2018 02 April

ASEAN Employment Legal Update 2018 #Q1

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Regional Legal Update on Labor and Employment Law Issues

DFDL’s Employment Practice Group is dedicated to advising clients on employment and labor issues and preparing human resources documentation compliant with local law.  Our employment team’s in-depth knowledge of the law and practices in the countries in which we operate allows us to provide specialized, practical advice on issues that arise in employment relationships. Our Head of Regional Employment Practice Group is Danyel Thomson, who now based in Bangkok, has been with DFDL for ten years and has worked in our Laos and Myanmar offices. This legal update serves to advise you on important legislation and employment issues in the region.

Given the worldwide celebration of International Women’s Day in March, we focused this special edition on legislative protections and entitlements for women in workplaces throughout Southeast Asia.  A number of provisions in these legal frameworks aim to protect and promote the rights of women.  However, these provisions are limited to what may be viewed as standard maternity and family leave benefits and general protections against discrimination, rather than specifically targeted pay equity or sexual harassment legislation that is present in other legal systems. 

LEGISLATIVE PROVISIONS ON WOMEN IN THE WORKPLACE

Cambodia

The Labor Law in Cambodia sets out provisions prohibiting discrimination against, and providing benefits to female workers. Firstly, Article 12 of the Labor Law prohibits an employer from considering race, color, sex, creed, religion, political opinion, birth, social origin, membership of workers’ union or the exercise of union activities, in making a decision on the following employment activities: hiring, defining and assigning of work, vocational training, advancement, promotion, remuneration, granting of social benefits, discipline or termination of employment contract. The law provides a qualification that distinctions, rejections, or acceptances based on qualifications required for a specific job shall not be considered as discrimination. Further, Article 106 of the Labor Law provides 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.

Regarding benefits, female employees are entitled to maternity leave of at least 90 days during which they are entitled to half of their regular wages, plus certain other benefits, provided that they have completed at least one year of uninterrupted service with the enterprise. Employers are prohibited from terminating female employees during their maternity leave, or at the date when the end of the notice period would fall during their maternity leave. For one year from the date of child delivery, mothers who breastfeed their children are entitled to one hour per day during working hours to breastfeed their children.  This hour may be divided into two periods of 30 minutes each, one during the morning shift and the other during the afternoon shift. The exact time of breastfeeding is to be agreed between the employee and the employer. If there is no agreement, the periods will be at the midpoint of each work shift. Employers cannot deduct breaks for breastfeeding from other normal breaks provided for in the Labor Law, internal work rules of the enterprise or a collective bargaining agreement.

Under Notification 014/17, female employees registered with the National Social Security Fund (NSSF) and meeting requirements under the health care scheme are also entitled to a benefit under this scheme. One benefit is a daily allowance of 70% of the daily average wage during the 90-day maternity leave.

Lao PDR

The Lao Labor Law of 2013 provides numerous legislative provisions which are specifically aimed at protecting women in the workplace.

For example, the Labor Law prohibits employers from engaging women who are pregnant or caring for children less than one year of age to undertake the following tasks:

  1. work in a shop with an elevation of more than two meters;
  2. work that involves lifting, carrying, or bearing loads exceeding ten kilograms;
  3. night-shift work;
  4. overtime or work on the official rest days or holidays; 
  5. work which involves standing for longer than two consecutive hours; and
  6. work which is considered to be “hazardous”.

If the woman was previously carrying out such tasks before her pregnancy/motherhood, the employer must temporarily transfer that employee to more appropriate work at the same level of salary or wages.

Furthermore, Article 100 of the Labor Law prohibits employers from taking any of the following actions against female workers:

  1. requesting female workers to take pregnancy tests prior to employment;
  2. creating working conditions which preclude female workers who are married or pregnant  from effectively performing work-related duties; or
  3. terminating an employment contract due to marriage or pregnancy.

In addition, the Labor Law provides a paid maternity leave benefit to female employees. Female employees are entitled to 105 days of paid maternity leave, at least 42 days of which must be taken after giving birth. During such leave, the employer must provide the employee with full payment of her normal salary. For a period of one year after giving birth, the female employee is entitled to a rest period of one hour per day in addition to a lunch break to feed and take care of her child or take the child for vaccinations. The Law on Social Security (No. 34/NA, 26 July 2013) provides that female workers who are insured by the Social Security Organization are entitled to certain allowances for births, miscarriages and still-births, to be paid by the Social Security Organization.

More generally, Article 96 provides for gender equality in the workplace and states that female workers have the right to employment and to seek professions in all business, production, and management sectors, including the right to receive training as well as education for the improvement of labor skills and expertise. Female workers also have the right to receive a salary or wage equal to that of their male counterparts in every sector with a notable exception for work which requires the protection of women due to the potential of negatively impacting the reproductive health of women. Article 15 of the Law on Development and Protection of Women and Children (No. 08/NA, 22 October 2004) also provides the equal pay principle.

Myanmar

Myanmar provisions aimed at protecting women in the workplace are found throughout various pieces of legislation. Per the Constitution of Myanmar, every citizen has the right to enjoy equality, liberty and justice irrespective of their gender, social status, education, beliefs and ethnic group. Certain language in the Constitution, however, indicates that certain jobs are only for men, and portrays women as mothers who must be protected. This view is reflected in some legislation which remains effective; for example, the Factories Act of 1951 prohibits employment of women generally in various types of dangerous work.  Regarding pregnant workers, there are no statutory prohibitions for women against doing certain work when they are pregnant; however, in a factory which has more than 100 female workers who have young children, the business owner must arrange a nursery for children under five years old with the assistance of the Ministry of Social Welfare, Relief and Resettlement.  In a factory with less than this threshold number of employees, the business owner must appropriately arrange a childcare room for their children under five years old.

Per the Minimum Wages Law of 2013, women must be entitled to the same rights and salaries as those received by men in respect of similar work.  In addition, the Leave and Holidays Law of 1951 provides a paid maternity leave benefit to female employees.  Maternity leave is 14 weeks, at least 8 weeks of which must be taken after giving birth. During such leave, the employer must provide the employee with full payment of her normal salary, subject to the employee having completed 6 months of continuous service; otherwise, the leave is unpaid. The Social Security Law provides that pregnant employees are entitled to certain benefits additional to the Leave and Holidays Act.  A male employee whose partner has given birth is entitled to 15 days paternity leave at 70 percent of his average salary for the previous year. To qualify, both he and his wife must be an insured person, he must have been employed for at least one year and paid contributions for at least 6 months.

As for laws protecting women against discrimination and violence, Myanmar acceded to the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1997.  A law on the Protection and Prevention of Violence Against Women has been in draft form since 2013 but has not yet been finalized and enacted.  This draft bill stipulates the need to protect women from all forms of violence, including workplace harassment.

Thailand

Legislative provisions specifically aimed at protecting women in the workplace in Thailand can be found in the Labor Protection Act of 2017 (LPA) along with other regulations such as the Social Security Act of 1990 (SSA). The LPA’s special regulations on the employment of women include a prohibition on employers from engaging women to perform the following:

  1. Mining work or construction work which must be conducted underground, under water, in a cave, in a tunnel or a shaft in a mountain, unless the characteristics of the work do not pose a hazard to the health or the body of the female employee;
  2. Work which must be performed on a scaffold more than ten meters from the ground or more;
  3. Production or transportation of explosives or flammable materials; or
  4. Other work as prescribed in the Ministerial Regulations.

A female employee who is pregnant may not, according to Section 39 of the LPA, work between 22.00 hours and 6.00 hours, nor work overtime, or on a holiday or perform any of the following:

  1. work involving vibrating machinery or engines;
  2. operating a vehicle;
  3. lifting loads, carrying loads on the back, carrying loads or items on the shoulders, carrying poles across the shoulders, carrying items on one’s head, the pulling or pushing of loads in excess of fifteen kilograms;
  4. work on a boat; or
  5. any other work as prescribed in the Ministerial Regulations.

In addition, the LPA provides maternity leave of no more than 90 days per pregnancy (inclusive of holidays). During such leave the employer must pay the employee her normal working salary or wages for 45 days; the remaining 45 days are unpaid leave days.  Thai law does not provide an additional breastfeeding break for female working mothers.  The LPA does, however, provide the opportunity for a female employee to temporarily change working duties before or after delivery with a certificate from a first-class physician certifying that she is unable to continue in her previous duties.

An employer may not terminate the employment of a female employee on the grounds of her pregnancy, and failure to comply with this provision may result in the imposition of a prison term, a fine, or both.

In addition to the LPA provisions protecting women in the workplace, the SSA also contains measures on national fund and maternity benefits for female members.

Vietnam

The Labor Code of 2013 is the primary piece of legislation governing the rights, protections, and benefits for women in the workplace. The Labor Code, Chapter 10 governs women workers’ rights and includes provisions on gender equality during recruitment, training and the period of employment, specific protections for pregnant workers, maternity leave benefits, job protection upon return to work from maternity leave, and family leave benefits.

Under the Social Insurance Law of 2014, women are entitled to a total of six months (pre-natal and post-natal) maternity leave. A female employee on maternity leave who has contributed to the Social Insurance Fund is eligible for a monthly maternity allowance equal to 100% of her average salary based on the preceding six months before the maternity leave begins. 

The Vietnamese Government has also enacted Decree No. 85/2015/ND-CP Concerning Female Employees, dated 1 October 2015 (Decree 85).  According to this decree, grassroots trade unions (i.e. enterprise specific trade unions) and district and provincial level trade unions must consult directly with female employees to seek their opinion and input before making decisions on work-related issues that apply specifically to women. Where no trade union has been established in an enterprise, an employer must obtain the opinion and consent of more than half of its female workforce prior to deciding on matters directly affecting their rights and benefits.  

Decree 85 further states that, as a matter of State policy, women are encouraged to pursue paid employment, and employers are encouraged to make part-time work and flexible working arrangements available to women. In order to assist women in the performance of their family responsibilities, the State also has the goal of establishing nurseries and kindergartens at government workplaces, although State-funded childcare is currently not available or planned.

Vietnam’s Law on Gender Equality of 2006 requires men and women to be treated equally in the workplace.  A draft labor code is currently under review by the Ministry of Labor, Invalids, and Social Affairs after being presented to Vietnam’s National Assembly in 2017. The draft contemplates a number of changes to the articles of the Labor Code concerning women in the workplace.  Notably, the draft prohibits gender discrimination in job selection, working conditions, and career progress.


If you seek further information on employment and labor issues in your jurisdiction please contact the Head of our Regional Employment Practice Group, Danyel Thomson at Danyel.Thomson@dfdl.com.