWU) to promote and to raises greater awareness of women rights protection as well as gender equality to the rural citizen in the country[88].
3.2.2.1 National Labor law
Lao labor law was established in 2006 but it was revised and replaced by the new labor law which was formally approve in 2013[89]. In addition, the new labor law conducted a new law on employments in Lao including domestic workers and foreign workers[90]. Furthermore, the new labor law consist of 181 articles whereas section VI (chapter 1) specifically conducted a new and revised law covering on employment of women[91]. Thus, Lao labor law is strongly encouraged the promotion and protection of gender equality and female workers rights as it was addressed in article 96 that:
“Female employees have the right to employment and professions in every sector that do not conflict with the law, including production, business and management, and may participate in training, labor skills improvement and providing expertise. Female employees shall receive a salary or wages equal to that of male employees, excepting some forms of work that has negative effects upon the reproductive health of women, which must be protected in every case.[92]”
This article strongly advised that female workers shall be equal all sectors of employment and shall receive the same salary as men except some prohibited job for pregnant women as addressed in article 97[93] of labor law. Plus, the law also supported maternity in article 98 and 99 stated about the maternity leave before and after giving birth as well as the maternity allowance for giving birth or miscarriage as determined by the Law on Social Security[94]. Thus, the law also prevent any kind of discrimination and mistreatment toward pregnant and married women workers by addressing in article 100 to prohibit any actions from employer like:
“1. Check for pregnancy before accepting the employee;
2. Create conditions that block or deny female employees who are married or pregnant;
3. Cancel the employment contract due to marriage or pregnancy[95]”.
Despite the fact that Lao new labor law cover the strongly protection toward gender equality and female worker rights but the implementation is still limited and asking for further improvement.
3.2.2.2 Workers situation in Lao
Lao PDR has one of the highest proportions of women in national parliaments of about 25 percent comparing with the neighboring country; however, the proportion of women in other decision making institutions within the Government is still low as of 5 percent in 2012[96]. In fact, Lao women generally occupy the lowest ladder of employment comparing to men in labor market and low wage employment as can be seen that women are actively in a kind of work of service, shop and market sale workers which is about 63 percent[97]. Moreover, the amount of women participant in unpaid workers for the family are higher than men about 65 percent of overall unpaid family work[98]. In contrast, men account for a better position in the majority of civil servants, professionals, technicians and other sectors.
However, over one third of overall formal and informal workers are under poverty with hazardous working environment and low paid especially women who significantly increasing the flow of numbers in the garment and textile industrial sector[99]. Thus, the living standard and working condition in most factory does not fit the expectation of workers as it was evidentially said by factory worker that the working hour regulation and labor law by the government is not properly implemented. It was reported by workers that overtime work is compulsory that everyone must attend or they will be fined or fired[100]. Moreover, the female workers got harsh behavior treatment from her supervisor and received no respect from their manager or supervisor since they always got criticizing, humiliating and scolding in public[101]. Plus, the factory workers reported to received inadequate drinking water, unclean and limited space to sleep in their dormitory[102]. Also, some of the factories do not have a proper recruitment criteria or proper contract as one of the garment factory said that they do not provide any information on the provided job such as obligation or regulation but work immediately right after the acceptance[103].
As a result, we can say that there is a considerable gap in regard of gender inequality in workplace and women’s rights violation such as force working overtime, improper employment contract and uncomfortable working and living condition.
3.2.2.3 Government response
Beside the critical challenges, Lao government is striving to promote and to protect a better gender equality and women’s worker rights in workplace by including gender mainstreaming into the National Growth and Poverty Eradication Strategy (NGPES) and the 7th national socio-economic development plan which is result in increasing number of higher position women. Moreover, the government also committed to establish the National Commission for the Advancement of Women (NCAW) to draw up plan of actions to govern and observe gender equality practice in all areas include city, district and province[104]. Also, Lao Women’s Union (LWU) play an important role to brought the voice of women from rural and urban area together into a public administration and LWU is actively involve with the drafting and the implementation of law and policy related with human rights protection specifically in an attempt to strengthen the women’s rights[105]. However, the result of law practices and implementation is still limited and workers still suffer from gender inequality as well as labor rights abuse from their workplace.
3.2.3 Myanmar
The country of Republic of the Union of Myanmar was under a military junta and dictatorship for decade but the country moving slowly toward democracy regime after the opposition party win a landmark election in 2015[106]. Particularly, Myanmar joined ASEAN on the same date with Lao which is on July 1997[107]. Also, the country addressing its respect of gender equality under its constitution chapter VIII section 347 that the Union shall ensure an equal rights before the law and provide legal protection to all citizen equally[108]. In addition, section 348 of the Union constitution also respect the gender equality by claiming that the Union of Myanmar shall not discriminate any citizen base on sex[109]. Moreover, the country respect women rights by addressing in section 350 and 351 under Myanmar constitution that women shall receive the same salary as men with the same kind of work and mother as well as expectant women shall receive the same rights as prescribe by the law[110]. Thus, Myanmar try to express its commitment to protect gender equality and women rights by joining other international conventions and agreement such as CEDAW in 22 July 1997[111], Beijing Platform for action and ASEAN Committee on Women and the ASEAN Commission on Protection and Promotion of the Rights of Women and Children[112].
3.2.3.1 National Labor law
The labor law of Myanmar were originally introduced by British during the period of colonial whereas most of them are still effective in the present time. In fact, Myanmar has plenty of labor law such as the Workman’s Compensation Act (1923) as amended in 2005, the labor organization law (2011), the Settlement of Labor Dispute Law and Rules (2012), the Social Security law (2012), the minimum wage law (2013), the Employment and Skill Development Law, the Law for Leave and Holiday Law 1951 (amended on July 2014), the Payment of Wages Law 2016, Factories Action 1951 (amended on 2016) and so on[113]. Specifically, those law are rooted with the protection of gender equality and women worker rights under social security law for maternity protection in which women worker are permitted to have 14 weeks of maternity leave, another 4 weeks of child care for twin babies, 8 week leave for adopting child under one year old whereas it permitted 15 day leave for parental leave[114]. Noticeably, the labor laws of Myanmar do not address much concern relating with the protection of gender balance equality and women rights.
3.2.3.2 Workers situation in Myanmar
The participation of women in Myanmar society are still critically low comparing to men as can be seen that the involvement of women in labor market is about 63.1% compared to 85.1% for men[115]. There is a considerable wide gap of labor force between men and women because men are mostly enjoying a higher position whereas women are concentrate in the lower rank of job as can be seen that women only held 4.4 percent of the seats in the national parliament[116]. Moreover, the workers seem to be suffer from the gender wage gap in the country such as the gender wage gap in agriculture sector that women commonly paid around 1 dollars to 1.5 dollars a day whereas men can earned around 1.5 dollars to 3 dollars in the exact same type of work[117]. Also, there is a statistic provided on sex disaggregated data on employment by sector in 2010 in which shown the active economic and employment participant from both men and women[118]:
| Industrial | Male | Female |
| Agriculture, hunting and forestry | 52.3 | 47.4 |
| Fishing | 3.2 | 0.7 |
| Mining and quarrying | 2.2 | 0.7 |
| Manufacturing | 5.0 | 7.2 |
| Electric, gas and water supply | 0.7 | 0.2 |
| Construction | 6.1 | 1.1 |
| Hotels and restaurants | 1.3 | 1.4 |
| Transport, storage, and communications | 6.1 | 0.7 |
| Public administration and defense,
compulsory social security |
1.5 | 1.1 |
| Health care and social work | 0.6 | 0.8 |
One of the factory worker name Ma Ei Yin Mon expressed her concern on the low wage, long hour of overtime work and unbearable feeling during her work in which she got yelled by the manager[119]. Moreover, some of the factory are violated the right to perform a working union as proved by Ms. Kyu Kyu Win who is a union labor that she was collecting the survey from her co-worker in the factory to the Ministry of Labor and immediately got fired by her boss[120]. However, the situation of workers is comparatively better than the past since Ms Kyu Kyu Win and other 144 workers do a strike against its factory to regain back their job; yet, all of them were hired back under the help from an arbitration council[121]. All in all, we can say that the working condition in Myanmar is not good and most of worker are suffering from low wages, long hour of overtime, humiliated by their manager and got discrimination based on union group.
3.2.3.3 Government response
Beside the critical condition, government of Myanmar tries to improve the development of law and regulation regarding gender equality and women worker rights by committing itself to improve the better of Relief and Resettlement which is the National Women’s Machinery and the Ministry of Social Welfare are focusing and carried out all women matters. Also, the department of social welfare is currently finalizing a ten-year National Strategic Plan for the Advancement of Women 2012-2021 (NSPAW) which covers key areas of the Beijing Platform for Action[122]. Also, the country is developing the Myanmar’s National Reproductive Health Strategic Plan of 2009-2013 in order to reduce the maternal and infant mortality rates[123]. However, there are numbers of law, regulation and strategic plan in Myanmar for the protection of gender equality and female worker rights; yet, the implementation is still in question.
3.2.4 Vietnam
The Socialist Republic of Vietnam is known as a one party communist state and considered as one of the fastest growing economy in the world by significantly increase its GDP grow rate of 6.7 percent in 2015[124]. Despite the growth of country, Vietnam also progress its protection on human rights specifically women rights and gender equality by adopting an article 16 of Vietnam constitution 2013 that all citizen are equal before law and no one shall be discriminate base on her/his political, economic, cultural and social life. Thus, article 26 of the constitution also address clearly toward gender that men and women have equal rights in all fields guaranteed by state, society and family need promote the role of women in the society and sex discrimination is strictly prohibited[125].
Moreover, article 35 of the constitution also provide rights to all worker regardless of their gender that all citizen has right to work and select job in workplace, worker shall provide equal and safe conditions of work with paid salary and break policy, Discrimination, forced labor, and employment of worker under minimum age of labor are strictly prohibited[126]. Furthermore, Vietnam committed to protect women through international convention of CEDAW that was signed in 1980 and ratified in 1981[127], ratified the Discrimination convention (No.111) and ratified Equal Remuneration Convention (No. 100)[128].
3.2.4.1 National Labor law
The labor law of the country of Vietnam is unique comparing to other CLMV countries since the labor law of Vietnam conduct one specific chapter focus only on female employee. Moreover, the chapter X of labor law of Vietnam called private regulation for female employees and it consist of 8 articles from article 153 to article 160. The overall meaning of the whole chapter X is to ensure gender equality by providing plenty of policies such as obligations from employer to female employee, Maternity protection for women employee, Right of unilateral termination and suspension of labor contract of pregnant employee, Maternity leave and guaranteed work for female employee taking maternity leave, Allowance upon leave to care for sick children, prenatal care, implementation of contraceptive methods and work without permission to employ female employee[129].
3.2.4.2 Workers situation in Vietnam
In Vietnamese society, women who serve in higher position can earn the same salary as men in government yet women with less education or no skill labor is hardly to receive equal pay in equal value of work as men[130]. Similarly, women in Vietnam are earning less than man and they were working under bad working condition than man since most of them are under informal employment such as migrant worker, entertainment women and majority of women are work as an unpaid family worker[131]. Mostly, women workers in garment factory were discriminated by their supervisor to work longer hour than men, less likely to received training or promotion, less leisure time than men and there is a considerable wide gap between men and women worker wage in which women can earn lesser than men about 20 percent[132].
Evidentially, female workers in Doojung of Vietnam were asked not to become pregnant for three year in the Korean own cosmetic manufacturing industry and the factory fail to provide maternity benefit to women workers[133]. Another discriminatory action is that the manger are likely to term up a one year contract with men worker rather than female worker at the Japanese camera manufacturing in Vietnam since women with one year term of contract will receive maternity benefit[134]. Plus, the poor condition of working place is leading to the health problem of employees as can be seen that 912 workers of 125,846 workers got a serious health problem such as hearing issue, skin illness, silicosis and lead and insecticide poisoning due an unstandardized of factory equipment and more than 30 per cent of 606, 890 employees who received health check-ups suffered ear, nose and throat illnesses[135]. In total, we can critically say that the working environment in Vietnam are calling for further improvement in term of poor and old factory equipment, and the need to remove and prohibit any actions of discrimination based on gender especially maternity.
3.2.4.3 Government response
The government of Vietnam are struggling to improve its practices and implementation on the protection of gender equality and women worker rights by establishing numbers of policy and plan of action. One of them is the establishment of the National Strategy on Gender Equality for the period of 2011-2020 under 7 main objectives such as ensuring gender equality between men and women specifically on the increasing of women participation in the higher position in politic field, to narrow down the gender gap in economic field, to raise an equality in term of education and training, to ensure an access and benefit from health care, to ensure equality in term of cultural field, to ensure gender equality in family life and to enhance capacity of gender equality state management[136]. Moreover, the establishment of Vietnam Women’s Union are focusing on gender issue in all areas and the Union are involving closely with the formulation of law and policy regarding women and children as well as observing its implementation[137].
3.3 Analysis on the CLMV countries condition regarding gender equality and women worker’s rights in workplace
Base on the studies that I have conducted in this chapter, I can say that the gender equality in workplace of the CLMV countries are comparatively good in a higher position workplace whereas the gender equality is in a bad conditions for a low paid employment such as garment and textile industrial. Moreover, workers especially women are suffering from the discrimination based on sex, pregnancy and labor union as can be seen in the case study of Cambodia where one of the worker were fired twice for raising her voice against the manager in term of labor rights violation. Furthermore, the study in the case of Lao also express that they received harsh behavior treatment from her supervisor or manager in public like they are not a human being. Thus, the working condition in Myanmar is no different that the gender equality and women worker’s rights violation is high in which most workers are under force long hour labor, low wage and unable to form a working union. Plus, the worker conditions in Vietnam is under a pressure of discrimination against sex and maternal benefit as be seen that the supervisor are likely to term up a one year contract with men worker rather than women worker and the factory owner even make a contract condition for not to be pregnant for three year in order to be acceptance in the employment.
On the other hand, Myanmar is comparatively have a lowest protection on gender equality and women worker’s right than Cambodia, Lao and Vietnam since the country just reform its political reform as well as the economic liberalization. Myanmar is still monitored by the international society on human rights concern since the country just transform to democracy; yet, the practice is still limited as can be seen that the labor law in Myanmar did not address much concern relating with gender equality and women worker’s rights protection. Even though, Cambodia, Lao and Vietnam is comparatively have a better practice of gender equality in work place then Myanmar but it is much lower comparing to European Union labor law protection on gender equality and women worker’s rights in the workplace especially in article 23 of EU charter and EU gender equality law. Further, EU has respectively protect gender equality between men and women in all areas of labor such as employment, work and pay by conducting plenty of laws and directives regarding the protection of worker especially women worker’s right and gender equality in workplace in which ASEAN shall borrow legally ideas, practices and experiences from European Union region.
CHAPTER FOUR: LESSON LEARN FROM EUROPEAN UNION LABOUR LAW
European Union was originally established to stop the blooding Second World War by united the EU states together as a result of the creation of Coal and Steel community under the founding father countries of Belgium, France, Germany, Italy, Luxembourg and the Netherlands[138]. Later on, EU continue to further expansion its economic growth and enlarge its membership to 28 member states namely Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherland, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and United Kingdom[139]. Presently, European Union is recognized by the world as one of a good role model for the developed and developing countries for decades in term of regional cooperation and prosperity including economic development as well as political and peace stability. In addition, EU are actively conducted law protection on various topic such as environmental, development and cooperation, Education and youth, Energy, Trade, Food safety, Health, Human rights, Justice and especially on employment and social affairs[140]. Moreover, EU also energetically adopted the labor law that govern employment and social affair of the EU countries and successfully implemented the labor law especially on the protection of gender equality and women worker’s rights.
4.1 European Union Regional Organization on the protection and promotion of the gender equality and women worker’s right
Historically, EU has supported the protection and promotion of gender equality and women worker rights since the treaty of Rome 1957 in which is the stepping stone for development and improvement of gender equality term in EU by including the equal pay for equal work. Following by the establishment of the Treaty of Amsterdam in 1999 regarding an equal treatment between men and women in access to the supply of goods and services which then again raising an awareness of member states became a core task of European Union[141]. Later on, the promotion and the protection of gender equality was stated under the treaty of Lisbon in 2009 in regard with the obligation of ensuring gender equality for the European Union and its Member States[142].
As a result, European Union countries are effectively received a better protection of gender equality in workplace comparatively with ASEAN or other regions. So far, EU has addressed solely the protection and promotion of gender equality and women worker’s rights in several law such as its EU charter of fundamental rights, EU labour law and EU gender equality law to monitor and govern the member states of EU.
4.1.1 EU Charter of fundamental rights
The European Union Charter of Fundamental Rights set out 54 articles covering on the civil, political and social rights of its EU citizenship. Moreover, the charter of Fundamental Rights of the European Union were divided into 7 chapters ranking by dignity, freedom, equality, solidarity, citizen’s rights, justice and general provision[143]. The EU Charter of Fundamental Rights respected the protection of equality in broad sense in chapter 3 of the charter by including the protection of gender equality, Cultural, religious and linguistic diversity, the rights of child, the rights of elderly and the right of persons with disabilities. However, in regard with the protection and promotion of gender equality, it was expressed clearly in chapter 3 article 20 that everyone is equal before the law and encouraging non-discrimination in article 21 (1) that discriminated based on race, colour, ethnic or social origin, genetic features, language, religion or belief, political, membership of a national minority, property, birth, disability and sex shall be prohibited under the EU charter[144]. In addition, article 23 of the EU Charter of Fundamental Rights also addressed it concern on the protection of gender equality in workplace by claiming that men and women are equal in all areas including employment, work and pay and the equality shall be ensured[145]. This constitution is necessary to includes provisions which are at the heart of labour law and to bring together the idea of the protection of equality especially the gender equality to the EU member states.
4.1.2 The European Union Labour law
European Union labour law regulated main legal source of employment standard at work as well as gender equality in workplace as one of a proof of the European Human rights protection. Moreover, the European Union is always providing and striving for a good protection for all EU workers including both men and women.
Significantly, European Union was taking into account the cooperation within each member states regarding employment as it was especially addressed under the Treaty on the Functioning of the European Union on article 145 that EU and its member states shall work together to developing a coordinated strategy for employment and put an employment matter as one of the main concern of each individual member state[146]. Also, EU has established the European employment strategy and employment guideline such as boosting demand for labour, enhanced labour and skills supply, better functioning of the labour markets and Fairness by combating poverty and promoting equal opportunities[147]. Moreover, EU labour law has specifically focus on the three main areas of labour law such as an employment contract law, the law protection of the employees and the collective labour law.
4.1.2.1. European labour law on employment contract law
EU precisely recognized the importance of the conducted of the labour law regarding the application to the contract and the employment relations. EU labour law on employment contract law provide and obliged both employers and employees to have a good working environment in compliant with the good quality of working productions in accordance with the term of employment. Specifically, EU provided the Council Directive of 91/533/EEC in order to addressed an employer’s obligation to inform employees of the conditions applicable to the contract in which employees need to learn before signing the contract[148]. The article 2 and 3 of the Directive expressed the compulsory of the need of formal document in written form which containing important information related to the employment relations such as the description of work, the place of work, the commencement date, the expected duration, the amount of salary, the annual paid, the working hours[149]. And the employer are responsible to hand over the corresponding document to the employee in two months after the commencement of work at the latest[150]. Moreover, this council directive stated in article 10 as the final provision to obliged member states to regulate any measure or provision in comply with the directive for the contract employment and shall ensure the positive implement of the directive[151].
4.1.2.2. European labour law on the protection against discrimination within the employment
EU labour law are respectively encouraging the practices of equality regardless of sex in employment and occupation since 1957 from the establishment of the Directive 75/117/EEC which later known as Recast Directive 2006/54/EC[152]. The objective of this directive is to ensure an implementation of the principle of equal opportunity and equal treatment for both men and women in workplace as well as to remove a direct and indirect of sex discrimination[153]. Hence, this directive stressed out clearly in article 4 on the prohibited discrimination in term of pay that both men and women who work on the same value shall receive the same salary and it said in article 14 of the directive that there shall be no any discrimination for workers on the ground of sex in any forms of working condition, avocational training, promotion and member of worker’s organization[154].
Henceforth, the directive 2004/113/EC also prescribed a lay down to fight sex discrimination and to promote an equal treatment between men and women in term of access to goods and services in all member states[155]. Similarly, this EU directive also said in article 4 on the principal of equal treatment for a prohibited of any sex discrimination or unfair treatment on women workers unless the women is pregnant or maternity[156]. Moreover, the directive also adopted a necessary measure for member states in compliance with the directive in article 13 which said that any law, regulation, contractual provisions which are in contrary with the principle of equal treatment shall be abolished, declared null and void[157]. This directive provided necessary measure for member states to achieving EU gender equality and women worker’s rights in workplace. Significantly, all countries in the EU are obliged to take these equality rules on board and the countries joining the EU also have to comply with these rules[158].
4.1.2.3. European labour law on the protection of employees
EU has strongly encourage the protection of employees regarding health, safety, maternity protection and the protection of young people at work place. First of all, health protection and safety of employees is one of the most important element in EU employment, economy and social sector as can be seen that there are several directives addressing the protection and promotion of health and safety at workplace.
4.1.2.2.1 Heath protection and safety at work
In regard with this, the framework directive of 89/391/EEC were conducted to improve the health protection and safety in workplace by introducing such necessary measures[159]. The main purpose of this frame work directive is to constructed employer for an obligation to prevent any occupational risks, protect the safety and health, eliminate of risk and accident factors and it also provide important measure to member states for the implementation of the principal[160]. However, this framework directive provided a series of individual directives such as directive 89/654 (Workplaces), directive 89/655 (Work Equipment), directive 89/656 (Personal Protective Equipment), directive 90/269 (Manual Handling of Loads) and directive 90/270 (Display Screen Equipment) based in article 16 (1) of the framework directive[161]. The first series of individual directive of the framework directive is called the directive 89/654 which is concerning of the workplace requirement for the protection of health and safety at work by laying down clear definition of workplace and provided a minimum safety standard concerning electrical instalment, emergency exit, room temperature and more protections as it laid down in annex I of this directive[162]. The second individual directive referring to the safe use of work equipment by workers in order to avoid any un-expectable accident and risk to the health and safety of workers in workplace by providing with a special inspection for a proper use of work equipment[163]. The third individual directive specifically relating to personal protective equipment for head protection, hearing protection, eye and face protection, respiratory protection, hand and arm protection, foot and leg protection, skin protection or whole body protection whereas the use of personal protective equipment shall be used only when the risk is unavoidable[164]. The fourth individual directive is called directive 90/269 which is conducted a guided protection for manual handling of loads for workers to avoid back injury in a way of lifting, pulling, pushing or carrying the loads which cause the back injury to workers[165]. The fifth and last individual directive of the framework directive is known as directive 90/270 basing on the protection of work with the display screen equipment and guided an employers to perform an analysis in workstation and take an appropriate measure to remedy the risks[166].
4.1.2.2.2 Maternity protection and Parental protection
Beside health protection and safety in workplace, EU also strongly adopted a special protection on maternity for a female workers as well as provided a parental leave. The maternity protection in EU is adopted under the directive 92/85/EEC as an introduction measure in order to protect pregnant workers after giving birth and breast feeding[167]. This directive set out guideline to protect pregnant women from chemical, physical and biological which considered dangerous for the health of pregnant women and it set out that pregnant women shall not work at night shift as instructed in the medical certificate[168]. More importantly, the employers shall provide a maternity leave for women without loss of pay at least 14 weeks allocated before and after confinement in accordance with national legislation based on article 8 of the directive[169]. Since the pregnant women are suffering under the loss of job or dismissal during and after pregnancy, the directive also addressed in article 10 that member states shall guarantee the prohibition of dismissal on pregnant women[170] as well as strictly included in their national legislative system as it claimed in article 12 of the directive[171]. Evidentially, discrimination for reasons of pregnancy is considered as direct discrimination under EU law that’s why there are 35 member states implemented this provision of prohibiting the pregnancy dismissal such as Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, German, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, FYR of Macedonia, Malta, Montenegro, the Netherlands, Norway, Poland, Portugal, Romania, Serbia, Slovakia, Slovenia, Spain, Sweden, Turkey and United Kingdom[172]. However, some states have comparatively little different practice of the provisions from one another as can be seen that some state conducted this rule upon request of employee whereas some state without having to request[173].
Another considerable importance especially for female workers is stipulated in EU labour law regarding the parental leave directive of 2010/18/EU. The parental leave worked as an implement of the revised framework agreement by EU and duty as a leave provided for parents worker who has an infant or small children before the age of 8 subject to each national law[174]. Furthermore, this directive is compulsory for EU member states that it applied to both men and women worker equally regardless of their type of employment contract[175]. Usually, the parental leave shall be provided not less than 4 months for each parents and they shall acquiring the same job or similar job without receiving any discrimination or unfair treatment before and after returning to work[176]. Moreover, workers the parental directive also allow workers to request a suitable change of working hour and unforeseen leave shall be provided to workers in which workers might require in a case of sickness or accident[177]. According to article 2 of a parental direction expressing an important of the directive by regulating the member states to conducting the penalty when there is a breach of any national law or practice in compliant with this parental directive[178].
4.1.2.2.3 The protection of Young people in workplace
The protection of young workers also considered importance in EU law as it stipulated in the directive 94/33/EC as an attempt to especially prohibited child labour for a certain of work which may not suitable for young workers under 18 years old[179]. The directive even strictly prohibited a child labour below 15 years old yet the directive allow a certain of job for children of 13 or 14 years old such as sport, advertisement, cultural and artistic since these kind of job is considered as light job that may not affect to health and safety of young workers base on each national legislation as it said in article 15 of the directive of young protection at workplace[180]. More importantly, the directive also prohibited a night work shift for young worker and limit the working hour for young worker about eight hours a day and 40 hours a week under a light work as it addressed in article 8 and 9 of the directive[181]. Also, member states need to provide a necessary measure to deal with the implementation of this directive in case any member states cannot perform in compliance with this directive of 94/33/EC[182].
4.1.2.4. Collective labour law
Collective bargain of EU labour law is essential for all employees of EU member states for special protection of worker’s rights since EU adopted variety of legal measure framework of collective labour law of EU and play a role as worker’s representation especially to protect the strikers[183]. Nevertheless, the establishment of collective agreement are backed up by European Work Council who worked as body representing employees within a company or industrial for a consultation and any necessary information provided to employees for the best decision making in their employment[184]. In order to productively protect these right, EU established a directive of 2009/38/EC regarding the development of information and consultation as well as to ensure the existence of EU work council is precisely conducted in every company of every EU member states[185]. Moreover, the directive responsible for the role and the protection of employee representative by article 10 of the directive:
“1. Without prejudice to the competence of other bodies or organisations in this respect, the members of the European Works Council shall have the means required to apply the rights arising from this Directive, to represent collectively the interests of the employees of the Community-scale undertaking or Community-scale group of undertakings.
2. Without prejudice to Article 8, the members of the European Works Council shall inform the representatives of the employees of the establishments or of the undertakings of a Community-scale group of undertakings or, in the absence of representatives, the workforce as a whole, of the content and outcome of the information and consultation procedure carried out in accordance with this Directive.
3. Members of special negotiating bodies, members of European Works Councils and employees’ representatives exercising their functions under the procedure referred to in Article 6(3) shall, in the exercise of their functions, enjoy protection and guarantees similar to those provided for employees’ representatives by the national legislation and/or practice in force in their country of employment.
This shall apply in particular to attendance at meetings of special negotiating bodies or European Works Councils or any other meetings within the framework of the agreement referred to in Article 6(3), and the payment of wages for members who are on the staff of the Community-scale undertaking or the Community-scale group of undertakings for the period of absence necessary for the performance of their duties.
4. In so far as this is necessary for the exercise of their representative duties in an international environment, the members of the special negotiating body and of the European Works Council shall be provided with training without loss of wages” [186].
Moreover, the involvement of employee also protected under the directive of 2001/86/EC which was established in 2001 is to include the employee involvement in the Statute of European Company. There shall be an involvement of employees in every European Company to ensure a protection of worker’s rights in workplace especially an employee representative[187]. Moreover, the directive claimed the need of function and procedure for employee representative, frequency of meeting and financial support to the representative body by the member states[188]. Another directive established relating the collective labour law or collective agreements is called directive 2002/14/EC concerning an establishment of general framework for informing and consulting employees[189]. This directive intent to implement the national legislation in accordance with the directive to successfully achieving the main purpose of the directive of informing and consulting employees within the cooperation of both employer and employee[190].
4.2 Court of Justice of the European Union (CJEU)
European Union is especially unique from ASEAN since they have their own judicial institution which is known as the Court of Justice of the European Union (CJEU) created to unite and bind EU member states together and it has been a central achievement of the European Union. The Court of Justice of the European Union was established in 1952 in Luxemburg in order to deal with the interpreting of EU law, enforcing the law, annulling EU act, ensuring EU legal actions and sanction EU institutions[191]. By interpreting the law, EU worked as a monitor to ensure that each national courts able to interpret the law or regulation provided by EU properly even though there may be a vary in their interpretation due to the differences in the EU national court practices and the court will clarify if there is any doubt regarding the interpretation or validity of EU law raising by member states[192]. By enforcing the law, EU will ask the countries that found guilty or infringe the law provided under EU to bring the case to the CJEU and it may result in fined[193]. Also, the court can annul an EU act if there is any possible act of EU in which it may violate the main fundamental principles of EU or EU treaties and any individual members can asked the court to annul an EU act by themselves if the act is directly harm to their state benefit or else[194]. The court also have a role to ensure an EU legal actions by making certain decisions for any cases that parliament, council and Commission do not take actions then the EU institution or individual company can complain their false of action to the court[195]. Another fairly role of the CJEU is to put a sanction on the EU institution by allowing persons and companies to bring the case against EU or its staff if their performances is inactive and harmed to the interest of the individuals[196].
Importantly, the Court of Justice of the European Union consist of two major division of the courts jurisdictions known as the court of justice and the general court. On the one hand, the court of justice is consist of 28 judges and 11 Advocate General and it formally deal with any requested for a preliminary ruling from the national court of the member states which failed to fulfil its obligation by put an immediate act to stop the infringement[197]. And the court also has a role to proceeding against the EU institutions for annulment and in case of failure to act in which the court will insist and direct the court at fault to take a necessary means in accordance with the court judgment[198].
On the other hand, the General Court consist of 44 judges as in 19 September 2016[199] and the general court are mostly dealing with the competition law such as trade mark, trading, aid and agriculture such as[200]:
- Actions brought by legal persons against any acts and failure of the institutions, bodies, offices or agencies of the European Union;
- Actions brought by the Member States against the Commission;
- Actions brought by the Member States against the Council relating to acts adopted in the field of State aid and trade;
- Actions seeking compensation for damage caused by the institutions or the bodies, offices or agencies of the European Union;
- Actions based on contracts made by the European Union which expressly give jurisdiction to the General Court;
- Actions relating to intellectual property;
- Appeals against the decisions of the Civil Service Tribunal.
More importantly, there is an additional special jurisdiction to relieve the Court proceedings and it lead to the establishment of the civil service tribunal as a specialized court dealing only with labour disputes in EU by Council Decision 2004/752/EC [201]. The Civil Service Tribunal was established based on article 225 (a) of the EC Treaty and article 140 (b) of the Euratom established a special jurisdiction to hear and determine at first instance certain classes of action or proceeding brought in specific areas[202]. This is evidentially clear that EU express much concern in regard with the labour right protection arising from the labour disputes from each member states concerning the issues of all kinds of working relations and social security[203].
All in all, as I have demonstrated in this chapter of the European Labour law, I can confidentially say that EU is a good role model for ASEAN in the practice and the implementation of labour law within its regional organization. As can be seen that, there are plenty of comprehensive directives as a regional agreement in EU under a purpose to guide, to monitor, to enforce, to regulate and to implement for the cooperation of its EU member states. In addition, those directives are known as Directive of 91/533/EEC, Directive of 2006/54/EC, Directive 2004/113/EC, Framework Directive of 89/391/EEC, Directive 89/654, Directive 89/655, Directive 89/656, Directive 90/269, Directive 90/270, Directive 92/85/EEC, Directive 2010/18/EU, Directive 94/33/EC, Directive of 2009/38/EC, Directive of 2001/86/EC and Directive 2002/14/EC. Legally speaking, the Directive of 91/533/EEC play an important role in addressing an obligation of employers to inform the applicable condition of the contract to employees. The Directive of 2006/54/EC is objectively remove a direct and indirect of sex discrimination in workplace as well as the Directive 2004/113/EC which is also fighting against sex discrimination and promote an equal treatment in term of access to goods and services. Thus, Framework Directive of 89/391/EEC adopted to improve the health protection and safety in workplace and providing specific areas to several individual directives such as directive 89/654 (Workplaces), directive 89/655 (Work Equipment), directive 89/656 (Personal Protective Equipment), directive 90/269 (Manual Handling of Loads) and directive 90/270 (Display Screen Equipment). Moreover, Directive 92/85/EEC is created to protect pregnant workers whereas the Directive 2010/18/EU is focusing on the parental leave permission and benefits. On the other hand, Directive of 94/33/EC is prescribed in order to protect young workers by prohibiting child labour whereas the Directive of 2009/38/EC is created to ensure the existence of EU work council in every companies of its EU member states. Plus, the Directive of 2001/86/EC is basing to include the employee involvement in the Statute of European Company similarly with the Directive of 2002/14/EC where the purpose of the directive is to establish general framework to informing and to consulting the employees in regard of collective labour law. As a result, the above EU directives are mostly covering all of the important issues arising around the globe as it is expressing that there shall be no legal gap in term of labour and gender inequality in workplace issue related in EU.
At the same time, there is a legal gap for ASEAN in term of labour right protection and promotion, the gender equality and women worker’s right issue in workplace. This could be resulting from the lacking of a protection and cooperation of its regional member states in a way of regional agreement including bilateral and multilateral agreements. Moreover, CJEU is also a lacking part of ASEAN in which it may interpreting the law, enforcing the law, annulling the act, ensuring any legal actions and sanction the institutions. CJEU may facilitate and deal with the issues in a legal and fairly way for the whole member states; however, ASEAN primary depend on the individual national court that may decide the judgment based on its own national, economic and political interest or else they may refer the case to the international court such as International Court of Justice which may took a long period of time and costing a lot of money. So ASEAN shall following an idea from EU in term of regional cooperation to adopt an ASEAN agreement on the promotion and protection of the rights of workers as a legal tool to enhancing a gender equality protection in workplace and women worker’s rights.
CHAPTER FIVE: A PROPOSAL ON THE IMPLEMENTATION OF THE DRAFT ASEAN AGREEMENT ON THE PROMOTION AND PROTECTION OF THE RIGHTS OF WORKERS
According to ASEAN current situation, the protection and the promotion of worker’s rights is strongly need since ASEAN workers are now facing various labor issues which impact directly to their rights and benefits. Through my research, there are several issues that likely to be occurred in ASEAN particularly CLMV countries such as gender wage gap and mistreatment, sexual harassment in workplace and the violation of maternity protection in workplace. On the same hand, several challenges were found inconsistent with the protection of women worker rights and gender equality in workplace and those are the lack of state awareness, the lack of social protection and the weak law and policy enforcement. To achieving labor standard, some changed are highly needed to be conduct by ASEAN member states together as a stepping stone to the development of worker’s right specifically women worker’s rights and gender balance in workplace in an act of identifying a draft ASEAN agreement on the promotion and protection of the rights of workers.
5.1 Draft ASEAN agreement on the promotion and protection of the rights of workers
ASEAN has concluded and adopted number of agreements with each specific goals; however, there is no any agreement regarding ASEAN agreement on the protection and the promotion of the right of workers. Fortunately, the law reform commission of Thailand (LRCT) conducting a critical research study and several consultation in national level within its ministries and worker’s representations regarding the promotion and the protection of worker’s rights[204]. Moreover, they also conducted a consultation in regional level between the representatives of ASEAN such as senior labor official meeting (SLOM), ASEAN committee on the implementation of the ASEAN declaration on the protection and promotion of the rights of migrant workers (ACMW), the ASEAN Intergovernmental Commission on Human Rights (AICHR) and the ASEAN Commission on the Promotion of the Rights of Women and Children (ACWC). As a result, a draft ASEAN agreement on the promotion and protection of the rights of workers were establishing and proposing by LRCT.
5.1.1. Overview of the draft agreement
Draft ASEAN agreement on the promotion and protection of the rights of workers is addressing a labour standard and cooperation in compliance with ASEAN charter of fundamental freedom rights as well as the rule of law, good-governance, the value of worker[205]and ASEAN motto vision of “One vision, One identity, One community”[206]. Draft ASEAN agreement on the promotion and protection of the rights of workers consist of 26 articles by dividing into three main parts[207]. Specifically, the first part of draft is conducting on various important definitions such as the term labour, forced labour, child labour, employment, worker, migrant worker, frontier worker, members of the family and the term of social security and the first part also providing general principles regarding this draft agreement[208]. More importantly, the second part concerning series of the right of workers including right to work and employment, right to association and collective bargain, right to social security, women worker’s rights, child labour, right to nationality, right to health, right to training and education, right before the law, right to compensation, right to housing, right to found a family, right to freedom of movement and rights of migrant workers[209]. Lastly, the third part of the draft ASEAN agreement on the promotion and protection of the rights of worker is precisely claimed the obligations of member states and committee to implement, report, review the report, rights and duties, communication, general provision, state obligation, final provision and amendment[210].
5.1.2. Objective and purpose of the draft agreement
The draft ASEAN agreement on the promotion and protection of the rights of worker is purposely drafting to minimize labour standard of ASEAN member states and respectively protect human rights as originating from ASEAN charter and asking for a friendly cooperation and joint action in peaceful mean within member states which is originating from the United Nation[211]. Moreover, the draft ASEAN agreement is protect the rights to all workers irrespective of gender, national origin, self-employed, temporary contract, not under contract or under contract employment and this draft agreement is objectively offer a greater scope worker protection such as the including right to work and employment, right to association and collective bargain, right to social security, women worker’s rights, child labour, right to nationality, right to health, right to training and education, right before the law, right to compensation, right to housing, right to found a family, right to freedom of movement and rights of migrant workers[212]. In addition, the draft suggesting an establishment of committee for the effective implementation on the Promotion and Protection of the Rights of Workers to protect workers’ rights with an involvement from the labour rights experts of ASEAN countries that can act independently and budgeting support by ASEAN member states[213]. Also, the committee shall be appointed by each ASEAN member states parties to the agreement and shall serve for a term of four years in the agreement and the committee play a role and duty as receiving individual complain, review state’s report, annual report and recommendation as can be seen as in the following [214]:
Committee of the promotion and protection on the rights of worker
Expert of high moral standing, impartiality, recognized competence, gender balance
Annual report and Recommendation to ASEAN
Received Individual Complain
Review of State’s report
5.1.3. Article 6[215]
The draft ASEAN agreement on the promotion and protection of the rights of workers is respecting and encouraging the gender equality and women worker’s right by including the concept of equality in all articles of the whole draft agreement. As can be seen in article 2 of the draft also referring that all human being are born free and equal in dignity and rights whereas article 3 of the draft also stated that every worker without discrimination has the right to equal pay for equal work as well as equal employment promotion and advancement and article 5 claiming that every worker shall have equal treatment for social security. Nevertheless, there is one article which is specifically conduct a protection on gender equality and women worker’s rights under article 6 of the draft ASEAN agreement that gender equality shall be guaranteed and the rights of women workers shall be protected in which member states shall join hand together to:
- Eliminate sex-based discrimination in the employment relationship;
- Eliminate sexual harassment in the workplace;
- Balance work and family responsibilities;
- Protect maternity and the health of women
- Accord a mother social protection during a reasonable period before and after childbirth.
- Provide a mother and a child with special care and assistance[216].
Evidentially, the article 6 is covering all labour issues arising in ASEAN particularly CLMV countries which I have raised in the previous chapter concerning gender discrimination, sexual harassment, maternity protection, health and safety of workers, mother social protection with special care. As a result, implementing the draft ASEAN agreement on the promotion and protection of the rights of worker will satisfyingly remove a legal gap on the labour right especially gender equality in workplace and women worker’s rights since this shall be the first agreement recognizing the important of all kind of workers.
5.2 A proposal on the implementation on the draft ASEAN agreement on the promotion and protection of the rights of workers
Throughout my study, I am positively propose ASEAN to implement on the draft ASEAN agreement on the promotion and protection of the rights of workers because I can forecast the possible impact upon the implementation on the draft ASEAN agreement on the promotion and protection of the rights of workers in both national level and regional level are following:
5.2.1 National Level
National level play a crucial role in the development of one country because national level normally referring to the topmost position of each countries like national government representing the citizen and making a decision in place to control a nation as well as to decide whether or not to implement international treaties and conventions[217]. So the implementation of the draft ASEAN agreement on the promotion and protection of the right of workers need to be conducted under national level and the implementation of the present draft agreement would provide a possible benefit in national level such as regaining the national effort to ensure an effective gender equality in workplace and Strengthen policy as well as improving the law enforcement.
5.2.1.1. National efforts and ensure effective balance of gender equality and labor protection
National effort is very important in dealing with all kind of issues since national effort represent a major commitment of the state itself to deal with the issue toward an effective solution[218]. On the same hand, the lack of labor right protection as well as gender inequality in workplace is essentially need the national effort with substantial support from its local government to deal with several considerable key issues regarding labor right protection and women worker’s right in workplace including gender wage gap and mistreatment, sexual harassment and maternity protection. Fortunately, with the implementation of the draft ASEAN agreement on the promotion and protection of the rights of workers, states shall boost up their attention toward labor protection as well as ensuring gender equality in workplace. The draft agreement offer a greater protection of labor law by mentioning the establishment of the Committee to ensure a promotion and protection of the right of workers. It was stipulating in article 17[219] of the draft ASEAN agreement that the Committee shall exist at the time of the entry into force of the present agreement with a highly cooperation from each ASEAN member states to appoint each person from its respective country to form the Committee[220].Thus, an appointed committee shall be an expert of high moral standing and compatible with this position of specific field of the promotion and the protection of the rights of workers[221]. In order to appoint a committee, it also require a strong cooperation and effort from its national state to study such a problem and commit itself to appoint an appropriate person from such a position as a committee. Furthermore, the draft ASEAN agreement provide an obligation to each member states to report to the committee of its effectiveness of implementing the draft agreement by reporting its legislative, judicial, administration and other measure to be taken every two years and upon the request of the committee[222]. This would likely to demand a great effort from each ASEAN member states to conduct numerous report with due participate of civil society and the report shall be widely available to the public in each of its national authority. As a result, implementing the draft ASEAN agreement on the promotion and protection of the right of workers shall increase a national effort and national attention toward an effective protection of labor right particularly gender equality in workplace and women worker’s right.
5.2.1.2. Strengthen policy and law enforcement
Strengthening national policy and ensure an effective law enforcement is very critical to ensure the protection of the right of workers and gender equality in workplace. Without a law enforcement, the rule of law is meaningless since there is no harm to the person who violate the rule of law[223]. By strengthening policy and enforcing the law in national level, it means that the people rights and freedom would be respected and protected under its national government. Expectedly, the initial draft ASEAN agreement on the promotion and protection of the right of worker is worked as a tool for advancing the promotion and protection of the right of worker including the application of this ASEAN agreement within each countries domestic laws and regulations. In addition, the draft ASEAN agreement give an obligation for states to ensure an effective protection on labor and gender equality within its policy and law enforcement. The draft ASEAN agreement on the promotion and protection on the right of worker conducted an important state obligations as it said in article 23[224] that each ASEAN member parties shall ensure that every person are guaranteed and remedy shall effectively provide to victims in case of such rights and freedom under this draft agreement are violated even if the violator is a person under official capacity[225]. Moreover, State shall ensure that the victims of right violation or any persons seeking for a remedy shall have his or her claim reviewed under the respective authority including judicial authority, administration, legislative authority or other competent authority provided for by the legal system of ASEAN member state which shall enforce such remedy when granted[226]. Thus, the draft also stated in article 23 that is necessary, there shall develop the possibility of judicial remedy for the effective remedy granted to victim of labor right abusing. Last but not least, article 23 of the draft ASEAN agreement also ask each of ASEAN member states to adopt necessary legislative and other measures in order to implement the provision of this draft ASEAN agreement[227].
5.2.2 Regional level
The implementation of the draft ASEAN agreement on the promotion and protection of the right of workers will provide a fruitful positive impact in regional level; ASEAN, as a whole. In regional level, it is really important to implement the draft ASEAN agreement because it can reduce a disparity on labor rights between ASEAN member states and ensure gender equality and human rights protection in the region.
5.2.2.1. Reduce disparity on labor rights between ASEAN
ASEAN member state parties are different not only in terms of number of population but also in terms of geography, culture, and level of socio-economic development[228]. Also, promoting and protecting the right of worker and gender equality in workplace is a common goal for countries in Southeast Asia region regardless of their different levels of labor rights. As can be seen that, ASEAN is walking toward an ASEAN integration which lead to socio-economic transformation and movement of capital, service, investment and workers so there exist a different in labor protection standard which is hard to practice the law whether the law of sending country or the law of receiving country in case of migrant workers who work in country other than their own country[229]. Moreover, it would avoid the conflict of law between two or more states of workers which can be in a form of an employment contract in which made in foreign state and there exist a conflict of applicable law and a judicial jurisdiction toward the conflict[230]. After implementing the draft ASEAN agreement, there shall be a labor standard for ASEAN member states as a whole for a development and regional cooperation of regional labor complaint and protection mechanism as a reflection of ASEAN’s motto of “One Vision, One Identity, One community”[231]. In fact, when there is a labor standard in ASEAN, it is possible to solve the issues regarding the conflict of labor law of sending states and receiving states in an effective way with appropriate time as well.
5.2.2.2. Ensure gender equality and labor rights protection in the region
Implementing a present draft ASEAN agreement also recognized as a respect of human right protection in the region under the eye watch of the international arenas. United Nation has concerning the protection of human rights in ASEAN since ASEAN practice of the protection of human rights is still limit and not compatible with international human rights standard[232]. At the same time, labor right protection and gender equality in workplace in ASEAN region also in an unappropriated state as I have demonstrated in chapter 3 of this paper that issues arise regarding gander wage gap, sexual harassment in workplace and maternity protection that most of ASEAN member states are facing and suffering in the present time. Yet, implementing the draft of ASEAN agreement on the promotion and protection of the right of worker will be a stepping stone to the development and improvement of all labor rights in the ASEAN region. The draft agreement covering all of labor rights issues relating with the right to work and employment, right to association and collective bargaining, right to social security, women worker’s right, child labor, right to nationality, right to health, right to training and education, right before the law, right to compensation, right to housing, right to found a family, right to freedom of movement and right of migrant workers[233]. By implementing this draft ASEAN agreement, all ASEAN member states shall ensure an effective protection of labor right and gender equality in the region in an act of establishing the committee on the promotion and protection of the rights of workers and undertake a report by each member states regarding its legislative, judicial, administrative and other measure to the committee for the review. So with the cooperation of all ASEAN member states along with the implementing of the ASEAN agreement of the promotion and protection of the right of workers, there shall ensure the gender equality and labor protection in the ASEAN region.
CHAPTER SIX: CONCLUSION
After a long period of time researching and studying this topic of gender equality in work place and women worker’s right I can conclude that:
Gender equality in workplace and women worker’s right is ASEAN is not in a good shape comparing with European Union. ASEAN women especially women in a lower status position or unskilled women workers are suffering a discrimination when entering into an employment contract by asking not to be pregnant for two or three year terms, struggling under sexual harassment from the boss and mail college, hard to be promoted to a higher position comparing to men and risk to lose the job during and after giving birth. As can be seen in the case of Cambodia, Lao, Myanmar and Vietnam whereas the practice of labor law is in a limited state where women are suffering and struggling for help from the local government. Thus, the local government itself holding several key challenges such as Lack of state resources, lack of social protection, weak law and policy enforcement that has been an obstacle for the development of labor right protection as well as gender equality in workplace. Therefore, European Union has comparatively better protection of labor right since EU and it member states are struggling to adopt plenty of agreement and directives regarding the protection of labor rights and employment that ASEAN shall follow.
In this sense, I believe that implementing a draft ASEAN agreement on the promotion and protection of the right of workers would provide possible and fruitful result to the development and improvement of the protection of all worker’s right including women worker’s rights. The possible prospect of implementing the draft ASEAN agreement on the promotion and protection of the right of worker shall be benefit to both national level and regional level. In the national level, I can foresee that by implementing the present draft ASEAN agreement, each ASEAN member states government will be able to ensure the effective protection of balancing gender equality and labor protection within its national effort and it can strengthen the national policy and national law enforcement of the member states. Also, I believe that implementing this present draft ASEAN agreement shall provide a possible result to the regional level by reduce a disparity of labor law in ASEAN region under a slogan of “One Vision, One Identity, One community” and to ensure gender equality and labor rights protection in the region as well.
For my personally attitude as the name of ASEAN’s citizen, I hope ASEAN will implement the draft ASEAN agreement on the promotion and protection on the rights of workers as a tool for advancing the promotion and protection of the rights of workers by domestic laws and regulations especially on the protection of women worker’s right and gender equality in workplace in ASEAN.
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[41] Supra note 39
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[83] Ministry of Labour and Vocational Training, Labour and Vocational Training Strategic plan, December, 31, 2013, available at http://www.mlvt.gov.kh/index.php/en/policies-and-plan/item/170-html
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[92]Id. Article 96
[93] It is prohibited to employ a woman during pregnancy or during the period she is caring for a child under one year of age to perform the following work: Work in a shop with an elevation of more than two meters; Work lifting and carrying by hand, carrying on shoulders, carrying on a pole, or the bearing of loads heavier than ten kilograms; Night work; Overtime or working on rest days; Work which involves standing for longer than two consecutive hours; Works specified in the list of hazardous works. A woman during pregnancy or during the period she is caring for a child under one year of age that has previously undertaken any of the work outlined above must be transferred by the employer to a new and more appropriate position temporarily, and shall maintain the same salary or wage. See Id. article 97.
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[95]Id. Article 100
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[110] Id. section 350-351
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[172] Supra note 152. Page 32
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[189] Directive 2002/14/EC, informing and consulting employees.
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[191] European Union, Court of Justice of the European Union (2017), available at https://europa.eu/european-union/about-eu/institutions-bodies/court-justice_en
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[204] Law Reform Commission of Thailand (LRCT), Draft ASEAN Agreement on the Promotion and Protection of the Rights of Workers (2015)
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[215] Article 6: Gender Equality and Women Workers’ Rights:
Subject to the provisions of this Agreement, gender equality shall be guaranteed and the rights of women workers shall be protected, applied, and implemented by taking measures to:
- eliminate sex-based discrimination in the employment relationship;
- eliminate sexual harassment in the workplace;
- balance work and family responsibilities;
- protect maternity and the health of women in order to promote effective equality;
- accord a mother social protection during a reasonable period before and after childbirth as determined by laws and regulations of an ASEAN Member State concerned, including the right to leave with pay and adequate social security benefits, and
- provide a mother and a child, both born in and out of wedlock, with special care and assistance. See Id.
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[219] Article 17: Implementation:
1. For the purpose of effective implementation of the present Agreement, there shall be established a Committee on the Promotion and Protection of the Rights of Workers (hereinafter referred to as “the Committee”); The Committee shall consist, at the time of entry into force of the present Agreement, of experts of high moral standing, impartiality and recognized competence in the field covered by the Agreement from each of the ASEAN Member States Parties to this Agreement.
2. Members of the Committee shall be appointed by each ASEAN Member State Party with due consideration being given to gender, expertise and representation of stakeholders.
3. Members shall be appointed and shall serve in their personal capacity.
4. The members of the Committee shall serve for a term of four years. However, the terms of one-thirds of the members appointed in the first appointment shall expire at the end of two years by means of lots, immediately after the first appointment, the names of these members shall be chosen by lot by the Chairman of the meeting of ASEAN Member States Parties; The members of the Committee shall be eligible to serve for one more term if re-appointed.
5. If a member of the Committee dies or resigns or declares that for any other cause she or he can no longer perform the duties of the Committee, the ASEAN Member State Party concerned shall appoint another expert from among its own nationals for the remaining part of the term. The new appointment is subject to the approval of the Committee.
6. The Secretary-General of the ASEAN shall provide the necessary staff and facilities for the effective performance of the functions of the Committee.
7. The members of the Committee shall be entitled to the facilities, privileges and immunities of experts on mission for ASEAN as laid down in the relevant sections of the Convention on the Privileges and Immunities of the ASEAN. See Supra note 204
[220] Id
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[224] Article 23: State Obligations:
1. Each ASEAN Member State Party to the present Agreement undertakes:
a. To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
b. To ensure that any persons seeking such a remedy shall have her or his claim reviewed and decided by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the ASEAN Member State Party, and to develop the possibilities of judicial remedy;
c. To ensure that the competent authorities shall enforce such remedies when granted.
2. Each ASEAN Member State Party undertakes to adopt the legislative and other measures that are necessary to implement the provisions of the present Agreement. See Supra note 204
[225] Id. Article 23
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