Labour law: Its role, trends and potential Labour Education 2006/2-3 No. 143-144 Contents Editorial V The role, impact and future of labour law, by Daniel Blackburn 1 How domestic jurisdictions use universal sources of international law, by Xavier Beaudonnet 9 Workers’ rights and the rule of law: A clash of values, standards of judgement and moral choices, by James A. Gross 21 Universal labour standards and national cultures, by Jean-Michel Servais 29 Soft law and international labour law, by Isabelle Duplessis 37 International protection of collective bargaining – A diffi cult task, by Miguel Rodriguez Piñero y Bravo Ferrer 47 Labour law and social partnership under pressure – The Belgian case, by Valérie Jadoul 55 Trade unions and the law – An Australian overview, by Mordy Bromberg 63 The outlook for African labour law – Between the OHADA way and the World Bank recommendations, by Georges Minet and Corinne Vargha 71 Labour reform in Latin America, by María Luz Vega Ruiz 81 Chinese labour law in transition, by Yun Gao 91 III Editorial “ he fundamental principle of labour legislation is to guarantee the Tweaker party in the labour market protection and basic rights in order to be in a fair position when negotiating salary and working condi- tions.” That fact was recalled in 2006 by Marcello Malentacchi, General Secretary of the International Metalworkers Federation (IMF). The re- minder was addressed to the government of a member State of the International Labour Organization. In recent years, the government con- cerned has gained something of a reputation for legislating to dismantle the industrial relations system and weaken trade union rights – among other things, by promoting individual employment contracts, to the detri- ment of collective agreements negotiated between trade unions and em- ployers. This disdain for the basic principles of labour law has already come in for serious criticism from the ILO supervisory bodies. The dossier is now being examined by the Committee on Freedom of Association, and further developments are likely. It is certainly a good illustration of the ambivalent interpretations of labour law which still lurk in some minds, and of a dangerous return to times which should have been past and gone. In his contribution to this issue of Labour Education, Daniel Blackburn recalls that, historically, the fi rst labour laws (notably the much-bruited Ordinance of Labourers Act of 1349 in England) were mainly aimed at imposing discipline on workers, penalizing any protest movements, and ensuring obedience and loyalty to employers. Often, any breach of contract led to court-ordered forced labour. Not until the nineteenth century was the need fi nally understood for a specifi c body of law that would provide workers with minimum pro- tection against any abuses by employers, while recognizing that people’s working lives cannot be governed by market forces alone. In other words, human labour was no longer to be seen as a commodity. As one writer puts it, “Labour law was assigned to the realm of public protection, contrary to civil law, which assumes that the parties to a contract are equal. Through legislation or collective agreements, labour law seeks to correct the basic inequality between employer and employee.” 1 This issue of Labour Education, to which eminent lawyers have contrib- uted, does not really set out to relate the history of labour law, but rather to stimulate some refl ection on its possible role in the globalized world of today. At the same time, we report some developments which suggest that labour law has been drifting away from its basic principle of protecting the weaker party within an unequal contractual relationship. Labour law’s role, evolution and prospects worldwide, as well as the means of getting it respected (see Labour Education, No. 140-141, 2005/3-4 on labour inspection), are clearly ILO business. In particular, they are covered by the core Conventions on freedom of association and the right V to collective bargaining, which has become an essential source of labour law in many countries. Nonetheless, as Miguel Rodriguez Piñero y Bravo Ferrer emphasizes in his contribution, there are still enormous challenges to be faced concerning the right to collective bargaining and the status of the agreements reached. Beyond the basic right to collective bargaining, the ILO’s entire stand- ard-setting activity aims to point national labour law towards the goal of promoting social justice through rules that protect dignity at work. In fact this is a key mission of the ILO’s Decent Work Agenda. To trade unionists, the importance of the international labour stand- ards has long been obvious. But it is sometimes useful to recall the impact that they have on the ground, in the regions, countries and workplaces – and in the labour courts. Xavier Beaudonnet’s article does just that, by examining how the ILO’s international standards are used within national jurisdictions. It soon becomes clear that, day in day out, judges, lawyers, labour inspectors and trade unionists base themselves on international labour standards in order to get workers’ rights respected. Judges quite often apply the provisions of a ratifi ed Convention directly in order to resolve a case, or else they use ILO standards, whether legally binding or not, as a source of interpretation and inspiration when applying their own domestic law. That is why it is so important – and this point can never be stressed too often – that the trade union movement should encourage member States to ratify the Conventions and systematically take part in the follow-up mechanisms which the ILO has put in place to monitor governments’ ap- plication of international labour standards and bring offenders to book. In many cases, the ratifi cation of an instrument, and the international obligations which are thereby freely entered into, form a rampart against certain governments’ penchant for revising labour law downwards under neo-liberal pressure. Here, María Luz Vega Ruiz shows that the obsession with revising Latin American labour law, in a bid to introduce greater fl exibility and reduce labour costs, has not produced the more and bet- ter jobs that it was supposed to. Quite the reverse. Not only has it led to casualization for many workers, this savage desire to purge the law of so-called “rigidities” (meaning permanent contracts, protection against unjust dismissal, the minimum wage and some types of social protection) has also produced very poor economic results wherever it has held sway. This analysis could usefully be shared with those who are shaping the evolution of labour law in Africa. There, as Georges Minet and Corinne Vargha explain, the legitimate wish to harmonize labour law in order to achieve greater economic and social cohesion across the continent is running up against the dictates of the World Bank, whose main aim is to fl exibilize all the provisions governing recruitment, work times and dismissals. As Jean-Michel Servais notes, in an age of globalization, the regula- tion of industrial relations at the international level is an essential task, as the lowering of frontiers is leading to the internationalization of law. Analysing the barriers and pitfalls that will certainly crop up along the way, he concludes that the standard-setting system invented by the ILO is and remains, despite its weaknesses, the best-developed and most widely accepted response to this vital need. That view is shared by Isabelle Duplessis who, after listing and analysing the many current VI types of fl exible labour market regulation (generally known as “soft law”), advocates a revitalization of international labour standards. We must, she insists, promote the authority of the ILO supervisory mech- anisms and of the interpretations they have been placing on the standards ever since the beginning of the 1920s. In view of the various private “soft law” initiatives, such as multina- tional companies’ codes of conduct or certain unilateral corporate social responsibility initiatives, some authors denounce what they see as at- tempts to “privatize” labour law. They argue that companies are granting themselves the freedom to pick and choose between legal rules, as regards both their content and the way in which they may possibly be applied. This kind of freedom calls to mind a remark by the nineteenth-century French priest and politician Henri Lacordaire: “Between the strong and the weak, between the rich and the poor, between master and servant, it is freedom which oppresses and law which sets free.” Often the fruit of social struggle by trade unions, labour legislation has contributed to the emancipation of workers in many countries. But it is not immune from swings of the pendulum. Today it has become com- mon, as Valérie Jadoul points out, for certain jurisdictions to interpret legal provisions in such a way as to empty them of their content, thus creating case-law that runs counter to social progress. So James Gross insists that any reasonably serious discussion of workers’ rights must take account of the choices made by legislators and by those who have the responsibility of interpreting and applying the law. And those choices, as he makes quite plain, are neither neutral nor always in line with human rights and the aims of social justice. Far from it. In addition to the example of the United States, cited by Professor Gross, the Australian situation as described by Mordy Bromberg bears witness to the ferocity of the attacks launched in various places against the standards that protect workers’ rights and against the basic principles of labour law. But at the same time, the Australian case and others show the strength, importance and effectiveness of joint action by trade unionists and law- yers to oppose the threats of deregulation and ensure that workers’ rights are not sacrifi ced on the altar of labour market fl exibility.