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Precarious Work in Asia Pacific Has Been Identified by Trade Unions Across the Region As a Central Concern for Working People

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Precarious Work in Asia Pacific Has Been Identified by Trade Unions Across the Region As a Central Concern for Working People A 10 country study by The International Trade Union Confederation (ITUC) and ITUC Asia-Pacific 2014 Asia Pacific Region Precarious work in the work Precarious FOREWARD ..........................................................................................................................................5 INTRODUCTION ....................................................................................................................................7 COUNTRY PROFILES ...........................................................................................................................13 Australia .............................................................................................................................................14 Cambodia ...........................................................................................................................................19 Indonesia............................................................................................................................................23 Japan .................................................................................................................................................29 Contents Korea, Republic of ...............................................................................................................................37 Nepal .................................................................................................................................................47 New Zealand ......................................................................................................................................52 Philippines ..........................................................................................................................................57 Singapore ...........................................................................................................................................64 Sri Lanka ............................................................................................................................................68 THE ILO AND PRECARIOUS WORK IN THE ASIA-PACIFIC REGION ........................................................73 CONCLUSION .....................................................................................................................................83 ACKNOWLEDGMENTS ........................................................................................................................85 ENDNOTES ........................................................................................................................................87 3 | Precarious work holds down wages by stripping workers of their basic rights. It also means few if any benefits and more dangerous workplaces. Millions of workers are trapped in precarious forms of work, leaving them and their families insecure. Corporate power, which governments have failed to tame, imposes precarious employment conditions to frustrate workers’ efforts to form or join unions and to bargain collectively. Across the Asia-Pacific region, precarious work is on the rise. We know that working people need quality jobs, a social protection floor and a minimum living wage. The ITUC World Congress 2014 committed to building workers power, and organising in our workplaces and communities to build the power of workers to effect change. Organising all workers, including those in precarious work, is a central challenge for the ITUC as it fights for full employ- ment and decent work along with universal social protection floors. Foreword Precarious work in Asia Pacific has been identified by trade unions across the region as a central concern for working people. The international trade union movement working with national centres and industry federations has committed to working together to tackle the scourge of precarious work. The first step in this co-ordinated approach develops a legal mapping of precar- ious work form ten countries in the region, which outlines the laws, regulations and jurisprudence related to precarious work. Using this mapping, good laws and regulations can be identified which can be shared across countries, and bad laws can be identified to prevent their spread. This report provides a comprehensive legal analysis to support national, regional and international strategies to tackle precarious work. At an international level, the fight against precarious work is also being fought at the ILO. For the first time, this report surveys the ways in which international labour standards have been used by unions in the Asia-Pacific to challenge precarious work. Next year, discussions on precarious work will begin at the ILO which could lead to standard setting on key aspects of this problem. 5 | Precarious employment robs workers of security and the possibility to plan for their and their children’s futures. It harms economies by reducing the purchas- ing power of ordinary people. Our campaign action for justice at work and fair decent jobs will support and benefit working families, and help build economies which work for all. Sharan Burrow General Secretary, ITUC | 6 1. What Do We Mean By “Precarious Work?” The term “precarious work” is often used loosely to refer to all kinds of undesir- able work, including low-paid work, work with limited or no benefits (health care, pension, bonuses, etc.), involuntary part-time work, work in unsafe or unhealthy workplaces and work in the informal economy, among others. These are all serious issues that require urgent attention by trade unions and policymakers. However, we use the term “precarious work” in this report to refer to a more limited phenomenon concerning the deterioration of the once-standard direct, indefinite employment relationship in the formal economy. This report is not about the informal economy, which is a distinct issue with a different set of policy responses, though certainly there is some overlap. Specifically, we refer to: 1) the use of short, fixed-term (“temporary”) employment contracts for work that is permanent (or at least ongoing) in nature; 2) the intentional misclassification of a worker as a self-account, independent contractor hired under a commercial contract when he/she should be classified as a worker hired under an employment contract (we could include here other “commercial” contract arrangements such as sham cooperatives); and 3) indirect (or “triangular”) employment relationships, meaning the use of vari- Introduction ous kinds of intermediaries (subcontractors, employment agencies and labour dispatch companies) to perform work that is not ancillary to the work of the company. This is done in order to sever the direct employment relationship and thereby reduce or eliminate the ultimate beneficiary employer’s legal responsi- bilities to the worker. Further, the exclusion of entire categories of workers from the coverage of labour laws, such as domestic workers, could be considered a fourth category as it creates a situation where few if any legal protections are available. These categories are not discrete and are often combined so that, for example, a dispatched worker is employed on a series of temporary contracts. The ITUC and ITUC-AP believe that this more specific approach helps to focus on the particular legal relationships that are creating the greatest challenge to the “standard” employment relationship and to trade unionism. These precar- ious or “non-standard”1 forms are the result of specific policies and practices meant to reshape the employment relationship to the disadvantage of work- ers; they are not merely bad jobs, which can include jobs based on a direct, indefinite employment relationship. By understanding precarious work in this more specific sense one can develop more targeted and more effective policy responses. 7 | 2. Why Focus on Precarious Work? The existence of a legally-recognized employment relationship between an employer and worker is essential, for without it workers have no access to the rights and to protections available under law. The very reason why employers use precarious forms of work is to weaken or eliminate this legal relationship and consequently to limit or eliminate access to those rights and protections. In particular, employers seek to undermine trade union rights, namely the right to freedom of association (including the right to strike) and the right to collective bargaining. Indeed, workers in precarious work relationships do face great -if not insurmountable- difficulties to organize, to form or join a union and to bargain collectively, as this report explains. The increase in the use of precarious work around the world is indicative of a deliberate effort by employers to shed their legal responsibility to the workforce, to weaken existing unions and to prevent the formation of new ones, thus maximizing short-term profitability at the expense of workers, their families and communities. While precarious work has always been a serious problem in the developing world, it has become a serious and growing problem in highly-industrialised countries in recent decades, where well-paying, full-time work is being replaced by precarious work. It is an increasing problem on every continent, undermining wages and working conditions. In some cases, governments facilitate these practices by failing to properly enforce laws or amending laws to facilitate the expansion of precarious work. In 2006, representatives of workers, employers and governments negotiated
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