ABSTRACT

A LEGAL STUDY ON THE IMPLEMENTATION OF THE DRAFT ASEAN AGREEMENT ON THE PROMOTION AND PROTECTION OF THE RIGHTS OF WORKERS REGARDING THE GENDER EQUALITY AND WOMEN WORKERS’S RIGHT IN ASEAN

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The Association of Southeast Asian Nation is consist of ten developing country member states including Indonesia, Malaysia, Philippines, Singapore, Thailand, Brunei, Vietnam, Laos, Myanmar and Cambodia. Comparatively, ASEAN is suffering under a gender inequality in regard with labor’s right abusing where women are struggling and discriminate in her/their workplace. The key issue arising under gender inequality in workplace are normally resulting as gender wage gap, sexual harassment in workplace and maternity protection. However, there are several factors leading to the issues of gender inequality and women worker’s right abuse arising in ASEAN due to the lack of state awareness, lack of social protection, weak law and policy enforcement. Fortunately, there exist a draft ASEAN agreement on the promotion and protection of the right of workers suggested by the Law Reform Commission of Thailand (LRCT) covering on all of labor rights protection including right to work and employment, right to association and collective bargaining, right to social security, women worker’s rights, child labor, right to nationality, right to health, right to training and education, right before the law, right to compensation, right to housing, right to found a family, right to freedom of movement and rights of migrant workers. Significantly, ASEAN shall implement the present draft ASEAN agreement on the promotion and protection of the right of workers for there shall be several possible impact on the labor right protection in ASEAN region both national and regional level. In national level, ASEAN member states shall boost up their attention toward the protection of labor right specifically gender equality in workplace along with their national effort in order to compliance with the articles citing within the draft agreement. In regional lever, implementing the draft agreement shall reduce the disparity of labor law in ASEAN region as well as to ensure the respect of human right and labor right protection in the ASEAN region. It should be optimistic that ASEAN in regard with the promotion and protection of the labor rights specifically gender equality in workplace and women worker rights will be more protective after implementing the draft ASEAN agreement on the promotion and protection of the rights of work.

LIST OF ABBREVIATIONS

ACW          ASEAN Committee on Women

ACWC     ASEAN Committee on the Promotion and Protection of the Rights of Women and Children

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ACWO        ASEAN Confederation of Women’s Organizations

ACMW      ASEAN Committee on Migrant Workers

AICHR      ASEAN Intergovernmental Commission on Human Rights

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ASEAN       Association of Southeast Asian Nations

ASEAN RPA on EVAW ASEAN Regional Plan of Action on the Elimination of Violence against Women

CLMV      Cambodia, Lao, Myanmar, Vietnam

CEDAW    Convention on the Elimination of all Forms of Discrimination against Women

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CJEU          Court of Justice of the European Union

EU             European Union

GDP          Gross Domestic Product

ICESCR       International Covenant on Economic, Social and Cultural Rights

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ILO            International Labour Organization

LWU           Lao Women Union

LRCT        Law Reform Commission of Thailand

NGPES       National Growth and Poverty Eradication Strategy

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NCAW       National Commission for Advancement of Women

     NSPAW     National Strategic Plan for the Advancement of Women

SLOM       Senior Labor Officials Meeting

TOR             Term of Reference

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UDHR       Universal Declaration of Human Rights

UNGA        United Nation General Assembly

UN            United Nation

UK            United Kingdom

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US             United State

Contents

CHAPTER ONE: INTRODUCTION

1.1 Background of study

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1.2 Purpose of the study

1.3 Legal issue

1.4 Scope and Delimitation

1.4 Significance of Study

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1.5 Methodology of Study

1.6 Structure of Paper

CHAPTER TWO: THE PROTECTION AND THE PROMOTION OF THE RIGHT OF GENDER EQUALITY AND WOMEN WORKERS IN INTERNATIONAL LEGAL FRAMEWORK

2.1 General Introduction to the gender equality

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2.1.1 General concept of the gender equality

2.1.2 Definition of gender equality

2.2 Facts and Key challenges of the gender equality and women worker’s right in regions

2.2.1 Overview on the arising facts of gender equality and women’s workers in regions

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2.2.1.1 European Union

2.2.1.2 United State

2.2.1.3 Asia focus on ASEAN

2.2.2 Key challenges of the promotion and the protection of gender equality and women worker’s right

2.2.2.1. Lack of state awareness

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2.2.2.2. Lack of social protection

2.2.2.3. Weak law and policy enforcement

2.3 International human rights on the protection and promotion of the gender equality and the right of women’s worker

2.3.1 Convention on the elimination of all forms of discrimination against women (CEDAW)

2.4 International labour organization on the protection and promotion of the gender equality and the right of women’s worker

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2.4.1 The Equal Remuneration Convention

2.4.2. Discrimination (Employment and Occupation) Convention

2.4.3. Workers with Family Responsibilities Convention

2.4.4. Maternity Protection Convention

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2.5 ASEAN Regional Organization on the protection and promotion of the gender equality and the right of women’s worker

2.5.1 ASEAN Committee on Women (ACW)

2.5.2 ASEAN Commission on the Promotion and the Protection of the Rights of Women and Children (ACWC)

2.5.3 ASEAN Confederation of Women’s Organizations (ACWO)

CHAPTER THREE: GENDER EQUALITY AND WOMEN WORKERS’S RIGHT IN ASEAN COUNTRIES

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3.1 The key issues of the gender inequality and women rights violation in workplace

3.1.1 Gender wage gap and mistreatment

3.1.2 Sexual harassment in workplace

3.1.3 Maternity protection in workplace

3.2 Case studies of gender equality and women worker rights situation in ASEAN

3.2.1 Cambodia

3.2.1.1 National labor law

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3.2.1.2 Workers situation in Cambodia

3.2.1.3 Government response

3.2.2 Lao PDR

3.2.2.1 National Labor law

3.2.2.2 Workers situation in Lao

3.2.2.3 Government response

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3.2.3 Myanmar

3.2.3.1 National Labor law

3.2.3.2 Workers situation in Myanmar

3.2.3.3 Government response

3.2.4 Vietnam

3.2.4.1 National Labor law

3.2.4.2 Workers situation in Vietnam

3.2.4.3 Government response

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3.3 Analysis on the CLMV countries condition regarding gender equality and women worker’s rights in workplace

CHAPTER FOUR: LESSON LEARN FROM EUROPEAN UNION LABOUR LAW

4.1 European Union Regional Organization on the protection and promotion of the gender equality and women worker’s right

4.1.1 EU Charter of fundamental rights

4.1.2 The European Union Labour law

4.1.2.1. European labour law on employment contract law

4.1.2.2. European labour law on the protection against discrimination within the employment

4.1.2.3. European labour law on the protection of employees

4.1.2.2.1 Heath protection and safety at work

4.1.2.2.2 Maternity protection and Parental protection

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4.1.2.2.3 The protection of Young people in workplace

4.1.2.4. Collective labour law

4.2 Court of Justice of the European Union (CJEU)

CHAPTER FIVE: A PROPOSAL ON THE IMPLEMENTATION OF THE DRAFT ASEAN AGREEMENT ON THE PROMOTION AND PROTECTION OF THE RIGHTS OF WORKERS

5.1 Draft ASEAN agreement on the promotion and protection of the rights of workers

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5.1.1. Overview of the draft agreement

5.1.2. Objective and purpose of the draft agreement

5.2 A proposal on the implementation on the draft ASEAN agreement on the promotion and protection of the rights of workers

5.2.1 National Level

5.2.1.1. National efforts and ensure effective balance of gender equality and labor protection

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5.2.1.2. Strengthen policy and law enforcement

5.2.2 Regional level

5.2.2.1. Reduce disparity on labor rights between ASEAN

5.2.2.2. Ensure gender equality and labor rights protection in the region

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CHAPTER SIX: CONCLUSION

References

CHAPTER ONE: INTRODUCTION

1.1 Background of study

Gender equality generally refer to the role that men and women play in all sectors include social-cultural, economic and political; however, gender equality usually came along with the focus on women’s rights because the role of women in history has not been treat equally with men but it is significantly improves during the later decades. Indeed, gender equality and women’s rights known as one of a main factor encouraging the protection of human rights as well as the economic development of the country. Evidentially, the 1945 United Nation adopted the gender equality as one of the fundamental principle of human rights by addressing equal rights of men and women in regard with rights and obligation in all share of life around the world.[1]Moreover, Gender equality considered as a main supporter of economic development and poverty reduction since women globally accounted for 49.6 percent whereas men accounted for 50.4 percent of the world population[2]; yet, women only share 50 percent in labour force comparing to men who share 77 percent of labour participants[3]. Fortunately, labour force and labour market play an important role in developing countries and region such as ASEAN as a mean to boost up the economic growth situation within the country so the need of the involvement of women is very important to contribute the growth and to increase the productivity of the country. Unfortunately, there are plenty of job provided for both men and women but the gap between men and women in regards with gender inequality still remain large even though the progress toward gender equality are incredibly advancing yet it seem to be uncertain as can be seen in the case of several ASEAN countries. In this respect, the international organizations as well as the regional organizations were putting their attention with close watch on the protection and promotion of gender equality and women’s rights by establishing numbers of international law and legal binding instruments such as treaty, conventions, agreement to expect for the effective solution.

1.2 Purpose of the study

The purpose of this study is to comprehensively look into the protection and promotion of gender equality and women rights in Southeast Asia by selectively chose the countries with comparatively higher rank of gender inequality within Southeast Asia countries known as CLMV countries which consist of Cambodia, Lao PDR, Myanmar and Vietnam. Furthermore, this study will emphasise the issue and the important of improving gender equality by suggesting ASEAN to implement the draft ASEAN agreement on the promotion and protection of the rights of workers by providing legal analysis to the actual fact and problems of ASEAN countries. Thus, this legal study will also share the lesson learn from European Union Labour law to study for the improvement of ASEAN law related with labour specifically gender equality and women’s rights.

1.3 Legal issue

The aim of the present dissertation will examine the case and legislations regarding gender equality and women’s rights in ASEAN with special focus on gender wage gap, sexual harassment in workplace and maternity protection of female workers in ASEAN particularly CLMV countries . Literally found, the study of the protection and promotion of the rights of workers are consist of several issues such as the lack of the protection and promotion of gender equality and women worker rights, the lack of social protection, the lack of state awareness, weak state law practice, and weak law and policy enforcement.

What are the important of gender equality and women worker’s rights to ASEAN?

• How does the international arena react to the protection and promotion of gender equality and women worker’s rights?
• What can ASEAN learn from Europe Union labour law?
• What are the future prospect of the implementation of draft ASEAN agreement on the promotion and protection of the rights of workers?

1.4 Scope and Delimitation

This paper will prioritizes on the study on gender equality in workplace especially concerning women’s rights in workplace. This paper will not cover gender equality or gender discrimination based on education, nationality, ages, religious, ethnic and races since the paper is focus only in the field of gender equality in workplace and labour force. Furthermore, this study will not discuss about the political related causes and issue but the study is conducts in the respect of economic development, international human rights law, international labour law and other convention related with the gender equality and women rights in workplace.

1.4 Significance of Study

This legal study provide insightful outcome and proposal to the protection and promotion of the rights of worker in ASEAN specifically focus on the gender equality and women worker’s rights. Although some previous studies have been conducted on this respective issue, this research can be relatively distinguished from those studies in some characteristics. First, the former researcher studies have given the attention only on ASEAN in broad sense, yet this study conduct the focus on ASEAN specifically the CLMV countries namely as Cambodia, Lao PDR, Myanmar and Vietnam. Second, the previous studies tend to conduct the study on gender equality in broad sense; however, this study will focus on gender equality specifically in workplace. Third, the study will also comprehensively evaluate the current issues and key challenge arising from the practice of gender equality and the protection on women worker rights. Fourth, this study attempt to propose for the implementation of the draft ASEAN agreement on the promotion and the protection of the rights of workers for the effective protection toward progressive advance of gender equality and women worker’s rights. Theoretically, this study will serve as the guideline for further researchers who fascinated in this field of study.

1.5 Methodology of Study

The nature of this study bases primarily on qualitative study design. Most of information and data are collected in two distinctive categories, both primary and secondary data. The study attempts to gather relevant statements from government officials and statistical data from national institutions of countries. In addition, documents from reliable websites, journal articles, online articles, newspapers, working papers, and reports from well-known institutions, in terms of secondary sources of information, are utilized to fulfill objectives of this research. Economically focused, statistics from credible institutions of national and international organizations are also collected. For instance, data from national institutions on gender labor force, panel data from the World Bank Website, and the legal binding instruments on related fields from other international organizations such as International Labor Organization, The Universal Declaration of Human Rights, United Nation and ASEAN. Moreover, the study will conduct under the comparative study by addressing the fact and situation of United State, European Union and ASEAN regions. Plus, this paper will conduct the lesson learn in the form of comparative study between ASEAN and European Union labor law will be critically analyzed.

1.6 Structure of Paper

This paper is divide into five chapter and the study is structured as follows:

Chapter one: This part is initially described the background of the study, purpose and objective of the study, legal issue, research methodology, significance of the topic, research rationale and conceptual frameworks used to approach the issues.

Chapter two: This chapter will discuss about the general concept and definition of gender equality follow by the brief overview of the arsing fact and key challenges of gender inequality and women worker’s right in Europe, US and ASEAN. Last but not least, the paper will point out and discuss on the protection and the promotion of the rights of worker specifically gender equality and women worker’s right under international and regional legal framework.

Chapter three:  This section elaborates the key issues of gender inequality and women worker right violation in ASEAN. This part provide crucial case studies and analysis on the fact, condition and the response from the each national government of ASEAN countries particularly Cambodia, Lao PDR, Myanmar and Vietnam.

Chapter fourth: The purpose of this chapter is to examine the lesson learn from European Union labour law as a scheme to practice in ASEAN labour law.

Chapter fifth: This particular chapter will demonstrate a proposal on the implementation of the draft ASEAN agreement on the promotion and protection of the rights of workers with the possible impact prospect regarding implementing the present draft ASEAN agreement.

Chapter sixth: This chapter attempts to summarize main points of the research and draws some implications. The contextualization of this study will yield the understanding towards the protection and promotion of the rights of workers base on gender equality and women worker’s rights in ASEAN as the whole.

CHAPTER TWO: THE PROTECTION AND THE PROMOTION OF THE RIGHT OF GENDER EQUALITY AND WOMEN WORKERS IN INTERNATIONAL LEGAL FRAMEWORK

2.1 General Introduction to the gender equality

        2.1.1 General concept of the gender equality

Historically, women comparatively not able to enjoy the same opportunity as men in society including economic, political and labour force opportunity. This generated from the old traditional concept that women is the one responsible for taking care of children and household yet men is the one responsible for providing money to the family. Moreover, the daughter is considered as a burden of the family whereas the son is considered as a treasure since they are allow to find a job and providing the money to support the family[4]. This concept is mentally and physically stated that women are weaker than men in all senses which lead to the gender inequality and gender discrimination.

Unfortunately, the idea is no longer reasonable and acceptable in the recent centuries since women and men are require equal rights, equal opportunity and equal pay with the same jobs. Also, the gender equality is a critical issue that has been discussed and mandated in the national law of states as well as the international law. Even though there are plenty of international laws and agreements within the scope of the gender equality and women rights protection but still gender inequality and gender discrimination remain higher ranking in ASEAN region comparing with European Union region[5].  Hence, many countries from ASEAN are already sign and ratify the international convention or agreement related with the gender equality protection specifically on the protection of women welfare and rights but the violation of gender equality and women worker rights still remain. Notably, many women in ASEAN are recently increase in the labour force market but most of them are mistreatment and given the opportunity only by the underpaid and low security job which provide no access to health care, health insurance, unhealthy working environment and no any standard protection[6].

          2.1.2 Definition of gender equality

Gender equality refer to a state in which women and men are enjoying the same rights and opportunity regardless of one’s gender. Practically, gender is distinguishable from sex because sex refer to the physically different that define men and women whereas gender focus on the social and cultural role appropriated given by the society to both men and women[7].

2.2 Facts and Key challenges of the gender equality and women worker’s right in regions

This section will discuss briefly about the facts and key challenges which occasionally occur in the society regarding gender equality in workplace and women worker’s rights in the regions including European Union, United State and ASEAN.

      2.2.1 Overview on the arising facts of gender equality and women’s workers in regions

Gender inequality is truly a global concern happening in all regions around the world; yet, the level of gender inequality is vary from one region to another. There are three main regions that gender equality gap index is remarkably different from each other due to several factors and those regions are European Union, United State and Association of Southeast Asia Nation.

              2.2.1.1 European Union

European Union (EU) or we can simply call EU member states are comparatively advance in term of economic, social and security as well as the protection of human rights in regard with the gender equality protection. Although the gender inequality in EU still exist but it is comparatively in a smaller scale since EU has made a significant move in the last decades. Fortunately, EU gain the name of one among the best supporter of gender equality in the world as can be seen in the establishment of the Equal pay act in 1970 in which EU has adopted and respected the protection and promotion of gender equality specifically stated in article 191; later article 141, that states must ensure the protection of gender equality in term of equal pay for equal work[8]. Moreover, the Equal pay act 1970 considered as a strong legal commitment from the EU to primary focus on the prevention of gender discrimination in regard of payment in the employment favourably on the like work, equally related work and equal value work[9].

As a result, women workers in EU proved their rights base on the rights and obligation stated in the above equal pay act 1970 and able to win the claim against the employer who violate their payment rights and some women even able to raise their job value to a higher skill paid base on the equal pay amendment regulation in 1983[10]. Likewise, the protection of the maternity is highly encouraging in EU as it stated about the rights to health and safety of pregnant women and new mother. As can be seen in the case of Jessy Saint Prix who originally from France and migrant to Britain in 2006 and she quitted her job as agency six months prior to her pregnancy; yet, she looking for a job but unable to find any job. As a result, the UK government refuse to support her by declining her not as a worker but a normal migrant person and Jessy Saint Prix brought the case against the UK government and CJEU favour to her ruling[11]. Evidentially, this case brought EU law to focus more on the free movement of workers and the protection of maternity and pregnancy workers since the equal treatment of gender is highly encouraging in EU labour market[12]. In short, it can said that the gender equality in EU comparatively good in the protection and promotion of gender equality and women’s worker rights and still EU struggling to provide measure for improving gender equality in all aspects.

              2.2.1.2 United State

Even though United State is a superpower country who wield the superpower in light of political influence, military and economic capacity as a single country in the world but the gender inequality still exist inside the country. In fact, US women accounted only for 78 cents of a dollar made by US men[13]; however, US rank number 5 among 187 states in term of gender equality protection in labour market so we can say that United State gender equality is comparatively good among other states[14]. Consequently, gender equality was addressed across US national law as a core human right fundamental principle as it can be seen that US has supported the protection of gender equality remarkably in 1920 US constitution regarding a first right to vote for women or we can called women suffrage movement[15].

Furthermore, US also conduct the civil rights act in 1964 under title VII to precisely protect any violation based on sex discrimination in workplace as a US federal law[16]. Plus, the title VII of civil rights act 1964 are authorizing cover all employers and all local governments in US. As a result, women accounted for 50 percent of overall workers in US within 2010 yet the position of women workers are quite lower skill job than men since women are accounted mostly on health and services whereas men are accounted mostly on professional, technological and technical sectors[17]. All in all, we can clearly say that even though the gender equality in US is comparatively have a better ranks then some other nations but the gender inequality still remain within the low skill and high skill job.

              2.2.1.3 Asia focus on ASEAN

Women in Asia are facing and insisting on the equal rights with men in all term including family relation, working participation and decision making. Particularly, there is quite a similar and different situation and condition for women in the East Asia and the South Asia. However, I would like to raise the study on the ASEAN region since this region is one of the largest economy in the world with the rapid growth of labour force expansion; yet, the region is still in a big problem relating the protection and the promotion of worker’s rights especially women worker’s rights and gender inequality. The Association of Southeast Asian Nations or we can shortly called ASEAN were consist of 10 developing member countries who are struggling for economic development and regional cooperation namely as Brunei Darussalam, Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar, Philippine, Singapore, Thailand and Vietnam[18]. Moreover, the rising size of labour forces is one of the main engine factor encouraging the economic development of ASEAN by reducing poverty, increasing productivity, increasing the employment rates; however, many challenges appeared[19]. Furthermore, gender inequality in workplace and women worker rights violation is the main challenges that preventing ASEAN from reaching the peak of human right protection and economic growth since gender inequality cause enormous of economic cost, social disvalue and health challenges[20]. As can be seen in Cambodia, women share 60 percent for an informal work comparing to men who share only 30 percent, 89 percent of child domestic workers are girls, 85 percent of migrant workers are women from far local areas and only 23 percent of women under public sector employment whereas men accounted for 77 percent of public sector employment and other higher position[21]. Evidentially, in the United Nation development program report in 2013 claimed that most of ASEAN countries are comparatively in between the rank of medium and low human development as well as the gender inequality comparing with EU and United State[22]. Despite the fact that many challenges occur regarding the gender inequality and women worker’s rights, ASEAN are striving on the improvement of gender equality by establishing numbers of declaration, convention and agreements toward the gender equality protection.

        2.2.2 Key challenges of the promotion and the protection of gender equality and women worker’s right

There are plenty of obstacles to the development of gender equality in workplace and women worker’s rights. However, there are three main challenges that considered as a threat to the improvement of gender equality and women worker’s rights such as the lack of state awareness, the lack of social protection, weak law and policy enforcement. These three main challenges will be discuss in the following part:

             2.2.2.1. Lack of state awareness

A basic problems of gender inequality across the globe is the lack of state awareness in broad sense. Comparatively, state awareness is one of the main strategic addressing the state commitment in the respect of improving the gender equality. Generally, the lack of state awareness would partially effect to the promotion and protection of gender equality specifically the gender equality in workplace. Thus, state can prove their awareness through the conduct of actions such as studying and investigating the issue, establishing new policy and guideline and providing proper solutions to the issues which play a very crucial role in promoting and protecting the gender equality by government.

As a result, the lack of state awareness is one of the reason of the gender inequality in the country as well as a region as a whole[23]. Thus, we can visibly see that women who are not aware of their rights, they cannot claimed their rights so state awareness could link to public awareness in which government can promote the gender equality protection by sharing the knowledge directly to women workers and by providing the useful information through social media such as television, radio, newspaper and other online media.

             2.2.2.2. Lack of social protection

The social protection concept are rooted conducted under the Universal Declaration of human rights as a tool to reduce poverty and protect the standard living of human being[24]. Indeed, social protection are addressed under the article 9 of the International Covenant on Economic Social and Cultural Rights (ICESCR) in 1966 stated that state parties are obliged to provide the right to every individual person  including the social security which refer as social protection under ILO and other UN bodies[25]. Moreover, social protection could lead to the improvement of gender equality under a mean of providing social insurance, net incomes, access to healthcare and food, maternity allowance and promote the gender equality specifically in work place with the public awareness to raise the concern and respect toward the gender equality in work place[26].  So social protection is an important key to achieving gender equality and women empowerment specifically the protection of women worker’s rights.

             2.2.2.3. Weak law and policy enforcement

Indeed, law and policy of a country play a very important role in monitoring and limit the action of citizen for social orders protection. Yet, weak law and policy enforcement is one of the most challenges in gender inequality across the globe because law and norm are simultaneously justifying the patterns of social, economic and legal endowment between men and women[27]. In addition, improving the law and policy regarding the gender equality are critically contributed to gender equality specifically on women worker’s rights by strengthening policy addressing on equal pay, equal treatment, parental leave or maternity leave[28]. Additionally, in worst case, there are some law regulating to restricted women from the certain kinds of employment as women globally face job restrictions in 100 countries out of the 173 countries limited the job capacity of women and 18 countries of them even allow the husband to decide whether or not a wife can do the job[29]. All in all, reforming the law and strengthening the law are really important and contributory toward gender equality and women worker’s rights.

2.3 International human rights on the protection and promotion of the gender equality and the right of women’s worker

International world has address the issue of gender equality as one of the fundamental principle of human rights. As can be seen in the article one of the United Nation charter stipulated clearly that one of the main purpose of the establishment of UN is for the respect of human rights and fundamental freedom as well as the principle of equal rights and self-determination of peoples[30]. Furthermore, women rights are appropriated considering as human rights under Universal Declaration of Human rights by addressing the principle of the inadmissibility of discrimination based on sex in which required a strong attention with effective solution from the international arena[31]. As a result, a significant conventions relating with the promotion and the protection of gender equality and women rights including women workers are adopted.

      2.3.1 Convention on the elimination of all forms of discrimination against women (CEDAW)                

As tensions occur, the adoption of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 1979 is compulsory to be conducted by UN General Assembly[32]. Indeed, the convention entered into force in 1981 and it consists of 30 articles with 188 member states with the purpose of eliminate all forms of discrimination against women in accordance with the principle of equality, asking for state actions along with responsibility and establish proper court of justice and other institutions to ensure the effective protection of women against discrimination in all forms[33]. Moreover, article 11 of CEDAW are intentionally correlated with the protection and promotion of gender equality in workplace and women worker’s right and the article stated that:

“1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular:

(a) The right to work as an inalienable right of all human beings;

(b) The right to the same employment opportunities, including the application of the same criteria for selection in matters of employment;

(c) The right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining, including apprenticeships, advanced vocational training and recurrent training;

(d) The right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work;

(e) The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave;

(f) The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.

2. In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, States Parties shall take appropriate measures:

(a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status;

(b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances;

(c) To encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life, in particular through promoting the establishment and development of a network of child-care facilities;

(d) To provide special protection to women during pregnancy in types of work proved to be harmful to them[34]”.

All in all, this article is purposely protect the equality based on gender in term of employment by providing equal treatment in regard with rights, obligation, and opportunity along with special protection to pregnant women workers. Resultantly, the establishment of this convention is a proof of how important it is to eliminate all forms of discrimination against women including gender equality in workplace and women worker’s rights of each nations under international society.

2.4 International labour organization on the protection and promotion of the gender equality and the right of women’s worker

Originally, the international labour organization (ILO) was established in 1919 with the purpose of promoting labour rights in accordance with human right in order to pursue social justice[35]. Moreover, one of the main principle of ILO is to promote gender equality between men and women based on decent work which refer to dignity, equality, fair income and safe working condition[36]. Furthermore, ILO play an important role specifically in promoting gender equality in work place as well as women worker’s rights as it stated clearly in its objective elements to promote the standard and rights at work, create greater opportunity for both men and women in term of income, ensure effective social protection and strengthening the legal framework institutions such as tripartism[37] and social dialogue[38]. Therefore, ILO progressively approach to the protection of gender equality in work place and women worker’s rights by establishing four specific conventions in regard with the protection of gender equality and women worker rights.

          2.4.1 The Equal Remuneration Convention

The Equal Remuneration convention under a code no.100 was adopted in 1951 and entered into force in 1953 by attempting to achieve equal pay for work of equal value base on legal principle of the equal remuneration. Meanwhile, the legal term of remuneration critically refer to wage or salary and other payable emolument in all forms by employer to employee[39].  Moreover, this convention is specifically contribute to the improvement of gender equality in workplace between men and women base on the arising issue concerning the mistreatment of wage between men and women.

Therefore, this convention play a crucial role in coordinating the state actions and practices for the effective promotion of gender equality as can be seen in article 2 (2) that “the principle may be applied by means of national laws or regulations, legally established or recognized machinery for wage determination, collective agreements between employers and workers, or a combination of these various means”[40]. Plus, the equal remuneration convention has significantly moving forward as a result of the further discussion and recommendation toward the topic of equal remuneration[41].Thus, this convention is particularly important on the protection and promotion on the specific issue regarding the equal pay for the work of equal value or we can technically called the equal remuneration.

          2.4.2. Discrimination (Employment and Occupation) Convention

The discrimination based on sex in workplace are commonly occur in all kinds of employment and the discrimination can be in a form of sexual harassment and unequal opportunity provided[42]. Evidentially, there is an establishment of Convention concerning Discrimination in Respect of Employment and Occupation that adopted in 1958 under an International Labour Organization within the code of convention no. 111. Therefore, the Convention concerning Discrimination in Respect of Employment and Occupation is conducted under a purpose of preventing any act of discrimination in workplace as it specially defined a term of discrimination in article one of the convention as “any distinction made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin that may affect the equality of opportunity or treatment in employment or occupation”[43]. Also, this convention has a follow up recommendation known as R111 in an attempt for the effective abolition and elimination of discrimination in workplace specifically for women workers[44]. Hence, this convention is contributable to the protection and promotion of gender equality in workplace as well as the women worker’s rights.

          2.4.3. Workers with Family Responsibilities Convention

This convention of Workers with Family Responsibilities Convention was adopted in 1981 and entered into force in 1983 as one of the main convention regarding gender equality in an International Labour Organization[45]. Moreover, this convention is important because the issue of unbalance between work and family are mainly contributed to the poverty and gender inequality. As can be seen that every workers have family and most of them are women who carried on the family responsibility and carer responsibility which referring on children, aged parents or relatives that would be a big challenge for women to actively involved in the job productivity and working management[46]. Furthermore, the convention stated clearly that states shall make a special support to workers with family responsibility inside a national policy to enable them to work without discrimination and without conflict between their employment and family responsibilities[47]. As a result, the adoption of Workers with Family Responsibilities Convention is very important to support workers with responsibility specifically women for their special needs and improve the working conditions as well.

          2.4.4. Maternity Protection Convention

Generally, having a family and baring a child is an avoidable outcome for all working women that would inconvenient to women for fulfil the job responsibility since it may take a huge amount of time for mother to give birth, to recover and to nurse the baby. On the other hand, this may adversely affect to employment in a risk of losing their job so considering the important of the maternity protection, there is an establishment of maternity protection convention. Moreover, the maternity protection convention adopted specifically to protect women worker who are absent from work for a parental leave or maternity leave by providing the health protection , non-discrimination, breastfeeding break and also a permission leave in case of illness[48]. Thus, the adoption of this convention contributed to the improvement of women health care and women special protection as well as the improvement of women worker’s right.

2.5 ASEAN Regional Organization on the protection and promotion of the gender equality and the right of women’s worker

The Association of Southeast Asia Nation’s women still trail behind men in workplace in term of treatment such as wages and other benefits[49]. Comparatively, ASEAN have a lower gender equality in workplace comparing with European Union and United State who have higher protection and promotion of gender equality specifically in term of workplace[50]. However, ASEAN also engaged in the protection of gender equality and women worker rights by establishing several organizations and conventions in regard with women and gender protection.

      2.5.1 ASEAN Committee on Women (ACW)

Originally, ASEAN Committee on Women (ACW) was established in 1976 in order to monitor, developing policy and implementing on Women related issue in ASEAN regional in order to ensure the effective protection on women rights[51]. Historically, ACW known as an oldest existing body on women issue which accomplished in the adoption of the Declaration on the Elimination of Violence against Women in the ASEAN and later on establish ASEAN regional plan of action on the elimination of violence against women (ASEAN RPA on EVAW) in 2014 in order to effectively eliminate any act of gender based violence against women that may result in physical violence or threat against women in ASEAN[52].

      2.5.2 ASEAN Commission on the Promotion and the Protection of the Rights of Women and Children (ACWC)

The ASEAN Commission on the Promotion and the Protection of the Rights of Women and Children (ACWC) was established in 2010 as an intergovernmental body and an integral part of the ASEAN organisational structure. Systematically, the commission comprises two members from each of ten ASEAN member states to discuss the issues critically and cooperate for the effective solutions[53]. In fact, ACWC was adopted in an aim to protect and to promote women and children rights as a mandate to look after a human right in ASEAN as well as encouraging the empowerment of the women participation in labour force for the economic purpose and the development purpose as it was addressed in the ACWC term of reference (TOR).[54] The commission represent the regional cooperation toward the protection of women and children’s rights and it also assist state members to fulfil its obligation in regard with the ACWC mandates.

      2.5.3 ASEAN Confederation of Women’s Organizations (ACWO)

ASEAN Confederation of Women’s Organizations (ACWO) was officially established on 1981 in Jakarta-Indonesia under the involvement from national council of women from each of the ten ASEAN member states[55]. Hence, the purpose of ACWO is to ensure the equality, to coordinate women practices in regard with human dignity, to carry out study and investigations on ASEAN women issue and also to effectively cooperate with the UN or other international institution in the respect of women right protection[56]. Thus, the ACWO meeting agenda that the organization are progressively discuss on all the matters related with women issue that[57]:

As can be seen that the above ACWO meeting agenda started from 2000 until 2016 has discussed on the matter of women involvement in economic, social and political in ASEAN which partially contribute to the promotion and protection of gender equality as well as women worker’s rights.

CHAPTER THREE: GENDER EQUALITY AND WOMEN WORKERS’S RIGHT IN ASEAN COUNTRIES

 3.1 The key issues of the gender inequality and women rights violation in workplace

Gender equality implementation are not smoothly conducted by states and individual practices so there are quite a number of gender inequality issues occurring in the history of gender equality development. Among those issue of gender inequality, there are three main gender inequality issues in which it should be discussed in this paper and those significant gender inequality issues are referring to gender wage gap and mistreatment, sexual harassment in workplace and maternity protection.

       3.1.1 Gender wage gap and mistreatment

ASEAN women were long suffering from the mistreatment in term of wages gap comparing with men in workplace by the employers mostly under an old traditional perception that women are mentally and physically weaker than men. To be precise, gender wage gap refer to the relatively different between men and women earning in the employment while doing the same job and it happened on the full employment workers and self-employed worker[58]. Specifically, most of ASEAN’s women workers in the a higher position claimed to have equal pay with men whereas women workers in the field of garment factory sector claimed to be suffer under an imbalance pay between men on the work of equal value in an amount of 17 to 25 percent of the pay rang between men and women as a result that women tend to be lag behind men in term of earning potential in the employment[59]. Moreover, women workers in some cases received mistreatment from their manager or employer by asking before signing the contract to stay single and never pregnant as long as the contract is valid and during their term of employment[60]. In addition, the gender wage gap is one issue of the gender discrimination and it remain a considerable challenge and obstacle in the gender equality and economic development in ASEAN society[61].

       3.1.2 Sexual harassment in workplace

According to ILO, sexual harassment in work place is defined as an unwelcome advance of any act of conduct including physical sexual assault or attempted rape, verbal including sexual comments and questions on a person and non-verbal including cornering, whistling and sexual suggestive gesture[62].  Sexual harassment is one of the issue that likely to happen in workplace to both men and women but mostly suffering by women from her male college, male manager or male employer. Thus, the conduct of sexual activities formally come from the use of force or an exchange suggestion from the employer to women workers for the working benefit such as pay or promotion which is violate to women rights and human rights. Likewise, there is an adverse effect from the sexual harassment to the women worker in workplace toward the opportunity and treatment between men and women as well as the quality of work since women may get shock, traumatized and sick from the sexual harassment and it would increase the absenteeism which will effect to the person’s ability to work[63].

       3.1.3 Maternity protection in workplace

Maternity protection in workplace is known as one of the main fundamental labor right which conducted in the treaties of the universal human rights including women’s right. In addition, maternity protection in workplace are specifically covering on maternity leave, cash benefits, medical care, protection from workplace risks, protection from discrimination and dismissals, and the right to breastfeeding on return to work[64]. Moreover, maternity protection in workplace is very crucial to enhance and strengthen the social protection for female workers because around 8 million women are suffering from the pregnancy and more than half a million of women die in a period of before, during and after giving birth[65].

Furthermore, the protection of maternity of female workers is to ensure the comfortable environment and acceptable working condition for women in which it does not harm to the health of the women and her child as well as to ensure her employment security since pregnant women are in a high risk of losing their job for an absenteeism due to child birth and maternity leave[66].

3.2 Case studies of gender equality and women worker rights situation in ASEAN

ASEAN countries are known as developing countries who comparatively has higher gender inequality and low protection of women worker’s rights as can be seen that women regionally share only 58.8 percent of labor force participant whereas men share about 81.8 percent[67]. To be more precise, we will conducted a further case studies on national labor law, workers situation and government response in several ASEAN countries focus on the CLMV countries such as Cambodia, Lao PDR, Myanmar and Vietnam.

3.2.1 Cambodia

Cambodia formally known as a Kingdom of Cambodia and joined ASEAN as a tenth member on April 30, 1999[68].  The country experienced almost a decade on a serious civil war of Khmer Rouge and was considered as one of the country with largest gender gap in education, economy and political empowerment in the East Asia and Pacific region[69]. However, Cambodia regain peace and reconstruct its national administration and follow up with the international relations by adopted, signed and ratified numerous of treaties and conventions. Specifically; Cambodia are actively improve and involved in regard with gender equality and the protection of women’s rights by ratifying the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in October, 1992 and its optional protocol[70] and it was recognized as a fundamental legal basic in article 31 (1) and 45 (1) of Cambodian constitution[71].

            3.2.1.1 National labor law

The development of Cambodia national labor law have been through five main stage of period started from the eras of 1953 to 1970, 1970 to 1975, 1979 to 1992, and 1993 to the present[72]. In the period of 1953 to 1970, Cambodia regain the control over its own administration from French and provide some related labor law whereas in the period of 1970 to 1975 was under Khmer Rouge and the national labor law were revised. Thus, Cambodia were conducted a new labor law from the period of 1979 to 1992 and numerous of law and regulations relating with labor law were created under a period of 1993 until present including the 1997 labor law, 2002 law on social security and other international conventions from the international labor organization (ILO)[73].

Moreover, the present 1997 labor law were consist of 396 articles and it stated clearly in article 12 related with non-discrimination that no employers shall consider on an account of sex, race, color, creed, religion, political opinion, birth, social origin, membership of workers union or involve in union activities[74]. Furthermore, Cambodia national labor law are proved to be in respect of gender equality since it expressed clearly in article 106 that:

“for work of equal conditions, professional skill and output, the wage shall be equal for all workers subject to this law, regardless of their origin, sex or age”[75].

Also, Cambodia national labor law encouraging the protection of women worker’s rights specifically on maternity rights clearly in article 182-187 that employers shall provide maternity leaves, breast feeding break, nursing room and a comfortable environment to women[76]. Even though there are plenty of laws and regulations regarding labor law were conducted but it does not ensure the possible outcome since the problems is the process of the implementation and the enforcement by government and employers.

            3.2.1.2 Workers situation in Cambodia

Gender balance in workplace between men and women in Cambodia remain a large gap in public administration related job such as civil services, decision making level and higher position. As can be seen that the percentage of female worker participate in civil service field are[77]:

However, working groups of industrial sector comparatively suffer a gender inequality and labor right abuse since there are several life story told by women workers in few industrial sectors especially in the Garment and Textile factory regarding their working situation and environment. The first story has been told by Srey Mao who is one of a garment factory worker that join a worker union and was discriminated by her manager to an isolate workplace in order to observe her actions and she was fired twice by her managers since she is brave enough to ask for a rights for herself and even for her college who is suffered the same issue of wages, long hours and discrimination[78].

Another story has been told by Leouk Thary who worked for a four month short term contracts in one garment factory in Cambodia; yet, she worked overtime until she got a serious nose bleeding and asking for a permission to go to hospital but was rejected and fired a next day after she asked for a sick leave[79]. Moreover, in an amount of more than 23 percent of women workers were fired because of their pregnancy in Siem Reap province of Cambodia in which the employers considered pregnant women as burden and useless[80]. All of the above statements from female workers in Cambodia showed the labor rights violation and ineffectiveness of the implementation of national and international labor law in Cambodia since most women were mistreatment and discriminated due to their pregnancy, sick leaves and member of unions.

            3.2.1.3 Government response

Historically, the implementation of the national and international labor law remain slow and ineffective since Cambodia is mainly lack of financial and human resources. However, the implementation of the law is practically improved recently proving by the increasing minimum wages to 140$ a month for all garment factory workers who make a long serious strike for wages increase[81]. Knowingly, Cambodia has a poor and corrupted labor inspector so the labor ministry established labor inspectorate team with a cooperation with ILO in 2014 to observe, to investigate, to inspect and to report on the factory inspectors and the factory working conditions in an aim for accelerating factory improvement[82]. Moreover, Cambodia established a 2014-2018 development plan on labor sector and training sector focusing on many field including the working safety of workers, health insurance, improvement freedom of working union and gender balancing[83]. As a result, even though Cambodia progress on the implementation and enforcement of labor law remaining slow and ineffective but the practice is comparatively better than the past.

3.2.2 Lao PDR

Lao People’s Democratic Republic is the only land lock country in ASEAN and became a member of ASEAN on 23 July 1997[84]. Noticeably, the country regain its political stable after the collapse of Soviet Union and regain its business and economic reform from 2005 yet the country known as one of the East Asia’s poorest country[85].  Regarding the gender equality, Lao respected the protection and promotion of gender equality by addressed clearly in its national constitution article 37 that both gender of citizen shall have equal rights in term of political, economic, cultural and social and family affairs[86]. Moreover, Lao acceded to the convention on the political rights of women in 1969[87] and committed itself to reduce violence against women and gender inequality in all forms by ratifying CEDAW in 1981 and establishing Lao Women Union (LWU) to promote and to raises greater awareness of women rights protection as well as gender equality to the rural citizen in the country[88].

            3.2.2.1 National Labor law

Lao labor law was established in 2006 but it was revised and replaced by the new labor law which was formally approve in 2013[89]. In addition, the new labor law conducted a new law on employments in Lao including domestic workers and foreign workers[90]. Furthermore, the new labor law consist of 181 articles whereas section VI (chapter 1) specifically conducted a new and revised law covering on employment of women[91]. Thus, Lao labor law is strongly encouraged the promotion and protection of gender equality and female workers rights as it was addressed in article 96 that:

“Female employees have the right to employment and professions in every sector that do not conflict with the law, including production, business and management, and may participate in training, labor skills improvement and providing expertise. Female employees shall receive a salary or wages equal to that of male employees, excepting some forms of work that has negative effects upon the reproductive health of women, which must be protected in every case.[92]”

This article strongly advised that female workers shall be equal all sectors of employment and shall receive the same salary as men except some prohibited job for pregnant women as addressed in article 97[93] of labor law. Plus, the law also supported maternity in article 98 and 99 stated about the maternity leave before and after giving birth as well as the maternity allowance for giving birth or miscarriage as determined by the Law on Social Security[94]. Thus, the law also prevent any kind of discrimination and mistreatment toward pregnant and married women workers by addressing in article 100 to prohibit any actions from employer like:

“1. Check for pregnancy before accepting the employee;

2. Create conditions that block or deny female employees who are married or pregnant;

3. Cancel the employment contract due to marriage or pregnancy[95]”.

Despite the fact that Lao new labor law cover the strongly protection toward gender equality and female worker rights but the implementation is still limited and asking for further improvement.

3.2.2.2 Workers situation in Lao

Lao PDR has one of the highest proportions of women in national parliaments of about 25 percent comparing with the neighboring country; however, the proportion of women in other decision making institutions within the Government is still low as of 5 percent in 2012[96]. In fact, Lao women generally occupy the lowest ladder of employment comparing to men in labor market and low wage employment as can be seen that women are actively in a kind of work of service, shop and market sale workers which is about 63 percent[97]. Moreover, the amount of women participant in unpaid workers for the family are higher than men about 65 percent of overall unpaid family work[98]. In contrast, men account for a better position in the majority of civil servants, professionals, technicians and other sectors.

However, over one third of overall formal and informal workers are under poverty with hazardous working environment and low paid especially women who significantly increasing the flow of numbers in the garment and textile industrial sector[99]. Thus, the living standard and working condition in most factory does not fit the expectation of workers as it was evidentially said by factory worker that the working hour regulation and labor law by the government is not properly implemented. It was reported by workers that overtime work is compulsory that everyone must attend or they will be fined or fired[100]. Moreover, the female workers got harsh behavior treatment from her supervisor and received no respect from their manager or supervisor since they always got criticizing, humiliating and scolding in public[101]. Plus, the factory workers reported to received inadequate drinking water, unclean and limited space to sleep in their dormitory[102]. Also, some of the factories do not have a proper recruitment criteria or proper contract as one of the garment factory said that they do not provide any information on the provided job such as obligation or regulation but work immediately right after the acceptance[103].

As a result, we can say that there is a considerable gap in regard of gender inequality in workplace and women’s rights violation such as force working overtime, improper employment contract and uncomfortable working and living condition.

            3.2.2.3 Government response

Beside the critical challenges, Lao government is striving to promote and to protect a better gender equality and women’s worker rights in workplace by including gender mainstreaming into the National Growth and Poverty Eradication Strategy (NGPES) and the 7th national socio-economic development plan which is result in increasing number of higher position women. Moreover, the government also committed to establish the National Commission for the Advancement of Women (NCAW) to draw up plan of actions to govern and observe gender equality practice in all areas include city, district and province[104]. Also, Lao Women’s Union (LWU) play an important role to brought the voice of women from rural and urban area together into a public administration and LWU is actively involve with the drafting and the implementation of law and policy related with human rights protection specifically in an attempt to strengthen the women’s rights[105]. However, the result of law practices and implementation is still limited and workers still suffer from gender inequality as well as labor rights abuse from their workplace.

3.2.3 Myanmar

The country of Republic of the Union of Myanmar was under a military junta and dictatorship for decade but the country moving slowly toward democracy regime after the opposition party win a landmark election in 2015[106]. Particularly, Myanmar joined ASEAN on the same date with Lao which is on July 1997[107]. Also, the country addressing its respect of gender equality under its constitution chapter VIII section 347 that the Union shall ensure an equal rights before the law and provide legal protection to all citizen equally[108]. In addition, section 348 of the Union constitution also respect the gender equality by claiming that the Union of Myanmar shall not discriminate any citizen base on sex[109]. Moreover, the country respect women rights by addressing in section 350 and 351 under Myanmar constitution that women shall receive the same salary as men with the same kind of work and mother as well as expectant women shall receive the same rights as prescribe by the law[110]. Thus, Myanmar try to express its commitment to protect gender equality and women rights by joining other international conventions and agreement such as CEDAW in 22 July 1997[111], Beijing Platform for action and ASEAN Committee on Women and the ASEAN Commission on Protection and Promotion of the Rights of Women and Children[112].

            3.2.3.1 National Labor law

The labor law of Myanmar were originally introduced by British during the period of colonial whereas most of them are still effective in the present time. In fact, Myanmar has plenty of labor law such as the Workman’s Compensation Act (1923) as amended in 2005, the labor organization law (2011), the Settlement of Labor Dispute Law and Rules (2012), the Social Security law (2012), the minimum wage law (2013), the Employment and Skill Development Law, the Law for Leave and Holiday Law 1951 (amended on July 2014), the Payment of Wages Law 2016, Factories Action 1951 (amended on 2016) and so on[113]. Specifically, those law are rooted with the protection of gender equality and women worker rights under social security law for maternity protection in which women worker are permitted to have 14 weeks of maternity leave, another 4 weeks of child care for twin babies, 8 week leave for adopting child under one year old whereas it permitted 15 day leave for parental leave[114]. Noticeably, the labor laws of Myanmar do not address much concern relating with the protection of gender balance equality and women rights.

            3.2.3.2 Workers situation in Myanmar

The participation of women in Myanmar society are still critically low comparing to men as can be seen that the involvement of women in labor market is about  63.1% compared to 85.1% for men[115]. There is a considerable wide gap of labor force between men and women because men are mostly enjoying a higher position whereas women are concentrate in the lower rank of job as can be seen that women only held 4.4 percent of the seats in the national parliament[116]. Moreover, the workers seem to be suffer from the gender wage gap in the country such as the gender wage gap in agriculture sector that women commonly paid around 1 dollars to 1.5 dollars a day whereas men can earned around 1.5 dollars to 3 dollars in the exact same type of work[117]. Also, there is a statistic provided on sex disaggregated data on employment by sector in 2010 in which shown the active economic and employment participant from both men and women[118]: