As Cambodia looks to passing a new labor law - in part to obtain trade benefits
from the US - critics question whether workers will be better off. Jason Barber
reports.
A FTER a bitter two-year struggle over its contents, Cambodia is set to get a new
labor law which critics allege is seriously flawed.
The draft law - in an historic move initially opposed by the government - will introduce
trade union rights and the right to strike.
But critics say the trade union provisions are flimsy, and that much of the law is
a recipe for corruption and political interference.
The Ministry of Social Affairs, Labor and Veterans' Affairs will be given immense
power, including the right to set the minimum wage and other working conditions,
grant exemptions for employers to use child labor, issue employment cards, arbitrate
industrial disputes and regulate trade unions.
Critics also claim the draft has weak prohibitions against child labor, discriminates
against women, and contains a host of vague or contradictory provisions. The entire
law - most significantly the trade union and strike rights - does not apply to government
workers.
Changes to the draft have been recommended, but largely to no avail, as the labor
ministry keeps firm control over its contents.
The torturous drafting of the law has pitted the ministry against group of MPs, and
divided foreign observers who dispute the merits of the latest draft.
At the heart of labor law reform in Cambodia - and perhaps the only reason why the
government agreed to give the right to strike - is the lure of United States trade
benefits.
Already awarded Most Favored Nation (MFN) status from the US, Cambodia now covets
Generalized System of Preferences (GSP) ranking. To get GSP, Cambodia is obliged
to make at least token efforts toward ensuring fair play for workers.
Some critics question the role of the US government - via the Asian-American Free
Labor Institute (AAFLI), an NGO funded by USAID - in advising on the new law and
effectively endorsing it.
AAFLI's public position is that the law meets - or at least "squeaks by"
- key international labor standards and therefore will help Cambodia to qualify for
GSP.
AAFLI, an affiliate of the US' largest trade union, puts its faith in the introduction
of union rights to Cambodia as the best way to boost working conditions.
Others are not so sure. "How does USAID justify funding an NGO that condones
child labor?" asks one observer who believes the law's prohibitions on child
labor are far too weak.
"It's fine to say 'OK, we got the trade union stuff introduced to Cambodia'.
But what about the basic stuff, protections for children and women?"
AAFLI - which just issued a joint report on child labor which raised the hackles
of the Cambodian government - reacts angrily to such criticism.
Country representative Bama Athreya says: "The only purpose these anonymous
comments serve is to help those people, and there are many, who would like to stop
this law, who do not believe there is any place for free, democratic grassroots [workers']
organizations in Cambodia.
"The difference between AAFLI's view and that of others is that we feel this
is a significant improvement over the old labor law and should be passed.
"Some others can't see the forest for the trees, and cannot see the importance
of the trade union provisions... they think this law has its faults and therefore
should not be passed."
Athreya says AAFLI proposed "dozens" of changes to the current draft, some
of them accepted and some not, but "we can't force revisions down the government's
throats."
The labor requirements for countries seeking GSP - which provides duty-free status
on many exports to the US - are loose. US law says only that countries must have
taken or be taking steps to provide "internationally-recognized workers' rights".
That provision can be over-ridden where granting GSP to a country is considered in
the "best economic interests" of the US - a clear indication of the economic
benefits that flow both ways from GSP.
Cynics suggest that it is not to the US' advantage to push for strong labor laws
in GSP countries. They note that GSP and other trade benefits provide a raft of incentives
for American firms to invest in developing countries with far cheaper labor than
back home.
Privately, the US Embassy in Phnom Penh is satisfied that Cambodia's draft law meets
GSP requirements.
THE draft law is based on the current labor code, passed in 1992 by the State of
Cambodia regime, with the main additions of the rights to form trade unions, bargain
collectively and strike.
Criticisms of the law include that it:
- Does not (contrary to the Constitution) apply to government workers, the largest
sector of salaried workers;
- Contains confusing provisions on child labor. The law sets the minimum allowable
age of a "salaried" worker at 15, and at 18 for those employed in "hazardous
work", while younger children can do "light work". The Ministry of
Labor can exempt employers from these rules in unspecified special circumstances;
- Prohibits forced labor but permits labor to be exacted from people in cases of
natural disasters, or to do "light public works" considered as "normal
civic obligations"
- Discriminates against women. It does not include a ban on sexual harassment,
permits women to be paid half-salary during maternity leave (contrary to Cambodia's
Constitution), and excludes domestic workers - mainly women - from its coverage.
- Does not contain a legal minimum wage. The labor ministry will later set the
wage, which can vary from region to region;
- Gives great power to the ministry - including issuing identity cards to all workers
and inspecting employers' payrolls - which one observer said "is almost certainly
going to be abused for the purposes of corruption"
- Permits workers to be dismissed for engaging in "political" activities
in the workplace;
- Does not guarantee the independence of trade unions from political parties;
- Permits unions to be dissolved if they are judged to be acting in a manner "foreign"
to their charter.
Bama Athreya (AAFLI) says the draft is "by no means perfect" but meets
key International Labor Organization (ILO) standards.
"It doesn't meet every international standard but it does meet some key points
such as the right to strike, the provisions against forced labor, and so on... we
would say the protections are not strong but yes, it squeaks by those standards."
The law's provisions on forced labor, permitting "light public works",
were taken straight from an ILO convention. AAFLI had recommended changes to the
provisions, but could not demand them.
"We can say that given Cambodia's history and the conditions in Cambodia, we
think you should take this out. We can't say that you are not in conformity with
the standards - we can't wave that stick, because it's just not true."
Similarly, the prohibitions on child labor met ILO standards, though the law "could
be made much stronger", Athreya says.
Two observers dispute that, saying that the ministry's right to grant exemptions
was a "big loophole" which could make the ban on child labor meaningless.
The only reply from Athreya, after checking with AAFLI's US office, is: "We
have no position on that particular point."
On government workers not being covered by the law, she says: "It's all fine
and well for foreign advisers to say that this isn't fair, and it's certainly not
in conformity with the international standards, but we are not writing this law.
We can advocate, but we cannot force them to change the law."
AAFLI believes the law also meets the union and collective bargaining standards of
the ILO, though Athreya acknowledges that "the protections on trade unions are
weak, the enforcement provisions are weak, the penalties are weak."
So is the law worth it?
"I still think it's worth it. It gives people the right to organize. The one
thing that will provide any hope for Cambodia is if workers can organize," says
Athreya.
"It doesn't matter what the minimum wage is by law. Workers will be able to
determine what is a fair wage with their employers.... The government can set a minimum
wage and not enforce it. Unions can.
"It will also be a great step forward for democracy in Cambodia. Finally, there
will be grassroots organizations advocating on behalf of workers."
Critics suggest that view is naive.
"Realistically, can you imagine unions being formed and people going on strike?
Their positions will be filled in a day if they walk out," says one.
"Even if 1 percent of workers manage to form unions, what about everyone else
- how are their rights going to be protected with this lousy draft law?"
A foreign lawyer says: "Just assuring the existence of trade unions on paper
is not going to result in anything. Without additional protections that guarantee
the independence from political parties or guarantee against arbitrary dissolution
of trade unions, this won't amount to much."
UNDERLYING the troublesome preparation of the new law - which has gone through many
drafts - is a struggle between a group of MPs and the labor ministry.
It began in 1994 when 37 MPs produced their own draft, which included the right to
strike and form trade unions. After something of a Mexican stand-off with the MPs,
the ministry eventually wrote its own law, which initially provided for one state-run
workers' federation.
With two drafts circulating, the ILO and AAFLI became involved, offering advice to
both sides, and eventually the current 'compromise' version was completed by the
ministry.
BLDP MP Son Chhay believes the ministry only agreed to introduce the right to strike
after Hun Sen, with an eye on getting MFN and GSP, gave approval.
Chhay believes the current draft is acceptable but would like to see more specifics
in the law, reducing the power of the ministry to set regulations by sub-decree at
a later time.
The parliamentary commission on public health, social welfare and women's affairs
has been reviewing the draft since June, and recommended changes to eight points
- including giving government staff trade union rights, and strengthening the bans
on forced and child labor.
Commission chairman Kann Man (Funcinpec) says the ministry has rejected two of those
submissions, and he doubts that it will agree to the others.
The last chance for revisions will come when the law goes before the full National
Assembly, an institution not noted for its willingness to force changes to government
legislation.
Despite the interest of the 37 MPs, few observers expect significant changes to be
made by the assembly.
"We're trying to explain to MPs the need to improve the draft, but I have very
little hope of that," says Man, who gives the law only "medium" marks
and fears it will be poorly enforced.
Suy Sem (CPP), the Secretary of State for Social Affairs, Labor and Veterans Affairs,
is for his part "very satisfied" with the draft. After two years' of revising
drafts, with the help of the ILO and AAFLI, he says "I don't know how much paper
we used..."
Sem says AAFLI has repeatedly told him that the law meets ILO standards (the ILO's
Bangkok office told the Post it didn't have the latest draft but believed it meets
the key conventions).
Of the law's exclusion of government staff, Sem says it was only ever intended to
cover the private sector. If the government wants to extend the same labor rights
to its employees, it can draft another law.
On the changes suggested by Kann Man's commission, and by AAFLI, Sem makes it plain
that he will not agree to revisions unless they are necessary to meet international
norms.
"We cannot make any revisions that deviate from the content we have already
approved. You cannot just revise the law as you wish, or as you dream. [But] if there
is an article of the law that goes against the international conventions, why don't
we correct it."
He notes the parliamentary commission raised only eight points - out of the law's
395 articles - and therefore "they almost completely agree with the draft".
Sem hopes the law will go before the full National Assembly as soon as possible,
where it will be debated chapter by chapter. As there are 19 chapters, "it needs
the MPs to raise their hands only 19 times," he says with a smile.
Minister of Commerce Cham Prasidh, leading the government's push to obtain GSP status,
also hopes that the law will reach MPs within weeks.
He complains about the slowness of Kann Man's commission: "Kann Man used to
be an advocate for this [law], but now he delays. If there is any delay in this law,
it is because of him.
"The committee has no right to delay the law. If they have problems that they
cannot solve, they have to send this law to the full floor of the National Assembly."
Mann replies that, had it not been for the group of MPs first pushing for a new labor
law, Cambodia would probably not have been awarded MFN, a precursor to getting GSP.
As the squabbles continue - at least until the law is passed - it's hard to avoid
the impression that the debate is more about GSP than about providing workers' rights.
How much the two have in common is, like most everything to do with the labor law,
open to dispute.
