A Labour Law Summary

Week 2 Summary of readings THE SUPERVISORY MECHANISM OF THE ILO “The future of Labour Law: Is there a role for International Labour standards?” The Traditional System

• Key reason for the establishment of the ILO= the perception that workers need to be protected against the adverse effects of international competition. The idea was that states shouldn’t be able to obtain an unfair advantage by tolerating abusive labour conditions.

• Art 41 of the original ILO Constitution articulated some “methods and principles” of “special and urgent importance”

o Labour should not merely be a commodity or article of commerce o Wages should be adequate to have a reasonable standard of life o The right of association for all lawful purposes o An 8 hour working day, or 48 hour working week o A weekly rest of at least 24 hours o Abolition of child labour o Equal pay for equal work between men and women o The establishment of a system to ensure protection for the employed.

• These are now reflected in the preamble to the Constitution. • There are 8 core ILO human rights standards, which form the basis of the

Declaration of Fundamental Rights and Principles (adopted in 1998). These are;

o Conventions 87 and 98 (Freedom of Association) o Equal Remuneration Convention (number 100) o Convention 29 (forced labour #1) o Convention 105 (Forced labour) o Discrimination (Employment and Occupation Convention) (No 111) o Minimum Age Convention (No. 138) o Worst Forms of Child Labour Convention (No 182)

• Apart from these issues the standard setting in the post war period has concentrated upon the needs of specific occupational groups; occupational health and safety; social security and conditions of work.

• There is an assumption that all countries will ratify new Conventions but there is no obligation to. Ratifying states must “take such action as may be necessary to make effective the provisions of the Convention”. Failure to do so is a breach of international law.

• States must report annually to the International Labour Office on the measures it has taken to give effect to the Conventions to which it is a party (art 22 of the ILO Constitution). The Director-General is supposed to make summaries of all the reports before the next meeting of the ILC but in practice this is delegated to the CEACR.

CEACR:

• The CEACR consists of 20 jurists and meets once a year for 3 weeks. It is meant to examine reports on all ratified Conventions that have been submitted over the previous year, along with the reports on un-ratified Conventions and Recommendations that have been requested under Art 19 of the ILO Constitution.

• The report of the CEACR is used as the basis for discussion at the ILC Committee on the Application of Conventions and Recommendations. This is how member states that have breached ratified Conventions can be called to give a public account of themselves.

• Reports of the CEACR are often used as a source of interpretation of Conventions and Recommendations. They are not however formal determinations as the interpretation of international labour standards (ILS) is meant to be left to the IJC (Art 37 of ILO Constitution). Despite this they are still the most authorative source as to the meaning and effect of ILS.

What has gone wrong? Quantity and Quality of Standards:

• As of June 2003 the ILC had adopted a total of 379 formal standard setting instruments. Also the Constitution and the Declaration of Philadelphia expressly or impliedly impose obligations on member states by virtue of the fact of membership.

• There have been suggested that there are too many standards, and they are of questionable quality and relevance. On the other hand it has been said that there are only too many if the standards do not meet a real need and/or they do not make meaningful provision in relation to the issues they deal with. There is also a need for new standards to take account of changing circumstances e.g. the emergence of new forms of work relationships and changing community expectations.

• “Quality” is subjected but can be measured in general terms by reference to whether a standard makes provision that moves beyond existing standards and has the capacity to confer an actual benefit upon the people whose interests it is meant to protect/promote.

• Many standards have become obsolete. 27 Conventions have been “shelved or withdrawn” but they are still theoretically on the statute book and remain binding on states unless denounced.

Ratification and Compliance:

• Ratification levels provide a rough guide to the practical impact of Conventions. Ratification levels are dropping as states become increasingly reluctant to do so.

• More important is the level of compliance with those Conventions that are ratified, but this too is poor.

o During Cold War era many governments ratified Conventions that had no relevance to them, or they had no realistic prospect of establishing

and maintaining compliance. They did this to get “kudos” for having the most ratifications.

• Also many countries do not honour their reporting obligations, or having done so are found to be in breach of their obligations incurred by ratification. Many of the most serious areas of non-compliance related to the core standards in the 1998 Declaration.

• Levels of non-compliance recorded in the Reports of the CEACR, and of the Governing Body’s Committee on Freedom of Association (CFA) can be assumed to significantly understate the extent of non-compliance. This reflects the fact that the entire system of supervision is in a state of crisis.

o The existing machinery cannot cope with the volume of material generated by ratifying states.

o In practice, the greater part of the work of the CEACR is done by the Office which is extremely under resourced. E.g. the Freedom of Association Branch of the ILS Department has about 8 permanent officials. A Secretariat of this size cannot be expected to develop a level of understanding of the national legal systems of the 157 countries that have ratified Conventions 87 and 98 to ensure that the CEACR and CFA are adequately informed of the state of compliance with each of these conventions in each member state.

o Many states don’t hand in reports when they are due. Sometimes this is a lack of commitment but it is often a lack of resources (e.g. in developing countries).

Globalisation and Other Challenges Globalisation and Trade Liberalisation

• Part of the rationale for the adoption of ILS was to try to ensure that nation states did not obtain an unfair competitive advantage in the international marketplace by tolerating abusive labour conditions. However this logic is flawed given that under the voluntarist model of the ILO member states can simply maintain their unfair advantage by not ratifying.

• There has also always been a tension between preventing unfair competition through maintenance of abusive labour practices and a recognition that some countries can only compete effectively because of their lower labour costs.

• This has special significance in the context of trade liberalisation. Some say that access to liberalised trade regimes should be conditional upon adherence to “core” labour standards. On the other hand this is condemned on that grounds that this is simply a colourful device to protect industry in the developed world. The ILO has not addressed these issues in a coherent or effective manner- the trade/labour standards nexus has been placed in the too hard basket.

o For example the adoption of the 1998 Declaration was only possible because of a clause which expressly stipulated that it could not be used for purposes of trade protection, or to deprive member states of their comparative advantage.

• The ILO has also failed to address the power of transnational corporations and their capacity to direct investment from countries that adhere to relatively high labour standards to those countries who do not.

The end of the Cold War:

• The factors that impelled the practice of trophy ratification ended. • The break up of the Soviet Union and Czechoslovakia and Yugoslavia led to

new ratifications as the states ratified them in their own right. • But there was no longer any consensus that supported adopting these standards

as a means of economic, political or moral pressure on “the other side”. • Also Western governments became increasingly uncomfortable with the right

to strike. The Ascendancy of Neo-liberalism

• Neo-liberal economic orthodoxy is hostile to any kind of interference with the operation of market forces.

• Neo-liberal governments in developed countries want increased labour market “flexibility” and don’t want labour standards in the countries in which they do business.

• This has caused some countries to withdraw from active participation in the ILO.

Competing Sources of Standards:

• The ILO is facing competition from regional groups e.g. the EU. • The emergence of the EU as a source of international labour law is especially

significant because it is supranational labour law that can be enforced both through domestic courts and tribunals and through Community institutions.

• However this has impoverished the ILO’s standard setting and supervisory functions because it has traditionally been the democracies of Western Europe that have been the key drivers of the ILO.

• On the other hand the EU has actively pursued the possibility of ILO membership, which suggests that the ILO is seen to have a continuing relevance in the context of European integration. Also European labour law is mostly about individual rights and not issues such as freedom of association and the right to collective bargaining. This shows that the ILO standards are still of real relevance to EU members.

An organisation in crisis:

• The ILO is excessively compartmentalised and has a overly hierarchical bureaucracy of uneven ability.

• The appropriateness of Tripartism is questioned. o Nowadays, most member states are developing countries o Large workplaces are increasingly rare o Union membership is on the decline o The changing structure of the global economy raises questions about

the continuing basis for worker and employer representation Responding to the Crisis:

Concentrating on Core Standards:

• This led to the adoption of the 1998 Declaration. • It involved all Member States formally committing themselves to the

implementation of the principles enshrined in the core human rights Conventions.

• This duty is said to derive from the fact of ILO membership and not ratification.

• Member states are required to provide an annual report on the core conventions they have NOT ratified. This appears to have been somewhat successful.

• The core principles are important but they should not be regarded as constituting the “core” of international labour law as a whole. E.g. it can be argued that protection against work related injury and disease or access to a fair wage are just as important to the right of national trade union centres to send representatives to the ILC.

• Also there is a persistent refusal of governments in certain developed countries to honour their obligations under the core conventions (e.g. Australia, Canada and the UK’s refusal to bring their law and practice in line with ILO standards of freedom of association). This doesn’t serve as a good example for developing countries and marginalizes both core and non-core standards.

A new approach to standard setting?

• A response to the criticisms concerning the proliferation of the ILS is to adopt fewer of them. This doesn’t seem to be happening.

• There is an increased use of Recommendations. The arguments for a against the use of Recommendations as opposed to Conventions are finely balanced:

o Conventions enjoy a higher status so are a more authorative affirmation of principle.

o Recommendations have had a significant influence upon national law and practice despite this.

o The adoption of Recommendations is subject to the same consultative and deliberative process as Conventions.

• In addition to this is the suggestion that greater reliance should be placed on other forms of soft law e.g. codes of practice, guidelines and “social labelling” programmes.

• These cannot however be regarded as substitutes for properly drawn and effectively supervised ILS.

A new approach to supervision?

• New, more effective procedures need to be developed without the necessity for time-consuming constitutional amendment.

o Adopt a complaints mechanism similar to the CFA in respect of core principles. This hasn’t received much support. The 1998 Declaration was adopted only on the condition that it did not encompass such procedure.

o Expand and streamline the representation process of Art. 24.

o More proactive use of the constitutional provisions relating to the reporting on the effect given to unratified Conventions and Regulations.

o The CEACR cannot do what it is supposed to do. Redefine its focus to be on major issues of policy and principle rather than legal and administrative minutiae.

Addressing the Organisational Crisis:

• The structural problems of the ILO are intractable because some of the difficulties are embedded in the structure of the ILO itself. The procedures for amending the Constitution are such that to make any change, let alone radical change, are very difficult to achieve.

• Can still achieve stuff without constitutional amendment: o Employer and worker’s groups could elect good, energetic members to

the Governing Body. o Impose limits on the number of people that can serve on the Governing

Body. o The ILO can adopt a more inclusive approach to groups and interests

who are not formally represented within the existing institutional structure. They cannot be given formal voting rights but they could be given rights of audience and a role in policy formulation.

Organisations of workers can’t credibly claim they represent all workers anymore

Self employed “informal sector”

Human Rights Complaint Procedures of the ILO ILO Structure

• Established 1909 by the Treaty of Versailles • Tripartite in nature:

o Only organisation in which gvts do not hold all of the votes o Composed of 3 organs:

1. General Conference of representatives of members states (the IL Conference)

2. the Governing Body 3. the IL Office

o 1 and 2 are comprised of 50% gvt representatives and 50% representatives of employers and workers of member states.

• “presence and voting power of non-gvt elements give the ILO a unique perspective on the problems before it and offer possibilities for dealing with practical problems facing ILO members”

The ILO and Human Rights • Focuses on right to

o form trade unions o protection from child labour o protection from forced labour o protection from discrimination o safe and healthy working conditions o social security

• Conventions address a range of subjects o minimum age for work o vocational guidance and traning o protection of wages o occupational safety and health o employment of women o migrant workers o indigenous and tribal peoples o labour administration

• Rights are implemented via the adoption and implementation of conventions and recommendations (adopted at the annual IL Conference) which creates a body of international labour standards

o Conventions= ratification legally obliges states to comply with the terms and report to the ILO on how they are complying

o Recommendations= guidelines for legislation and polices countries may wish to adopt on certain subjects. They create no legal obligation. They often supplement conventions

• 1998 ILO adopted a Declaration of Fundamental Rights and Principles at Work and a follow-up procedure

o Recognises that all member states must respect the core principles arising from the ILO constitution:

Freedom of association The effective recognition of the right to collective bargaining The effective abolition of child labour The elimination of all forms of forced/compulsory labour The elimination of discrimination in respect of employment and

occupation o Under this declaration, ALL member states have to report annually if

they have not ratified all the ILO’s basic conventions on these subjects, stating what obstacles exist.

Supervision of Ratified Convention • CEACR: Committee of Experts on the Application of Conventions and

Recommendations o composed of 20 independent experts on labour law and social

problems for all the major social and economic systems and all pats of the world.

o meets annually to examine reports received from gvts o workers’ and employers’ organisations in countries that have ratified

conventions may also submit comments on how conventions are applied in practise, thus offering a valuable supplement to gvt reports.

o If CEACR notes problems in the application of ratified conventions may respond in two ways

Direct requests: sent directly to gvts and to organisations in the countries concerned.

Observations: for more serious or persistent problems. Sent out AND published as a part of the Committee’s annual report to the IL Conference.

• CCACR: Conference Committee on the Application of Conventions and Recommendations

o Next level of supervision

o Established each year by the IL conference o Reflects the ILO’s tripartite structure of gvts and of workers’ and

employers’ representatives o On the basis of the report of the CEACR, the CCACR selects a number

of especially important/persistent cases and requests the gvts concerned to appear before it and explain the reasons for the situations commented on by CEACR

• ILO Direct Contracts o When a gvt is having issues with applying ratified conventions, the

ILO sends, at request or with consent, an official or an individual expert to discuss the problems with the gvt and to help it arrive at a solution.

Complaint Procedures Kind of Complaint Subject Ratification

Necessary? Who begins the procedure?

Who investigates?

Article 24 “Representation”

Any ILO convention

Yes Any workers’ or employers’ organisation

ILO Governing Body

Article 26 “Complaint”

Any ILO convention

Yes 1. State that has ratified same convention

2. Delegate to the IL Conference

3. ILO Governing Body

Commision of Inquiry

Special Procedure for freedom of Association

Freedom of Association

No 1. Workers’or employers’ organisation concerned

2. ILO bodies, state concerned, ECOSOC

1. Committee on F of A

2. Fact-Finding and Conciliation Commission

Discussions of the complaint procedures described below are arranged as follows:

a. Substantive req’s: What may the complain concern? Against what states may it be submitted? Who may submit a complaint?

b. Formal req’s: To whom must it be submitted? Are there special form and language req’s?

c. Means of investigation d. Kind of decision reached e. Implementation of the decision

Representations under Art24 of the ILO Cn • Substantive Requirements:

o May be filed if a country “has failed to secure in any respect the effective observance of any Convention to which it is a party.”

o Must be member that has ratified o If withdrawn, must still be bound by a convention it had ratified o Submitted by “an industrial association of employers or workers o No restriction of what constitutes an industrial association

o Need no connection with the subject of the complaint o However, will receive more credence if it comes from an organisation

that has international standing or some connection with the subject of the complaint

• Formal Requirements: o To be submitted to the Director-General of the ILO in Geneva o Must be in writing and refer specifically to art24 and to a ratified ILO

Convention o No restrictions to language o Filing organisation should include proof of its status unless it is well-

known o Also contain best-documented and most complete information

available to substantiate the alleged violation • Means of Investigation:

o Tripartite committee appointed by the Governing Body from among its memebnrs examines the substance of the representation

o Committee communicates with the filing organisation asking for anymore information

o Committee communicates with the gvt concerned- ask to commetn on the allegations and to make such statement on the subject as it may think fit.

o If the Governing Body decides in favour of the gvt the procedure is closed.

• Kind of Decision Reached o Publication of a finding of violation constitutes the final deicision o Possible for the Governing Body to decide that a case should

subsequently be handled under the complaint procedure provided for under art26 of the ILO Cn. To be discussed below.

• Implementation of the Decision o Followed up by the ILO’s reguilar supervisory machinery- ie. The

Committee of Experts and the Conference Committee on the Application of Conventions and Recommendations

Complaints under Art26 of the ILO Cn • Substantive requirements

o May be filed if a country “has failed to secure in any respect the effective observance of any Convention to which it is a party.”

o Must be member that has ratified o If withdrawn, must still be bound by a convention it had ratified o May be instituted by:

Governments: any member state of the ILO. Motive of the state is irrelevant

Delegates to the International Labor Conference: can be single but more commonly a group of delegates institutes a complaint.

The Governing Body on its own motion: may decide to convert a representation to a complaint at any time. Governing Body does not actually submit a complaint but it mayu launch the procedure.

• Formal requirements: o To be submitted to the Director-General of the ILO in Geneva o No formal req’s as to form or language

o To be receivable a complaint must allege that a country is not ‘securing the effective observance’ of a convention is has ratified.

• Means of Investigation: o Governing body establishes a Commission of Inquiry (technically a

matter of discretion- not actually necessary but is the norm) o Commissions of Inquiry are free to set their own rules and procedures

but certain practises have become established: Written submissions are requested from both parties, often at

several stages in the procedure Submissions are communicated between the parties and each

party is given opportunity to comment and present further information

May also request information from other gvts or non-gvt organisations

May also conduct on-site visits • Kind of Decision Reached

o Commission arrives at conclusion and may make recommendations to the parties which may suggest changed in national leg or practical measures to give effect to a convention’s provisions or address the broader questions, such as the necessity of ending a state emergency in ofer to promote civil liberties.

o A report of the case is communicated to the ILO Governing Body and published

• Implementation of the Decision o Followed up by the ILO’s reguilar supervisory machinery- ie. The

Committee of Experts and the Conference Committee on the Application of Conventions and Recommendations

o Under art29(2) and concerned gvt may refer the complaint to the ICJ if not satisfied with the Commission’s recommendations. (has never actually occurred)

o Under art33 if a gvt does not implement the recommendations of a Commission of Inquiry (or ICJ) with in the time specified, the “Governing Body may recommend to the Conference such actions as it may deem wise and expdient to secure compliance therewith.”

o Under art34 a gvt in violation of a convention by a Commision of Inquiry may request the Governing Body to constutute another Commission of Inquiry to verify that the gcvvt has complied with the recommentdations made to it- ie. Verify implementation.

Special Procedures for Complaints Concerning Freedom of Association Most widely used ILO petition procedures. Two bodies consider complaints in this area. Committee on Freedom of Association (CFA) received complaints directly from workers’ and employers’ organisations. Fact-Finding and Concilliation Commission on Freedom of Association (FFCC) may deal with complaints referred to it by the Governing Body on the recommendation of the CFA of by the state concerned. The Committee on Freedom of Association

• Substantive requirements

o No req that a state has ratified any of the freedom of association conventions as basic authority lies in the ILO constitution. Therefore, only needs to be a member of the ILO.

o CFA has developed a set of principles supplementing the conventions and cn of the ILO

The right of all workers and employers to establish organisations

Free functioning of such organisations The right to join fereations and conderdeations and to affiliate

with interenational groupings of occupational organisations The right of organisations not to be suspended or disolved by

admin authorities Protection against anti-union discrimination The right to collective bargaining The right to strike The right to basic civil liberties, which are a necessary pre-

condition to the free excerise of trade union rights o Complaints submitted by gvts (need not have ratified F o A

conventions o or by organisations of employers or workers

national ogranisations directly concerned with the matter international organisations which have consultative status

within the ILO other international organisations without consultative status if

the allegations relate to matters directly affecting their affiliated organisations

• Formal Requirements o Complaitns must be submitted to the D-G of the ILO in writing, signed

by a represenative of a body entitled to present them, and with the address of the complaint organisation with supporting evidence.

• Means of Investigation o D-G may allow the complainant time to find additional evidence.

Complaint is communicated to the gvt concered, asked to comment on the substance fo the allegations.

o CFA has recently begun to look beyond documentation received from both parties to make the decision, now makes used of oral representations by gvts and complainants, contacts with gvts during the annual Conference and on-site visits to gather evidence.

• Kind of Decision Reached o Recommendations- ie. May recommend that gvt’s institute or refrain

from certain actions or that they amend legislaiton. OR may recommend to the filing organisation if it finds that its activities have contributed to the problem.

• Implementation of the Decision o My ask that the gvt concerned continue reporting on it or it may refer

the case to the CEACR or (in exceptional cases) the FFCC Fact-Finding and Concilliation Commission FFCC is an adhoc body of independent experts apponted by the Governing Body to examine allegations of infringement of the freedom of association. Although it has been convened only rarely it has been utilised in cases of particular political delicacy.

• Substantive requirements o Complaint may be submitted against any state, whether or not is has

ratified the F of A conventions or is a member of the ILO o If a state is not a member of the ILO but is a member of the UN, a

complaint concerning it may be referred to the FFCC by ECOSOC o A state must consent to the referral of the cse to the FFCC o On exception is when a complaint under art26 concerns ratified F odf

A concentions and is rederred to the special procedures on this subkect. o May be referred in four ways:

By Governing Body, on the recommendation of the CFA By the Governing Body, on the recommendation of the

International Labour Conference At the request of the governement concerned Byu the UN Economic and Social Council

• Formal Requirements o As this procedure is not directly accessible to indiviuals of NGOs the

formal req’s are not noted here. • Means of Investigation

o FFCCS are free to work out their own procedures o Usually based on documentary evidence furnished by the parties, the

testimony of witnesses and visits to the countries concerned. • Kind of Decision Reached

o Aim is to ascertain facts and discuss the situation with the gvts concerned, with a view to resplving the difficulties by agreement of friendly settlement

o Dual role of investigator and conviliator o Published in a special report on the case o Egs. Direction in which the trade union movement in a country should

be allowed or encouraged to develop, leg proposals, calls for the ratification of ILO converntiosn and even recommendations for the restoration of civil liberties that are essential to the excerise of trade union rights.

• Implementation of the Decision o No legal force o No specific enforcement measures available to ensure that its

ercommendations are implemented. o Monitored by other ILO bodies if gvt has ratified conventions o If the relevant conditions have not been ratified, FFCC

recommendations are followed up by the CFA. Concluding Observations

• Procedures outlined above are the most comprehensive international system for examining the implementation of international human rights standards.

• When complaints are filed they signal to the gvt concerned that the ILO intends to undertake a thorough, objective and prompt examination of the situation and to reach firm and public conclusions on the merits for the case.

International Labour Law Summary – Week 3 Freedom of Association, the Right to Strike, Collective Bargaining THE ILO DECLARATION ON THE FUNDAMENTAL PRINCIPLE AND RIGHTS AT WORK 1998 No ‘social clause’ – 5th consideration

Clause in trade agreement, that say that where countries do not abide by labour laws, then a country may not get imports from that country Page 57 of main reader

Reference to art 19, par 5(e) of the Constitution Obliges reports to be sent to the committee by the member states “Obligation arising from the very fact of membership” for all members However, no new obligations on members Promotional character The 8 conventions are nevertheless the prime focus of the ILO Follow up (what’s important) Report by members Global reports by the DG submitted to the ILC Remember art 22 is obsolete This is not binding but it happens in practice This is not a legal text But an important text – a cry of the heart FREEDOM OF ASSOCIATION See Dec of Philadelphia 1944, 1(b) “Freedom of expression and of association are essential to sustained progress” Balanced growth – not one sided growth Category 1(b) are the main principles Remember this declaration had the famous quote “labour is not a commodity” III(e) – effective bargaining recognition of the right of collective bargaining Workers versus employers – concluding private law contracts about labour issues Also a core element 2 core conventions – Convention no 87 (1948) and no 98 (1949) Legal protection vis-a-vis the state (87) Fundamental standards Application of the principle vis-a-vis the employer (98) More about collective bargaining No 87 has become the least ratified of the 8 core conventions Reported in the 2008 core report that it was the least ratified

The last core convention (182) on the worst forms of child labour (prostitution, etc) – highest ratified This is about power relations and very political so member states are less likely to want to ratify it

Too many principles to put in one convention Needed to debate for many years

There is also a third convention on collective bargaining (come to this later)

CONVENTION NO 87 1927 – First debates in the ILC Right of individual to not organize also protected? (Negative right) Obligatory supervision of the rules of a trade union? No decision on this yet Both employer and employee organizations are protected Not only about trade unions, but also for organizations for employers Negative right of organization not protected

Employee organization are afraid that this might lead to government control and license systems (government abuse) Decided after fierce debates An individual should not be punished if he doesn’t want to be a part of the group

Creation of a state-free sphere This is inherent in the freedom of association It’s all about jobs, money, wages – sensitive subjects The negative right exists however The European Court of Human Rights upholds it The EC in Justice also Main rules of Convention No 87 Page 3 of the Legislation reader Right to establish and join organization of their own choosing ‘for furthering and defending their interests’ without ‘previous authorization’ (art 2) VERY IMPORTANT – previous authorization – need it for 20% of the questions on exam

A group who wishes to overthrow the government is not included in this (because it’s not their own interests)

Right to draw up their rules and constitutions Acquisition of legal personality

Registration systems allowed? No undue discretion of the state These registration or notification systems are allowed, but this is technical, not political – the government cannot withhold it There is no discretionary authority for the state Government should be impartial and shouldn’t become involved where one main trade union wants to prevent a new union from forming (ie siding with the major, established union via blocking their registration) Think about the train drivers who wanted to be in their own union – they won, but not everyone else was happy about this

No excessively high membership requirements, thresholds, member limits (ie at least 10 000 members)

No dissolution or suspension by administrative authority This is mentioned in the text of the convention The organizations must respect the law of the land and this law cannot be such that it impairs the guarantees of this convention In the text of the convention Ie penal law

You cannot burn factories – example, in France, employers were taken hostage recently – this is not acceptable

This is very national – depends on each country You must abide to penal law! France has some crazy labour stories!

Exception – armed forces and the police – Art 9 par 1 Very important! If you read this article, you see that it is up to the member state to exclude this

But if the member state did not exclude this, then the armed forces and police would also have the right to freedom of association

Note – Labour law is very much about power relations Main reader – Page 65 Indonesia – there is a report of the Committee of Experts dealing with dissolution or suspension by admin authority

Revocation of union record number, loss of trade union rights in the event in loss of trade union membership beyond the required minimum They have to make sure that this minimum level is too high (more stringent) because that would contravene the rules

You have to notify the rules You have to report any money that comes from another country Something about previous authorization!!! Read this! Difficult for the trade unions to meet with others in the world – and there is an annual meeting! Committee of Experts said that this was previous authorization For the Indonesia remarks The last section are the earlier report – page 66-68 This is the same information = NOT RELEVANT Example – Page 95 of the reader UK – REALLY ADVISE YOU TO READ THIS Page 95 you see a rule in the UK – an employment bill Tony Blair government tried to make a new employment law Provides a wider scope for trade unions to exclude someone on the grounds of political party membership

Old legislation was more narrow in these expulsion rule As it stands the UK legislation does not allow the expulsion of members on the basis of political party membership But the freedom of association should also include the right to kick people out Free choice is very important RIGHT TO STRIKE Not literally mentioned in convention no 87

However have a look at articles 3, 8 and 10 CEACR concluded that the right to strike is a corollary to the right to freedom of association – two resolutions of the ILC support that view

Employers side is against (Wisskirchen, Int. Lab. Rev. 2005, p. 253) Nature of CEACR = it is NOT A COURT! Should it be allowed to deal with this?

Wording of convention, constitution and Dec of Philadelphia – strike is not mentioned at all

Preparatory work on the convention – specifically excluded by the office who made the first text of the constitution

Art 31, par 1 and 2 Vienna Convention on the law of treaties Variety of interpretation methods – there is nothing that mentions right to strike!! Because employers and some government groups were against No subsequent practice – art 31, par 3 However it is mentioned in art 22 part 1 of the International Convention on Civil and Political Rights and art 8, par 1(d) of the International Covenant on Economic, Social and Cultural Rights But UNHR Committee said that 22, 1 right to associate does not include right to strike Right to strike mentioned in 8, 1(d) is subordinated to the law of the country Do you agree with Wisskirchen? Or do you think that freedom of association includes right to strike and therefore explicit right is not needed? There is a major debate The problem is that it is not explicitly mentioned Most profs of labour law will say that the right to strike is essential What is the legal source of the right to strike? The reports of the committee of the experts, two resolutions from the ILC Nevertheless the right to strike is upheld in numerous text of the CEACR and the CFA Acceptable restrictions – CEACR, CFA Civil service – officials exercising authority in the name of the states

Essential service – those services whose interruption would endanger the life, personal safety or health of the whole or part of the population Includes firefighters, doctors (if patients are dying)

In the case of essential services, the right to strike could be outright banned, but the CEARC would prefer that there was a right, but with reasonable restrictions

Limited interpretation of the essential services (page 78 of the reader) For other services, no ban allowed, but governments may impose ‘minimum services’

The right to strike may not be banned, but there may be an imposition of certain services that must be performed during the strike (like the mint must be functional for 1 day per week of the strike)

Emergencies, national crisis – genuine crisis situation, not national interest During conciliation and arbitration procedures

In return, the conciliation and arbitration must be quick and speedy and contact between the employers’ and workers’ groups Forces the two groups to sit and reach a solution Happened in the US when GWB was president – ports were on strike, $1 billion loss per day, so GWB imposed conciliation and arbitration to prevent further strain on the economy

NO political strikes, sympathy strikes are allowed in case the original strike is legal

This is clear because the freedom of association is really just to help workers and employers But what if the government plans to cut pensions? Can you strike? Yes! The CEARC says that you are allowed to strike in this pseudo-political way Sympathy strikes are allowed (ie striking in support of another strike (if that first strike is legal!))

Rules concerning strike ballots How to call a strike Only workers strikes can do that

There are illegal strikes where workers just walk off the job without the proper procedure

The ballot requirement can be very stringent Examples in the reader – page ?? Essential services = hospitals Non-essential services = railway, air or sea traffic (not necessarily, too wide) Australia case – page 88 Re Sympathy strikes IN Australia today, there is a labour government that is positive on the right to strike Before it was a hard sale to get the Australians on board Sympathy strikes are not allowed, secondary boycotts are not allowed Page 68 - Indonesia High penalties If the sanctions are too high, this would be against the standards of the CEACR Australia – Page 89 Complete sectors are excluded – like the building industry Often also happens with education (in Canada)

Common law – Piece on England –Page 96 First paragraph on top is all about common law Right to return to work if the employer objects – against IL standards CONVENTION NO 98 Complementary to no 87 Two new aspects of freedom of association, the right to organize vis a vis the employers and the duty for governments to promote voluntary negotiations between workers and employers Workers must be protected against acts of anti-union discrimination (art 1, par1) VERY IMPORTANT – Anti-union discrimination – 20% of exam answers Especially related to employment and dismissal Like saying “I will hire you if you leave the union” – this is anti-union discrimination

The organization must enjoy adequate protection against any acts of interference by each other Promotion of a machinery to support ‘voluntary’ negotiation in order to come to the regulation of conditions of employment by means of collective agreements Definition collective agreement see art 2 Convention 154 and see art 3 Not all members know collective agreements Exception – armed forces, the police, public servants engaged in the administration of the state – art 1

Like 87, there is an exception, but this one is bigger These are not allowed to have collective negotiations The armed forces can have freedom of association (if allowed in the country) but not collective bargaining

Practical argument – Page 91 Australia – Anti-union discrimination is only limited to categories of workers Many countries do this (like a company less than 10 members, for example) Protection and facilities to be afforded to workers’ representatives Workers’ Representatives Convention, 1971 (No 135) Supplements No 98 relating to anti-union discrimination No 98 only refers to protection enjoyed by workers and trade union members The representatives may be representatives designated or elected by trade unions or by workers

Recommendation 143 states that the protection should also apply to workers who are candidates for election or appointment as representatives

Workers’ representatives “shall enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as a workers’ representative or on union membership or participation in union activities, in so far as they act in conformity with existing laws or collective agreements or other jointly agreed arrangements” Representatives are protected against acts deemed to be prejudicial including for example remedies for unjustified termination, requirement for detailed and precise definition of the reasons justifying termination of employment, burden of proof placed on employer, etc There must be appropriate facilities provided to workers’ representatives to enable them to carrying out their functions properly and efficiently

Such as time off work without loss of pay or benefits, access to workplaces, authorization to collect trade union dues, distribution of documentation to workers, material facilities and information required for the exercise of their functions However these facilities should not impair the efficient operation of the workplace

The right of association of rural workers’ organizations Right of Association (Agriculture) Convention 1921 (No 11)

Each member state must undertake to “secure to all those engaged in agriculture the same rights of association and combination as to industrial workers, and to repeal any statutory or other provisions restricting such rights in the case of those engaged in agriculture”

The Rural Workers’ Organizations Convention, 1975 (No 141)

Applies to organizations of rural workers, rural workers and wage earners and subject to certain conditions, to tenant farmers, sharecroppers or small owner-occupiers even if they are self-employed

Sets out the right of rural workers to establish and join organizations of their own choosing

These organizations must be independent, established on a voluntary basis and must remain free from all interference, coercion or repression

The Rural Workers’ Organizations Recommendations 1975 (No 149) These organizations should represent rural workers and defend their interests

Should promote the workers’ access to services such as credit and transport, the improvement of education, training and conditions of work and the extension of social security and basic social services

Trade Union Rights in the Public Administration Labour Relations (Public Services) Convention 1978 (No 151) Adopted to complement Convention No 98

Applies to all persons employed by public authorities however it is up to national law to determine the extent to which it protects high-level policy-making employees, employees whose duties are of a highly confidential nature and the armed forces and police Contains similar provisions as No 98 re anti-union discrimination and as No 135 relating to facilities to be provided to representatives Provides that “public employees shall have, as other workers, the civil and political rights which are essential for the normal exercise of freedom of association, subject only to the obligations arising from their status and the nature of their functions”

Other Categories of Workers The Migration for Employment Convention (Revised) 1949 (No 97)

Principle of non-discrimination of migrant workers in respect of membership in trade unions and the benefits of collective bargaining

The Indigenous and Tribal Peoples Convention 1989 (No 169) Governments shall do everything possible to prevent any discrimination in regard to the right of association and freedom for all lawful trade activities and the right to conclude collective agreements

The Plantations Convention 1958 (No 110) Reproduces all the principles from No 87 and 98 The Merchant Shipping (Minimum Standards) Convention

Protection of employees on ships registered in the territory of a member state should be equivalent to that provided by No 87 and 98

Summary of the Principles of the Committee of Experts Concerning Freedom of Association Trade union rights and civil liberties

Protection in the conventions can only be effective if the civil and political rights in the Universal Declaration of Human Rights is genuinely recognized

The right of workers and employers, without distinction, to establish and join organizations of their own choosing

Absence of any distinction whatsoever among those entitled to the right – example distinction based on race, sex, nationality, age, marital status, etc

Absence of the need for prior authorization Freedom of choice with regard to membership of an organization Convention 87 should apply to all workers and employees without distinction (except armed forces and police as noted in the Convention)

Right to establish organizations without previous authorization Formalities to establish an organization should not be overly complex or burdensome Right of workers and employers to establish and join organizations of their own choosing

The right to take freely decisions such as the structure and composition of the organization, the establishment of more than one organization in the workplace, the establishment of federations and conventions, etc Excessive restrictions such as the minimum number of members are incompatible with Convention No 87

Free functioning of organizations – the right to draw up their own constitutions and rules Two basic conditions must be met

1 – National legislation should only lay down formal requirement regarding trade union constitutions 2 – The constitution and rules should not be subject to prior approval at the discretion of public authorities

Right to elect representatives in full freedom Public authorities should refrain from any inference that might restrict this right such as in regard to the holding of trade union elections, conditions of eligibility or the re-election or removal of representatives Fundamental idea of convention No 87, article 3 is that workers and employers may decide for themselves the rules which should govern the administration of their organizations and elections

Right of trade unions to organize their administration Includes in particular autonomy and financial independence and protection of the organization’s assets and property Problems may arise when the law establishes a minimum number of members or requires that certain financial operations be approved by public authorities. Other problems arise when the administration has then power to examine the books and other documents of an organization

Right of organizations to organize their activities in full freedom and to formulate their programmes

Includes the right to hold trade union meetings, the right of officers to have access to the workplace and communication with management, the right to strike, etc Right to peaceful strike action can only be prohibited or subject to restrictions for members of the armed forces and police, public servants exercising authority in the name of the state, workers in essential services and in the event of an acute national crisis

Right of workers’ and employers’ organizations to establish federations and confederations and to affiliate with international organizations

Organizations should be able to form federations or confederations Requires that the national federations and confederations be able to group together and act freely on the international level

Dissolution and suspension of organizations

Suspension or dissolution by the administrative authority is a serious infringement to freedom of association Should suspension or dissolution by administrative authority happen, must be accomplished through judicial procedure In the event of dissolution, assets should only be used for their original intended purpose

Protection against acts of anti-union discrimination Very important for trade union representatives and officers – must be guaranteed that they will not be prejudiced on account of the office they hold

Adequate protection against acts of interference Legislation should allow for rapid appeal procedures and effective sanction against acts of interference by employers against workers organizations and vice versa

COLLECTIVE AGREEMENTS Definition – Art 2 Convention 154 and Recommendation 91 Find this in the legislation reader Defines the scope of a CA as well

Canada said that the government just cancelled all existing CAs, saying that they were not workers, but independent workers Teachers were protesting against huge classes The government said that the number of pupils was not part of “working conditions” and therefore you couldn’t have a CA about it But the Committee of Experts said that it could be if the students produced stress

Recommendation 91 The agreement must be in writing Also that if a CA is binding, it shall have precedence over individual contracts This is the case in NL But not in the UK – CAs are gentlemen’s agreements in the UK CA is very important in Scandinavian countries, less so in more southern countries Effect is different in members Every member has its own collective negotiations system Competition between trade unions and works councils

Some countries have both and works councils are organized per factory (trade unions, nationwide) so sometimes there are conflicts between the two Art 3 convention 154 – page 15 of the legislation reader

Collective bargaining is also possible in works councils, but whenever necessary the existence of these works councils is not used to undermine the position of the trade union

“Representatives of the workers” Yellow unions

New unions that are created and negotiate for lower working conditions to get rid of the main trade unions in the workplace

Note – on one hand there is freedom of association but there is still competition so there must be a balance between the two The Committee of experts thinks that there should be lower numbers of trade unions – but it is hard to prevent new ones from forming and sneaking into the workplace

Level of bargaining to be decided by the organizations themselves, not imposed unilaterally by law or by the authorities Germany – geographical level National level, state level, industry level You cannot impose this by law Example where this didn’t work – Australia page 92

Possibility to by-pass unions to make trade unions with one member – made it easy for employers to undo the effects of the IL standards

Page 96 Compulsory arbitration is allowed under conditions (quick and speedy) CEACR practice – page 28-30 of the green booklet NOTE THESE Problems – page 93

New businesses where there are no trade unions Australia – page 90 – Australian workplace agreements – statutory individual agreement emphasizing direct negotiations between employer and worker and not using trade unions Going to be abolished in 2010 Page 96 – in house company unions READ IT

Definition and Purpose of Collective Bargaining Collective bargaining – the activity or process leading up to the conclusion of a collective agreement Collective agreements – all agreements in writing regarding working conditions and terms of employment concluded between an employer, a group of employers or one or more employers’ organizations, on the one hand, and one or more representatives of the workers duly elected and authorized by them in accordance with national laws and regulations on the other Found in the Collective Agreement Recommendation 1951 (No 91), paragraph 2 Collective agreements should bind the signatories thereto and those on whose behalf the agreement is concluded Collective agreements take precedence over individual contracts of employment with the exception of clauses in such contracts that are more favourable than those in the collective agreement Machinery for promotion for voluntary negotiations Example – collective agreement can be declared universally applicable Then they must be observed by all undertakings in the geographical areas and in the professional industry concerned, even to non-unionized employers and employee The minister of Labour generally takes the decision The only thing he must do is to check the representativity of the negotiating parties Able to get rid of yellow unions through this method Representativeness

NL is the number of members of the organization that wants to be recognized as bargaining partner compared with membership figures of the organization that are already recognized as bargaining partners

If you impose CA, you must check that the union is sufficiently representative (ie has sufficient members) Some people say that this creates a monopoly – new unions are upset about this!

Summary of the Principles of the Committee of Experts on the Right to Collective Bargaining Right to collective bargaining is a fundamental right Collective bargaining is a right of employers and their organizations on one hand and organizations of workers on the other hand Right to collective bargaining should be recognized throughout the private and public sectors

Only the armed forces, police and public servants engaged in the administration of the state who may be excluded as noted in Convention No 98

Purpose of collective bargaining is the regulation of terms and conditions of employment and the relations between parties Collective agreements are binding on parties and are intended to determine terms and conditions of employment which are more favourable than those established by law

Preference must not be given to individual contracts unless where more favourable provisions are contained in the individual contract

Right to collective bargaining requires that workers’ organizations are independent and not under the control of employers or their organizations The process of collective bargaining must proceed without interference by authorities Trade union which represents the majority or high percentage of the workers in a bargaining unit may enjoy preferential or exclusive bargaining rights Principles of good faith in collective bargaining implies genuine and persistent efforts by both parties Collective bargaining is voluntary and may not be imposed on the parties Procedures that support collective bargaining must take into account its voluntary nature Mediation can be imposed by law within the framework of collective bargaining provided that reasonable time limits are established Compulsory arbitration is against the principle of voluntary collective bargaining

Gustafsson v. Sweden (European Court of Human Rights, 1996) – Page 19 Legislation Reader Facts Dude owed a restaurant, one of his employees was a member of a union Union placed the restaurant under a blockade and called for a boycott against it Later deliveries were stopped as well

The one union member employee did not ask for the union’s involvement and in fact didn’t want it either

Union took action against the restaurant mostly because the owner did not want to enter into an agreement with the union Owner didn’t want to enter into a collective agreement situation Eventually the restaurant was sold – new owner signed a collective agreement with the union and the action against the business ceased Owner alleged that lack of state protection against the action taken against his restaurant was an infringement of his right to freedom of association under Article 11 of the Convention No 87 Issue In not protecting the owner from the actions taken against him by the union, did the State violate the article 11 right to freedom of association? Held Article 11 was applicable but not infringed Notes Although compulsion to join a particular trade union may not always be contrary to the convention, a form of such compulsion which, in the circumstances of the case, strikes at the very substance of the freedom of association guaranteed by Article 11 will constitute interference with that freedom It follows that national authorities may be obliged to intervene in the relationships between private individuals by taking reasonable and appropriate measures to secure the effective enjoyment of the negative right to freedom of association The actions of the union may have violated the owner’s right to freedom of association, however because collective bargaining is such an important social tool and because the convention does not guarantee a right not to enter into a collective agreement, the Court did not find that Sweden failed to secure the owner’s rights under Article 11 Notes from the Main Reader ILO Declaration on Fundamental Principles and Rights at Work Page 56-60 – Declaration Essentially legislation – maybe read it over once Comments made by the CEACR on Convention 87 and Indonesia Page 61-68 Considerable anti-union sentiment in Indonesia Serious violations of freedom of association

Attacks against trade unions, violent arrests and detentions of trade union organizers for strike activity, harassment of union activists, etc

Right to organize of civil servants The Indonesian act that they claim provides this right does not actually do so

Civil servants should have the right to form and join organizations of their own choosing, without distinction, without prior authorization

Restrictions on the right to strike The law provides the right to strike – but restrictions particularly in respect of workers in public services, essential services and enterprises that serve the public interest This is okay but should allow railway employees to fully exercise the right to strike without penalty

Sanctions for strike action Heavy sanctions for striking may create more problems than they resolve The sanctions should be proportionate to the seriousness of the offences committed Peaceful strikes should not be sanctioned by imprisonment Dissolution and suspension of organizations by administrative authority

There are administrative sanctions (revocation of the union record number and loss of union rights) in the event of loss of membership beyond the minimum This is serious infringement of trade union rights and so the CEACR requests that the government change its legislation accordingly

ILO Principles Concerning the Right to Strike Gernigon, Odero and Guido, International Labour Review, Vol 137, No 4 (1998) – Page 69 Notes Right to strike is not set out explicitly in ILO conventions and recommendations

But this does not mean that the ILO disregards the right to strike or abstains from providing a protective framework within which it may be exercised

Resolution Concerning the Abolition of Anti-Trade Union Legislation in the States Members of the ILO

Called for the adoption of laws “ensuring the effective and unrestricted exercise of trade union rights, including the right to strike, by the workers”

Resolution Concerning Trade Union Rights and their Relation to Civil Liberties Take action in a number of ways “with a view to considering further action to ensure full and universal respect for trade union rights in their broadest sense” with particular attention to be paid to the right to strike

Right to strike has also been affirmed in various resolutions of ILO conferences and other international bodies Basic principles on the right to strike 1 – It is a right which workers and their organizations are entitled to enjoy 2 – Reduction of the number of categories of workers who may be deprived of this right as well as the legal restrictions on this exercise 3 – Link the right to strike to the objective of promoting and defending the economic and social interests of workers 4 – The legitimate exercise of the right to strike should not entail prejudicial penalties of and sort, which would imply acts of anti-trade union discrimination Definition of the right to strike and various types of strike action ILO principles contain no definition of ways in which to legitimately exercise the right to strike CEACR has stated that

Any work stoppage, however brief and limited, may generally be considered as a strike More difficult to apply in situations of slow-downs or work-to-rule

Committee is of the opinion that restrictions as to the forms of strike action can only be justified if the action ceases to be peaceful – but national laws differ on this point Restrictions on strike pickets and workplace occupations should be limited to where the action ceases to be peaceful

Objectives of strikes Nature of demands pursued through strike action may be categorized as being Occupational – seeking to guarantee or improve workers’ working or living conditions

Trade unions – seeking to guarantee or develop the rights of the trade union organizations and their leaders, or Political

Occupational and trade union strikes are legitimate in the eyes of the committee, but political strikes may cause problems Committee has rejected the notion that the right to strike should be confined to industrial disputes that are likely to be resolved through the signing of a collective agreement Political Strikes Strikes of a purely political nature do not fall within the scope of the principles of freedom of association Sometimes difficult to distinguish between what is political and what is trade union in character However workers and their organization should be able to express their dissatisfactions regarding economic and social matters affecting workers’ interests Where the demands pursued through strike action include some of an occupational nature and some of a political nature, the strike has been recognized as legitimate as long as the occupational or trade union demands expressed do not seem like merely a pretext disguising purely political objectives unconnected with the promotion and defence of workers’ interests Sympathy Strikes Sympathy strikes – Workers come out in support of another strike Can workers declare a strike for occupational, trade union or social and economic motives which do not affect them in a direct and immediate manner? Committee decided that workers should be able to engage in sympathy strikes as long as the original strike is lawful Workers that enjoy the right to strike and those who are excluded Article 9 of Convention No 87 states that “the extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations” Committee recognizes a general right to strike, with the sole possible exceptions being those which may be imposed for public servants and workers in essential services in the strictest sense

Also prohibitions on strikes in the event of acute national crises are okay as well Public service Where public servants are not granted the right to strike, they should enjoy sufficient guarantees to protect their interests – like conciliation and arbitration procedures that are binding on both parties Concept of public servant varies from country to country Where possible exclusion from the right to strike is concerned, “public servant” should be those who exercise authority in the name of the State Essential services in the strict sense of the word Essential services are services whose interruption would endanger the life, personal safety or health of the whole or part of the population So what is meant by essential services depends on the particular circumstances that prevail in a country Non-exhaustive list of services that are not essential services – found on page 78

Includes radio and television, banking, department stores, pleasure parks, transportation generally, hotel services, the Mint, postal services, etc

In some countries, the concept of essential services is used in legislation to refer to services in which strikes are not prohibited but where a minimum operational service may be required

In other countries, the idea of essential service is used to justify substantial restrictions and even the prohibition of strike action Committee only uses “essential services” in the strictest sense – ie those whose interruption would endanger the life, personal safety or health of the whole or part of the population

Compensatory guarantees for workers deprived of the right to strike Where a country’s legislation deprives public servants who exercise authority in the name of the State or workers in essential services of the right to strike, the Committee has stated that workers who thus lose an essential means of defending their interests should be afforded appropriate guarantees to compensate A prohibition to strike in such circumstances should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which awards, once made, are fully and promptly implemented Acute national emergency A general prohibition on strikes can be justified in the event of an acute national emergency Applies only in exceptional circumstances This means genuine crisis situations, such as those arising as a result of a serious conflict, insurrection or natural disaster in which the normal conditions for the functioning of society are absent Conditions for Exercising the Right to Strike In most cases, the law lays down a series of conditions or requirements that must be met in order for the strike to be lawful

The Committee has specified that these conditions should be reasonable and no such as to place a substantial limitation on the means of action open to trade union organizations Prerequisites accepted by the Committee Obligation to give prior notice

Obligation to have recourse conciliation, mediation and (voluntary) arbitration procedures in industrial disputes Obligation to observe a certain quorum and to obtain the agreement of a specified majority Obligation to take strike decisions by secret ballot Adoption of measures to comply with safety requirements and for the prevention of accidents Establishment of a minimum service in certain cases Guarantee of the freedom to work for non-strikers

Conciliation, Mediation and Voluntary Arbitration The Committee accepts that conciliation, mediation and voluntary arbitration procedures in industrial disputes before a strike may be called provided that they are adequate, impartial and speedy and that the parties involved can take part at every stage If a dispute has been submitted to conciliation or arbitration for final settlement with the consent of all parties, then the workers should be encouraged to abstain from strikes and lockouts while the conciliation procedure or arbitration is in progress and to accept the arbitration award when it comes out Compulsory Arbitration Compulsory arbitration is only acceptable in cases of strikes in essential services in the strict sense of the term, in a case of national crisis or in the public service Compulsory arbitration is acceptable as long as it is provided for in a collective agreement as a means of settling disputes or that it is approved by the parties during bargaining carried out regarding problems which gave rise to the dispute in question Legislation cannot impose compulsory binding arbitration as a replacement for strike action either at the outset or during the course of the dispute, except in the case of essential service, or when a non-essential service is interrupted for so long that it endangers the life, safety or health of the whole or part of the population

OR when after prolonged and fruitless negotiations, it is obvious that the deadlock in bargaining will not be broken without some initiative on the part of the authorities

Quorum and majority for declaring strikes Quorum limits should not be too high as to restrict the right to strike 2/3 is too high Situations in which a minimum service may be imposed Minimum safety service may be imposed in cases of strike action in order to ensure the safety of persons, the prevention of accidents and the safety of machinery and equipment Establishment of minimum services should only be possible in

Services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (ie essential services)

Services which are not essential in the strict sense, but where the extent and duration of a strike might be such as to result in an acute national crisis endangering the normal living conditions of the population, or Public services of fundamental importance

Australia and UK– Convention No 87 Page 88 -98 Committee reports on Australia and the UK Prof advised us to read this so it’s a good idea to read these pages in full

Week 4: International Labour Law Readings • Chapter 3 and Chapter 4 of the Labour Law Textbook • Four readings in the Labour Law Reader (p. 100-118) All relevant legislation is underlined in this document

COLLECTIVE BARGAINING

• In an annex to the ILO Constitution, the “Declaration concerning the aims and purposes of the ILO” can be found; part III(e) recognizes “the solemn obligation of the International Labour Organization to further among the nations of the world programmes which will achieve…the effective recognition of the right of collective bargaining”. -‐ The ILO also adopted the ILO Declaration on Fundamental Principles and Rights

at Work which states that all members of the ILO, even if they have not ratified a particular Convention, have an obligation to respect certain fundamental rights, including collective bargaining

• This principle is also set forth in the Right to Organize and Collective Bargaining Convention, 1949 (No. 98), which has received almost universal adhesion in terms of ratifications

Definition of Collective Bargaining • Under the ILO, collective bargaining is deemed to be the activity or process leading

up to the conclusion of a collective agreement • The term collective agreement can be defined as “all agreements in writing

regarding working conditions and terms of employment…” (Collective Agreement Recommendation, 1951, No. 91, para. 2); collective agreements bind the signatories thereto and those on whose behalf the agreement is concluded

• Recommendation No. 91 also established the principle that collective agreements are binding and that they hold precedence over individual contracts of employment – unless the clauses in such individual contracts are more favourable to workers covered by the collective agreement -‐ Australia and AWA’s

• Collective bargaining is voluntary in nature, which is a fundamental aspect of the principles of freedom of association; no compulsory measures can be taken (Convention No. 98, article 4); -‐ Convention No. 154 stipulates that collective bargaining could only function

effectively if conducted in good faith by both parties • Convention No. 98 does not contain a definition of collective bargaining, but outlines

the fundamental aspects in article 4, such as ‘negotiation’ -‐ In the preparatory work for the Labour Relations Convention, 1978 (No. 151), it

was agreed that the term “negotiation” was to be interpreted as including “any form of discussion, formal or informal, that was designed to reach agreement”

• The Collective Bargaining Convention (No. 154) extends upon these concepts by stating, in article 2, “the term ‘collective bargaining’ extends to all negotiations which take place between an employer, a group of employers or on or more

employers’ organizations, on the one hand, and one or more workers’ organizations, on the other…”

Subjects & Parties to Collective Bargaining • The ILO instruments only authorize elected representatives to acts for the workers’

parties in collective bargaining when appropriate measures are taken “wherever necessary, to ensure the existence of these workers’ representatives is not used to undermine the position of the workers’ organizations concerned” (Convention 154, article 3, para. 2)

• The possibility that representatives of workers are able to conclude collective agreements in the absence of one or various representative organizations of workers is considered in Recommendation No. 91; the rationale is that some countries do not have trade unions which are sufficiently developed to enable the implementation of certain principles -‐ For trade unions to fulfill their purpose they must be independent, and must be

able to organize their activities without interference from public authorities (Article 3 and 10 of Convention No. 87) or control from employers’ organizations (Article 2 of Convention No. 98, Convention No. 151 and Recommendation No. 91)

• The level of bargaining must not be imposed unilaterally by law or by the authorities (UK)

• The guarantees under the Collective Bargaining Convention may not apply to the armed forces, the police and public servants engaged in the administration of the State – these are to be determined at a national level (Convention No. 98, articles 4-‐6); see below for changes regarding public servants

Dispute Settlement • Convention No. 51 provides “the settlement of disputes arising in connection with

the determination of terms and conditions of employment shall be sought, as may be appropriate to national conditions, through negotiation between the parties or through independent and impartial machinery, such as mediation, conciliation and arbitration, established in such a manner as to ensure the confidence of the parties involved” -‐ A number of Conventions and Recommendations touch on this issue -‐ For example, the Voluntary Conciliation and Arbitration Recommendation, 1951,

No. 92, encourages parties to abstain from strikes and lockouts which procedures are in progress

• Arbitration is compulsory arbitration only in the case of: - Essential services - Public servants in the administration of the state - Deadlock in negotiations - Acute national crisis - Interventions by legislature or administrative bodies where clauses of collective

labour agreements are annulled of modified are contrary to the principle of voluntary bargaining

• Restrictions are only possible by way of an exception in the case of economic stabilization policies after preceding consultations

• In the Netherlands there were government interventions in wage-‐setting in 1976; the government wanted to impose wage-‐caps - It was said this could only occur in an economic emergency and could only be

temporary - Since this dispute, the Dutch government has not tried to intervene in wages

(except for setting a minimum-‐wage) • Overall, government interventions are not acceptable and voluntary bargaining is

encouraged The Right to Information • Recommendation No. 163 indicates that “measures adapted to national conditions

should be taken, if necessary, so that the parties have access to the information required for meaningful negotiations” - Public and private employers have an obligation, at the request of workers’

organizations, to make available information that is necessary for meaningful negotiations (with confidentiality clauses, if necessary)

• Recommendation also advocates measures so that negotiators have the opportunity to receive appropriate training

Collective Bargaining in the Public Service • The recognition of the right to collective bargaining for organizations and public

officials and employees is now a reality in industrialized countries • While Convention No. 98 (1949) did not include public servants in its scope,

Convention No. 151 (1978) took an important step forward in requiring States to promote machinery for negotiation or such other methods as will allow representatives of public employees to participate in the determination of their terms and conditions of employment - In accordance with article 1 of the Convention, the only categories which may be

excluded (in addition to police and armed forces, as in previous conventions) are “high-‐level employees whose functions are normally considered as policy-‐making or managerial, or employees whose duties are of a highly confidential nature”

• Later, Convention No. 154 (1981) was adopted; it also serves to encourage collective bargaining in both the private and public sectors

Summary of Principles of the ILO Committee of Experts: Collective Bargaining • Collective bargaining is:

- A fundamental right - A right of employers and their organizations - A right of organizations of workers (trade unions, federations, confederations)

or, only in the absence of these organizations, the right of representatives of the workers concerned

- Recognized throughout the private and public sectors and only the armed forces, the police and public service workers engaged in the administration of the State may be excluded (Convention No. 98)

- Meant to regulate the terms and conditions of employment, in a broad sense, and the relations between the parties

- Binding on the parties and intended to determine terms and conditions of employment more favourable than those determined by law

- Requires that workers’ organizations are independent and can proceed without undue interference by authorities

- A trade union which represents the majority or a high percentage of the workers in a bargaining unit may enjoy preferential or exclusive bargaining rights

- To be conducted in good faith - Voluntary and can take place at any level - It is acceptable for conciliation and mediation to be imposed by law, provided

that reasonable time limits are established - The imposition of compulsory arbitration on cases where parties do not reach

agreement is not permitted unless it involves i) essential services in the strictest sense, ii) public servants engaged in the administration of the State, iii) prolonged and fruitless negotiation and iv) acute national crisis

- Interventions by the authorities in freely concluded agreements are not permitted

- Restrictions on the future content of collective agreements that are imposed by authorities are only permitted if i) applied as an exceptional measure and only to the extent necessary, ii) they do not exceed a reasonable period and iii) they come with adequate guarantees of protection as it relates to the standard of living of the workers concerned

• The Committee of Experts, in its reports for 2000 and 2001 noted that the two problems which most frequently arise among ratifying countries include i) A denial of the right of collective bargaining to all public servants or public

servants who are not engaged in the administration of the State ii) Requiring trade union organizations to represent too high a proportion of

workers in the collective bargaining process NEGATIVE RIGHT OF ASSOCIATION • Not covered by Conventions No. 87 and No. 98, but covered by Article 11 of the

Convention for the Protection of Human Rights and Fundamental Freedoms • Article 11 reads: 1. Everyone has the right to freedom of peaceful assembly and to freedom of

association with others, including the right to form and to join trade unions for the protection of his interests

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article (art. 11) shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

Gustafsson v. Sweden, 1995 • This case was referred to the European Court of Human Rights on behalf of Mr.

Gustafsson in his case against the Swedish government

• Mr. Gustafsson, a restaurant and hostel owner, did not want to join the two unions created for business owners in these two industries; they wanted him to become a member and sign a collective agreement – in the alternative, they wanted him to sign a substitute collective agreement

• He refused both options, raising objections ‘of principle’ regarding the system of collective bargaining; he also argued that his employees were paid more than they would have been paid under a collective agreement and that they themselves were not in disagreement with his refusal to sign a collective agreement

• In response, after a number of initiatives, the unions successfully placed his restaurant under a ‘blockade’; he could not have food delivered, companies would no longer carry his advertising, his businesses were boycotted and he was eventually forced to sell the restaurant

• After failing to argue his case successfully in the Swedish courts, he argued that Swedish national laws governing freedom of association were inadequate and thus in violation of article 11 (among other articles) of the Convention

Findings • The ECHR found that article 11 was applicable in this case

- The commission maintained that the unions’ blockade and boycott of his business has affected his right to negative freedom of association

- The measures taken by the unions entailed considerable pressure on the applicant to meet the union’s demand that he be bound by a collective agreement

• However, they determined that Sweden did not violate article 11 in this instance - The commission stated that “although the essential object of article 11 is to

protect the individual against arbitrary interferences by the public authorities with her or her exercise of the rights protected, there may in addition be positive obligations to secure the effective enjoyment of these rights”

- Article 11 has been interpreted to encompass not only a positive right to form and join an association, but also the negative aspect of that freedom, namely the right not to join or withdraw from an association

- However, the Swedish government argued that they have attached a great deal of importance to the right of trade unions to promote their own interests – further, they argued that they are not bound under article 11 to take positive measures to protect the citizens against union action

- The commission concluded that i) Article 11 does not guarantee a right not to enter into a collective

agreement ii) The positive obligation imcumbent on the State under article 11,

including the aspect of protection of personal opinion, may well extend to treatment connected with the operation of a collective bargaining system, but only where such treatment impinges on freedom of association

iii) Compulsion which, as in this case, does not significantly affect the enjoyment of that freedom, even if it causes economic damage, cannot give rise to any positive obligation under article 11

FORCED LABOUR

• More than 12 million people are trapped in forced labour worldwide (sweatshops, building, sexual exploitation); however, in principle, forced or compulsory labour is almost universally banned

• The two ILO Conventions dealing with the abolition of forced or compulsory labour are the most widely ratified of all the Conventions i) The Forced Labour Convention, No. 29, 1930 ii) Abolition of Forced Labour Convention, No. 105, 1957

• There is also the ILO Declaration on Fundamental Principles and Rights at Work, adopted by the ILO in 1998 which states that all members of the ILO have an obligation, arising from their very fact of membership, to abide by fundamental rights, including the elimination of all forms of forced labour

The Forced Labour Convention: No. 29 • The oldest core convention, 1930 • The main provisions of the Convention are article 1, para. 1; article 25; article 2,

para. 1; article 2, para. 2 • The aim of the Convention is to “suppress the use of forced or compulsory labour in

all its forms within the shortest possible period” (article 1, para. 1); includes both an obligation to abstain and an obligation to act

• In aiming to adhere to the Convention as quickly as possible “recourse to forced or compulsory labour may be had during the transitional period, for public purposes only and as an exceptional measure, subject to the conditions and guarantees hereinafter provided” (article 2, para. 2) - However, the ILO supervisory bodies have recently suggested that this article

may no longer be justified by invoking observance of article 1, para. 2 and articles 4-‐24; nevertheless, States that have ratified are able to appeal to it

• Convention No. 29 defines forced labour as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily” (article 2, para. 1)

i) ‘Work or service’ Very broad definition Must be distinguished from obligation to undergo educational training

ii) ‘Menace of any penalty’ The penalty need not take the form of penal sanctions; it could take the

form of a loss of rights or privileges For example, it might consist of being placed at a lower level of privileges

for a prisoner or a reduced prospects of early release iii) ‘Offered oneself voluntarily’

May not involve deceit, false promises, or the retention of identity documents

The mere freedom to choose among any type of work or service is not sufficient to ensure observation of the Convention in States where national law creates an obligation to work

Persons under the age of 18 cannot give consent (nor can their parents give consent) to work that is likely to jeopardize their health, safety or morals

The right of a worker to freely choose their employment is inalienable; if a worker provides reasonable notice, they are free to leave their place of employment

Consider ‘debt bondage’ (where the element of compulsion is derived from debt); it looks voluntary but in fact can be forced

• The illegal exaction of forced labour must be punishable as a penal offence (article 25)

• There are some exceptions under the Convention (article 2, para. 2): a) Work of a purely military character exacted in virtue of compulsory military

service laws - Cannot be done ‘as a means of mobilizing and using labour for purposes of

economic development (article 1(b), Convention No. 105) b) Any works that falls under normal civic obligations for the citizens of a fully self-‐

governing country - Examples are jury duty or the duty to assist persons in danger c) Work exacted from any person as a consequence of a conviction in a court of law

which is carried out under the supervision of a public authority and where the person is not hired to or placed at the disposal of private individuals or companies

- Obligation to work does not arise unless the person has been convicted in a court of law

- Note that in some countries, prisoners may accept employment with private employers, subject to guarantees as to the payment of wages and social security, consent of trade unions etc.

d) Work exacted in case of emergency (ie. Fire, flood, famine); the emergency would endanger the existence or the well-‐being of the whole or part of the population

- Involves a sudden, unforeseen happening calling for instant countermeasures e) Minor communal services which the community has decided are necessary;

there is link to civic obligations - Services must be for a civic purpose within the city in question and can only

include minor services such as maintenance work, cleaning, schools, medical consultation etc.

The Abolition of Forced Labour Convention: No. 105 • Convention No. 105 does not constitute a revision of Convention No. 29, but was

designed to supplement the earlier instrument • Convention No. 105 serves to limit the scope of Convention No. 29 as it only

prohibits forced labour in the five situations enumerated below; for example, it does not prohibit the forced labour of those prisoners convicted of crimes which are not ideological or political in nature

• Under article 2, each State which ratifies this Convention “undertakes to take effective measures to secure the immediate and complete abolition of forced or compulsory labour”

• Under article 1, each State undertakes to “suppress and not to make use of any form of forced or compulsory labour” a) As a means of political coercion or education or as a punishment for

holding or expressing political views or views ideologically opposed to the established political, social or economic system

- Certain limitations may be imposed by law on the rights and freedoms at stake “for the purposes of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society” (Universal Declaration of Human Rights, 1948); on the other hand, certain rights may also be restricted in the case of exceptional periods, such as national emergencies that threaten the life of a nation

- The Convention does not prohibit punishment by penalties involving compulsory labour of persons who use violence, incite to violence or engage in preparatory acts aimed at violence, nor judicial imposition of certain restrictions on persons convicted of crimes of this kind

b) As a means of mobilizing and using labour for purposes of economic development

- Aimed at circumstances where recourse to forced or compulsory labour has a certain quantitative significance and is used for economic ends

c) As a means of labour discipline - May consist of:

i) Measures (physical constraint or penalties) to force a person to perform their services

ii) A sanction for breaches of labour coupled with penalties involving an obligation to perform work

Does not cover people that breach the terms of labour is done in the operation of essential services or in the case of national emergency

d) As a punishment for having participated in strikes - In certain circumstances, penalties can be imposed for participation in illegal

strikes or where there are “national laws prohibiting strikes in certain sectors or during conciliation proceedings” or “trade unions voluntarily agreed to renounce the right to strike in certain circumstances” (Geneva, 39th session)

e) As a means of racial, social, national or religious discrimination - Where punishment involving compulsory labour is meted out more severely to

certain groups defined in a racial, social, national or religious terms, this falls within the scope of the Convention – even where the offence giving rise to the punishment is a common offence which does not otherwise fall under Article 1 of the Convention

The Case of Myanmar, 1993 • Most famous case of forced labour; the International Confederation of Free Trade

Unions (ICFTU) made a representation to the ILO alleging non-‐observance by the Government of Myanmar of the Forced Labour Convention

• The ICFTU alleges: - That Myanmar failed to secure the observance of the Convention by

institutionalizing the use of forced labour by military commanders through the forced recruitment and abuse of porters

- That there are no laws or regulations governing the actions of the military concerning porters, and also that these people are providing civilian and not military services

- The situation of porterage in Myanmar clearly fits the definition of “forced or compulsory labour” under article 2(1) of the Forced Labour Convention and does not fall under any of the five exceptions listed in article 2(2) The porters are rounded up in public places by the police and are forced to

do dangerous work with no pay and very little food, water or rest In many cases, porters die as a result of mistreatment, lack of food and water,

and through their use as human mine sweepers - It cannot be argued that Myanmar is in a transitional period (appealing to article

1(2)) as porterage has become a norm rather than an exceptional measure • The government of Myanmar argues:

- That it is a tradition of voluntary contribution of labour to build shrines, religious temples, roads, bridges and the clearing of obstruction on pathways which goes back thousands of years

- Those who accuse Myanmar authorities of using forced labour patently reveal their ignorance of the Myanmar tradition and culture

- It is not true that porters are mistreated and never have to accompany the military to the actual sites of battle or to danger zones

- Porters are recruited and employed by the armed forces after consultation with the local authorities; further, recruitment and employment are in accordance with local laws

• The Committee determined: - That the local laws which permit porterage are in violation of Article 2(1) of the

Convention - That there is nothing which would bring porterage within the scope of the

exceptions provided for in article 2(2) of the Convention - That the country is not in a transitional period - The formal appeal of the local laws which permit porterage will be followed up

in practice by penal prosecution for those who resort to coercion

The Case of Siliadin v. France, 2001 (p. 59) • The case originated as an application against the French Republic; the applicant, a

15 year old Togolese national living illegally in France, alleged that, contrary to Article 4 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the French government did not have suitable criminal law provisions in place to protect her from the “servitude” in which she had been held

• The applicant claims that she was held against her will in a household where she worked seven days a week, for long hours, with no pay, with no benefits, no real chance to leave the house, and that they took away her passport; she was also ‘leant’ out to other households to do their domestic work and to care for their children

• Further, the applicant was a minor and an illegal immigrant; this points to a lack of voluntariness and demonstrates why she was unwilling to go to the police

• This case dealt with the conditions of employment for domestic workers; a global report from 2001 suggests that domestic labour is one of the main instances of forced labour today

• The question posed to the court was whether article 4 of the Convention, which prohibits slavery, servitude and forced and compulsory labour, imposes a positive duty on States to intervene in relationships between private individuals

• The European Court of Human Rights reached a unanimous decision; that the applicant did have victim status, that no one shall be held in servitude or slavery, and that French law must be modified in order to accurately reflect this principle (the French government was in violation of article 4) - Note that her employers were not found guilty under French law – the applicant

was not able to satisfy the conditions (such as “voluntariness”) set out under the French Criminal Code and thus French law did not offer her adequate protection

• This case talks quite a bit about the ILO; for example, “in interpreting article 4 of the European Convention, the Court has in previous cases already taken into account the ILO Conventions, which are binding on almost all of the Council of Europe’s member States, including France, and especially the 1930 Forced Labour Convention”.

* On pages 100-104 of the reader, you will find many examples of countries that are not complying with certain provisions of the Forced Labour Convention; also included are recommendations from the Committee on how these countries should remedy these violations (ie. Egypt, El Salvador)

Week 4: International Labour Law Readings • Chapter 3 and Chapter 4 of the Labour Law Textbook • Four readings in the Labour Law Reader (p. 100-118)

All relevant legislation is underlined in this document

COLLECTIVE BARGAINING

• In an annex to the ILO Constitution, the “Declaration concerning the aims and purposes of the ILO” can be found; part III(e) recognizes “the solemn obligation of the International Labour Organization to further among the nations of the world programmes which will achieve…the effective recognition of the right of collective bargaining”. -‐ The ILO also adopted the ILO Declaration on Fundamental Principles and Rights

at Work which states that all members of the ILO, even if they have not ratified a particular Convention, have an obligation to respect certain fundamental rights, including collective bargaining

• This principle is also set forth in the Right to Organize and Collective Bargaining Convention, 1949 (No. 98), which has received almost universal adhesion in terms of ratifications

Definition of Collective Bargaining • Under the ILO, collective bargaining is deemed to be the activity or process leading

up to the conclusion of a collective agreement • The term collective agreement can be defined as “all agreements in writing

regarding working conditions and terms of employment…” (Collective Agreement Recommendation, 1951, No. 91, para. 2); collective agreements bind the signatories thereto and those on whose behalf the agreement is concluded

• Recommendation No. 91 also established the principle that collective agreements are binding and that they hold precedence over individual contracts of employment – unless the clauses in such individual contracts are more favourable to workers covered by the collective agreement -‐ Australia and AWA’s

• Collective bargaining is voluntary in nature, which is a fundamental aspect of the principles of freedom of association; no compulsory measures can be taken (Convention No. 98, article 4); -‐ Convention No. 154 stipulates that collective bargaining could only function

effectively if conducted in good faith by both parties • Convention No. 98 does not contain a definition of collective bargaining, but outlines

the fundamental aspects in article 4, such as ‘negotiation’ -‐ In the preparatory work for the Labour Relations Convention, 1978 (No. 151), it

was agreed that the term “negotiation” was to be interpreted as including “any form of discussion, formal or informal, that was designed to reach agreement”

• The Collective Bargaining Convention (No. 154) extends upon these concepts by stating, in article 2, “the term ‘collective bargaining’ extends to all negotiations which take place between an employer, a group of employers or on or more employers’ organizations, on the one hand, and one or more workers’ organizations, on the other…”

Subjects & Parties to Collective Bargaining

• The ILO instruments only authorize elected representatives to acts for the workers’ parties in collective bargaining when appropriate measures are taken “wherever necessary, to ensure the existence of these workers’ representatives is not used to undermine the position of the workers’ organizations concerned” (Convention 154, article 3, para. 2)

• The possibility that representatives of workers are able to conclude collective agreements in the absence of one or various representative organizations of workers is considered in Recommendation No. 91; the rationale is that some countries do not have trade unions which are sufficiently developed to enable the implementation of certain principles -‐ For trade unions to fulfill their purpose they must be independent, and must be

able to organize their activities without interference from public authorities (Article 3 and 10 of Convention No. 87) or control from employers’ organizations (Article 2 of Convention No. 98, Convention No. 151 and Recommendation No. 91)

• The level of bargaining must not be imposed unilaterally by law or by the authorities (UK)

• The guarantees under the Collective Bargaining Convention may not apply to the armed forces, the police and public servants engaged in the administration of the State – these are to be determined at a national level (Convention No. 98, articles 4-‐6); see below for changes regarding public servants

Dispute Settlement • Convention No. 51 provides “the settlement of disputes arising in connection with

the determination of terms and conditions of employment shall be sought, as may be appropriate to national conditions, through negotiation between the parties or through independent and impartial machinery, such as mediation, conciliation and arbitration, established in such a manner as to ensure the confidence of the parties involved” -‐ A number of Conventions and Recommendations touch on this issue -‐ For example, the Voluntary Conciliation and Arbitration Recommendation, 1951,

No. 92, encourages parties to abstain from strikes and lockouts which procedures are in progress

• Arbitration is compulsory arbitration only in the case of: - Essential services - Public servants in the administration of the state - Deadlock in negotiations - Acute national crisis - Interventions by legislature or administrative bodies where clauses of collective

labour agreements are annulled of modified are contrary to the principle of voluntary bargaining

• Restrictions are only possible by way of an exception in the case of economic stabilization policies after preceding consultations

• In the Netherlands there were government interventions in wage-‐setting in 1976; the government wanted to impose wage-‐caps - It was said this could only occur in an economic emergency and could only be

temporary

- Since this dispute, the Dutch government has not tried to intervene in wages (except for setting a minimum-‐wage)

• Overall, government interventions are not acceptable and voluntary bargaining is encouraged

The Right to Information • Recommendation No. 163 indicates that “measures adapted to national conditions

should be taken, if necessary, so that the parties have access to the information required for meaningful negotiations” - Public and private employers have an obligation, at the request of workers’

organizations, to make available information that is necessary for meaningful negotiations (with confidentiality clauses, if necessary)

• Recommendation also advocates measures so that negotiators have the opportunity to receive appropriate training

Collective Bargaining in the Public Service • The recognition of the right to collective bargaining for organizations and public

officials and employees is now a reality in industrialized countries • While Convention No. 98 (1949) did not include public servants in its scope,

Convention No. 151 (1978) took an important step forward in requiring States to promote machinery for negotiation or such other methods as will allow representatives of public employees to participate in the determination of their terms and conditions of employment - In accordance with article 1 of the Convention, the only categories which may be

excluded (in addition to police and armed forces, as in previous conventions) are “high-‐level employees whose functions are normally considered as policy-‐making or managerial, or employees whose duties are of a highly confidential nature”

• Later, Convention No. 154 (1981) was adopted; it also serves to encourage collective bargaining in both the private and public sectors

Summary of Principles of the ILO Committee of Experts: Collective Bargaining • Collective bargaining is:

- A fundamental right - A right of employers and their organizations - A right of organizations of workers (trade unions, federations, confederations)

or, only in the absence of these organizations, the right of representatives of the workers concerned

- Recognized throughout the private and public sectors and only the armed forces, the police and public service workers engaged in the administration of the State may be excluded (Convention No. 98)

- Meant to regulate the terms and conditions of employment, in a broad sense, and the relations between the parties

- Binding on the parties and intended to determine terms and conditions of employment more favourable than those determined by law

- Requires that workers’ organizations are independent and can proceed without undue interference by authorities

- A trade union which represents the majority or a high percentage of the workers in a bargaining unit may enjoy preferential or exclusive bargaining rights

- To be conducted in good faith - Voluntary and can take place at any level - It is acceptable for conciliation and mediation to be imposed by law, provided

that reasonable time limits are established - The imposition of compulsory arbitration on cases where parties do not reach

agreement is not permitted unless it involves i) essential services in the strictest sense, ii) public servants engaged in the administration of the State, iii) prolonged and fruitless negotiation and iv) acute national crisis

- Interventions by the authorities in freely concluded agreements are not permitted

- Restrictions on the future content of collective agreements that are imposed by authorities are only permitted if i) applied as an exceptional measure and only to the extent necessary, ii) they do not exceed a reasonable period and iii) they come with adequate guarantees of protection as it relates to the standard of living of the workers concerned

• The Committee of Experts, in its reports for 2000 and 2001 noted that the two problems which most frequently arise among ratifying countries include iii) A denial of the right of collective bargaining to all public servants or public

servants who are not engaged in the administration of the State iv) Requiring trade union organizations to represent too high a proportion of

workers in the collective bargaining process NEGATIVE RIGHT OF ASSOCIATION • Not covered by Conventions No. 87 and No. 98, but covered by Article 11 of the

Convention for the Protection of Human Rights and Fundamental Freedoms • Article 11 reads: 3. Everyone has the right to freedom of peaceful assembly and to freedom of

association with others, including the right to form and to join trade unions for the protection of his interests

4. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article (art. 11) shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

Gustafsson v. Sweden, 1995 • This case was referred to the European Court of Human Rights on behalf of Mr.

Gustafsson in his case against the Swedish government • Mr. Gustafsson, a restaurant and hostel owner, did not want to join the two unions

created for business owners in these two industries; they wanted him to become a member and sign a collective agreement – in the alternative, they wanted him to sign a substitute collective agreement

• He refused both options, raising objections ‘of principle’ regarding the system of collective bargaining; he also argued that his employees were paid more than they would have been paid under a collective agreement and that they themselves were not in disagreement with his refusal to sign a collective agreement

• In response, after a number of initiatives, the unions successfully placed his restaurant under a ‘blockade’; he could not have food delivered, companies would no longer carry his advertising, his businesses were boycotted and he was eventually forced to sell the restaurant

• After failing to argue his case successfully in the Swedish courts, he argued that Swedish national laws governing freedom of association were inadequate and thus in violation of article 11 (among other articles) of the Convention

Findings • The ECHR found that article 11 was applicable in this case

- The commission maintained that the unions’ blockade and boycott of his business has affected his right to negative freedom of association

- The measures taken by the unions entailed considerable pressure on the applicant to meet the union’s demand that he be bound by a collective agreement

• However, they determined that Sweden did not violate article 11 in this instance - The commission stated that “although the essential object of article 11 is to

protect the individual against arbitrary interferences by the public authorities with her or her exercise of the rights protected, there may in addition be positive obligations to secure the effective enjoyment of these rights”

- Article 11 has been interpreted to encompass not only a positive right to form and join an association, but also the negative aspect of that freedom, namely the right not to join or withdraw from an association

- However, the Swedish government argued that they have attached a great deal of importance to the right of trade unions to promote their own interests – further, they argued that they are not bound under article 11 to take positive measures to protect the citizens against union action

- The commission concluded that iv) Article 11 does not guarantee a right not to enter into a collective

agreement v) The positive obligation imcumbent on the State under article 11,

including the aspect of protection of personal opinion, may well extend to treatment connected with the operation of a collective bargaining system, but only where such treatment impinges on freedom of association

vi) Compulsion which, as in this case, does not significantly affect the enjoyment of that freedom, even if it causes economic damage, cannot give rise to any positive obligation under article 11

FORCED LABOUR

• More than 12 million people are trapped in forced labour worldwide (sweatshops, building, sexual exploitation); however, in principle, forced or compulsory labour is almost universally banned

• The two ILO Conventions dealing with the abolition of forced or compulsory labour are the most widely ratified of all the Conventions iii) The Forced Labour Convention, No. 29, 1930 iv) Abolition of Forced Labour Convention, No. 105, 1957

• There is also the ILO Declaration on Fundamental Principles and Rights at Work, adopted by the ILO in 1998 which states that all members of the ILO have an obligation, arising from their very fact of membership, to abide by fundamental rights, including the elimination of all forms of forced labour

The Forced Labour Convention: No. 29 • The oldest core convention, 1930 • The main provisions of the Convention are article 1, para. 1; article 25; article 2,

para. 1; article 2, para. 2 • The aim of the Convention is to “suppress the use of forced or compulsory labour in

all its forms within the shortest possible period” (article 1, para. 1); includes both an obligation to abstain and an obligation to act

• In aiming to adhere to the Convention as quickly as possible “recourse to forced or compulsory labour may be had during the transitional period, for public purposes only and as an exceptional measure, subject to the conditions and guarantees hereinafter provided” (article 2, para. 2) - However, the ILO supervisory bodies have recently suggested that this article

may no longer be justified by invoking observance of article 1, para. 2 and articles 4-‐24; nevertheless, States that have ratified are able to appeal to it

• Convention No. 29 defines forced labour as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily” (article 2, para. 1)

iv) ‘Work or service’ Very broad definition Must be distinguished from obligation to undergo educational training

v) ‘Menace of any penalty’ The penalty need not take the form of penal sanctions; it could take the

form of a loss of rights or privileges For example, it might consist of being placed at a lower level of privileges

for a prisoner or a reduced prospects of early release vi) ‘Offered oneself voluntarily’

May not involve deceit, false promises, or the retention of identity documents

The mere freedom to choose among any type of work or service is not sufficient to ensure observation of the Convention in States where national law creates an obligation to work

Persons under the age of 18 cannot give consent (nor can their parents give consent) to work that is likely to jeopardize their health, safety or morals

The right of a worker to freely choose their employment is inalienable; if a worker provides reasonable notice, they are free to leave their place of employment

Consider ‘debt bondage’ (where the element of compulsion is derived from debt); it looks voluntary but in fact can be forced

• The illegal exaction of forced labour must be punishable as a penal offence (article 25)

• There are some exceptions under the Convention (article 2, para. 2): f) Work of a purely military character exacted in virtue of compulsory military

service laws - Cannot be done ‘as a means of mobilizing and using labour for purposes of

economic development (article 1(b), Convention No. 105) g) Any works that falls under normal civic obligations for the citizens of a fully self-‐

governing country - Examples are jury duty or the duty to assist persons in danger h) Work exacted from any person as a consequence of a conviction in a court of law

which is carried out under the supervision of a public authority and where the person is not hired to or placed at the disposal of private individuals or companies

- Obligation to work does not arise unless the person has been convicted in a court of law

- Note that in some countries, prisoners may accept employment with private employers, subject to guarantees as to the payment of wages and social security, consent of trade unions etc.

i) Work exacted in case of emergency (ie. Fire, flood, famine); the emergency would endanger the existence or the well-‐being of the whole or part of the population

- Involves a sudden, unforeseen happening calling for instant countermeasures j) Minor communal services which the community has decided are necessary;

there is link to civic obligations - Services must be for a civic purpose within the city in question and can only

include minor services such as maintenance work, cleaning, schools, medical consultation etc.

The Abolition of Forced Labour Convention: No. 105 • Convention No. 105 does not constitute a revision of Convention No. 29, but was

designed to supplement the earlier instrument • Convention No. 105 serves to limit the scope of Convention No. 29 as it only

prohibits forced labour in the five situations enumerated below; for example, it does not prohibit the forced labour of those prisoners convicted of crimes which are not ideological or political in nature

• Under article 2, each State which ratifies this Convention “undertakes to take effective measures to secure the immediate and complete abolition of forced or compulsory labour”

• Under article 1, each State undertakes to “suppress and not to make use of any form of forced or compulsory labour”

f) As a means of political coercion or education or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system

- Certain limitations may be imposed by law on the rights and freedoms at stake “for the purposes of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society” (Universal Declaration of Human Rights, 1948); on the other hand, certain rights may also be restricted in the case of exceptional periods, such as national emergencies that threaten the life of a nation

- The Convention does not prohibit punishment by penalties involving compulsory labour of persons who use violence, incite to violence or engage in preparatory acts aimed at violence, nor judicial imposition of certain restrictions on persons convicted of crimes of this kind

g) As a means of mobilizing and using labour for purposes of economic development

- Aimed at circumstances where recourse to forced or compulsory labour has a certain quantitative significance and is used for economic ends

h) As a means of labour discipline - May consist of:

iii) Measures (physical constraint or penalties) to force a person to perform their services

iv) A sanction for breaches of labour coupled with penalties involving an obligation to perform work

Does not cover people that breach the terms of labour is done in the operation of essential services or in the case of national emergency

i) As a punishment for having participated in strikes - In certain circumstances, penalties can be imposed for participation in illegal

strikes or where there are “national laws prohibiting strikes in certain sectors or during conciliation proceedings” or “trade unions voluntarily agreed to renounce the right to strike in certain circumstances” (Geneva, 39th session)

j) As a means of racial, social, national or religious discrimination - Where punishment involving compulsory labour is meted out more severely to

certain groups defined in a racial, social, national or religious terms, this falls within the scope of the Convention – even where the offence giving rise to the punishment is a common offence which does not otherwise fall under Article 1 of the Convention

The Case of Myanmar, 1993 • Most famous case of forced labour; the International Confederation of Free Trade

Unions (ICFTU) made a representation to the ILO alleging non-‐observance by the Government of Myanmar of the Forced Labour Convention

• The ICFTU alleges: - That Myanmar failed to secure the observance of the Convention by

institutionalizing the use of forced labour by military commanders through the forced recruitment and abuse of porters

- That there are no laws or regulations governing the actions of the military concerning porters, and also that these people are providing civilian and not military services

- The situation of porterage in Myanmar clearly fits the definition of “forced or compulsory labour” under article 2(1) of the Forced Labour Convention and does not fall under any of the five exceptions listed in article 2(2) The porters are rounded up in public places by the police and are forced to

do dangerous work with no pay and very little food, water or rest In many cases, porters die as a result of mistreatment, lack of food and water,

and through their use as human mine sweepers - It cannot be argued that Myanmar is in a transitional period (appealing to article

1(2)) as porterage has become a norm rather than an exceptional measure • The government of Myanmar argues:

- That it is a tradition of voluntary contribution of labour to build shrines, religious temples, roads, bridges and the clearing of obstruction on pathways which goes back thousands of years

- Those who accuse Myanmar authorities of using forced labour patently reveal their ignorance of the Myanmar tradition and culture

- It is not true that porters are mistreated and never have to accompany the military to the actual sites of battle or to danger zones

- Porters are recruited and employed by the armed forces after consultation with the local authorities; further, recruitment and employment are in accordance with local laws

• The Committee determined: - That the local laws which permit porterage are in violation of Article 2(1) of the

Convention - That there is nothing which would bring porterage within the scope of the

exceptions provided for in article 2(2) of the Convention - That the country is not in a transitional period - The formal appeal of the local laws which permit porterage will be followed up

in practice by penal prosecution for those who resort to coercion

The Case of Siliadin v. France, 2001 (p. 59) • The case originated as an application against the French Republic; the applicant, a

15 year old Togolese national living illegally in France, alleged that, contrary to Article 4 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the French government did not have suitable criminal law provisions in place to protect her from the “servitude” in which she had been held

• The applicant claims that she was held against her will in a household where she worked seven days a week, for long hours, with no pay, with no benefits, no real chance to leave the house, and that they took away her passport; she was also ‘leant’ out to other households to do their domestic work and to care for their children

• Further, the applicant was a minor and an illegal immigrant; this points to a lack of voluntariness and demonstrates why she was unwilling to go to the police

• This case dealt with the conditions of employment for domestic workers; a global report from 2001 suggests that domestic labour is one of the main instances of forced labour today

• The question posed to the court was whether article 4 of the Convention, which prohibits slavery, servitude and forced and compulsory labour, imposes a positive duty on States to intervene in relationships between private individuals

• The European Court of Human Rights reached a unanimous decision; that the applicant did have victim status, that no one shall be held in servitude or slavery, and that French law must be modified in order to accurately reflect this principle (the French government was in violation of article 4) - Note that her employers were not found guilty under French law – the applicant

was not able to satisfy the conditions (such as “voluntariness”) set out under the French Criminal Code and thus French law did not offer her adequate protection

• This case talks quite a bit about the ILO; for example, “in interpreting article 4 of the European Convention, the Court has in previous cases already taken into account the ILO Conventions, which are binding on almost all of the Council of Europe’s member States, including France, and especially the 1930 Forced Labour Convention”.

* On pages 100-104 of the reader, you will find many examples of countries that are not complying with certain provisions of the Forced Labour Convention; also included are recommendations from the Committee on how these countries should remedy these violations (ie. Egypt, El Salvador)

International Labour Law: Week 6 Dismissals Law & Migration for Employment Law

- not core conventions b/c these two areas are very sensitive; e.g. dismissals law varies b/w member states

- important areas of labour law but few texts

DISMISSALS LAW

Important changes in national law & practice re dismissals law over past 20 yrs; nearly complete discretion of employer has given way to protection Convention no. 158 (Termination of Employment at the Initiative of the Employee)

- Only ~ 50 ratifications (e.g. NL, among other Euro countries), has not ratified it) - Neither a core convention nor a priority convention - Convention is from 1982, when standard employment relationship = norm & there

was a clear preference for jobs of unlimited duration (vs. temporary/ part-‐time jobs).

- E.G. In the EU, it took years to make a directive on part-‐time work b/c many states didn’t recognize the concept.

Since then: (from 1990s) pressure from the West for increased use of temporary & part-‐time workers, trainees, on-‐lease workers, apprentices; beck & call workers (“atypical” workers—yet atypical workers are now becoming more typical. Nowadays, major companies tend to have a core staff, w/ many atypical workers that form the outside layers of the onion (in difficult times financially, outer layers are dismissed).

- Trade unions want the NL to ratify convention no. 158 but Employers Organizations say it’s out of touch w/ modern conditions.

- Thus, huge struggle with this convention

Convention No. 158 Main standards have wide scope but focus is on standardized, long-‐term, full-‐time employment (today, a bit out of touch) Art. 2 incl: all employed persons, even civil servants; hw, can exclude workers engaged under a time-‐limited K or K for a specified task (not viewed as normal standardized employment relationship); you also can make exceptions during probation or qualifying period of employment; workers engaged on casual basis for a short period. Key principle Workers shall not be dismissed w/o a valid reason (art. 4)

• Valid: operational needs of the enterprise (eto OR economic/technical/organizational) (e.g. merger, take-‐over, economic crisis)

o Requirements may be economic, technological, structural or the result of an accident or force majeure

o In national law, typically embodied in a specific legal term (e.g. redundancy) o Some countries are more strict (E.g. French cts take strict view of re-‐location

where a profitable firm is closed in France & re-‐located somewhere else) o Convention does not prescribe particular criteria to be used in selecting

workers for termination based on eto. o Hw, Recommendation provides that criteria should be established in

advance whenever possible, by, inter alia, laws, regulations, collective agreements, ct & decisions, giving due weight to both employers’ & workers’ interest.

• Valid: conduct & capacity of the worker; again difficult to regulate worldwide; depends on ct & jurisdiction.

o Some cts (e.g. in the EU) are very strict & it’s difficult to get dismissed due to for your conduct or capacity.

o Procedure differs b/w dismissal for conduct & capacity as dismissal for conduct may involved disciplinary action.

o Conduct may be related to manner in which worker carries out duties OR disruptive effect of behaviour on the workplace.

o Parity Principle: some cts have accepted inequality in treatment b/w similar offenders in the same work as a basis for setting aside a dismissal. Burden of proof may shift to employer to justify treating workers differently.

o Culminating Incident: when the basis for dismissal is a series of minor transgressions, cts sometimes apply the “culminating incident approach.”

o Capacity Employee may be dismissed for relatively slow pace of work; loss of confidence in limited circumstances; a physical or mental conditions affecting performance may also be a valid reason. Case law often limits this strictly.

• Article 5 & 6: non-‐exhaustive list of invalid grounds o Union membership/ participation o Seeking office as, or having acted/acting in capacity of workers’

representative o Filing of complaints against employer o Race, colour, sex, marital status, family responsibilities, pregnancy, religion,

political opinion, national extraction, social origin o Absence from work during maternity leave/ illness o Significant litigation concerning dismissal on these or related grounds.

• Simms article in the reader mentions some grounds that could be added.

o Constructive dismissal (when employer creates condition which causes employee to quit; Simms thinks this should be a ground b/c you shouldn’t provoke an employee to quit.

o Age (recommendation no. 166) o Pre-‐trial detention o Appearance, HIV status & sexual orientation are all not mentioned in the

Convention & the Recommendation

Procedural Rules for Determining a Valid Reason • Consultation w/ worker’s reps in case of eto (art. 13) • Appeal to impartial body (NL, discussion on the CWI & the Kantonrechter. NL has not

ratified this convention) • Worker may defend himself (art. 7). Burden of proof not completely on worker (art.

9); rationale labour law protects the weaker party. • Priority in rehiring in case of dismissal on grounds of operational needs of the

enterprise (Recommendation no. 166); in other words, if operational needs pick up, company shouldn’t just hire cheaper/ younger workers but should try to re-‐hire dismissed workers.

o May be limited to a specified period of time and may be made contingent upon worker expressing an interest to be re-‐hired.

o Principle established in legislation or collective agreements of many countries.

Employee or Self-‐Employed Only the employee is protected by convention no. 158 How to determine the difference? Some countries have far-‐fetched rules to determine this:

• Jorge O. Amora v. Asian Dvlpt Bank (1997, Asian Admin tribunal of Asian Dvlpt Bank) • Criteria used by Belgiam UNIZO (Union of Independent Entrepreneurs) • ILO Employment Relationship Rec. No. 198 (2006)

Recognition of private placement & temporary work in convention no. 181 (Private Employment Agencies Convention) and Rec. 88; at one time, many countries did not recognize such agencies (similar to not recognizing atypical workers)

MIGRATION FOR EMPLOYMENT

Migration for Employment Convention no. 97 Low number of ratifications. Scope: self-‐employed excluded (art. 11, 1), no scope limitation for short-‐term or seasonal migration, excluded groups see art. 11, 2. Definition of frontier worker differs per member state. CEACR thinks that exclusion of the self-‐employed is no longer warranted. Art. 7 & 10: employment services of the member states and the member states themselves are invited to cooperate and make agreements. Article 6: non-‐discrimination provision; requires ratifying States to apply, w/o discrimination in respect of nationality, race, religion or sex, to migrant workers lawfully w/n the country, treatment no less favourable than that which it applies to its own nationals in respect of remuneration, hours of work, overtime arrangements, and holidays w/ pay. No reciprocity: migrant does not have to be a national of a country that has ratified the convention. In practice, it is still there b/c gvts need control ??? Three annexes (can be excluded from ratification; but brings about many problems)

1. Recruitment, placing & conditions of labour of migrants for employment otherwise than under gvt-‐sponsored arrangements).

2. Recruitment, placing & conditions of labour of migrants for employment recruited under government-‐sponsored arrangements for group transfer.

3. Importation of personal things, tools and equipment of the migrant (many nations don’t like this).

Annexes are only for workers who have an offer of employment when they enter the country (not spontaneous migrants). Self-‐employed workers & spontaneous migration are not dealt w/ and problems often arise related to these areas. Thus, a need for more texts. Later Texts Convention no. 143 (not in the reader);

• Ratified by only 18 states • Focus on human rights of the migrant workers • Struggle against clandestine immigration specifically mentioned for 1st time (incl:

punishment of the organizers of illicit migration, adoption of sanctions) • Scope

o Not applicable to persons coming for training or education purposes o Not applicable to persons admitted temporarily to undertake specific tasks

at the request of their employer

Recent Developments UN takes over part of the responsibilities of the ILO regarding migrant workers. Intl’ Convention on the Protection of the Rights of All Migrant Workers and their Families, in force July 2003

- Art. 26. State parties should recognize the right of migrant workers to freely join trade unions, seek the aid of them.

1999: comprehensive CEACR report on migration.

2004: discussion of the topic during Int’; Labour Conference, even though it’s not a core convention; hw, still a core issue. Towards a rights-‐based approach to labour migration.

INTERNATIONAL LABOUR LAW – WEEK 7

“Implementation, Enforcement, Codes of Conduct, Decent Work”

A) Implementation of International Labour Law (ILL) Current Problems

- Many conventions presently exist but many have few ratifications - Additionally, child labour, prostitution, forced labour, etc., still exist - Concerns that provisions are outdated - The fact that there is a classification of conventions (i.e. core and

priority) means that some matters are less important Reasons for failure to ratify

- Some countries prefer the WTO and its actual sanctions - Divergences between national labour law and conventions both at

conceptual and technical levels - Fear that the ILO gives too much power to the trade unions - Increasing usage of regional bodies - Political sensitivities (i.e. is ILL western-European law being imposed

on the rest of the world) - Smaller agreements include labour provisions (e.g. NAFTA) - Criticism of CEACR and Conference committee – they have

overstepped their roles and take on a quasi-judicial function that includes interpreting provisions

Overcoming the shortcomings

- Some have suggested transferring labour regulation to the WTO because of the connection between labour and trade

o There is no social clause in the GATT - Independent publication of products made using child and forced

labour to encourage boycotts

B) Impact of Globalization on ILL Sobczak article

- Transnational corporations are becoming the norm o This results in multinational contracts with many parties o There are networks of companies with flexible forms of co-

operation that no longer correspond to simple transitory interactions, but which do not yet present the level of cooperation specific to formal organization

o Companies are changing their missions - they are no longer purely motivated by economics, explaining their pursuit of codes of conduct

Companies want to be actively involved in developing the standards governing relations with their workers

o Codes of conduct are increasingly granting new rights to workers and represent progress with respect to prevailing legislation

o E.g. cardboard box production company may import trees from Canada, have pulp mills in Asia, import other raw materials and labour from the Middle East and sell the product in Latin America

o HOWEVER, while there may be improvements, there is an ongoing problem with legitimacy – all stakeholders and subsidiaries need to be involved and bound

o this makes it much more difficult to keep tabs on the labour because it is unclear where the boundaries of the company are

Results in an interaction of foreign labour laws and uncertainty about to whom a collective agreement may apply

o Creation of large networks of employers could render employees vulnerable

Often cover appealing topics like child labour while FoA is excluded

Drafting procedure is not transparent - A possible solution could be a code of conduct that applies to an entire

network of production o This would require clear links in the chain of production and a

fairly small supply chain o It would also need an independent monitor to ensure

compliance (e.g. NGOs) o Content of the codes must be explicit – need to expressly

provide for freedom of association if it is to be guaranteed o Must also ensure that all stakeholders are included in the

drafting process Consultation with workers

C) Codes of Conduct

Developments

- Proliferation of codes of conduct post 1990s - E.g Nike was targeted after its big sweatshop exposé and it released a

code of conduct in response to address forced labour and wages (but freedom of association was not included)

Types of Codes

- One-issue codes o Meant to address a particular concern o E.g. a code of conduct for Nestle breast milk substitutes to

ensure safety (NB not sure what the heck the prof was saying here – just found it funny how he said breast)

- one-company codes o applies to the worldwide operations o e.g. Phillips, Nike

- sector codes o apply to a segment of industry o maintain membership lists o e.g. apparel industry codes providing for usage of good

materials, no sweatshop labour - multi-stakeholder codes

o these are the strongest of the codes o would include NGOs, MNCs, unions invested in their content

- Global Compact o Kofi Annan’s initiative to address MNCs

o Provisions on labour, environment, and relations between MNC and host country

Problems/Benefits

- Problem with selectivity o Often address sensitive issues like child labour, forced labour,

hours, wages but neglect to include provisions on freedom of association and collective bargaining

o Need to ensure that independent monitoring is protected - Benefits

o Terms contained in codes may influence jus cogens norms meaning that they could be integrated into international law

o Companies often include labour standards in “best practices” provisions

Best practices stimulates competition among firms to have the best provisions

o Codes may be incorporated into private law contracts among firms which could be an effective way to promote corporate social responsibility

M.L. Morin Article

- New rules are needed to establish who the employer is in networks - Seek to broaden workers’ rights to information and consultation - Create multi-employer bargaining units for enterprise networks - Promote corporate social responsibility whereby non-compliance with a

code would subject the corporation to possible liability - Joint responsibility for the employment relationship by two employers

(system used in France) o Applicable to cases where the employee has two employers (i.e.

secondments) o The host employer would also be responsible for upholding the

employee’s rights - Impose joint liability of employers in network – this would mean that the

prime contractor is responsibility for the conduct of the subcontractors in the network

- Adopt concept of joint work as it is currently used in health and safety law

D) International Framework Agreements

Definition

- Agreement between a multi-national corporation and an international trade secretariat (ITS)

o Note: ICFTU is not an international trade secretariat - Purpose is to create an ongoing relationship between the MNC and the

ITS so that they may collaborate to solve work-related problems - E.g. Danone (the yogurt manufacturer) entered into a framework

agreement with the IUF (International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco, and Allied Workers Associations) in 1988

- These are often vague collective agreement-esque instruments governing relations on an international level

E) Extraterritorial Application of National Law

Definition

- Using national legislation to govern relations abroad - Best explained through example below

Alien Tort Claims Act, USA, 1789

- US district courts have jurisdiction over any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the US

- Enables US courts to hear human rights cases brought by foreign citizens for conduct committed outside the US

- Four requirements: o Act of state doctrine o Political questions doctrine o Establish nexus between company and the violation of the law

of nations o Prove actus reus and mens rea

- Case of Doe v. Unocal (1997) o U, an American company, was building pipelines in Myanmar o D was a Burmese villager working on the pipeline; her family

was killed and she fled to the US where she pursued a legal action against U in American courts

o Legitimate use of the ATCA

F) Current ILO trends Promotion of “Decent Work”

- The notion of decent work encompasses four key considerations o Fundamental labour standards o Employment o Social protection for everyone o Social dialogue

- Purpose is to ensure that labour regulations are actually applied - Belief that human relations need an ethical dimension - This will require involvement of states and labour courts to promote

these principles READINGS The Tanzania report

- Case study: Tanzania o Tanzania has ratified all eight ILO core labour conventions but

transposition into national law has been largely unenforced leading to violations of basic human rights

o Freedom of association and collective bargaining

Laws allow workers to join unions without prior authorization but many private sector employers have adopted anti-union policies

Trade unions must consist of 20+ members and register with the government – failure to do so are subject to fines or imprisonment

Government sets terms of office of trade unionists High level of government interference with unions – a

government registrar has excessive power to monitor membership, financial status

Collective agreements must be submitted to the industrial court for approval

Public service workers cannot engage in collective bargaining

o Discrimination Women’s rights not respected in practice – women in

subordinate position in society, particularly in rural areas Sexual harassment in the workplace Physical disabilities are effectively restricted in

employment, education, etc Discrimination in housing, healthcare, education for those

with HIV/AIDS o Child labour

14 yrs minimum age Low rates of enrolment in school Commercial sexual exploitation and prostitution of

children Children employed in seasonal agricultural employment;

mining Widespread representation of children in many

professions 2 million orphans

o Forced labour Prison labour Threat of termination compels workers to put in overtime

hours No express prohibition on trafficking

o Conclusions Increase freedom of association and decrease

interference Fine employers who discriminate based on HIV/AIDS

status End commercial sex exploitation Increase educational resources Ban trafficking Use the WTO to compel compliance

o BOTTOM LINE – Tanzania has ratified the treaties but is hardly in compliance; the best the ILO can do is make recommendations for change to “name and shame”

Kofi Addo article “The Correlation between Labour Standards and International Trade”

- Key issue: should WTO trade sanctions be imposed on countries that do not respect the core ILO labour standards

- With increasing globalization, some have called for the inclusion of a social clause into Article XX of the GATT

o This would mean that violation of the ILO core conventions would result in trade sanction penalization

o Championed by Bill Clinton in Seattle, opposed by developing countries

- Arguments in support of a social clause: o Developing countries gain an unfair advantage by not enforcing

internationally recognized labour standards, which assists them to produce cheaply, distorting economic patterns

o It is inhumane for workers and children in developing countries to be deprived of their fundamental rights

- Arguments against: o The WTO dispute settlement understanding mechanism would

not be responsive to economic problems with a social underpinning

Retaliation is one of the sanctions allowed by the WTO – applying this to the labour context could be hugely problematic (i.e. if country A maintains high tariffs on some imports, then country B can retaliate by placing tariffs on country A’s imports; extending this to the labour context is either impossible or likely to have perverse results)

o The WTO was designed to deal with trade – it is founded on principles of free trade and non-discrimination; to include labour into its mandate would skew its mission

o Developing countries fear that inclusion of labour standards will trigger developed countries to cite low labour compliance as a reason for protectionism

o high trade barriers to countries with poor labour standards may only serve to exacerbate the problem by hindering development

o trade sanctions only target certain industries engaged in exporting and not the whole economy – they will have no impact on domestic industries, such as subsistence agriculture

o practical difficulty of adopting such a rule – consensus is required in the WTO and this will never occur in the face of such strong opposition from the developing countries

o poverty is a key cause of child labour – trade sanctions will do nothing to alleviate poverty which means they will have little, if any, effect on child labour

o trade sanctions would increase the costs of production in third world countries which would in turn worsen the labour problems

Hans-Michael Wolffgang “Core labour standards in World Trade Law”

- Reasons in support of a social clause

o The WTO has mechanisms in place to enable developing countries to implement certain goals over the course of transition periods without penalty

o Core labour standards are fundamental extensions of enshrined human rights

o Incorporating a social clause would be a way to further codify these human rights to ensure that workers worldwide are protected

o ILO is ineffective in enforcing its conventions – it can only use moral shaming to generate compliance

It stretches credulity to think that the ILO could be vested with the power to impose trade sanctions on labour violators

o Labour plays a fundamental role in economic production and trade – the WTO is well-equipped to deal with labour violations\

o WTO should be viewed as a guardian of a world trading order, and not just the servant of market access regulation

This means looking at trade holistically and including subjects such as labour and the environment in promoting a more just world trading system

o WTO can grant positive incentives through tools such as reciprocity and granting waivers, to prod developing countries to improve labour conditions

3. THE SOCIAL CLAUSE: WHAT IS IT ALL ABOUT?

3.1 What Is a Social Clause?

In the context of international trade, a social clause essentially refers to a legal provision in a trade agreement aimed at removing the most extreme forms of labour exploitation in exporting countries by allowing importing countries to take trade measures against exporting countries which fail to observe a set of internationally agreed minimum labour standards. The trade measures may include:

• exclusion from arrangements providing preferential trading status (e.g. US or EU General System of Preferences (GSP) or Most Favoured Nation (MFN) trading status);

• setting up restrictive quotas or other quantitative trade barriers and/or the raising of tariff levels;

• complete restriction on the importation of products originating from the offending country.

A Labour Law Summary

Documents

asian dvlpt

human mine

unforeseen

views ideologically

economic stabilization

highly confidential

offence giving

conclude collective