2008 Annual Survey of violations of trade union rights - Timor Leste (East Timor)
|Publisher||International Trade Union Confederation|
|Publication Date||20 November 2008|
|Cite as||International Trade Union Confederation, 2008 Annual Survey of violations of trade union rights - Timor Leste (East Timor), 20 November 2008, available at: http://www.refworld.org/docid/4c52ca6928.html [accessed 13 October 2015]|
ILO Core Conventions Ratified: –
The legislation of East Timor recognises trade union rights; however, several laws restrict the right to strike. Employers who violate workers' fundamental rights are barely punished, largely owing to the biased approach of the labour inspectorate. The office of a teachers' union was destroyed.
Trade union rights in law
Legislation guarantees freedom of association and the right to strike: The right to form unions is guaranteed explicitly by the Constitution. The Labour Code also guarantees the right to freedom of association and collective bargaining. Only police and army officials are denied the right to form and join unions. Between five and ten workers are required to form a union.
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 labour relations board/arbitration, but any party can appeal to a civil court and the high court.
The law explicitly outlaws termination of employment in retaliation for union activity, although this protection is partly undermined by another provision that 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 bilateral negotiations, and after involvement and failure of the government's Mediation and Conciliation Service to resolve the dispute, either party can apply to the Labour Relations Board.
Restrictions on the right to strike: Before going on strike, a union must provide prior written notice to the employer and to the government's 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". Based on information received by the ITUC, the restriction concerning essential services was to be removed by an amendment to the legislation in 2008.
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.
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: The Immigration and Asylum Act states that foreigners are forbidden from participating in the "administrative or social organs of a union ... ".
Trade union rights in practice and Violations in 2007
Background: Having been independent since 2002, East Timor is one of the poorest countries in the world, despite its energy resources. Divisions and allegations of discrimination within the armed forces sparked off a civil war in Dili in April and May 2006. A UN mission was set up to ensure stability and promote democratic governance; however, violence rocked the capital again in February and March 2007, shortly before the April elections. The Prime Minister and Nobel Peace Prize winner José Ramos-Horta was elected president, taking over from Xanana Gusmao, a legendary figure in the independence movement, who himself became Prime Minister in August 2007.
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 economy, few want to risk returning to poverty by challenging an employer's prerogatives on trade union rights, or wages and conditions of work.
The Timor Leste Trade Union Confederation (TLTUC/KSTL) stresses that a "lack of understanding from the East Timor workers about unions is one of the major problems that unions are facing".
Limited enforcement of legislation: Despite legislation guaranteeing the right of workers to form and join trade unions, in practice many employers do everything they can to prevent the right being exercised – for example, through dismissals. The confederation TLTUC/KSTL reports some 30 cases each year of employers who prefer to pay financial compensation to workers sacked for union activities rather than reinstating them. In 2007, 27 such cases were reported. Exercising the right to strike is equally risky: some employers sack all those taking part in a strike, and there has been at least one case of a trade unionist being arrested by the police for organising a strike.
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 were not always strictly neutral in their implementation of the law and tended to favour employers. According to the TLTUC/KSTL, the labour inspectors simply talk to the employers and do not check what they say with the workers.
Labour Relations Board established, but not yet operational: 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 ... concerning employment or non-employment, or the terms of employment, or the conditions of work ... ", the Board was largely inactive in 2007. As a result, the TLTUC and its affiliates assume the main role for representing workers in attempts to resolve disputes, whether or not those workers are members of the union. Of the 107 disputes handled by the TLTUC/KSTL between January 2007 and June 2008, 95 concerned unfair dismissal and 10% were due to anti-union discrimination. 90% of the disputes were solved with the help of the TLTUC/KSTL.
Destruction of a union's office: The office of the East Timor Teachers' Union (ETTU, an affiliate of EI) was destroyed in the violence that shook Dili in February and March, and equipment was stolen, as in May 2006. The leaders of the ETTU were forced to go back to their respective regions for safety reasons. The teachers' union was not able to operate normally during most of the year.