2007 Annual Survey of violations of trade union rights - Timor Leste (East Timor)
|Publisher||International Trade Union Confederation|
|Publication Date||9 June 2007|
|Cite as||International Trade Union Confederation, 2007 Annual Survey of violations of trade union rights - Timor Leste (East Timor), 9 June 2007, available at: http://www.refworld.org/docid/4c52ca0828.html [accessed 18 September 2014]|
ILO Core Conventions Ratified: –
East Timor's Constitution and laws support trade union rights, but new laws on assembly and immigration have eroded some of these rights, and there are restrictions on the right to strike. Enforcement of laws remained a problem, compounded by high levels of poverty and illiteracy, and a huge informal sector which accounts for over 80 per cent of the working population. Foreign companies operating in East Timor took advantage of weak enforcement and the desperate situation of workers, despite the Timor Lorosa'e Trade Union Confederation's efforts to defend them.
Trade union rights in law
Constitution guarantees right to form unions and right to strike: The right to form unions is guaranteed by Article 52 of the Constitution which unequivocally states: "Every worker has the right to form or join trade unions ... in defence of his or her rights and interests." In the same Article, it adds that "trade unions and trade union associations shall be independent of the State and employers." The constitution also guarantees (article 51) the right to strike, provided that minimum services are provided to meet essential needs, and prohibits lockouts.
Labour Code provides for freedom of association: The current Labour Code, promulgated by the United Nations Transitional Administration in East Timor (UNTAET) in May 2002, guarantees the right to freedom of association and collective bargaining. Only police and army officials are denied the right to form and join unions.
Ten workers are required to form a union, and all trade unions must register with an Office of the Registrar of Trade Unions and Employer Organisations (ORTEU), operating under the Ministry of Labour and Community Reintegration.
Where an employer fails to recognise the union, either party may apply for the assistance of the government's Conciliation and Mediation Service. If the dispute remains unresolved, either party may file an application to the industrial relations board/arbitration for a final decision, but any party can appeal to a civil court and the high court.
Trade unions are allowed to amalgamate freely if more than 50 per cent of each of the unions' membership agree to do so, and that amalgamation is subsequently registered with the registrar.
The law explicitly outlaws termination of employment in retaliation for past or present union activity, although this protection is partly undermined by another provision which explicitly accepts the principle of allowing for financial compensation in lieu of reinstatement when "the employer refuses to reinstate the worker."
Labour Code guarantees right to collectively bargain: The law provides for collective bargaining. However, in cases where an agreement cannot be reached after negotiations, and after involvement and failure of the Mediation and Conciliation Service to resolve the dispute, either party can apply to the National Labour Board to request binding arbitration.
Restrictions on the right to strike: Before going on strike, a union must provide prior written notice to the employer and to the Governments' Conciliation and Mediation Service at least ten days before taking such action. The Minister is given an absolute right to prohibit or restrict a strike if it involves an industry or sector classified as "Essential Services." The law explicitly includes essential public transport, ambulances and hospitals, electricity and police in this category, but also adds that other sectors can be similarly classified as essential if their interruption causes "massive disruption" or "danger to the public". The law also opens up a channel for employer interference in this determination by allowing any "party" to apply for a restriction on the right to strike to the tri-partite National Labour Board. If the board agrees, the case proceeds to arbitration.
New law places restrictions on freedom to publicly assemble or strike: The Freedom, Assembly, and Demonstration Act, promulgated in January 2006, places a number of significant restrictions on the right to publicly assemble and demonstrate. Among the provisions are requirements that the police must be informed at least four days in advance of any strike or demonstration. Section 5 of the law contains broad language that could be used to frustrate labour or civil society mobilisations by prohibiting "demonstrations whose objective constitutes contempt of the good reputation and respect due to the Head of State and other officeholders of the State institutions" and "demonstrations with the intent of questioning constitutional order."
Protests are not allowed within 100 metres of government offices, official residences of government officials, diplomatic missions, offices of political parties, prisons, and military installations. The same distance rule for strikes or demonstrations applies to key parts of commercial and transportation infrastructure, including ports, airports, telecommunication facilities, power plants, water depots, and fuel depots.
Restrictions on freedom of association for foreigners: Article 11 of the Immigration and Asylum Act states that foreigners are forbidden from participating in the "administrative or social organs of a union ... ", meaning they are effectively barred from union membership or leadership. The same Article also prohibits foreigners from "organising or participating in demonstrations, processions, rallies, and meetings of a political nature." Those who violate the law can be arrested and deported, and excluded from returning to East Timor in the future.
Trade union rights in practice
High unemployment, limited formal sector serve as barriers: The government's 2004 census found that 88 per cent of East Timor's working population are either in "self-employment or subsistence farming." Clearly, given the difficulties workers face in finding a job in the formal sector, few want to risk returning to poverty by challenging an employer's prerogatives on trade union rights, or wages and conditions of work.
The national labour congress, the Timor Lorosa'e Trade Union Confederation (TLTUC/KSTL) informed ILO's Bureau for Workers' Activities that a "lack of understanding from the East Timor workers about unions is one of the major problems that unions are facing."
Limited enforcement: In practice, enforcement of the Labour Code, especially outside the capital city of Dili, has been limited. Reports from trade unionists in the country indicated that inspectors from the Ministry for Labour and Community Re-integration were not always strictly neutral in their implementation of the law, and tended to favour employers. There are no export processing zones.
Labour Relations Board established, but not active: The Labour Relations Board was formed in January 2004 under the authority of Article 27 of the Labour Code. Established to "hear all labour disputes ... with the employment or non-employment, or the terms of employment, or the conditions of work ... ", the Board was largely inactive, and unable to adequately perform the dispute-resolution duties as authorised in the law. As a result, the TLTUC and its affiliates have played the primary role in representing workers in efforts to resolve disputes.
Violations in 2006
Background: Serious civil strife between groups from the East and West of Timor Leste, sparked by divisions and allegations of discrimination in the Armed Forces that led to the sacking of one third of the Army by the Prime Minister, occurred in Dili in April-May, killing at least 30 people, wounding hundreds more, and resulting in the destruction of much of Dili with consequent displacement of thousands. A new revamped UN Integrated Mission in Timor-Leste (UNMIT) was launched to support the government in consolidating stability and promoting democratic governance ahead of national elections scheduled for May 2007.
Striking soldiers are sacked: In early January, 159 soldiers of Timor Leste Defence Forces (F-FDTL) filed a petition with Timor Leste's President, presenting grievances connected to alleged discrimination in promotions and treatment, unfair disciplinary actions, and other job-related issues. Negotiations with the Commander of the F-FDTL on 2 and 3 February did not produce results, and as a result hundreds of soldiers left their bases, effectively going on strike. 400 soldiers met with President Xanana Gusmao on 8 February, who promised them their grievances would be investigated and urged them to return to duty. However, when a five member commission to investigate was established by the chief of staff of the Commander of the F-FDTL, the soldiers refused to participate because they alleged three of the commission members were officers who the soldiers were complaining about. The workers continued to refuse to return to their bases, and on 16 March, the Commander of the F-FDTL fired the 593 protesting soldiers, equivalent to approximately one-third of the entire armed forces. While Prime Minister Mari Alkatiri supported the firings, President Gusmao did not – and he stated in a public speech on 23 March that the allegations of discrimination were justified. As a result of this dismissal, civil strife started in the last week of March and then abated. However, protests by the dismissed soldiers in Dili on 28 April in front of the Government House finally resulted in significant violence, when riots then prompted the Prime Minister to call out the F-FDTL which in turn used excessive force to repress the protesters and strikers.
Rampaging mobs attacked the Dili headquarters of the East Timor Teachers Union (ETTU) on in May, gutting the office and looting or destroying all the ETTU's office equipment. ETTU leaders were forced to work from their homes or make-shift offices, which significantly complicated efforts to account for ETTU members and provide them with support. No arrests were made in connection with the attack on the ETTU headquarters.