English - CEDAW Southeast Asia

CEDAW and the Law:
affects the rights and benefits of females or children, the representative of the female
employees must be consulted.” Failing to consult representatives of female labourers is
penalized by the Decree on Labour Violations. 494
Termination of employment
The Labour Code contains provisions on termination on employment.
First, Article 17 of the Labour Code provides for unemployment as a result of
organizational restructuring or technological changes. When an employee who has been
employed in the business for a period of 12 months or more becomes unemployed, the
employer is responsible for re-training and assigning the employee to a new job, otherwise the
employer must pay an allowance for loss of work. 495 Where retrenchment is applicable to a
number of employees, it must be based on business requirements, seniority, skill, family
conditions, and other factors of each employee in consultation with the executive committee
of the trade union and on notification to the local state management agency. 496 There are no
provisions providing a clear guarantee that retrenchment is made without discrimination. The
term ‘family conditions’ as a basis for continued employment is vague and may be abused to
discriminate against women on the basis of their stereotyped role of performing care work for
their families, Hence, it is recommended that the term be removed as a basis of consideration
for future employment or clearly defined.
To avoid any indirect discrimination during a retrenchment, the local state management
agency must carefully monitor the proportion of men and women retrenched and from which
positions. Sex-disaggregated data on this matter is necessary.
Recommendation: It is suggested that a clear provision prohibiting
discrimination during retrenchments must be provided. It is also recommended that
family conditions be removed as a basis for considering who will be retrenched. Legal
documents must also provide for close monitoring by state management agency of the
proportion of men and women retrenched and from which positions. Sexdisaggregated
data on this matter must be required from enterprises.
Second, unilateral termination of a labour contract 497 by an employee prior to expiry is
allowed by law in the case of a female employee who is pregnant and must cease working on
the advice of a doctor. 498 The employee is not liable for payment of compensation to the
employer. The period of notice to the employers depends on the advice of the doctor. 499 (See
also discussion above on transfer to lighter duties).
230
Third, an employer is prohibited from dismissing, or unilaterally terminating the labour
contract of, a female employee for reason of marriage, pregnancy, taking maternity leave or
raising a child aged under 12 months, unless the enterprise ceases its operations. 500
494
Decree on Labour Violations, Article 15(1)(b)
495
Labour Code, Article 17(1)
496
Ibid., Article 17(2)
497
This refers to a definite term labour contract with a duration of 12-36 months or a labour contract for a seasonal or specific
job with a duration of under 12 months.
498
Labour Code, Article 37
499
Ibid., Article 111
500
Ibid., Articles 39 and 111
Review of key legal documents and compliance with CEDAW