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Brazil

Section 7. Worker Rights

a. Freedom of Association and the Right to Collective Bargaining

The law provides for freedom of association for all workers (except members of the military, military police, and firefighters), the right to bargain collectively with some restrictions, and the right to strike. The law limits organizing at the enterprise level. By law the armed forces, military police, or firefighters may not strike. The law prohibits antiunion discrimination, including the dismissal of employees who are candidates for, or holders of, union leadership positions, and it requires employers to reinstate workers fired for union activity.

New unions must register with the Ministry of Labor, which accepts the registration unless objections are filed by other unions. The law stipulates certain restrictions, such as unicidade (in essence one union per occupational category per city), which limits freedom of association by prohibiting multiple, competing unions of the same professional category in a single geographical area. Unions that represent workers in the same geographical area and professional category may contest registration.

The law stipulates a strike may be ruled “disruptive” by the labor court, and the union may be subjected to legal penalties if the strike violates certain conditions, such as if the union fails to maintain essential services during a strike, notify employers at least 48 hours before the beginning of a walkout, or end a strike after a labor court decision. Employers may not hire substitute workers during a legal strike or fire workers for strike-related activity, provided the strike is not ruled abusive. In April the Supreme Court ruled against the right of civil police to strike, stating all public security organs are prohibited from striking, including civil police, military police, federal police, fire brigades, railway police, and highway police. Civil police officials filed a grievance with the International Labor Organization (ILO).

The law obliges a union to negotiate on behalf of all registered workers in the professional category and geographical area it represents, regardless of whether an employee pays voluntary membership dues. The law permits the government to reject clauses of collective bargaining agreements that conflict with government policy. A July 2017 law includes collective bargaining changes, such as the ability to negotiate remuneration for the commute to and from work, working remotely, and a flexible hours schedule.

Freedom of association and the right to collective bargaining were generally respected. Collective bargaining was widespread in establishments in the private sector. Worker organizations were independent of the government and political parties. The Ministry of Labor suspended union registration processes for a period of 90 days beginning on July 23 after a police investigation uncovered evidence that nonexistent unions were being registered fraudulently.

Cambodia

Section 7. Worker Rights

a. Freedom of Association and the Right to Collective Bargaining

The law provides for the right of private-sector workers to form and join trade unions of their own choice, the right to strike, and the right to bargain collectively. The law, however, limits the right to strike, facilitates government intervention in internal union affairs, excludes certain categories of workers from joining unions, and permits third parties to seek the dissolution of trade unions, while imposing only minor penalties on employers for unfair labor practices.

Onerous union registration rules amount to a requirement for prior authorization for union formation. Union registration requirements include filing charters, listing officials and their immediate families, and providing banking details to the Ministry of Labor and Vocational Training. The law forbids unregistered unions from operating. The law also specifies that only unions that have “most representative status” (MRS)–the largest union in a workplace, provided it also represents at least 30 percent of workers in an enterprise–may represent workers in collective bargaining. Civil servants, teachers, workers employed by state-owned enterprises, and workers in the banking, health care, and informal sectors may form only “associations,” not trade unions, affording them fewer worker protections than unionized trades.

As of September the Ministry of Labor and Vocational Training had issued eight sets of implementing regulations to the 2016 Law on Trade Unions; at least one more remained unissued. In July, for example, the ministry issued a regulation clarifying that all trade unions can represent their members in collective dispute resolution processes. The ministry also issued a regulation on the election of shop stewards, as well as regulations requiring unions and employer associations to submit two annual reports to their members and the ministry, one on finance and one on its activities. Many unions expressed concern they would not be able to comply with the financial reporting regulations, which require all local unions to maintain daily, weekly, and annual financial records, as well as physical copies of all receipts. Union representatives feared local chapters would not have adequate capacity to meet the requirements.

The law stipulates workers can strike only after several requirements have been met, including the successful registration of a union; the failure of other methods of dispute resolution (such as conciliation, mediation, and arbitration); completion of a 60-day waiting period following the emergence of the dispute; a secret-ballot vote of the union membership; and seven days’ advance notice to the employer and the Ministry of Labor and Vocational Training. Strikers are liable to criminal penalties if they block entrances or roads, or engage in any other behavior interpreted by local authorities as harmful to public order. Once a union has successfully carried out a strike vote, which requires the consent of a majority of voting members, with 50 percent of union members forming a quorum, the court may issue an injunction against the strike and require the restart of negotiations with employers.

Government enforcement of the right to association, including freedom from antiunion discrimination, and of collective bargaining rights, was highly inconsistent. Close relationships among government officials, employers, and union leaders, particularly those operating progovernment unions, limited the government’s willingness to address violations of workers’ rights. These relationships hampered the independent operation of unions, since the majority of the country’s union federations had affiliation with the ruling party, and only a minority were affiliated with opposition parties or worked independently.

The resolution of collective disputes was also inconsistent, largely due to a provision in the Law on Trade Unions that was interpreted to allow only MRS unions to represent members in collective disputes. After the Ministry of Labor and Vocational Training issued a regulation in July clarifying minority unions could represent their members in collective dispute resolution procedures, the Arbitration Council–an independent body that hears and resolves collective labor disputes–resolved at least one collective dispute brought by a non-MRS union; however, some activists complained the regulation goes too far in interpreting the law, to the point of contradicting it. Prior to July the number of cases reaching the independent Arbitration Council had dropped from more than 30 per month prior to the Law on Trade Unions being passed to approximately two per month afterwards, causing many outside observers to express concerns.

Individual labor disputes may be brought before the courts, although the judicial system was neither impartial nor transparent. There is no specialized labor court. The Arbitration Council requested that the Ministry of Labor and Vocational Training permit it to run a pilot project adjudicating certain types of individual disputes, although unions expressed concern the government considers collective disputes as individual disputes in order to diminish the value of union membership.

Workers reported various obstacles while trying to exercise their right to free association. There were reports of government harassment targeting independent labor leaders, including the use of spurious legal charges. Several prominent labor leaders associated with the opposition or independent unions had charges pending against them or were under court supervision; the Cambodian Labor Confederation reported at least 20 union leaders faced criminal charges.

In July the Phnom Penh municipal court dropped “breach of trust” charges against prominent labor activist Mouen Tola, which outside observers believed were politically motivated, and for which he faced a large fine and a maximum three years’ imprisonment. The court dismissed the case after an international outcry.

Reports continued of other forms of harassment; for instance police raided at least one labor advocacy NGO twice since July, reportedly searching for registration papers, tax documents, foreign worker visas, and proof of a building lease. Some unions and NGOs reported that government officials pressured their property owners to break the organization’s lease. Several unions reported harassment and intimidation from local government officials while attempting to hold routine meetings and workshops–particularly in the period preceding the July election.

Some employers reportedly refused, with impunity, to sign notification letters to recognize unions officially or to renew the short-term contract employees who had joined unions (approximately 80 percent of workers in the formal manufacturing sector were on short-term contracts). Employers and local government officials often refused to provide necessary paperwork for unions to register. Labor activists reported that many banks refused to open accounts for unregistered unions, although unions are unable by law to register until they provide banking details. Provincial-level labor authorities reportedly kept registration applications in abeyance indefinitely by requesting more materials or resubmissions due to minor errors late in the 30-day application cycle, although anecdotal evidence suggested this practice had decreased by midyear, particularly for garment and footwear sector unions. The Building and Wood Workers Trade Union Confederation (BWTUC), on the other hand, successfully registered in August on its fifth attempt, after having initially filed its application in January. As of November only 12 of its 42 local union members had been able to register.

Unionization rates varied across economic sectors. In the hospitality industry, it approached 20 percent. In the formal apparel and footwear sector, despite the great number of unions, unionization rates were estimated at only 20-30 percent. Many of these unions represented the interests of factory owners and the CPP over those of workers. In 2017 a BWTUC study showed only 9 percent of 1,010 construction workers across Phnom Penh worksites belonged to a union or association.

There were credible reports of workers dismissed on spurious grounds after organizing or participating in strikes. While the majority of strikes were illegal, participating in an illegal strike was not by itself a legally acceptable reason for dismissal. In some cases employers failed to renew the short-term contracts of active unionists; in others they pressured union personnel or strikers to accept compensation and quit. The union movement did not generally find government-sponsored remedies for these dismissals effective.

The ILO noted reports of antiunion discrimination by employers through interference with and dismissal of members of independent unions, as well as through the creation of employer-backed unions. Although the law affords protection to union leaders, many factories successfully terminated elected union officials prior to the unions’ attainment of formal registration.

The ILO-International Finance Corporation Better Factories Cambodia (BFC) program found ongoing concerns with workers’ ability to form and join unions freely, management interference with unions, and employer control of unions. The BFC’s coverage was limited to the export sector, so the actual level of union harassment was likely significantly higher, particularly in unregistered factories.

Venezuela

Section 7. Worker Rights

a. Freedom of Association and the Right to Collective Bargaining

The law provides that all private- and public-sector workers (except members of the armed forces) have the right to form and join unions of their choice, and it provides for collective bargaining and the right to strike. The law, however, places several restrictions on these rights, and the government deployed a variety of mechanisms to undercut the rights of independent workers and unions. Minimum membership requirements for unions differ based on the type of union. Forming a company union requires a minimum of 20 workers; forming a professional, industrial, or sectoral union in one jurisdiction requires 40 workers in the same field; and forming a regional or national union requires 150 workers. Ten persons may form an employees association, a parallel type of representation the government endorsed and openly supported.

The law prohibits “any act of discrimination or interference contrary to the exercise” of workers’ right to unionize. The law requires all unions to provide the Ministry of Labor a membership roster that includes the full name, home address, telephone number, and national identification number for each union member. The ministry reviews the registration and determines whether the union fulfilled all requirements. Unions must submit their registration application by December 31 of the year the union forms; if not received by the ministry or if the ministry considers the registration unsatisfactory, the union is denied the ability to exist legally. The law also requires the presence of labor inspectors to witness and legitimize unions’ decisions before the Ministry of Labor. The International Labor Organization (ILO) raised concerns about the ministry’s refusal to register trade union organizations.

By law employers may negotiate a collective contract only with the union that represents the majority of its workers. Minority organizations may not jointly negotiate in cases where no union represents an absolute majority. The law also places a number of restrictions on unions’ ability to administer their activities. For example, the CNE has the authority to administer internal elections of labor unions, federations, and confederations. By law elections must be held at least every three years. If CNE-administered and -certified elections are not held within this period, the law prohibits union leaders from representing workers in negotiations or engaging in anything beyond administrative tasks. The ILO repeatedly found cases of interference by the CNE in trade union elections, and in 1999 it began calling for the CNE to be delinked from the union election process.

The law recognizes the right of all public- and private-sector workers to strike, subject to conditions established by law. By law workers participating in legal strikes receive immunity from prosecution, and their time in service may not be reduced by the time engaged in a strike. The law requires that employers reincorporate striking workers and provides for prison terms of six to 15 months for employers who fail to do so. Replacement workers are not permitted during legal strikes. The law prohibits striking workers from paralyzing the production or provision of essential public goods and services, but it defines “essential services” more broadly than ILO standards. The ILO called on the government to amend the law to exclude from the definition of “essential services” activities “that are not essential in the strict sense of the term…so that in no event may criminal sanctions be imposed in cases of peaceful strikes.”

The minister of labor may order public- or private-sector strikers back to work and submit their disputes to arbitration if a strike “puts in immediate danger the lives or security of all or part of the population.” Other legal provisions establish criminal penalties for exercising the right to strike in certain circumstances. For example, the law prohibits specified actions and makes punishable with five to 10 years in prison anyone who “organizes, supports, or instigates the realization of activities within security zones that are intended to disturb or affect the organization and functioning of military installations, public services, industries and basic [mining] enterprises, or the socioeconomic life of the country.” The law also provides for prison terms of two to six years and six to 10 years, respectively, for those who restrict the distribution of goods and for “those…who develop or carry out actions or omissions that impede, either directly or indirectly, the production, manufacture, import, storing, transport, distribution, and commercialization of goods.” There was no information on whether penalties were sufficient to deter violations.

The government restricted the freedom of association and the right to collective bargaining through administrative and legal mechanisms.

The ILO raised concerns about violence against trade union members and government intimidation of the Associations of Commerce and Production of Venezuela. ILO member countries voted to establish an ILO Commission of Inquiry against Venezuela to investigate longstanding complaints first lodged in 2015 of labor rights violations of ILO Conventions No. 26, 87, and 144, which pertain to minimum-wage fixing, freedom of association and protection of the right to organize, and tripartite consultation, respectively. The ILO had recommended that the government allow a tripartite delegation to provide technical assistance to mediate unresolved complaints between the government, employers, and workers. The government continued to refuse access to the ILO High-Level Tripartite delegation to address complaints of labor rights violations.

Organized labor activists continued to report that the annual requirement to provide the Ministry of Labor a membership roster was onerous and infringed on freedom of association. They alleged the ministry removed member names from the rosters for political purposes, particularly if members were not registered to vote with the CNE. Labor leaders also criticized the laborious and costly administrative process of requesting CNE approval for elections and subsequent delays in the CNE’s recognition of such union processes. In addition there reportedly was a high turnover of Ministry of Labor contractors, resulting in a lack of timely follow-through on union processes. Labor unions in both the private and public sectors noted long delays in obtaining CNE concurrence to hold elections and in receiving certification of the election results, which hindered unions’ ability to bargain collectively.

The government continued to support many “parallel” unions, which sought to dilute the membership and effectiveness of traditional independent unions. In October, Labor Minister Eduardo Pinate announced the expansion of the ministry’s Youth Worker Program (Chamba Juvenil), which independent union leaders claimed was a government mechanism to displace independent workers with government-aligned workers and also to suppress wages, since youth are paid less than experienced workers. In general these government-supported unions were not subject to the same government scrutiny and requirements regarding leadership elections. The government excluded from consideration other, independent union federations, including the Confederation of Venezuelan Workers, General Confederation of Venezuelan Workers, Confederation of Autonomous Unions of Venezuela, and National Union of Workers.

The government continued to refuse to adjudicate or otherwise resolve the cases of 19,000 employees of the state oil company (PDVSA) who were fired during and after the 2002-03 strike. The Ministry of Labor continued to deny registration to the National Union of Oil, Gas, Petrochemical, and Refinery Workers.

The concept of striking, demonized since the 2002 national security law, was used periodically as a political tool to accuse government opponents of coup plotting or other destabilizing activities. Some companies, especially in the public sector, had multiple unions with varying degrees of allegiance to the ruling party’s version of the “socialist revolution,” which could trigger interunion conflict and strife. In August striking regional union leaders of Corpoelec (a state-owned electricity operator) complained national union leaders failed to negotiate in good faith on behalf of striking workers demanding wage increases. Corpoelec regional union leaders alleged national union leaders were progovernment “chavistas” and therefore beholden to the government for political reasons.

In June Maduro provisionally released former University of Carabobo professor Rolman Rojas, former president of the Carabobo College of Nurses Julio Garcia, former president of Fetracarabobo Omar Escalante, and former secretary general of the National Federation of Retirees and Pensioners Omar Vasquez Lagonel but required weekly reports to a judge as a condition of their release. SEBIN detained the group in August 2017 for their participation in the national labor strike against the ANC election.

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The Lessons of 1989: Freedom and Our Future