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China (includes Tibet, Hong Kong, and Macau)

Section 7. Worker Rights

a. Freedom of Association and the Right to Collective Bargaining

The law does not provide for freedom of association, and workers are not free to organize or join unions of their own choosing. Independent unions are illegal, and the right to strike is not protected in law. The law allows for collective wage bargaining for workers in all types of enterprises. The law further provides for industrial sector-wide or regional collective contracts, and enterprise-level collective contracts were generally compulsory throughout the country. Regulations require the government-controlled union to gather input from workers prior to consultation with management and to submit collective contracts to workers or their congress for approval. There is no legal obligation for employers to negotiate or to bargain in good faith, and some employers refused to do so.

The law provides legal protections against antiunion discrimination and specifies that union representatives may not be transferred or terminated by enterprise management during their term of office. The law provides for the reinstatement of workers dismissed for union activity as well as for other enterprise penalties for antiunion activities. The law does not protect workers who request or take part in collective negotiations with their employers independent of the officially recognized union. In several cases reported during the year, these workers faced reprisals including forced resignation, firing, and detention.

Only one union is recognized in law, the All China Federation of Trade Unions (ACFTU). All union activity must be approved by and organized under ACFTU, a CCP organ chaired by a member of the Politburo. The ACFTU and its provincial and local branches continued aggressively to establish new constituent unions and add new members, especially among migrant workers, in large, multinational enterprises. The law gives the ACFTU financial and administrative control over constituent unions empowered to represent employees in negotiating and signing collective contracts with enterprises and public institutions. The law does not mandate the ACFTU to represent the interests of workers in disputes.

The law provides for labor dispute resolution through a three-stage process: mediation between the parties, arbitration by officially designated arbitrators, and litigation. A key article of the law requires employers to consult with labor unions or employee representatives on matters that have a direct bearing on the immediate interests of their workers.

The law does not expressly prohibit work stoppages, and it is not illegal for workers to strike spontaneously. Authorities appeared most tolerant of strikes protesting unpaid or underpaid wages. Authorities rarely released statistics for labor disputes, but in November 2015 the official Xinhua News Agency reported a growing number of wage arrears cases totaling 11,007 in the first three quarters of 2015, an increase of 34 percent over the same period in 2014. Unofficial records from the Hong Kong-based labor rights NGO China Labor Bulletin (CLB) showed that at least 1,050 strikes and collective protests by workers occurred between December 2014 and February 2015, 90 percent relating to unpaid wages.

In some cases local authorities cracked down on such strikes, sometimes charging leaders with vague criminal offenses, such as “picking quarrels and provoking trouble,” “disturbing public order,” “damaging production operations,” or detaining them without any charges at all. The only legally specified role for the ACFTU in strikes is to participate in investigations and assist the Ministry of Human Resources and Social Security in resolving disputes. There were, however, reports of cases in which ACFTU officials joined police in suppressing strikes.

Despite the appearances of a strong labor movement and relatively high levels of union registration, genuine freedom of association and worker representation did not exist. ACFTU constituent unions were generally ineffective in representing and protecting the rights and interests of workers. Workers generally did not see the ACFTU as an advocate, especially migrant workers who had the least interaction with union officials.

There were no publicly available official statistics on inspection efforts to enforce labor laws, and enforcement was generally insufficient to deter wide-scale violations. Labor inspectors lacked authority and resources to compel employers to correct violations. While the law outlines general procedures for resolving disputes, including mediation, arbitration, and recourse to the courts, procedures were lengthy and subject to delays. Local authorities in some areas actively sought to limit efforts by independent civil society and legal practitioners to offer organized advocacy, and some areas maintained informal quotas on the number of cases allowed to proceed beyond mediation.

The ACFTU and the CCP used a variety of mechanisms to influence the selection of trade union representatives. Although the law states that trade union officers at each level should be elected, most factory-level officers were appointed by ACFTU-affiliated unions, often in coordination with employers. Official union leaders often were drawn from the ranks of management. Direct election by workers of union leaders continued to be rare, occurred only at the enterprise level, and was subject to supervision by higher levels of the union or the CCP. In enterprises where direct election of union officers took place, regional ACFTU officers and local CCP authorities retained control over the selection and approval of candidates. Even in these cases, workers and NGOs expressed concern about the credibility of elections.

Employers often circumvented legal provisions allowing for collective consultation over wages, hours, days off, and benefits through such tactics as forcing employees to sign blank contracts and failing to provide workers with copies of their contracts.

There continued to be reports of workers throughout the country engaging in wildcat strikes, work stoppages, and other protest actions. Although the government restricted the release of statistics on the number of strikes and protests each year, the frequency of “spontaneous” strikes remained high, especially in Guangdong and other areas with developed labor markets and large pools of sophisticated, rights-conscious workers.

Coordinated efforts by governments at the central, provincial, and local levels, including harassment, detention, and the imposition of travel restrictions on labor rights defenders and restrictions on funding sources for NGOs, disrupted labor rights advocacy. In December 2015 police in Guangdong arrested Zeng Feiyang, director of the Panyu Workers’ Center, for “gathering a crowd to disturb social order.” Police also detained on similar charges six other workers’ rights defenders: Zhu Xiaomei, Meng Han, and Tang Beiguo of the Panyu Dagongzu Service Center; Deng Xiaoming, a volunteer with the Haige Service Center; He Xiaobo of the Foshan Nanfeiyang Social Work Service Center; and Peng Jiayong of the Labor Mutual-aid Center. On September 26, a Guangdong court convicted Zeng Feiyang, Zhu Xiaomei, and Tang Beiguo of gathering a crowd to disturb social order and accepting funds from “foreign forces.” They were given suspended prison sentences of between one and one-half and three years. On November 3, Meng Han was convicted and given a 21-month prison sentence. A local labor NGO said the court was sending a clear signal that the only way to resolve labor disputes was through government entities.

China (includes Tibet, Hong Kong, and Macau) – Hong Kong

Section 7. Worker Rights

a. Freedom of Association and the Right to Collective Bargaining

The law provides for the right of workers to form and join independent unions without previous authorization or excessive requirements and to conduct legal strikes, but it does not protect the right to collective bargaining or obligate employers to bargain. Trade unions claimed the law allows employers simply to refuse to bargain. The law explicitly prohibits civil servants from bargaining collectively; the International Labor Organization (ILO) advised this restriction was too broad and not in line with international standards.

Trade unions must register with the government’s Registry of Trade Unions and must have a minimum membership of seven persons for registration. Workers were not prevented from unionizing, but only Hong Kong residents could join unions or serve as union officers. The law allows the use of union funds for political purposes, provided a union has the authorization of the majority of its voting members at a general meeting.

The law provides for the right to strike, although there are some restrictions on this right for civil servants. The Commissioner of police has broad authority to control and direct public gatherings in the interest of national security or public safety. According to the Employment Ordinance, an employer cannot fire, penalize, or discriminate against an employee who exercises his or her union rights and cannot prevent or deter the employee from exercising such rights. Under the Employment Ordinance, an employee unreasonably and unlawfully dismissed (including on the grounds of the employee exercising trade union rights) is entitled to reinstatement or reengagement, subject to mutual consent of the employer and the employee, or compensation up to a maximum of HK$150,000 ($19,300) for unreasonable and unlawful dismissal.

Penalties for violations of laws providing for freedom of association and collective bargaining laws included fines payable to the government as well as legal damages paid to workers and were sufficient to deter violations. Under the Employment Ordinance, employers who violated antiunion laws were liable to a fine of HK$100,000 ($13,000). Administrative and judicial procedures were not subject to lengthy delays.

The government effectively enforced the law. The Workplace Consultation Promotion Division in the Labor Department facilitated communication, consultation, and voluntary negotiation between employers and employees. Tripartite committees for each of the nine sectors of the economy included representatives from some trade unions, employers, and the Labor Department. During a labor dispute, the Labor Relations Division of the Labor Department facilitates conciliation so that the dispute can be settled with minimum friction and disruption.

Worker organizations were independent of the government and political parties. Prodemocracy labor activists alleged, however, that only progovernment unions were able to participate substantively in the tripartite process, while the prodemocracy Hong Kong Confederation of Trade Unions was consistently excluded. Trade Unions are prohibited from using funds for “political purposes.”

Although there is no legislative prohibition against strikes and the right and freedom to strike are enshrined in the Basic Law, most workers had to sign employment contracts that typically stated walking off the job was a breach of contract and could lead to summary dismissal, though there were no incidents in 2016 that tested this legal contradiction. Various sections of the Employment Ordinance prohibit firing an employee for striking and void any section of an employment contract that would punish a worker for striking. As in past years, approximately 5,000 participated in the annual May 1 Labor Day march calling for standard working hours and a universal pension program. According to the government, there were no reports that employers fired workers for participating in a strike last year. The government reported that as of September last year, two strikes involving 106 workers had occurred. Activists claimed more strikes took place but that the government did not want to tarnish the SAR’s business-friendly image by acknowledging them.

China (includes Tibet, Hong Kong, and Macau) – Macau

Section 7. Worker Rights

a. Freedom of Association and the Right to Collective Bargaining

The law provides workers the right to form and join unions or “labor associations” of their choice. The law does not provide that workers can collectively bargain, and, while workers have the right to strike, there is no specific protection in the law from retribution if workers exercise this right. The law prohibits antiunion discrimination, stating employees or job seekers shall not be prejudiced, deprived of any rights, or exempted from any duties based on their membership in an association. The law does not require reinstatement of workers dismissed for union activity.

Workers in certain professions, such as the security forces, are forbidden to form unions, take part in protests, or to strike. Such groups had organizations that provided welfare and other services to members and could speak to the government on behalf of members. Vulnerable groups of workers, including domestic workers and migrant workers, could freely associate and form and join unions, as could public servants.

In order to register as an official union, the government requires an organization to provide the names and personal information of its leadership structure. There is no law specifically defining the status and function of labor unions, nor are employers compelled to negotiate with them. The law provides that agreements between employers and workers shall be valid, but there is no specific statutory provision giving workers, resident or foreign, the right to collective bargaining. The government asserted striking employees are protected from retaliation by provisions of the law requiring an employer to have justified cause to dismiss an employee.

The government generally enforced the relevant legislation. The law imposes penalties ranging from MOP 20,000 to 50,000 ($2,500 to $6,300) for antiunion discrimination. Observers noted this may not be sufficient to deter discriminatory activity.

Workers who believed they were dismissed unlawfully could bring a case to court or lodge a complaint with the LAB or the CAC, which also has an Ombudsman Bureau to handle complaints over administrative violations. The bureau makes recommendations to the relevant government departments after its investigation.

Even in the absence of formal collective bargaining rights, companies often negotiated with unions, although the government regularly acted as an intermediary. There were no indications that disputes or appeals were subjected to lengthy delays. Pro-PRC unions traditionally have not attempted to engage in collective bargaining. The Macau Federation of Trade Unions acts as an adviser and assistant to those filing complaints to the LAB, which is responsible for adjudicating labor disputes.

China (includes Tibet, Hong Kong, and Macau) – Tibet

India

Section 7. Worker Rights

a. Freedom of Association and the Right to Collective Bargaining

The law provides for the right to form and join unions and 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’ designations as “public utilities.” 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 violations because the Trade Union Act does not specify penalties for such violations. 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 large, informal economy. Most union members worked in the formal sector, and trade unions represented a small number of agricultural and informal-sector workers. An estimated 80 percent of unionized workers 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. According to the Ministry of Labor and Employment, there were 121 strikes and lockouts in 2014. State and local authorities occasionally used their power to declare strikes illegal and force adjudication. 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.

On March 22, police detained the president of the Maruti Suzuki Workers Union in Gurgaon, Haryana, for leading a February 19 protest following an attack on a Honda Motorcycle and Scooters India employee by his supervisor, allegedly for refusing to work overtime. The union president was released from police custody in April.

On September 2, Haryana police detained 12 workers of Maruti Suzuki for distributing leaflets that urged workers to join the September 5 national strike. Labor groups reported that some employers continued to refuse to recognize established unions, and they established “workers’ committees” and employer-controlled unions to prevent independent unions from being established. EPZs often employed workers on temporary contracts. Additionally, employee-only restrictions on entry to the EPZs limited union organizers’ access.

On June 2, Karnataka police arrested Karnataka Police Association president Shashidhar Venugopal and Working Police Families Welfare Committee member Basavaraj Koravankar. The men were organizing a law enforcement strike to protest low wages and poor working conditions. The men were charged with sedition as well as various sections of Essential Services Maintenance Act (ESMA) and Police Acts. The arrested were yet to be released on bail at the time of reporting.

On September 2, more than 100 million workers across the country participated in a one-day strike in support of 12 demands that included increasing the minimum wage and a rollback of the federal government’s decision to privatize the defense and railroad sectors.

Indonesia

Section 7. Worker Rights

a. Freedom of Association and the Right to Collective Bargaining

The law, with a number of restrictions, provides for the rights of workers to join independent unions, conduct legal strikes, and bargain collectively. The law prohibits antiunion discrimination.

Workers in the private sector have broad rights of association, but the law places restrictions on organizing among public sector workers. Although the law recognizes civil servants’ freedom of association and right to organize, they may only form employee associations with limitations on certain rights, such as the right to strike. Employees of state-owned enterprises (SOEs) are permitted to form unions, but their right to strike is limited in practice by the fact that most SOEs are treated as essential national interest sites (see below). The law stipulates that 10 or more workers have the right to form a union, with membership open to all workers, regardless of political affiliation, religion, ethnicity, or gender. The Ministry of Labor records, rather than approves, the formation of a union, federation, or confederation and provides it with a registration number. To remain registered, unions must keep the government informed about changes in their governing bodies.

The law allows the government to petition the courts to dissolve a union if it conflicts with the constitution or the national ideology of “Pancasila,” which encompasses the principles of belief in one God, justice, unity, democracy, and social justice. A union also may be dissolved if its leaders or members, in the name of the union, commit crimes against the security of the state and are sentenced to at least five years in prison. Once a union is dissolved, its leaders and members may not form another union for at least three years. The International Labor Organization (ILO) noted its concern that the sanction of dissolving a union was disproportionate.

The law allows workers’ organizations that register with the government to conclude legally binding collective labor agreements (CLAs) with employers and to exercise other trade union functions. The law includes some restrictions on collective bargaining, including a requirement that a union or unions represent more than 50 percent of the company workforce to negotiate a CLA. Workers and employers are given 30 days to conclude a CLA before negotiations move to binding arbitration. CLAs have a two-year lifespan that can be extended by one year before lapsing. Unions noted that the law allows employers to delay the negotiation of CLAs with few legal repercussions.

The right to strike is restricted under the law. By law workers must give written notification to the authorities and to the employer seven days in advance for a strike to be legal. The notification must specify the start and end time of the strike, venue for the action, and reasons for the strike, and it must include signatures of the chairperson and secretary of the striking union. Before striking, workers must engage in lengthy mediation with the employer and then proceed to a government mediator or risk having the strike declared illegal. In the case of an illegal strike, an employer may make two written requests within a period of seven days for workers to return. Workers who do not return to work after these requests are considered to have resigned.

Most civil servants and workers in SOEs are prohibited from striking. The ILO recommended that this restriction be lifted. All strikes at “enterprises that cater to the interests of the general public or at enterprises whose activities would endanger the safety of human life if discontinued” are deemed illegal. Regulations do not specify the types of enterprises affected, leaving this determination to the government’s discretion. The same regulation also classifies strikes as illegal if they are “not as a result of failed negotiations.” Unions alleged that in recent years, the government expanded the number of sites deemed to be of national interest and used this designation to justify the use of security forces to impose restrictions on strike activity.

Penalties for criminal violations of the law are a prison sentence of at least one year and fines of IDR 100 million to 500 million ($7,450 to $37,260), and they were generally sufficient to deter violations. Local offices of the Labor Ministry were responsible for enforcement, which is particularly difficult in export promotion zones. Enforcement of CLAs varied based on the capacity and interest of individual regional governments.

The government did not always effectively enforce laws protecting freedom of association or prevent antiunion discrimination. Antiunion discrimination cases moved excessively slowly through the court system. Bribery and judicial corruption in workers’ disputes continued, and unions claimed that courts rarely decided cases in the workers’ favor even in cases in which the Ministry of Labor recommends in favor of the workers. While dismissed workers sometimes received severance pay or other compensation, they were rarely reinstated. Some provisions in penal code were used to prosecute trade unionists for striking, such as the crime of “instigating a punishable act” or committing “unpleasant acts,” which potentially criminalizes a broad range of conduct. The ILO requested that the government repeal or amend these provisions, which they noted could be used as a pretext for arbitrary arrest of union members and leaders.

Workers in the private sector formed and joined unions of their choice without previous authorization or excessive requirements. Unions in various sectors were able to associate with one of the three major labor confederations–KSPSI (Confederation of All Indonesian Trade Unions), KSPI (Confederation of Indonesian Trade Unions, and KSBSI (Confederation of Indonesia Prosperity Trade Unions). Nevertheless, several common practices undermined freedom of association. Unions alleged that employers commonly reassigned labor leaders deemed to be problematic. Antiunion intimidation most often took the form of termination, transfer, or unjustified criminal charges. Companies often sued union leaders for losses suffered in strikes. Labor activists continued to claim that companies orchestrated the formation of multiple unions, including “yellow” (employer-controlled) unions, to weaken legitimate unions.

Employer retribution against union organizers, including dismissals, transfers, and violence, occurred. Employers commonly used intimidation tactics against strikers, including administrative dismissal of employees. There were credible reports of police investigating or interrogating union organizers. Some employers threatened employees who made contact with union organizers. Management singled out strike leaders for layoffs or transfers.

Many strikes tended to be unsanctioned or “wildcat” strikes that broke out after a failure to settle long-term grievances or when an employer refused to recognize a union. Employers also used the cumbersome process required for a legal strike to obstruct union’s right to legally strike. Unions noted that employers’ delay in negotiating CLAs contributed to strike activity or legal measures taken against union members in the event of a failed CLA negotiation. The ILO cited the lack of a strong collective bargaining culture as a contributing factor to many labor disputes.

In some cases companies declared bankruptcy to avoid severance payments required by law, closed the factory for several days, and then rehired workers as contract labor at a lower cost. Union leaders and activists usually were not rehired.

The increasing trend of using contract labor directly affected unions’ right to organize and bargain collectively. Under the law impermanent labor is to be used only for work that is “temporary in nature,” while a business may “outsource” (hand over part of its work to another enterprise) only when such work is an auxiliary activity of the business. Government regulations limit employers’ ability to outsource jobs to five categories of workers (cleaning services, security, transportation, catering, and work relating to support mining). Nevertheless, many employers violated these provisions, sometimes with the assistance of local offices of the Ministry of Labor. For example, unions reported that hotel owners often attempted to make use of the cleaning services exemption to justify terminating unionized hotel staff employed in housekeeping and outsourcing of housekeeping services.

Malaysia

Section 7. Worker Rights

a. Freedom of Association and the Right to Collective Bargaining

The law provides for limited freedom of association and for some categories of workers to form and join trade unions, subject to a variety of legal and practical restrictions. The law provides for the right to strike and to bargain collectively, but both were severely restricted. The law prohibits employers from interfering with union activities, including union formation. It prohibits employers from seeking retribution for legal union activities and requires reinstatement of workers fired for union activity.

The law prohibits defense and police officials, retired or dismissed workers, or workers categorized as “confidential, managerial, and executive” from joining a union. The law also restricts the formation of unions to workers in “similar” trades, occupations, or industries. Foreign workers may join a trade union but cannot hold union office, unless they obtain permission from the Ministry of Human Resources. In view of the absence of a direct employment relationship with owners of a workplace, contract workers may not form a union and cannot negotiate or benefit from collective bargaining agreements.

The director general of trade unions and the minister of human resources may refuse to register or withdraw registration from some unions without judicial oversight. Authorities consider a trade union an unlawful association if the union’s registration was refused, withdrawn, or canceled. Trade unions may affiliate with international trade union organizations, subject to the approval of the director general of trade unions.

Most private-sector workers have the right to bargain collectively, although these negotiations cannot include issues of transfer, promotion, appointments, dismissal, and reinstatement. The law restricts collective bargaining in “pioneer” industries the government has identified as growth priorities, including various high tech fields. Public-sector workers have some collective bargaining rights, although some could only express opinions on wages and working conditions instead of actively negotiating. If a union initiates collective bargaining, employers are not mandated to accept the invitation. If negotiations stall or an employer refuses to negotiate, the union may appeal to the director general of trade unions to conciliate. If the parties are still unable to agree, the Ministry of Human Resources may refer the dispute to the Industrial Court for binding arbitration.

Private-sector strikes are legal, although they were severely restricted. The law provides for penal sanctions for peaceful strikes. Union officials claimed legal requirements for strikes were almost impossible to meet. The law prohibits general strikes, and trade unions may not strike over disputes related to trade union registration or illegal dismissals. Workers may not strike in a broad range of industries deemed “essential,” nor may they hold strikes when a dispute is before the Industrial Court.

The government did not effectively enforce laws prohibiting employers from seeking retribution for legal union activities and requiring reinstatement of workers fired for trade union activity. Penalties for violations include a fine of up to 10,000 RM ($2,250) but were seldom assessed and generally not sufficient to deter violations. There continued to be long delays in the treatment of union claims to obtain recognition for collective bargaining purposes. In March, however, a court found an electronics company guilty of union busting for the company’s 2010 and 2011 conduct retaliating against an employee advocating the establishment of a regional union for the electronic industry. In September the court ordered the company to recognize the union, but it did not issue a penalty.

Freedom of association and collective bargaining were not fully respected. While the Ministry of Labor prohibits national-level unions, it allows three regional territorial federations of unions (Peninsular Malaysia, Sabah, and Sarawak) to operate. They exercised many of the responsibilities of national-level labor unions, although they could not bargain on behalf of local unions. The Malaysian Trade Unions Congress (MTUC) is a registered “society” of trade unions in both the private and government sectors that does not have the right to bargain collectively or strike but may provide technical support to affiliated members. Some workers’ organizations were independent of government, political parties, and employers, but employer-dominated or “yellow” unions were reportedly a concern.

The inability of unions to provide more than limited protection for workers, particularly foreign workers who continued to face threat of deportation, and the prevalence of antiunion discrimination created a disincentive to unionize. In some instances companies reportedly harassed leaders of unions that sought recognition. Some trade unions reported the government detained or restricted the movement of some union members under laws allowing temporary detention without charging the detainee with a crime. Trade unions asserted some workers had wages withheld or were terminated because of union-related activity. A terminated worker legally ceases to be a member of his or her trade union. Labor activists noted that the loss of membership upon termination comes when trade union support and assistance is most necessary.

The time needed for a union to be recognized remained unpredictable and long. Union officials expressed frustration about delays in the settlement of union recognition disputes; such applications were often refused. If a union’s recognition request was approved, the employer sometimes challenged the decision in court, leading to multi-year delays in recognizing unions.

Mexico

Section 7. Worker Rights

a. Freedom of Association and the Right to Collective Bargaining

The law provides for the right of workers to form and join unions, to bargain collectively, and to strike in both the public and private sectors; however, conflicting law, regulations, and practice restricted these rights.

The law requires a minimum of 20 workers to form a union. To receive official recognition from the government, unions must file for registration with the appropriate conciliation and arbitration board (CAB) or the Ministry of Labor and Social Welfare (STPS). For the union to be able to perform its legally determined functions, its leadership must also register with the appropriate CAB or STPS. CABs operated under a tripartite system with government, worker, and employer representatives. Outside observers raised concerns that the boards did not adequately provide for inclusive worker representation and often perpetuated a bias against independent unions, in part due to intrinsic conflicts of interest within the structure of the boards exacerbated by the prevalence of representatives from “protection” (unrepresentative, corporatist) unions.

By law a union may call for a strike or bargain collectively in accordance with its own bylaws. Before a strike may be considered legal, however, a union must file a “notice to strike” with the appropriate CAB, which may find that the strike is “nonexistent,” or in other words, cannot proceed legally. The law prohibits employers from intervening in union affairs or interfering with union activities, including through implicit or explicit reprisals against workers. The law allows for reinstatement of workers if the CAB finds the employer fired the worker unfairly and the worker requests reinstatement; however, the law also provides for broad exemptions for employers from such reinstatement, including employees of confidence or workers who have been in the job for less than a year.

Although the law authorizes the coexistence of several unions in one worksite, it limits collective bargaining to the union that has “ownership” of a collective bargaining agreement. When there is only one union present, it automatically has the exclusive right to bargain with the employer. Once a collective bargaining agreement is in place at a company, another union seeking to bargain with the employer must compete for bargaining rights through a “recuento” (bargaining-rights election) administered by the CAB. The union with the largest number of votes goes on to “win” the collective bargaining rights. It is not mandatory for a union to consult with workers or have worker support to sign a collective bargaining agreement with an employer. The law establishes that internal union leadership votes may be held via secret ballot, either directly or indirectly.

The government, including the CABs, did not consistently protect worker rights. The government’s common failure to enforce labor and other laws left workers with little recourse regarding violations of freedom of association, poor working conditions, and other labor problems. The CABs’ frequent failure to impartially and transparently administer and oversee procedures related to union activity, such as union elections and strikes, undermined worker efforts to exercise freely their rights to freedom of association and collective bargaining. A report released in April 2015–commissioned by the President’s Office and produced by the CIDE economic research center–found no guarantees of impartial and efficient labor justice from the boards and recommended the eventual incorporation of the CABs into the judicial branch.

In November the Congress passed constitutional reforms introduced in by President Pena Nieto that would dissolve the CABs and transfer their various functions to different entities. Judicial functions would transfer to the federal and state judiciaries, administrative functions would transfer to a new federal administrative entity, and conciliation functions would transfer to new conciliation entities. In addition to structural changes, the proposed labor reforms would require verification of worker support for a collective bargaining agreement prior to its registration, and they would establish concrete timeframes for all steps in the process for challenging a union’s exclusive bargaining rights. Thirteen state legislatures approved the legislation prior to the end of the year.

By law penalties for violations of freedom of association and collective bargaining laws range from 16,160 pesos ($960) to 161,600 pesos ($9,640). Such penalties were rarely enforced and were insufficient to deter violations. Administrative and/or judicial procedures were subject to lengthy delays and appeals.

To reduce backlogs and average time to issue labor rulings from 200 to 150 days, some states began implementing oral trials at their local CABs. There are 19 CABs located in the states of Mexico, Hidalgo, and Baja California. In the state of Mexico, from 2011 to 2015, the new process reduced the number of pending actions from 35,000 to 27,000.

Workers exercised their rights to freedom of association and collective bargaining with difficulty. The process for registration of unions has been politicized, and according to union organizers, the government, including the CABs, frequently used the process to reward political allies or punish political opponents. For example, it rejects registration applications for new locals of independent unions and for new unions on technicalities.

Companies and protection unions used complex divisions and a lack of coordination between federal and state jurisdictions to manipulate the labor conciliation and arbitration processes. For example, a company might register a collective bargaining agreement at both the federal and the local level, and later alternate the jurisdictions when individuals filed and appealed complaints to gain favorable outcomes. Additionally, union organizers from several sectors raised concerns regarding the overt and usually hostile involvement of the CABs when organizers attempted to create independent unions.

Protection (unrepresentative, corporatist) unions and “protection contracts,” collective bargaining agreements signed by employers and these unions to prevent meaningful negotiations and ensure labor peace, continued to be a problem in all sectors. These contracts were facilitated by exclusivity in bargaining and lack of a requirement for workers to demonstrate support for a collective bargaining agreement or the union that negotiated it before the agreement could take effect. Protection contracts often were developed before the company hired any workers and without direct input from or knowledge of the covered workers. For example, in August 2015 a leader of the Workers Confederation of Mexico (CTM)–a known protection union–claimed that he was negotiating a collective bargaining agreement to cover workers at a tire factory in San Luis Potosi that was not set to begin production until 2017. As of July, of 31 automotive industry plants, 27 had protection contracts with the CTM.

Independent unions, a few multinational corporations, and some labor lawyers and academics called on the government to institute legal reforms that would prohibit registration of collective bargaining agreements where the union cannot demonstrate support by a majority of workers or where workers had not ratified the content of the agreements. Many observers noted working conditions of a majority of workers were under the control of these contracts and the unrepresentative unions that negotiated them, and that the protection unions and contracts often prevented workers from fully exercising their labor rights as defined by law. These same groups advocated for workers to receive hard copies of existing collective bargaining agreements when they are hired.

According to several NGOs and unions, many workers faced procedural obstacles and various forms of intimidation (including physical violence) from protection union leaders, or employers supporting a protection union, in the lead-up to, during, and after bargaining-rights elections from other workers, union leaders, violent individuals hired by a company, or employers favoring a particular union. Some employers attempted to influence bargaining-rights elections through the illegal hiring of pseudo employees immediately prior to the election to vote for the company-controlled union.

Other intimidating and manipulative practices continued to be common, including dismissal of workers for labor activism. In November 2015 hundreds of employees at a transnational factory in Ciudad Juarez, Chihuahua, began protesting low wages, the arbitrary firings of 120 workers, and unacceptable working conditions. Civil society groups reported that management failed to provide either the promised day wage increase or the legally required Christmas bonus at the end of 2015. When workers attempted to organize to rectify these conditions, employers met them with mass firings, threats, and intimidation. Other complaints included sexual harassment and unsafe working conditions that exposed factory workers to hazardous chemicals without appropriate protective gear.

On August 22, one of the largest teacher unions (CNTE) began the school year by launching teacher strikes and setting up roadblocks to protest proposed education reforms. The government and CNTE engaged in numerous rounds of negotiations regarding the dispute following deadly clashes in June between teacher union-led protesters and federal police forces in Oaxaca that left eight civilians dead. CNTE members staged strikes in Oaxaca and Chiapas states, where 53 percent and 58 percent, respectively, of campuses did not open for the first day of school. CNTE was less successful in Guerrero and Michoacan states, where nearly all schools held classes. The CNTE blocked major roads and railways in Oaxaca and Chiapas to protest federal education reforms. On August 25, the Ministry of Education announced it would fire 1,255 teachers and school employees in Oaxaca and Guerrero who participated in the strikes and missed days of classes. As of September 6, authorities were processing 1,905 teachers for dismissal, including 1,600 from Oaxaca and the remainder from Chiapas and Michoacan.

Independent labor activists reported the requirement that the CABs approve strikes in advance gave the boards the power to show favoritism by determining which companies to protect from strikes. Few formal strikes occurred, but protests and informal work freezes were common. For instance, workers in “maquilas” (factories run by foreign-owned companies that manufacture goods for export) in Ciudad Juarez protested in January to gain support for the creation of an independent union.

Philippines

Section 7. Worker Rights

a. Freedom of Association and the Right to Collective Bargaining

The law provides for the rights of workers, with the exception of the military, police, short-term contract employees, and some non-national workers, to form and join independent unions, bargain collectively, and conduct strikes; it prohibits antiunion discrimination. The law, however, places several restrictions on these rights.

Laws and regulations provide for the right to organize and bargain collectively in both the private sector and corporations owned or controlled by the government. The law prohibits organizing by foreign national or migrant workers unless a reciprocity agreement exists with the workers’ countries of origin specifying that migrant workers from the Philippines are permitted to organize unions there. The law also requires the participation of 20 percent of the employees in the bargaining unit where the union seeks to operate; the International Labor Organization (ILO) called this requirement excessive and urged the government lower minimum membership. The scope of collective bargaining in the public sector is limited to a list of terms and conditions of employment negotiable between management and public employees. Items requiring appropriation of funds, including health-care and retirement benefits, and those that involved the exercise of management prerogatives, including appointment, promotion, compensation, and disciplinary action, are nonnegotiable.

Strikes in the private sector are legal. Unions are required to provide strike notice, respect mandatory cooling-off periods, and obtain approval from a majority of members before calling a strike. The law subjects all issues affecting labor and employment to mandatory conciliation-mediation for one month. Parties to a dispute must attempt mediation before giving notice to strike; if that fails, the union may issue a strike notice. Parties may bring any dispute to mediation; but strikes or lockouts must be related to acts of unfair labor practice, a gross violation of collective bargaining laws, or a collective bargaining deadlock. The law provides for a maximum prison sentence of three years for participation in an illegal strike, a requirement that the ILO urged the government to amend.

The law permits employers to dismiss union officers who knowingly participate in an illegal strike. Union officers convicted of striking illegally are subject to imprisonment for up to three years, although there has never been such a conviction. The law prohibits government workers from joining strikes under the threat of automatic dismissal. Government workers may file complaints with the Civil Service Commission, which handles administrative cases and arbitrates disputes. Government workers may also assemble and express their grievances on the work premises during nonworking hours.

The secretary of the Department of Labor and Employment and in certain cases the president, may intervene in labor disputes by assuming jurisdiction and mandating a settlement if either official determines that the strike-affected company is vital to the national interest. Vital sectors include hospitals, the electric power industry, water supply services (excluding small bottle suppliers), air traffic control, and other activities or industries as recommended by the National Tripartite Industrial Peace Council (NTIPC). Labor rights advocates continued to criticize the government for maintaining definitions of vital services that were broader than international standards.

By law antiunion discrimination, especially in hiring, is an unfair labor practice and may carry criminal or civil penalties (although civil penalties were favored over criminal penalties in practice).

The government generally respected freedom of association and collective bargaining, and enforced laws that provided for protection of these rights. DOLE has general authority to enforce laws on freedom of association and collective bargaining. The National Labor Relations Commission’s (NLRC) labor arbiter may also issue orders or writs of execution for reinstatement that go into effect immediately, requiring employers to reinstate the worker and report compliance to the NLRC. Allegations of intimidation and discrimination in connection with union activities are grounds for review by the quasi-judicial NLRC, as they may constitute possible unfair labor practices. If there is a definite preliminary finding that a termination may cause a serious labor dispute or mass layoff, the DOLE secretary may suspend the termination and restore the status quo pending resolution of the case.

Penalties under the law for violations of freedom of association or collective bargaining laws are imprisonment of not less than three months or more than three years with a fine of not less than 1,000 PHP ($21) or more than 10,000 PHP ($213). Such penalties were generally not sufficient to deter violations.

Administrative and judicial procedures were subject to lengthy delays and appeals. Before disputes reach the NLRC, provides mediation services through a board, which settles most unfair labor practice disputes. Through the National Conciliation and Mediation Board, DOLE also works to improve the functioning of labor-management councils in companies with unions.

The NTIPC serves as the main consultative and advisory mechanism concerning labor and employment. It functions primarily as a forum for tripartite advice and consultation among organized labor, employers, and government in the formulation and implementation of labor and employment policies. It also acts as the central entity to monitor recommendations and ratifications of ILO conventions. DOLE, through the NTIPC, is responsible for coordinating the investigation, prosecution, and resolution of cases pending before the ILO concerning allegations of violence and harassment directed at labor leaders and trade union activists.

Workers faced several challenges in exercising their rights to freedom of association and collective bargaining. Unions continued to claim that local political leaders and officials who governed the Special Economic Zones (SEZs) explicitly attempted to frustrate union organizing efforts further by maintaining union-free or strike-free policies. Unions also claimed that the government stationed security forces near industrial areas or SEZs to intimidate workers attempting to organize and alleged that companies in SEZs used frivolous lawsuits to harass union leaders. Local SEZ directors claimed exclusive authority to conduct their own inspections as part of the zones’ privileges intended by the legislature. Employers controlled hiring through special SEZ labor centers. For these reasons, and in part due to organizers’ restricted access to the closely guarded zones and the propensity among zone establishments to adopt fixed-term, casual, temporary, or seasonal employment contracts, unions had little success organizing in the SEZs.

Killings and harassment of labor leaders and advocates have occurred in the past, but there were no reports of labor-related violence during the year. The government noted that the March 2015 killing of Florencio Romano, the provincial coordinator of the National Coalition of the Protection of the Workers’ Rights in the Southern Tagalog region, was referred to the Regional Tripartite Monitoring Body, the National Policy Task Force, as well as the Inter-Agency Committee on Extra-Legal Killings, Enforced Disappearances, Torture and Other Grave Violations of the Right to Life, Liberty and Security of Persons. As of December, there were no further updates in the case.

Some employers reportedly chose to employ workers who could not legally organize, such as short-term contract and foreign national workers, to minimize unionization and avoid other rights accorded to “regular” workers. The NGO Center for Trade Union and Human Rights contended that this practice led to a decline in the number of unions and workers covered by collective bargaining agreements. Employers also often abused contractual labor provisions by rehiring employees shortly after the expiration of the previous contract. DOLE reported that there were multiple cases of workers alleging employers refused to bargain.

Republic of Korea

Section 7. Worker Rights

a. Freedom of Association and the Right to Collective Bargaining

The law provides for the right of workers to form and join independent unions, conduct legal strikes, and bargain collectively, but certain limitations apply to public officials and teachers. By law public officials may not perform a “collective act for any labor campaign.” There is an exception for those who have a union-related job. A 2015 Supreme Court decision affirmed the right of all migrant workers, including undocumented workers, to form or join a union.

The law places some restrictions on unions’ ability to organize their administration, including restricting the ability of union leaders to receive pay for time spent on union work. Laws banning education workers from engaging in certain political activities, such as joining a political party or openly endorsing a political party or candidate, also constrained unions’ abilities to advocate for their positions. The law also prohibits dismissed workers from being union members.

The law limits the right to strike, in particular for workers in “essential services.” Essential services are defined broadly and include services such as railroads, air transport, communications, water supply and other utilities, and hospitals. By law unions in essential service industries may be required to maintain 50 percent service. Individuals designated as essential by management, with input from labor unions, may not strike. The law also prohibits strikes by national and local government officials, with some exceptions for specified public servants.

By law unions must submit a request for mediation to the National Labor Relations Commission (NLRC) before a strike; otherwise, the strike is illegal. In most cases, mediation must be completed within 10 days. Strikes initiated following this period are legal if they obtain majority support from union membership. The law prohibits strikes when a dispute is referred to binding arbitration.

The law adopts a narrow interpretation of “labor dispute,” which makes strikes on many issues falling under managerial control, such as downsizing and layoffs, illegal. Strikes not specifically pertaining to labor conditions, wages, benefits, or working hours are also considered illegal. Stakeholders noted that in practice strike procedures were overly burdensome.

The law permits workers to file complaints of unfair labor practices against employers who interfere with union organizing or who discriminate against union members. The NLRC may require employers to reinstate workers fired for union activities. The law prohibits retribution against workers who conduct a legal strike. Labor organizations noted the inability of full-time labor union officials to receive wages and onerous registration requirements for individuals involved in bargaining effectively limited legal protections against unfair labor practices.

The government generally enforced legislation related to freedom of association and collective bargaining. Employers who violate a regulation on unfair labor practices may be imprisoned for a maximum of two years or fined up to 20 million won ($17,230). In addition, an employer can be punished for disregarding a NLRC order to reinstate a worker. The law sets penalties against employers who refuse or neglect to accept unions’ legitimate requests for bargaining (maximum of two years’ imprisonment or a penalty of up to 20 million won ($17,230) or conduct lockouts (maximum of one year in prison or a penalty of up to 10 million won ($8,610)). The law also penalizes illegal strike activities with imprisonment for up to five years or a fine of up to 50 million won ($43,070), depending on the offense.

Many labor organizations generally operated without government interference; however, stakeholders noted the government used overly broad criminal legal provisions, including the “obstruction of business” provisions, to justify criminal prosecutions and other extreme measures against union leaders to suppress strikes. In his June report, the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association highlighted a number of concerns regarding interference with independence and operations of unions, including by employers.

Following a November 2015 “People’s Rally” (see section 1.d.) organized by the Korean Confederation of Trade Unions, union president Han Sang-gyun was sentenced in July to five years in prison and a 500,000 won ($430) fine on six mostly obstruction-related charges. The court also held Han personally responsible for injuries to 76 Korean National Police personnel, obstruction of public duty of 32 police personnel, and damage to 43 police buses and 138 pieces of equipment, including torn police uniforms and vests. Han was one of six labor unionists still in police custody as of October in the aftermath of the rally, which gathered more than 64,000 protesters.

NGOs and labor experts noted a one-year sentence had been the norm in recent years for leading labor protests, and progressive local media noted Han’s punishment was “the stiffest sentence for a rally organizer since the country’s democratization in 1987.” The UN Special Rapporteur on the rights to freedom of peaceful assembly and of association expressed his concern about “a trend of gradual regression on the rights to freedom of peaceful assembly and of association,” during his January visit.

In his June report, the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association noted examples of antiunion practices by companies, including: encouraging the formation of management-supported unions; undermining employee unions through various means including surveillance, threats, and undue pressure on members; disguised subcontracting to avoid selected employer responsibilities and dismissal of members; firing union leaders and workers following strike action; and assigning union leaders demeaning jobs to demoralize them. He noted employers allegedly used labor relations consultancy firms to obtain advice that facilitates the erosion of trade union rights. The International Trade Union Confederation noted similar concerns during the year, including employers imposing the choice of union on construction workers and discrimination against unionized workers at a car factory.

As of September, the Migrants’ Trade Union (MTU) had approximately 1,200 members. In its first year as a recognized union, the MTU conducted organizing campaigns and training for workers. It also mobilized members to advocate for a minimum wage increase and better working conditions. Nonetheless, undocumented foreign workers still face difficulties participating in union activities due to fear of exposing themselves to arrest and deportation.

Singapore

Section 7. Worker Rights

a. Freedom of Association and the Right to Collective Bargaining

The law provides for the right of most workers to form and join trade unions. Workers have the legal right to strike and to bargain collectively. There is no law prohibiting antiunion discrimination, and no specific laws prohibit retaliation against strikers.

By law Parliament may impose restrictions on the right of association based on security, public order, or morality grounds. The Ministry of Manpower also has broad powers to refuse to register a union or to cancel a union’s registration. The Societies Act and labor and education laws and regulations restrict the right of association by requiring any group of 10 or more persons to register with the government. The Trade Unions Act restricts the right of uniformed personnel and government employees to organize, although the president may grant exemptions. The Amalgamated Union of Public Employees and 15 other public-sector unions received exemptions and may represent all public-sector employees except the most senior civil servants. Foreigners and those with criminal convictions generally may not hold union office or become employees of unions, but the ministry may grant exemptions.

The law requires more than 50 percent of affected unionized workers to vote in favor of a strike by secret ballot, as opposed to 51 percent of those participating in the vote. Workers in “essential services” are required to give 14 days’ notice to an employer before striking, and there is a prohibition on strikes by workers in the water, gas, and electricity sectors.

Most labor disagreements were resolved through conciliation by the Ministry of Manpower. If conciliation failed, the disputing parties usually submitted their case to the tripartite Industrial Arbitration Court, composed of employee and management representatives and chaired by a judge. The court is available only to employees who are members of a trade union and where the dispute relates to the terms of the employment contract or collective agreements. In some situations the law provides for compulsory arbitration. The court must certify collective agreements before they go into effect. The court may refuse certification at its discretion on the ground of public interest.

Unions were not able to carry out their work without interference from the government or political parties. The Trade Unions Act limits the objectives for which unions can spend their funds, prohibits payments to political parties or the use of funds for political purposes, and restricts the right of trade unions to elect their officers and choose whom they may employ.

Almost all unions were affiliated with the National Trade Union Congress (NTUC), an umbrella organization with a close relationship with the government and the ruling PAP. The NTUC secretary-general was also a cabinet minister. Additionally, four PAP MPs were assistant secretaries-general of the NTUC. NTUC policy prohibited union members who supported opposition parties from holding office in its affiliated unions.

Collective bargaining was a normal part of labor-management relations in all sectors. Because almost all unions were its affiliates, the NTUC had almost exclusive authority to exercise collective bargaining power on behalf of employees. Union members may not reject collective agreements negotiated between their union representatives and an employer. Although transfers and layoffs are excluded from the scope of collective bargaining, employers consulted with unions on both issues, and the Tripartite Panel on Retrenched Workers issued guidelines calling for early notification to unions of layoffs.

Foreign workers made up approximately 15 per cent of union members. Laws, such as the Employment Act and the Employment of Foreign Manpower Act, protect migrant workers. Labor NGOs also filled an important function by providing support for migrant workers, including legal aid and medical care, especially for those in the informal sector.

Taiwan

Section 7. Worker Rights

a. Freedom of Association and the Right to Collective Bargaining

The law provides for the right of workers to form and join independent unions, conduct strikes, and bargain collectively. The Ministry of Labor (MOL) oversees implementation and enforcement of labor laws, in coordination with local labor affairs bureaus. Teachers may form unions and federations. The law allows foreign workers to form and join unions and to serve as union officers. The law prohibits discrimination, dismissal, or other unfair treatment of workers for union-related activities and requires reinstatement of workers fired for trade union activity. In May an employee of the Chi-Ji Daai TV Co. filed a lawsuit after he was fired for trying to form a union. On June 1, following an investigation, MOLimposed an NT$30,000 ($948) fine on Chi-ji Daai TV Co. and obliged the company to reinstate the employee with back pay.

The right to strike is highly regulated. Teachers, civil servants, and defense industry employees do not have the right to strike. Workers in industries such as utilities, hospital services, and telecommunication service providers are allowed to strike only if they maintain basic services during the strike. Authorities may prohibit, limit, or break up a strike during a disaster.

Some workers are excluded from collective bargaining. Employees in companies with fewer than 30 workers, which represent 55.6 percent of Taiwan’s total labor force, are not permitted to form enterprise unions. Employees hired through dispatching agencies (i.e., temporary workers) do not have the right to organize and bargain collectively in the enterprises where they work. Although labor unions may draw up their own rules and constitutions, registration of a union requires approval from the local authorities or MOL, and authorities have the power to order unions to cease part or all of their operations if they break the law or violate their charter.

For all workers, the law divides labor disputes into two categories: “rights disputes” and “adjustment disputes.” Workers are allowed to strike only in adjustment disputes, which include issues such as compensation and working schedules. The law forbids strikes in rights disputes, which could include collective agreements, labor contracts, regulations, and other issues. Rights disputes must be settled through arbitration or the judicial process.

The law requires mediation of labor disputes when authorities deem disputes to be sufficiently serious or to involve unfair practices. On average the mediation process takes 20 to 50 days, and arbitration takes 45 to 80 days. The law prohibits labor and management from conducting strikes or other acts of protest during conciliation or arbitration proceedings. Labor organizations say this prohibition impedes workers’ ability to exercise their right to strike.

Authorities effectively enforced laws providing for the freedom of association and collective bargaining. An MOL arbitration committee reviewed cases of enterprises using discriminatory or improper action to repress union leaders and their activities, and authorities subjected violators to fines. Such fines, however, generally were not sufficient to deter violations. Both labor and management can apply for arbitration in labor disputes if there is no legal reason for the other side to refuse collective negotiation.

Labor unions asserted that during employee cutbacks, companies sometimes lay off union leaders first or dismiss them without reasonable cause.

Most labor disputes involve wage and severance issues.

Vietnam

Section 7. Worker Rights

a. Freedom of Association and the Right to Collective Bargaining

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).

The law gives the VGCL exclusive authority to give legal recognition to unions and confers on VGCL upper-level trade unions the responsibility to establish workplace unions. The Statutes of Vietnamese Trade Unions (SVTU), which is 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 the legal right to have full autonomy in the administration of their affairs. The Trade Union Law subjects all workers’ organizations to the organizational structures and rules prescribed by the SVTU, confers on the VGCL the rights and responsibilities of ownership over trade-union property (including the property and capital of all affiliate unions and contributions from union members), and gives the VGCL the right to represent lower-level unions. The law also allows for appointments of trade union leaders and officials, rather than elections by union members.

The law requires that where 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. Such tasks include negotiating collective bargaining agreements and other workplace rules and regulations, participating in the resolution of labor disputes, and engaging in social dialogue and other cooperation with employers. 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 nonunionized workers wish to bargain collectively, the upper-level VGCL union must represent them. Neither the law nor related regulations specify the process for workers to request such representation or the minimum number of workers required to make such a request. Only Vietnamese citizens may form or join labor unions by law.

The VGCL has the responsibility for educating workers on their rights and obligations, representing workers (the “labor collective”) in collective bargaining and individual workers’ disputes, holding and leading legal strikes, and working with state agencies on labor relations, occupational health and safety, and other matters. Union dues are mandatory by law for union members and domestic and foreign employers. Union members pay 1 percent of their salary to the union, and employers pay 2 percent for every employee, regardless of whether they are a union member.

Collective labor disputes over rights must go through a conciliation council and, if the council does not resolve the matter, to the chair of the district-level people’s committee. The law allows trade unions and employer organizations to facilitate and support collective bargaining and requires companies to establish a mechanism to enable management and the workforce to exchange information and to consult on subjects that affect working conditions. Regulations require conducting workplace dialogues every three months.

The law stipulates that trade unions have the right and responsibility to organize and lead strikes, and it 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. The law makes a distinction between “interest-based” (“a dispute arising out of the request of the workers’ collective on the establishment of a new working condition, . . . .in the negotiation process between the workers’ collective and the employers”) and “rights-based” (“a dispute between the workers’ collective with the employer arising out of different interpretation and implementation of provisions of labor laws, collective bargaining agreements, internal working regulations, other lawful regulations and agreements”) disputes. In contravention of international standards, the law forbids strikes over “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” is defined to include enterprises involved in electricity production; post and telecommunications; maritime and air transportation, navigation, and management; 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. Essential services for which strikes may be restricted are generally limited to those for which a strike would endanger the public’s safety or health.

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. Before workers may hold a strike, they must submit their claims through a process involving a conciliation council (or a district-level labor conciliator where no union is present). If the two parties do not reach a resolution, unions must submit claims to a provincial arbitration council. Unions (or workers’ representatives where no union is present) have the right either to appeal decisions of provincial arbitration councils to provincial people’s courts or to strike. The law also 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. Individual workers may take cases directly to the people’s court system, but in most cases they may do so only after conciliation has been attempted and failed.

Provisions of the penal code have the potential to suppress union activity. For example, national security-related article 89 states that “[t]hose who intend to oppose the people’s administration by inciting, involving and gathering many people to disrupt security, oppose officials on public duties, obstruct activities of agencies and/or organizations… shall be sentenced to between five and 15 years of imprisonment.” Under the same article, accomplices face between two and seven years of imprisonment.

The laws include provisions that prohibit antiunion discrimination and interference in union activity. The laws do not distinguish between workers and managers, however, and fail in prohibiting employers’ agents, such as managers who represent the interests of the employer, from participating or interfering in union activity or provide sufficiently dissuasive sanctions for employer interference. Decree No. 95/2013/ND-CP on “administrative sanctions for violations in labor area,” for example, limits applicable sanctions to fines only, and no specific remedies are available.

In October 2015 the government issued Decree 88 regarding administrative sanctions for interference in trade union activities. It specifically imposes fines of between three and 10 million VND ($135-$450) for discrimination against employees who establish or join a trade union or carry out trade union activities, and for any actions that disadvantage the operations of a trade union.

On June 19, the Hai Phong Economic Zone Trade Union and five Korean manufacturing enterprises based in Trang Due Economic Zone signed the country’s first multienterprise collective bargaining agreement negotiated between a group of foreign-invested enterprises and trade unions to decide basic conditions of work, including recognition of union rights. The agreement would likely benefit nearly 2,500 workers through improved recruitment and female worker policies, increased base wages, better bonuses, allowances, leave, and rest time as well as conditions for ensuring trade union operations in the enterprises.

The VGCL reported 177 strikes from January through July, approximately the same level as the same period of 2015. Of those strikes, 69 percent were in foreign direct-investment companies (mainly Korean, Taiwanese, and Japanese companies). None of the strikes followed the authorized conciliation and arbitration process, and thus authorities considered them illegal “wildcat” strikes. The government 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 those employers, especially foreign-owned companies that engaged in illegal practices leading to strikes.

A July 2015 report of the International Labor Organization (ILO) and International Finance Corporation’s Better Work Vietnam program noted 62 percent of factories discriminated against or interfered in the activities of the trade union. Similarly, the data revealed that management staff continued to sit on trade union executive committees in approximately 45 percent of factories, which could undermine the function of the union as a legitimate representative voice for the workforce. At the same time, the report noted 7 percent of factories had cases of direct and overt management interference in union activities, and fewer still (eight employers had actually “tried” to interfere) were found to have prevented workers from meeting without management present. There were also credible reports employers used short-term or probationary contracts to avoid certain legally mandated worker benefits, such as unemployment insurance, or to inhibit workers from joining unions.

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. Through its participation in an ILO industrial relations program, the VGCL engaged in a new form of bottom-up, worker-centered approach to organizing workers rather than having VGCL leaders determine when and where to form a union. This effort resulted in the formation of multiple new grassroots-established and -led trade unions, including four new unions at four of the Trang Due Economic Zone enterprises that signed the multienterprise collective bargaining agreement in June.

Because it is illegal to establish or seek to establish labor unions independent from the VGCL, 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.

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. On January 17, authorities at Tan Son Nhat Airport in Ho Chi Minh City reportedly detained activist Hoang Duc Binh, a member of the independent labor rights organization Viet Labor Movement, for 10 hours and confiscated his passport, cell phone, and laptop. Authorities pressured him to renounce his membership in Viet Labor and later issued him a notice banning traveling overseas due to security reasons.

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The Lessons of 1989: Freedom and Our Future