Thursday, November 06, 2014

Do Malaysian Union-Employer Collective Bargaining Agreement contain all these provisions respecting Freedom of Association?

The Freedom of Association Protocol supports the rights of women and men producing for global brands in Indonesia to join unions and bargain collectively for better working conditions making a change 

On June 7th 2011 an historic protocol on freedom of association was signed by Indonesian trade unions, employers and multinational sportswear brands including Adidas, Nike, Puma, Pentland, New Balance and Asics. The Freedom of Association protocol gives companies a practical set of guidelines on how to uphold and respect the rights of workers to join together to achieve decent pay and better working conditions. 

In Malaysia, does your own Collective Bargaining(CBA) agreement contains these rights of workers and unions? 


Freedom of Association Protocol, 7 June 2011 — English translation
 
1 Freedom of Association Protocol

Preamble

 
The Parties recognise and affirm a  joint  commitment to uphold the right to freedom of association as part of the body of universal human rights.

The Parties recognise the  existence  of issues and problems in the implementation of freedom of association for workers in Indonesia  which impact  upon workers’ other rights.

The Parties recognise and are aware that as a result of the violations and problems that arise in the implementation of freedom of association,  it is not uncommon for union representatives and members to experience victimisation.

The Parties are aware that production processes have continually developed and have become  part  of  global  production  chains  involving  workers  and  companies  in numerous different nations.

The  Parties  recognise  the  need  for  fair  rules  of  play  in  conducting  business, especially regarding implementation of the right to freedom of association. For that reason,  it  is  very  important  that  there  is  joint  u nderstanding  and  commitment between  workers  and  companies  regarding  the  implementation  of  freedom  of association within industrial  relations.

The  Parties  acknowledge  that  a  commitment  to  uphold  the  right  to  freedom  of association requires  transparency and  accountability  between workers, suppliers and brands, which will in the long run be beneficial to all parties.

The Parties agree to uphold the right to freedom  of association  in accordance with the operation of Indonesia n  laws in the region where the compa ny operates,  as well as international laws.

To this end, the Parties agree as follows:

CHAPTER I

GENERAL PROVISIONS

Article 1 

Definitions

a.  The  parties  are  those  who  sign  this  protocol.  They  comprise  of  Unions, Brands and Suppliers.
b.  Workers are all those who carry out waged work.
c.  Suppliers are companies that provide goods or services to the brands.
d.  Brands are legal  persons  or entities  that  are registered as  owning  trademark rights.
e.  Unions are organisations formed from, by and for workers, whether within or outside  of companies,  with  the aim to promote,  defend and protect  workers’ rights  and  interests  as  well  as  to  increase  the  welfare  of  workers  and  their families.
f.   This protocol is  an agreement entered into  by the Parties concerning freedom of association.
g.  A  collective  bargaining  agreement  (CBA)  is an agreement  made  between a union  or several unions  that are  registered with the authority responsible for workplace  relations,  with  the  employer,  or  several  employers  or  an employers’ association and is legally binding  for those who create it.
h.  Company regulations are regulations made in written form by industrialists in all companies  that  produce brand goods and/or services in the total chain of  production in Indonesia, which cover work requirements and procedures.
i.   A code of conduct  is a  guideline for conduct which is made by brands to be implemented in suppliers.

Article 2
Scope

(1)  This protocol binds the parties in the matter of upholding the right to  freedom of association, in all companies which produce  brand goods and/or  services throughout supply  chains  in Indonesia. For the initial phase this protocol will apply to Suppliers that:
(i)  Produce finished goods for the Brands, and
(ii)  Have a direct legal manufacturing contract with the Brands, and
(iii)  Have  workplace auditing conducted by the Brand’s compliance team, or
(iv)  Have a system whereby all auditing of  Codes of Conduct  or  supplier company workplace standards are conducted by a third party auditor.

(2) Suppliers  have an  obligation  to  disseminate  the contents of this  protocol and encourage its  implementation  amongst sub-contractors in accordance with the  strategy  put  in  place  by  the  National  Level  Supervision  and  Dispute Resolution Committee.

Article 3
Protocol Application

 
(1)  The application of this Protocol does not negate the rights and responsibilities of  the  parties  as  prescribed  by  legislation,  codes  of  conduct,  and  other international  standards.
 
(2)  Parties are obligated to  implement this  Protocol in suppliers  covered by the scope  set forth by  Article 2 above, including both suppliers that have CBAs as well as those that do not.
 
(3)  In the event that  the CBA  conditions are inferior  to those in the Protocol, the Protocol shall prevail.
 
(4)  In the event that  the CBA conditions are  superior to those in the Protocol, the CBA shall prevail.
 
(5)  Suppliers  (see  Article  2,  ―Scope‖)  are  obliged  to  produce  CBAs  which encompass the provisions of this Protocol.
 
(6)  In the  event  that the company does not yet have a CBA but has a  union  or union members, the Protocol shall apply.
 
(7)  Brands  must  supervise  and  ensure  the  implementation  of  the  provisions within this article.

CHAPTER II


IMPLEMENTING FREEDOM OF ASSOCIATION

Article 4

 
Suppliers (in accordance with the scope as defined under Article 2, section 1, subsections (a) (b) (c) and (d) above) are obliged to implement  freedom of association
including,  inter alia:
1.  Give workers freedom to form unions within the company premises.
 

2.  Acknowledge the existence of the various unions in the company without discrimination.
 

3.  Not interfere  in any way with unions carrying out their organisational activities provided that these activities do not contravene protocol determinations, the CBA or other applicable  laws and regulations.
 

4.  Release  union  representatives  or  members  from  their  work  duties  for  the purpose of undertaking union organisational activities, with continued provision of all rights to which the particular worker is  normally entitled.
 

5.  A release  from duties  for union representatives and/or members as referred to in section (4) above  is to be given:
a.  Throughout the period of organisational leadership, and
b.  In accordance with a duty officers’ schedule, and/or
c.  From time to time as appropriate to union activities.


6.  Release  from  duties  as  intended  in  section  5  (a)  and   (b)  above  is  to  be implemented as follows:
a.  For unions with 10 – 500 members, at least 1 worker is to be released from duties along with at least 1 additional duty officer;
b.For unions with 501 – 1,000 members, at least 1 worker is to be released from duties along with at least 2 additional duty officers;
c.  For unions with 1,001 – 2,500 members, at least 1 worker is to be released from duties along with at least  3 additional duty officers;
d.For unions with 2,501 – 10,000 members, at least 2 worker is to be released from duties along w ith at least 3 additional duty officers;
e.  For unions with more than 10,001 members, the number to be released from duty should be negotiated internally between the union and the company but should not be  less than the number stated in 6 (d).
 

7.  Release from duties as defined  in  Article 4 section 5 (c) is to be applied to union representatives  and/or  members  who  obtain  a  mandate  to  implement  union activities with co-ordination and agreement from management, and  taking into consideration that this does not interfere with production processes.

8.  If regulations concerning release from duties in suppliers surpass the  provisions in this Protocol, then those previous  regulations still apply.


9.  Union representatives  who are released  from duties as intended  in  section 5  (a) must be placed back with the position and job title that they  originally  held, or an  equivalent  work  position,  within  seven  days  of  the  completion  of  their leadership period.


10.  There  must  be  no  intimidation  in  any  form  whatsoever,  including  demotions, transfers, wage reductions, criminalisation, provision of a work load outside of the  worker’s  capabilities,  suspension  or  sacking  of  members  and/or  union organisers,  perpetrated  against  union  members  or  representatives  undertaking organisational activities throughout the period of their leadership.


Article 5
 
(1)  Suppliers  shall  facilitate  the  implementation  of  union  activities  within  the company in such ways as:

a.  Unions may  make use of company meeting space if requested at least 3 days in advance provided that such a meeting space is available. For urgent needs, companies are obliged to provide a meeting room as long as such a room is available (and not in current use).
 

b.  Unions may  make use of communication facilities such as telephones, fax and internet within the company as long as such facilities are  available and in accordance with regulations and procedures as applies to other users within the company.
 

c.  Unions may  make use of company vehicles if requested 3 days in advance provided that such a vehicle is available. For urgent needs, the company can loan out a vehicle if such a vehicle is available on that day and not in current use.
 

d.  Unions may display their organisation’s flag at the same level with the national flag, the company flag and the workplace health and safety flag. 
 

e.  Unions may display a union signboard around the location of the union secretariat or in another place provided for such purposes within the company’s premises, such as beside the gates or an alternative strategic  and appropriate position where it is easily visible to others.
 

f.   Unions shall be given freedom to receive visitors from union organisations outside the company who are guests of the union in accordance with the regulations in effect within the factory.
 

g.  The company must assist in deducting union fees from the wages of union members every month and within a period of time jointly agreed upon or at the latest within 10 work days the amount must be given to the relevant union leader depending on the administration processes within the company.
 

h.  Wage deductions as intended in  subsection (g) are to be implemented upon receipt of a  letter of authorisation from the union  member. The letter of authorisation does not need to be officially stamped.
 
(2) a.  Suppliers are obliged to provide a space or room that is appropriate, hygienic and strategic within the company premises to be used as a union secretariat together with furnishings to support the union’s activities, including two sets of desks and desk chairs, filing cabinets or cupboards and a table and chairs  for guests.
 
b.  In the case that the company is limited in its ability to  provide  for the above facilities and fittings, then the company is obligated to  make a refurbishment plan with the union’s agreement within a timeframe of 6 months.

(3) Suppliers have the obligation to support and facilitate union  activities during working hours including:


a.  Routine scheduled meetings, such as meetings between union representatives, as well as between union representatives and members.


b.  Ad hoc meetings as may be required, both between union representatives and between union representatives and members, providing three days’ prior notice to the company.


c.  Union educational activities, both scheduled and unscheduled, providing three days’ prior notice to the company.

(4) Suppliers have the obligation to support and facilitate union  activities outside the company premises, including:


a.  Attendance at both routine and occasional discussions and  meetings, with organisational officials, both at company level or affiliates, with three days’ prior notice.


b.  Attendance at seminars or education from union organisations, affiliates, other connected organisations, and/or government agencies.


Article 6


(1)  Companies and unions  have the obligation to produce a Collective Bargaining Agreement (CBA) within a time frame of not more than six months after the formation of a union in accordance with applicable legal requirements.


(2)  In negotiating a CBA, Unions and Companies shall  adhere to the following:

a.  Companies shall  not reject an invitation from unions to negotiate to produce or renew an agreement.
b.Companies  shall  not  undertake  any  form  of  intimidation  against  the  union delegates in the CBA negotiating team.
c.  During CBA  negotiations, union delegates  in the negotiation team  are to be relieved  of  their  daily  work  load  in  accordance  with  a  jointly  agreed  upon schedule.
d.During CBA  negotiations, union delegates  in the negotiating team  are to be given  freedom  to  carry  out  surveys  so  as  to  gather  data  to  support  the negotiations.
e.  The  negotiating  team  must  be  given  access  to  information  concerning company conditions so as to obtain supportive data, as far as that access  does not breach  confidentiality  provisions as provided by  law or by contract with a third party.

CHAPTER III
FREEDOM OF INFORMATION
 
Article 7
(1) Suppliers are forbidden to impede in any way the distribution of information by unions.

(2) The distribution of  information mentioned in section (1)  is to be  be carried out, inter alia, as follows:


a.  Unions  can  freely  attach  information  to  public  notice  boards.  Prior  permission from the company is not required but copies of the information may  be provided.


b.   Information distributed must not contravene applicable regulations or laws.

(3)a.  Suppliers have an obligation to provide announcement boards specifically for union information, with a minimum of one board situated in a strategic public space, such as the canteen, the employee rest area or another location used by the company to place announcements or information for employees. If there is more than one union, then arrangements should be made between those unions.


b.  If there is a greater need for announcement boards (there is a large number of employees and / or the location is large), then the union is permitted to use existing information board facilities that  are specifically for employees  following the stipulations contained in Section 2(a) and 2(b) above and with agreement between other unions (where there is more than one union).

CHAPTER IV
SUPERVISION, DISPUTE RESOLUTION AND SANCTIONS

Article 8

(1)  To  supervise  implementation  of  this  FOA  Protocol,  the  parties  are  obligated  to form  an  FOA  Protocol  Supervision  and  Dispute  Settlement  Committee  no  later than 90 working days after the signing of this Protocol. 


(2)  FOA  Protocol  Supervision  and  Dispute  Settlement  Committees  will  be established at company and national levels.


(3)  The  FOA  Protocol  Supervision  and  Dispute  Settlement  Committees  at  the company  level  will  have  members  from  company  level  unions  and  company management.


(4)  The FOA Protocol Supervision and Dispute Settlement Committee at the  national level  will  have  members  from  national  level  unions,  Non-Government Organisations, Brands and Suppliers.


(5)  The Standard Operational Procedures of the FOA Protocol Supervision and Dispute Settlement Committee will be determined within 90 working days after the formation of the Committee as intended in section (1).

Article 9
Sanctions

 
(1)  Violations of the determinations in this protocol constitute actions that infringe freedom of association and redress may be sought  in accordance with legislation, Codes of Conduct and other international regulations .


(2)  Efforts should be made to resolve violations via consensus building deliberations. If these deliberations do not reach a consensus then the dispute should be resolved with reference to legal regulations. If a dispute concerning an  infringement cannot be resolved via such negotiations, then the matter should be referred to a court of law.

CHAPTER V
ADDITIONAL REGULATIONS, CONCLUSION AND AMENDMENTS

Article 10

Language
1.The language used in this Protocol is Bahasa Indonesia.
2. In  the  case  that  a  problem  arises  in  the  interpretation  of  a  Protocol  that  has been translated into another language, then the interpretation should refer to the  Protocol in Bahasa Indonesia.

Article 11
Amendments of Regulations

 
In the instance where freedom of association conditions  in a company  are better than the  provisions  set out in this protocol, then those pre-existing  provisions  continue to operate.

Article 12
Concluding Determinations

 
1.  This Protocol shall be effective from the signing thereof by the Parties.
2.  This Protocol is open for signature by other parties that are prepared to adopt the Protocol provisions.
3.  The procedure to become  a signatory as intended in  section (2) is by making a written statement which  is presented to the  National  Level  FOA Protocol Supervision and Dispute Settlement Committee.
4.   Other  matters  which  are  yet  to  be  agreed  upon  in  the  first  stage  of  negotiations by the FOA  Committee  will be revisited and renegotiated  in the second stage of negotiations 12 months after the FOA Protocol takes effect.

Codified in Jakarta, 7 July 2011.

SUPPLEMENTARY EXPLANATIONS FREEDOM OF ASSOCIATION PROTOCOL

Article 1 (a)
 
With consideration to the large number of suppliers, a letter of acknowledgement will be created as an appendix for signature by the suppliers who adopt this Protocol.

Article 3 (2)

[In response to question: only a small proportion of suppliers have been directly involved in protocol negotiations, so how can  it be effectively socialised?]


At initial stages a limited number of supplier companies were involved in the negation and signing of this protocol. For this reason parties who are signatories of this Protocol are tasked with its socialis ation and to invite other suppliers, brands and unions to sign the protocol.


Where a union who has not signed the Protocol considers that the regulations in their collective bargaining agreement are more favourable than the regulations in this Protocol, the union can choose between their collective bargaining agreement and the Protocol.


Additionally, where a union has not signed the Protocol, suppliers and brands who have signed will remain bound by all the protocol regulations which are nonreciprocal in nature. In fact, many supplier factories producing brand goods do not yet have workplace unions. Provided that suppliers have signed the protocol with the brands, its implementation should not be effected by the absence of a union. For instance, brands are still obliged to conduct monitoring on the implementation of the Protocol.Where the union hasn’t signed the Protocol its regulations still apply as long as they relate to the obligations of brands or suppliers. This includes  workplaces where only one party has signed, in which case that the signatory becomes responsible for socialising the Protocol that amongst other unions, suppliers or brands.The parties have had the experience that the establishment of unions is frequently impeded, with many union leaders or members experiencing criminalisation. These experiences have provided the rationale  for this particular provision.


This provision is intended to ensure that brands take responsibility in protecting freedom of association.

Article 3 (3)
 
In the case that the union of a company prefers the provisions in the collective bargaining agreement, than the union can choose between the protocol and the collective bargaining agreement provisions.

Art i cle 3 (4)

The Supervision and Dispute Settlement Committee will determine whether a provi si on  in the Protocol   is superi or or inferior to a provisi on  in a CBA.

Article 3 (5)
In the case where a uni on who has  not si gned the protocol  considers that the provi si ons regulated under the CBA are superi or to those in the Protocol , then the uni on can choose which determinat i ons will   be governed  by the CBA and the Protocol .

Article 4 (5) (b)

Unions are obliged to hand over the duty officers’ schedule (which  is  based on a rotation system) to supplier company management pri or to implementation, so that the supplier company management can  inform the  relevant section.

Article 4 (5) (c)

Refer to the implementation of Article 5 subsections (3) (b) and (c) as well as subsections (4) (a) and (b).

Article 4 (6)

The union representative released is decided upon by the relevant trade union. Duty officers are union representatives who takes turns at working in the secretariat to carry out union activities.

Article 4 (7)

Provided this does not interfere with production processes in terms of avoiding work position vacancies.

Article 4 (10)

Outside the context of carrying out organisational  activities as provided for under freedom of association, union representatives may still be subject to disciplinary actions if they violate company regulations or laws.

The definition of criminalisation  in this provision is in reference to the situation where reports are made to legal authorities against union representatives or members on the basis of their union activities.

Article 5 (1) (a)

Routine union meeting schedules are to be submitted to suppliers.

Article 5 (1) (c)

Suppliers are obliged to loan out a vehicle if there is one provided and it is not in current use.

Article 5 (1) (e)
This provision is based on the principle of fairness.

Article 5 (3)
This provision applies to the improvements of secretariat facilities which fall under the responsibility of suppliers.

Article 5(4)
To support and facilitate refers to giving permission or dispensations and the provision of facilities including a secretariat, the loan of vehicles and so on, as provided for within this Protocol.

Article 6 (1)
The creation of a collective bargaining agreement does not depend upon the number of unions as per the 115/PUU-VII/2009 Constitutional Court decision.

Article 7 (1)
Information as referred to in this provision  must not conflict with applicable legal regulations.

Article 8 (1)
The committee only handle cases which are in accordance with the criteria in the Supervision and Dispute Settlement Committee Standard Operational Procedures which will be later discussed and reconciled with the implementation of this protocol.

Article 8 (2)
Brands are not included in the company level Supervision and Dispute Settlement Committees.

Article 8 (5)
The scope and criteria for disputes to be resolved by the Supervision and Dispute Settlement Committee will be clarified in the Supervision and Dispute Settlement Committee Standard Operational Procedures which will which will be later discussed and reconciled with the implementation of this protocol.

Article 9 (2)
The consensus building deliberations referred to in this provision are bipartite negotiations at the supplier level.

Letter of Acknowledgement

Herewith the parties sign the Freedom of Association Protocol Jakarta, June 7th 2011.
William Anderson
Head of Asia Pacific Social & Environmental Affairs - adidas Group
Elly Rosita Silaban
President of GARTEKS KSBSI
Amanda Tucker
Sustainable Manufacturing Performance Director - Nike Inc.
Rudi HB. Daman
Chair Person of GSBI
Dr. Reiner Hengstmann
Global Director, SAFE Supply Chain –PUMA
Lilis Mahmudah
Head of Program Division on behalf of Chairman of SPN
Lilian Kuo
Vice President, PT Nikomas Gemilang 

Rachman
General Secretary of KASBI

Sebastianus Yeo
HR Director, PT Panarub Industry

Franky Tan
Secretary on behalf of the Chairman of FSP TSK

Steven Hung
Deputy GM, PT Tuntex Garment Indonesia

Rendradi
HR Director, PT Adis Dimension Footwear

1 comment:

hendratno kurniawan said...

http://charleshector.blogspot.no/2014/11/do-malaysian-union-employer-collective.html