Bangladesh

Section 7. Worker Rights

The law provides for the right to join unions and, with government approval, the right to form a union, although labor rights organizations said that cumbersome requirements for union registration remained. The law requires a minimum of 20 percent of an enterprise’s total workforce to agree to be members before the Ministry of Labor and Employment may grant approval for registration of a union. The ministry may request a court to dissolve the union if membership falls below 20 percent. Generally, the law allows only wall-to-wall (entire factory) bargaining units.

The labor law definition of workers excludes managerial, supervisory, and administrative staff. Fire-fighting staff, security guards, and employers’ confidential assistants are not entitled to join a union. Civil service and security force employees are prohibited from forming unions. The Department of Labor may deregister unions for other reasons with the approval of a labor court. The law affords unions the right of appeal in the cases of dissolution or denial of registration. Export processing zones (EPZs), which do not allow trade union participation, are a notable exception to the national labor law.

Prospective unions continued to report rejections based on reasons not listed in the labor law. The Ministry of Labor and Employment reported in 2017 that the country had 7,751 trade unions, covering nearly three million workers, with 596 unions in the garment sector. This figure includes 561 new unions in the garment sector since 2013. The ministry reported the shrimp sector had 16 unions and the leather and tannery sector had 13. According to the Solidarity Center, a significant number of the unions in the ready-made garment sector ceased to be active during the year due to factory closures or alleged unfair labor practices on the part of employers, and it has become increasingly harder to register unions in larger ready-made garment factories. After a sharp increase in trade union applications in 2014, there has been a decline every year since. During the year the number of trade-union applications declined again, but the approval rate by the Department of Labor increased.

The law provides for the right to conduct legal strikes but with many limitations. For example, the government may prohibit a strike deemed to pose a “serious hardship to the community” and may terminate any strike lasting more than 30 days. The law additionally prohibits strikes for the first three years of commercial production or if the factory was built with foreign investment or owned by a foreign investor. Workers and union activists continued to face repercussions from widespread strikes that occurred in 2016 in Ashulia, an industrial suburb of Dhaka, which led to the termination of at least 1,600 workers and left approximately 25 labor leaders and activists in jail. While factories resumed operations by the end of December, labor leaders and workers continued to report police harassment, intimidation, and general antiunion behavior. Ongoing intimidation tactics included frequent police visits to union meetings and offices, police taking pictures and video recordings of union meetings, and police monitoring of NGOs involved in supporting trade unions. While most workers from the Ashulia labor unrest were reinstated, labor leaders still have cases pending against them despite international pressure to resolve these cases.

In response to unrest in the Dhaka industrial suburb of Ashulia in 2016, the government formed a permanent tripartite consultative council to address labor concerns in the garment industry. The state minister for labor and employment and the ministry’s deputy secretary serve as president and secretary of the 20-member council. The council also includes six representatives from the Bangladesh Garment Manufacturers and Exporters Association (BGMEA) and Bangladesh Knitwear Manufacturers and Exporters Association, six additional representatives from the government, and six worker representatives. The council was supposed to meet at least three times a year, but the president may convene meetings as needed. Labor leaders expressed concern that worker representatives were appointed, not elected, and that some of the appointed council members were either not active in the ready-made garment industry, were leaders of very small federations, or were closely aligned with industry. According to the Solidarity Center, in October government officials filed charges stemming from the 2016 Ashulia incident against 15 labor activists and political leaders despite previous government assurances that all cases would be dropped.

Legally registered unions that are recognized as official Collective Bargaining Agents (CBAs) are entitled to submit charters of demands and bargain collectively with employers. This occurred rarely, but instances were increasing. The law provides criminal penalties for unfair labor practices such as retaliation against union members for exercising their legal rights. Labor organizations reported that in some companies, workers did not exercise their collective bargaining rights due to their unions’ ability to address grievances with management informally or due to fear of reprisal.

The law includes provisions protecting unions from employer interference in organizing activities; however, employers, particularly in the readymade garment industry, often interfered with this right. Labor organizers reported acts of intimidation and abuse, the termination of employees, and scrutiny by security forces and the intelligence services. Labor rights NGOs alleged that some terminated union members were unable to find work in the sector because employers blacklisted them. The BGMEA reported that some factory owners complained of harassment from organized labor, including physical intimidation, but statistics and specific examples were unavailable.

According to the labor law, every factory with more than 50 employees is required to have a Participation Committee (PC). In 2015 the government passed the Bangladesh Labor Rules calling for an amended labor law. The rules include an outline of the process for the PC’s workers representative elections.

A separate legal framework under the authority of the Bangladesh Export Processing Zone Authority (BEPZA) governs labor rights in the EPZs, with approximately 458,000 workers. EPZ law specifies certain limited associational and bargaining rights for Worker Welfare Associations (WWAs) elected by the workers, such as the rights to bargain collectively and represent their members in disputes. The law prohibits unions within EPZs. While an earlier provision of the EPZ law banning all strikes under penalty of imprisonment expired in 2013, the law continues to provide for strict limits on the right to strike, such as the discretion of the BEPZA’s chairperson to ban any strike he views as prejudicial to the public interest. The law provides for EPZ labor tribunals, appellate tribunals, and conciliators, but those institutions were not established. Instead eight labor courts and one appellate labor court heard EPZ cases. The BEPZA has its own inspection regime with labor counselors that function as inspectors. WWAs in EPZs are prohibited from establishing any connection to outside political parties, unions, federations, or NGOs. There were no reports of legal strikes in the EPZs.

The government adopted standard operating procedures regarding union registration. With the exception of limitations on the right of association and worker protections in the EPZs, national labor law prohibits antiunion discrimination. A labor court may order the reinstatement of workers fired for union activities, but this right was rarely exercised.

The government did not always enforce applicable law effectively or consistently. For example, labor law establishes mechanisms for conciliation, arbitration, and dispute resolution by a labor court. It also establishes that workers in a collective-bargaining union have the right to strike in the event of a failure to reach a settlement. Few strikes followed the cumbersome legal requirements, however, and strikes or walkouts often occurred spontaneously.

Penalties for violating the law increased in 2013, enabled by the issuance of implementing rules. The maximum fine for a first violation is 25,000 BDT (approximately $300); the fine doubles for a second offense. The law also allows for imprisonment of up to three years. If a violation results in death, the law allows a fine of up to 100,000 BDT ($1,250), four years’ imprisonment, or both. Administrative and judicial appeals were subjected to lengthy delays.

The law prohibits all forms of forced or compulsory labor. Penalties for forced or bonded labor offenses are five to 12 years’ imprisonment and a fine of not less than 50,000 BDT ($625). Inspection mechanisms that enforce laws against forced labor did not function effectively. Resources, inspections, and remediation efforts were inadequate. The law also provides that victims of forced labor have access to shelter and other protective services afforded to trafficking victims.

Some individuals recruited to work overseas with fraudulent employment offers subsequently were exploited abroad under conditions of forced labor or debt bondage. Many migrant workers assumed debt to pay high recruitment fees, imposed legally by recruitment agencies belonging to the Bangladesh Association of International Recruiting Agencies and illegally by unlicensed subagents.

Children and adults were also forced into domestic servitude and bonded labor that involved restricted movement, nonpayment of wages, threats, and physical or sexual abuse (see section 7.c.).

See the Department of State’s Trafficking in Persons Report at www.state.gov/j/tip/rls/tiprpt/.

c. Prohibition of Child Labor and Minimum Age for Employment

The law regulates child employment, and the regulations depend on the type of work and the child’s age. The minimum age for work is 14, and the minimum age for hazardous work is 18. The law allows for certain exceptions, permitting children who are ages 12 or 13 to perform restricted forms of light work. Minors may work up to five hours per day and 30 hours per week in factories and mines or up to seven hours per day and 42 per week in other types of workplaces. By law every child must attend school through fifth grade.

The Labor Ministry’s enforcement mechanisms were insufficient for the large, urban informal sector, and authorities rarely enforced child labor laws outside the export-garment and shrimp-processing sectors. Agriculture and other informal sectors that had no government oversight employed large numbers of children.

Under the ministry’s 2012-16 child labor national plan of action, the National Child Labor Welfare Council is charged with monitoring child labor. The council met only twice, however, since its inception. The government-mandated child protection networks at district and subdistrict levels to respond to a broad spectrum of violations against children, including child labor; to monitor interventions; and to develop referral mechanisms.

The law specifies penalties for violations involving child labor, including nominal fines of less than 5,000 BDT ($63). These penalties insufficiently deterred violations. The government occasionally brought criminal charges against employers who abused domestic servants.

Child labor was widespread in the informal sector and in domestic work. According to a 2016 Overseas Development Institute report based on a survey of 2,700 households in Dhaka’s slums, 15 percent of six- to 14-year-old children were out of school and engaged in full-time work. These children were working well beyond the 42-hour limit set by national legislation.

According to the International Labor Organization (ILO), agriculture was the primary employment sector for boys, and services was the main sector for girls. According to Young Power in Social Action, an NGO working to protect the rights of shipbreakers in Chittagong, 11 percent of the shipbreaking workforce was under the age of 18. NGOs, such as Shipbreaking Platform, reported laborers worked long hours without training, safety equipment, holidays, adequate health care, and also without contractual agreements.

Children were engaged in the worst forms of child labor, primarily in dangerous activities in agriculture. Children working in agriculture risked using dangerous tools, carrying heavy loads, and applying harmful pesticides. Children frequently worked long hours, were exposed to extreme temperatures, and suffered high rates of injury from sharp tools. Children also worked in such hazardous activities as stone and brick breaking, dyeing operations, blacksmith assistance, and construction. Forced child labor was present in the fish-drying industry, where children were exposed to harmful chemicals, dangerous machines, and long hours of work. In urban areas street children worked pulling rickshaws, garbage picking, recycling, vending, begging, repairing automobiles, and in hotels and restaurants. These children were vulnerable to exploitation, for example, in forced begging, forced smuggling, or selling drugs.

Children frequently worked in the informal sector in areas including the unregistered garment, road transport, manufacturing, and service industries.

See the Department of Labor’s Findings on the Worst Forms of Child Labor at www.dol.gov/ilab/reports/child-labor/findings/ .

The labor law prohibits wage discrimination on the basis of sex or disability, but it does not prohibit other discrimination based on sex, disability, social status, caste, sexual orientation, or similar factors. The constitution prohibits adverse discrimination by the state on the basis of religion, race, caste, sex, or place of birth and expressly extends that prohibition to government employment; it allows affirmative action programs for the benefit of disadvantaged populations.

The lower-wage garment sector traditionally offered greater employment opportunities for women. Women represented the majority of garment-sector workers, making up approximately 56 percent of the total ready-made garment workforce, according to official statistics although statistics varied widely due to a lack of data. The ILO estimated that women made up 65 percent of the ready-made garment workforce. Despite representing a majority of total workers, women were generally underrepresented in supervisory and management positions and generally earned less than their male counterparts, even when performing similar functions. A 2017 study by Andreas Menzel (Center for Economic Research and Graduate Education Economics Institute) and Christopher Woodruff (Oxford University) during the year found that women earned lower wages in export-oriented garment factories, even after controlling for worker productivity. According to the study, approximately two-thirds of the wage gap remained even after controlling for skills, which the study attributed to higher mobility for male workers. Women were also subjected to abuse in factories, including sexual harassment.

Some religious, ethnic, and other minorities reported discrimination, particularly in the private sector (see section 6).

The National Minimum Wage Board established minimum monthly wages on a sector-by-sector basis. The board may convene at any time, but it is supposed to meet at least every five years in a tripartite forum to set wage structures and benefits industry by industry. By law the government may modify or amend wage structures through official public announcement in consultation with employers and workers. In the garment industry, the board increased the minimum monthly wage from 5,300 BDT ($66) which was set in 2013, to 8,000 BDT (approximately $95). Ready-made garment industry workers conducted public protests after the announcement. They had requested a minimum wage of 16,000 BDT (approximately $190). The increase took effect on December 1. Also dissatisfied were more senior workers, whose pay was not increased at the same rate as the minimal wage. That left some of them earning only marginally more than entry-level workers.

In September a member from the country’s intelligence community threatened trade union leaders in Chittagong with bodily harm should workers protest the new minimum wage, according to Solidarity Center. Wages in the apparel sector often were higher than the minimum wage, and wages in the EPZs typically were higher than general wage levels, according to BEPZA. Among the lowest minimum wages were those for tea packaging, set in 2013 at 69 BDT ($0.86) per day as established by a memorandum of understanding. None of the set minimum wages provided a sufficient standard of living for urban dwellers. The minimum wage was not indexed to inflation (which averaged 6 to 8 percent annually since 2010, according to World Bank data), but the board occasionally made cost-of-living adjustments to wages in some sectors.

By law a standard workday is eight hours. A standard workweek is 48 hours, but it may be extended to 60 hours, subject to the payment of an overtime allowance that is double the basic wage. Overtime cannot be compulsory. Workers must have one hour of rest if they work for more than six hours a day or a half-hour of rest for more than five hours’ work a day. Factory workers are supposed to receive one day off every week. Shop workers receive one and one-half days off per week.

The law establishes occupational health and safety standards, and amendments to the law created mandatory worker safety committees. The law says that every worker should be allowed at least 11 festival holidays with full wages in a year. The days and dates for such festivals are supposed to be fixed by the employer in consultation with the CBA, if any, or on the recommendation of the participation committee in absence of the CBA.

Labor law implementing rules outline the process for the formation of occupational safety and health committees in factories, and the government reported that approximately 2,175 safety committees were formed as of July. The committees include both management and workers nominated by the CBA or, in absence of CBA, workers representatives of the factory’s Worker Participation Committee (WPC). Where there is no union or WPC, the Department of Inspection for Factories and Establishments (DIFE) arranges an election among the workers for their representatives.

The government did not effectively enforce minimum wage, hours of work, and occupational safety and health standards in all sectors. Although increased focus on the garment industry improved compliance in some garment factories, resources, inspections, and remediation were generally not adequate across sectors, and penalties for violations were not sufficient to deter violations.

DIFE’s resources were inadequate to inspect and remediate problems effectively. In 2017, DIFE employed 317 labor inspectors; however, this number is likely insufficient for a workforce that includes more than 83 million workers, and the DIFE lacked authority to sanction employers directly without filing a court case. The ministry nonetheless took steps to increase DIFE’s staff and technical capacity.

The 2013 Rana Plaza building collapse killed 1,138 workers and injured more than 2,500. In the aftermath of the collapse, private companies, foreign governments, and international organizations worked with the government to inspect more than 3,780 garment factories. Many factories began to take action to improve safety conditions, although remediation in many cases proceeded slowly due to a range of factors, including failure to obtain adequate financing. Two private buyers’ initiatives, the Alliance and the Accord, conducted initial fire and safety inspections of 2,400 factories, but government oversight and enforcement of garment factories outside of these initiatives remained limited. These initiatives also covered only the formal ready-made garment industry, leaving thousands of informal garment and nongarment factories without proper oversight. Boiler or chemical-related explosions increased the focus on nonfire industrial accidents. The Alliance terminated its operations at the end of the year, following the successful remediation of more than 400 factories under its purview. Several U.S. brands worked with a new local organization to sustain the culture of safety at remediated factories.

The court case against Sohel Rana, the owner of Rana Plaza, and 40 other individuals on charges, including murder began in 2016. Rana received a maximum three-year sentence for failing to declare his personal wealth to an antigraft commission. The murder trial against Rana and others continued.

A trial against those implicated in the 2012 Tazreen Fashions fire started in 2015 after charges were brought against 13 individuals, including chairman Mahmuda Akhter and managing director Delwar Hossain, in September 2015. Media reported that the trial was stalled at year’s end.

Workers’ groups stated that safety and health standards established by law were sufficient and that more factories took steps toward compliance. The law provides for a maximum fine of 25,000 BDT (approximately $300) for noncompliance, but this did not deter violations.

Legal limits on hours of work were violated routinely. In the ready-made garment sector, employers often required workers to labor 12 hours a day or more to meet export deadlines, but they did not always properly compensate workers for their time. According to the Solidarity Center, workers often willingly worked overtime in excess of the legal limit. Employers in many cases delayed workers’ pay or denied full leave benefits.

Few reliable labor statistics were available on the large informal sector in which the majority of citizens worked, and it was difficult to enforce labor laws in the sector. The BBS 2010 Labor Force Survey reported the informal sector employed 47.3 million of the 56.7 million workers in the country.

Guatemala

Section 7. Worker Rights

The law provides for the right of workers, with the exception of security force members, to form and join trade unions, conduct legal strikes, and bargain collectively. The law, however, places some restrictions on these rights. For example, legal recognition of an industrywide union requires that the membership constitute a majority of the workers in an industry and restricts union leadership to citizens. The law prohibits antiunion discrimination and employer interference in union activities and requires employers to reinstate workers dismissed for organizing union activities. A strike must have the support of the majority of a company’s workforce. Workers are not restricted to membership in one union or one industry.

The president and cabinet may suspend any strike deemed “gravely prejudicial to the country’s essential activities and public services.” The government defined “essential services” more broadly than international standards, thus denying the right to strike to a large number of public workers, such as those working in education, postal services, transport, and the production, transportation, and distribution of energy. Public employees may address grievances by means of conciliation for collective disputes and arbitration directly through the labor courts. For sectors considered essential, arbitration is compulsory if there is no agreement after 30 days of conciliation.

The law prohibits employer retaliation against workers engaged in legal strikes. If authorities do not recognize a strike as legal, employers may suspend or terminate workers for absence without leave. A factory or business owner is not obligated to negotiate a collective bargaining agreement unless at least 25 percent of workers in the factory or business are union members and request negotiations. Once a strike occurs, companies are required to close during negotiations. Strikes have been extremely rare, but work stoppages were common.

The government did not effectively enforce the law. Government institutions, such as the Ministry of Labor and the labor courts, did not effectively investigate, prosecute, or punish employers who violated freedom of association and collective bargaining laws or reinstate workers illegally dismissed for engaging in union activities. The Public Ministry was ineffective in responding to labor court referrals for criminal prosecution in cases where employers refused to comply with labor court orders. Inspectors often lacked vehicles or fuel to carry out inspections, and in some cases they failed to take effective action to gain access to worksites in response to employers’ refusal to permit labor inspectors access to facilities. Inspectors were encouraged to seek police assistance as required. Inspections were generally not comprehensive, and if complaint driven, focused on investigating the alleged violation, rather than attempting to maximize limited resources to determine compliance beyond the individual complaint. Penalties for labor law violations were inadequate and rarely enforced.

In June 2017 passage of Decree 07-2017 restored sanction authority to the Ministry of Labor. Business groups complained the shortened time frame to investigate and verify compliance with Ministry of Labor remediation orders resulted in more cases being referred to the labor courts, without an opportunity to conciliate. The ministry indicated it had collected 1.06 million quetzals in fines ($141,000), but the lack of information about the law’s implementation made it difficult to assess its impact on improving labor law enforcement.

The Special Prosecutor’s Unit for Crimes against Unionists within the Office of the Special Prosecutor for Human Rights in the Public Ministry was responsible for investigating attacks and threats against union members as well as for noncompliance with judicial orders in labor cases. Staffing for the unit has increased, but successful prosecutions remained a challenge. The government reported some 2,000 cases involving noncompliance with labor court orders were under investigation.

An ILO special representative continued to monitor the 2013 roadmap, which includes indicators on increased compliance with reinstatement orders, increased prosecution of perpetrators of violence against trade unionists, reforms to national legislation to conform to Convention 87, and unimpeded registration of trade unions. In November 2017 a tripartite agreement was reached at the ILO, which calls for the formation of a National Tripartite Commission on Labor Relations and Freedom of Association, which would monitor and facilitate implementation of the 2013 ILO roadmap and its 2015 indicators. The commission would report, annually to the governing board and publicly, on progress implementing the ILO roadmap until 2020. In addition to establishing the commission, the parties also committed to submitting to Congress a consensus legislative proposal that would address the long-standing ILO recommendations on freedom of association, collective bargaining, and the right to strike.

The tripartite commission was established in February, but a lack of consensus remained between employers and workers on legislation seeking to address long-standing ILO recommendations related to freedom of association, collective bargaining, and the right to strike, particularly in industry-wide unions. The Ministry of Government convened the Interagency Committee to Analyze Attacks Against Human Rights Defenders, including trade unionists, on a regular basis. NGO participants complained the ministry imposed restrictions on civil society participation in the committee and reduced working-level officials’ authorities to respond to attacks.

Despite these efforts, the country did not demonstrate measurable progress in the effective enforcement of its labor laws, particularly those related to freedom of association and collective bargaining. The ILO noted the need for additional urgent action in several areas related to the roadmap, including investigation and prosecution of perpetrators of trade union violence; the adoption of protection measures for union officials; passage of legislative reforms to remove obstacles to freedom of association and the right to strike; and raising awareness of the rights to freedom of association and collective bargaining, particularly in the apparel and textile industries. The ILO also called for greater compliance with reinstatement orders in cases of antiunion dismissals. Based in large part on the 2017 tripartite agreement, the ILO Governing Body closed the case in November.

Violence and threats against trade unionists and labor activists remained serious problems, with four killings of trade unionists, 20 documented threats, and two violent attacks reported during the year. Authorities did not thoroughly investigate most acts of violence and threats, and by often discarding trade union activity as a motive from the outset of the investigation, allowed these acts to go unprosecuted. Several labor leaders reported death threats and other acts of intimidation. The Public Ministry reported one conviction during the year related to a trade unionist killed in 2012.

Procedural hurdles, union formation restrictions, and impunity for employers refusing to receive or ignoring court orders limited freedom of association and collective bargaining. Government statistics on attempted union registrations indicated most registrations were initially rejected, and when they were issued, it was done outside the legally established period. In addition credentials of union leaders were regularly rejected and delayed. As a result union members were left without additional protections against antiunion retaliation.

Employers routinely resisted union formation attempts, delayed or only partially complied with agreements resulting from direct negotiations, and ignored judicial rulings requiring the employer to negotiate with recognized unions. There were credible reports of retaliation by employers against workers who tried to exercise their rights, including numerous complaints filed with the Ministry of Labor and the Public Ministry alleging employer retaliation for union activity. Common practices included termination and harassment of workers who attempted to form unions, creation of illegal company-supported unions to counter legally established unions, blacklisting of union organizers, and threats of factory closures. Local unions reported businesses used fraudulent bankruptcies, ownership substitution, and reincorporation of companies to circumvent legal obligations to recognize newly formed or established unions, despite legal restrictions on such practices.

The law prohibits all forms of forced or compulsory labor. The government failed to enforce the law effectively in some cases. Reports persisted of men and women subjected to forced labor in agriculture and domestic service. Penalties were inadequate and rarely enforced. Criminal penalties for forced labor range from eight to 18 years’ imprisonment. The government had specialized police and prosecutors handle cases of human trafficking, including forced labor, although local experts reported some prosecutors lacked adequate training. In July 2017 the Public Ministry arrested two sisters who forced six children to beg in the streets for money. The case remained pending at year’s end. There were also other reports of forced child labor (see section 7.c.).

Also see the Department of State’s Trafficking in Persons Report at www.state.gov/j/tip/rls/tiprpt/.

c. Prohibition of Child Labor and Minimum Age for Employment

The law bars employment of minors younger than age 14, although it allows the Ministry of Labor to authorize children younger than age 14 to work in exceptional cases. The ministry’s inspectorate reported it did not authorize any exceptions during the year. The law prohibits persons younger than age 18 from working in places that serve alcoholic beverages, in unhealthy or dangerous conditions, at night, or beyond the number of hours permitted. The legal workday for persons younger than age 14 is six hours; for persons ages 14 to 17, the legal workday is seven hours.

The Ministry of Labor’s Child Worker Protection Unit is responsible for enforcing restrictions on child labor and educating minors, their parents, and employers on the rights of minors. Penalties were not sufficient to deter violations. The government did not effectively enforce the law, a situation exacerbated by the weakness of the labor inspection and labor court systems. The government devoted insufficient resources to prevention programs.

Child labor was a widespread problem. The NGO Conrad Project Association of the Cross estimated the workforce included approximately one million children ages five to 17. Most child labor occurred in rural indigenous areas of extreme poverty. The informal and agricultural sectors regularly employed children younger than age 14, usually in small family enterprises, including in the production of broccoli, coffee, corn, fireworks, gravel, and sugar. Indigenous children also worked in street sales and as shoe shiners and bricklayer assistants.

An estimated 39,000 children, primarily indigenous girls, worked as domestic servants and were often vulnerable to physical and sexual abuse. In the Mexican border area, there were reports of forced child labor in municipal dumps and in street begging.

Also see the Department of Labor’s Findings on the Worst Forms of Child Labor at www.dol.gov/ilab/reports/child-labor/findings/ .

The law explicitly prohibits discrimination with respect to employment or occupation based on race, color, sex, religion, political opinion, national origin or citizenship, age, and disability. The government did not effectively enforce the law and related regulations.

Discrimination in employment and occupation occurred. Anecdotally, wage discrimination based on race and sex occurred often in rural areas.

The law sets national minimum wages for agricultural and nonagricultural work and for work in garment factories. The minimum wage for agricultural and nonagricultural work and for work in export-sector-regime factories did not meet the minimum food budget for a family of five. Minimum wage earners are due a mandatory monthly bonus of 250 quetzals ($33), and salaried workers receive two mandatory yearly bonuses (a Christmas bonus and a “14th month” bonus), each equivalent to one month’s salary.

The legal workweek is 48 hours with at least one paid 24-hour rest period. Workers are not to work more than 12 hours a day. The law provides for 12 paid annual holidays and paid vacation of 15 days after one year’s work. Daily and weekly maximum hour limits do not apply to domestic workers. Workers in the formal sector receive the standard pay for a day’s work for official annual holidays. Time-and-a-half pay is required for overtime work, and the law prohibits excessive compulsory overtime.

The government sets occupational health and safety standards that were inadequate, not current for all industries, and poorly enforced. The law does not provide for the right of workers to remove themselves from situations that endangered health or safety without jeopardy to their employment.

The Ministry of Labor conducted inspections to monitor compliance with minimum wage law provisions but often lacked the necessary vehicles or fuel to enable inspectors to enforce the law, especially in the agricultural and informal sectors. The ministry did not employ a sufficient number of labor inspectors to deter violations, and many of them performed conciliation or administrative duties rather than clearly defined inspection duties.

Labor inspectors reported uncovering numerous instances of overtime abuse, but effective enforcement was undermined due to inadequate fines and labor courts’ reluctance to use compulsory measures, such as increased fines and referrals to the criminal courts, to obtain compliance. Other factors contributing to the lack of effective enforcement included labor court inefficiencies, employer refusal to permit labor inspectors to enter facilities or provide access to payroll records and other documentation, and inspectors’ lack of follow-up inspections in the face of such refusals. Labor inspectors were not authorized to sanction employers but had to refer alleged violations to the labor courts. Due to inefficient and lengthy court proceedings, the resolution of cases was often delayed, in many instances for several years. Employers failing to provide a safe workplace were rarely sanctioned, and legislation requiring companies with more than 50 employees to provide onsite medical facilities for their workers was not enforced.

Trade union leaders and human rights groups reported employers required workers to work overtime without legally mandated premium pay. Management often manipulated employer-provided transportation to worksites to force employees to work overtime, especially in export processing zones located in isolated areas with limited transportation alternatives. Noncompliance with minimum wage provisions in the agricultural and informal sectors was widespread. Advocacy groups estimated the vast majority of workers in rural areas who engaged in daylong employment did not receive the wages, benefits, or social security allocations required by law. Many employers in the agricultural sector reportedly conditioned payment of the minimum daily wage on excessive production quotas that workers generally were unable to meet. In order to meet the quota, workers felt compelled to work extra hours, sometimes bringing family members, including children, to help with the work. Because of having to work beyond the maximum allowed hours per day, workers received less than the minimum wage for the day and did not receive the required overtime pay. According to ILO statistics, 74 percent of the workforce worked in the informal sector and outside the basic protections afforded by law.

Local unions highlighted and protested violations by employers who failed to pay employer and employee contributions to the national social security system despite employee contribution deductions from workers’ paychecks. These violations, particularly common in export and agricultural industries, resulted in limiting or denying employees’ access to the public health system and reducing or underpaying workers’ pension benefits during their retirement years.

India

Section 7. Worker Rights

The law provides for the right to form and join unions and to bargain collectively, although there is no legal obligation for employers to recognize a union or engage in collective bargaining. In the state of Sikkim, trade union registration was subject to prior permission from the state government. The law limits the organizing rights of federal and state government employees.

The law provides for the right to strike but places restrictions on this right for some workers. For instance, in export processing zones (EPZs), a 45-day notice is required because of the EPZs’ designation as a “public utility.” The law also allows the government to ban strikes in government-owned enterprises and requires arbitration in specified “essential industries.” Definitions of essential industries vary from state to state. The law prohibits antiunion discrimination and retribution for involvement in legal strikes and provides for reinstatement of employees fired for union activity.

Enforcement of the law varied from state to state and from sector to sector. Enforcement was generally better in the larger, organized-sector industries. Authorities generally prosecuted and punished individuals responsible for intimidation or suppression of legitimate trade union activities in the industrial sector. Civil judicial procedures addressed abuses because the Trade Union Act does not specify penalties for such abuses. Specialized labor courts adjudicate labor disputes, but there were long delays and a backlog of unresolved cases.

Employers generally respected freedom of association and the right to organize and bargain collectively in the formal industrial sector but not in the larger, informal economy. Most union members worked in the formal sector, and trade unions represented a small number of agricultural and informal-sector workers. Membership-based organizations, such as the Self-Employed Women’s Association, successfully organized informal-sector workers and helped them to gain higher payment for their work or products.

An estimated 80 percent of unionized workers were affiliated with one of the five major trade union federations. Unions were independent of the government, but four of the five major federations were associated with major political parties.

State and local authorities occasionally used their power to declare strikes illegal and force adjudication. Labor groups reported that some employers continued to refuse to recognize established unions and some, instead, established “workers’ committees” and employer-controlled unions to prevent independent unions from organizing. EPZs often employed workers on temporary contracts. Additionally, employee-only restrictions on entry to the EPZs limited union organizers’ access.

The law prohibits all forms of forced or compulsory labor, but forced labor, including bonded child labor (see section 7.c.), remained widespread.

Enforcement and compensation for victims is the responsibility of state and local governments and varied in effectiveness. The government generally did not effectively enforce laws related to bonded labor or labor trafficking laws, such as the Bonded Labor System (Abolition) Act. Prosecutions were rare. When inspectors referred violations for prosecution, court backlogs, inadequate preparation, and a lack of prioritization of these cases by prosecuting authorities sometimes resulted in acquittals.

Penalties under law varied based on the type of forced labor and included fines and prison terms; not all were sufficiently stringent. For example, bonded labor was specifically criminalized under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, which prescribes sufficiently stringent penalties of up to five years’ imprisonment, and the Bonded Labor System (Abolition) Act), which prescribes penalties of up to three years’ imprisonment, which were not sufficiently stringent.

The Ministry of Labor and Employment continued to work with the International Labor Organization (ILO) to combat bonded labor. Based on the ILO’s concluded “convergence program,” the Odisha government entered into agreements with brick kiln owners in Andhra Pradesh and Telangana to protect workers vulnerable to bonded labor.

The Ministry of Labor and Employment reported the federally funded, state-run Centrally Sponsored Scheme assisted in the release of 5,295 bonded laborers during the period April 2017 through March. Some NGOs reported delays in obtaining release certificates for rescued bonded laborers that were required to certify that employers had held them in bondage and entitled them to compensation under the law. The distribution of rehabilitation funds was uneven across states.

Estimates of the number of bonded laborers varied widely. Official government estimates place the number at 18 million workers in debt bondage. Most bonded labor occurred in agriculture. Nonagricultural sectors with a high incidence of bonded labor were stone quarries, brick kilns, rice mills, construction, embroidery factories, and beedi (hand-rolled cigarettes) production.

Bonded labor continued to be a concern in several states. On March 15, 155 migrant bonded laborers, including 31 children and 63 women, were rescued from a brick kiln in Tiruvallur, Tamil Nadu, by an NGO in cooperation with the district administration. Most of the rescued persons were paid less than 200 rupees ($3.00) a week. Police registered a case against the owner of the brick kiln. On August 1, government officials in Karimnagar District, Telangana, invoked section 342 (punishment for wrongful confinement) of the Indian Penal Code to rescue 32 tribal workers from labor bondage at an irrigation canal worksite. The investigation revealed that each worker was paid an advance remuneration of 20,000 rupees ($280) for 12 hours of work every day for nine months.

Scheduled Caste and Scheduled Tribe members lived and worked under traditional arrangements of servitude in many areas of the country. Although the central government had long abolished forced labor servitude, these social groups remained impoverished and vulnerable to forced exploitation, especially in Arunachal Pradesh.

Also see the Department of State’s Trafficking in Persons Report at www.state.gov/j/tip/rls/tiprpt/.

c. Prohibition of Child Labor and Minimum Age for Employment

The law prohibits employment of children younger than age 14. The law also prohibits the employment of children between the ages of 14 and 18 in hazardous work. Children are prohibited from using flammable substances, explosives, or other hazardous material, as defined by the law. In 2017 the Ministry of Labor and Employment added 16 industries and 59 processes to the list of hazardous industries where employment of children younger than age 18 is prohibited, and where children younger than age 14 are prohibited from helping, including family enterprises. The law, however, permits employment of children in family-owned enterprises involving nonhazardous activities after school hours. Nevertheless, child labor remained widespread.

State governments enforced labor laws and employed labor inspectors, while the Ministry of Labor and Employment provided oversight and coordination. Violations remained common. The law establishes a penalty in the range of 20,000 rupees ($280) to 50,000 rupees ($700) per child employed in hazardous industries. Such fines were often insufficient to deter violations, and authorities sporadically enforced them. The fines are deposited in a welfare fund for formerly employed children.

The Ministry of Labor and Employment coordinated its efforts with states to raise awareness about child labor by funding various outreach events such as plays and community activities.

The majority of child labor occurred in agriculture and the informal economy, in particular in stone quarries, in the rolling of cigarettes, and in informal food service establishments. Commercial sexual exploitation of children occurred (see section 6, Children). The NGO Child Rights and You stated in a July report that 23 million children between ages 15 and 18 worked in nonhazardous industries.

According to news reports, in a series of raids in February, district authorities and NGOs jointly rescued more than 150 child workers from roadside eateries, vehicle repair shops, artificial jewelry making units, and textile shops in the Krishna District of Andhra Pradesh.

Forced child labor, including bonded labor, also remained a serious problem. Employers engaged children in forced or indentured labor as domestic servants and beggars, as well as in quarrying, brick kilns, rice mills, silk-thread production, and textile embroidery.

Also see the Department of Labor’s Findings on the Worst Forms of Child Labor at www.dol.gov/ilab/reports/child-labor/findings/ .

The law and regulations prohibit discrimination based on race, sex, gender, disability, language, sexual orientation, gender identity, or social status with respect to employment and occupation. The law does not prohibit discrimination against individuals with HIV/AIDS or other communicable diseases, color, religion, political opinion, national origin, or citizenship.

The government effectively enforces the law and regulations within the formal sector. Penalties for violations included fines up to 93,750 rupees ($1,320), prison term ranging from three months to two years, or both. The law and regulations, however, do not protect those working within the informal sector (industries and establishments that do not fall under the purview of the Factories Act), who made up an estimated 90 percent of the workforce.

Discrimination occurred in the informal sector with respect to Dalits, indigenous persons, and persons with disabilities. Gender discrimination with respect to wages was prevalent. Foreign migrant workers were largely undocumented and typically did not enjoy the legal protections available to workers who are nationals of the country.

Federal law sets safety and health standards, but state government laws set minimum wages, hours of work, and additional state-specific safety and health standards. The daily minimum wage varied but was more than the official estimate of poverty-level income. State governments set a separate minimum wage for agricultural workers. Laws on wages, hours, and occupational health and safety do not apply to the large informal sector.

The law mandates a maximum eight-hour workday and 48-hour workweek, as well as safe working conditions, which include provisions for restrooms, cafeterias, medical facilities, and ventilation. The law mandates a minimum rest period of 30 minutes after every four hours of work and premium pay for overtime, but it does not mandate paid holidays. The law prohibits compulsory overtime, but it does not limit the amount of overtime a worker can perform. Occupational safety and health standards set by the government were generally up to date and covered the main industries in the country.

State governments are responsible for enforcing minimum wages, hours of work, and safety and health standards. The number of inspectors generally was insufficient to enforce labor law. State governments often did not effectively enforce the minimum wage law for agricultural workers. Enforcement of safety and health standards was poor, especially in the informal sector, but also in some formal sector industries. Penalties for violation of occupational safety and health standards range from a fine of 100,000 rupees ($1,410) to imprisonment for up to two years, but they were not sufficient to deter violations.

Violations of wage, overtime, and occupational safety and health standards were common in the informal sector. Small, low-technology factories frequently exposed workers to hazardous working conditions. Undocumented foreign workers did not receive basic occupational health and safety protections. In many instances, workers could not remove themselves from situations that endangered health or safety without jeopardizing their employment.

On February 16, seven workers at a farm in Chittoor District, Andhra Pradesh, died allegedly due to asphyxiation caused by inhaling poisonous gases when they stepped into a septic tank without wearing protective gear to clean a flushing machine. On September 10, five workers in West Delhi engaged to clean a septic tank for an apartment building died when they were overcome by fumes.

Kenya

Section 7. Worker Rights

The law provides for the right of workers, including those in export processing zones (EPZs), to form and join unions of their choice and to bargain collectively. For the union to be recognized as a bargaining agent, it needs to represent a simple majority of the employees in a firm eligible to join the union. This provision extends to public and private sector employees. Members of the armed forces, prisons service, and police are not allowed to form or join trade unions.

The law permits the government to deny workers the right to strike under certain conditions. For example, the government prohibits members of the military, police, prison guards, and the National Youth Service from striking. Civil servants are permitted to strike following a seven-day notice period. A bureau of the Ministry of Labor, Social Security, and Services (Ministry of Labor) then typically referred disputes to mediation, fact-finding, or binding arbitration at the Employment and Labor Relations Court, a body of up to 12 judges which has exclusive jurisdiction to handle employment and labor matters and which operates in urban areas, including Nairobi, Mombasa, Nyeri, Nakuru, Kisumu, and Kericho. In 2016 the Judiciary granted High Court status to the Employment and Labor Relations Court. It is illegal for parties involved in mediation to strike. Additionally, the ministry’s referral of a dispute to the conciliation process nullifies the right to strike.

By law workers who provide essential services, interpreted as “a service the interruption of which would probably endanger the life of a person or health of the population,” may not strike. Any trade dispute in a service listed as essential or declared an essential service may be adjudicated by the Employment and Labor Relations Court.

Strikes must concern terms of employment, and sympathy strikes are prohibited.

The law permits workers in collective bargaining disputes to strike if they have exhausted formal conciliation procedures and have given seven days’ notice to the government and the employer. Conciliation is not compulsory in individual employment matters. Security forces may not bargain collectively but have an internal board that reviews salaries. Informal workers may establish associations, or even unions, to negotiate wages and conditions matching the government’s minimum wage guidelines as well as to advocate for better working conditions and representation in the Employment and Labor Relations Court. The bill of rights in the constitution allows trade unions to undertake their activities without government interference, and the government generally respected this right.

The law prohibits antiunion discrimination and provides for reinstatement of workers dismissed for union activity. The Employment and Labor Relations Court can order reinstatement and damages in the form of back pay for employees wrongfully dismissed for union activities. Labor laws apply to all groups of workers.

The government enforced the decisions of the Employment and Labor Relations Court inconsistently. Many employers did not comply with reinstatement orders, and some workers accepted payment in lieu of reinstatement. In several cases, employers successfully appealed the Employment and Labor Relations Court’s decisions to a branch of the High Court. The enforcement mechanisms of the Employment and Labor Relations Court remained weak, and its case backlog raised concerns about the long delays and lack of efficacy of the court.

The Employment and Labor Relations Court received many cases arising from the implementation of new labor laws. The parties filed the majority of cases directly without referral to Ministry of Labor for conciliation. In 2016-17, the number of filed cases increased to 6,082, while the number of cases settled more than doubled to 3,668. As of June 2017, 13,723 cases were pending in up from 11,309 cases at the end of 2015-16. The total Collective Bargaining Agreements registered in 2017 were 411, compared with 268 in 2016. The government established the court to provide for quick resolution of labor disputes, but backlog cases dated to 2007.

The chief justice designated all county courts presided over by senior resident magistrates and higher-ranking judges as special courts to hear employment and labor cases. Providing adequate facilities outside of Nairobi was challenging, but observers cited the ability of workers to submit labor-related cases throughout the country as a positive step. In 2016 the Judiciary finalized the Employment and Labor Relations (Procedure) Rules. The significant changes introduced in the new Court procedure rules provide parties access to file pleadings directly in electronic form, new pretrial procedures, and alternative dispute resolution. The rules also set a 30-day time limit for the court to submit a report on disagreements over Collective Bargaining Agreements filed.

The government generally respected freedom of association and the right to bargain collectively, although enforcement was inconsistent. The government expressed its support for union rights mandated in the constitution.

Migrant workers often lacked formal organization and consequently missed the benefits of collective bargaining. Similarly, domestic workers and others who operated in private settings were vulnerable to exclusion from legal protections, although domestic workers unions exist in the country to protect their interests. The Ministry of East African Community and Northern Corridor claimed all employees are covered by the existing labor laws, and the ministry continued to advise domestic workers on the terms of their contracts, especially when their terms and conditions of work are violated.

In 2016 the government deployed labor attaches to Qatar, Saudi Arabia, and the United Arab Emirates (UAE) to regulate and coordinate contracts of Kenyan migrant workers and promote overseas job opportunities. The Ministry of East African Community and Northern Corridor also helped Kenyan domestic workers understand the terms and conditions of their work agreements. The government signed two bilateral agreements for employment opportunities with Saudi Arabia and Qatar, and the ministry’s negotiations continued with UAE. The ministry also established a directorate to regulate the conduct of labor agents for Kenyan migrant workers, including requiring the posting of a 500,000 shilling ($5,000) performance guarantee bond for each worker.

The survival of trade unions was threatened by the misuse of internships and other forms of transitional employment, with employers often not hiring employees after an internship ends. State agencies increasingly outsourced jobs to the private sector, and in the private sector, casual workers were employed on short-term contracts. This shift contributed to declining numbers in trade unions. NGOs and trade unionists reported replacement of permanent positions by casual or contract labor, especially in the EPZs, the Port of Mombasa, and in the agricultural and manufacturing sectors. In some cases cited, employers staffed permanent jobs with rotating contract workers. This practice occurred at the management level as well, where employers hired individuals as management trainees and kept them in these positions for the maximum permitted period of three years. Instead of converting such trainees to permanent staff, employers replaced them with new trainees at the end of the three years.

Workers exercised the right to strike. The health sector witnessed industrial strikes that began in the fourth quarter of 2016 and lasted well into 2017. The doctors’ strike lasted until March 2017, leading to disruption of public health care service delivery and temporary detention of seven union officials. Strikes involving Kenya National Union of Nurses in various counties continued until November 2017. The government agreed to pay withheld back salaries; authorized a collective bargaining agreement; agreed to pay for nurses’ uniforms and to provide a risk allowance; and announced it would drop all pending disciplinary cases against nurses resulting from the strikes. Clinical Officers supporting the health sector also went on a short-lived strike lasting three weeks before a court heard their grievances in October. University lecturers went on strike three times during the academic year, demanding full implementation of the 2013-2017 Collective Bargaining Agreement, which was resolved in December 2017.

The law prohibits most forms of forced or compulsory labor, including by children. The country made moderate advances to prevent or eliminate forced labor.

The government did not effectively enforce the law and some forced labor occurred. Certain legal provisions, including the penal code and the Public Order Act, impose compulsory prison labor. Resources, inspections, and remediation were not adequate to prevent forced labor, and penalties were not sufficient to deter violations. Violations included debt bondage, trafficking of workers, and compulsion of persons, even family members, to work as domestic servants. The government prosecuted 59 cases of forced labor, primarily in cattle herding, street vending, begging, and agriculture in 2017. Domestic workers from Uganda, herders from Ethiopia, and others from Somalia, South Sudan, and Burundi were subjected to forced labor.

Also see the Department of State’s Trafficking in Persons Report at www.state.gov/j/tip/rls/tiprpt/.

c. Prohibition of Child Labor and Minimum Age for Employment

The minimum age for work (other than apprenticeships) is 16, and the minimum age for hazardous work is 18. These protections, however, only extend to children engaged under formal employment agreements, and do not extend to those children working informally. The ministry, in collaboration with the International Labor Organization (ILO), the international donor community, and NGOs, published a list of specific jobs considered hazardous that would constitute the worst forms of child labor in 2014. This list includes but is not limited to scavenging, carrying stones and rocks, metalwork, working with machinery, mining and stone crushing. The law explicitly prohibits forced labor, trafficking, and other practices similar to slavery; child soldiering; prostitution; the use, procuring, or offering of a child for the production of pornography or for pornographic performances; and the use by an adult for illegal activities (such as drug trafficking) of any child up to age 18. The law applies equally to girls and boys.

The law allows children ages 13 to 16 to engage in industrial undertakings when participating in apprenticeships. Industrial undertakings are defined under law to include work in mines, quarries, factories, construction, demolition, and transportation, which the list for children includes as hazardous work.

The law provides for penalties for any person who employs, engages, or uses a child in an industrial undertaking in violation of the law. Fines in the formal sector were generally enough to deter violations. Employment of children in the formal industrial wage sector in violation of the Employment Act was rare. The law does not prohibit child labor for children employed outside the scope of a contractual agreement. Child labor in the informal sector was widespread but difficult to monitor and control.

The Ministry of Labor enforces child labor laws, but enforcement remained inconsistent due to resource constraints. Supplementary programs, such as the ILO-initiated Community Child Labor monitoring program, helped provide additional resources to combat child labor. These programs identified children who were working illegally, removed them from hazardous work conditions, and referred them to appropriate service providers. The government also worked closely with the Central Organization of Trade Unions, and the Federation of Kenyan Employers to eliminate child labor.

In support of child protection, the Ministry of Labor launched a national online database system in May 2017. The Child Protection Information Management System collects, aggregates and reports on child protection data that informs policy decisions and budgeting for orphans and vulnerable children. The web-based system allows for an aggregate format of data to be made available to all the child protection stakeholders. In 2017 two new Child Rescue Centers were established in Siaya and Kakamega counties, bringing the total number of these centers to eight. Child Rescue Centers withdraw and rehabilitate child laborers and provide counseling and life skills training.

The government continued to implement the National Safety Net Program for Results, a project seeking to establish an effective national safety net program for poor and vulnerable households, and the Decent Work Country Program, a project designed to advance economic opportunities. Under these programs, the government pays households sheltering orphans or other vulnerable children to deter the children from dropping out of school and engaging in forced labor. For example, there have been some cases reported in Western Kenya of girls dropping out of secondary school and engaging in sex work in order to afford basic supplies.

According to a 2016 UNICEF study, 26 percent of children between ages 14 and under (almost 5 million children) engaged in child labor. Many children worked on family plots or in family units on tea, coffee, sugar, sisal, tobacco, and rice plantations, as well as in the production of miraa (khat). Children worked in mining, including in abandoned gold mines, small quarries, and sand mines. Children also worked in the fishing industry. In urban areas businesses employed children in hawking, scavenging, carrying loads, fetching and selling water, and selling food. Children often worked long hours as domestic servants in private homes for little or no pay, and there were reports of physical and sexual abuse of child domestic servants. Parents sometimes initiated forced or compulsory child labor, such as in agricultural labor and domestic service, but also including prostitution.

Most of the trafficking of children within the country appeared related to domestic labor, with migrant children trafficked from rural to urban areas.

Also see the Department of Labor’s Findings on the Worst Forms of Child Labor at www.dol.gov/ilab/reports/child-labor/findings/ .

The law prohibits discrimination but does not explicitly prohibit discrimination based on sexual orientation or gender identity. Several regulatory statutes provide a legal framework for a requirement for the public and private sectors to reserve 5 percent of employment opportunities for persons with disabilities; tax relief and incentives for such persons and their organizations; and reserves 30 percent of public procurement tenders for women, youth, and persons with disabilities.

The government did not effectively enforce the law. Gender-based discrimination in employment and occupation occurred, although the law mandates nondiscrimination based on gender in hiring. The average monthly income of women was approximately two-thirds that of men. Women had difficulty working in nontraditional fields, had slower promotions, and were more likely to be dismissed. According to a World Bank report, both men and women experienced sexual harassment in job recruitment, but women more commonly reported it. Women who tried to establish their own informal businesses were subjected to discrimination and harassment. One study of women street vendors in Nairobi found harassment was the main mode of interaction between street vendors and authorities. The study noted that demands for bribes by police amounting to three to 8 percent of a vendor’s income as well as sexual abuse were common.

In an audit of hiring practices released in 2016, the NCIC accused many county governors of appointing and employing disproportionate numbers of the dominant tribe in their county. According to the commission, 15 of the 47 counties failed to include a single person from a minority tribe either on the county’s public service board or as county executive committee members. For example, all 10 of West Pokot’s committee members were Pokots. These problems were aggravated by the devolution of fiscal and administrative responsibility to county governments. Some counties, for example Nairobi City County, were notable for apportioning roles inclusively. Observers also noted patterns of preferential hiring during police recruitment exercises (see section 1.d.).

In both private business and in the public sector, members of nearly all ethnic groups commonly discriminated in favor of other members of the same group.

Due to societal discrimination, there were limited employment opportunities for persons with albinism. The law provides protection for persons with disabilities against employment discrimination, although in practice many persons with disabilities faced challenges in finding and obtaining employment. There are no legal employment protections for LGBTI persons, who remained vulnerable to discrimination in the workplace. Discrimination against migrant workers also occurred.

Regulation of wages is part of the Labor Institutions Act, and the government established basic minimum wages by occupation and location, setting minimum standards for monthly, daily, and hourly work in each category. The minimum wage for a general laborer was 12,926 shillings ($128) per month. The average minimum wage for skilled workers was 18,274 shillings ($181) per month. The government increased the lowest agricultural minimum wage for unskilled employees to 7,323 shillings ($73) per month, excluding housing allowance. Agricultural workers were underpaid compared with other sectors. Minimum wages exceeded the World Bank poverty rate of $1.90 per day.

The Ministry of Labor implemented various social protection programs under the Social Safety Net Program, such as a cash transfer for orphaned and vulnerable children, a cash transfer program for the elderly, and a cash transfer program for persons with disabilities. These programs reached 874,806 households.

The law limits the normal workweek to 52 hours (60 hours for night workers); some categories of workers had lower limits. It specifically excludes agricultural workers from such limitations. It entitles an employee in the nonagricultural sector to one rest day per week and 21 days of combined annual and sick leave. The law also requires that total hours worked (regular time plus overtime) in any two-week period not exceed 120 hours (144 hours for night workers) and provides premium pay for overtime.

The government did not effectively enforce the law. Authorities reported workweek and overtime violations. Workers in some enterprises, particularly in the EPZs and those in road construction, claimed employers forced them to work extra hours without overtime pay to meet production targets. Hotel industry workers were usually paid the minimum statutory wage, but employees worked long hours without compensation. Additionally, employers often did not provide nighttime transport, leaving workers vulnerable to assault, robbery, and sexual harassment.

The law details environmental, health, and safety standards. The Labor Ministry’s Directorate of Occupational Health and Safety Services has the authority to inspect factories and work sites, but employed an insufficient number of labor inspectors to conduct regular inspections. Fines generally were insufficient to deter violations.

The directorate’s health and safety inspectors can issue notices against employers for practices or activities that involve a risk of serious personal injury. Employers may appeal such notices to the Factories Appeals Court, a body of four members, one of whom must be a High Court judge. The law stipulates that factories employing 20 or more persons have an internal health and safety committee with representation from workers. According to the government, many of the largest factories had health and safety committees.

The law provides for labor inspections to prevent labor disputes, accidents, and conflicts and to protect workers from occupational hazards and disease by ensuring compliance with labor laws. Low salaries and the lack of vehicles, fuel, and other resources made it very difficult for labor inspectors to do their work effectively and left them vulnerable to bribes and other forms of corruption. Labor inspections include a provision for reporting on persons with disabilities. The Employment Act of 2007 prohibits discrimination against an employee on the basis of disability.

The law provides social protections for workers employed in the formal and informal sectors. Informal workers organized into associations, cooperatives, and, in some cases, unions. All Kenyan employers, including those in the informal sector, are required to contribute to the National Hospital Insurance Fund and the National Social Security Fund; these provide health insurance and pensions. According to the 2015-2017 Kenya Economic Survey, the informal sector employed 11.81 million persons in 2016, compared with 2.42 million in the formal sector.

Workers, including foreigners and immigrants, have the legal right to remove themselves from situations that endanger health or safety without jeopardy to their employment. The Ministry of Labor did not effectively enforce these regulations, and workers were reluctant to remove themselves from working conditions that endangered their health or safety due to the risk of losing their jobs. The Kenya Federation of Employers provided training and auditing of workplaces for health and safety practices.

Vietnam

Section 7. Worker Rights

The constitution affords the right to association and the right to demonstrate but limits the exercise of these rights, including preventing workers from organizing or joining independent unions of their choice. While workers may choose whether to join a union and at which level (local or “grassroots,” provincial, or national), the law requires every union to be under the legal purview and control of the country’s only trade union confederation, the Vietnam General Confederation of Labor (VGCL), a CPV-run organization. Only citizens may form or join labor unions.

The law gives the VGCL exclusive authority to recognize unions and confers on VGCL upper-level trade unions the responsibility to establish workplace unions. The VGCL’s charter establishes the VGCL as the head of the multilevel unitary trade union structure and carries the force of law. The law also stipulates that the VGCL answers directly to the CPV’s VFF, which does not protect trade unions from government interference in or control over union activity.

The law also limits freedom of association by not allowing trade unions full autonomy in administering their affairs. The law confers on the VGCL ownership of all trade-union property, and gives it the right to represent lower-level unions. By law trade union leaders and officials are not elected by union members but are appointed.

The law requires that if a workplace trade union does not exist, an “immediate upper-level trade union” must perform the tasks of a grassroots union, even where workers have not so requested or have voluntarily elected not to organize. For nonunionized workers to organize a strike, they must request that the strike “be organized and led by the upper-level trade union,” and if non-unionized workers wish to bargain collectively, the upper-level VGCL union must represent them.

The law stipulates that trade unions have the right and responsibility to organize and lead strikes, and establishes certain substantive and procedural restrictions on strikes. Strikes that do not arise from a collective labor dispute or do not adhere to the process outlined by law are illegal. Contrary to international standards, the law forbids strikes regarding “rights-based” disputes. This includes strikes arising out of economic and social policy measures that are not a part of a collective negotiation process, as they are both outside the law’s definition of protected “interest-based” strikes.

The law prohibits strikes by workers in businesses that serve the public or that the government considers essential to the national economy, defense, public health, and public order. “Essential services” include electricity production; post and telecommunications; maritime and air transportation, navigation, public works, and oil and gas production. The law also grants the prime minister the right to suspend a strike considered detrimental to the national economy or public safety.

The law prohibits strikes among workers across different employers, resulting in a ban on sector- and industry-level protests and prohibits workers and unions from calling for strikes in support of multiemployer contracts.

The law states that the executive committee of a trade union may issue a decision to go on strike only when at least 50 percent of workers support it.

Laws stipulate an extensive and cumbersome process of mediation and arbitration before a lawful strike over an interest-based collective dispute may occur. Unions or workers’ representatives may either appeal decisions of provincial arbitration councils to provincial people’s courts or strike. The law stipulates strikers may not be paid wages while they are not at work. The law prohibits retribution against strikers. By law individuals participating in strikes declared illegal by a people’s court and found to have caused damage to their employer are liable for damages.

The laws include provisions that prohibit antiunion discrimination and interference in union activities while imposing administrative sanctions and fines for violations. The laws do not distinguish between workers and managers, however, and fail to prohibit employers’ agents, such as managers who represent the interests of the employer, from participating or interfering in union activity. Penalties were not adequate to deter violations.

According to the VGCL, more than 73 percent of the 189 strikes that occurred in the first eight months of the year occurred in foreign direct-investment companies (mainly Korean, Taiwanese, Japanese, and Chinese companies), and nearly 40 percent occurred in the southern economic zone area in Binh Duong, Dong Nai, Ba Ria Vung Tau provinces and Ho Chi Minh City. None of the strikes followed the authorized conciliation and arbitration process, and thus authorities considered them illegal “wildcat” strikes. The government, however, took no action against the strikers and, on occasion, actively mediated agreements in the workers’ favor. In some cases the government imposed heavy fines on employers, especially of foreign-owned companies, that engaged in illegal practices that led to strikes.

Because it is illegal to establish or seek to establish independent labor unions, there were no government-sanctioned domestic labor NGOs involved in labor organizing. Local labor NGOs, however, supported efforts to raise awareness of worker rights and occupational safety and health issues and to support internal and external migrant workers. Multiple international labor NGOs collaborated with the VGCL to provide training to VGCL-affiliated union representatives on labor organizing, collective bargaining, and other trade union issues. The International Labor Organization (ILO)-International Finance Corporation (IFC) Better Work project reported management interference in the activities of the trade union was one of the most significant issues in garment factories in the country.

Labor activists and representatives of independent (non-VGCL) worker organizations faced antiunion discrimination. Independent labor activists seeking to form unions separate from the VGCL or inform workers of their labor rights sometimes faced government harassment. In February a court convicted and sentenced peaceful labor and environmental activist Hoang Duc Binh to 14 years’ imprisonment under vague articles of the penal code. Binh, who was arrested in 2017, advocated for compensation for fishermen affected by the 2016 Formosa spill, and posted online content about the government’s response to the spill that significantly affected workers (also see section 1.d.). In July a crowd attacked the house of Do Thi Minh Hanh, chairwoman of the independent Viet Labor Movement, pelting it with stones, fish sauce, and petrol bombs. In addition authorities continued to use foreign travel prohibitions against labor activists, including Do Thi Minh Hanh (also see section 2.d.).

The constitution and law prohibit forced or compulsory labor. The labor code’s definition of forced labor, however, does not explicitly include debt bondage. In January penal code amendments entered into effect that criminalized all forms of labor trafficking of adults and prescribed penalties of five to 10 years’ imprisonment and fines of 20 to 100 million VND. The amendments also criminalized labor trafficking of children younger than age 16 and prescribed penalties of seven to 12 years’ imprisonment and fines of 50 to 200 million VND. The law does not provide any penalty for violation of the labor code provisions prohibiting forced labor. ,NGOs continued to report the occurrence of forced labor of men, women, and children within the country (see also section 7.c.).

Labor recruitment firms, most of which were affiliated with state-owned enterprises, and unlicensed brokers reportedly charged workers seeking international employment higher fees than the law allows, and they did so with impunity. Those workers incurred high debts and were thus more vulnerable to forced labor, including debt bondage.

Also see the Department of State’s Trafficking in Persons Report at www.state.gov/j/tip/rls/tiprpt/.

c. Prohibition of Child Labor and Minimum Age for Employment

The constitution prohibits “the employment of persons below the minimum working age.” The law defines underage employees as anyone younger than age 18. The law prohibits children under 18 from working heavy, hazardous, and dangerous jobs. The law limits children between ages 15 and 18 to working a maximum of eight hours per day and 40 hours per week. Children between ages 13 and 15 may work only in light jobs, as defined by the Ministry of Labor, and considerations must be made for schooling, working conditions, labor safety, and hygiene. The law permits children to register at trade training centers, a form of vocational training, from age 14 without parental consent. While the law generally prohibits the employment of children under 13, it allows those under 13 to engage in sectors not deemed to be harmful as regulated by the ministry.

The Ministry of Labor is responsible for enforcing child labor laws and policies. Government officials may fine and, in cases of criminal violations, prosecute employers who violate child labor laws. As part of the government’s 2016-20 National Plan of Action for Children and National Program for Child Protection, the government continued efforts to prevent child labor and specifically targeted children in rural areas, disadvantaged children, and children at risk of exposure to hazardous work conditions.

Per the Vietnam National Child Labor Survey 2012, the most recent data available, 1.75 million working children were categorized as “child laborers”, accounting for 9.6 percent of the national child population or 62 percent of children engaged in economic activities. Of child laborers, 40 percent were girls, nearly 85 percent of these children lived in the rural areas and 60 percent belonged to the 15-17 age group. Some children started work as young as age 12 and nearly 55 percent did not attend school (5 percent of whom would never attend school). Agriculture was the most common field for child laborers, with 67 percent of the total population, while 15.7 percent worked in construction/manufacturing and 16.7 percent in services.

There were reports of children between ages 10 and 18–and some as young as six–producing garments under conditions of forced labor. The most recently available information from government raids, NGOs, and media reports indicated that groups of children were laboring in small, privately owned garment factories and informal garment workshops. Reports indicated that these employers were beating or threatening the children with physical violence. In addition, there was evidence that children as young as 12 were working while confined in government-run rehabilitation centers. Employers forced these children to sew garments without pay under threat of physical or other punishments.

International and domestic NGOs noted successful partnerships with provincial governments to implement national-level policies combatting child labor.

The law prohibits discrimination in employment, labor relationships, and work but not explicitly in all aspects of employment and occupation. The law prohibits discrimination based on gender, race, disability, color, social class, marital status, belief, religion, HIV status, and membership in a trade union or participation in trade union activities. The law does not prohibit discrimination based on political opinion, age, language, national origin, sexual orientation, or gender identity.

No laws prohibit employers from asking about family or marital status during job interviews.

The government did not effectively enforce laws related to employment discrimination. The government took some action to address employment discrimination against persons with disabilities. Companies with a workforce composed of at least 51 percent employees with disabilities may qualify for special government-subsidized loans.

Discriminatory hiring practices existed, including discrimination related to gender, age, disability, and marital status. Women in the public sector were expected to retire at age 55, compared with age 60 for men, affecting women’s ability to rise to managerial ranks and have higher incomes and pensions.

Women-led enterprises continued to have limited access to credit and international markets. A 2017 report by Oxfam estimated male workers earned on average 33 percent more than their female counterparts. Skilled female workers with university degrees earned 80 percent of male university graduates’ wages. Many women older than age 35 found it difficult to find a job, and there were reports of women receiving termination letters at age 35. The VGCL’s Institute of Workers and Trade Unions noted that women older than age 35 accounted for roughly half of all unemployed workers in the country.

Social and attitudinal barriers and limited access to the workplace remained problems in the employment of persons with disabilities.

The minimum wage for enterprises ranged from 2.76 million VND ($117) per month to 3.98 million VND ($170) per month, depending on the region. In August the National Wages Council agreed to a 5.3 percent increase in the minimum wage, to take effect in 2019, raising the minimum wage range to 2.92 million VND ($124) – 4.18 million VND ($178). The minimum wage exceeds the General Statistics Office-World Bank official poverty income level.

The law limits overtime to 50 percent of normal working hours per day, 30 hours per month, and 200 hours per year, but it provides for an exception in special cases, with a maximum of 300 overtime hours annually, subject to stipulation by the government after consulting with the VGCL and employer representatives.

The law provides for occupational safety and health standards, describes procedures for persons who are victims of labor accidents and occupational diseases, and delineates the responsibilities of organizations and individuals in the occupational safety and health fields. The law provides for the right of workers to remove themselves from situations that endanger health or safety without jeopardy to their employment. The law protects “labor subleasing”, a pattern of employment, and thus extends protection to part-time and domestic workers.

The Ministry of Labor is the principal labor authority, and it oversees the enforcement of the labor law, administers labor relations policy, and promotes job creation. The Labor Inspections Department is responsible for workplace inspections to confirm compliance with labor laws and occupational safety and health standards. Inspectors may use sanctions, fines, withdrawal of operating licenses or registrations, closures of enterprises, and mandatory training. Inspectors may take immediate measures where they have reason to believe there is an imminent and serious danger to the health or safety of workers, including temporarily suspending operations, although such measures were rare. The ministry acknowledged shortcomings in its labor inspection system and emphasized the number of labor inspectors countrywide was insufficient.

Government enforcement of labor laws and standards, including in the informal economy, was irregular for many reasons, including low funding and a shortage of trained enforcement personnel.

Credible reports, including from the ILO-IFC Better Work 2017 Annual Report, indicated that factories exceeded legal overtime thresholds and did not meet legal requirements for rest days. The ILO-IFC report stated that, while a majority of factories in the program complied with the daily limit of four hours overtime, 77 percent still failed to meet monthly limits (30 hours) and 72 percent exceeded annual limits (300 hours). In addition and due to the high prevalence of Sunday work, 44 percent of factories failed to provide at least four days of rest per month to all workers.

Migrant workers, including internal economic migrants, were among the most vulnerable workers, and employers routinely subjected them to hazardous working conditions. Members of ethnic minority groups often worked in the informal economy and, according to the ILO, informal workers typically had low and irregular incomes, endured long working hours, and lacked protection by labor market institutions. On-the-job injuries due to poor health and safety conditions and inadequate employee training remained a problem. In 2017, the government reported 8,956 occupational accidents with 9,173 victims, including 898 fatal incidents with 928 deaths.

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