Tearing Apart at the Seams: How Widespread Use of Fixed-Duration Contracts Threatens ...

90 Pages·2011·0.59 MB·English

Allard K. Lowenstein International
Human Rights Clinic
Yale Law School
The Allard K. Lowenstein International Human
Rights Clinic is a Yale Law School clinic that
has three main goals: to provide students with
the opportunity to gain practical experience that
reflects the range of activities in which lawyers
engage to promote respect for human rights;
to help students build the basic knowledge and
skills necessary to be effective human rights
lawyers and advocates; and to contribute to
current efforts to protect human rights through
valuable, high-quality assistance to appropriate
organizations and individual clients. Recent
work has included involvement in human rights
litigation in U.S. courts, preparing amicus briefs
on international and comparative law for U.S.,
foreign, and international forums, advocacy Tearing Apart at the Seams
before international and regional human rights
bodies, and investigating and drafting reports on
human rights situations.
How Widespread Use of Fixed-Duration Contracts
Threatens Cambodian Workers and
the Cambodian Garment Industry
Cover Photographs (from top) file photo, Clark Gard
Allard K. Lowenstein International Human Rights Clinic
Yale Law School
April 2011
Tearing Apart at the Seams:
How Widespread Use of Fixed-Duration
Contracts Threatens Cambodian Workers
and the Cambodian Garment Industry
Allard K. Lowenstein International Human Rights Clinic
Yale Law School
April 2011
© 2011 Allard K. Lowenstein International Human Rights Clinic, Yale Law School
Table of Contents
Acknowledgements i
List of Acronyms iii
I. Summary 1
II. Recommendations 3
III. How Changes in the Garment Industry Have Affected
Cambodian Workers 7
A. The Modern Cambodian Garment Industry 7
B. Cambodia’s Emergence as a Leader in Workers’ Rights 8
C. Key Institutional Actors in the Garment Industry 10
1. Ministry of Labor and Vocational Training 10
2. The Arbitration Council 10
3. International Labour Organization Better Factories
Cambodia Program 11
4. Garment Manufacturers Association in Cambodia 12
5. International Buyers 12
6. Labor Unions 13
7. Government-Private Sector Forum Working Group
on Industrial Relations 14
D. The Turn Toward FDCs Undermines the Protection
of Workers 14
IV. Does the Industry’s Use of FDCs Conflict with Cambodian
or International Law? 17
A. The Widespread Use of FDCs Conflicts with Cambodian
Labor Law 17
1. Cambodian Law Applicable to the Use of FDCs 17
2. Equal Rights Unequally Enjoyed 18
3. Differences in the Ease and Cost of Terminating
the Employment Relationship 19
4. Differences in Entitlements Under Cambodian
Labor Law 23
B. The Widespread Use of FDCs Conflicts with
International Law 26
1. Adequate Safeguards Against Abusive Use of FDCs 27
2. The Right to Freedom of Association 28
V. Debating Opposing Claims About the Effects of FDCs 31
A. Employers and Government Officials Argue for the
Increased Use of FDCs 31
1. Increased Use of FDCs Is Needed to Keep the
Garment Industry Competitive 31
2. Workers Prefer FDCs to UDCs 33
3. The Khmer Version of the Labor Law Supports
Increased Use of FDCs 36
B. Labor Unions and NGOs Argue Against the Increased
Use of FDCs 37
1. Existing Labor Law Provides Enough Flexibility for the
Garment Industry to Remain Competitive 37
2. Workers Do Not Actually Prefer FDCs over UDCs 39
3. Existing Labor Law Clearly Prohibits the Indefinite
Renewal of FDCs 42
C. Problems with FDC Use That Affect All Sides 43
1. FDCs Might Undermine Industrial Relations 43
2. FDCs Make Cambodia Less Competitive 46
3. FDCs Hurt Cambodia’s Reputation 48
D. Regulation of FDCs—The Situation in Cambodia and
Competitor Countries 50
1. Limiting FDCs to Temporary Work 50
2. Limiting the Duration and Renewal of FDCs 51
3. Conversion of FDCs into UDCs 51
4. Calculating Duration of Service 52
5. Penalty for Failure to Convert FDCs to UDCs 53
E. Conclusions About the Effects of FDCs 53
VI. Workers’ Accounts—How FDCs Affect Their Lives 55
A. Employers Do Not Give Workers a Real Choice 55
B. Employers Use FDCs as a Union-Busting Tool 58
1. FDCs Increase Workers’ Fear of Non-renewal 58
2. FDCs Hinder Union Formation 59
3. FDCs Make Union Leaders Vulnerable to Retaliation 60
4. FDCs Make Anti-Union Discrimination Harder to Prove 61
C. Workers Need Labor Unions to Protect Their Rights 62
1. Workers Rely on Unions to Learn About Their Rights 62
2. Workers Rely on Unions to Bring Complaints 63
3. Workers Rely on Unions to Negotiate Collective
Bargaining Agreements 65
D. FDCs Make Workers More Vulnerable to Exploitation 66
E. Employers Are Using FDCs to Deny Workers Benefits 69
1. Denial of Maternity Leave 71
2. Denial of Sick Leave 72
3. Denial of Special Leave and Annual Leave 73
4. Denial of Seniority Bonuses 74
5. Denial of Attendance Bonuses 75
6. Denial of Protections Specific to FDCs 75
VII. Conclusion 77

Acknowledgements
This report was drafted by Isabel Bussarakum, Clark Gard, and
Arthur Plews, student members of the Allard K. Lowenstein International
Human Rights Clinic at Yale Law School. The project was supervised by
Professor Michael Wishnie and Professor James Silk. DeLisa Lay, also a stu-
dent in the Lowenstein Clinic, provided research and logistical support.
The findings in this report are based on research conducted in Cambodia
during March 2009, including interviews with government officials,
garment manufacturers, factory management, labor unions, international
organizations, NGOs, and various labor experts. It is also based on
individual interviews with 45 factory workers, who had work experience
spanning 15 different garment factories. Some interviewees consented to the
use of their names and are cited in the report by name. However, to protect
the anonymity and safety of other interviewees, the report refers to them only
by generic titles.
The authors would like to thank Yale Law School for its generosity
in funding this project and for its longstanding commitment to the Allard K.
Lowenstein International Human Rights Clinic.
This report would not have been possible without the openness and
hospitality of the Cambodian government, in particular Seng Sakda of the
Ministry of Labor and Vocational Training.
The authors would like to credit the Worker Rights Consortium
(“WRC”) for suggesting that a report on short-term contracts in the Cam-
bodian garment industry would be useful to the Cambodian government,
garment manufacturers, international buyers, and workers. The Clinic is
grateful to the WRC for the guidance and assistance it has provided the
Clinic during this project.
Finally, the authors thank the following organizations and individu-
als for sharing their time and wisdom with the Clinic team: Kaing Monika
and the Garment Manufacturers Association in Cambodia (“GMAC”); Albert
Tan, Regional Vice-President of Ocean Sky; Chu Man Pun, General Manager,
and Ravind Takan, Quality Assurance & Compliance Officer, of Grandtex;
Thoeun Kong, Compliance Officer of SL Cambodia; Lean Chinda; the Arbi-
tration Council Foundation; the ILO Better Factories Cambodia program; the
ILO Dispute Resolution Project; the ILO Worker Education Project; the U.S.
Embassy in Cambodia; the Community Legal Education Center (“CLEC”);
Voice of Workers; Womyn’s Agenda for Change; the American Center for
International Labor Solidarity; the Cambodian Labour Union Federation
i
(“CLUF”); the Coalition of Cambodian Apparel Workers’ Democratic Union
(“C.CAWDU”); the Cambodian Federation of Independent Trade Unions
(“CFITU”); the Free Trade Union of Workers of the Kingdom of Cambodia
(“FTUWKC”); the Cambodian Confederation of Trade Unions (“CCTU”);
the Cambodian National Labour Confederation (“CNC”); the Cambodian
National Federation of Building and Wood Workers (“CNFBW”); the Cam-
bodian Industry Food Union Federation (“CIFUF”); and the Cambodian
Tourism and Service Workers Federation (“CTSWF”).
While the Clinic is grateful to all of the individuals and organizations
listed above, the conclusions drawn in this report and the recommendations
this report makes represent the independent analysis of the Clinic, based
solely on its own research and fieldwork in Cambodia.
ii
List of Acronyms
AC Arbitration Council
AFL-CIO American Federation of Labor and Congress of
Industrial Organizations
BSR Business for Social Responsibility
CBA Collective Bargaining Agreement
C.CAWDU Coalition of Cambodian Apparel Workers
Democratic Union
CCTU Cambodian Confederation of Trade Unions
CFITU Cambodian Federation of Independent
Trade Unions
CLEC Community Legal Education Center
CLUF Cambodian Labour Union Federation
CNC Cambodian National Labour Confederation
CNFBW Cambodian National Federation of Building
and Wood Workers
CTSWF Cambodian Tourism and Service Workers
Federation
FDC Fixed-Duration Contract
FTUWKC Free Trade Union of the Workers of the Kingdom
of Cambodia
GIPC Garment Industry Productivity Center
GMAC Garment Manufacturers Association in Cambodia
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social
and Cultural Rights
ILO International Labour Organization
ILO-BFC International Labour Organization Better
Factories Program
ILO-WEP International Labour Organization Worker
Education Project
ILO-DRP International Labour Organization Dispute
Resolution Project
ITGLWF International Textile, Garment & Leather
Worker Federation
MRS Most Representative Status
UDC Undetermined-Duration Contract
UDHR Universal Declaration of Human Rights
WAC Womyn’s Agenda for Change
iii