For the purposes of this Chapter:
ILO Declaration means the International Labour Organization(ILO) Declaration on Fundamental Principles and Rights at Work and its Follow-up (1998);
labour laws means statutes and regulations, or provisions of statutes and regulations, of a Party that are directly related to the following internationally recognised labour rights:
(a) freedom of association and the effective recognition of the right to collective bargaining;
(b) the elimination of all forms of forced or compulsory labour;
(c) the effective abolition of child labour, a prohibition on the worst forms of child labourand other labour protections for children and minors;
(d) the elimination of discrimination in respect of employment and occupation; and
(e) acceptable conditions of work with respect to minimum wages[1], hours of work, and occupational safety and health;
statutes and regulations and statutes or regulations means[2]:
(a) for Australia, Acts of the Commonwealth Parliament, or regulations made by the Governor-General in Council under delegated authority under an Act of the Commonwealth Parliament;
(b) for Malaysia, the Federal Constitution, Acts of Parliament and subsidiary legislation or regulations made under Acts of Parliament;
(c) for Mexico, Acts of Congress or regulations and provisions promulgated pursuant to Acts of Congress and, for the purposes of this Chapter, includes the Constitution of the United Mexican States;
(d) for the United States, Acts of Congress or regulations promulgated pursuant to Acts of Congress and, for the purposes of this Chapter, includes the Constitution of the United States.
1. The Parties affirm their obligations as members of the ILO, including those stated inthe ILO Declaration, regarding labour rights within their territories.
2. The Parties recognise that, as stated in paragraph 5 of the ILO Declaration, labour standards should not be used for protectionist trade purposes.
1.Each Party shall adopt and maintainin its statutes and regulations, and practices thereunder, the following rights as stated in the ILO Declaration[3][4]:
(a) freedom of association and the effective recognition of the right to collective bargaining;
(b) the elimination of all forms of forced or compulsory labour;
(c) the effective abolition of child labour and, for the purposes of this Agreement, a prohibition on the worst forms of child labour; and
(d) the elimination of discrimination in respect of employment and occupation.
2. Each Party shall adopt and maintain statutes and regulations, and practices thereunder, governing acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health.[5]
The Parties recognise that it is inappropriate to encourage trade or investment by weakening or reducing the protections afforded in each Party’s labour laws. Accordingly,no Party shall waive or otherwise derogate from, or offer to waive or otherwise derogate from, its statutes or regulations:
(a) implementing Article 19.3.1 (Labour Rights), if the waiver or derogation would be inconsistent with a right set out in that paragraph; or
(b) implementing Article 19.3.1 (Labour Rights) or Article 19.3.2 (Labour Rights), if the waiver or derogation would weaken or reduce adherence to a right set out in Article 19.3.1, or to a condition of work referred to in Article 19.3.2 (Labour Rights), in a special trade or customs area, such as an export processing zone or foreign trade zone, in the Party’s territory,
in a manner affecting trade or investment between the Parties.
1. No Party shall fail to effectively enforce its labour laws through a sustained or recurring course of action or inaction in a manner affecting trade or investment between the Partiesafter the date of entry into force of this Agreement.
2. If a Party fails to comply with an obligation under this Chapter, a decision made by that Party on the provision of enforcement resources shall not excuse that failure. Each Party retains the right to exercise reasonable enforcement discretion and to make bona fide decisions with regard to the allocation of enforcement resources between labour enforcement activities among the fundamental labour rights and acceptable conditions of work enumerated in Article 19.3.1 (Labour Rights) and Article 19.3.2 (Labour Rights), provided that the exercise of that discretion, and those decisions, are not inconsistent with its obligations under this Chapter.
3. Nothing in this Chapter shall be construed to empower a Party’s authorities to undertake labour law enforcement activities in the territory of another Party.
Each Party recognises the goal of eliminating all forms of forced or compulsory labour, including forced or compulsory child labour. Taking into consideration that the Parties have assumed obligations in this regard under Article 19.3 (Labour Rights), each Party shall also discourage, through initiatives it considers appropriate, the importation of goods from other sources produced in whole or in part by forced or compulsory labour, including forced or compulsory child labour.[6]
Each Party shall endeavour to encourage enterprises to voluntarily adopt corporate social responsibility initiatives on labour issues that have been endorsed or are supported by that Party.
1. Each Party shall promote public awareness of its labour laws, including by ensuring that information related to its labour laws and enforcement and compliance procedures is publicly available.
2. Each Party shall ensure that persons with a recognised interest under its law in a particular matter have appropriate access to impartial and independent tribunals for the enforcement of the Party’s labour laws. These tribunals may include administrative tribunals, quasi-judicial tribunals, judicial tribunals or labour tribunals, as provided for in each Party’s law.
3. Each Party shall ensure that proceedings before these tribunals for the enforcement of its labour laws: are fair, equitable and transparent; comply with due process of law; and do not entail unreasonable fees or time limits or unwarranted delays. Any hearings in these proceedings shall be open to the public, except when the administration of justice otherwise requires, and in accordance with its applicable laws.
4. Each Party shall ensure that:
(a) the parties to these proceedings are entitled to support or defend their respective positions, including by presenting information or evidence; and
(b) final decisions on the merits of the case:
(i) are based on information or evidence in respect of which the parties were offered the opportunity to be heard;
(ii) state the reasons on which they are based; and
(iii) are available in writing without undue delay to the parties to the proceedings and, consistent with its law, to the public.
5. Each Party shall provide that parties to these proceedings have the right to seek review or appeal, as appropriate under its law.
6. Each Party shall ensure that the parties to these proceedings have access to remedies under its law for the effective enforcement of their rights under the Party’s labour laws and that these remedies are executed in a timely manner.
7. Each Party shall provide procedures to effectively enforce the final decisions of its tribunals in these proceedings.
8. For greater certainty, and without prejudice to whether a tribunal’s decision is inconsistent with a Party’s obligations under this Chapter, nothing in this Chapter shall be construed to require a tribunal of a Party to reopen a decision that it has made in a particular matter.
1. Each Party, through its contact point designated under Article 19.13 (Contact Points), shall provide for the receipt and consideration of written submissions from persons of a Party on matters related to this Chapter in accordance with its domestic procedures. Each Party shall make readily accessible and publicly available its procedures, including timelines, for the receipt and consideration of written submissions.
2. A Party may provide in its procedures that, to be eligible for consideration, a submission should, at a minimum:
(a) raise an issue directly relevant to this Chapter;
(b) clearly identify the person or organisation making the submission; and
(c) explain, to the degree possible, how and to what extent the issue raised affects trade or investment between the Parties.
3. Each Party shall:
(a) consider matters raised by the submission and provide a timely response to the submitter, including in writing as appropriate; and
(b) make the submission and the results of its consideration available to the other Parties and the public, as appropriate, in a timely manner.
4. A Party may request from the person or organisation that made the submission additional information that is necessary to consider the substance of the submission.
1. The Parties recognise the importance of cooperation as a mechanism for effective implementation of this Chapter, to enhance opportunities to improve labour standards and to further advance common commitments regarding labour matters, including workers’ wellbeing and quality of life and the principles and rights stated in theILO Declaration.
2. In undertaking cooperative activities, the Parties shall be guided by the following principles:
(a) consideration of each Party’s priorities, level of development and available resources;
(b) broad involvement of, and mutual benefit to, the Parties;
(c) relevance of capacity and capability-building activities, including technical assistance between the Parties to address labour protection issues and activities to promote innovative workplace practices;
(d) generation of measurable, positive and meaningful labour outcomes;
(e) resource efficiency, including through the use of technology, as appropriate, to optimise resources used in cooperative activities;
(f) complementarity with existing regional and multilateral initiatives to address labour issues; and
(g) transparency and public participation.
3. Each Party shall invite the views and, as appropriate, participation of its stakeholders, including worker and employer representatives, in identifying potential areas for cooperation and undertaking cooperative activities. Subject to the agreement of the Parties involved, cooperative activities may occur through bilateral or plurilateral engagement and may involve relevant regional or international organisations, such as the ILO, and non-Parties.
4. The funding of cooperative activities undertaken within the framework of this Chapter shall be decided by the Parties involved on a case-by-case basis.
5. In addition to the cooperative activities outlined in this Article, the Parties shall, as appropriate, caucus and leverage their respective membership in regional and multilateral fora to further their common interests in addressing labour issues.
6. Areas of cooperation may include:
(a) job creation and the promotion of productive, quality employment, including policies to generate job-rich growth and promote sustainable enterprises and entrepreneurship;
(b) creation of productive, quality employment linked to sustainable growth and skills development for jobs in emerging industries, including environmental industries;
(c) innovative workplace practices to enhance workers’ well-being and business and economic competitiveness;
(d) human capital development and the enhancement of employability, including through lifelong learning, continuous education, training and the development and upgrading of skills;
(e) work-life balance;
(f) promotion of improvements in business and labour productivity, particularly in respect of SMEs;
(g) remuneration systems;
(h) promotion of the awareness of and respect for the principles and rights as stated in the ILO Declarationand for the concept of Decent Work as defined by the ILO;
(i) labour laws and practices, including the effective implementation of the principles and rights as stated in the ILO Declaration;
(j) occupational safety and health;
(k) labour administration and adjudication, for example, strengthening capacity, efficiency and effectiveness;
(l) collection and use of labour statistics;
(m) labour inspection, for example, improving compliance and enforcement mechanisms;
(n) addressing the challenges and opportunities of a diverse, multigenerational workforce, including:
(i) promotion of equality and elimination of discrimination in respect of employment and occupation for migrant workers, or in the areas of age, disability and other characteristics not related to merit or the requirements of employment;
(ii) promotion of equality of, elimination of discrimination against, and the employment interests of women; and
(iii) protection of vulnerable workers, including migrant workers, and low-waged, casual or contingent workers;
(o) addressing the labour and employment challenges of economic crises, such as through areas of common interest in the ILO Global Jobs Pact;
(p) social protection issues, including workers’ compensation in case of occupational injury or illness, pension systems and employment assistance schemes;
(q) best practice for labour relations, for example, improved labour relations, including promotion of best practice in alternative dispute resolution;
(r) social dialogue, including tripartite consultation and partnership;
(s) with respect to labour relations in multi-national enterprises, promoting information sharing and dialogue related to conditions of employment by enterprises operating in two or more Parties with representative worker organisations in each Party;
(t) corporate social responsibility; and
(u) other areas as the Parties may decide.
7. Parties may undertake activities in the areas of cooperation in paragraph 6 through:
(a) workshops, seminars, dialogues and other fora to share knowledge, experiences and best practices, including online fora and other knowledge-sharing platforms;
(b) study trips, visits and research studies to document and study policies and practices;
(c) collaborative research and development related to best practices in subjects of mutual interest;
(d) specific exchanges of technical expertise and assistance, as appropriate; and
(e) other forms as the Parties may decide.
1. A Party may request dialogue with another Party on any matter arising under this Chapter at any time by delivering a written request to the contact point that the other Party has designated under Article 19.13 (Contact Points).
2. The requesting Party shall include information that is specific and sufficient to enable the receiving Party to respond, including identification of the matter at issue, an indication of the basis of the request under this Chapter and, when relevant, how trade or investment between the Parties is affected.
3. Unless the requesting and receiving Parties (the dialoguing Parties) decide otherwise, dialogue shall commence within 30 days of a Party’s receipt of a request for dialogue. The dialoguing Parties shall engage in dialogue in good faith. As part of the dialogue, the dialoguing Parties shall provide a means for receiving and considering the views of interested persons on the matter.
4. Dialogue may be held in person or by any technological means available to the dialoguing Parties.
5. The dialoguing Parties shall address all the issues raised in the request. If the dialoguing Parties resolve the matter, they shall document any outcome, including, if appropriate, specific steps and timelines that they have agreed. The dialoguing Parties shall make the outcome available to the public, unless they decide otherwise.
6. In developing an outcome pursuant to paragraph 5, the dialoguing Parties should consider all available options and may jointly decide on any course of action they consider appropriate, including:
(a) the development and implementation of an action plan in any form that they find satisfactory, which may include specific and verifiable steps, such as on labour inspection, investigation or compliance action, and appropriate timeframes;
(b) the independent verification of compliance or implementation by individuals or entities, such as the ILO, chosen by the dialoguing Parties; and
(c) appropriate incentives, such as cooperative programmes and capacity building, to encourage or assist the dialoguing Parties to identify and address labour matters.
1. The Parties hereby establish a Labour Council (Council) composed of senior governmental representatives at the ministerial or other level, as designated by each Party.
2. The Council shall meet within one year of the date of entry into force of this Agreement. Thereafter, the Council shall meet every two years, unless the Parties decide otherwise.
3. The Council shall:
(a) consider matters related to this Chapter;
(b) establish and review priorities to guide decisions by the Parties about labour cooperation and capacity building activities undertaken pursuant to this Chapter,taking into account the principles in Article 19.10.2 (Cooperation);
(c) agree on a general work programme in accordance with the priorities established under subparagraph (b);
(d) oversee and evaluatethe general work programme;
(e) review reports from the contact points designated under Article 19.13 (Contact Points);
(f) discuss matters of mutual interest;
(g) facilitate public participation and awareness of the implementation of this Chapter; and
(h) perform any other functions as the Parties may decide.
4. During the fifth year after the date of entry into force of this Agreement, or as otherwise decided by the Parties, the Council shall review the implementation of this Chapterwith a view to ensuring its effective operation and report the findings and any recommendations to the Commission.
5. The Council may undertake subsequent reviews as agreed by the Parties.
6. The Council shall be chaired by each Party on a rotational basis.
7. All Council decisions and reports shall be made by consensus and be made publicly available, unless the Councildecides otherwise.
8. The Council shall agree on a joint summary report on its work at the end of each Council meeting.
9.The Parties shall, as appropriate, liaise with relevant regional and international organisations, such as the ILO and APEC, on matters related to this Chapter. The Council may seek to develop joint proposals or collaborate with those organisations or with non-Parties.
1. Each Party shall designate an office or official within its labour ministry or equivalent entity as a contact point to address matters related to this Chapter within 90 days of the date of entry into force of this Agreement for that Party. Each Party shall notify the other Parties promptly in the event of any change to its contact point.
2.The contact points shall:
(a) facilitate regular communication and coordination between the Parties;
(b) assist the Council;
(c) report to the Council, as appropriate;
(d) act as a channel for communication with the public in their respective territories; and
(e) work together, including with other appropriate agencies of their governments, to develop and implement cooperative activities, guided by the priorities of the Council, areas of cooperation identified in Article 19.10.6 (Cooperation) and the needs of the Parties.
3. Contact points may develop and implement specific cooperative activities bilaterally or plurilaterally.
4. Contact points may communicate and coordinate activities in person or through electronic or other means of communication.
1. In conducting its activities, including meetings, the Council shall provide a means for receiving and considering the views of interested persons on matters related to this Chapter.
2. Each Party shall establish or maintain, and consult, a national labour consultative or advisory body or similar mechanism, for members of its public, including representatives of its labour and business organisations, to provide views on matters regarding this Chapter.
1. The Parties shall make every effort through cooperation and consultation based on the principle of mutual respect to resolve any matter arising under this Chapter.
2. A Party (requesting Party) may, at any time, request labour consultations with another Party (responding Party) regarding any matter arising under this Chapter by delivering a written request to the responding Party’s contact point. The requesting Party shall include information that is specific and sufficient to enable the responding Party to respond, including identification of the matter at issue and an indication of the legal basis of the request under this Chapter. The requesting Party shall circulate the request to the other Parties through their respective contact points.
3. The responding Party shall, unless agreed otherwise with the requesting Party, reply to the request in writing no later than seven days after the date of its receipt. The responding Party shall circulate the reply to the other Parties and enter into labour consultations in good faith.
4. A Party other than the requesting Party or the responding Party (the consulting Parties) that considers that it has a substantial interest in the matter may participate in the labour consultations by delivering a written notice to the other Parties within seven days of the date of circulation by the requesting Party of the request for labour consultations. The Party shall include in its notice an explanation of its substantial interest in the matter.
5. The Parties shall begin labour consultations no later than 30 days after the date of receipt by the responding Party of the request.
6. In the labour consultations:
(a) each consulting Party shall provide sufficient information to enable a full examination of the matter; and
(b) any Party participating in the consultations shall treat any confidential information exchanged in the course of the consultations on the same basis as the Party providing the information.
7. Labour consultations may be held in person or by any technological means available to the consulting Parties.If labour consultations are held in person, they shall be held in the capital of the responding Party, unless the consulting Parties agree otherwise.
8. The consulting Parties shall make every attempt to arrive at a mutually satisfactory resolution of the matter through labour consultations under this Article, taking into account opportunities for cooperation related to the matter. The consulting Parties may request advice from an independent expert or experts chosen by the consulting Parties to assist them. The consulting Parties may have recourse to such procedures as good offices, conciliation or mediation.
9. In labour consultations under this Article, a consulting Party may request another consulting Party to make available personnel of its government agencies or other regulatory bodies with expertise in the matter that is the subject of the labour consultations.
10. If the consulting Parties are unable to resolve the matter, any consulting Party may request that the Council representatives of the consulting Parties convene to consider the matter by delivering a written request to the other consulting Party through its contact point. The Party making that request shall inform the other Parties through their contact points. The Council representatives of the consulting Parties shall convene no later than 30 days after the date of receipt of the request, unless the consulting Parties agree otherwise, and shall seek to resolve the matter, including, if appropriate, by consulting independent experts and having recourse to such procedures as good offices, conciliation or mediation.
11. If the consulting Parties are able to resolve the matter, they shall document any outcome including, if appropriate, specific steps and timelines agreed upon. The consulting Parties shall make the outcome available to the other Parties and to the public, unless they agree otherwise.
12. If the consulting Parties have failed to resolve the matter no later than 60 days after the date of receipt of a request under paragraph 2, the requesting Party may request the establishment of a panel under Article 28.7 (Establishment of a Panel) and, as provided in Chapter 28 (Dispute Settlement), thereafter have recourse to the other provisions of that Chapter.
13. No Party shall have recourse to dispute settlement under Chapter 28 (Dispute Settlement) for a matter arising under this Chapter without first seeking to resolve the matter in accordance with this Article.
14. A Party may have recourse to labour consultations under this Article without prejudice to the commencement or continuation of cooperative labour dialogue under Article 19.11 (Cooperative Labour Dialogue).
15. Labour consultations shall be confidential and without prejudice to the rights of any Party in any other proceedings.
[1] For Singapore, minimum wages may include wage payments and adjustments gazetted under the Employment Act and wage supplement schemes under the Central Provident Fund Act.
[2] For greater certainty, for each Party setting out a definition, which has a federal form of government, its definition provides coverage for substantially all workers.
[3] The obligations set out in Article 19.3, as they relate to the ILO, refer only to the ILO Declaration.
[4] To establish a violation of an obligation under Article 19.3.1 or Article 19.3.2, a Party must demonstrate that the other Party has failed to adopt or maintain a statute, regulation or practice in a manner affecting trade or investment between the Parties.
[5] For greater certainty, this obligation relates to the establishment by a Party in its statutes, regulations and practices thereunder, of acceptable conditions of work as determined by that Party.
[6] For greater certainty, nothing in this Article authorises a Party to take initiatives that would be inconsistent with its obligations under other provisions of this Agreement, the WTO Agreement or other international trade agreements.
November [-], 2015
The Honorable Pehin Dato Lim Jock Seng
Minister at the Prime Minister’s Office and
Second Minister of Foreign Affairs and Trade
Brunei Darussalam
Dear Minister Pehin Dato Lim Jock Seng:
I have the honor to confirm that the United States of America and Brunei Darussalam have reached agreement with respect to the “Brunei — United States Labour Consistency Plan”, a bilateral instrument in accordance with Chapter 19 of the TPP Agreement attached to this letter.
I have the honor to propose that this letter and your letter in reply confirming that your Government shares this understanding shall constitute an agreement between our two Governments. This agreement shall enter into force on the date of entry into force of the TPP Agreement between our two governments.
Sincerely,
Ambassador Michael B. G. Froman
[-] November 2015
The Honorable Michael Froman
United States Trade Representative
600 17th Street, NW
Washington, DC 20508
Dear Ambassador Froman:
I am pleased to receive your letter of [insert date], which reads as follows:
I have the honor to confirm that the United States of America and Brunei Darussalam have reached agreement with respect to the “Brunei — United States Labour Consistency Plan”, a bilateral instrument in accordance with Chapter 19 of the TPP Agreement attached to this letter.
I have the honor to propose that this letter and your letter in reply confirming that your Government shares this understanding shall constitute an agreement between our two Governments. This agreement shall enter into force on the date of entry into force of the TPP Agreement between our two governments.
I have the honor to confirm that the understanding referred to in your letter is shared by my Government, and that your letter and this letter in reply shall constitute an agreement between our two governments.
Sincerely,
PEHIN DATO LIM JOCK SENG
Minister at the Prime Minister’s Office and
Second Minister of Foreign Affairs and Trade
Brunei — United States Labour Consistency Plan
This Plan creates rights and obligations only as between Brunei Darussalam and the United States.
I. Preamble
The Governments of Brunei and the United States:
ACKNOWLEDGING that each Party commits under Chapter 19 (Labour) to obligations concerning its labour law and practice, including with regard to its statutes and regulations and the labour rights as stated in the ILO Declaration;
UNDERTAKE through this Plan the following commitments consistent with those obligations.
II. Legal Reforms
Brunei shall undertake the following legal reforms. In addition, Brunei shall undertake other changes, including the issuance of new or revised measures, that are required to fully implement the following legal reforms and any related changes required to ensure consistency across the legal framework.
A. Freedom of Association and Collective Bargaining
Prior Authorization of Union Registration
1. Brunei shall amend the implementing regulations to the TUA, Section 10(1)(b), to clarify that “unlawful” refers only to serious breaches of law; and shall amend the implementing regulations to the TUA, Section 11(1)(b), to clarify that “willfully…violated” requires intent to violate the law.
International Affiliation
2. Brunei shall amend relevant sections of the TUA, including Section 17, related to prior consent for international affiliation by a union or union confederation, consistent with the labour rights as stated in the ILO Declaration.
Interference in Union Activity, Autonomy and Administration
3. Brunei shall amend relevant sections of the TUA to ensure that workers’ organizations have adequate protection from acts of interference by employers and public authorities, including by prohibiting such interference and applying effective procedures to expeditiously investigate allegations of interference, sanction violations and provide for appropriate remedies.
Protection against Anti-Union Discrimination
4. Brunei shall amend the TUA and the Employment Order (EO) to ensure that workers enjoy adequate remedies for all acts of anti-union discrimination in respect of their employment.
Limits on Selection of Union Officers
5. Brunei shall amend TUA, Section 16 to ensure workers’ right to elect their own representatives in full freedom without undue restrictions and ensure that only appropriate minimum standards are set that do not otherwise limit the workers’ ability to select their representatives.
Procedures for collective bargaining and strikes
6. Brunei shall amend relevant sections of the TUA to ensure workers’ right to bargain collectively, including by adopting measures that provide procedures for voluntary negotiation between employers or employers’ organizations and workers’ organizations.
7. Brunei shall amend relevant sections of the Trade Disputes Act (TDA), Section 9, to ensure workers’ right to strike, except in the limited circumstances noted in Section 7 and Section 8.
Review and Appeal
8. Brunei shall provide impartial and independent bodies or tribunals with jurisdiction to review any administrative decisions made under its labour laws, and ensure parties to those administrative decisions have access to those bodies or tribunals to review or appeal the decisions. Brunei shall amend relevant sections of its labour laws to clarify that administrative decisions are subject to review by such bodies or tribunals.
Application of Other Laws
9. Brunei shall ensure that laws or legal instruments, or provisions therein, are not applied or amended in a manner to undermine peaceful trade union-related activity protected by the TUA, TDA or EO.
B. Forced Labour
Brunei shall ensure effective enforcement in implementing the Passport Act, Section 12(g), which prohibits withholding of another person’s passport without lawful authority. Implementation shall include measures that make clear that: retention of a worker’s passport by an employer is illegal; employers and foreign workers must be fully informed of foreign workers’ right to retain their own passports; and foreign workers retain the right to access their passports at any time, without delay or approval of any other individual, and without consequence to their status and relationship with their employer or recruitment agency.
C. Child Labour
Brunei shall amend relevant sections of the Employment Order to include a list of hazardous occupations prohibited for persons under 18 years of age.
D. Employment Discrimination
Brunei shall amend relevant sections of the Employment Order to prohibit discrimination in respect of employment and occupation, including on the basis of race, sex, color, religion, political opinion and national extraction.
E. Acceptable Conditions of Work
Brunei shall enact laws and regulations that provide for a minimum wage for private sector workers.
III. Institutional Reforms and Capacity Building
Brunei shall undertake necessary institutional changes and capacity building to implement the legal reforms required by this Plan, including: establish new administrative functions, procedures and mechanisms; expand and adequately train the labour inspectorate and relevant criminal system authorities; and provide the necessary resources to implement these changes.
Labour Inspectorate
1. Brunei shall revise internal inspection and other enforcement procedures for the labour inspectorate of its Department of Labour, to ensure effective enforcement of the new legal provisions, and train all relevant personnel on the reformed procedures and new provisions.
2. Brunei shall ensure its complaint mechanisms are effective, allow workers to confidentially and anonymously report violations of the labour laws, and include procedures for referring complaints to labour inspectors for follow up and for documenting and tracking the follow-up inspections and investigations conducted, including the status of an inspection or investigation, any violation identified, the existence or amount of any fine or sanctions imposed, and any remedies ordered.
IV. Transparency and Sharing of Information
A. Public Comment
1. Brunei shall provide for public comment, including using any existing procedures, of the draft laws and other measures that result from the commitments in this Plan.
2. Brunei shall, consistent with its existing procedures, publicly post on the applicable agency website the final legal instruments that result from the commitments in this Plan after their issuance.
B. Collaboration
Brunei and the United States shall collaborate on the development of the relevant legal reforms and other measures related to the implementation of this Plan.
C. Outreach and education
Brunei shall ensure an outreach program to inform and educate stakeholders, including employers and workers, on their rights under the revised laws and regulations; on the new administrative processes for the implementation of the revised laws and regulations; and on related remedies and courses of action available to stakeholders to enforce those rights.
V. Review
1. The United States and Brunei shall regularly assess progress in implementing this Plan, including follow-up enforcement and application of the amended laws and regulations and institutional reforms.
2. The United States and Brunei shall establish a Committee comprising senior officials from the Office of the U.S. Trade Representative and the Department of Labor for the United States and from the Ministry of Foreign Affairs and Trade and the Department of Labour, Ministry of Home Affairs for Brunei to monitor, assess and facilitate rapid response to any concerns about compliance with and implementation of the legal and institutional reforms under this Plan.
3. The United States and Brunei shall designate the responsible senior officials prior to the date of entry into force of this Agreement between the United States and Brunei and promptly inform the other Party of any subsequent changes.
4. The Committee shall meet, in person or by any technological means available, annually for seven years after the date of entry into force of this Agreement between the United States and Brunei. At the request of either Brunei or the United States, the Committee shall continue to meet annually thereafter or as otherwise agreed.
5. Unless otherwise agreed, the Committee shall convene within 30 days after a request by Brunei or United States to determine actions necessary to address any concerns with regard to compliance with or implementation of the legal and institutional reforms under this Plan.
VI. Technical Assistance
1. Brunei may request cooperation, advice and technical assistance from the United States or other Parties to the Agreement or any relevant international organisation for the purpose of implementing this Plan.
2. Brunei and the United States shall endeavor to share expertise, and to exchange information and best practices for the purpose of implementing this Plan.
VII. Implementation
1. Brunei shall enact the legal and institutional reforms in Part II and Part III of this Plan prior to the date of entry into force of the TPP Agreement between the United States and Brunei.
2. This Plan shall be subject to consultations under Article 19.5 (Labour Consultations) of the Labour Chapter, except that with respect to paragraphs 2 and 3, the requirement to circulate the request and reply, respectively, to the other TPP Parties, shall not apply; and paragraph 4 shall not apply.
3. This Plan shall be subject to dispute settlement under Chapter 28 (Dispute Settlement) of the TPP Agreement, except for Article 28.13 (Third Party Participation), which shall not apply.
November [-], 2015
The Honorable Mustapa Mohamed
Minister of Trade and Industry
Ministry of Trade and Industry
Kuala Lumpur, Malaysia
Dear Minister Mustapa Mohamed:
I have the honor to confirm that the United States of America and Malaysia have reached agreement with respect to the “Malaysia — United States Labour Consistency Plan”, a bilateral instrument in accordance with Chapter 19 of the TPP Agreement attached to this letter.
I have the honor to propose that this letter and your letter in reply confirming that your Government shares this understanding shall constitute an agreement between our two Governments. This agreement shall enter into force on the date of entry into force of the TPP Agreement between our two governments.
Sincerely,
Ambassador Michael B. G. Froman
[-] November 2015
The Honorable Michael Froman
United States Trade Representative
600 17th Street, NW
Washington, DC 20508
Dear Ambassador Froman:
I am pleased to receive your letter of [insert date], which reads as follows:
I have the honor to confirm that the United States of America and Malaysia have reached agreement with respect to the “Malaysia — United States Labour Consistency Plan”, a bilateral instrument in accordance with Chapter 19 of the TPP Agreement attached to this letter.
I have the honor to propose that this letter and your letter in reply confirming that your Government shares this understanding shall constitute an agreement between our two Governments. This agreement shall enter into force on the date of entry into force of the TPP Agreement between our two governments.
I have the honor to confirm that the understanding referred to in your letter is shared by my Government, and that your letter and this letter in reply shall constitute an agreement between our two governments.
Sincerely,
MUSTAPA MOHAMED
Minister of Trade and Industry
Malaysia — United States Labour Consistency Plan
This Plan shall create rights and obligations only as between the Governments of Malaysia and the United States.
I. Preamble
The Governments of Malaysia and the United States:
acknowledging that each Party commits under Chapter 19 (Labour) to obligations concerning its labour law and practice, including with regard to its statutes and regulations and the labour rights as stated in the ILO Declaration;
ENDEAVORING to co-operate with each other and, recognizing as members of the ILO the governments may utilize the technical resources of the ILO in fulfilling the commitments of this Plan;
undertake through this Plan the following specific commitments consistent with those obligations.
II. Legal Reforms
Consistent with its obligations under Chapter 19 (Labour), Malaysia shall enact the following legal reforms, and other changes that may be required to ensure consistency across its Acts, regulations and other measures.
A. Union Organization and Collective Bargaining
Judicial Review
1. Malaysia shall:
(a) ensure that trade unions have a right to judicial review of administrative decisions regarding trade union registration; suspension, withdrawal or cancellation of trade union registration; and determinations of strike illegality;
(b) amend the relevant sections of the Trade Union Act 1959 (ACT 262) to provide that where a trade union seeks judicial review of an administrative determination to suspend, withdraw or cancel trade union registration, the decision will be automatically stayed, pending that judicial review; and
(c) amend relevant sections of Act 262 to clarify that decisions of the Minister are subject to judicial review (relevant sections of current law include Sections 18(7) and 71A(4)).
Government discretion in registering trade unions
2. Malaysia shall:
(a) amend relevant sections of Act 262 to remove discretion of the Director General of Trade Unions (DGTU) to refuse to register a trade union when another exists, and to remove the discretion of the DGTU to refuse registration because the trade union is likely to be used for unlawful purposes contrary or inconsistent with its objects and rules (relevant sections of current law include Section 12(2) and Section 12(3)(a));
(b) amend the implementing regulations to Act 262 to limit the discretion of the DGTU and to clarify that “unlawful” refers only to serious breaches of law (relevant sections of current law include Section 12(3)(b), Section 12(3)(c), Section 12(3)(d) and Section 12(3)(e)(i)); and
(c) amend relevant sections of Act 262 to limit the DGTU’s discretion to deny registration of a union due to the proposed union’s name to only exceptional circumstances, such as creating a threat to public order or inflaming sensitivities related to race or religion (relevant sections of current law include Section 12(3)(e)(ii)).
Government discretion to cancel trade union registration
3. Malaysia shall:
(a) amend relevant sections of Act 262 and its implementing regulations to remove the discretion of the DGTU to cancel a trade union’s registration and to clarify that “unlawful” refers only to serious breaches of law (relevant sections of current law include Sections 15(1)(b)(ii) and Section 15(1)(b)(iii));
(b) amend relevant sections of Act 262 to limit the discretion of the DGTU to cancel a union’s registration (relevant sections of current law include Section 15(1)(b)(iv)); and
(c) amend the implementing regulations to Act 262 to limit cancellation of a trade union’s registration only to serious breaches of law (relevant sections of current law include Section 15(1)(b)(v)).
Cancellation of registration when two or more unions exist
4. Malaysia shall amend relevant sections of Act 262 to remove the discretion of the DGTU to cancel a union’s registration when two or more unions exist, and replace it with a process for determining representation of workers for the purposes of collective bargaining in a particular establishment, trade, occupation, or industry (relevant sections of current law include Section 15(2)).
Discretion to suspend a union
5. Malaysia shall amend the implementing regulations to Act 262 to clarify that “purposes prejudicial to or incompatible with…public order” shall not include the exercise of protected trade union activity (relevant sections of current law include Section 18(1)).
Restrictions on formation of unions in “similar” trades, occupations or industries
6. Malaysia shall amend relevant sections of Act 262, to remove the limitation on forming a union in only a “similar” trade, occupation or industry (relevant sections of current law include Section 2, Section 32 and Section 33).
Restrictions on formation of, and affiliation with, union federations or confederations in “similar” trades, occupations or industries
7. Malaysia shall amend relevant sections of Act 262 to remove the limitation on forming or affiliating with a union federation or confederation in only a “similar” trade, occupation or industry (relevant sections of current law include Section 72 and Section 74).
Affiliation with international unions
8. Malaysia shall amend relevant sections of Act 262 to remove the DGTU’s discretion in allowing trade unions to affiliate with an international union, and may provide that a union establish member consent through secret ballot vote of its members with a quorum, as established by the union’s constitution or by-laws, in order to affiliate with an international union (relevant sections of current law include Section 76A, Section 76B and Section 76C).
Restrictions on trade union membership and leadership (dismissed, suspended or retired workers)
9. Malaysia shall amend relevant sections of Act 262 to remove the prohibitions on dismissed, suspended and retired workers remaining as union members (relevant sections of current law include Section 26(1A) and Section 26(1)(a)).
Trade union leadership
10. Malaysia shall:
(a) amend relevant sections of Act 262 to allow non-citizens to run for election to union office if they have been legally working in Malaysia for at least three years (relevant sections of current law include Section 28(1)(a));
(b) amend relevant sections of Act 262 by deleting the term “employee of a political party” to remove that restriction on membership of the executive of a trade union (relevant sections of current law include Section 28(1)(c1));
(c) issue implementing regulations to Act 262 to establish that the meaning of “of any offence” is limited only to offences directly relevant to the integrity required to exercise trade union office, such as a breach of fiduciary duty (relevant sections of current law include Section 28(1)(d)); and
(d) amend relevant sections of Act 262 consistent with the above changes (relevant sections of current law include Section 30).
Collective bargaining
11. Malaysia shall amend relevant sections of the Industrial Relations Act 1967 (Act 177) to remove broad restrictions on the scope of collective bargaining, including the restrictions on terms and conditions of employment (relevant sections of current law include Section 13(3)).
Strikes
12. Malaysia shall amend relevant sections of Act 262 to provide for a quorum requirement in an enterprise union strike vote as two-thirds of the members and the consent of 50 percent plus 1 of the member votes cast (relevant sections of current law include Section 25A(1)(a));
13. Malaysia may establish after consulting with domestic stakeholders, a reasonable quorum requirement for a strike vote for non-enterprise unions and federations that would not hinder industrial level action; and
14. Malaysia shall amend the implementing regulations of Act 262 to limit the discretion of the DGTU in determining whether a strike would contravene provisions of law (relevant sections of current law include Section 40(6)).
Limitations on strike issues
15. Malaysia shall amend relevant sections of Act 177 to remove limitations on strikes on any matters covered by Act 177, Section 13(3) (relevant sections of current law include Section 44(e)).
Penal sanctions for peaceful strikes
16. Malaysia shall amend relevant sections of Act 177 to remove penal sanctions for peaceful strikes, regardless of whether such strikes are inconsistent with IRA provisions (relevant sections of current law include Section 46, Section 47 and Section 48).
Administrative discretion in dispute resolution
17. Malaysia shall amend relevant sections of Act 177, including by deleting “of his own motion or”, to remove administrative discretion to intervene in a trade dispute without the request of the parties (relevant sections of current law include Section 19(2) and Section 26(2)).
Representation in administrative or judicial hearings
18. Malaysia shall:
(a) amend relevant sections of Act 177 to allow employers, trade unions and trade unionists to choose their representatives in administrative hearings, including in proceedings regarding dismissals (relevant sections of current law include Sections 19B(2), Section 20(6) and Section 20(7));
(b) amend relevant sections of Act 177 to remove restrictions on representations in proceedings involving trade disputes (relevant sections of current law include Section 19B(1)(b)); and
(c) amend relevant sections of Act 177 to require only that representatives meet minimum qualifications essential to their responsibilities (relevant sections of current law include Section 27(1)).
Essential services
19. Malaysia shall amend relevant sections of Act 177, including the First Schedule — Essential Services, to limit the range of industries in which strikes are prohibited on the basis that the industries are essential services, consistent with the rights as stated in the ILO Declaration.
Subcontracting and outsourcing
20. Malaysia shall:
(a) ensure that the use of subcontracting or outsourcing is not used to circumvent the rights of association or collective bargaining;
(b) amend the implementing regulations to the Employment Act 1955 (Act 265), Section 2A; Sabah Labour Ordinance (Cap. 67), Section 2A; and Sarawak Labour Ordinance (Cap. 76), Section 2A, to provide guidance for the identification of the appropriate “employer(s)” for purposes of ensuring meaningful associational and other rights for workers who are provided to a principal either by a labour outsourcing company or a contractor-for-labour; and
(c) require that subcontracting and outsourcing arrangements be made in writing, and be subject to verification by the Ministry of Human Resources.
B. Forced Labour
Protections against the withholding of passports
1. Malaysia shall:
(a) amend the implementing regulations to the Passport Act 1966 (Act 150) to reinforce that retaining a worker’s passport by his or her employer is illegal. Such regulations shall include requiring that foreign workers are fully informed of their right to retain their own passports and informing workers that they retain the right to access their passports at any time, without delay or approval of any other individual and without consequence to their status and relationship with their employer or recruitment agency;
(b) amend the implementing regulations to Act 150 to require that private employers that utilize foreign workers in their operations (either through a direct employment relationship or through an employment agency) provide to each foreign worker a notice informing workers of their right to retain their passport and information on how to report violations of this right. Private employers with more than 10 foreign workers and recruitment agencies also shall post a notice to this effect;
(c) amend the Workers’ Minimum Standards of Housing and Amenities Act 1990 (Act 446) so that it covers all sectors (beyond only plantations) and to require that private employers or recruitment agencies that provide housing to foreign workers provide secure facilities (for example, personal lockers) for the storage and safekeeping of workers’ passports and other valuables. These facilities must allow workers to access their passports at any time and without prior authorization; and
(d) effectively enforce relevant laws and regulations to investigate and prosecute employers and recruitment agencies that retain employee passports.
Foreign worker recruitment practices, contracts and fees
2. Malaysia shall:
(a) ensure that all entities that recruit foreign workers, whether a recruitment agency or a direct employer, are covered by the sections of the Private Employment Agencies Act of 1981 (Act 246), including provisions regarding limitations on the recruitment fees charged to a foreign worker;
(b) amend relevant laws and regulations to provide that any government levies charged for employment of foreign workers are the obligation of the employer, rather than the foreign worker;
(c) amend its laws and regulations to provide that large-scale, repeated or egregious violations of labour law are punishable by a denial of future quota requests of the offending employer or by a revocation of the license of offending recruitment agency;
(d) ensure that any Memorandum of Understanding regarding the recruitment of foreign workers between Malaysia and a government of a country that provides such workers will require that recruitment agencies and employers provide foreign workers a valid written contract in their own language, including their terms of work, prior to their entrance into Malaysia; and
(e) amend relevant sections of Act 265 to prohibit contract substitution.
Trafficking and forced labour victim protection services
3. Malaysia shall:
(a) issue necessary regulations to the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 (Act 670) to allow victims of trafficking to move freely to and from shelters; provide victims of trafficking access to legal counsel of their choice; allow victims of trafficking to work and find new employment under clearly established procedures; enable non-governmental organizations to own and operate shelters for trafficking victims; and
(b) waive any fees associated with the required pass provided through the Labour Department for foreign workers who are involved in an investigation of violations of labour law (other than forced labour, covered above) to remain in Malaysia and seek alternative employment.
Foreign worker housing and freedom of movement
4. Malaysia shall:
(a) amend the implementing regulations to Act 446 to require that private employers or recruitment agencies that provide housing for foreign workers provide notice informing workers, in a language that they understand, of their right to freedom of movement under Malaysian law and information on how to report violations of this right. Private employers with more than 10 foreign workers and recruitment agencies shall also be required to post the notice on their premises visible to workers; and
(b) amend the implementing regulations to Act 446 to require that private employers or recruitment agencies, which provide housing for foreign workers provide a notice, in a language the workers understand, informing those workers of their right to acceptable housing conditions under this Act and information on how to report violations of their right to acceptable housing conditions. Private employers with more than 10 foreign workers and recruitment agencies shall also be required to post the notice on their premises visible to workers.
C. Child Labour
Malaysia shall:
(a) issue a list of hazardous types of work prohibited for persons under 18 years of age.
(b) amend the implementing regulations to the Children and Young Persons (Employment) Act 1966 (Act 350), Sabah Labour Ordinance (Cap. 67) and Sarawak Labour Ordinance (Cap. 76) to ensure that a minimum age of at least 13 is established for admission to light work.
D. Employment Discrimination
Malaysia shall amend relevant sections of the Act 265, Cap. 67 and Cap. 76 to prohibit discrimination, in respect of employment and occupation, including by amending Act 265, Section 34, 35 and 36, and relevant sections in Cap. 67 and Cap. 76 to remove the prohibitions on employment of women in certain occupations.
III. Institutional Reforms and Capacity Building
Malaysia shall undertake necessary institutional changes and capacity building to implement the amended statutes and regulations, including: establishing new administrative functions, procedures and mechanisms; expanding and adequately training labour inspectors and relevant criminal system authorities to effectively enforce the amended statutes and regulations; and providing the necessary resources to implement these changes.
A. Enforcement of Labour Laws and Protections
1. Malaysia shall:
(a) allocate resources necessary for the effective enforcement of its labour laws, including additional labour officer and dedicated inspector positions needed to enforce the new laws and practices resulting from this Plan;
(b) revise internal inspection and other enforcement procedures for the labour inspectorate to ensure effective enforcement of the new and existing legal provisions, including the prohibition on employers retaining passports of employees, and train all relevant personnel on the reformed procedures and new provisions;
(c) develop, in coordination with the ILO, a training program for labour inspectors and plan for increased labour inspections targeted at addressing forced labour and practices that increase workers’ vulnerability to forced labour, including violations of laws governing recruitment fees, recruitment practices, withholding of passports or other identity documents, contract substitution, wage payments below the legally required amount and unlawful deductions, withholding of workers’ wages in escrow, and living conditions of foreign workers, including restrictions on movement; and
(d) require the Enforcement Agencies Integrity Commission (EAIC) to report biannually statistics on the number of complaints received, investigations conducted and final disposition or remediation of those investigations that involve foreign workers (broken down by government agency and type of violation).
IV. Transparency and Sharing of Information
A. Public Comment
Consistent with its existing procedures, Malaysia shall provide for public comment the draft legal instruments that result from this Plan and publicly post final legal instruments on the applicable agency website.
B. Collaboration
Malaysia and the United States intend to collaborate on the development of the relevant reforms and instruments that result from this Plan.
C. Outreach and Education
To inform and educate stakeholders, including employers and workers, of their rights and responsibilities under Malaysian law, Malaysia shall launch an outreach program on the legal and institutional changes that result from this Plan, as well as related remedies and courses of action available to enforce those rights.
V. Government to Government Mechanism
1. The United States and Malaysia shall regularly assess progress in implementing this Plan, including follow-up enforcement and application of the amended laws and regulations and institutional reforms, and, to this end, agree to establish a standing bilateral Senior Officials Committee (SOC) comprising senior officials from the Office of the U.S. Trade Representative and the Department of Labor for the United States and from the Ministry of International Trade and Industry and the Ministry of Human Resources for Malaysia to monitor, assess and facilitate rapid response to any concerns about compliance with and implementation of the legal and institutional reforms under this Plan.
2. The United States and Malaysia shall designate the responsible senior officials prior to entry into force of this Agreement between the United States and Malaysia and promptly inform the other Party of any subsequent changes.
3. The SOC shall meet, in person or by any technological means available, annually for seven years after the date of entry into force of this Agreement between the United States and Malaysia. SOC members shall be supported by technical-level officials, who shall meet as necessary. At the request of either Malaysia or the United States, the SOC shall continue to meet annually thereafter or as Malaysia and the United States otherwise agree.
4. At the request of either Malaysia or the United States, the SOC shall convene within 30 days to address any concerns with regard to compliance with or implementation of this Plan. Either Malaysia or the United States may request an ILO review and report on any such concern, in order to inform the discussions of the SOC and determinations of any actions necessary to address concerns.
VI. Technical Assistance
Malaysia and the United States shall endeavor to secure funding for technical assistance programming to directly facilitate implementation of the legal and institutional reforms in this Plan. Malaysia shall request the cooperation, advice and technical assistance of the ILO to help in such implementation and endeavor to conclude the negotiation of an agreement with the ILO for this purpose.
VII. Implementation
1. Malaysia shall enact the legal and institutional reforms in Parts II and III of this Plan prior to the date of entry into force of the TPP Agreement as between the United States and Malaysia, except as otherwise provided for in this Plan.
2. This Plan shall be subject to consultations under Article 19.5 (Labour Consultations) of the Labour Chapter, except that with respect to paragraphs 2 and 3, the requirement to circulate the request and reply, respectively, to the other TPP Parties, shall not apply; and paragraph 4 shall not apply.
3. This Plan shall be subject to dispute settlement under Chapter 28 (Dispute Settlement) of the TPP Agreement, except for Article 28.13 (Third Party Participation), which shall not apply.
November [-], 2015
The Honorable Vu Huy Hoang
Minister of Trade and Industry
Ministry of Trade and Industry
Hanoi, Vietnam
Dear Minister Vu Huy Hoang:
I have the honor to confirm that the United States of America and Viet Nam have reached agreement with respect to the “United States — Viet Nam Plan for the Enhancement of Trade and Labour Relations”, a bilateral instrument in accordance with Chapter 19 of the TPP Agreement attached to this letter.
I have the honor to propose that this letter and your letter in reply confirming that your Government shares this understanding shall constitute an agreement between our two Governments. This agreement shall enter into force on the date of entry into force of the TPP Agreement between our two governments.
Sincerely,
Ambassador Michael B. G. Froman
[-] November 2015
The Honorable Michael Froman
United States Trade Representative
600 17th Street, NW
Washington, DC 20508
Dear Ambassador Froman:
I am pleased to receive your letter of [insert date], which reads as follows:
I have the honor to confirm that the United States of America and Viet Nam have reached agreement with respect to the “United States — Viet Nam Plan for the Enhancement of Trade and Labour Relations”, a bilateral instrument in accordance with Chapter 19 of the TPP Agreement attached to this letter.
I have the honor to propose that this letter and your letter in reply confirming that your Government shares this understanding shall constitute an agreement between our two Governments. This agreement shall enter into force on the date of entry into force of the TPP Agreement between our two governments.
I have the honor to confirm that the understanding referred to in your letter is shared by my Government, and that your letter and this letter in reply shall constitute an agreement between our two governments.
Sincerely,
VU HUY HOANG
Minister of Trade and Industry
United States-Viet Nam Plan for the Enhancement of Trade and Labour Relations
This Plan shall create rights and obligations only as between Viet Nam and the United States.
I. Preamble
The Governments of the Socialist Republic of Viet Nam and the United States:
ACKNOWLEDGING that each Party commits under Chapter 19 (Labour) to obligations concerning its labour law[1] and practice, including with regard to its laws and regulations and the labour rights as stated in the ILO Declaration;
RECOGNIZING the importance of enforcement of and compliance with their respective law;
UNDERTAKE through this Plan the following commitments consistent with those obligations.
II. Legal Reforms
1. Viet Nam shall enact the following legal reforms, either by amending existing laws, decrees or regulations or by issuing new laws, decrees or regulations and shall enact any additional changes required to ensure consistency across the legal code.
2. Viet Nam shall ensure that its laws and regulations permit workers, without distinction, employed by an enterprise to form a grassroots labour union (in Vietnamese to chuc cua nguoi lao dong) of their own choosing without prior authorisation. To operate, a grassroots labour union shall register with its choice of either the Viet Nam General Confederation of Labour (VGCL) or the competent government body. A grassroots labour union registered with the competent government body shall have the right autonomously to elect its representatives, adopt its constitution and rules, organize its administration, including managing its finances and assets, bargain collectively, and organize and lead strikes and other collective actions related to the occupational and socio-economic interests of the workers at its enterprise. For greater certainty, a grassroots labour union registered with the competent government body shall have no lesser rights in law and practice with regard to the labour rights as stated in the ILO Declaration than a grassroots labour union under the VGCL.
A. Ensure the Right of Workers to Freely Form and Join a Labour Union of Their Choosing
1. Viet Nam shall provide in its law and practice that workers may choose to establish grassroots labour unions through the VGCL or the competent government body, and shall establish the necessary legal procedures and registration mechanisms, through decrees or other means, for recognition of a grassroots labor union either by joining the VGCL or by registration with the competent government body. Viet Nam shall ensure that the procedures and mechanisms for registering grassroots labour unions are consistent with the labour rights as stated in the ILO Declaration, including with respect to transparency, the time periods for processing and membership requirements, and without prior authorisation or discretion.
2. Viet Nam shall provide in its law and practice that grassroots labour unions may, if they so choose, form or join organizations of workers, including across enterprises and at the levels above the enterprise, including the sectoral and regional levels, consistent with the labour rights as stated in the ILO Declaration and domestic procedures not inconsistent with those labour rights.
3. Viet Nam shall ensure in its law and practice that:
(a) workers and labour unions registered with the competent government body may request and receive technical assistance and training from any Vietnamese or international worker organization legally operating in Viet Nam; and
(b) on that request, such an organization or its representatives can provide the technical assistance and training for those workers and labour unions,
to understand Vietnamese labour law, meet the requirements and procedures for establishing a labour union, organize a labour union and undertake labour union activities once organized, including to bargain collectively, strike, and conduct labour-related collective activities under the ILO Declaration.
B. Ensure labour unions are able to administer their affairs with autonomy
1. Viet Nam shall ensure that its law does not mandate a labour union registered with the competent government body to operate according to the Statutes of Viet Nam General Confederation of Labour and that its law provides the authority to any labour union registered with the competent government body to adopt and operate according to that union’s own statutes; and Viet Nam shall ensure that its law provides that a grassroots labour union registered with the competent government body is entitled to collect and manage its membership dues and to receive the grassroots union share of the two percent fee paid by the employer on a non-discriminatory basis. Relevant articles in current law include TUL Article 4(8), Article 6(2), Article 26 and Article 27.
2. Viet Nam shall ensure that its law does not provide for the exclusive privilege of a single labour union to engage and consult with the relevant authorities and its law provides for such engagement and consultation without reference to a particular labour union. Relevant articles in current law include Trade Union Law (TUL) Article 10, Article 11, Article 12 and Article 13.
3. Viet Nam shall ensure that its law provides that labour unions registered with the competent government body have the right to ownership and management of their assets and property. Relevant articles in current law include TUL Article 28.
4. Noting that the Constitution of Viet Nam recognizes only labour unions affiliated with the VGCL as “socio-political organizations”, Viet Nam shall ensure that its law will not require labour unions registered with the competent government body to have mandatory political obligations and responsibilities that are inconsistent with the labour rights as stated in the ILO Declaration.
5. Viet Nam shall ensure that its law does not require that an upper-level labour union assist a grassroots labour union in its functions and does specify that an upper-level labour union may do so only on the specific request of a grassroots labour union. Relevant articles in current law include Labor Code (LC) Article 188(1) and Article 188(2).
C. Worker representation in non-unionized workplaces
Viet Nam shall ensure that its law does not require that an upper-level labour union represent non-unionized workers and does provide that an upper-level labour union can represent non-unionized workers only upon the request of those non-unionized workers and only with respect to that worker or those workers who have specifically requested such assistance. Relevant articles in current law include LC Article 188(3) and Article 210(2).
D. Selection of union officials
Viet Nam shall ensure that its law provides that: (1) all labour union officials on an executive board are elected by that labour union’s membership; and (2) the executive body can employ persons to assist with labour union activities. Relevant articles in current law include TUL Article 4(4) and Article 4(5).
E. Interference in organizational activity
1. Viet Nam shall ensure, for purposes of protecting the interests of the employees, including in collective bargaining, that, in its law and practice, it distinguishes between employees and those who have the interests of the employer, and prohibits employer interference with labour unions, consistent with the labour rights as stated in the ILO Declaration, while also respecting labour union rights of managerial and supervisory employees.
2. Viet Nam shall revise Article 24 of Decree 95/2013/ND-CP to expand protection against anti-union discrimination, including element of good faith bargaining, and sanctions sufficient to deter violations.
F. Consistency of other laws
Viet Nam shall ensure that no laws or legal instruments, or provisions therein, such as the law on association, are applied or amended in a manner to undermine labour union-related activity, including organizing labour unions, collective bargaining and strikes, or assisting with those activities, as provided in the LC, TUL and other Vietnamese labour-related laws.
G. Scope of strikes
1. Viet Nam shall ensure that its law allows for rights-based strikes, consistent with ILO guidance. Relevant articles in current law include LC Article 215(1).
2. Viet Nam shall ensure that its law provides for 50 percent plus one of the Executive Committee to be required to approve a strike. Relevant articles in current law include LC Article 212 and Article 213(1).
3. Acknowledging that collective bargaining at the sectoral level and for more than one enterprise is recognised under the LC Viet Nam shall ensure that strikes are permitted when organized for workers of different enterprises at the same levels at which collective bargaining is permitted under law, subject to compliance with domestic procedures that are not inconsistent with the labour rights as stated in the ILO Declaration. Relevant articles in current law include LC Article 215(2).
4. Viet Nam shall amend Decree 41/2013/ND-CP to delete Article 2.1.b of the Decree and the resultant list of affected entities to ensure that strikes are permitted in the exploration and exploitation of oil and gas and supply and production of gas.
5. Viet Nam shall amend Decree 46/2013/ND-CP to delete Article 8.1.
H. Forced Labour
1. Viet Nam shall provide by decree that forced labour as referred to in LC Article 3(10) includes “debt bondage”.
2. Viet Nam shall amend relevant Penal Code (PC) articles to apply appropriate criminal sanctions for the use of forced labour.
3. Viet Nam shall amend all relevant provisions, including the legal instruments implementing the law on drug control and law on administrative sanctions, to ensure that treatment in drug rehabilitation centers is medically appropriate and does not subject patients to conditions of forced or compulsory labour, consistent with international standards, and to require that drug abuser entry be voluntary or based on a court decision.
I. Discrimination
1. Viet Nam shall issue clarifying policy guidance explaining the application of LC Article 8 to make clear that the law prohibits discrimination based on color, race and national extraction.
2. Viet Nam shall amend its law to prohibit discrimination in “all aspects of employment.” Relevant articles include LC Article 8.
3. Viet Nam shall amend LC Article 160 to protect the occupational safety and health of women workers while removing prohibitions on women engaging in specified occupations.
III. Institutional Reforms and Capacity Building
Viet Nam shall undertake necessary institutional changes and capacity building to implement the amended laws and regulations, including: establish new administrative functions, procedures and mechanisms; expand and adequately training the labor inspectorate and relevant criminal system authorities to effectively enforce the amended laws and regulations; and provide the necessary resources, including hire additional staff as needed to implement these changes.
A. TPP National Contact Point
1. Viet Nam shall designate the appropriate office as its contact point under Article 19.10 (Contact Point) and ensure its adequate staffing.
2. Viet Nam shall establish and disseminate administrative procedures for the receipt and consideration of public submissions as provided for in Article 19.9 (Public Submissions).
B. Industrial Relations Activities
1. Viet Nam shall designate the competent government body and establish appropriate administrative processes within the competent government body, Ministry of Labour, Invalids and Social Affairs (MOLISA) and Departments of Labour, Invalids and Social Affairs (DOLISAs), as applicable, to apply legal reforms on and to ensure:
(a) registration of grassroots labour unions consistent with Section II.A. of this Plan;
(b) workers’ right to strike; and
(c) effective recognition and protection of the right to bargain collectively.
2. Viet Nam shall establish industrial relations bodies and mechanisms, which shall provide mediation and conciliation services and develop and implement training programs for the resolution of disputes between workers and employers, consistent with LC Article 235(4), Article 72, Articles 195 through 198 and Articles 203 through205.
3. Viet Nam shall designate and train an adequate number of personnel within MOLISA and DOLISAs and other appropriate bodies, as applicable, to implement the processes in paragraphs B.1 and 2.
C. Labor Inspection Capacity
1. Viet Nam shall revise internal inspection and other enforcement procedures for the labor inspectorate of MOLISA and DOLISAs to ensure effective enforcement of the new legal provisions and train all relevant MOLISA and DOLISAs personnel on the new provisions and procedures.
2. Viet Nam shall establish and implement an effective complaint mechanism in MOLISA and DOLISAs for workers to inform those authorities confidentially and anonymously of violations of the new legal provisions that includes, at a minimum, procedures for referring complaints to labor inspectors for follow up and for documenting and tracking the follow-up inspections and investigations conducted, including status, violations identified, fines and sanctions levied and remediation.
3. Viet Nam shall allocate sufficient resources necessary for MOLISA’s and DOLISAs’ enforcement of labor law, including 750–800 permanent labor inspectors for MOLISA by the end of 2016 and 1200 by the end of 2020, up from the existing 500.
D. Implementation of Procedures
Viet Nam shall develop and implement procedures, as needed, and train relevant local and national personnel responsible for criminal and civil law enforcement, both on the new legal reforms and procedures to ensure the exercise of labour union-related activity provided in the LC, TUL and other Vietnamese labour-related laws, as well as on the criminal prosecution of the use of forced labour.
E. Forced and Child Labour
1. Recognising that Viet Nam publicly released the National Child Labour Survey, including the findings and methodology, Viet Nam shall:
(a) Develop and implement a strategy for targeting inspection and other enforcement activities to sectors where forced labour or child labour has been identified through the National Child Labour Survey or otherwise, including at informal work sites and sub-contractors in the garment industry.
(b) Allow independent experts legally operating in Viet Nam to carry out research studies in sectors where forced labour or child labour has been identified and to publicly release their findings, source data and methodology.
2. Viet Nam shall take action, through MOLISA and other relevant ministries and departments, to ensure that treatment in drug rehabilitation centers is medically appropriate consistent with international standards, requires that drug abuser entry be voluntary or based on a court decision, and does not subject patients to conditions of forced or compulsory labour, including by establishing and implementing a mechanism for regular monitoring and public reporting by technical experts.
IV. Transparency and Sharing of Information
A. Budget Information
Viet Nam shall publicly disclose the annual MOLISA budget, including to the extent practicable disaggregated information on resource allocations and staffing related to the implementation of commitments made in this Plan.
B. Public Comment
1. Viet Nam shall provide for public comment, consistent with its existing procedures, the draft laws and regulations that result from the commitments in this Plan.
2. Viet Nam shall, consistent with its existing procedures, publicly post on the MOLISA or other applicable agency website the final legal instruments after their issuance.
3. Viet Nam shall make publicly available every six months for 10 years after the date of entry into force of the Trans-Pacific Partnership (TPP) Agreement between the United States and Viet Nam, the following:
(a) Detailed information on the status and final outcomes of applications for labour union registration, including the time taken to process the applications and the basis for denial, if applicable, as well as detailed information on collective bargaining agreements concluded and strikes declared.
(b) Statistics on the number of inspections and investigations conducted by MOLISA and DOLISAs, disaggregated by region, sector and internationally recognised labour right listed in Article 19.1 (Definitions), as well as statistics on the outcomes of the inspections and investigations, including confirmed violations, fines and sanctions levied, and remediation.
C. Collaboration
Viet Nam and the United States intend to collaborate in good faith on the development of the relevant reforms and instruments prepared to implement this Plan.
D. Outreach and Education
Viet Nam shall launch an outreach program to inform and educate workers, employers and other stakeholders on their rights and responsibilities under the labour law, including the new laws and regulations amended under this Plan, and on the new administrative processes for their implementation, as well as related remedies and courses of action available to enforce those rights.
V. Review
The United States and Viet Nam shall regularly assess progress in implementing this Plan, including follow-up enforcement and application of the amended laws, decrees and regulations and institutional reforms, and, to this end, agree to the following actions:
A. Government-to-Government Mechanisms
Senior Officials Committee
1. The United States and Viet Nam hereby establish a standing bilateral Senior Officials Committee (SOC) composed of senior officials from the Office of the U.S. Trade Representative and the Department of Labor for the United States and from the Ministry of Industry and Trade and the Ministry of Labor, Invalids, and Social Affairs for Viet Nam to monitor, assess, and facilitate rapid response to any concerns about compliance with and implementation of the legal and institutional reforms under this Plan. The United States and Viet Nam shall designate the responsible senior officials prior to entry into force of the TPP Agreement for the United States and Viet Nam and promptly inform the other Party of any subsequent changes. The SOC shall meet, in person or by any technological means available, annually for 10 years after entry into force of the TPP Agreement between the United States and Viet Nam. SOC members shall be supported by technical-level officials, who shall meet semi-annually for 10 years. At the request of either Viet Nam or the United States, the SOC shall continue to meet annually thereafter or as Viet Nam and the United States otherwise agree. The SOC shall discuss and consider any reports or recommendations by the Technical Assistance Program (TAP) and the Labor Expert Committee (LEC) established below. At the request of either Viet Nam or the United States, the SOC shall convene within 30 days to determine action necessary to address any concerns with regard to compliance with or implementation of the legal and institutional reforms under this Plan. Viet Nam and the United States together may request an ILO review and report on any such concern, in order to inform the discussions of the SOC and determinations of any actions necessary to address those concerns.
Bilateral Review
2. The United States and Viet Nam at the Ministerial level or their designees shall, in the third, fifth, and tenth year after entry into force of the TPP Agreement between the United States and Viet Nam, review and assess the implementation of this Plan, including the implementation of the legal and institutional reforms thereunder, in light of the obligations contained in Chapter 19 (Labour). In undertaking those reviews, the United States and Viet Nam shall consider the input of the SOC. If at the end of a review the United States continues to have concerns about Viet Nam’s compliance, the United States and Viet Nam shall consider taking appropriate action under the TPP Agreement.
B. Supporting Mechanisms
1. To support the governmental review mechanisms established above, the United States and Viet Nam agree to the following actions.
Technical Assistance Program
2. Viet Nam, with support from the United States, shall seek the establishment of a Technical Assistance Program (TAP) by the ILO in Viet Nam to provide continuous and regular support to Viet Nam to facilitate the implementation of the legal and institutional reforms described in this Plan. The TAP shall produce a public report two years after entry into force of the TPP Agreement between the United States and Viet Nam and bi-annually thereafter for eight years containing information and data relevant to assessing such implementation, including on industrial relations practices in Viet Nam. The report may provide recommendations for improvement in implementation. Viet Nam shall take into account the recommendations of the TAP.
Labour Expert Committee
3. The United States and Viet Nam hereby establish a Labor Expert Committee (LEC) comprising three members. The United States and Viet Nam shall agree on the Chair, who may be a representative of the ILO or other individual with expertise in international labour standards who shall be unbiased, objective and independent of either Party, within 30 days after entry into force of the TPP Agreement between the United States and Viet Nam. The United States and Viet Nam shall each appoint one member not affiliated with or taking instructions from either government, who shall have expertise in international labour standards, within 60 days after entry into force of the TPP Agreement between the United States and Viet Nam. The LEC shall produce a public report providing a factual review, including information and data on matters in Sections II, III, and IV, including subsection B.3, of this Plan relevant to Viet Nam’s application and implementation of the legal and institutional reforms under this Plan, including any challenges or concerns. The reports shall be produced at two and one-half years, four and one-half years, six and one-half years, and eight and one-half years after entry into force of the TPP Agreement between the United States and Viet Nam. In its reports, the LEC also shall provide recommendations that are relevant to any identified concerns related to Viet Nam’s implementation of the legal and institutional reforms under this Plan. After such time, these reviews and reports shall continue at five-year intervals at the request of Viet Nam or the United States. The LEC shall consider the TAP reports and recommendations, including whether Viet Nam has implemented its recommendations, in its reviews. The LEC may request information from Viet Nam to ensure the timely development of its reports. Viet Nam shall cooperate with the LEC and provide any requested information to the extent practicable. The LEC shall solicit and consider the views of interested persons in the United States and Viet Nam, and consider information from any relevant public submissions made pursuant to Article 19.9 (Public Submissions).
VI. Technical Assistance
Viet Nam and the United States shall endeavor to secure funding for technical assistance programming to directly facilitate implementation of the legal and institutional reforms in this Plan. Viet Nam shall request the cooperation, advice, and technical assistance of the ILO to help in such implementation and endeavor to conclude the negotiation of an agreement with the ILO for this purpose. Viet Nam shall implement recommendations provided by the ILO as the result of this assistance. Viet Nam and the United States shall endeavor to work with other interested TPP Parties to support technical assistance programs relevant to implementation of the legal and institutional reforms in this Plan.
VII. Implementation
1. Viet Nam shall enact the legal and institutional reforms in Sections II and III of this Plan prior to the date of entry into force of the TPP Agreement between the United States and Viet Nam, except as otherwise noted in this Plan.
2. Viet Nam shall comply with paragraph II.A.2 of this Plan no later than five years from the date of entry into force of the TPP Agreement between the United States and Viet Nam.
3. This Plan shall be subject to consultations under Article 19.15 (Labour Consultations) of the Labour Chapter, except that with respect to paragraphs 2 and 3, the requirement to circulate the request and reply, respectively, to the other TPP Parties, shall not apply; and paragraph 4 shall not apply.
4. This Plan shall be subject to dispute settlement under Chapter 28 (Dispute Settlement) of the TPP Agreement, except for Article 28.13 (Third Party Participation), which shall not apply.
5. Chapter 29 (General Exceptions) also shall apply to this Plan.
VIII. Review of Implementation
1. The United States shall review the operation of paragraph II.A.2 of this Plan after the fifth anniversary of the date of entry into force of this Agreement between the United States and Viet Nam.
2. If, following the review in paragraph 1 of this Section and before the seventh anniversary of the date of entry into force of this Agreement between the United States and Viet Nam, the United States considers that Viet Nam has failed to comply with paragraph II.A.2 of this Plan, the United States shall notify Viet Nam, in writing, of its determination. Viet Nam may, within 30 days after the date of the delivery of the notice, request, in writing, a meeting to discuss the matter.
3. The United States shall agree to meet with Vietnam to discuss the matter within 30 days of the receipt of Viet Nam’s request. If Viet Nam does not make a request under paragraph 2 of this Section or, if the United States and Viet Nam do not agree that Viet Nam has complied with paragraph II.A.2 of this Plan within 60 days after the date of the receipt of a request under paragraph 2 of this Section, the United States may withhold or suspend any tariff reductions that are scheduled to come into effect thereafter.
4. If the United States withholds or suspends any tariff reductions under Paragraph 3 of this Section and Viet Nam considers that it is in compliance with paragraph II.A.2 of this Plan, Viet Nam may have recourse to dispute settlement under Chapter 28 (Dispute Settlement), except as otherwise specified in this Plan. Further, for purposes of this paragraph, Viet Nam’s request for the establishment of a panel under Article 28.7 shall be limited to the matter of whether Viet Nam has complied with paragraph II.A.2.
5. If in its final report the panel determines that Viet Nam is in compliance with paragraph II.A.2 of this Plan, the United States shall promptly apply the rate of duty set out in the U.S. schedule that would have applied had the United States not taken action under Paragraph 3 of this Section.
6. If the United States withholds or suspends any tariff reductions under Paragraph 3 of this Section and thereafter the United States and Viet Nam agree that Viet Nam has complied with paragraph II.A.2 of this Plan, the United States shall promptly apply the rate of duty set out in the U.S. schedule that would have applied had the United States not taken action under Paragraph 3 of this Section.
[1] For purposes of this Plan, “labour law” means all legally binding measures of a Party related to labour, including “labour laws” as defined in Article 19.1.