Monday, July 15, 2013

WH4C at the UN High Level Dialogue on Migration and Development - 15 July 2013

APWLD interventions at the informal interactive hearings on international migration and development, to be held on 15 July 2013 at the United Nations in New York.

Your Excellency, ladies and gentlemen,

My name is Pranom Somwong from Thailand and I am representing Asia Pacific Forum on Women, law and Development (APWLD).

Migrants; women, men, LGBT, have a wide range of experiences, all of which are individual and unique. Policies addressing migration need to recognize this diversity of experience and provide options to migrants and their families, including the option to obtain citizenship of the country of destination.

We know however that many countries refuse to legislate on permanent migration and persist in implementing temporary migration policies. These policies must never be used to deny migrants social, economic, cultural and civil rights. These rights cannot be temporarily suspended. Where temporary migration policies are still in use, States must strive to coordinate joint portable social security systems which respond to the mobility of the populations that these policies create. States must guarantee that each temporary migrant can always access essential services. All work should be protected by labour laws, including domestic workers.

States must also ensure that recruitment agencies, brokers and employers can be held accountable; confiscating documents must be made illegal with strong sanctions for violators; migrants must have the freedom to change employers, migrant workers must be afforded freedom from retaliation by employers & brokers and migrant workers must have access to effective and timely justice remedies.

Jackie Pollock and Pranom Somwong(Bee), both from WH4C
Civil society groups are developing interactive maps that show the patterns of labour brokers. This represents an important tracking and monitoring tool. Cooperation by governments and transparency by the private sector is required in order to map the location of the brokers and labor recruiters, the

employment sector, wage, and working conditions.

Trade and investment agreements interested in facilitating the mobility of capital, must not be used to create migration for temporary work that undermines International labour standards. Decent jobs with living wages for workers in countries of origin and destination must be created. Systemic conditions that contribute to forced migration must be transformed.

Migration is not a substitute for genuine development. States must not be seduced by dubious notions that circular migration and remittances contribute to genuine development. A genuine development framework should ensure that migrants, workers, families and communities can live in peace and dignity.

Monday, July 1, 2013

CEDAW and workers - Malaysian Bar:- A Right Step in a Long and Unfinished Journey

Press Release

A Right Step in a Long and Unfinished Journey

The Malaysian Bar welcomes the decision by the Attorney General to withdraw the Government's appeal at the Court of Appeal in the case of Chayed bin Basirun & Ors v Noorfadilla bt Ahmad Saikin.

The legal question in Noorfadilla’s case arose when the Malaysian Government revoked and withdrew her appointment as a Guru Sandaran Tidak Terlatih (“GSTT”) because she was pregnant.  The High Court held that this act amounted to gender discrimination and constituted a violation of Article 8(2) of the Federal Constitution, which deals with equality before the law.

What was significant in this case was the High Court's reliance on the Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”), to which Malaysia acceded in July 1995, in clarifying what is meant by the terms “equality” and “gender discrimination”.  To quote from the judgment of the High Court:
… the word “gender” was incorporated into Article 8(2) of the Federal Constitution in order to comply with Malaysia’s obligation under the CEDAW.  It is to reflect the view that women are not discriminated. . . . In Article 11(2)(a) of CEDAW, it provides that State Parties shall take appropriate measure to prohibit, subject to the imposition of sanctions, dismissal on the grounds inter alia, of pregnancy. . . .  [CEDAW] has the force of law and [is] binding on members states, including Malaysia. [sic]
The High Court also stated that:
. . . in interpreting Article 8(2) of the Federal Constitution, it is the Court’s duty to take into account the Government commitment and obligation at international level . . . there is no impediment for the Court to refer to CEDAW in interpreting Article 8(2) of the Federal Constitution.  Hence, applying Article 1 and 11 of CEDAW I hold that pregnancy in this case was a form of gender discrimination.  The plaintiff should have been entitled to be employed as a GSTT even if she was pregnant.  Further, the plaintiff was pregnant because of her gender.  Discrimination on the basis of pregnancy is a form of gender discrimination because basic biological fact that only women has the capacity to become pregnant.” [sic]
Notwithstanding this welcomed decision, the Malaysian Bar calls upon the Government to do more to eradicate gender discrimination in Malaysia.  Apart from the amendment to the Federal Constitution, which was made in 2001, the Government has not passed any specific legislation to prohibit gender discrimination.  Indeed, in the first test case after the Federal Constitution was changed, Beatrice Fernandez v Sistem Penerbangan Malaysia & Anor in 2004, the provisions of CEDAW were also invoked but without success.  That decision, which still stands today, held that the forced resignation of an airline stewardess after becoming pregnant was a matter of private contract law, and not gender equality or discrimination.

A further disturbing decision was that of the Court of Appeal in March 2012 which upheld the right of an employer, Guppy Plastics Industries Sdn Bhd, to enforce the retirement of female employees at an earlier age than male employees.

Enacting specific anti-gender discrimination legislation will go a long way towards promoting and protecting gender equality in Malaysia.  The government should also consider addressing the other concerns of the Committee on the Elimination of Discrimination against Women expressed in their Concluding Observations issued after their review of Malaysia in May 2006.  Many of those concerns remain outstanding, notwithstanding the passage of seven years.

The action of the Malaysian Government in withdrawing its appeal in the Noorfadilla case is a step in the right direction.  However, the journey remains long and unfinished.

Christopher Leong President Malaysian Bar
30 June 2013

100, 80, 60, 49 hours of work...... can Apple and Foxconn not count?

GoodElectronics media release

100, 80, 60, 49 hours of work......
can Apple and Foxconn not count?

Keeping an eye on Apple

July 1, 2013

Foxconn and Apple are failing to live up to their promises to reduce the working hours at Foxconn factories in China to the legal maximum without workers suffering a loss in income. Those commitments were made over one year ago after a Fair Labor Association (FLA) investigation of three Foxconn factories identified serious hours of work violations.  The GoodElectronics Network is concerned about the slow progress being made by Apple and Foxconn towards achieving respect for workers’ rights.

In 2012, Apple joined the FLA and commissioned it to investigate working conditions at three of its Foxconn supplier factories in China:  Guanlan, Longhua and Chengdu. These three factories employ 178,000 workers. In total Foxconn employs some 1.1 million workers in China.

Apple and Foxconn promised crucial reforms, including, but not limited to, increasing wages enough to offset reductions in working hours, providing back pay for uncompensated work time, plus bringing down working hours to the Chinese legal standard of 40 regular working hours + 9 hours overtime = 49 hours maximum per week by July 1, 2013. These promises are detailed in a FLA announcement of March 29, 2012. Also, a study was to be undertaken to determine the amount of compensation necessary to meet workers’ basic needs.

In the spring of 2013, it became apparent that Foxconn and Apple were significantly behind schedule in implementing these reforms. On May 17, Foxconn announced it would need more time to reduce overtime hours at its Chinese factories.[1] No valid reasons were given. The Second Foxconn Verification Status report of May 2013, prepared by FLA, did not report any progress regarding the wage promises.[2]

In its two verification reports published to date, the FLA measures the Foxconn factories’ progress in reducing overtime hours against an arbitrary and illegal threshold of 60 hours per week. This is not even consistent with the FLA’s own Code, which requires compliance with the country’s legal standard, which in China is 40 hours for the regular workweek and 36 hours maximum overtime per month. The FLA Code also says that overtime shall not be required on a regular basis.[3]

This problem is not limited to the three factories investigated by the FLA. Recent research at other Foxconn facilities reports working weeks of 80-100 hours. In September 2012, researchers from Hong Kong-based Students and Scholars Against Corporate Misbehaviour (SACOM) interviewed 60 workers employed at Foxconn’s iPhone-producing plant in Zhengzhou, Henan Province. Workers interviewed reported working unpaid and excessive over time and/or being offered compensation leave instead of legal overtime pay.[4]

In a May 1, 2013 report, a group of scholars and students from China and Hong Kong accused Foxconn of playing “word games” by attempting to hide overtime hours worked by labelling overtime pay as “reward payments” on workers’ pay slips.[5]  According to SACOM, employer demands on Foxconn workers to work excessive overtime hour without providing adequate compensation is still a serious problem.  SACOM is calling on Foxconn to make good on its promises to reduce overtime hours to the legal limit and to provide workers a living wage for a normal workweek that will enable them to sustain a reasonable quality of life for themselves and their families.[6]

In the same report, Foxconn’s slow progress towards increased representation of worker representatives on union committees is also criticized. SACOM urges Foxconn to hold genuinely democratic and transparent trade union elections on the basis of approved methods and procedures that withstand public scrutiny.

End of Media Release

Background to Media Release
Is Apple being two-faced on workers’ rights?

Apple claims that it joined Fair Labor Association (FLA) to improve factory conditions at its main supplier Foxconn. But, how committed is Apple really?

In May 2013, it became known that Apple is shifting part of its production from Foxconn to Pegatron, another Taiwanese electronics manufacturer with factories in China. Reportedly, Pegatron will become the primary assembler of a low-cost iPhone expected later this year. Apparently, Foxconn is not as attractive to Apple as it used to be. According to market analysts, Foxconn's cost advantages from scale have diminished as it works to bring about the reforms Apple requires. In return for Apple’s orders, Pegatron seems to be willing to accept thinner profits. Pegatron is not likely to have bargained with Apple for a sufficient profit margin to invest in better working conditions.[7]
Although some progress has been made at the three factories investigated by the FLA, this minimal progress has not been replicated throughout Apple’s supply chain, including at other Foxconn factories like Zhengzhou.

What do workers want?

In the international media, reports have appeared claiming that Foxconn workers would oppose reduction in overtime as ‘they want to make as much money as possible in a short time’. Workers are reported saying they might leave the factory if overtime is cut. These reports ignore the underlying issue, that workers are not receiving a living a living wage and are therefore compelled to work long hours of overtime in order to meet their basic needs.

What is GoodElectronics demanding?

In January, February and March 2012 respectively, the GoodElectronics Network issued statements, expressing concerns about the FLA gradualist approach to achieving respect for workers’ rights. So far these fears have proven to be justified. Main points of concern:

Democratically elected union representatives
Foxconn must allow workers to take part in elections to democratically select their own representatives in the workplace who can negotiate with management on the pay and conditions of the workforce. Such elections must be conducted by the workers without interference from management, and all management personnel must be prohibited from taking up union positions. In order for the elected worker representatives to be able to meet management on an equal footing to negotiate on pay and working conditions, they will need support in terms of skills and knowledge. Apple must therefore insist that union representatives be allowed to access training and capacity building that is independent of management.

Fair levels of pay and decent working conditions
Apple and Foxconn must immediately establish a schedule of negotiations which will lead to a collective agreement that covers all aspects of work including wages and working hours, overtime, health and safety, etc.

Balancing production demands with workers' rights
Foxconn must learn to work together with its employees, through their democratically elected representatives, to find solutions together that reconcile the demands of production with recognition of workers’ rights. This will mean giving employees access to information on wages, working hours, production schedules and financial information that enable worker representatives to take an equal seat at the table and work with management to resolve the issues. It will also mean that Apple must roll up its sleeves and get involved directly in the bargaining process, so that its demands on unit prices and production deadlines do not undermine agreements on pay and working conditions. Bargaining should take place above a floor of decent minimum standards. This must include an immediate end to illegal overtime hours, coupled with wage increase to ensure that every worker in Apple’s supply chain is paid a genuine living wage that covers basic needs for a family for a statutory work week (40 hours in China).

Disclosing supply chain information
Apple must be more forthcoming about the identity of its suppliers, not just releasing the company names, but the countries and addresses of specific factories in which all the components that go into its products are made.

Read more


[1] Foxconn says needs more time to further cut workers' overtime,, May 17, 2013,
[2] Second Foxconn Verification Status Report, Fair Labor Association (FLA), May 16, 2013,
[3] FLA Workplace Code of Conduct, Fair Labor Association (FLA),
[4]  New iPhone, Old Abuses Have working conditions at Foxconn in China improved?, Students and Scholars against Corporate Misbehaviour (SACOM), September 20, 2012,
[5] “The new generation migrant workers concern programme” research team was formed by teachers and students of Peking University, Wuhan University, Huazhong University of Science and Technology, Hong Kong Polytechnic University, the University of Hong Kong, the Chinese University of Hong Kong. The fieldwork research started on March 15 and ended on April 7. First-hand data was collected through questionnaires as well as face-to-face interviews with workers. English excerpt of the report:
[6] Promise from Foxconn on democratic union is broken, Students and Scholars against Corporate Misbehaviour (SACOM), May 9, 2013,
[7] Apple Shifts Supply Chain Away From Foxconn to Pegatron, by Eva Dou for Wall Street Journla online, May 29, 2013,

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Contact: Pauline Overeem,, tel: 0031 20 6391291