Labour Law: Its Role, Trends and Potential

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 conditions.” 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 concerned 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 detriment of collective agreements negotiated between trade unions and employers. 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 protection 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 contributed, 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 standard-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 standards 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’ application 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 better 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 regulation 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 mechanisms 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 multinational companies’ codes of conduct or certain unilateral corporate social responsibility initiatives, some authors denounce what they see as attempts 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 common, 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 lawyers to oppose the threats of deregulation and ensure that workers’ rights are not sacrifi ced on the altar of labour market fl exibility. In this respect, the globalization of the economy is a new challenge but also a new opportunity. The challenge for the trade union organizations will be to maintain and strengthen at national level and to impose elsewhere – in regional and global integration forums as well as industrial relations within the multinationals – the notion of negotiated legislation. In other words, to strengthen the role of collective bargaining, and of freedom of association in the process, as an essential source of labour law. The opportunity is that, as economic integration deepens, we are bound to see more and more drives to harmonize labour law. Trade union organizations ought to be at the forefront of such initiatives, and this fi eld cannot be left to institutions that do not have a mandate for social standard-setting. In these two respects, the international standards established by the ILO will be an important centre of gravity. For one thing, ratifi ed Conven- tions are a form of labour law negotiated at the international level. They are negotiated and adopted by all of the ILO’s constituents together (governments, employers and workers) and their provisions are universally applicable minimum standards. They could therefore form a legitimate

VII basis, and a minimum threshold, for efforts to strengthen and harmonize labour law. Application would be ensured by the labour inspectorates at the national level and by the ILO supervisory bodies at the global level. This issue of Labour Education does not go into every aspect of labour law, and we will be pleased to hear from any readers who might wish to ﬁ ll some of the gaps or give us their reactions ([email protected]). Our aim, here in the ILO Bureau for Workers’ Activities, is a rather more modest one – to provide union leaders and activists with matter for analysis, comparison and reﬂ ection, so that the best possible use can be made of the legal arsenal represented by international labour standards in order to strengthen and promote, at all levels, the protection to which workers around the world are entitled. And so that, tomorrow, labour law will still be an instrument of emancipation and social justice.

Jim Baker Director ILO Bureau for Workers’ Activities

Note

1 Ray, J.-E. 1998. Aborder le droit du travail, Editions du Seuil, collection Mémo (Paris).

VIII The role, impact and future of labour law

The aim of this article is to provide a trade union audience with a basic outline of the role played by labour law, and to consider the different sources of the rules operating at the workplace. It also considers changes that are affecting labour law in the era of globalization.

Daniel Blackburn Labour Lawyer London

ome academic commentators have further subject to the infl uence of a host Sgone so far as to argue that “there is of supranational sources of law. no comprehensive and conceptionally Brian Langille refers to the collision of coherent defi nition of labour law”. One concepts, legal frameworks and diverse thing is certain: it is not always helpful to points of reference that make up the sub- view labour law as being primarily a set ject we know as labour law as “a slice of of laws issued by a State. In many juris- life” 2 rather than a unifi ed legal concept. dictions, much of what governs conduct at The diverse ingredients, he argues, fall the workplace is the content of agreements, together into a compelling whole where informal understandings, and formal in- they converge around the regulation of the structions that originate within the work- workplace and working life. place. “Many contemporary studies have There are two explanations of the pur- shown”, writes Harry Arthurs, “that the pose of labour law that workers’ represen- law of the workplace is still largely gen- tatives can feel immediately comfortable erated from within”.1 The rules of work- with: place culture, custom and practice, the em- to correct the imbalance of power ployment contract, the works rule-book or between the worker and the employer: employee handbook, and collective agree- by protecting workers’ right to organ- ments often form the core of the rules ize in trade unions and to bargain col- governing the employment relationship. lectively, and to putting in place safe- Legislation becomes relevant only to fi ll guards which prevent the employer gaps or ensure minimum standards. from dismissing the worker without Even when we look at the legislation, it good cause, labour law sets up and pre- is not only “labour laws” that govern the serves the processes by which workers workplace. Often a lawyer must look to are empowered to negotiate from a constitutional law, the general civil code position of “equality” (or, at least, of or civil statutory laws, the “common law”, less inequality). and even the criminal law. A labour code or labour law statutes will usually be read to prevent working conditions being together with these sources and may be pushed below levels society deems acceptable: by placing restrictions on Note: The author wishes to thank Professor Keith the contracting partners’ freedom to Ewing for his comments on an earlier version of the contract on whatever terms they wish, paper. and setting minimum standards over

1 issues such as working time, health and Labour laws established mechanisms to safety, and pay, the law limits the de- promote a trade union role as a tool of na- gree to which the more powerful party tional regulation across Western Europe, can exploit the weaker. in the then planned economies of the East- ern bloc, and in the United States, where These two different aspects of the law as a the New Deal institutions of the 1930s con- vehicle to intervene in the bargaining rela- tinued to promote trade union rights. tionship have both delivered real benefi ts This period was followed by the wide- to working people in numerous jurisdic- spread adoption of free market econom- tions, and both have been – and continue ics that preached a deregulatory agenda to be – goals pursued by the trade unions. and challenged trade unions as “distort- But it is worth bearing in mind that the ing” infl uences or “privileged interests” former represents the law as a tool to pro- that disrupted the supposedly benefi cent mote worker empowerment, while the latter operations of the market. Declining union represents a form of worker protection. membership levels in much of the devel- A third rationale sometimes credited oped world, and the disorientated labour as a purpose of labour law is: movements of the former Eastern-bloc, meant that organized labour struggled to regulate the labour market: a State to challenge the new agenda. Oddly, for a may choose to implement legislation philosophy supposedly based on deregu- to place either maximum or minimum lation, the free-market period produced a limits on wages, either nationally or huge body of law dedicated to restricting in particular sectors or industries. An trade union freedoms.4 example of such legislation from 1349 is frequently cited as the fi rst example of labour law. The Statute of Labourers The sources of labour law placed restrictions on wage increases when, in the aftermath of the plague in The following sources of law are set out in England, workers – greatly reduced in a rough hierarchy. Generally speaking, the numbers – found that they were able to sources nearer to the top of this list will agitate to command higher wages. The overrule confl icting provisions found in 1349 Statute criminalized these actions sources lower down the list, but the hier- as a means to keep wages down. archy is not valid for all countries or situ- And a fourth answer: ations. In the French system, for example, it is generally not the rule closest to the top to limit trade union freedom: labour law of the hierarchy which dominates, but the is also used as an instrument to limit rule “most favourable to the worker”.5 and control trade unions. It is in considering this aspect that trade unionists will be inclined to ask whether they National constitutions really need labour legislation at all. The constitutional protection of labour The changing nature of labour law rights can be found in numerous jurisdictions across the world. With exceptions, 6 The perception that labour law consists most European constitutions contain at largely of state-issued legal rules may be least some commitment to freedom of attributed in part to the status of organ- association. This cements protection of la- ized labour during the post-war period of bour rights deep within the national legal Keynesian economics. During this period system, but frequently provides little de- there existed a belief that the State “could tail. The constitutions of “old Europe” typ- and should intervene to maximise eco- ically include only a general commitment nomic development and social welfare”.3 to “freedom of association” 7 and occasion-

2 ally add the right to collective bargaining to cover third parties. Under various dif- or the right to strike 8 (so far as collective ferent national schemes, agreements may rights are concerned). be extended to all members of the relevant In the constitutions of “new Europe” union (or to all workers, regardless of freedom of association tends to be defi ned union membership) within an enterprise, more widely (explicitly adding both the region or sector. right to join and the right to form trade In Denmark debate continues 14 as to unions to the general right to “freedom of whether the collective bargaining system association”). Most also protect the right can be continued as the basis for the im- to strike.9 The distinction is subtle and has plementation of European law, given that signifi cant exceptions 10 but perhaps sug- Denmark does not provide for the exten- gests the infl uence of the international and sion of agreements to cover third parties. regional human and labour rights instru- The theory is that – with up to 80 per cent ments 11 that have grown in number and of workers covered by trade union col- signifi cance since the older constitutions lective bargaining – the result is “almost were originally drafted. full coverage”. The Danish model may fail to provide “full coverage”, but it can also be argued that collective bargaining offers Collective agreements the potential for a responsive implementation of European law, adapted to the needs Collective agreements are a central pillar of Danish workers and employers. of labour regulation throughout the world. Union-management agreements might not always be what we have in mind when we Labour legislation talk about “labour law”, but in many countries collective agreements have a legally Many jurisdictions have, over the past binding status and play a key role in the 30 years or so, seen a rise in the number national regulatory framework. of labour law statutes. In part this can be Different countries have different ap- explained by the growth of the neo-liberal proaches to bargaining. Agreements might agenda and the desire to “rein in” the trade be negotiated at national, sectoral, regional, unions with legislation that tightened up branch or enterprise level and, depending control of union elections, political spend- on the general legal framework, the terms ing, and industrial action.15 It can also be of the agreements may be legally bind- seen as a response to dwindling collective ing or not. One possibility is for collective bargaining coverage and union member- agreements to be given a legal status by ship. Across the then 12 Members States of a statutory bargaining system.12 Another the EU (albeit with important exceptions) possibility is that the contract itself may density rates declined by 11.5 per cent not be enforceable as such, but its terms between 1970 and 2003. might become implied into the contracts of Some jurisdictions, typically those in employment of each individual employee. the civil law tradition, boast a unifi ed la- In some cases collective agreements may bour code. In France, for example, most have internal phrasing that moderates the labour law statutes are inserted into the general legal principle.13 labour code.16 The contents of a civil law In continental Europe the collective labour code will typically appear in the bargaining process, or “social dialogue”, form of broad, general principles which is used widely to make and to implement are applied to particular situations by the law. In Belgium, collective agreements judge, who will typically have a wide dis- gain their legal status not under princi- cretion to interpret how the law should be ples of private contract law but under a applied in any given case. Some civil law labour law statute. This provides a legal commentators wonder if the discretion basis for such agreements to be extended of the judge to interpret the law has not

3 become so broad as to cause confusion or part of the world then under British rule insecurity.17 were not treated as equals before the law. Labour law statutes other than a single The legal position, formally described as “code” exist in both common law and civil “master and servant” was such an “open law traditions. In some civil law systems and visible legal relationship of subordin- statutes provide more detailed regulation ation” that “large sections of the working of particular labour issues and are applied class had revolutionary, anti-capitalist alongside the basic labour code. In the views”.21 The reinterpretation of this re- common law systems (and some civil ju- lationship into a contractual partnership risdictions) there is no single labour code between equal parties demonstrates an at- but rather a body of statutes that regulate tempt to mask the power relationship that different aspects of labour law. Whatever is at the heart of the employment dynamic. form legislation might take, its substan- Otto Kahn Freund wrote in 1972: tive contents are far beyond the scope of this article, but one of the supposed bene- The relation between an employer and an iso- fi ts of legislation over collective bargain- lated employee or worker is typically a relation ing is its breadth of application, granting between a bearer of power and one who is not these rights to all working people. But it is a bearer of power. In its inception it is an act worth noting that peculiarities of drafting of submission, in its operation it is a condition can do just as much to limit access to la- of subordination and the subordination may bour rights.18 Despite UK legislation which be concealed by that indispensable fi gment of supposedly protected all of the following, the legal mind known as the “contract of em- Keith Ewing observed the implications of ployment”.22 the exceptions: The contract of employment now plays a Take a young man in his mid 20s, employed as key role in regulating the employment re- a security guard. Despite the great reforms since lationship, but the application of contract 1997, it remains the case that he may be hired law rules, typically developed to govern on a low minimum wage of £3.70 an hour; he commercial contracts can be quite inap- may be required to agree to work long hours, propriate when applied to the workplace. certainly more than the prescribed international Pascal Lokiec describes the history of and EU maximum of 48 hours weekly; he may French labour law as “an emancipation have no right to have his trade union recognised with regard to the law of contracts … in for collective bargaining if he has 19 rather than the name of workers’ protection”.23 20 colleagues; he will have no right to be repre- In order to determine the content of a sented by a trade union in the negotiation of his contract of employment it may be necessary terms and conditions of employment; and he to look not only at any written document will have no right to be treated fairly by his em- described as the contract, but also at works ployer for the fi rst year of his employment.19 rule-books that may be incorporated into the contract of employment (as in the Brit- This problem can be exacerbated when ish system). In French law the rule-book judicial or administrative bodies interpret creates legally enforceable rights, but the statutory law restrictively.20 rules have “independent value” and are not incorporated in employment contracts. Similar rules apply also to workplace cus- The contract of employment toms and practices in both countries. Oddly, given the centrality of the con- Understanding the role of the contract of tract to the employment relationship, employment is fundamental to under- many workers may not actually be in pos- standing labour law and the condition session of written employment contracts. of the worker in relation to the employer. In the United Kingdom, the requirement Prior to 1875, workers throughout a large is for a “written statement of particulars”,

4 Contract law and industrial disputes The default legal position of the common law regards unions as unlawful organizations and any occurrence of industrial action not as the exercise of a fundamental right, but as an illicit activity that involved not only the breaches of the employment contracts of the individual workers involved, but also incitement to breach commercial and employment contracts (which would constitute torts, or civil wrongs), and the unlawful interruption of third party commercial contracts. As one judge put it: “I find therefore, nothing to differentiate a threat of breach of contract from a threat of physical violence”.1 Unions in the common law countries are thus entirely dependent upon legislation to provide typically narrow grounds around which a union can organise industrial action without incurring liability. Similarly legislation may protect workers from dismissal during a “lawful” strike, but it will place procedural checks and obstacles in the path of such action. In those civil law systems which grant a broad right to strike, typically a constitutional right, unions may – in a narrower range of circumstances – be liable in tort. But it is common practice for the law to recognize the suspension of the main duties of both parties to the contract of employment during industrial action. This is an absolutely crucial principal that distinguishes the right to strike in France 2 and Germany, for example, from United Kingdom and other Common- wealth jurisdictions. There is no convincing argument as to why this principle cannot be applied in common law countries, either through statutory reform or by revision of the common law principles, yet no British government seems to have prioritized this, and the conservatism of the judiciary apparently prevents the latter. 1 Rookes v Barnard [1964] 1 All ER 400. 2 Lokiec, P. “The framework of French labour law and recent trends in regulation” document presented at an international comparative labour law seminar organized in Tokyo, in March 2004, by the Japanese institute for labour policy and training. The full text of the presentation is available at http://www.csmb.unimo.it/research/JILPTRNo11.pdf.

while EC law makes similar requirements. Supranational sources of law Many central European countries demand that the contract of employment should be The legal sources referenced above all a written document, but workers in the originate within the nation state. Yet la- world’s vast informal economy will rarely bour law also originates from a number have any form of employment contract. of international sources. The sources refer- A problem arises where an employer enced below all constitute forms of “hard denies that an employment relationship law”, that is to say that, by various legal exists at all. This may be legitimate (such strategies, in some (but not all) jurisdic- as when an independent contractor pro- tions, the rights laid down in the various vides services on his or her own terms and instruments can be enforced. with a large degree of autonomy and in- Whether or not international laws can dependence). But the attempt to disguise be enforced is largely determined by the the employment relationship may be a question of whether the state in question legal “sham” which disguises the nature operates a “monist” or “dualist” legal of the relationship between employer and system. In a monist system, international employee as though it were one between legal rules ratiﬁ ed by the state become supplier and purchaser. The disguise may part of the national legal system, enforce- be an attempt to sidestep labour law provi- able in national courts. In a dualist sys- sions that may be applicable only to “em- tem international legal rules are generally ployees” and not to all “workers”. considered to be unenforceable within the national context, although these ideas have frequent exceptions.24 The main sources of supranational law include:

5 International treaties, such as the UN bour law forum. An ECJ ruling in the Vi- covenants and the ILO Conventions; king case is expected in early 2007, and will Jurisprudence of international bodies, have far-reaching implications. Following such as the Freedom of Association Estonia’s accession to the EU, a Finnish Committee of the ILO; shipping company, Viking Line, operating a passenger and cargo ferry between Hel- International customary law, which sinki and Tallinn, decided that, in the in- includes, for example, prohibitions on terests of its own competitiveness, it would forced labour; operate out of Estonia; thus, it sought to re- Bilateral trade agreements, into which ﬂ ag its ships as Estonian ships. In response, labour law principles may be written; the Finnish Seamen’s Union (FSU) objected Labour law frameworks emanating to the proposal, fearing that it would lead from regional trading blocs, such as to a worsening of crews’ pay and working the EU; conditions. It called for a union blockade of Viking Line, at the same time obtaining Regional human rights treaties, such the support of the International Transport as the human rights instruments of the Workers’ Federation (ITF). The FSU based Council of Europe, the Organization of its right to take collective action on the fact American States and the African Union, that such a move was a guaranteed consti- all of which contain a commitment to tutional right under Finnish law. However, basic trade union rights. Viking Line challenged the legality of this action, and has brought a case against both Although there is an increasing acceptance the ITF and the FSU, choosing to take its of international law within the national proceedings to the United Kingdom (UK), context, it remains the case that the pri- where the ITF headquarters are based. The mary enforcement mechanisms of organ- UK High Court ruled in favour of Viking izations such as the ILO unfold at the in- Line. In its decision, it concluded that the ternational level, and compliance with the company’s right to freedom of movement Conventions is assured by a process that overrides the existing rights of workers to is part legal complaint and part political take collective action, even where these are persuasion. The main exception is the Eu- guaranteed under the country’s constitu- ropean region, in which both the EU and tion. In response, the unions appealed the the Council of Europe have issued legally decision in the UK Court of Appeal, which binding instruments that regulate labour in turn referred the case to the European law, many of which may be relied upon Court of Justice (ECJ), as it raised princi- directly in national courts, and which may ples and questions involving European also be enforced at the European Court law. This case is perceived as a landmark of Justice (EU) or the European Court of case as it concerns the resolution of fun- Human Rights (Council of Europe). damental rights, whereby the exercising of Two landmark legal cases are heading one right threatens to negate the rights of for the Brussels court (the European Court another. Both sides, the trade unions and of Justice, (ECJ)) around the question of Viking Line, have based their claim on whether the right to freedom of movement their interpretations of the different Titles granted under the EC Treaty can be con- of the European Commission (EC) Treaty. strained or overridden by the right to take Thus, the background to the case, together collective action and the principles of free- with the outcome reached, will have impor- dom of association. The cases seem to typify tant repercussions in understanding how the growing “globalization” of labour law, EC/EU law should deal with competing referring as they do to attempts by com- fundamental rights. panies to pick and chose between different A lengthy legal struggle, the “Wilson” national labour law systems, and because case – which involved the de-recognition they have both been taken to a regional la- of a journalists’ union by a newspaper in

6 the early 1990s – illustrates the growing Codes of conduct. The International relevance of the Strasbourg court (the Eu- Labor Rights Fund is currently using a ropean Court of Human Rights). The do- corporate code of conduct as the basis mestic law at the heart of the Wilson chal- for a legally complex action against lenge had been heavily criticized many Wal-Mart in a national court, arguing times by the Council of Europe’s Social that the code has been incorporated Charter machinery, and the International into contractual agreements.28 Labour Organization: Global Framework Agreements. The agreements between Global Union Britain was told to change its laws and comply Federations and multinational employ- with the international laws which it had ratiﬁ ed. ers has been interpreted by some as an The Labour government refused, as had their early development towards global col- predecessors. The unions negotiated with the lective bargaining. As yet the legal sta- Labour government. It refused to budge. So the tus of these agreements is unknown. unions (supported by the TUC) took their case to the European Court of Human Rights.25 OECD guidelines. These quasi-legal rules provide a complaint mechanism The Wilson decision demonstrated the po- which leads to an administrative deci- tential of the European Court to provide sion by a government department. At a legally enforceable ruling that would present many complaints fail but it may require the British authorities to make be that a more legalistic approach to the changes to national law. guidelines would result in better case selection and preparation.

The evolution of labour law A concern is that many of these soft-law rules are private initiatives. Scholars have In recent years there has been a rapid ex- asked whether this represents the “privat- pansion of quasi-legal labour rules emerg- ization” of labour regulation. Others argue ing at the international level, or “soft law”. that, to some extent, “labour law has al- Typically, these rules cannot be enforced ways been privatized” and that the kind in any court, but they may have alternative of contracts of employment and workplace forums that may be petitioned to encour- specifi c rules outlined above represent age compliance. It is becoming increas- private legal rules in the national context ingly important for lawyers, academics which codes of conduct and other sources and trade unionists to make use of them mirror in the international context. in securing justice in the workplace. Already unions, NGOs and their lawyers are fi nding a role for lobbying, letter Conclusion writing and campaigning that requires skilled drafted, concise and persuasive ar- Whatever the future of labour law, be it gument, and case preparation that benefi ts increasing drawn from “private” sources from formal legal analysis.26 The leading or from international regulatory bodies, academic commentator Harry Arthurs ob- it seems unlikely that this will mean an served that “the signifi cance of non-state end to national labour courts. What seems labour law is likely to grow proportion- more likely is a gradual process by which ately”. The result of this change is that la- international institutions such as the ILO bour lawyers are “more and more … likely and the EU are drawing national labour to be preoccupied with the signifi cant cor- codes closer together around areas of con- pus of labour law which originates from vergence either on fundamental rights (as sources other than the state”.27 a result of the ILO’s Declaration on Funda- Some examples of these soft laws mental Principles and Rights at Work 1998) include: and on conditions at work (as the EU and

7 other regional forums coordinate state rules 11 Thomas, C., Oelz, M., Beaudonnet, X. 2004. around issues such as working time, etc.). “The use of international labour law in domestic As this process of drawing together of courts”, in Mélanges en l’honneur de Nicolas Valticos (Geneva, ILO). national labour law regimes occurs the ILO 12 Like the union “contracts” agreed under the will remain the focal point at which interna- National Labor Relations Act in the USA, for exam- tional consensus around these standards is ple, or the Belgian system. negotiated, and through which the interna- 13 For example, the “TINALEA” (“this is not a tional community can observe and make legally enforceable agreement”) clauses in British efforts to promote levels of compliance. But collective agreements that were commonplace when it seems that the most effective vehicles for the Industrial Relations Act 1971 created a statutory presumption that collective agreements would be le- securing rights for the majority of people gally binding, and clauses to the opposite effect that will remain through the efforts of trade sprang into use when the statutory regime changed unions to engage in collective bargaining to create a presumption that collective agreements and through the effective enforcement of would not be enforceable. See Charles Barrow, Indus- labour law within national systems. trial Relations Law 1997, pp. 159-160. 14 “Do collective agreements ensure full coverage and compliance with EU Directives?”, EIRO On- Notes line (1997), Kåre F.V. Petersen. 15 See the various “anti-union” laws introduced 1 Arthurs, H. 2007. “Compared to what?”, draft by the Conservative government in the UK from 1979 paper delivered in honour of the 40th anniversary of onwards. the UCLA comparative labour law project. 16 Lokiec, P., op. cit. 2 Langille, B. 2005. “What is international labour 17 Lokiec, P., op. cit. law for?”, International Institute for Labour Stud- 18 ies, ILO, p. 5. For example, by restricting the applicability of a statute to “employees” rather than “workers” or by 3 Sibley, T. 2005. in K.D. Ewing and T. Sibley, In- basing applicability on length of service criteria (see ternational Trade Union Rights for the New Millennium, the UK’s unfair dismissal legislation, for examples Institute of Employment Rights, p. 5. of both restrictive criteria). 4 In particular, see the extensive British “anti- 19 Ewing, K.D. 2000. “Employment Rights: Build- union” laws. ing on Fairness at Work”, speech to Industrial Law 5 Lokiec, P. 2004. “The framework of French la- Society, Oxford. bour law and recent trends in regulation” document 20 The National Labor Relations Board in the presented at an international comparative labour law United States has just reinterpreted the meaning seminar organized in Tokyo, March , by the Japanese of “supervisor” in a decision which US unions be- institute for labour policy and training. The full text lieve could remove access to the statutory organizing of the presentation is available at http://www.csmb. framework from up to eight million US workers (In- unimo.it/research/JILPTRNo11.pdf. ternational Union Rights, 2006, vol. 13.3, nos. 12-13). 6 In the Netherlands, ratiﬁ ed international 21 Critical Lawyers’ Handbook Volume 1, Labour treaties have a status higher than the constitution Law, Edie, A., Grigg-Spall, I., Ireland, P. (see L. Betton, International Labour Law, 1994, p. 384). 22 Otto Kahn Freund, cited by John Monks (then The United Kingdom has no written constitution. General Secretary, British TUC), Warwick Lowry 7 Austria, France, Denmark, Luxembourg Lecture, 17 March 2003. (Source: ETUI Fundamental Social Rights in the 23 Lokiec, P., op. cit. European Union, 2003). 24 Thomas, C., Oelz, M., Beaudonnet, X., op. cit. 8 Germany, Greece, Netherlands (Source: ETUI 25 Fundamental Social Rights in the European Union, Hendy, J. “Wilson and Palmer v UK”, in Inter- 2003). national Union Rights, vol. 9.3, no. 19. 26 9 With the exceptions only of Malta and the See activities of the International Labor Rights Czech Republic, and note that fewer among them Fund, involvement of legally qualiﬁ ed staff in the provide a constitutional right to collective bargain- Workers’ Rights Consortium, the work of the Inter- ing than among the constitutions of “old Europe”. national Centre for Trade Union Rights and the re- 10 cent formation of the International Commission for Spain and Portugal have extensive constitu- Labour Rights. tional protection of collective labour rights, con- 27 trasted with the Czech Republic and Malta (Source: Arthurs, H., op. cit. ETUI Fundamental Social Rights in the European 28 See http://www.laborrights.org/projects/ Union, 2003). corporate/walmart/WalMartComplaint091305.pdf.

8 How domestic jurisdictions use universal sources of international law

Day in day out, though the fact is sometimes overlooked, international labour standards are used by judges, lawyers, labour inspectors and trade unionists to ensure that workers’ rights are respected. In the judges’ case, courts not infrequently apply the provisions of a ratified Convention directly in resolving a dispute, or else they draw on ILO standards, whether binding or not, as a source of interpretation and inspiration when applying domestic law. This article derives from the training programmes on international law conducted jointly by the ILO’s International Training Centre in Turin and the International Labour Office.

Xavier Beaudonnet Standards and Fundamental Principles and Rights at Work Programme International Training Centre ILO, Turin

n many countries, the judicial use of the terms. This neglect was long attributable Iuniversal sources of international la- to a traditional vision of international law, bour law, namely the instruments elabor- which was seen as being limited to regu- ated by the ILO and the United Nations, lating international relations between has been very little analysed in doctrinal States and thus unlikely to intervene in legal disputes at the national level. At ﬁ rst sight, it might also be held that Note: This article is a shortened version of a contri- the ILO and UN instruments, in the ab- bution by the author to the Bulletin de droit comparé du sence of international tribunals competent travail et de la sécurité sociale, published by the Centre for ensuring that they are respected, lay de droit comparé du travail et de la sécurité sociale down principles that are too general for (Centre of comparative labour and social security law) of the University of Mostesquieu-Bordeaux IV. their provisions to be used by domestic The full article and its extensive bibliography are courts, which already have at their dis- available at http://training.itcilo.it/ils/ils_judges/ posal a precise and detailed body of labour training_materials/spanish/Beaudonnet_utilisa- legislation. tion_judiciaire_sources_universelles.pdf. This contribution is also a further development And yet, despite the lack of precise stat- of a joint article by the present author, C. Thomas istics on this subject, it does seem possible and M. Oelz, “The Use of International Labour Law to distinguish a growing use of these uni- in Domestic Courts: Theory, Recent Jurisprudence, versal sources within labour-related cases. and Practical Implications”, in Les normes internation- In the course of our research and seminars, ales du travail, un patrimoine pour l’avenir, Mélanges en l’honneur de Nicolas Valticos, ILO, Geneva, 2004, pp. examples of the judicial use of ILO and UN 249-285. The case-law examples are mainly drawn instruments have reached us from 52 dif- from a research document of the ILO International ferent countries.1 Moreover, in almost half Training Centre (Turin), entitled Utilisation du droit of these cases, the earliest rulings com- international par les juridictions nationales, available at http://training.itcilo.org/ils/ILS_Judges/train- municated to us date back less than ten ing_materials/francais/utilisation_droit_interna- years, which may mean that such use is, tional_juillet2004.pdf. at least from a geographical point of view,

9 spreading. Indeed, this observation is part directly, inasmuch as they are not part of of a broader trend towards the progres- domestic law. For this reason, an effort will sive opening up of national legal system be made throughout this article to assess to international law on personal rights in the real impact of the distinction between general and to international labour law in monist and dualist systems on the judicial particular. In this respect, it may be noted use of international labour law. that a growing number of constitutions So as to better identify the ways in and labour codes explicitly give interna- which domestic courts use universal tional law an important role in domestic sources of international labour law, we law, either by recognizing that ratifi ed will fi rst analyse the different functions treaties have supralegal force 2 or by as- assigned to international labour law by do- signing them an interpretative function in mestic courts when settling a dispute (I). the application of national law.3 Similarly, We will then turn to the different sources in recent years the highest courts of several of international labour law used by domes- countries have modifi ed the interpretation tic jurisdictions (II), before fi nally giving a of their constitutions by conferring upon selective outline description of the impact ratifi ed treaties an authority or effect not of this judicial use on the content of labour previously attributed to them.4 law within the countries concerned (III). That said, judicial use of international labour law is clearly far from homogeneous. Quite apart from the fact that no such I. The different functions assigned case law has been reported to us from to international labour law many countries, practice seems to vary as by domestic jurisdictions regards the frequency of use, the type and level of courts that refer to international A distinction can be made between in- instruments and the function assigned to stances of the direct application of inter- international labour law in the resolution national law and those of two types of of cases. In view of this great diversity, the indirect application, namely the interpret- present article sets out to analyse the main ative use of international law and its use as characteristics of the judicial use of inter- a source of inspiration in the recognition national labour law and attempts to deter- of principles of jurisprudence. While the mine to what extent these features equally dividing line between the different types apply to the main different legal systems. of use may sometimes be a little blurred, On this last point, studies on the use this categorization does make it possible to of international law within domestic law draw a certain number of interesting les- usually start by drawing a distinction sons about the subject at hand. between what are known as monist and dualist systems for the incorporation of international law into domestic law. Put sim- I.A. Direct application ply, monist countries are those in which of an international provision ratifi ed treaties 5 are a direct part of do- in settling a dispute mestic law.6 Dualist countries, on the other hand, are those in which the ratifi cation In this fi rst instance, domestic courts iden- and publication of international treaties tify and apply an international provision do not suffi ce in order to incorporate them the content of which enables the direct into domestic law, as the applicability of resolution of the dispute without, in the- their provisions at the national level is de- ory, the need for recourse to other, comple- pendent on national legislation adopted mentary sources of law. In such instances, after ratifi cation.7 In this respect, it is often the courts use the international provision emphasized that in the dualist countries, exactly as they would do with an article of it is not possible for the courts to apply a national law, namely as the main basis the provisions of international treaties for resolving the dispute.

10 This type of use presupposes that the A second illustration of this point comes international provision is directly applica- from Italy, in a case concerning the calculable, both formally and materially. As re- tion of the remuneration due for paid leave.10 gards the fi rst point, direct application is Faced with the lack of a specifi c domestic possible only in monist systems, in which legal provision as to whether regular over- ratifi ed treaties are part of domestic law, time should be taken into account in de- thus enabling the courts to base themselves termining the wage due for paid leave, the directly on their provisions. Then there is Milan labour court turned to the ILO Holi- the material aspect of direct application. days with Pay Convention, 1970 (No. 132). This aspect presupposes a recognition, ex- Article 7.1 of the Convention specifi es that plicit or not, by the court that the interna- the remuneration paid during the holiday tional provision is self-executing. Roughly, period shall be at least the normal or aver- this means determining if the provision age remuneration received by the worker. embodies a principle or right that is suf- On this basis, the court concluded that fi ciently clear and precise to enable a direct overtime, when worked regularly, should resolution of the dispute. In cases where a be included in the calculation. direct application of international labour law was noted, it emerged that this fi rst kind of judicial use of international law I.A.2. Setting aside a domestic made it possible to respond to three dif- provision less favourable ferent types of situation. to the worker

In a second series of situations, the con- I.A.1. Filling a gap in domestic law tent of international labour conventions is used to achieve a solution more favourable The direct application of international la- to the worker than would have resulted bour law provisions was, fi rst of all, noted from the application of domestic law. in cases where, in the absence of precise Such instances, in line with the principle domestic legal rules for resolving the liti- of the most favourable provision, do not gation, jurisdictions referred directly to mean that the jurisdiction has to strike the content of the ratifi ed international in- the national provision down. The courts struments. Our fi rst example here is from need only set it aside by opting to apply Madagascar, where two fl ight attendants the most protective source of law. A good brought a case before the supreme court illustration of this situation is a ruling by concerning the validity of a collective the French Cour de cassation (highest court agreement clause specifying a lower re- of appeal) in 1934, the oldest example tirement age for female cabin crew (age 45) identifi ed in our research.11 Faced with a than for their male colleagues (age 50), dispute on the right of a foreign employee resulting in a major loss of earnings for who had suffered an accident at work to the women.8 In terms of domestic law, the receive the same compensation as a French court could base itself only on the Consti- worker, the supreme court did not hesitate tution’s very general provisions concern- to set aside the Law of 1898 on the coming equality, so it referred to the more pre- pensation of workplace accidents in favour cise provisions of Articles 1.1.a and 1.1.2 of the direct application of Article 1(1) of of ILO Discrimination (Employment and the ILO Equality of Treatment (Accident Occupation) Convention, 1958 (No. 111). Compensation) Convention, 1925 (No. 19). Thus, the court was able to rule that, in the This article stipulates that a State ratifying absence of objective grounds inherent in a the Convention undertakes to grant to infl ight attendant’s job and justifying earlier dustrial accident victims who are nation- retirement of female personnel, the article als of any other country that is party to the in the collective agreement discriminated Convention the same treatment regarding against them.9 compensation as to its own nationals.

11 I.A.3. Striking down a domestic departure for the application of the status legal provision of trade union representative, the Supreme Court turned to the ILO Conventions rati- In monist countries where ratifi ed interna- fi ed by Chile, in order to determine which tional treaties prevail over national laws, it of the two solutions should ultimately pre- can happen that competent courts declare a vail. The court referred in particular to law or regulation void or unconstitutional Article 3 of ILO Convention No. 87, which purely on the grounds of its inconsistency gives trade unions the right to elect their with a ratifi ed international Convention. representatives in full freedom, as well In such instances, the inconsistency with as Nos. 98 14 and 135, which require States international law may either coexist with to ensure that workers engaged in trade other unconstitutionalities or constitute union activities receive effective and ad- the sole ground for striking down the do- equate protection against discrimination. mestic provision. Freedom of association On this basis, the Supreme Court decided appears to be a potential fi eld for such use that the domestic legislation should be of international labour law. For example, interpreted in such a way as to provide in Colombia, the Superior Court declared effective anti-discrimination protection unconstitutional a legal article restrict- to those standing as representatives, even ing foreign workers’ access to leadership when their candidature had been declared positions within trade unions. It argued before the offi cial registration of the trade this ruling mainly from a violation of Art- union. icle 3 of the ILO Freedom of Association It is important to emphasize the po- and Protection of the Right to Organise tentially very broad nature of the inter- Convention, 1948 (No. 87), which among pretative use of international labour law. other elements gives trade unions the While direct application appeared to be right to elect their representatives in full limited to the monist countries and re- freedom.12 stricted to the self-executing provisions of the ratifi ed Conventions, interpretative use is not, a priori, subject to any of these I.B. The interpretative use limitations. of international labour law Inasmuch as this is not a question of settling a dispute directly by the applica- In this second type of instance, domestic tion of an international provision, the dif- courts refer to international labour law not ferences in the methods of incorporating in order to resolve directly the case placed international law into domestic law are, in before them but to clarify the meaning and such cases, less noticeable. In this regard, scope of the domestic provisions applica- the interpretative use of international la- ble to the dispute. bour law has been noted in both dualist Very roughly, interpretative recourse to and monist countries. A further confi rm- international sources can make it possible ation of this trend is the growing number, either to clear up an ambiguity in domestic in both monist and dualist countries, of law or to defi ne more closely a text that constitutions and labour codes which ex- has been drawn up in general terms. One plicitly assign an interpretative function to example comes from the Supreme Court international law. of Chile.13 The court had to determine if That said, the most numerous exam- the protective regime for workers’ rep- ples of interpretative use do seem, up to resentatives applied to employees who now, to have been observed in the dual- had declared their candidature as trade ist countries, whereas the relevant case union representatives just before their law in monist countries stems mostly union was offi cially registered. Noting a from constitutional or supreme courts.15 contradiction between two articles of the In dualist countries, interpretative use is labour legislation concerning the point of observed fi rst and foremost when the law

12 being interpreted is intended to incorpo- I.C. International labour law rate a ratifi ed international Convention as a source of inspiration in into domestic law. In this case, the legal the recognition of jurisprudential basis for referring to the international in- principles strument is, of course, particularly well founded. However, the interpretative use Here, we are looking at a second type of of international law by the courts of dual- indirect use of international labour law. ist countries is not limited to this one sin- Faced with gaps or inadequacies in writ- gle function. Two types of legal argument ten national law, domestic courts draw in- may then be advanced in order to extend spiration from an international standard, the interpretative use of international often unratifi ed or not subject to ratifi ca- law to pieces of legislation that were not tion, in order to discern a jurisprudential intended to incorporate a ratifi ed treaty. principle that would enable the case to be First, it is emphasized that the ratifi ca- resolved. The rules of international labour tion of a treaty implies legal obligations law are used here as a legal basis or proof for all the organs of the State, and that that the principle concerned does indeed within this context, the judicial arm has exist. In the course of our study, such an a duty to interpret domestic law in a way inspirational function was found only that conforms as closely as possible to the in certain common-law countries, where international commitments entered into labour courts are given great latitude in by the State. Moreover, if a doubt arises their choice of sources for resolving a case, about the meaning of a domestic provision either because they can function as courts adopted after the ratifi cation of the treaty, of equity or because they have the task the presumption will still be that the na- of ensuring respect for “fair labour prac- tional legislator did not wish to breach the tices”, the content of which is for the courts State’s international obligations. to determine.17 Thus, it would appear that the inter- In this respect, mention should be pretative function assigned to interna- made of the jurisprudence created by the tional labour law by many domestic courts industrial courts in Botswana and Trini- is probably both the most frequent and the dad and Tobago concerning dismissals. one in which the content of international In Botswana, national legislation does not labour law is most able to assist the courts. explicitly impose the principle of giving That noted, it is a striking fact that not one grounds for dismissal. However, as it can single explicit case of the interpretative use function as a court of equity, the Court of international labour law was reported was able to assert that, to be valid, any to us from the French-speaking countries. dismissal must be based on legitimate Various explanations, legal or otherwise, grounds. Both in order to recognize the could no doubt be advanced for this, but applicability of the principle and in order this absence does seem surprising to us, to implement it, the Court regularly refers at least from a legal point of view, as both to the ILO Termination of Employment the supralegal status that the constitutions Convention, 1982 (No. 158), although this of French-speaking countries grant to rati- Convention, which has not been ratifi ed fi ed treaties and the systematic method of by Botswana and is therefore not incor- interpretation ought to permit such use porated in national legislation, is not part of international labour law. In France, for of Botswana domestic law. As appears example, such interpretative use would clearly from several of its judgements, 18 probably have enable the Cour de cassation the Court considers that ILO Conventions to come down more rapidly in favour of and Recommendations express the rules the reinstatement of a pregnant woman of natural justice or equity, from which the who had been unlawfully dismissed.16 Court therefore opts to draw inspiration.

13 II. The sources of international labour II.B. Reference to international labour law used by domestic courts Recommendations and the judicial reference to non-binding instruments Elaborated and adopted by the Interna- tional Labour Conference (ILC) in accord- It is worthy of note, as has already been ance with procedures identical to those for briefl y mentioned in the analysis of the Conventions, international labour Recom- interpretative use of international labour mendations do not constitute binding legal law, that the courts do not confi ne them- instruments and are therefore not open to selves to the use of those conventions or ratifi cation. Their purpose is not to oblige treaties that have been ratifi ed by their member States to respect their content, countries. In instances of the indirect use but rather to offer them guidelines for the of international law, domestic courts do regulation of labour relations and the im- often take account of non-binding instru- plementation of their social policy. ments, although these do not constitute the From the point of view of domestic law, principal means of resolving a case. This there is no difference between an unrati- practice, even if it is perhaps more frequent fi ed ILO Convention and an ILO Recom- in the common-law countries, has in fact mendation. Thus, labour courts which see been noted in both dualist and monist ILO standards as an expression of rules countries. of equity are sometimes prepared to refer to international labour Recommendations. For example, since 1972, the Industrial II.A. Use of unratified Court of Trinidad and Tobago has regu- international Conventions larly used the ILO Termination of Employ- ment Recommendation, 1963 (No. 119) to As we have already seen, some labour introduce into domestic law the notions of courts in common-law countries regularly prior discussion and unfair dismissal. refer to ILO Conventions not ratifi ed by Turning to the monist countries, a rul- their countries in order to demonstrate ing by the Spanish Constitutional Court the existence of rules of equity or good in 1981 illustrates perfectly the role that industrial relations practice. In the civil non-binding international instruments law countries, there are fewer instances can play in labour-related constitutional of this, but on the question of maternity disputes.21 In this respect, employees for example, it has been noted that the who had stood as candidates in a trade German Constitutional Court referred to union election went to the Constitutional the ILO Maternity Protection Convention, Court because they had been dismissed 2000 (No. 183), not ratifi ed by Germany, in on economic grounds the day after de- support of its ruling that the employer’s claring their candidature. After failing to obligation to make maternity payments win their case in the ordinary courts, the (as opposed to sharing this burden with workers had recourse to proceedings for the State) could lead to gender inequality. amparo (protection), on the grounds that In support of this, the Court stated that the constitutional principle of freedom of such obligations could diminish women’s association had been violated. employment opportunities.19 This case is a This action raised two main legal is- good illustration of how non-binding in- sues. Firstly, the Court had to determine ternational sources may constitute a sub- if the constitutional protection afforded sidiary or supporting element in national to freedom of association implied that courts’ interpretation of domestic law.20 legal protection against dismissal should be extended to the candidates, whereas it was currently enjoyed only by the elected representatives of the workers. Secondly, the amparo also raised the issue of where

14 to place the burden of proof in the case of II.C. Judicial reference to the findings litigation concerning possible anti-union and statements of international discrimination. At the time, Spanish la- supervisory bodies bour law was silent on this question and, de facto, the workers had been unable to The application of ILO Conventions and demonstrate, in the ordinary courts, the ex- Recommendations is supervised by four istence of discrimination. It was therefore linked, complementary mechanisms, 23 for the constitutional court to determine some of which have been operating for if the protection of freedom of association almost 80 years (see also Labour Education, by the Constitution required changes in No. 122, 2002/1). Even though the ILO the rules governing the burden of proof supervisory bodies are not formally em- on this issue. powered to interpret the Conventions and Interpreting the Spanish Constitution treaties within their purview, their fi nd- in the light of the ILO Workers’ Represen- ings and statements nevertheless consti- tatives Recommendation, 1971 (No. 143), tute the most authoritative reading of these and the relevant decisions of the ILO instruments. Also, though it may be seen Committee on Freedom of Association, the that national courts are not legally obliged Court ruled in favour of both the applica- to follow the guidance of international tion of reinforced protection against dis- supervisory bodies, 24 there are solid legal missal for candidates in trade union elec- arguments for their taking account, expli- tions and recognized the need to set spe- citly or implicitly, of such bodies’ views in cifi c rules for the burden of proof in cases the interpretation of international labour concerning anti-union discrimination. In standards, and hence in the application of this respect, the arguments adduced by their own domestic law. the Constitutional Court for assigning an Indeed, a by no means negligible interpretative function to ILO Recommen- number of cases showing judicial use of dations are worth emphasizing. the “jurisprudence” created by super- Taking as its point of departure Art- visory bodies has been found in differ- icle 10.2 of the Spanish Constitution, which ent countries, mostly for the purposes of specifi es that the fundamental rights rec- interpreting domestic law. Thus, a ruling ognized by the Constitution are to be in- by the Constitutional Court of South Af- terpreted in conformity with ratifi ed in- rica concerning freedom of association is ternational treaties, the Court considered worth citing here because of the general that the Recommendations, even though way in which the Court pronounces on non-binding, constituted a source for the the need to take account of the proceed- interpretation of the international labour ings of the Committee of Experts and the Conventions, and could therefore be indi- Committee on Freedom of Association.25 rectly used in relation to provisions of the The Constitutional Court considered that Spanish Constitution concerning the same “decisions (of these bodies) are therefore rights and principles.22 Finally, this ruling an authoritative development of the princi- is even more noteworthy because it also ples of freedom of association contained in refers to the decisions of ILO supervisory the ILO Conventions. The jurisprudence of bodies, in this case the Committee on Free- these committees too will be an important dom of Association. This therefore leads resource in developing the labour rights us straight on to our next point. contained in our Constitution”.26 In conclusion, great diversity may be observed in the sources of international labour law used by national courts. In many instances, the elements used do not have binding force within domestic law. This aspect again refl ects the fact that, in most cases, international labour law is not used

15 as a substitute for domestic law but, on the Trinidad and Tobago, it was the labour contrary, as a support for its application or courts which introduced these notions development, so permitting the use of non- into domestic law, considering that their binding sources. That said, what remains recognition by the ILO Conventions and to be analysed is the effect that the judicial Recommendations demonstrated that they use of different international sources has were basic principles of labour relations. on substantive law.

III.B. Equality in employment III. Impact of the judicial use and occupation of international labour law on the content of positive law As regards equality in employment and occupation, judicial recourse to interna- In the course of the research, it was pos- tional labour law fi rst of all made it possible to identify quite a large number of sible, in several cases, to interpret domestic rulings in which reference to international legislation extensively and thus to ensure labour law turned out to be more symbolic its conformity with international law. For than decisive to the outcome of the case.27 example, the ILO Discrimination (Em- However, it is important to emphasize that, ployment and Occupation) Convention, in many situations, recourse to the univer- 1958 (No. 111) and the reading given to it sal sources of international labour law by by the Committee of Experts formed the domestic courts does indeed contribute to basis for the Australian High Court’s in- a better application of the principles em- clusion of indirect discrimination among bodied in international labour standards. the types of discrimination prohibited by Here, we propose to cite, selectively, a few national legislation. convincing examples of the active role that Another illustration of this aspect con- the judiciary may be led to play in harmon- cerns equality of remuneration between izing domestic law with the main thrusts men and women. While the national le- of international labour law. The following gislation provided for the application of illustrations concern dismissals, equality this principle only in the case of identi- in employment and occupation and, fi - cal jobs (equal pay for equal work), the nally, freedom of association. Labour Court of Israel decided to apply domestic law in the light of the ILO Equal Remuneration Convention, 1951 (No. 100), III.A. Dismissals ratifi ed by Israel, and so to extend its application to jobs that are different but of The fi rst examples concern the way in equal value.28 Secondly, as in the case of which cases of dismissal are addressed. dismissals, domestic courts’ use of inter- As already mentioned, in several com- national law on equality in employment mon-law countries the affi rmation of a and occupation has sometimes contrib- legal regime concerning the termination of uted to the introduction of new notions employment that is distinct from the com- into domestic law, notably the concept of mon-law treatment of breach of contract sexual harassment. was made by the courts on the basis of the Finally, judicial reference to interna- relevant ILO Conventions and Recommen- tional standards on equality in employ- dations. In these various countries, labour ment and occupation has, in other in- legislation did not impose either a general stances, contributed to more effective legal obligation to cite legitimate grounds for protection of the victims of occupational dismissal or a requirement to hold a prior discrimination. For instance, several rul- discussion with the employee before the ings by constitutional courts concluded breaking of the contract by the employer. that, in line with the combined guidance of So whether in Botswana, South Africa or their Constitutions and international law,

16 the effective elimination of discriminatory Conclusion practices at work implied going beyond the simply pecuniary compensation of At the end of this study, it appears that employees who had suffered them and judicial use of the universal sources of in- awarding them full reparation of the oc- ternational labour law may have a more cupational prejudice incurred.29 supple and extensive physiognomy than expected. Firstly, the degree of judicial use of international labour law seems III.C. Freedom of association ultimately not to depend very much on the means of incorporating international Regarding freedom of association, it may law into domestic law. In this respect be noted, without being exhaustive, that many countries, whether monist or dual- judicial reference to the universal sources ist and with very different legal systems, of international labour law has, for exam- use international instruments to support ple, made it possible to expand the scope of the courts in consolidating and develop- freedom of association to broader categor- ing their jurisprudence on labour issues. ies of workers. Thus, the Supreme Court Secondly, judicial use of international la- of Canada, by interpreting the Canadian bour law is not limited to striking down Charter of Rights and Freedoms in the light or invalidating domestic legal provisions. of Article 2 of ILO Convention No. 87, in- Even though such instances do exist, and validated a provincial law which excluded are often of great importance, recourse to agricultural workers from the guarantees international sources is more frequently provided to other workers concerning the result of a combined application, in freedom of association.30 which international and domestic law As already mentioned in this article, complement each other rather than being some courts have also based themselves in opposition. The existence of this kind on the statements of the ILO supervisory of joint application is all the more inter- bodies in order to limit the restrictions esting because it considerably increases placed on the right to strike. Thus, an the range of instruments and sources of Argentinian court referred to the “juris- international law that can potentially be prudence” created by the Committee on used by the courts. Reference to interna- Freedom of Association in order to invali- tional sources is then possible even if the date the inclusion of education in the list provisions in question are not embodied of essential services in which no right to in a legally binding instrument and even strike was to be recognized.31 Judicial use if they are not self-executing. of international labour law has also been We also found that, even if the judicial made, as we have seen, in cases of anti- use of the universal sources of interna- union discrimination. tional labour law was not an end in itself, So, in many cases, judicial use of inter- it was often a powerful lever for ensuring national law has indeed further developed better application of international labour positive rights in the countries concerned, standards. So it is encouraging to see the by moving them closer to the content of apparently growing number of domestic international labour standards, whether courts that have included the ILO and UN ratifi ed or not. In fact, such developments instruments among the sources of law to in jurisprudence have quite often been be taken into account when resolving la- followed by legislative reforms, enshrin- bour-related cases. It is to be hoped that ing in written law the solutions already the fi rst examples of jurisprudence within arrived at in the courts.32 legal systems that are traditionally more reluctant to draw on external sources of law will emerge in future, so that the courts may benefi t fully from the resources that international labour law places at their

17 disposal in order to ensure respect for the 9 For a better understanding of this judgement, it juridical order as a whole. should be noted that early retirement meant a major To that end, the continuation and devel- loss of earnings. 10 opment of training and awareness-raising Lower Court of Milan, AMSA c. Miglio, 28 March 1990. efforts for judges, attorneys and professors 11 of law, conducted for a number of years Cour de cassation, Castanié C. Dame veuve Hur- tado, Req. 27 February 1934, D.H. 1934. 203, S. 1935 now in the fi eld of international labour law, I.1, note Niboyet. are certainly of particular importance. 12 See Tribunal constitucional, 5 February 2000, judgement No. c-385. 13 Notes Supreme Court of Chile, Víctor Améstida Stu- ardo y otro contra Santa Isabel S.A., 19 October 2000, 1 The countries concerned are: Argentina, dossier no. 10.695. Australia, Azerbaijan, Benin, Botswana, Brazil, 14 ILO Convention No. 98 on the right to organ- Bulgaria, Burkina Faso, Canada, Chile, Colombia, ize and collective bargaining. Costa Rica, Côte d’Ivoire, Croatia, Dominican Re- 15 As mentioned, these remarks should not give public, Ethiopia, Estonia, Fiji, France, Germany, the impression that no interpretative use of interna- Guatemala, Honduras, India, Israel, Italy, Japan, tional labour law is made in monist countries. Cases Kenya, Lesotho, Lithuania, Madagascar, Malawi, of such use have been noted in Chile, Costa Rica, Mali, Mexico, Morocco, Norway, Paraguay, Peru, Germany, Japan and Spain. Philippines, Rumania, Russia, Senegal, Slovenia, 16 Indeed, Articles L-122-25-2 and L-122-30 of South Africa, Spain, Switzerland, Taiwan, Trinidad the French Labour Code long raised problems of in- and Tobago, Tunisia, Uruguay, Venezuela, Zambia terpretation concerning the sanctions applicable in and Zimbabwe. cases of the unlawful dismissal of pregnant women, 2 This applies to the constitutions of the great as these provisions refer both to the nullity of the majority of countries with a Romano-Germanic trad- dismissal and to the award of damages. A pregnant ition, including those in French- and Portuguese- worker’s right to reinstatement was only very be- speaking Africa and Latin America. latedly recognized by the Cour de cassation (highest 3 Cf. particularly the Constitutions of Argentina, court of appeal) in a ruling on 19 November 1997 Azerbaijan, Colombia, Ethiopia, Fiji, Peru, Rumania, (Soc. 19 novembre 1997, Bull. Civ. V, no. 382). In this South Africa and Spain. See also the Labour Codes regard, the court’s interpretation could probably of Albania, Morocco and Lesotho. have drawn upon ILO Conventions Nos. 111 and 4 158 and on the readings given to these instruments See in particular the cases of the Supreme Court by the ILO Committee of Experts on the Application of Argentina in 1992 (ruling on Ekmekdjian, Miguel of Conventions and Recommendations. Angel c. Sofovich, Gerardo y otros, El derecho, Buenos 17 Aires, 1992, pp. 148-338) and the Supreme Court of Here, we may note the case law established Mexico in 1999 (Amparo en revisión 1475/98, 11 May in Botswana, South Africa and Trinidad and 1999, Seminario Judicial de la Federación, P. LXXVII/99, Tobago, as well as more sporadic rulings in Fiji and Malawi. tesis 192,867, pleno, 1999, t. X, p. 46). 18 5 In many countries, a ratifi ed treaty must be See the very explicit reasoning of the Bot- gazetted before the international instrument can be swana Industrial Court in its ruling on Gaborone, Joel Sebonego v. Newspaper Editorial and Management taken into account in national rulings. Services ltd, 23 April 1999, No. IC 64/98. 6 A non-exhaustive list of monist countries 19 would include those European countries with a Ro- Federal Constitutional Court, decision of 18 November 2003, 1 BvR 302/96. On this, see Thomas, mano-Germanic tradition, Russia and the countries C., Oelz, M. et Beaudonnet, X., op. cit., p. 275. of Eastern Europe, the countries of French- and Por- tuguese-speaking Africa and the countries of Latin 20 This account of the judicial use of international America. Japan and Namibia are also categorized labour Conventions would be incomplete without a as monist. brief mention of the special case of South Africa. It is very interesting to note that at the beginning of the 7 The dualist system applies in most countries 1980s, in order to give some content to the principle following the English legal tradition (except Na- of “good labour relations practice” laid down in do- mibia) and the Nordic countries. The People’s Re- mestic legislation, South African labour courts did public of China also appears to apply the dualist not hesitate to base themselves on ILO Conventions theory. Finally, some countries, such as South Africa, such as No. 158 on the termination of employment. show characteristics of both systems. Not only had South Africa not ratifi ed the Conven- 8 Supreme Court of Madagascar, Dugain et au- tions concerned, it had actually withdrawn from the tres c. Compagnie Air Madagascar, 5 September 2003, ILO in 1966 after the disputes caused by the apart- arrêt no 231. heid regime.

18 21 STC 38/1981, 23 November 1981, RA, FJ 5. On T-1211/2000 and a ruling of 23 July 2003, T-603/2003. this ruling, see García de Enterría, E., Linde, E., For a critical analysis of this jurisprudence, see Mo- Ortega, L.I. and Sanchez Morón, M., El sistema europeo lina, C.E., op. cit, pp. 216-223. de protección de los derechos humanos, Madrid, 1983, 25 Constitutional Court of South Africa, NUMSA 2nd edition, p. 202. v. Bader Pop, 13 December 2002, CCT 14/02. 22 Several rulings of the Spanish Constitutional 26 It should be borne in mind that South Africa Court have confi rmed the role assigned to interna- is one of the countries in which the national Consti- tional labour Recommendations. See STC 184/1990, tution explicitly assigns to international law an in- 15 November 1990, CI, FJ 4; STC 191/1998, 29 Sep- terpretative function in the application of domestic tember 1998, RA, FJ 5. law. See Articles 39 and 233 of the Constitution of 23 The four types of supervisory mechanism on the Republic of South Africa. the application of ILO standards are: regular moni- 27 toring, by the Committee of Experts on the Applica- The reference to international labour law then tion of Conventions and Recommendations, and then often serves to emphasize the fundamental nature of by the Committee on the Application of Standards a right or principle. See for example several rulings of the Conference, of the application of ratifi ed Con- in the Dominican Republic, such as Corte de trabajo ventions, by virtue of Article 22 of the ILO Constitu- del departamento judicial de San Pedro de Macorís, 6 juil- tion; monitoring by an ad hoc tripartite Committee let 2004, Expediente n° 336-04-000 49. after the lodging of a representation under Article 28 See Elite Israel Sweets and Chocolate Industry Ltd/ 24 of the Constitution; monitoring by a Commission Lederman, 5 March 1978, ICE, 1980, p. 153. of Enquiry after the lodging of a complaint under 29 Article 26 of the Constitution; and, fi nally, monitor- For a case of anti-union discrimination in the ing by the Committee on Freedom of Association or breaking of an employment contract, leading to em- by the Fact-fi nding and Conciliation Commission on ployee reinstatement, see the previously cited ruling Freedom of Association of the Governing Body of of the Spanish Constitutional Court. For a case of the ILO, after the lodging of a complaint concerning discrimination during hiring, related to HIV/AIDS freedom of association. and leading to the hiring of the candidate previously turned down, see Constitutional Court of South Af- 24 An exception here is a highly controversial rica, Jacques Charl Hoffman/South African Airways, ruling by the Constitutional Court of Colombia, as- 28 September 2000, no. CCT 17/00. signing to the decisions of the Committee on Free- dom of Association not only a binding character 30 Supreme Court of Canada, Dunmore v. On- but also a constitutional status. See Sala Cuarta de tario (Attorney General), 20 December 2001, No. 2001 Revisión de Tutelas de la Corte Constitucional, Sin- SCC 94. dicato de las Empresas Varias de Medellín contra Min- 31 See the previously cited ruling Unión Docentes isterio de Trabajo y Seguridad Social, el Ministerio de Argentinos contra Estado Nacional y otro sobre Acción Relaciones Exteriores, el Municipio de Medellín y las de Amparo. Empresas Varias de Medellín E.S.P., 10 August 1999, T-568-99. This ruling was confi rmed by two sub- 32 See, for example, the cases of South Africa consequent decisions of the Constitutional Court. See cerning dismissal procedures, of Spain on anti-union the ruling on Sintrava-Aviance, 18 September 2000, discrimination or of India on sexual harassment.

Workers’ rights and the rule of law: A clash of values, standards of judgement and moral choices

Any reasonably serious discussion of workers’ rights must include assessments of the choices made by legislators and by those who interpret and apply the law. A key to understanding those choices – that may promote or diminish those rights – is the identification of the standards of judgement on which they are made. It needs to be understood that the basic foundation of law, including labour law, is moral choice. It also needs to be understood that the standards of judgement used to make these choices are, in turn, based on values that embrace broader conceptions of justice than the rules of existing statutory law or contractual agreements. The point of this article is to t a l k a b o u t w o r k e r s ’ r i g h t s , p a r t i c u l a r l y w o r k e r s ’ r i g h t s a s h u m a n r i g h t s .

James A. Gross Professor of Labor Policy and Labor Arbitration School of Industrial and Labor Relations Cornell University United States

he common conception of justice is a tors and other decision-makers; the choices Tlegalistic one, defi ning injustice as il- made by legislators in constructing the law legality or unlawfulness. There are many as well as the choices made by those who victims of exploitation, arrogance, or ne- interpret and apply the law; and the value glect who have no recourse to a formal judgements underlying those choices, par- justice system because what was done to ticularly what choices and values predom- them, no matter how unjust, was not il- inate when the often confl icting rights of legal. These injustices may never be put labour and management clash. Freedom of right unless their infl iction breaks some association and worker safety and health law or fails to follow some established are examples from the United States for il- procedures. We need, therefore, a broader lustration purposes but the points being il- conception of justice that includes the legal lustrated have wide-ranging applicability. model with its rules, adjudications, and institutions but also listens to the voices of all suffering victims. Freedom of association and worker It is not possible to talk about justice, safety and health: US values however, without talking about rights. The point of this article is to talk about work- The current state of the National Labour ers’ rights, particularly workers’ rights as Relations Act (NLRA) and the Occupa- human rights. Any reasonably serious dis- tional Safety and Health Act (OSHA) in cussion of workers’ rights must include as- the United States cannot be fully compre- sessments of the nature of labour laws; the hended without identifying those underly- interpretation and application of those laws ing values. The NLRA is not neutral in its by judges, administrative agencies, arbitra- intent; the law declares it to be the policy

21 of the United States to encourage the prac- harsh economic and social consequences tice of collective bargaining and to protect of the market as the inevitable results of workers in their exercise “of full freedom impersonal forces beyond their control of association, self-organization, and des- or comprehension. The consequences for ignation of representatives of their own people in the system, therefore, are neither choosing, for the purpose of negotiating intended nor foreseen. The bad things that the terms and conditions of their employ- happen to workers in their working lives ment or other mutual aid or protection.” 1 are merely misfortunes beyond anyone’s OSHA promised workers a substantive control. Consequently, the argument goes, right to safety and health. In 1968, the Sec- it is absurd to demand justice of such a retary of Labour Willard Wirtz told Con- process because there is no answer to the gress that the legislation was a victory for a question of who has been unjust. In the new politics that “measure[d] progress in words of a foremost advocate of free mar- qualitative as well as quantitative terms”; ket theory social justice is not only irrel- rejected “human sacrifi ce for the develop- evant it is simply a “quasi-religious super- ment of progress”; placed “higher value … stition”. 3 Here is the complete separation on a life, or a limb, or an eye” and asserted of morality from economics. “the absolute priority of individual over These doctrines are hardly new in the institutional interests and of human over United States. It defi es the reality of the last economic values”. 2 35 years to claim that current US labour The promises of both laws have been law is a model of freedom of association broken. There are many reasons why that and it defi es labour history to claim that the occurred but none are more important freedom of association has been respected than the dominance of market capitalism even generally in this country for anything and its associated values. It has become a but brief periods of time. Various doctrines virtual article of faith that survival (and have been used to prevent organized jobs) in this new era of global economic worker “interference” with the exercise of competition depends on strategies that are property rights including England’s long- favourable to business and hostile to organ- established law of master servant, with its ized labour: unencumbered and creative essential component of subordination to management responses to change; the end authority and common law doctrines of of costly contracts with unions; the reten- criminal conspiracy, illegal purpose, the tion or regaining of management preroga- labour injunction, and freedom of contract.4 tives, power, and fl exibility; the freedom The results were coercive and oppressive to overcome other labour cost advantages for workers, in part due to the values of enjoyed by competitors around the United the judges who interpreted and applied States and around the world; and the end these doctrines. As former Supreme Court of government regulations. What is good Justice Benjamin Cardozo once wrote, for business, the argument goes, is good “The decisions of the courts on economic for the country. In other words, business and social questions depend upon their succeeded not only in dominating the pre- economic and social philosophy.” 5 These vailing political and intellectual climate judges, overwhelmingly “solid, independ- but also in redefi ning occupational safety ent men of middle class”, were “terrifi ed and health and labour-management issues of class struggle, mob rule, the anarchists in ways that made breaking the promises and their bombs, railroad strikers and the of the NLRA and OSHA seem necessary collapse of the social system as they knew for the good of society. it”. 6 Yet, their decisions were written – and The each-versus-all individualism the history of their decisions has often been that drives the “free market” approach written – as if they were not infl uenced at to life, for example, induces people to be all by the political and economic struggles preoccupied with their own private self- going on around them or by “free market” interests and, ultimately, to accept even the ideology but only by objective rules.

22 Wagner Act values then and now: and the government is often failing its re- The freedom of association sponsibility under international human rights standards to deter such attacks and It took the crushing failure of the un- protect workers’ rights.” 10 regulated market system in the Great De- It bears repeating that there are many pression of the 1930s to cause a hiatus in reasons why a policy that encouraged the the otherwise continuous dominance of replacement of industrial autocracy with market values. In 1935, the Wagner Act a democratic system of power sharing (NLRA) established the most democratic was turned into governmental protection procedure in US labour history for the par- of employers’ unilateral decision-making ticipation of workers in the determination authority at the workplace. But among of their wages, hours, and working condi- all the reasons, employer “free speech”, tion. The Wagner Act had the potential the 1947 Section 8(c) 11 amendment to the to bring about a major redistribution of NLRA, has become “the primary instru- power from the powerful to the powerless ment used by employers to discourage at U.S. workplaces covered by the statute. unionization and collective bargaining”. 12 For Senator Robert Wagner the key spon- Employer anti-union speech during rep- sor of this law, the right to organize and resentation campaigns causes a clash bargain collectively was “at the bottom of among the right of freedom of association, social justice for the worker” 7 and was es- the right of freedom of speech (employer, sential for a free and democratic society. union, and employees), and property He opposed the tyranny of both free-mar- rights. The dominant hierarchy of rights ket laissez-faire, in which “men become established by the choices of Congress and the servile pawns of their masters in the judicial and administrative decision-mak- factories” and the authoritarian “super ers, particularly in the past 30 years, gives government”. 8 employer speech and property rights pri- The promises made in the NLRA em- ority over employees’ right of freedom of body fundamentally different values and association. conceptions of rights and justice than The doctrinal justiﬁ cation for this those underlying the allegedly free mar- “balance” of rights is that Section 8(c) is ket system. These values of workers’ rights a “constitutional” right whereas employ- and social justice underlying Wagner’s ees’ right to organize is only a statutory statute were subordinated to the values right trumped by an employer’s constitu- of free market economics and the rights tional right. There is a certain degree of of property and management. Labour semantic fraud in the phrase “employer never came close to achieving the sys- free speech”. The phrase conceals the real tem of workplace democracy envisioned policy choice: the extent to which, if at all, by Wagner. This was due in great part to an employer should be permitted to exert the 1947 Taft-Hartley amendments to the economic power through speech in regard Wagner Act which were inconsistent with to employees’ choice of and participation the Wagner Act concept of the federal gov- in unions. The choice made in the United ernment as a promoter of the exercise of States was to sanction and facilitate (by the right of freedom of association. Near law and interpretation of that law) active the end of 1984, a House Subcommittee on employer resistance to unionization – par- Labour-Management Relations concluded ticularly for employers who knew how to that the Act was being used “as a weapon make threats look like predictions, possi- to obstruct collective bargaining” and that bilities, or statements of legal position. unions were “being badly betrayed”. 9 In In this country, the historically rooted 2000, Human Rights Watch found that des- principles of employer property rights still pite a system “with all the appearance of override many of the most basic principles legality” the “Freedom of Association is of the national labour policy including under sustained attack in the United States the fundamental principle of freedom of

23 association. Judicial and administrative Worker safety and health: board (the National Labour Relations The values of labour arbitrators Board – NLRB) decisions concerning access to employer property to communicate As in labour relations, employer competi- with employees about unionization are tiveness, effi ciency, and profi tability has good examples. taken precedence over workplace safety By Supreme Court decision, employees and health. For example, cost-benefi t ana- are permitted to solicit union membership lysis is proposed as the way to determine and distribute organization literature on how much of society’s scarce resources go their employer’s property but only in non- to occupational safety and health. OSHA work areas, on non-working time, as long should be abolished, it is argued, because as it does not interfere with production, economic incentives in the market such as discipline, or safety. For almost 50 years, workers’ compensation and hazard pay however, the Supreme Court has consid- provide almost all the protection workers ered non-employee union organizers tres- need. Many economists argue that workers passers and barred them from access to will bargain for the wage premiums, or haz- employers’ property. The real issue raised ard pay, as extra compensation for exposing in these cases is whether, in light of the themselves to workplace hazards and that undisputed right of employees to receive employers will pay those wage premiums information about their rights under the to attract those workers to hazardous jobs NLRA, any employer property interest until the cost of removing or substantially is suffi ciently important to justify exclu- reducing the hazards is less than the cost of sion of non-employee organizers from the premium pay. (It should be pointed out the workplace. Yet the choice is to make that free market economic theory assumes property rights dominant over workers’ that employers have the right to expose rights.13 workers to hazardous conditions of work.) Another area of case law governing Moreover, the overwhelming number union organizing campaigns provides of workers in this country have no bar- sharp examples of the range of choices gaining power to negotiate wage premi- available to decision-makers as well as the ums – particularly when their employment standards of judgement used to make those can be terminated at will. In the words of decisions and the values underlying those one worker: standards. Shortly before the passage of “Every worker has a choice. Any the Taft-Hartley amendments, the NLRB worker can quit his job. But the realities ruled that requiring employees to listen of life – family, the children, mortgage to their employer’s anti-union speeches payment – impose certain limitations on on company property, during work time, a the worker’s right to just quit. I don’t feel “captive audience” speech, was inherently personally that people should have to quit coercive and per se a violation of the law.14 to protect their health. I feel that the em- After the amendments, the NLRB decided ployer by obligation, by law, must provide that it was not the employer’s captive audi- a safe and healthy workplace. And if the ence speech that was illegal but the em- employers live up to their obligations, then ployer’s denial of an equal opportunity for there would be no reason for a worker to the union to speak to the employees under make that choice”.17 the same circumstances.15 Later, a reconsti- In the United States, labour arbitrators tuted NLRB talked of property rights, em- who interpret collectively bargained con- ployer free speech, and the pre-eminence tracts create and apply rules that, among of the individual’s right to choose not to other things, embody presumptions about join a union and ruled that it was lawful the nature of the power and rights rela- for an employer to give a captive audience tionship of employer-employee as well as speech and to deny a union’s request for sources of worker and employer rights. equal time on the employer’s property.16 Arbitrators, in exercising this prerogative of

24 choice, are making judgements that refl ect humane value judgements, namely that their own political, social, and economic nothing is more important at the work- philosophies. The standards for judgement place than human life and health and that that arbitrators use when they decide cases a full human life requires the kind of par- determine whether they see the workplace ticipation in the economic (and political through the eyes of employees on the shop and social) life of the human community fl oor, in offi ces or classrooms, or from the that enables people to have an infl uence on perspective of those who manage those the decisions that affect their lives. enterprises. The available evidence re- Other than in basic Wagner Act princi- veals an arbitral deference to management ples, the concept of human rights, particu- rights, management goals of effi ciency and larly workers’ rights as human rights, has productivity, and management’s control never been an important infl uence in the and direction of the workforce. making of US labour law or policy. Human This is particularly true in cases involv- rights are a species of moral rights which ing worker refusals to work for reasons of all persons possess inherently, simply be- health and safety – a fundamental clash cause they are human. The underlying between management’s right to operate the principles of human rights include: that enterprise and workers’ right to a safe and every person possesses human rights healthful workplace. Arbitrators perceive equally; that every human being is sacred; these refusal to work cases as insubordi- that human beings are not objects or re- nation cases. This approach downgrades sources to be used for others’ purposes; workers’ fears and concerns about their and that because every human being is sa- safety and health to the level of an excuse cred “certain things ought not to be done for not obeying a work order. Although to any human being and certain other technically employers have the burden of things ought to be done for every human proof in discipline and discharge cases, being”. 19 In the economic context, there- treating these cases as insubordination fore, employer-worker relations are more cases puts the burden on already disci- than economic in nature because workers plined workers to prove that the work as- are persons. signment, or equipment, or work environ- Human rights values do confl ict with ment was suffi ciently hazardous to health the values dominant in much of US labour and bodily integrity to justify the refusal relations, particularly in regard to free- to perform work. In addition, arbitrators dom of association and safety and health also make this burden of proof as heavy as at the workplace. The management rights possible thereby confi rming not only their value judgement underlying the arbitra- choice of employers’ rights over workers’ tors’ insubordination approach (already rights, but also their desire to discourage discussed), for example, is contrary to the challenges to the exercise of managerial human rights value affi rming the sacred- authority at the workplace.18 Among other ness of human life as more important to things, this value scheme confronts work- promote and protect than property rights ers with an unfair dilemma – to work and or other interests such as profi ts, effi ciency, risk their health or safety or refuse to work cost-benefi t analysis, management author- and risk their jobs. ity and economic progress. It is important to consider what changes would occur if arbitrators and other deci- A human rights standard sion-makers resolved confl icts of rights of judgement by applying human rights standards of judgement. In regard to safety and health The economic and management author- cases, one of the most important would ity standards of judgement being applied be to place on employers, rather than on to workplace safety and health and free- employees, the burden of proving that dom of association issues obscure more workplaces were in fact safe or that work

25 assignments did not endanger the health Concluding comments or safety of their employees. These cases would be perceived primarily as safety and The article has focused on the importance health cases not as matters of insubordina- of identifying and assessing the standards tion and management rights and this ap- of judgement that decision-makers raise proach would confi rm the sacredness and in choosing among alternative ways to dignity of human life and its paramount resolve clashes of rights at the workplace. importance – even at the workplace. This focus, however, should not obscure If an employer successfully carried its the fact that fi ghts over rights are at their burden of proof, then the worker or work- core fi ghts over the redistribution of power. ers involved would be required to dem- Although might does not make right, it onstrate a good-faith belief that the work- does take might to get right done. place or work assignment was a threat to To be more than pious talk human safety or health. Only if the employee can- rights must be protected by the rule of law not demonstrate a good faith belief would and be made enforceable through public the insubordination question be consid- and private institutions such as legislation, ered. Use of the human rights standard judicial and administrative agency deci- would also require fundamental changes sions, and collectively bargained contracts in the superior-subordinate conception of between employers and representatives employer-employee relations at the work- of their employees. Before that can hap- place. One of the most important rights pen, human rights need to become part of that workers have for self-protection is all people’s values. At issue is what kind the right to refuse work that they believe of people we choose to be and what kind of in good faith threatens their safety and society we choose to have. No choices are health, consequently, enforcement of those more important. human rights through self-help without retaliation is necessary and justifi ed.20 It all connects. This self-protection Notes constitutes an exercise of the human right of freedom of association. The exercise of 1 Pub. L. No. 74-198, 49 STAT. 449-50 (1935) (Cod- freedom of association at the workplace ifi ed as amended at 29 U.S.C. §§141-44, 167, 171-87 (1944). enables people to obtain suffi cient power 2 to make the claims of their human rights Noble, C. 1986. Liberalism At Work: The Rise and Fall of OSHA (Philadelphia, Temple University Press) p. 82. both known and effective so that respect Quoting Occupational Safety and Health: Hearings on H.R. for their rights is not dependent solely on 14816 Before the Select Subcomm. On Labor of the House the interests of their employers or others. Comm. On Educ. And Labor, 90th Cong. 17-18 (1968). Given that the place of work is the most 3 Hayek, F.A. 1976. The Mirage of Social Justice effective place for labour organizing, em- (Chicago, University of Chicago Press) p. 66. ployee freedom of association rights could 4 The Master and Servants Act was the culmin- be given priority over employer property ation of a series of laws designed to regulate relations between employers and employees during the 18th rights in ways most protective of both and 19th centuries, although heavily biased on the rights by allowing non-employee union employers’ terms. It was instituted in 1823 in Great organizers to organize on the employer’s Britain and described its purpose as “for the better property under the same rules that apply regulations of servants, labourers and work people”. to employee organizing: in non-work areas This law greatly infl uenced labour relations and employment law in Australia (1845), the USA, Canada and on non-work time. The NLRB and (1847), New Zealand (1856) and South Africa (1856). the courts could also return to the earlier In reality the law was designed to discipline em- doctrine requiring employers who de- ployees and repress the “combination” of workers liver captive audience speeches to provide in labour unions.The law required the obedience and loyalty from servants to their contracted employer, equal opportunity for a union to address with infringements of the contract punishable be- employees on the employer’s premises. fore a court of law, often with a jail sentence of hard labour. It was used against workers organizing for

26 better conditions from its inception until well after 13 Gross, J.A. 1999. “A Human Rights Perspec- the ﬁ rst Trade Union Act was implemented in Great tive on United States Labor Relations Law: A Vio- Britain in 1871, which secured the legal status of trade lation of the Right of Freedom of Association”, in unions. Up till then a trade union could be regarded Employee Rights and Employment Policy Journal, No. 3, as criminal because of being “in restraint of trade”. pp. 21-22. 5 Cardozo, B. 1921. The Nature of the Judicial Pro- 14 Clark Brothers Co., 70 N.L.R.B. 802 (1946). cess (New Haven, Yale University Press) p. 171. 15 Bonwit Teller, Inc., 96 N.L.R.B. 608 (1951). 6 Friedmen, L.M. 1973. A History of American Law 16 Livingston Shirt Corp., 107 N.L.R.B. 400 (1953). (New York, Simon & Schuster) p. 486. 17 7 Gross, J.A. 1998. “The Broken Promises of the Gross, J.A. 2002. “Worker Rights as Human National Labor Relations Act and the Occupational Rights: Wagner Act Values and Moral Choices”, in Safety and Health Act: Conﬂ icting Values and Con- Journal of Labor & Employment Law, No. 4, p. 481. ceptions of Rights and Justice”, in Chicago-Kent Law 8 ibid. Review, No. 73, p. 375. 9 Gross, J.A. (ed.). 2003. Workers’ Rights as Human 18 Gross, J.A. 20 04. “I ncor porat i ng Hu ma n R ig hts Rights (Ithaca and London, Cornell University Press) Principles into U.S. Labor Arbitration: A Proposal for p. 3. Fundamental Change”, in Employee Rights and Em- 10 Human Rights Watch. 2000. Unfair Advantage: ployment Policy Journal, No. 8, pp. 31-32. Workers’ Freedom of Association in the United States 19 Perry, M.J. 1998. The Idea of Human Rights: Four under International Human Rights Standards (New Inquiries (New York, Oxford University Press) No. 4, York, Human Rights Watch) pp. 8 and 16. pp. 63 and 71. 11 29 U.S.C. 1994. 158(c). 20 See Emily A. Spieler, “Risks and Rights: The 12 Summers, C.A. 1998. “Questioning the Un- Case for Occupational Safety and Health as a Core questioned in Collective Labor Law”, Catholic Uni- Worker Right”, in Gross (ed.), 2003, Workers’ Rights versity Law Review, No. 47, pp. 791 and 806. as Human Rights, p. 99.

Universal labour standards and national cultures

In the age of globalization, the international regulation of industrial relations has become a vital but perilous task. Vital because the lowering of frontiers is leading to the internationalization of law. Perilous because there are plenty of stumbling blocks, both cultural and economic. The standard-setting system devised by the ILO has its weaknesses, but it is and remains the best developed and most widely accepted response to this pressing need.

Jean-Michel Servais Visiting Professor Law Faculties Universities of Girona (Spain) and Liège (Belgium)

ll ILO activities, in particular the pro- and dignity? The Discrimination (Em- Aduction of labour standards, are uni- ployment and Occupation) Convention versal in scope. This derives from the ILO (No. 111), adopted by the Organization in Constitution, which in principle opens the 1958, covers discrimination against indi- Organization to all States worldwide. In viduals in employment and occupation. the same way, the procedure by which in- It deplores “any distinction, exclusion ternational labour Conventions are drafted or preference made on the basis of race, involves all the Members and their indus- colour, sex, religion, political opinion, na- trial associations. tional extraction or social origin”.1 Should Some authors have suggested that ILO not the same policy of equality prevail in adopts different rules depending on the relations between States? regime, to take account of cultural diver- There is another reason for applying sity and of differing levels of economic de- the ILO standards in general: to ensure velopment, but this is not the case. While that dissimilar conditions of employment it is true that many ILO standards have do not distort competition between States their roots in European history, they have and seriously handicap those offering the nevertheless been expressly adopted or ac- best terms.2 Beyond this, ILO instruments cepted by the representatives of what is are intended to facilitate the process of often a large majority of countries in many globalization in different socio-cultural international institutions, including ILO. contexts, in particular during periods of What is more, is it wise, from the human transition. point of view, to treat workers differently If a State considers that its socio-eco- in areas that touch on their lives, health nomic situation precludes the immediate

Note: The present article is an abbreviated version of that published by the author in the Comparative Labor Law and Policy Journal, Vol. 26, No. 1, autumn 2004, pp. 35-54. The article was presented by the author at an international seminar on comparative labour law, industrial relations and social security held in Bordeaux (France) on 4-15 July 2005. The full version of the article is available at http://www.law.uiuc.edu/publications/cll&pj/archive/vol_26/issue_1/ServaisArticle26-1.pdf. The author is also Honorary President of the International Society for Labor Law and Social Security and Special Adviser to the ILO Director-General.

29 implementation of an international labour to meet concerns not only about the weak Convention, there is nothing to prevent it economic development of some countries, from postponing ratifi cation, which is a but also about specifi c cultural character- voluntary, sovereign act. It can also take istics. Let us explain the concept. advantage of the fl exibility clauses and de- The ILO has always refused to accept vices contained, as we shall see, in many ratifi cations accompanied by reservations of the Conventions. because of the involvement of employers’ There is another point. One country and workers’ organizations in the process can be home to several cultures: that of a of adopting the international labour Con- majority of its citizens and that or those of ventions and in their implementations others who are fewer in number and hail mechanisms. Such reservations are also from different backgrounds. The United deemed to be incompatible with the pur- States is an oft-studied example. Western pose of the Conventions, namely the es- Europe today is also tending to form mul- tablishment of standardized employment ticultural societies. Minorities inevitably conditions. infl uence the culture in the host country. The founding members of the Organ- In this article, national culture is consid- ization, however, inscribed in its Consti- ered as a diverse whole. tution (Article 19, para. 3) that its annual Conference had a duty to introduce fl exibility into the legal texts it adopted: Situation-specific arrangements In framing any Convention or Recommenda- ILO incorporates cultural concerns – and tion of general application the Conference shall economic constraints – in the wording of have due regard to those countries in which its Conventions and Recommendations. To climatic conditions, the imperfect development start with, texts are prepared by a process of industrial organisation or other special cir- comprising several stages during all of cumstances make the industrial conditions which the aim is to obtain the cooperation substantially different and shall suggest the of most member States. The secretariat pro- modifi cations, if any, which it considers may be duces an overall report on legislation and required to meet the case of such countries. practice in respect of the topic at hand. The report is accompanied by a questionnaire Their successors therefore introduced for the governments and for employers’ into the instruments they adopted what and workers’ organizations. A summary are known as fl exibility clauses. document is submitted to the International Different means were used to do this Labour Conference and to one of its com- depending on the objective: allowing coun- missions especially constituted for the pur- tries to ratify only part of a Convention, to pose. Their conclusions are the subject of choose between different levels of require- further consultation conducted in the same ments, or to make exceptions for certain manner. The International Labour Offi ce categories of workers or branches of activ- then prepares one or several draft instru- ity, softening the wording by using expres- ments and submits them to another session sions such as “where [or “if”] necessary”, 4 of the Conference, for a second reading. “where appropriate”, 5 “as appropriate”, 6 The Conference and its ad hoc commission “as far as possible”, 7 “in accordance with discuss them and usually adopt a Conven- national conditions [law] and practice”, 8 tion and/or a Recommendation. and other terms that give greater leeway These texts seek to accommodate differ- to the authorities in charge of giving effect ent situations. They contain only minimum to the content of an instrument. rules, basic principles that can be incorpo- Some ILO Conventions deal directly rated into most, if not all national legal with problems of cultural differences and frameworks.3 What is more, they contain propose adjustments. They require, for ex- fl exibility clauses and devices designed ample, that the weekly rest should coincide

30 with the day of the week established as a to content, wording, supervision, etc., are day of rest by local tradition or custom.9 compounded by other factors. The instruments on migrant work- For example, the role of the law in the ers seek to strike a balance between two settlement of disputes varies from one so- goals: the elimination of discrimination ciety to another. American citizens turn and respect for distinct traditions. The more readily to the courts than those of Migrant Workers (Supplementary Provi- East and South-East Asia, who see court sions) Convention, 1975 (No. 143), calls action as a last resort when all efforts at on the States to encourage the efforts of conciliation have failed. Another factor migrant workers and their families to is that disciplined conduct and respect preserve their national and ethnic iden- for authority are more marked in some tity and their cultural ties with their coun- mentalities and periods than others, as try of origin; it specifi cally mentions the evidenced by the well-known anecdote possibility for children to be given some about German railway workers in the early knowledge of their mother tongue.10 The twentieth century who bought their plat- Protection of Migrant Workers (Under- form tickets before joining a demonstra- developed Countries) Recommendation, tion at a railway station platform. Times 1955 (No. 100) encourages the States to have certainly changed – where in today’s offer migrants facilities for the remittance world could one imagine workers acting of funds, the exchange of correspondence like that? and the performance of any customary Besides the level of economic develop- obligations they wish to observe.11 The ment, the State’s institutional capacities Migrant Workers Recommendation, 1975 are another factor of paramount impor- (No. 151), suggests that account be taken tance for the incorporation of interna- of the special needs of migrants until they tional labour standards into the domestic have adapted to the society of the coun- legal order; 15 social security springs to try of employment. The policy adopted mind. The same holds true of religious for that purpose should be based, in par- convictions; they encourage observation ticular, on an examination of conditions in of measures to protect others. When faith both the migrants’ host country and the gives way to superstition, on the other countries of origin.12 hand, the effect can be perverse, such as The ILO Indigenous and Tribal Peo- in the case of the Thai workers in a knife ples Convention, 1989 (No. 169), is very factory who thought there was no point specifi c: it requires the authorities to rec- in wearing the requisite safety equipment ognize and protect the social, cultural, re- once the workshop had been blessed by a ligious and spiritual values and practices Buddhist monk. of these people and to respect the integrity The methods chosen to implement la- of their institutions and practices.13 The bour standards are also predicated on the Human Resources Development Con- historical context, the power of employers’ vention, 1975 (No. 142), is more general, and workers’ associations, the experience requiring human resources development of their leaders, and the respective place programmes and policies to take account of the law and collective work agreements of the stage and level of economic, social in the system of industrial relations. More and cultural development.14 fundamentally, how a rule is worded and given effect depends on the ideas, customs, skills, arts, etc., of a people or group, that Lasting problems are transferred, communicated or passed along to succeeding generations; in other The universal character of international words, on its culture.16 labour standards makes it more complex to give effect to the obligations they contain: the usual legal diffi culties relating

31 Culture, labour institutions that foster state intervention and industrial relations in economic and social policies. The public authorities meet with the social partners Our view of labour is shaped by where we to discuss social policies in particular. De- live. The American view allows enormous tailed social legislation is supplemented scope for individual initiative. It prefers en- by social dialogue whose structure is es- terprise (or establishment)-level collective sentially national and sectoral. The trade bargaining on employment conditions to unions speak for all employed, unem- legislation, to the point that the United ployed and underemployed workers. They States has no labour code or equivalent fi ercely defend a sophisticated system of statute, even at state level. The collective state social protection. The European social agreements concluded with trade unions model, an expression of solidarity in the (or other forms of worker representation), face of unemployment and poverty, may usually within production units, consti- well be open to debate but it continues to tute the essential form of labour protection set the continent apart from other parts of and provide most social security. Where the world. Europeans are unwilling to ac- there is no such agreement, guarantees cept, no matter what political power they depend on the company’s personnel pol- vote into power, the phenomena of exclu- icy. In short, American legislation focuses sion and extreme inequality. They want the on civil liberties rather than on labour law, State to remedy the negative human conse- on equality of opportunity and treatment quences of an excessively mechanical mar- rather than on solidarity in the distribu- ket economy and an overly painful process tion of income. Hence the recent tendency of globalization. Fear may be expressed among Anglo-Saxon scholars wishing to about the threat this policy poses to Euro- strengthen solidarity to make the defence pean competitivity, but European electors, of workers’ rights part of human rights. as recent history as shown, continue to pre- The situation is very different in West- fer it, albeit with minor adaptations. ern Europe, where social legislation applies to all units of production; sector collective agreements still have primacy Should the law differentiate? and are often made obligatory, even in un- represented companies, by extension. (See, Those who counter the contention that for example, the article by Valérie Jadoul the same standards must apply with the in this issue.) Wages and social costs are right to be different can provoke even therefore not a factor of competition and greater misunderstandings in that every- the risks of social dumping more remote. one clings to their vision of social relations The price of social dialogue and its re- and the powerful tend to prevail.17 Those percussions in terms of competition un- who speak for some cultures often feel doubtedly explain the highly confl ictual those cultures have been overlooked and nature of industrial relations in the United invoke their specifi city to distance them- States and the amount of labour litigation. selves from a common rule. The way in which American unions see Their position is not unfounded, but it their role highlights the contrast with the also has limits: cultural identity encom- European social scene. Focused on the en- passes the individual’s belonging and bars terprise (or the establishment), their main him, by the risk of being seen as a traitor, aim until recently has been to defend the from doubt, irony, reason – anything that direct interests of those of the enterprise’s could detach him from the collective ma- workers who have joined the union and of trix.18 This ambivalence is characteristic of other wage-earners in the unit of negoti- international labour law. It exhorts us to ation concerned. strike the best possible balance. In continental Europe, on the other It is therefore important, as we have hand, the notion of labour is refl ected in seen, for international labour standards to

32 be worded fl exibly, so as to take account of The vaster – geographically speaking the socio-economic specifi cities of States. – the authority of the bodies tasked with The ILO Conventions also require, often adopting the rules, the more numerous explicitly, that account be taken of those the obstacles to their tangible implemen- specifi cities in the choice of means of giv- tation. Indeed, the effectiveness of a rule is ing effect to the instruments. There can be measured at the local level, at the level of no fl exibility, however, when an infraction the service giver and service taker. Hence is observed. Dura lex sed lex: a legal system the complexity of giving effect to labour is only credible if it guarantees the same regulations voted by an international or- methods of evaluation for all. ganization: their implementation depends on the conviction and quality of the national authorities concerned. The degree to A shared ethical framework which they are imperative basically hinges on the determination and capacity of a ma- The opening of borders has telescoped cul- jority of States to dictate, under threat of tures and been a learning experience for sanction, specifi c rules of social conduct. some, a source of instability for many. The Any manner of approach can be used quest for universal values, while more nec- to that end, from the mildest, which relies essary, has stumbled on local traditions. chiefl y on persuasion and reason, to the The answer, initially, is to build a common harshest, which involves severe penalties ethical framework, one of ILO’s goals since for failure to discharge an obligation. The its inception.19 ILO seeks to overcome the former comprises the conclusion of pol- insecurity that remains at the core of work: itical undertakings, the adoption of eco- labour market and job insecurity, income nomic measures, the launch of training and and occupational insecurity, employment information initiatives and the prepara- insecurity arising from risks to life and tion of “technical” (as opposed to “legal”) health or discriminatory practices, inse- standards and practical guidelines. The curity in the defence of one’s interests and latter relates to international treaties and collective representation. agreements which, like the ILO Conven- Workers feel threatened by all these tions, the States undertake to respect by dangers largely because of their dependent the voluntary and sovereign act of ratifi ca- situation: the legal subordination of wage- tion. Between these two extremes lie in- earners and economic dependency of many struments that are less binding in nature: self-employed is compounded by fear of cul- Recommendations, solemn declarations tural subjugation. Foreign investment and such as the Declaration on Fundamental other forms of globalization have promoted Principles and Rights at Work adopted by a third kind of subordination: the obligation the International Labour Conference in to accept another culture. A Tunisian sub- 1998, resolutions adopted by the manag- contractor confi ded at a recent meeting how ing bodies of international organizations, diffi cult he found it to reconcile the code model regulations and collections of prac- of conduct imposed by an Anglo-Saxon tical guidelines. In some quarters this is company with the rules of behaviour of a referred to, somewhat ambiguously, as population steeped in tradition. “soft law”. All the States have to do, in the best of cases, is explain to what extent they have taken account of the relevant Effective regulation provisions, which large corporations also turn to when they adopt codes of conduct The fi rst step is to prepare international unilaterally or in agreement with workers’ rules that garner broad support among associations. countries and their citizens. The second is effective execution of those rules, or support in more than words.

33 Choice in the means of legislating to defi ne their relations. Quite the contrary, contacts between the parties are part of a Let us return to the law itself, i.e. the rules framework and strategy determined by that make it possible to require a type of binding rules, i.e. with threats of penalties conduct under threat of sanction. A dis- in case of infringement. tinction is usually made between rules of This category comprises standards fa- conduct – which make it obligatory to act cilitating collective relations between the a certain way – and rules of organization, social players that, through their discus- which attribute power; both are mandatory sions and negotiations, help solve labour and legal in nature.20 Refl ections on doc- problems. trine have taken this classifi cation a step The means used to implement them are further and currently set rules of procedure, not all legal: defi nition of political projects, which give some institutions a mandate to economic measures, training and informa- deliberate and fi nd the best possible solution campaigns, recourse to “tech nical” (i.e. tion to a social problem, apart from rules of “non-legal”) regulations. When it comes to substance.21 Rules of procedure refl ect the employment and vocational training, for reluctance of the national or international example, these standards seek to make the legislative authorities to rule on a matter activities of the public authorities more co- of substance, because of its complexity or herent and systematic; 22 they contain spe- because they wish to remain neutral in the cifi c measures on the labour market and face of the range of interests involved: the how to evaluate its effectiveness. In terms decision is left to other players who are of employment conditions, the Protocol of closer to the issue. 1990 to the Night Work (Women) Conven- This distinction also occurs in inter- tion (Revised) 1948 (No. 89) authorizes 23 national labour law, where standards are the social partners to conclude agreements either “technical” or “programmatic” de- derogating from the principle stipulated in pending on the nature of the obligations the Convention and to set the terms and they contain. The former have a specifi c conditions of such derogations. technical content; they concern employ- Supervising implementation of these ment conditions broadly speaking and standards gives rise to specifi c problems social services. They give rise to debate because the evaluation examines the about the future of the legal protection of methods employed more than the results work and its adaptation to the economic obtained. Qualitative and even quantita- imperatives of the day. tive indicators would seem to be called The programmatic standards are less for. This being said, when these stand- controversial. Drawing on modern tech- ards confer an important role on the social niques of human resources management, partners, much depends on the balance of they are content to set relatively general ob- power between them. For the method to be jectives for employment, vocational train- effective, all the parties to the labour rela- ing, harmonious industrial relations, etc. tions must have a reasonable possibility to The only obligations they contain are of act on a more or less equal footing. Were means: the subject of the standard is obliged this not to be the case, the result could be to do everything in its power to succeed greater inequality between them. (conduct certain activities, take certain ini- Clearly, programmatic standards are tiatives, prepare and implement a project helpful for embracing a cultural dimen- or programme) but can usually choose the sion in international regulations. They method; there is no obligation to succeed, provide the ideal means of applying uni- as in the case of an obligation of result. It versal principles in a specifi c context. They must be emphasized that legislating in this delegate to the national authorities or the way does not amount to “deregulating”, or social partners at different levels the task to adopting a purely volontarist approach of giving effect to grand objectives estab- that leaves the social players total freedom lished and agreed at the global level.

34 For example, the Labour Relations (Pub- izations and other appropriate bodies in lic Services) Convention, 1978 (No. 151) promoting the acceptance and observance aims to regulate labour relations in the of the policy. That concern to involve em- public service. In its preamble, however, ployers’ and workers’ organizations in the it points not only to the diversity of polit- preparation and implementation of labour ical, social and economic systems among policy or its arrangements is to be found member States, but also to the differences in many ILO Conventions, among them in practice among them as to the respec- those dealing with occupational health, tive functions of the institutions concerned including the prevention of major indus- (central, local and, as the case may be, fed- trial accidents, 25 the worst forms of child eral authorities, state-owned undertakings labour, 26 working hours (night work, 27 and autonomous or semi-autonomous part-time work 28), home work, 29 and public bodies) and as to the nature of em- employment (coordination of protection ployment relationships. Indeed, the status against unemployment and employment of the public service refl ects how each State promotion, 30 status of private employment views the role of the public authorities. This agencies 31). is why article 8 of the Convention leaves An exercise in globalization of the the choice to the States when it comes to spirit, the international regulation of la- the settlement of disputes arising in con- bour relations is a necessary but perilous nection with the determination of terms undertaking: it is indispensable because and conditions of employment; it gives an the elimination of borders leads to inter- overview of the most common practices in nationalization of the law, and risky be- that regard (negotiations, independent and cause the path to international regulation impartial machinery such as mediation, is rife with cultural and economic pitfalls, conciliation and arbitration), but imposes and mistrust waiting round every corner. none of the mechanisms suggested. It is easy for the sceptics to sneer about Likewise, the Discrimination (Employ- the shortcomings of acculturation. They ment and Occupation) Convention, 1958 must not overdo it if the aim is globality (No. 111) requires the ratifying countries on a human scale. The system invented to make a commitment of principle: to de- by the ILO has its defects and they are clare and pursue a national policy designed well known. It is nevertheless the most to promote equality of opportunity and elaborate, and best accepted, response to treatment in respect of employment and the equally globalized social question. occupation, with a view to eliminating any The preceding pages have highlighted discrimination in respect thereof. It leaves the legal procedures by which interna- them free to choose methods “appropriate tional labour law can take better account to national conditions and practice”, 24 but of economic and cultural variables. The specifi es the general direction to be taken: ILO standards are designed to be incorpo- enact or repeal legislation; modify any rated into the domestic order of the mem- administrative instructions or practices ber States by the process of ratifi cation, or which are inconsistent with the policy; at least to infl uence that order if the States promote educational programmes to en- are not ready to make such a commitment. courage it; ensure observance of the policy They serve as a basis for regional groups in the activities of vocational guidance, vo- of States drafting social charters or other cational training and placement services instruments, and for countries wishing to under their direction; scrupulously pur- insert social provisions in their bilateral sue the principles of non-discrimination treaties. in respect of employment under the direct Looking beyond interstate relations, control of a national authority. the standards can serve as models for The Convention also stresses that the large corporations – mainly multina- national authorities must seek the coop- tionals – drafting codes of conduct, for eration of employers’ and workers’ organ- employers’ and workers’ organizations

35 engaged in a process of national or supra- 17 See, for example, R. Dore, New forms and mean- national collective bargaining, and for the ings at work in an increasingly globalized world (ILO campaigns waged by activists from other social policy lectures, Tokyo, 2003), Geneva, IILS, 2004, pp. 66-67; A. Supiot, “The labyrinth of human social organizations. This is why it is so rights”, New Left Review, May-June 2003, pp. 118-136. important to have legal instruments that See also A. Supiot, Homo Juridicvs. Essai sur la func- are truly applicable in all cultures. tion anthropologique du droit, Paris, Seuil, 2005, in particular pp. 312 and ff. S.M. Jacoby, “Economics ideas and the labor market: origins of the Anglo-American Notes model and prospects for global diffusion”, in Comp. Lab. Law Pol. Journal, Vol. 25 (i), fall 2003, pp. 43-78. 1 Article 1, para. 1a). 18 Finkelkraut, A. 1987. La défaite de la pensée 2 Servais, J.-M. 2004. Les normes internationales du (Paris, Gallimard (NRF)), p. 165. travail (Paris, LGDJ), para. 6 (English edition pub- 19 Daghistani, F. 2004. “In search of a common lished by Kluwer in 2005). ethical framework”, in D. Peccoud (ed.), Philosoph- 3 Servais, J.-M. 1997. Droits en synergie sur le travail ical and spiritual perspectives on decent work (Geneva, (Brussels, Bruylant), p. 28. ILO), pp. 150 ff. 20 4 See Convention No. 98, 1949, on the right to François, L. 2001. Le cap des tempêtes. Essai de organize and collective bargaining, articles 3 and microscopie du droit (Paris, LGDJ; Brussels, Bruylant), 4, and Convention No. 149, 1977, on nursing person- p. 283. nel, article 7. 21 See A. Lyon-Caen, “Droit du travail et procé- 5 See Convention No. 175, 1994, on part-time duralisation”, in J. de Munck, J. Lenoble and M. work, article 10. Molitor (eds.), L’avenir de la concertation sociale en Eu- 6 See Convention No. 169, 1989, on indigenous rope, Louvain, Centre de philosophie du droit (Cath- and tribal peoples, article 4. olic University of Louvain), 1995, Vol. II, pp. 176 ff; 7 S. Deakin, Renewing Labour Market Institutions (ILO See Convention No. 177, 1994, on home work, Social Policy Lectures, Budapest, 27-30 November article 4. 2001), Geneva, ILO (IILS), 2004, especially pp. 52-55; 8 See Convention No. 161, 1985, on occupational M. de Nanteuil-Miribel and M. Nachi, “Flexibility health services, articles 7 and 9, and Convention and security: what forms of political regulation”, No. 181, 1997, on employment agencies, article 3. Transfer, Vol. 10(2), Summer 2004, pp. 309-311 and 9 See Convention No. 14, 1921, on weekly rest (in- 313-314. dustry), article 2, para. 3, and Convention No. 106, 22 See articles 1 and 2 of ILO Convention No. 122, 1957, on weekly rest (commerce and ofﬁ ces), art- 1964, on employment policy, and articles 1 to 5 of icle 6. The latter provision stipulates that the trad- Convention No. 142, 1975, on human resources de- itions and customs of religious minorities shall, as velopment. far as possible, be respected. See also article 6 of the 23 Article 1 of the Protocol. Night Work (Women) Convention, 1948 (No. 89), and 24 para. 9 of the Working Conditions (Hotels and Res- Articles 2 and 3. taurants) Recommendation, 1991 (No. 179). 25 Convention No. 161, 1985, on occupational 10 Article 12, para. f. For further information, see health services, articles 3 and 4, and Convention J.-M. Servais, Les normes internationales du travail, op. No. 174, 1993, on the prevention of major industrial cit., para. 772 to 781. accidents, article 4. 26 11 Paragraph 48. Convention No. 182, 1999, on the worst forms 12 of child labour, article 6. Paragraphs 9 and 10. 27 13 Article 5; see also articles 8, 13, 17 and 30, and Convention No. 171, 1990, on night work, No. 35, 1930, on forced labour (indirect compulsion). article 10. 28 14 Article 1, para. 2b). Convention No. 175, 1994, on part-time work, 15 article 11. See T. L. Caraway, “Protective repression, in- 29 ternational pressure and institutional design: ex- Convention No. 177, 1996, on home work, plaining labor reform in Indonesia”, Studies in Com- article 3. parative International Development, fall 2004, Vol. 39, 30 Convention No. 168, 1988, on employment No. 3, pp. 28-49. promotion and protection against unemployment, 16 This is how culture is deﬁ ned in Webster’s article 3. New World Dictionary, 3rd College Edition, Simon & 31 Convention No. 181, 1997, on private employ- Schuster Inc., New York, 1994. ment agencies, articles 3, 7 and 8.

36 Soft law and international labour law

International law, particularly in the labour field, intersects with various forms of social regulation, of both public and private origin, which may or may not be presented as having legal force. Sev- eral of these regulatory types are known as “soft law”. This term is applied to standard-setting processes that form the framework for relations between the actors, but without resorting to legal constraints, which popular opinion still often equates with judicial sanctions. What should be the ILO’s role in the linkage of the soft and hard standards set by international labour law emanating from both public and private actors?

Isabelle Duplessis Professor, Faculty of Law Université de Montréal Montreal, Canada

he soft law phenomenon has inten- Legal constraint and soft law Tsifi ed over the past 30 years. While fl exible types of regulation were at fi rst Theory often measures the constraining mainly a characteristic of international or- force of the law by the availability of a ganizations’ activity, they have now also sanction if the obligations fl owing from come to cover certain relations between it are breached. This representation over- States. Moreover, they are frequently used lies the understanding of law and of soft by non-State actors such as multinational forms of regulation. Seen in this light, “soft corporations, trade unions, pressure groups law” seems to be an oxymoron. It contra- and other non-governmental organizations dicts the very idea of law by embodying (NGOs) to manage the international dimen- legal rules whose constraining force is ei- sion of relations. The growth in soft forms ther non-existent or ambiguous. And yet of standard-setting, and the wide range the absence of constraining force by no of actors using them, calls for refl ection means prevents soft standards from being on the role of this regulatory type within effective. So a dissonance arises between the present-day international legal system. theory and practice. What is the function of soft law in decen- Certain parameters may be drawn from tralized societies such as the international doctrine, as a means of discovering what community, and what consequences does is generally meant by a legal rule devoid the proliferation of soft instruments imply of constraining force. Soft law does not, for international labour law in particular? it seems, impose precise rules of conduct,

Note: This article is a shortened version of a paper presented by Isabelle Duplessis to an international seminar held by the International Institute for Labour Studies (IILS, International Labour Organization) on Governance, International Law and Corporate Social Responsibility (Geneva, July 2006). The seminar was part of a two-year IILS research programme. The full version of the author’s paper will be published in a book by the IILS and is available in French at www.ilo.org/public/french/bureau/inst/papers/confrnce/ gover2006/softlaw.pdf. The author wishes to thank the Social Sciences and Humanities Research Council of Canada for its support for her research work.

37 neither does it involve legal responsibil- Formal soft law ity or even to cease or make amends for and material soft law the prejudice caused to parties when it is breached. Unlike contractual or custom- Most of the misunderstandings which fuel ary obligations, the execution of which can the controversies surrounding soft law be imposed under constraint by a party arise because it is not specifi ed whether asserting its rights, the violation of a soft the softness of the proposed standard it- standard would not, it appears, be subject self is under discussion, or rather the elas- to any sanction. Its implementation would ticity of the instrument that embodies the remain voluntary and not actionable.1 Fi- standard. Confusion should be avoided nally, soft law is said to formulate imper- by distinguishing the legal softness of fect legal obligations, perfection being the standard’s contents from that of its measured in legal theory by the sanction standard-setting support. In the case of available in the case of a violation. standards with an indeterminate injunc- Certain observers, who have no time for tive structure, containing phrases such as nuances, argue that all international legal “if States see fi t” or “as may be deemed ap- standards are soft, since no public author- propriate”, the softness is in the substance ity can apply sanctions if they are breached. of the proposition. In such cases, soft law But why this tendency to take the impera- is material and refers to the standard-set- tive out of standard-setting, so running the ting density of the written formulation of risk of bringing the whole of public law into the obligations provided for in an instru- discredit through this defi nition? Why is ment which, on the other hand, may itself the legal sphere always regarded as being be hard. Flexible provisions are extremely marked by the phenomenon of coercion? frequent in treaties, and notably in interna- Are legal standards adopted with the sole tional labour Conventions.2 Despite their aim of breaking people’s will and obliging softness, their obligatory nature should individuals to act in a certain way? not be called into question, as they are This last question must obviously be contained in an instrument of hard law. answered in the negative. Rather than Formal soft law, for its part, plays the being prohibitive, some standards pro- role of a subsidiary category. It consists of vide a framework for the exercise of the the standard-setting instruments that are actors’ powers and rights. However, one not listed in Article 38 of the Statute of the is forced to conclude that people’s super- International Court of Justice (ICJ).3 The fi cial general impression of legal rules is softness of the resolutions of international that the law is coercitive, whereas no ac- organizations, declarations, concerted count is taken of its permissive potential. acts between States by gentleman’s agree- And the penal function of legal regulation ment only, of the ICJ’s advisory opinions, often seems to be at the forefront in law- the Recommendations of quasi-judicial yers’ minds, as well as in the thinking of monitoring mechanisms or the codes of the man in the street. Soft law causes ap- conduct adopted by multinational cor- prehension because it cuts right across the porations derives more from the juridical centuries-old feeling that legal standards underpinning than from the substance of are hierarchical commandments and law the standard-setting proposal, which may is a matter of constraint. be very detailed. Formal soft law opens Yet the element of constraint by no up the legal system to the presence and means constitutes the whole of the law. standard-setting activity of international Whether hard or soft, and regardless of organizations and atypical actors. whether or not it is backed by sanctions, For some, the recognition of these fl ex- a legal standard is fi rst and foremost a ible forms of regulation within the legal means of imparting an overall direction system raises the burning question of the to individual behaviours within a given binding force of the law. Some fl exible group. standards are effective, even though they

38 do not derive from one of the procedures relationship to the Conventions, the more foreseen by the theory of the sources of so because the two were often adopted in international law, which are considered by tandem. This twinning practice, born of jurists to be the sole generators of binding the wish to enable a small number of States legal obligations. To the extent that they that were socially more advanced than the are, of themselves, incapable of conferring majority to move towards standards going a binding value upon the standards that beyond the protection provided within they vehiculate, elastic instruments used their national law, paradoxically contrib- regularly in the practice of the international uted to the banalization of the Recommen- organizations have suffered from this con- dations. These proved to be “second-tier ception of the elaboration of international Conventions” which mopped up those standards. In this respect, the case of the provisions which the ILO constituents had ILO Recommendations, where they are seen fi t to strip out of the Convention itself, perceived as the weakest link within the or which reproduced the Conventions, but international organization’s standard-set- without their binding force. ting system and the poor relations of the In the case of material soft law, the Conventions ratifi ed by Member States, is softness does not derive from the instru- striking.4 ment as seen in the light of the listing And yet at the outset, nobody could in Article 38 of the Statute of the ICJ, but have foreseen the practice which intro- from the substance of the standard. Hard duced a hierarchy of the standard-setting law has always contained principles or instruments provided for in the ILO Con- dispositions that are fl exible by defi ni- stitution, and which consists of represent- tion. It is not uncommon to fi nd within ing the Recommendations as accessory a treaty a rule conditioned by a phrase of to the Conventions. Article 19(1) simply the type “if the States deem it reasonable” grants the International Labour Confer- or “necessary”. Despite its fl exibility, the ence the power to pronounce in favour of disposition within the Convention is bind- an international Convention or else of a ing, and it is for this reason that it must Recommendation when the object under be distinguished from formal soft law. It consideration or one of its aspects does not simply grants the State some room for ma- lend itself to the immediate adoption of a noeuvre in the exercise of its power. The Convention. So through its Constitution, freedom of action granted to the recipients the ILO had at its disposal two directive of the standard by a soft provision may techniques instead of one for promoting concern the means to be adopted in order its values and principles of social justice. to attain an objective which is otherwise The Recommendations fulfi lled the vital rigorously set. Its obligatory nature is one function of “exploring social reforms”, of result. On the other hand, the objective and of “experimental measures” in a fi eld may remain fl exible while the obligation where economic and social facts are not to behave in a certain way is rigidly set easily captured within a pre-established and is detailed. juridical signifi cation. Recommendations The example of the Employment Pol- should make it possible to benefi t from the icy Convention, 1964 (No. 122) 5 illustrates experience of the many Member States. the fl exibility of Convention provisions This approach counted on the progressive concerning employment policy. The Con- incorporation, by mimetism, of the stand- vention lays down that “with a view to ard-setting provisions adopted within the stimulating economic growth and devel- ILO. opment, raising levels of living, meeting In fact, the spirit of Article 19(1) of the manpower requirements and overcoming ILO Constitution has been only partially unemployment and underemployment, followed within the Organization’s prac- each Member shall declare and pursue, tice. The Recommendations quickly fell as a major goal, an active policy designed victim to a hierarchical conception of their to promote full, productive and freely

39 chosen employment”.6 The objective of may be defi nitional.8 It may also be struc- the standard is broadly defi ned. None- tural, to the effect that certain parts of the theless, Article 2 imposes on States the Convention are optional and others obliga- conduct to be followed in elaborating na- tory. Depending on its national situation, tional employment, by calling upon them a State that is unable to adopt a unifi ed to “decide on and keep under review, approach to the Convention may nonethe- within the framework of a coordinated less select those parts that it wishes to see economic and social policy, the measures applied. to be adopted for attaining the objectives In the recent example of the Consoli- specifi ed” and to “take such steps as may dated Maritime Convention, 9 fl exibility be needed, including when appropriate takes on a new dimension, bearing wit- the establishment of programmes, for the ness to the dynamism of fl exible regula- application of these measures”. The free- tory modes. The Convention closely com- dom of action accorded to States in this bines the two forms of standard-setting provision does not mean an absence of within one instrument. Hard is mixed constraints concerning the conduct to be with soft. Some criticisms have been ex- followed. The progressive achievement pressed about this conceptual fl exibility. of rights, which characterizes the fl exible Might not a hybrid standard-setting ap- provision, cannot be interpreted as imply- proach bring with it the risk of blurring ing the right to postpone indefi nitely the the borderlines between international efforts to be made. The existence of such Conventions and Recommendations, so efforts could be subject to examination by weakening the message sent out by these the supervisory mechanisms. In fact, the standards? Committee of Experts on the Application Certainly, the fl exibility of the Con- of Conventions and Recommendations solidated Maritime Convention is inno- could verify the measures adopted by the vative, but it is part of the long-standing Member States that have ratifi ed the Em- ILO practice of using different types of ployment Policy Convention. Persistent international regulation to achieve a com- violations could, possibly, be subject to plex social objective. The phenomenon of political monitoring within the Commit- soft law, whether formal or material, is no tee on the Application of Standards of the newcomer to the ILO. Right from the start, International Labour Conference. the Organization’s Constitution provided Article 19(3) of the ILO Constitution for fl exibility as a directive technique in encourages the International Labour the elaboration of international standards Conference to apply the fl exible directive appropriate to conditions in the different technique when drawing up international Member States. Although this method was labour standards: “In framing any Con- encouraged, it was nevertheless the subject vention or Recommendation of general of constant debates about the binding force application the Conference shall have due of international labour standards and their regard to those countries in which cli- effectiveness. Since the end of the Cold War, matic conditions, the imperfect develop- will the calls for more fl exibility within the ment of industrial organization, or other ILO not end up by diminishing the whole special circumstances make the industrial body of international labour standards, conditions substantially different”.7 It is as interpreted by the supervisory mech- therefore not unusual for the Conference anisms? Is the aim to elude hard law? to introduce fl exible provisions within In the past, the Employers’ Group con- Conventions, adjusting them to realities stantly came down in favour of the fl exible in the different Member States. This may technique for elaborating international be a matter of fl exibility in the scope of ap- labour standards, as they advocated the plication. The limitation will be ratione ma- adoption of Recommendations rather than teriae (e.g. the agricultural sector) or ratione Conventions. The employers’ position has personae (a category of workers). Flexibility scarcely changed at all over time. They

40 wish to replace the whole body of Con- A. The function of soft law ventions with a limited number of fl exible for the international actors instruments. For the Workers’ Group, this position would lead to too much softness States often favour fl exible modes of regu- and the dissipation of the International lation within their international relations Labour Code. On this point, was it not for reasons of commodity, on subjects Wilfred Jenks who pointed out in another which call for standard-setting action but era that maximum fl exibility would be at- whose complexity is not easily grasped by tained by having no standards at all? the formal sources of law. While feeling the The demands of the Employers’ Group need to cooperate, States may wish to elude did not fall on deaf ears, as the ILO Gov- legal responsibility and the supervisory erning Body, between 1995 and 2002, mechanisms which sometimes monitor examined the whole of the standards violations of a treaty’s provisions. adopted by the Organization prior to 1985, By adopting fl exible instruments, States except the fundamental and priority Con- may ultimately modify the rules of the jur- ventions. In the context of globalization, idical system and usher in a new modus the debates within the International La- vivendi. The international social order is bour Conference would now do well to then transformed. Soft law reinforces the get back to the spirit of the Organization’s heuristic method between States. A telling Constitution, which provides for two com- example of this is the use of the ILO Rec- plementary types of standard-setting, and ommendations as a laboratory for national to concentrate on the pragmatic linkage of legislation. The initiators of a new stand- fl exible and hard standards. ard keep an exit route open, until they see whether their peers are in turn going to adopt the behaviour suggested by the fl ex- The private appropriation of ible standard. At this stage, they have not regulatory means – The consequences entered into any legal commitments and for international labour law this situation facilitates national experi- mentation. From the actors’ point of view, The reconciliation of fl exible and hard should soft law not then be seen as a ruse standards has been prompted by a par- employed by the system in order to intro- ticular challenge. The ILO is no longer duce essential legal modifi cations into a the only one using soft law to elaborate decentralized international society? It is international labour standards. Drawing certainly a progressive source, tending to upon an objectivist conception of interna- lead international law into pastures new. tional law, one that sets greater store by the The promotional logic of the 1998 ILO function than the form of legal standards, Declaration on Fundamental Principles and fl exible types of regulation are now being Rights at Work plays an equivalent heuristic created by both public and private inter- role, but in this case it calls upon the Or- national actors. For these actors, the use ganization to provide technical assistance of formal soft law is in fact often the only to its Member States, with a view to ensur- option, as the hard law channels are closed ing that rights and fundamental principles to them. So what role do fl exible regula- are respected at work. “It is not improbable tory approaches play for the different in- that these new forms of regulation have an ternational actors and what are the conse- educational and incentive value. They are quences of such multiple standard-setting based on the cooperation, accompaniment for the international labour law elaborated and assistance, particularly in technical within the framework of the ILO ever since matters, which are now indispensable its foundation in 1919? for any assessment of the effectiveness of standards.” 10 Soft law works like a discreet social architect 11 by facilitating cooperation

41 between the international actors. Today, B. Consequences of soft law competence for the elaboration of inter- within international labour law national law is shared between the States, traditionally recognized as the sole pos- So the fl exible forms of regulation are sessors of a legal personality, the inter- part of the legal system and have vari- national organizations and the atypical able effects. They may sometimes assist actors.12 Indeed, it was the international in the interpretation of standards, or else organizations which started the move infl uence their effects. But this infl uence towards fl exible forms of regulation and exercised by soft law upon hard law may which are still the centres of soft power par serve either to raise or to lower respect for excellence. They profoundly altered the way legal standards. Given the proliferation of in which international law is created and is fl exible regulatory instruments, the latter presented to those subject to it. Right from scenario is often evoked. What are we to the start of their activities, these organiza- think of the fears raised of an instrumental tions had to opt for other methods than hi- use of fl exible standards as a way of side- erarchical command in order to encourage stepping or even dissolving hard law? Are international organization. They went on the consequences of soft law necessarily to develop a consistent juridical technique, bad for international labour law? Should aimed at persuading and not constraining the calls for more fl exibility within the ILO their Member States to conduct themselves be seen as an attempt to tone down inter- in line with the standards. national labour standards? The artifi cial nature of a strict demar- The strategy of toning down inter- cation between juridical and pre-juridical national labour law through the use of obligations is manifest in the case of un- material soft law, i.e. softer and softer ratifi ed ILO Conventions.13 In theory, the standards within the Conventions, has Conventions are instruments of hard law been denounced recently in connection and contain juridical obligations which with precarious work. A study of the have binding force. However, when they clauses in three Conventions adopted are not ratifi ed, they undergo a kind of jur- successively during the 1990s shows a idical disqualifi cation which changes them slide towards softness and a consequent into instruments of soft law. But despite lessening of the protection of workers’ this reduced status and the concomitant rights. The Part-Time Work Convention, lack of binding force, Article 19(5)(e) of the 1994 (No. 175), stipulates that measures ILO Constitution sets out a procedure for should be taken to ensure that part-time Member States to report to the Director- workers receive the same protection as General of the International Labour Offi ce full-time workers, while the Home Work on the state of their legislation and practice Convention, 1996 (No. 177) provides for concerning the matter that is the subject of national policies on homeworking which, the unratifi ed Convention. States are then as far as possible and taking account of the under an obligation to explain to what ex- particular characteristics of home work, tent they have followed up on any of the promote equality of treatment between provisions in the Convention by legislative homeworkers and other wage-earners. or administrative means, collective agree- The slide towards softness is very plain ment or any other means, and to identify in the Private Employment Agencies Con- the diffi culties that are preventing or de- vention, 1997 (No.181), which abandons laying ratifi cation. the aim of parity pursued by the preceding Conventions, and instead merely promotes adequate protection for workers employed by private employment agencies. At the formal level, the slide towards softness was also denounced when the

42 International Labour Conference adopted entirely correspond to reality, particularly the Declaration in 1998, in response to within the ILO. the challenges raised by a predominantly In addition to the procedures provided economic globalization. Since the adop- for under Article 19 of the ILO Constitu- tion of this fl exible regulatory instrument, tion, as regards reporting on unratifi ed Member States are under an obligation to Recommendations and Conventions, sev- respect, promote and implement, purely eral instruments of formal soft law are on the basis of their membership of the also accompanied by follow-up proced- Organization and even if they have not ures. Some fi nd them formless in com- ratifi ed the relevant Conventions, the parison with the traditional supervisory principles concerning the following fun- mechanisms attached to hard standards. damental rights: freedom of association Nonetheless, as for example in the follow- and the effective recognition of the right up elaborated for the Tripartite Declaration to collective bargaining, the elimination of Principles concerning Multinational Enter- of forced or compulsory labour, the aboli- prises and Social Policy of 1977, modifi ed in tion of child labour and the elimination of 2000, fl exible procedures do exist for fl ex- discrimination in respect of employment ible standards. and occupation. The discussions surrounding the adop- What the Declaration is reproached tion of the Declaration in 1998, and its im- with is not only its fl exibility but also its pact on the practice of the international ac- content and its possible substitution effect tors, undeniably illustrate an ambivalent for hard standards within international approach to law within the ILO since the labour law. Seen from this point of view, end of the Cold War. Among the western the Declaration is a Trojan horse inside governments and the employers, there is a the International Labour Code developed noticeable malaise about standards inter- by the ILO since 1919. Critics say this preted by the supervisory mechanisms, new scheme of things shifts the empha- especially those developed on the right sis towards the principles, rather than the to strike by the Committee of Experts rights, defi ned in the international Con- on the Application of Conventions and ventions. Indeed, a linkage between the Recommendations and the Committee of principles and rights set out in the Dec- Experts on the Application of Standards laration and the relevant Conventions was from the interpretation of Article 3 of the explicitly rejected during the negotiations Freedom of Association and Protection of leading up to its adoption. The spirit of the Right to Organise Convention, 1948 the new set-up is a promotional approach (No. 87). This Article provides that work- which is quite distinct from the body of ers’ and employers’ organizations “shall international labour standards as inter- have the right to draw up their constitu- preted by the traditional ILO supervisory tions and rules, to elect their represen- mechanisms. tatives in full freedom, to organize their Beyond this general slide into for- administration and activities and to formal and material softness, the criticisms mulate their programmes”. On the other levelled at the ILO raise the issues of hand, the workers’ side has been bidding the sidestepping of the traditional su- up the hardness of law, to the detriment pervisory mechanisms, with preference of its fl exibility – a sort of legalistic infl a- going instead to formless follow-up pro- tion exemplifi ed by the treatment of Rec- cedures and non-binding standards with ommendations as the poor relations of no sanctions in case of violation. Contrary Conventions and by the lukewarm initial to hard law, the image immediately sum- reactions in the debates on the adoption moned up by the term “soft law” is the of the 1998 Declaration. absence of supervisory mechanisms and But one thing is for sure. The adoption the lack of any third party monitoring its of the 1998 Declaration and the technical application. However, this image does not cooperation which has subsequently been

43 developed have ensured wide publicity Conclusion for the fundamental principles and rights at work, both inside and outside the ILO. As its Constitution urged it to do, the ILO A number of public initiatives have taken has long favoured the adoption of soft law them on board – often in connection with as a standard-setting technique within in- free trade agreements. ternational labour law. The new element If the linkage of fl exible and hard these days is the establishment of a par- standards needed for good worldwide allel system, the elaboration and imple- governance was already a colossal task mentation of principles and fundamental for the ILO in the context of public exter- rights by public or private actors. The risk nal initiatives, it is likely to be even more of diluting rights at work, as interpreted diffi cult in the case of private initiatives. by the supervisory mechanisms ever since Several codes of conduct adopted by mul- the founding of the ILO, is a real one – all tinational corporations refer to the princi- the more so because the role of law in pro- ples and fundamental rights set out in the tecting workers seems to have become an ILO Declaration. But the linkage has yet issue since the end of the Cold War. What to be made. The selection of international role should the ILO have in the linkage of standards to suit the private interests of a the fl exible and hard standards of inter- company and its staff, the multiplication of national labour law, emanating from both codes of conduct and their often defi cient public and private actors? implementation in practice are issues that The Organization must do everything are quite rightly raised. More and more possible to integrate the soft standards multinationals pick and choose between emanating from outside actors. Just as standards and then, in some cases, them- the international actors have appropriated selves make sure that the selected ones are international labour standards, so the applied. Multiple elaboration of standards ILO must, in return, appropriate soft law paves the way for contradictory interpreta- and integrate it into the juridical system. tions of the content of international labour Bridges must be built between fl exible standards and the implosion of the inter- and hard standards and reference must be national labour code. Follow-up to these made to the Conventions and Recommen- fl exible standards can sometimes be es- dations as interpreted by the supervisory tablished in parallel but private initiatives mechanisms since 1919. The revitalization have seldom made it possible to verify of the international labour standards re- the effectiveness of international labour quires a harmonious linkage of fl exible standards on the ground. standards (Recommendations and Dec- This trend towards the dispersion of larations) and hard ones (Conventions), references brings with it the risk of dilut- as well as the promotion of the authority ing the international labour code, and the of the ILO supervisory mechanisms and diffi culties involved in making the linkage of the interpretation that they have given between fl exible and hard standards are to the standards since the early 1920s. At absolutely real. Might not the 1998 Declar- the political level, given the ideological ation lead to a polarization between the cracks emerging between the constituents hard standards and the soft ones? 14 Should since the end of the Cold War, the debates it not be seen within a logic of a comple- within the ILO should get back to concen- mentarity of means, with a view to ensur- trating on the Organization’s institutional ing greater respect for workers’ rights? mission and the spirit of its Constitution, so as to ponder the role of the international labour standards in ensuring the promotion and respect of workers’ rights. Why should the ILO be assigned a leading role in the linkage of fl exible and hard standards within international labour

44 law? From what does it derive its author- 6 Article 1(1) of Convention No. 122. Article 1(3) ity? International organizations in general also encourages recourse to fl exibility with refer- are privileged bodies within the synergis- ence to the national context: “The said policy shall take due account of the stage and level of economic tic dynamic of world governance and the development and the mutual relationships between linkage of fl exible and hard standards employment objectives and other economic and so- in a decentralized international society. cial objectives, and shall be pursued by methods They facilitate the developing countries’ that are appropriate to national conditions and practices.” participation in the creation and applica- 7 tion of international standards. As well as This provision refl ects the concerns of several Asian countries whose climate made the gen- having a public and universal character at eral application of the international labour stand- the level of State representation, the ILO ard diffi cult: George P. Politakis, “Deconstructing enables civil society actors to create and fl exibility in International Labour Conventions”, in apply the international labour standards. J.-C. Javillier and B. Gernigon (ed.), op. cit., note 4, pp. 463-496. Tripartite in its composition, it fosters 8 democratic debate and the consolidation An example of defi nitional fl exibility is Art- icle 1(b) of the Night Work Convention (No. 171, 1990), of the law-based State. which specifi es that “the term night worker means an employed person whose work requires performance of a substantial number of hours of night work Notes which exceeds a specifi ed limit. This limit shall be fi xed by the competent authority after consulting the 1 Marcelo Dias Varella, “La complexité croissante most representative organizations of employers and du système juridique international : certains prob- workers or by collective agreements.” lèmes de cohérence systémique”, (2003-2), VI Revue 9 The Consolidated Maritime Convention was belge de droit international 331, p. 358. adopted on 23 February 2006 at the 94th session 2 This fl exibility of juridical provisions is not (maritime) of the International Labour Conference unique to international law. Examples can be found in Geneva, with 314 votes in favour, none against in all legal systems: Jean Carbonnier, Flexible droit : and 4 abstentions. It groups within one single textes pour une sociologie du droit sans rigueur, Paris, standard-setting instrument 38 Conventions and Librairie générale du droit et de la jurisprudence, 30 Recommendations, as well as the fundamental 5th edition, 1983. principles set out in particular in the fundamental 3 Article 38 (1) reads as follows: “The Court, Conventions. It is innovative in combining hard and whose function is to decide in accordance with infl exible provisions, by inserting into one part of the ternational law such disputes as are submitted to it, Convention something resembling a Recommen- shall apply: a. international Conventions, whether dation. Also, it includes a simplifi ed amendment general or particular, establishing rules expressly procedure which permits the rapid updating of the recognized by the contesting states; b. international technical provisions. Cleopatra Doumbia-Henry, custom, as evidence of a general practice accepted “The Consolidated Maritime Labour Convention: as law; c. the general principles of law recognized A Marriage of the Traditional and the New”, in by civilized nations; d. subject to the provisions of J.-C. Javillier and B. Gernigon (eds.), op. cit., note Article 59, judicial decisions and the teachings of the 4, pp. 463-496. most highly qualifi ed publicists of the various na- 10 Isabelle Daugareilh, “La responsabilité sociale tions, as subsidiary means for the determination of des entreprises transnationales et les droits fonda- rules of law.” Annex to the Charter of the United mentaux de l’homme au travail : le contre-exemple Nations, adopted on 26 June 1945. http://www.icj- des accords internationaux”, in Isabelle Daugareilh cij.org/icjwww/ibasicdocuments/ibasictext/ibasic- (ed.), Mondialisation, travail et droits fondamentaux, statute.htm Brussels, Bruylant., 2005, pp. 231-263. 4 The following refl ections on the Recommenda- 11 This expression comes from G. Abi-Saab, tions are inspired by George P. Politakis and Kroum “Eloge du ‘droit assourdi’. Quelques réfl exions sur Markov, “Les recommandations internationales du le rôle de la soft law en droit internationnal con- travail : instruments mal exploités ou maillon fai- temporain”, in Nouveaux itinéraires en droit. Hom- ble du système normatif?”, in Jean-Claude Javillier mage à François Rigaux, Bruxelles, Bruylant, 1993, and Bernard Gernigon (ed.), Les normes internation- pp. 59-68. ales du travail : un patrimoine pour l’avenir. Mélanges 12 Atypical actors are so called in reference to en l’honneur de Nicolas Valticos, International Labour the traditional legal doctrine that only States pos- Offi ce, Geneva, 2004, pp. 497-525. sess legal personality. Atypical actors are the NGOs 5 This is a priority Convention for the ILO. By and the multinational corporations, and some com- April 2006, it had been ratifi ed by 95 Member States: mentators place them within the broader category www.ilo.org/ilolex of international civil society. Sandra Szurek, “La

45 société civile internationale et l’élaboration du droit 14 Isabelle Daugareilh, “La responsabilité sociale international”, in Habib Gherari et Sandra Szurek des entreprises transnationales et les droits fonda- (ed.), L’émergence de la société civile internationale. Vers mentaux de l’homme au travail : le contre-exemple la privatisation du droit international?, Paris, Pedone, des accords internationaux”, in I. Daugareilh (ed.), 2003, pp. 49-75; p. 54. Mondialisation, travail et droits fondamentaux, Brux- 13 The Vienna Convention on the Law of Treaties, elles, Bruylant, L.G.D.J., 2005. Discussing the 1998 adopted on 23 May 1969, similarly emphasizes the Declaration, Isabelle Daugareilh states (in French): artiﬁ ciality of a single juridical threshold. Article 18 “It is therefore the only international text which, provides for unratiﬁ ed Conventions to have direct concerning social responsibility, proposes linkages juridical effect, by obliging the signatory State to between soft law and hard law, tangible points of refrain from acts which would defeat the object contact between private space and public space and, and purpose of a treaty. http://web.archive.org/ consequently, connections between private stand- web/20050208040137/http://www.un.org/law/ilc/ ards on social responsibility and public standards texts/treatfra.htm on fundamental rights.”

46 International protection of collective bargaining – A difficult task

Collective bargaining is an integral part of trade union rights. It is within the hard, unalterable core of freedom of association. With- out it, that freedom would lose its meaning. But while international labour standards and the doctrine developed by the ILO supervisory bodies have done much to strengthen the global protection of bargaining freedom, much remains to be done if a kind of global legal status is to be achieved for what comes out of this bargaining – collective agreements.

Miguel Rodriguez Piñero y Bravo Ferrer President of the Second Section of the Council of State in Spain (Legal, Labour and Social Matters) Member of the ILO Committee of Experts on the Application of Conventions and Recommendations

reedom of association has a key part to Freedom of association and the concep- Fplay in the constitutional system of the tion that trade unions are organizations International Labour Organization. The promoting, defending and representing ILO has contributed decisively to ensuring workers’ interests have taken on universal that freedom of association is incorporated value, even though national trade union into the universal catalogue of human rights structures, methods and culture may and that trade unions are regarded not only change and vary. Contributing to this uni- as indispensable instruments for the im- versality are the international standards provement of labour conditions but also as on freedom of association elaborated by an expression of working people’s dignity, the International Labour Organization, as freedom and sphere of self-determination. well as the elaboration of a practice and Trade union freedom has become an essen- “doctrine” of freedom of association by tial component of a law-based democratic the relevant bodies within it, notably the State. Today, respect for freedom of asso- Committee on Freedom of Association, ciation is a useful yardstick for the level the Committee of Experts and the Com- of democratic development and human mittee on the Application of Standards of rights recognition in a given country. the Conference.

Note: Miguel Rodriguez Piñero y Bravo Ferrer is a Doctor of Law; Professor of Labour Law; Doctor honoris causa of the University of Ferrara (Italy) and the University of Huelva (Spain); President Emeritus of the Constitutional Court; member of the European Academy of Labour Law, the Ibero-American Academy of Labour Law, the Andalusian Academy of Social Sciences and the Environment, and the European Institute of Social Security; Director of the review Relaciones Laborales; President of the SIGLO XXI Club; recipient of the gold medallion of the University of Huelva; former President of the National Advisory Commission on Collective Agreements and President of the Andalusian Industrial Relations Council; former Dean of the Faculty of Law of the University of Seville; former Director of the University College of La Rábida; former President of the Spanish Association of Labour Law and Social Security. The present article makes reference to the comments of the ILO’s Committee of Experts on the Appli- cation of Conventions and Recommendations and the recommendations of its Committee on Freedom of Association.

47 The scope of freedom of association and explicitly enshrined in the ILO instruments, but it has been recognized as a right Regarding the scope of freedom of asso- derived from freedom of association and ciation, these bodies have similar criteria as a manifestation of trade unions’ specifi c which complement and enrich each other. right, as recognized in Convention No. 87, This similarity is also refl ected in the two to carry out activities and draw up action reports already drawn up in connection programmes in their members’ defence. with the Declaration on Fundamental Among the activities that trade unions Principles and Rights at Work, which was have a right to carry out is strike action adopted in June 1998 by the International which, when exercised “peacefully”, must Labour Conference and which recognizes, be generally recognized as a trade union as basic rights at the highest “political” right. level, the rights to freedom of association Starting from this collective, trade and collective bargaining. union vision of the right to strike, both The doctrinal and educational work the Committee of Experts and the Com- performed by the ILO on the issue of free- mittee on Freedom of Association, which dom of association has had a marked infl u- are the competent bodies, have built up a ence on the various national jurisdictions. very elaborate, consolidated doctrine on Based on interpretation of the much-rati- the right to strike, and this has greatly fi ed Freedom of Association and Protec- infl uenced national jurisdictions. From tion of the Right to Organise Convention, this doctrine may be safely deduced the 1948 (No. 87), a homogeneous body of scope of the right to strike, the formal and principles and rules, with fi rm, clear, pre- material requirements that may be placed cise, commonly accepted criteria, has been upon it without rendering it impractica- created concerning the scope of freedom ble, those enjoying it (with restrictions in of association and of the obligations that the case of the armed forces and the po- it places both on public authorities and lice), the modalities for exercising it, the employers. protection of the striking trade union and Although international labour stand- workers, or the specifi c limit on the main- ards do not aim at uniformity, and al- tenance of essential services and the re- though national trade union systems strictive understanding of which services correspond to different traditions and na- are concerned. tional constitutional systems vary greatly, The level of doctrinal certainty achieved the principles and rules derived from the by the ILO concerning freedom of asso- Conventions and Recommendations, the ciation and the right to strike does not Declaration and the ILO’s own Constitu- exist with respect to the right to collective tion regarding the “essential content” of bargaining. The concept of collective bar- freedom of association form a universal ius gaining and the scope of the separate gentium which make it possible to deter- recognition of such a right is rather less mine, clearly and with certainty, the scope clear, both in the ILO Conventions and of the rights enjoyed by workers and their Recommendations and in the Declaration organizations, and also of States’ obliga- on Fundamental Principles and Rights at tions as regards compliance with inter- Work, as also in the doctrine and practice national labour standards on freedom of of the Organization’s follow-up and moni- association. The follow-up and monitoring toring bodies. bodies within the ILO do not have a dif- The reasons for this degree of impreci- fi cult task in this respect, as they can count sion on the subject of collective bargain- on a clear, precise doctrine which is none- ing are partly intrinsic, deriving from the theless adaptable to different situations ambiguity of the expression “collective and changing circumstances. bargaining” itself, and partly extrin- To a certain extent, the same goes for sic, deriving from the particular way in the right to strike. As such, it is not directly which collective bargaining is treated

48 separately from freedom of association. strong, “hard” protection given to freedom This treatment has not been particularly of association. to the advantage of the right to collective Collective bargaining is part of the bargaining. complex of collective labour rights having in common their basis in the collective guardianship of workers’ interests, and it The right to collective bargaining forms part of the minimum, indispensable nucleus of freedom of association, Collective bargaining is a social phenom- without which that freedom would not be enon, a manifestation of social autonomy recognizable. A joint reading of Conven- which is not necessarily linked to a trade tions Nos. 87 and 98 makes it possible to union protagonist, even though one of the grasp the full complexity of the manifes- main purposes of a trade union, as a col- tations deriving from the enshrinement lective organization, is to regulate working of the autonomous, collective guardian- conditions, in a concerted way, by means ship of labour interests. However, such a of collective agreements. reading does not resolve in every respect The preparatory work on Convention the question of the role to be assigned to No. 87 took this premise as its point of negotiation and, above all, to collective departure, and as the Right to Organise agreements since, although the right to and Collective Bargaining Convention, collective bargaining does not suppose a 1949 (No. 98) did not yet exist, the right to right to obtain a negotiated outcome but collective bargaining would have been de- only a right to adopt instrumental behav- duced from the right to trade union action. iour such as may help to reach accords, The right to freedom of association already these accords or collective agreements are guarantees to the trade unions a right to the result to be hoped for, and the recogni- negotiate freely with employers on the de- tion itself of the right to collective bargain- termination of working conditions, with ing corresponds to this. a view to reaching collective agreements. The Committee on Freedom of Associ- However, the separation of the treatment ation has afﬁ rmed that an essential element of freedom of association and of collective of freedom of association is the right of bargaining in Conventions Nos. 87 and 98, trade unions to negotiate freely with em- possibly in an attempt to avoid tackling ployers through collective bargaining, and the subject of strikes, neither achieved this that the public authorities must abstain latter aim – as the right to strike was none- from any interference that might restrict theless held to derive directly from free- this right or impede the legitimate exercise dom of association – nor promoted a full, of it. Nonetheless, this idea has remained clear development of the right to collective very diluted in the interpretation of Con- bargaining. Moreover, this right is insep- vention No. 87, which has emphasized the arable from the right to strike and from implications that freedom of association systems for resolving collective disputes, has for the ability to adopt such conduct which receive the attention they deserve and action as are necessary for achieving in Convention No. 98. effective coalition. It has also remained What is more, Convention No. 98 does very diluted in the interpretation of Con- not refer solely to collective bargaining. vention No. 98, as regards using the fram- In fact, its main regulatory weight is in ing of the right to collective autonomy as Article 1, which guarantees workers ad- a possibility for generating rules appli- equate protection against acts of anti- cable to labour contracts. The interpret- union discrimination, relegating the right ation of Convention No. 98 has not made to collective bargaining to second place it possible to reﬂ ect either the importance as regards the “density” of regulation – in of collective autonomy (concretely, the other words, its scope and the degree of importance of collective agreements as protection it offers in comparison with the a regulatory source of labour law) or the

49 particularities that require its protection Promoting the negotiating process and enshrinement, by virtue of its being such a regulatory source. Encouraging negotiation does not neces- The inadequacy of Convention No. 98 sarily imply any particular recognition of is shown by the fact that it has had to be the effects of the agreement. This, from a supplemented by other Conventions, no- juridical point of view, is what has caused tably the Labour Relations (Public Service) the biggest problems within the national Convention, 1978 (No. 151) and, above all, jurisdictions – integrating the bargaining the important but little-ratifi ed Collective power of unions and employers’ organ- Bargaining Convention, 1981 (No. 154). izations into a political and institutional But neither have these two instruments context. Here, the law may play an active adequately resolved the issue of the con- part in building these collective rules into tent and scope of the right to collective bar- the state provisions, particularly in the gaining and collective agreements. many legal systems whose rules on labour This does not mean that the follow-up relations stem more from the law than and monitoring bodies have not moved to from collective autonomy. The Convention fi rmly protect collective bargaining activ- does not contain any mandate for States ity. On the contrary, they have in particular to develop, shape, regulate and legally ensured the independence and effective- channel the freedom to bargain collect- ness of trade unions as bargaining agents ively. It is does not even call for legislative and their truly representative nature, pre- intervention in order to develop and pro- venting the negotiations from being falsi- tect the exercise of the right to collective fi ed through the imposition, by the public bargaining. authorities or employers themselves, of re- There is a striking contrast between the strictions on certain representative trade purely promotional vision of the negotiat- unionists, whether through the abolition ing process within Convention No. 98 and of trade union pluralism or the arbitrary the contents of the Collective Agreements choice of a single bargaining agent. Recommendation, 1951 (No. 91), which To guarantee that collective bargaining refers to the classic standard-setting ef- and collective agreements on working con- fect of collective agreements and to the ditions are conducted with genuinely rep- precedence that they take over contracts resentative trade unions means, fi rst and of employment, setting out the binding foremost, defending free trade unionism nature ultra partes of an agreement, its un- and genuine, unfalsifi ed negotiation, but quashable effects in favour of individual this strengthens unions’ bargaining free- autonomy, the application of the “most dom more than it strengthens collective au- favourable interpretation” principle by tonomy, particularly as regards anything safeguarding more favourable conditions going beyond the trade union sphere. in employment contracts etc. Convention No. 98, despite its title, does A purely promotional view of col- not openly recognize the right to collective lective bargaining is also refl ected in Art- bargaining, nor even collective bargaining icle 5 of Convention No. 154, which lays freedom, although it does presuppose this. down that “measures adapted to national It requires only the taking of “measures ap- conditions shall be taken to promote col- propriate to national conditions” to encour- lective bargaining”. In addition, it sets out age and promote the development and use what those measures might be, whether of collective negotiating procedures, and in terms of their aims (that collective bar- it puts the emphasis on the process itself, gaining should be “made possible for all more than on its result, the agreement. employers and all groups of workers in the branches of activity covered by this Convention” and that it should be “progressively extended to all matters”) or of their means (the “establishment of rules

50 of procedure agreed between employ- an agreement, and there is no obligation ers’ and workers’ organizations” and that to submit collective agreements for the au- “bodies and procedures for the settlement thorities’ approval nor any possibility for of labour disputes should be so conceived the authorities to annul or modify the con- as to contribute to the promotion of col- tents of collective agreements. Even when lective bargaining”, but without blocking collective bargaining has been infl uenced the functioning of industrial relations sys- by temporary wage restraint policies, tems in which collective bargaining takes these limitations have been recognized as place within the framework of voluntary special conditions and restrictions. systems of conciliation or arbitration). Emphasis has been placed on the vol- Convention No. 154 refers solely to the untary nature of bargaining, which can- regulation of the “collective bargaining not be imposed by those not party to the process”. It requires States to ensure that agreement, but without prejudice to the collective bargaining is not hampered by good faith that must reign during nego- the absence of rules governing the pro- tiations. This voluntariness also extends cedure to be used or by the inadequacy or to the “auxiliary” or back-up mechanisms inappropriateness of such rules, and that behind the negotiations. Reasonable time measures taken by public authorities to periods have been demanded for imposed encourage and promote the development conciliation and mediation procedures. In of collective bargaining are the subject of principle, compulsory arbitration has been prior consultation and, whenever possible, rejected, although voluntary arbitration is agreement between public authorities and accepted. employers’ and workers’ organizations The handling of these confl ict reso- (Art. 7). It also stipulates that the measures lution systems, rooted as it is in the re- taken “shall not be so conceived or applied quirement of voluntariness and also the as to hamper the freedom of collective bar- respect of freedom of association, means gaining” (Art. 8). that it has not been possible to assign them The national legislator is set a goal the role that they ought to have in a “ma- that is conditioned and restricted by what ture” industrial relations setting. Within might be termed a principle of minimum such a setting, negotiation, consultation intervention, a collective laissez-faire wary and mechanisms for the prevention and of any legal interventions that could imply resolution of confl icts must be suffi ciently limits on the exercise of the right to col- articulated as manifestations of collective lective bargaining. Collective bargaining autonomy, and should complement and is thus seen, fi rst and foremost, as a right to support each other. Collective autonomy freedom, a substantive component of the should play a fundamental role in the con- free market economy, a “curb on curbs” duct and autonomous solution of collective by the public authorities, a sphere of au- disputes, once the “joint” procedure of col- tonomy – more precisely, of collective au- lective bargaining has broken down. tonomy. Above all, the State must abstain On the other hand, the negotiating from infl uencing or interfering with these procedure is, above all, a preliminary negotiations. phase in achieving an agreement, and it Hence, the doctrine elaborated both by is this collective agreement, as a product the Committee of Experts and by the Com- of collective bargaining, which produces mittee on Freedom of Association aims and maintains juridical effect in labour re- above all to protect the freedom to nego- lations and employment contracts. None- tiate, so that the negotiation of collective theless, Convention No. 98 does not oblige agreements is not hampered, important States to put at the bargaining partners’ subjects are not excluded from the poten- disposal an effective, binding collective tial content of such agreements, formal bargaining system, nor does it require the requirements are not imposed that might establishment of legal rules recognizing unreasonably jeopardize the viability of the standard-setting effect of collective

51 agreements. Convention No. 154 alone Protecting collective agreements – and then only concerning the regulation of the negotiating process – requires Convention No. 98 refl ects a labour relations that collective bargaining should not be epoch in which more attention was given hampered by the absence of rules gov- to disputes than to agreements or commit- erning the procedure to be used or by the ments, and this may explain the existence inadequacy or inappropriateness of such of a much more developed doctrine on the rules. recognition of the freedom to negotiate than Although the Committee of Experts on the legal protection of the collective bar- has stated that, since the aim of collective gaining system. Nonetheless, a comparison bargaining is to regulate working condi- of experiences shows that an indispensable tions through accords or agreements, such means of promoting collective bargaining is agreements should be binding and should to ensure its binding effect through legisl- take precedence unless employment con- ation or state intervention which recognizes tracts are more favourable, no doctrine the outcome of the negotiations, respects exists on the effi cacy of collective agree- the voluntary elements within agreements ments, nor on the requirements for an and ensures that they are effective within effective collective bargaining system. Of employment contracts. course, the public authorities’ respect of a In many national jurisdictions, the le- collective agreement is imposed in order gislation on collective agreements plays to prevent suspensions or derogations or a central role in the ordering, articulation to oblige the parties to renegotiate agree- and shaping of the labour relations system, ments that are already in force. However, guarantees the agreements’ effectiveness concerning the juridical value of collective and gives legal force to the social regula- agreements and their relationship to em- tory power of the trade union and employer ployment contracts, the establishment of organizations, although in so doing, it may fi rm criteria has been avoided. This is due circumscribe and orientate the develop- to the assumption that the relationship ment of collective autonomy, by establish- between employment contracts and col- ing binding criteria for the validity and lective agreements is treated differently in effectiveness of agreements. Without this different countries and different collective legal framework, which ensures that the bargaining systems. It is recognized that collective agreement is given effect, it would when the law accords the same status to not be easy for the social power of the social individual contracts as to collective agree- partners to ensure its effectiveness. ments, it neither promotes nor encourages This has given rise to a problem – that collective bargaining and that the possi- of the relationship between the law and bility of derogating from collective agree- collective agreements. This relationship ments, through individual covenants, is has been particularly dynamic in recent a matter that should be analysed case by times when, faced with the challenge of case, by examining whether or not it is fl exibility, national jurisdictions have been compatible with the agreements and the trying to assign new functions to collective principles of freedom of association. agreements. They have done so by adjust- In sum, when looking at this topic, ing the balance within both the state-de- particularly from the point of view of the rived and the collective sources of labour “promotion” of collective bargaining and law, and this rebalancing has implied a not the protection of collective bargaining profound transformation of collective autonomy as a substantive component of agreements. In many cases, they have the right to collective bargaining, the pro- ceased to be a “unilateral” instrument for tection of collective agreements is better the introduction of improvements “at the ensured vis-à-vis interventions by the collective level” and have also become an public authorities than vis-à-vis individ- instrument for facilitating wider margins ual bargaining autonomy. of fl exibility in the running of an enterprise.

52 Recent legal reforms have reduced purpose), but it does make it possible to legal regulatory levels and have estab- deduce their essential elements, as it refers lished new forms of coordination, coop- to the regulation of terms and conditions eration and the integration of the law and of employment by means of “collective collective agreements, and have increased agreements”. Recommendation No. 91 the scope for self-regulation, by reducing does give a defi nition, but from a classic substantive legal regulation while at the perspective which no longer corresponds same time increasing procedural legal reg- at all to present-day realities. Moreover, ulation as regards collective bargaining while Convention No. 98 refers to “work- processes. This has accentuated elements ers’ organizations” as parties to collective of management and bilateralism within agreements, Recommendation No. 91 also collective agreements through open rules mentions, in the absence of such organiza- on the organization of work. The broaden- tions, “the representatives of the workers ing out of the regulatory role of collective duly elected and authorized by them”, and, agreements, so that they establish more what is more, it assigns the competence to open, dynamic and adaptable norms, has decide on this to national legislation. implied a change in their functions, but In this way, the possibility of “col- also in the relationship between norms set lective” entities or representatives other by the State and those set collectively. than trade unions is recognized, as is the possibility of collective agreements separate from or outside of trade unions. Defining the collective agreement For its part, Convention No. 154, in Art. 3, permits collective bargaining with work- International labour standards have had ers’ elected representatives provided that more diffi culty than national legislation the existence of these representatives is in adapting to the deep transformations not used to undermine the position of the taking place in production systems, labour workers’ organizations concerned. relations systems and the role of collective This lack of a defi nition of the actors bargaining. Having, amongst other things, and the possibility of collective bargaining concentrated more on the freedom to bar- outside the trade unions does not promote gain than on its results, the monitoring genuine, union-based collective bargain- bodies, although they recognize the use- ing. On the contrary, it opens the door to fulness of collective bargaining in solving direct negotiations, and dangerous direct the problems of rationalizing enterprises labour relations without trade unions, thus and increasing their effi ciency, have been putting at risk the traditional methods and rather disconcerted to see how these aims structures for worker representation and are conditioned by legal measures that do even collective bargaining itself. The Com- not necessarily correspond to the principle mittee on Freedom of Association referred of voluntary negotiation which inspires to this danger, but without too much em- Convention No. 98. phasis, by stating that in “certain cases” Neither, on the other hand, has it been direct negotiations between an enterprise possible to come up with a clear, well-de- and its workers may be to the detriment of fi ned notion of what a collective agreement the collective bargaining principle. is, or of what distinguishes it from other instruments such as agreements resulting from consultation and information pro- Legislating collective bargaining cedures, from dispute-settling arrangements or from social dialogue. On the other hand, the ILO Conventions Convention No. 98 does not give a are neutral about the level of collective defi nition of “collective agreements” (nor, bargaining (enterprise, local, sectoral, na- really, does Convention No. 154, although tional). This is a matter which, in princi- it does describe their composition and ple, is left to the wishes of the contracting

53 parties and should not be decided by law, attempts to infl uence economic and social nor by the administrative judicial authori- policy decisions and legal reforms, even at ties. But more and more, in dividing up the risk of accepting certain straitjackets functions between the law and collective on collective bargaining. Social dialogue agreements, legislation assigns specifi c positions itself outside collective bargain- tasks to a given level of collective bar- ing and the culture of dispute. Contacts, gaining. In addition, the fairly widespread consultations, exchanges of information trend towards increasing enterprise-level and the quest for accords between govern- collective bargaining is posing a problem ments, employers’ organizations and trade which Convention No. 154 (and also the unions on economic and social policy is- Workers’ Representatives Convention, sues are also being promoted from within 1971, No. 135) foreshadows without re- the ILO and are refl ected in some of its solving it – the relationship not between promotional Conventions. These presup- the elected representatives and the trade pose freedom of association and the right union representatives but between the to collective bargaining, without which outcomes of consultation and informa- social dialogue could not exist. But social tion systems, which may be refl ected in dialogue processes must not be confused enterprise-level agreements, and those of with collective bargaining, nor can they collective bargaining by trade unions. substitute for it. However, the ILO instru- This problem stems from the diffi culty ments and the doctrine developed by its of drawing a line between collective bar- follow-up and monitoring bodies have not gaining proper and other processes of con- managed to establish clear borderlines sultation and information, inasmuch as between social dialogue and collective these materially lead to negotiations and bargaining nor, above all, to rule on the le- even accords which infl uence the adop- gitimacy of the limitations that social dia- tion of enterprise-level measures without logue is placing on collective bargaining. achieving a formal collective agreement To sum up, although both the ILO’s as properly defi ned. The fact that the con- Conventions and the doctrine established tent of many collective agreements centres by its monitoring bodies have done much, mainly on the protection and maintenance at the international level, to protect the of employment, rather than on working freedom to negotiate collectively, it still conditions, does complicate matters, also faces the considerable task, which is not when it comes to deciding which is bet- an easy one, of determining what might ter for the workers – to preserve jobs or to be called an international collective bar- maintain working conditions which may gaining status. The centrality of collective be unviable for the enterprise’s future. agreements within national industrial re- National judiciaries are now facing this lations frameworks does not correspond to sensitive problem, upon which the ILO the centrality of collective agreements in supervisory and monitoring bodies will the ILO’s instruments and practice. These also sooner or later have to pronounce. factors have, of course, ensured the basic Another complicating factor in the freedoms which make genuine collective collective bargaining sphere is social dia- negotiation possible, so guaranteeing the logue, a tool counterpoised to that of col- effectiveness, within national systems, of lective bargaining proper. Social dialogue the results of collective bargaining.

54 Labour law and social partnership under pressure – The Belgian case

When it comes to generating social law, Belgium’s system of “concertation” between the social partners may be judged a long-term success. However, particularly since the 1980s, successive governments have kept this concertation on a short leash. All too often, they have based themselves on the analyses of institutions like the Interna- tional Monetary Fund, whose social-mindedness is none too evident.

Valérie Jadoul Research Service Belgian General Labour Federation (FGTB/ABVV)

elgium is a European State, born in ther currently in work or registered unem- B1830 after it declared its independence ployed, plus pensioners and those on early from the Netherlands. After several re- retirement) at 76.16 per cent. The coverage forms of its structures, it is now a federal rate for collective agreements is more than State made up of three Regions which, lit- 90 per cent (OECD ﬁ gures, 2000), while tle by little, have acquired competence on life expectancy for Belgians is 81.5 years matters such as employment policy, eco- for women and 75 for men – ﬁ gures that nomic policy, environmental protection, are mainly attributed to a good level of housing, agriculture etc. social protection.

The context A few pointers

On 1 January 2005, Belgium had 10,445,852 In the nineteenth century, Belgium was inhabitants, of whom the majority a highly industrialized country (textiles, (6,043,161) live in the Flemish region and iron and steel, glass, coal-mining and speak Dutch. The rest of the population metalworking), and a pioneer of mechan- lives in the regions of Wallonia and of ization and the geographical concentra- Brussels-Capital and are, for the most tion of the productive apparatus. Working part either French-speaking (Wallonia and conditions and pay were worse than in the the Brussels-Capital region) or German- neighbouring countries. Since then, the speaking (in the “Eastern Cantons”). structure of the country’s economy and Belgium’s capital, Brussels, is also the employment has profoundly altered, as it seat of the Commission of the European has shifted from an industrial society to a Union. The Organization for Economic service-based one. Cooperation and Development (OECD) The protective social legislation cur- puts the unionization rate among blue- rently enjoyed by workers employed on collar workers at 56 per cent (in the year Belgian territory is mainly the result of: 2000). The Belgian Centre for Sociopoliti- cal Research and Information (CRISP), for social struggles (worker revolts in 1886, its part, puts the overall unionization rate strikes at the end of the First World in 2000 (for all wage and salary earners, ei- War, strikes in 1936), the setting up of

55 the fi rst trade unions and the massive the in-house work regulations which gov- infl ux into these unions at the end of ern, notably, work times and disciplinary the First World War sanctions. This law, supplemented by the 1952 law setting up the National Labour the progressive reform of the electoral Council; the 1968 law on collective agree- franchise which followed on from this ments and paritary commissions; and the and which brought the Belgian Labour creation of the High Council for Preven- Party (Parti Ouvrier Belge – the socialist tion and Protection at Work was to reform, party at that time) into parliament and institutionalize and generalize social con- subsequently into government certation. The resulting Belgian model of the draft accord on social solidarity social concertation now comprises a series (1944) agreed by the underground of characteristics. “Employers’ and Workers’ Commit- A paritary structure. Employer and tee” – the outcome of these discus- union representatives meet in equal sions between employers and workers’ numbers at various levels: the National representatives subsequently inspired Labour Council at the “interprofessional” the legislators to establish the Bel- (i.e. cross-sectoral) level, the paritary com- gian system of concertation and social missions at the level of the various sectors security. of activity and the “committees for prevention and protection at work” (i.e. the health and safety committees) at the work- Structure of Belgian place level. At the workplace level, there is social concertation another form of trade union representation, the “trade union delegation”, 1 whose The fi rst “paritary commission” (bringing tasks include negotiating workplace-level together employer and worker represen- collective agreements with the employer tatives from a particular sector, with par- (so, in this particular case, the agreements ity of representation) was set up in 1919 are not reached within a paritary body) in order to end the social confl icts raging and defending workers in the case of in- at that time, and the fi rst “national labour dividual disputes. The establishment of conference” of employers, workers and the workplace councils, committees for pre- State was held in 1936 following strikes for vention and protection at work and trade shorter hours and for paid annual leave. union delegations depends on the number But the concertation system was not offi - of workers within the workplace. cially approved until 1945 (paritary com- A recognition that the sector is the missions) and 1948, when a basic law on best level for concertation. Today, there concertation was passed – the law on the are about a hundred paritary commissions organization of the economy. and some seventy paritary subcommis- Today, this law still governs the creation sions. Within each, employers engaged of bodies whose mission is essentially con- in similar activities meet with an equal sultative. These bodies include the work- number of worker representatives from place councils – with equal representation the same sector. Some paritary commis- of the employer, by employer-designated sions are more active than others. They members of management, and of the work- have concluded hundreds of collective ers, elected by them in the workplace-level agreements on such matters as working social elections held every four years. An- conditions and pay, the right to vocational other such body is the Central Council of regrading, training schemes, “time cred- the Economy, whose basic mission is gen- its”, 2 sectoral modalities for wage indexa- eral consultation on the economic life of tion, the sectoral minimum wage, early the country. retirement, job classifi cations, employer It is worth noting that the workplace contributions to transport costs, and many councils have decision-making powers on more.

56 Limitations on state intervention. ment), “time credits” (framework agree- The freedom of negotiation of the social ment), vocational training etc. partners is recognized. As part of the draft agreement in 1944, Possible broader application of the the social security system and the bod- agreements. Subject to certain condi- ies associated with it were reformed, and tions, the State may be asked to make paritary (worker/employer) management the collective agreements mandatory and of the scheme was entrenched once and for so to widen their fi eld of application. It all. But the social partners’ involvement in should be added that the National Labour running public institutions is by no means Council, which was originally purely con- limited to the paritary control of social se- sultative, was later assigned the functions curity bodies and to the framing of social of negotiating and concluding collective law within the National Labour Council agreements at the national level. To date, or the paritary commissions. 87 collective agreements have been signed The unions and employers are also at the “interprofessional” (national, cross- closely associated with the policies fol- sectoral) level on subjects ranging from lowed in these fi elds. Any government the cross-sectoral minimum wage, temp- initiative in the social fi eld generally has to orary lay-offs and emergency leave to the be submitted, for an opinion, to the man- introduction of new working patterns agement committees of the public bodies or new technologies, early retirement, concerned and to the National Labour collective dismissals and outplacement. Council, on which the social partners are The National Labour Council also plays represented. Nor are the social partners an important role in concertation at the at all bashful about lobbying their respec- international level, notably within the tive friends in high governmental places International Labour Organization (ILO) – sometimes even while negotiations are and the International Labour Conference in progress within the offi cial concertation as well as within the framework of Euro- bodies. The social partners also sit on the pean social dialogue (EU). benches of the labour courts and tribunals, Alongside this more institutionalized alongside the professional magistrates. form of concertation, a more informal Another crucial factor is the institu- type of negotiation has developed – the tional devolution within Belgium in re- “interprofessional agreements”. These cent years. In particular, it means that the are a modern version of the old “National employment issue has been passed on to Labour Conferences”. Concluded (if any the Regions. Also, it has led to an increase agreement is reached) within the “Group in the number of forums for discussion of 10” consisting of the top union and em- between the social partners (through the ployer leaderships, the interprofessional creation of regional economic and social agreements set, for a period of two years, councils) and has multiplied the number the framework for the sectoral and/or en- of legislatures involved, although the fed- terprise-level negotiations that immedi- eral State has kept control of labour law ately follow them. The interprofessional and unemployment legislation. This insti- agreements are not regulated by the law, tutional situation has caused a bit of a stir even though one of them (and an important among the country’s different communi- one at that – on the preventive safeguard- ties – for instance, by sparking a debate ing of competitiveness) does refer to the about regional collective agreements. law. These agreements have, in fact, come Meanwhile, an effective public admin- to occupy the biggest space within social istration has been put in place to oil the concertation. They deal with matters such wheels of social consultation. The chair- as work times, workers’ travel expenses persons of the paritary commissions are (between home and the workplace), ma- public employees and their secretariats ternity leave, the cross-sectoral minimum are run by the civil service. Social concili- wage, early retirement (framework agree- ators are also made available to the social

57 partners. In fact, the conciliators are often 7. The law in its suppletive provisions. the chairs of paritary commissions. Civil 8. Individual verbal contracts (employ- servants are also often invited to take part, ment contracts). as experts, in the committees of the Na- tional Labour Council. 9. Custom. Although the fi rst social inspection services were set up very rapidly – at the end In addition, the case law created by the of the nineteenth century – they nonethe- courts and tribunals is of considerable im- less suffer from an acute lack of resources. portance. Both the Cour de cassation (the highest court on the judicial side, empowered to overturn rulings if it holds them to The sources of Belgian labour law be contrary to law, without regard to the merits of the case) and the Cour d’arbitrage As already mentioned, Belgian labour law (the constitutional court) have issued im- is derived from various sources – some- portant rulings on social issues. times legal or constitutional, sometimes In this respect, the case law created by rooted in negotiation. the Cour de cassation has sometimes been Belgian legislation includes a provision rather unfortunate. Although, in the past, establishing a hierarchy of labour law (Law this court did issue some basic rulings of 5 December 1968 on collective labour that are fundamental to the protection of agreements and paritary commissions, workers (e.g. on the right to strike), some Art. 51). The hierarchy is as follows: of its other judgements appear to have emptied the legal provisions of their con- 1. The law, in as far as its provisions are tent (protection of workers against unfair binding. dismissal, disproportionate importance 2. Collective labour agreements, where accorded to the way in which the parties these have been made mandatory, and qualify the contract). in the following order: National Labour Doctrine is also a source of inspiration Council, paritary commission, paritary for the courts, but in social law, it is unfor- subcommission. tunately all too often the product of pro- employer jurists. 3. Collective labour agreements that have Finally, the international context is not not been made mandatory, but where neutral. While the European directives on the employer is a signatory or is affi li- workplace health and safety, enterprise re- ated to a signatory organization, and structuring and enterprise transfers have in the following order: National La- had a considerable impact on Belgian law, bour Council, paritary commission, the incessant “benchmarking” of Belgium’s paritary subcommission and, fi nally, performance on fl exibility and employabil- agreements concluded outside a parity against that of neighbouring countries itary body (workplace agreements). is often partial in both senses of the word. 4. Individual written contracts (employ- But these days, such performance-related ment contracts). benchmarking techniques very often form the basis of the Government’s employment 5. Collective labour agreements con- policies and the resulting adjustments to cluded within a paritary body but not the regulations. made mandatory, provided that the employer, although not a signatory or not affi liated to a signatory organization, is within the coverage of the paritary body within which the agreement has been concluded. 6. Work regulations.

58 Some characteristic features purview of that paritary body and that the of the Belgian system employer is within the fi eld of application of the agreement. In this case, however, the employment contract may contain clauses The binding force of collective that do not accord with the agreement. labour agreements As explained above, collective agreements may be concluded at various lev- A collective labour agreement is an agree- els: the National Labour Council, which ment concluded between one or more or- deals with cross-sectoral matters; the par- ganizations of workers and one or more itary commissions and subcommissions, organizations of employers or one or more which deal with sectoral matters; and the employers. The purpose of such agree- workplace (in which case the employer ments is to determine the individual and negotiates not with the workplace council collective relations between employers but with the trade union delegation). and workers at the enterprise, sectoral or The agreements reached within the cross-sectoral level, and also to set out the National Labour Council and the paritary rights and obligations of the contracting commissions can have their fi eld of appli- parties. cation extended by an Arrêté Royal, 3 at the Those necessarily bound by the agree- request of one of the contracting parties. ment are: the employers who concluded This means that they will be binding on it (in the case of enterprise-level agree- employers and workers who were, up to ments); employers who are members of the then, only suppletively bound. Moreover, employers’ organization that concluded for the Cour de cassation, an agreement that it; employers who become party to the has been made mandatory by the King agreement and those who are members constitutes a law within the meaning of the of an organization that has become party judicial code. So a judicial ruling that runs to it; and all the workers (unionized or counter to it can be appealed and possibly not) of an employer who is bound by the reversed. And non-respect of agreements agreement. that have been made mandatory is subject This means that an employment con- to penal sanctions. The future adoption of tract or a set of work regulations which, a draft code of social penal law is unlikely in part, runs counter to the collective to change this. agreement is, in part, null and void. How- It should be noted that sectoral and ever, provisions within the employment workplace-level negotiations are generally contract that are more favourable to the inspired by the content of the “interpro- workers than those in the collective labour fessional” (cross-sectoral) agreement that agreement do remain valid. Even when the chronologically precedes them. If it has agreement has expired, the modifi cations not been possible to reach an interprofes- that it has implicitly made to the employ- sional agreement, the climate during the ment contract are maintained (theory of sectoral or workplace-level negotiations is the incorporation of the collective agree- tense and they often take longer, but it is ment into the employment contract), but rare for them not to reach a conclusion at they lose their binding force. They can this level. then be modifi ed in such a way that they If the coverage rate of the collective are less favourable to the workers. labour agreements is so high (more than Suppletively bound by the agreement 90 per cent), this is due in particular to the are those employers who are not mem- provisions just discussed, governing the bers of a signatory organization, and their fi eld of application of these agreements. workers, provided that the agreement is According to the OECD, the 10 per cent of concluded within a paritary body (the Na- workers not covered are in the informal tional Labour Council or a paritary com- sector or are outside the scope of normal mission), that the employer is within the employment contracts.

59 Trade union rights procedure) and call for the disputed acts to cease, under pain of fi nes. The Belgian legislature deliberately ab- The authors of a study on the rulings stained from setting the parameters of the issued during the trade union action of right to strike. When the legislation men- October 2005 conclude that, generally, the tions it at all, it confi nes itself to specify- courts found that preventing those wishing some particular aspect of the phenom- ing to work, or third parties, from enter- enon, such as by: ing an enterprise did constitute assault, regardless of whether or not violence was placing conciliation bodies at the dis- used. Some judges even accepted “pre- posal of the parties to the dispute (par- ventive” requests that did not cite any itary commissions, social conciliators, concrete grounds for supposing that as- the social inspectorate); sault “might” be committed. These rul- ensuring that the strike does not com- ings place considerable restrictions on the promise the meeting of certain vital right to strike and are not compatible with needs of the population and does not the jurisprudence established by the ILO cause irremediable damage to the Committee on Freedom of Association means of production. The modalities and the European Committee of Social are defi ned by the paritary commis- Rights, which monitors compliance with sions or, by default, the civil power. the European Social Charter. In practice, these provisions are rarely In this respect, the mutual understand- applied; ing reached by the social partners in 2002, in a bid to revive the effectiveness of the stipulating the effects of the strike on social conciliation processes and to pre- entitlement to certain social benefi ts; vent, among other things, overly hasty prohibiting recourse to replacement employer recourse to the courts, has been contracts and temporary work in the seriously strained. Moreover in 2005, the case of a strike. Minister of the Interior issued a circular which led some Governors 4 to ban certain The right to strike was generally inferred acts that are inherent to the right to strike, from the law of 1948 on the performance of under pain of penal sanctions. The provi- tasks in the general interest during peace- sion invoked, unjustifi ably in our view, is time, but since then, it has been proclaimed Article 406 of the Penal Code, which pro- in certain international instruments rati- hibits “malicious obstruction of traffi c”. fi ed by Belgium: the UN’s International Covenant on Economic, Social and Cul- tural Rights (19 December 1966) and the Pay European Social Charter. While the Cour de Cassation has con- Wage fi xing, originally left up to collective fi rmed that taking part in a strike is not, bargaining is still, today, governed by the per se, an illicit act, the employers have law of 26 July 1996 “on the promotion of been trying, for several years now, to get employment and the preventive safe- the courts to prohibit certain modalities guarding of the competitiveness of enter- or acts that are allegedly “separable” from prises”. This law is undoubtedly the most the strike itself (picketing). According to striking example of State intervention in them, such action is tantamount to assault collective bargaining – apart from the pay and infringes on the property rights of freeze and the temporary suspension of the enterprise or the freedom to work of index-linking decided by the government those workers who are prevented from en- during the 1980s as part of a wage moder- tering the premises. The employers bring ation policy. these cases by “unilateral request” (a pre- This law also legitimizes recourse to ventive, exceptional and non-adversarial “interprofessional” agreements, as it makes

60 explicit reference to them. Its purpose is to ered a success. However, particularly since preventively keep Belgian wage develop- the 1980s, social concertation has been ments in line with those in Belgium’s main strongly oriented by successive govern- trading partners, namely France, Germany ments (for example, as regards wage fi xing and the Netherlands. To that end, the Cen- and, more recently, the drive to increase tral Council of the Economy has the task older workers’ participation rate), whereas of preparing an annual technical report on it was originally conceived as something the maximum margins available for the that happened between two parties – the evolution of wage costs. It bases its assess- workers’ representatives and the employment on wage developments over the past ers’ representatives. The government two years and expected developments in sometimes justifi es this strong-arming by wage costs over the next two years within its wish to “stimulate” the conclusion of the three reference countries. “agreements” when social concertation On the basis of this technical report, breaks down. The most recent interprofes- the social interlocutors – or, if they fail to sional negotiations and the 2005 push to agree, the government – fi x, for the period raise the retirement age are no exceptions under negotiation (i.e. the two-year span to this interventionist policy. of the interprofessional agreements), the This state of affairs would not greatly maximum per centage increase in wage bother any of the parties, and would still costs. This indicative (non-mandatory) be fairly much in line with basic ILO prin- maximum margin includes, as a mini- ciples, were it not for the fact that the gov- mum, wage indexation and increments ernment’s thinking is often inspired by the due to seniority, age, normal promotions views of certain international bodies such and individual changes of category as laid as the IMF and the OECD and by incessant down in collective agreements. In prin- benchmarking against other countries, ciple, all wage-related entitlements are thus calling into question the checks and included in the margin, even the overall balances achieved in Belgium. increase in nominal wage costs due to a It has to be said that intervention by Bel- reduction in working time. gian governments has sometimes, over the past 25 years, tipped the balance towards one of the social partners, and this has had Recent developments certain consequences for the evolution of social legislation and protection. As we have seen, Belgian social law has Finally, while in some countries, such been mainly a product of social concer- as France, it is the unions who brandish tation. This is true of the many juridical the judicial weapon and interim injunc- instruments developed and negotiated by tions against the employers (notably as the social partners (collective agreements regards checks on the quality of the in- concluded within the National Labour formation provided by employers in the Council, the paritary commissions and the case of restructuring), in Belgium, it is the workplace, work regulations agreed within employers who rule that particular roost workplace councils where these exist, in- by successfully asking judges to intervene terprofessional agreements, etc.), but also in collective disputes. of parliamentary or government initiatives In October 2005, the Belgian Federal since, by law, any initiative on social issues Public Service for Employment, Labour must be submitted to the National Labour and Social Concertation organized a Council and to the management commit- seminar on Social Dialogue in Belgium. It tees of the public bodies in which the so- pointed to a number of “new” parameters cial partners are represented. which the social partners absolutely had As far as the production of social law is to take into account, including the glo- concerned, the Belgian style of social con- balization of the economy, the broader certation may, in the long run, be consid- scope of the dossiers submitted to the

61 partners, the Europeanization of the so- (corrective mechanism if the pay margin cial agenda, the politicization of social is exceeded), training, innovation and di- concertation, the mediatization of social versity in the workplace (an anti-discrim- concertation and the lack of vision in ination measure). terms of “change management”. The future of the Belgian social con- And when it comes to labour condi- certation model will no doubt depend on tions, the unions are having to face ab- the ability of all the protagonists to (re)act, sentee employers (in other words, the despite an extremely unfavourable context, employers are “elsewhere”), a continuing but also in part on the attitude of future increase in the number of unemployed Belgian governments to this issue. union members, the individualization of labour conditions combined with the con- version of fi xed costs into variable costs Notes (bonuses, stock options), and the almost 1 Throughout this article, the phrase “trade total absence of trade union representation union delegation” is used in its precise Belgian sense, in small and medium-sized enterprises, namely the offi cial representation of a trade union which employ roughly 50 per cent of the within the workplace or enterprise. “Delegates” workers in Belgium, as well as sustained are workplace-level union representatives, roughly government bids to make access to work equivalent to shop stewards. – Ed. more fl exible (temping) and to give more 2 Under the “time credit” system, workers can opt to reduce or suspend their professional activities weight to enterprise-level negotiations. In for a certain length of time, without ending their em- this context, given that negotiations (when ployment contracts. They therefore continue to enjoy they really happen at all) are becoming tri- the same degree of protection against dismissal and partite, the situation of the unions and the are entitled to go back to the same job or an equiva- workers is sometimes untenable. lent one. During these career breaks, an “interruption grant” is paid by the unemployment insurance Meanwhile, as if to prove that Belgian system. – Ed. concertation is alive and well, the top lead- 3 An Arrêté Royal (Royal Order) is a federal de- ers of the employer and union organiza- cree governing the practical application of a law. tions (the “Group of 10”) have just reached – Ed. agreement on a declaration dealing at one 4 Each Belgian province is headed by a Gover- and the same time with competitiveness nor – Ed.

62 Trade unions and the law – An Australian overview

For more than one and a half centuries, trade unions in all parts of the world have been able to ensure that improvements in peoples’ working conditions are gradually built into labour legislation, securing legal rights for the workforce and their representatives. This body of legislation is now under threat in many countries. Sadly, Australia’s Federal Government has taken the lead in this movement and has been found in breach of freedom of association by the ILO supervisory bodies. Yet the Australian case may also serve to highlight the strength, importance and effectiveness of the relationship between trade unions and labour lawyers in challenging the deregulation moves and seeing to it that workers’ rights are not sacrificed on the altar of labour market flexibility.

Mordy Bromberg S.C. Senior Member of the Victorian Bar Vice-President of the International Centre for Trade Union Rights (ICTUR) President of the Australian National Committee of ICTUR Australia

ver the past three hundred years, Broadly defi ned, trade union rights Otrade unions have developed into a encompass all the rights and freedoms number of forms with very different pol- which are essential for the existence, and itical, economic and legal climates infl u- the effi cient and effi cacious functioning encing both their development and their of democratic trade unions in their role ability to defend and further the interests of defending and furthering the interests of their members. of their members. Of fundamental impor- The focus of this article is principally tance in this respect is freedom of asso- on the contemporary political and legal ciation which requires that workers have climate in Australia and in particular the right to form their own trade unions the way in which the federal legislative or organizations and to join them freely framework in place from time to time has with guarantees that these unions or or- impacted on the ability of trade unions in ganizations are able to function without Australia to undertake what may be de- interference from the public authorities. scribed as their core task, that of defending Rarely, however, have trade unions or and furthering the interests of their mem- other workers’ organizations been able bers.1 However, it is only since 1996 that to function without interference from the this impact can be described as adverse. public authorities. Such interference has Prior to this time the federal legislative manifested itself in various guises over framework was generally supportive of time, including the incitement of public trade unions through the provision of such opposition to trade union formation or ac- rights as union preference, right of entry tion and/or legislation that either renders and the right to achieve comprehensive trade union formation illegal, with con- and binding awards. comitant severe penalties for attempting

63 to form and organize trade unions or that they controlled…The strikes were represented places severe restrictions on trade union as insurrection and treated as such, with the activities. As the eighteenth-century cap- full force of troops, police, law courts, and pul- italist economist Adam Smith noted in The pit brought to bear against the strikers. Anyone Wealth of Nations: who dared to champion the cause of the workers got short shrift…. 4 [When workers combine] masters … never cease to call aloud for the assistance of the civil One consequence of these momentous magistrate, and the rigorous execution of those events was that they induced the trade laws which have been enacted with so much union movement to move towards giv- severity against the combinations of servants, ing support to a system of compulsory labourers and journeymen.2 conciliation and arbitration – that is, to endeavour to use the law as a means of It is axiomatic that the legislative envir- trying to force employers to negotiate with onment in place from time to time in any them. While not all union leaders or union given country will have a direct effect members agreed with this course of action, on both trade union formation and trade by the late 1890s it was clearly set in train union activity. and was buttressed by the fact that trade unions had moved to form the Labor Party which helped to overcome their distrust of Australia – Trade unions prior to 1990 the State and ultimately achieve workable and acceptable compulsory conciliation The events, factors and motivations giving and arbitration legislation.5 rise to the system of compulsory concili- The Commonwealth Conciliation and ation and arbitration in Australia early last Arbitration Act 1904 (the C & A Act) estab- century have been thoroughly canvassed lished a Federal Court of Conciliation and elsewhere.3 Suffi ce to say for present pur- Arbitration with a broad range of powers, poses that the early 1890s was a turbulent including the power to make compulsory period in Australia’s history. This period awards in settlement of industrial disputes was characterized by an economic crisis that crossed the boundaries of the Austral- which constituted a severe depression by ian States. Collective agreements arising any standards, and by an unprecedented from conciliated disputes could be regis- wave of industrial unrest. The trade union tered and be binding as awards. Strikes, movement became involved in a series of lockouts and the fl outing of awards were major disputes which involved strike ac- subject to penalties. An important part of tion in the maritime industry in 1890 en- the legislative framework of compulsory compassing a broad range of associations, conciliation and arbitration was the estab- including the marine offi cers, seaman lishment of a registration system for or- carters, shearers, wharf labourers and coal ganizations of employers and employees. miners, and others in support, strike action Through registration these organizations by miners in 1892 and by shearers in 1894. obtained corporate status and offi cial rec- These strikes resulted in crippling defeats ognition as part of the federal industrial for the trade union movement. Hutson de- system, with the ability to initiate and/or scribes the strikes in this way: be parties to industrial disputes. Over time the Court’s powers of compulsory con- [44] Each [strike] lasted a few months, but ciliation and arbitration came to be vested they were part of the general struggle between in an independent tribunal which has capital and labour as to who was to carry the assumed various forms, with its present main burden of the economic depression. It was manifestation being the Australian Indus- fought with a fury and bitterness unknown trial Relations Commission (the AIRC). before or since in Australia, for the employers A key factor in union support for the made ruthless use of the state machinery which system of compulsory conciliation and

64 arbitration was that it secured basic organ- headway. Indeed, the majority of employ- izational rights. As Rimmer has observed ers came to accept the system and by 1950, of the C & A Act: “the structure and functions of employers’ associations had come to refl ect the An original object of the Act (deleted in 1996) needs of operating within the arbitration was “to encourage the organisation of repre- system.” 9 sentative bodies of employers and employees Over time the federal system of com- and their registration under the Act”. Regis- pulsory conciliation and arbitration pro- tered organisations were guaranteed the rights vided the means by which unions pursued to compel employers to attend hearings, to ob- their core task of defending and furthering serve awards, and for unionists to have prefer- the interests of their members with consid- ence in employment.6 erable success as evidenced by: the extension of federal tribunal and The C & A Act guaranteed rights of union federal award coverage of the major access to the workplace. industries in the Australian economy; It is not surprising that with the passage of the C & A Act employers sought to the general adherence to, and compli- make the legislation unworkable. Accord- ance with, award obligations; ing to Plowman the employers: the right to preference in employment for union members; … attempted to frustrate the arbitration sys- the right of union representatives to tem by refusing to register their associations enter workplaces for the purposes of … by establishing and having registered bogus organizing and recruitment and to en- unions … by deliberately lengthening proced- sure award compliance; ures and choking the Court with work … and by using legal representation to increase costs the ability to improve conditions of em- to unions.7 ployment in a range of areas including redundancy, termination of employ- But the employers’ most determined bid ment and parental leave through the to undermine, and reduce the infl uence of, prosecution of test cases in the federal the federal system of compulsory concili- tribunal. ation and arbitration was by way of legal action. The employers mounted numer- The system and the rights and entitlements ous legal challenges to the federal system it bestowed on participants within it, par- which were highly successful in restricting ticularly trade unions, remained largely the scope of federal conciliation and arbi- intact until the election of conservative tration until 1913. While this legal strat- state governments in the early 1990s and egy proved to be less successful after this the Howard conservative federal govern- time the conservative forces in Australian ment in 1996. society continued their opposition to the federal system of compulsory conciliation and arbitration.8 Industrial relations from In 1929 an attempt by the Bruce con- the early 1990s onwards servative federal government to remove itself from the fi eld of industrial regulation The federal industrial system along with resulted in not only defeat for the govern- state industrial systems that were also ment at the ensuing election but also in premised on compulsory conciliation and Bruce losing his own seat of Flinders. arbitration started coming under sustained While some employers and conserva- attack from the mid-1980s as the quest for tive elements persisted in their calls for greater labour market fl exibility, effi ciency, the abolition of the federal system after productivity and economic competitiveness 1929, in reality they made little legislative (particularly international economic com-

65 petitiveness) gained pace. The early 1990s The Howard Government’s saw the increasing adoption of aggressive 1996 legislative reforms “individualisation” and “de-unionisation” strategies by some employers coupled with Upon the election of the Howard conserva- the introduction of “de-collectivist” labour tive federal government to offi ce in 1996 laws by some conservative State govern- the pivotal and traditional role of trade ments. These laws were designed to wind unions came under the sort of overt and back the legal rights that had traditionally sustained attack which had typifi ed the been accorded to trade unions, to under- early years of the last century. Speaking mine collective bargaining and to encour- at a Young Liberals Conference shortly age and foster an individualistic model of before his election as Prime Minister, industrial relations based on freedom of John Howard made clear his vision for choice and freedom of contract.10 “decollectivizing” the federal industrial At the federal level the Hawke and relations system: Keating Labor Governments sought to respond to these pressures: [T]he goals of meaningful reforms, more jobs and better higher wages, cannot be achieved … initially through the “award restructuring” unless the union monopoly over the bargain- and “structural effi ciency” processes in the late ing processes in our industrial relations system 1980s; and then (when these processes proved is dismantled.12 insuffi cient), through the introduction of “enterprise bargaining” from the early 1990s. It came as no surprise that the Howard While Labor’s enterprise bargaining re- Government immediately sought to forms facilitated the desired shift towards an take the process of decentralizing and enterprise focus for workplace agreement-mak- deregulating the federal industrial sys- ing, they contained two important safeguards tem considerably further than its Labor for workers: fi rst, agreements were subject to predecessors. close scrutiny by the Australian Industrial Rela- The passage of the Workplace Relations tions Commission (AIRC), to ensure fair treat- and Other Legislation Amendment Act ment of employees in both the making and con- 1996 (the WROLA Act) 13 went some way tent of agreements; and secondly, enterprise towards achieving the professed aims of agreements were subject to the “no-disadvan- the Howard Government: tage” test which required that employees not be worse off compared with their terms and condi- The Act stripped back the content of awards tions under any relevant award or law. Further, necessitating that unions protect workers’ en- enterprise or “certifi ed” agreements had to be titlements by attempting to push award stipu- collective in nature, although, controversially, lations into enterprise agreements. It seriously Labor’s 1993 reform legislation permitted the curtailed the ability of the AIRC to intervene in making of these agreements without the in- industrial disputes and introduced hefty fi nes volvement of trade unions.11 for unions taking “unprotected” action. The Act introduced individual Australian Work- Notwithstanding these reforms, the role place Agreements (AWAs) which excluded of trade unions within the federal sys- unions. A range of other changes in the Act tem, (although somewhat attenuated) still made it more diffi cult for unions to access and remained pivotal to the operation of the to represent workers and easier for employ- system. ers to choose whether, and to what extent, they would negotiate and bargain with the collective representatives of their workers. As such the Act has been identifi ed as enshrining a “decollectivist” ethos in the regulation of employment. Another effect was that it signalled the diminution of formal and external regula-

66 tion of work and workplaces through awards independent international organization and the intervention of the AIRC.14 and was granted accredited status with both the UN and the ILO. In addition the Act contained an array of In a substantial submission to the Aus- measures speciﬁ cally aimed at removing tralian Senate Committee charged with or restricting the rights that trade unions the function of reviewing the Howard had enjoyed in the federal system and Government’s draft legislation, a panel destabilizing established union structures of experts, assembled by the Australian and patterns of union coverage primarily National Committee of ICTUR, identi- through the encouragement of competition ﬁ ed a range of areas where the proposed between unions, expanding the rights of legislation was in serious breach of Aus- non-unionists. Such measures included: tralia’s international obligations. These obligations in respect of employment arise … provisions for the creation of new “enter- through a number of sources including the prise unions”, and for disaffected union mem- ILO Constitution, ILO Conventions and bers to “disamalgamate” from large industry UN Declarations. Not surprisingly, the unions. The monopoly representation rights Howard Government chose to ignore such that unions long held … were weakened. concerns. As a result, the ILO’s Commit- Award and enterprise agreement provisions tee of Experts has repeatedly found that for “closed shops”, or other forms of union se- the Howard Government’s 1996 legislation curity, were banned. Union “rights of entry” contravenes fundamental ILO Conven- for recruitment and compliance purposes were tions on freedom of association and the limited through the introduction of permit and right to bargain collectively.16 notice requirements. Further, legal protections What impact did the 1996 legislative available to union members under the “free- reforms have on union activity? Quite dom of association” provisions (such as protec- clearly the reforms created a more hostile tion from victimization) were also extended to industrial environment for trade unions non-members.15 characterized by an inability to maintain comprehensive award protection for mem- The legislation was accompanied by an ag- bers, given the limits placed on the award- gressive push by the Howard Government making and dispute-resolution powers of towards individualization of employment the AIRC, diminished rights in respect of relations in the federal public service and bargaining and access to workplaces and the higher education sector through the increased employer militancy particularly offering of AWAs. directed to efforts to individualize the em- These legislative reforms were opposed ployment relationship. by the Labor Party, the union movement Thus far, trade unions and the trade and a range of other organizations and union movement as a whole have re- individuals. One such organization was sponded to this increasingly hostile en- the International Centre for Trade Union vironment by putting in place a range of Rights (ICTUR). ICTUR is an international strategies including activist organizing organization which is dedicated to de- strategies emphasizing renewal at the fending and promoting the rights of trade workplace, 17 and legal strategies, which unions and trade unionists throughout the are of particular interest in the context of world. In carrying out its activities ICTUR this article. seeks recognition of, and adherence to, in- Working closely with labour lawyers, ternationally accepted labour rights such unions have skilfully and creatively used as those embodied in Declarations of the the provisions of the Workplace Relations United Nations (UN) and Conventions Act 1996, particularly the freedom of as- and Recommendations of the Interna- sociation provisions, to thwart employer tional Labour Organization (ILO). In 1993 restructuring and individualization ICTUR was recognized as an important, strategies and protect the interest of their

67 members. In referring to the freedom of The Howard Government’s association provisions Forsyth and Suth- 2005 legislative reforms erland write: The “Work Choices” legislation enacted by In a number of high-profi le cases, unions the Federal Parliament in 2005 19 builds on have used the provisions to obtain interim the 1996 legislation and other policy meas- injunctions, preventing employers from im- ures pursued by the Howard Government plementing strategies that could be shown to that have restricted the activities and un- be “tainted” by impermissible anti-union or dermined the traditional legal rights of, “de-collectivization” objectives. So, for exam- and security previously enjoyed by, trade ple, the corporate restructure and subsequent unions in Australia. The aggressive and termination of union members’ employment unashamedly anti-union, anti-worker na- undertaken by Patrick Stevedores in the 1998 ture of the legislation (as briefl y outlined waterfront dispute fell foul of the freedom of below) is only likely to buttress the already association provisions; as did the outsourcing strong relationship that exists between of home care functions by a local council; and trade unions and labour lawyers in Aus- attempts by the Commonwealth Bank to place tralia, as creative legal strategies will need its entire workforce on individual workplace to be developed to meet this renewed as- agreements, and (a few years later) to create sault on the interests of unions and work- a subsidiary entity as a basis for individual- ers in Australia. izing employment relations in one of its busi- It is not the intention of this article to ness units.18 deal with the reforms brought about by the “Work Choices” legislation in any great These cases serve to highlight the strength, detail but to focus on the more salient anti- importance and effectiveness of the re- union, anti-worker aspects of it. lationship between unions and labour The “Work Choices” legislation seeks lawyers in Australia in terms of protect- to close the door on many avenues for ing the interests of workers. There can be effective union organization and represen- little doubt that if the employers in the tation while at the same time encouraging above cases had succeeded in implement- and further facilitating the move towards ing their respective restructuring and in- the individualization and de-collectiviza- dividualization strategies it would have tion of employment relations in Australia. emboldened other employers to pursue Under the “Work Choices” legislation: similar strategies designed to erode or re- the AIRC has been stripped of its com- move the protections traditionally enjoyed pulsory conciliation and arbitration by their employees. functions. It will no longer be empow- But of course the existence and impor- ered to deal with industrial disputes on tance of the relationship between trade anything other than a voluntary basis; unions and labour lawyers is not confi ned to Australia. For example, the Australian the scope of awards is further attenu- National Committee of ICTUR was in- ated with the removal of a raft of other strumental in establishing a Trade Union matters that can be the subject of award Rights Centre in Jakarta, Indonesia. This regulation, thus further marginalizing centre is largely staffed by labour lawyers the role of awards in collective agree- who work closely with unions and trade ment making; unionists in Indonesia, in devising and collective and individual agreements implementing legal strategies designed to are no longer tested against the appli- protect and promote the interests of work- cable award but a mere fi ve minimum ers which are all too often under attack conditions of employment; from employer interests. the AIRC is no longer to have any role in vetting workplace agreements;

68 the effi cacy of collective agreements Notes and awards is severely curtailed in that 1 This article does not canvass the legislative ar- an individual employment agreement rangements in place from time to time in the various (AWA) will wholly displace the opera- Australian States. tion of a collective agreement and/or 2 Smith, A. 1976. “An Inquiry into the Nature and award; Causes of the Wealth of Nations”, in R. H. Campbell and A. S. Skinner (eds.) (London, Oxford University union right of entry to workplaces has Press), Vol. 1, p. 85. been severely restricted; 3 See Macintyre, S. and Mitchell, R. (eds.). 1989. Foundations of Arbitration: The Origins and Effects of it is prohibited to include a range of mat- State Compulsory Arbitration, 1890-1914 (Melbourne, ters in workplace agreements including Oxford University Press). trade union training leave, mandating 4 Hutson, J. 1983. Penal Colony to Penal Powers, union involvement in dispute resolu- rev. ed. (Sydney, AMWSU). tion and providing a remedy for unfair 5 See Rimmer, M. 2004. “Unions and Arbitra- dismissal. Any attempt to include such tion”, in The New Province For Law and Order, J. Isaac and S. Mcintyre (eds.) (Melbourne, Cambridge Uni- matters will result in substantial fi nes versity Press), p. 277. ranging up to AU$33,000; 6 Rimmer, ibid., pp. 281-282. signifi cant and time-consuming obsta- 7 Plowman, D. “Employers’ Associations and Com- cles have been placed in the way of a pulsory Arbitration” in The New Province For Law and Order, J. Isaac and S. Mcintyre (eds.) op. cit., p. 241. union wishing to take “protected” in- 8 dustrial action. Plowman, ibid., p. 244. 9 Plowman, ibid., p. 257. 10 See generally: Deery, S. and Mitchell, R. (eds.) These further reforms are clearly designed 1999. Employment Relations: Individualisation and to bolster the power and bargaining pos- Union Exclusion – An International Study (Sydney, ition of employers while at the same time The Federation Press). weaken unions by further restricting their 11 Forsyth, A. and Sutherland, C. 2006. “Col- activities and undermining their trad- lective Labour Relations under Siege: The Work Choices Legislation and Collective Bargaining”, in itional rights and structures. Collective 19 Australian Journal of Labour Law (forthcoming) bargaining will inevitably be undermined (footnotes omitted). by the blatant encouragement of individu- 12 Cooper, R. 2005. “Life in the Old Dog Yet? alized agreement-making. ‘Deregulation’ and Trade Unionism in Australia”, in There can be little doubt, as ICTUR Labour Market Deregulation – Rewriting the Rules (The Federation Press, Sydney) p. 95. pointed out in its submission to the Aus- 13 The WROLA Act substantially amended what tralian Senate Committee charged with was previously titled the Industrial Relations Act 1988 the function of reviewing the 2005 legisl- including amending the name of that Act to the ation, that the legislation has compounded Workplace Relations Act 1996. Australia’s breaches of its international 14 Cooper, op. cit., p. 95. obligations and generate further criticism 15 Forsyth, A. and Sutherland, C. 2006. “From from the supervisory bodies of the ILO. ‘Uncharted Seas’ to ‘Stormy Waters’: How Will Trade Unions Fare under the Work Choices Legislation?”, in Unions and labour lawyers face a re- Economic and Labour Relations Review (forthcoming). newed challenge to ensure that the inter- 16 See, for example, Report of the Committee of Ex- ests of workers continue to be protected as perts on the Application of Conventions and Recommen- far as possible under the new legislation dations, 86th Session, ILC, 1998, Report III (Part 1A), pp. 222-224. and not sacrifi ced on the altar of labour 17 market fl exibility, particularly given that See generally: Forsyth, A. and Sutherland, C. “From ‘Uncharted Seas’”, op. cit.; Cooper, R., op. cit. the Howard Government has not been 18 Forsyth and Sutherland. ibid., p. 16 (footnotes able to establish any proven link between omitted). labour market fl exibility and increased 19 Workplace Relations Amendment (Work Choices) productivity or employment creation. Act 2005 (Cth).

The outlook for African labour law – Between the OHADA way and the World Bank recommendations

The context within which labour law will be developing in Africa at the dawn of the twenty-first century is marked on the one hand by an attempt to achieve regional labour law uniformity, launched by the Or- ganization for the Harmonization of Business Law in Africa (OHADA), and on the other by the new World Bank “conditionalities” aimed at flexibilizing – also in a uniform way – the whole body of provisions governing recruitment, working times and dismissals. Although their objectives may look similar – to facilitate economic growth and development – the main difference between the OHADA and World Bank initiatives is that the first seeks African economic and social cohesion, whereas the latter is promoting a predetermined economic model.

Georges Minet Corinne Vargha Senior Labour Law Specialists Social Dialogue, Labour Law and Labour Administration Department (DIALOGUE) ILO, Geneva

“ he important thing is to be convinced been submitted to a Council of Justice Tthat effective economic solidarity is Ministers and, after approval by Heads of a precondition for Africa’s economic and State and a unanimous vote, they would social development. But this solidarity have taken effect ipso facto in all the States. … cannot exist without the support of a The founding of the Organization for the relatively uniformized, relatively homog- Harmonization of Business Law in Africa enized, suffi ciently muscular juridical (OHADA) in 1993 under the Treaty of Port- order.” These remarks, aimed at halting Louis shows the ongoing nature of this the effects of a double balkanization – “a ambition, and represents an achievement political one, which the African States in the quest for African juridical unity. never wanted” and “a juridical one, for OHADA has set itself the task of over- which they are themselves responsible” coming the juridical and judicial inse- – were made 35 years ago by an eminent curity which exists in its Member States, so African lawyer.1 as to restore confi dence among investors and economic operators and contribute to the emergence of a climate favourable to OHADA or the quest development. By so doing, OHADA is sat- for African juridical unity isfying the requirements that are summed up by the concept of “good governance”, And indeed, back in 1963, a proposal for a which includes a component on comfort- legal harmonization bureau had already ing the rule of law. Nor was there any lack been fl oated – the uniform codes and laws of praise for the “remarkable dynamism”, that it would have drafted were to have “realism” and “political maturity” of those

71 African States – 17 to date 2 – which have the debate on the content itself, and indeed united in order to harmonize their busi- on the purpose of a future Uniform Act on ness law within this framework. They labour law. have fully “understood that an economic Despite its name, OHADA has set out zone cannot really exist unless enterprises to achieve the unifi cation of law, and not fi nd everywhere, in all the countries of the merely its harmonization.5 Article 10 of the region, one single legality, which is modern Treaty leaves this in no doubt – Uniform and which dynamizes and simplifi es life Acts “ are directly applicable and over- for enterprises instead of hobbling them – a riding in the Contracting States notwith- legality which preserves the fundamental standing any confl ict they may give rise civilizational values of the countries con- to in respect of previous or subsequent cerned”.3 The mission assigned to OHADA enactment of domestic laws.” This direct is indeed in the spirit of what is known as effect is reinforced by Article 9, which “afro-realism”. Of course, the daringness divests the national executive bodies of of this initiative was certainly also noted, their power of promulgation: no decree is and is perhaps nowhere more clearly seen needed for the Uniform Acts to take effect, than in its ambition to regulate the fi eld of and OHADA law automatically acquires labour relations! the status of positive law within the in- It is important to state at the outset what ternal order of the States. The precedence OHADA is not – the umpteenth regional to be taken by the Acts over national law grouping on a continent already weighed has been confi rmed by the Organization’s down by their proliferation – and what it is Common Court of Justice and Arbitration.6 – a tool for juridical uniformization, at the A Uniform Act on labour law will therefore service of African regionalism. But only the replace all or some of the provisions of the content of this harmonized law can reveal labour codes in each member country. to which kind of regionalism its members wish to contribute the powerful support of juridical integration. In this sense, the Is labour law harmonization explicit inclusion, in Article 2 of the Treaty, desirable and feasible? of labour law among the aspects to be harmonized may possibly indicate the choice In 1999, the Organization’s Council of of a social dimension, embodied in a uni- Ministers offi cially placed labour law on form “labour code”, this being character- its harmonization agenda. Aware of the istic of integration movements responding “delicate and complex” nature of this sub- to political objectives (“deep integration”). ject, the Council instructed the Permanent On the other hand, it may simply be part Secretariat to “associate closely with the of a commercial regionalization process, process of harmonization the Ministers pursuing mainly economic aims (“shallow with responsibility for Labour and the so- integration”). So what is at stake in the har- cial partners of the States Parties”. In 2002, monization of labour law within the frame- the Council of Ministers confi rmed the work of OHADA is, as P. G. Pougoué puts need to adopt a Uniform Act on labour law, it, 4 “the writing of a social and economic thereby launching the elaboration process cohesion”. As it raises “the question of a for the fi rst draft of an Act. social model”, it necessarily goes beyond It should be emphasized here that no- the issue of business law in the narrowest body disputed the appropriateness of em- sense. Thus, the organization is seen for barking on this work. The most that can be what it really is – a vehicle for general jur- said is that a certain scepticism soon crept idical integration, covering the broad fi eld in when the exercise ran into diffi culties. of economic and social regulation. Obvi- In the nature of things, it was a less easy ously, recognizing this dimension, as the task than those which had gone before it, social actors in the region have not failed as they had all concerned areas of business to do, entails widening the parameters of law well suited to a thoroughly technical

72 approach. But nowhere was its usefulness One is to place greater emphasis, as the challenged in principle. Indeed, the har- present draft already does, on recourse monization of labour law is among the to the technique of referring back to na- strategies recommended by the Plan of tional legal regulations on some points. Action for Promotion of Employment and The important thing here is to distinguish Poverty Alleviation. Adopted in 2004 by clearly between, on the one hand, points the African Union’s employment summit concerning the principles, orientations in Ouagadougou, the plan advocates “har- and essential elements of labour law, as monizing and coordinating labour legisl- laid down by the Uniform Act, and, on ation and investment codes in order to at- the other, peripheral issues or questions tract investors”. It also seeks to “strengthen of implementation, which belong at the cooperation of regional economic commu- national level. nities to promote more economic oppor- The other approach is to stop con- tunities through harmonization of labour sidering the level of uniformization in laws and regulations, establishing mutual terms of scope, and instead to regard it recognitions of training and skills devel- as a hierarchy of standards. In that case, opment systems, business and investment one would be moving towards the adop- opportunities”. tion of a Uniform Act on a body of “Fun- While the scale of the task that the Or- damental Principles concerning Labour ganization has set itself in this fi eld is un- Law” to which the States Parties to the deniable, the feasibility study prepared for Treaty must commit. This core could, in the ILO by Professor Béraud took a posi- particular, refer to the international lative view of the project, concluding that bour standards, whether or not they have an act in the fi eld of labour law “could been ratifi ed by all of the States Parties. certainly cover a suffi ciently coherent set Such an approach would make it possible of issues to make it a real uniform Labour to construct a Uniform Act that would be Code” – even if it “seems diffi cult (for it) a pledge of progress by all of the OHADA to present the same degree of imperative States Parties. It would also have the ad- force on all the issues”. Nonetheless, “the vantage of keeping within the national objectives assigned to OHADA by the sphere a portion of the power to regulate, Treaty of Port-Louis imply that, wherever and avoiding unwanted possible social possible, the highest degree of juridical and political consequences. And if new integration should be sought”.7 States with systems based on common law The “perimeters” to be given to the decided to join OHADA, a Uniform Act Uniform Act are indeed the central issue formulated in this way would not need to here, and this question should be resolved be revised later. prior to any examination of the substantive draft. From this point of view, the issues of its scope ratione materiae and the Social dialogue in OHADA intensity of the uniformization sought should be at the heart of the discussions if However, it is on the conditions for the a Uniform Act is to be adopted that is both elaboration of uniform labour law that we effective and juridically sound. The ques- wish to focus here. These have to do with tion should be raised of whether a project the consequences that OHADA’s system of that attempts to encompass in detail the governance has for the effective involve- whole of the subject matter that is trad- ment of the labour relations actors. itionally dealt with at national level can The systematic participation of the so- guarantee the legal certainties that the re- cial partners in the national consultations gional and foreign economic actors expect. on the fi rst draft of the Uniform Act on Refl ection must take place concerning the labour issues is an essential condition for level of legal uniformization sought. Here, ownership of the Uniform Act by its fu- two approaches are possible. ture users and thus for its effectiveness.

73 To be successful in practice, any such not function satisfactorily,” within a sys- standard-setting construct does require tem where “the totality of those entitled that the actors directly concerned, both to take part in the elaboration of a law at from government and from the workers’ the national level (Parliaments, the profes- and employers’ organizations, should be sional bodies concerned, the Economic and very closely associated with its elabora- Social Committee etc.) are not systemati- tion. In the fi eld of labour legislation, the cally involved in the examination of draft juridical reliability and certainty which Uniform Acts”.8 justify uniformization are themselves So at the very least, involvement should entirely dependent on the degree of le- be sought within the national framework gitimacy that will be enjoyed by the proof the exercise of the twin competences of visions adopted. the national OHADA committee and of From the outset, it was clear that ap- the relevant consultative body. propriate modalities would have to be As the 1990s demonstrated in the con- found to reconcile the demands of tack- text of the processes for the revision of ling the subject of labour law with the in- labour codes, the promotion of social dia- stitutional provisions of the treaty, which logue is essential if a climate of confi dence places the running of the Organization is to be established between all the actors solely in the hands of the Ministers of concerned.9 It even appears that the World Justice and Finance. The national texts, on Bank has explicitly recognized, in Africa, the other hand, confer upon the Ministers the value of this traditional ILO message.10 with labour portfolios, and also upon the Also, at a time when emphasis is being put tripartite consultative bodies established on the absolute need for genuine partici- by the Labour Codes, explicit responsibili- pation by the social actors in the framing ties concerning labour issues. Recourse to and implementation of policy, 11 it is incon- the relevant consultative body is generally ceivable that attempts should be made to obligatory in the case of draft labour legisl- build a regional juridical space, intended as ation. Chaired by the Minister of Labour, a substitute for domestic law, without duly such bodies comprise the most represen- consulting those most directly concerned. tatives employers’ and workers’ organiza- In fact, it is impossible to build a re- tions, and in some cases representatives gional legal edifi ce without involving of the Ministries of Justice and Finance. In its recipients and those to whom it will many places over the past few years, these administer justice. Not to involve them bodies, that had too often become inactive, would be to give the lie to the affi rmation have been systematically redynamized, made by those selfsame States that “de- with the support of, in particular, the mocracy requires the practice of dialogue ILO’s Programme for the Promotion of at all levels, whether between citizens, Social Dialogue in French-speaking Africa between the social partners, between the (PRODIAF). political parties or between the State and Granted, OHADA has launched a for- civil society”.12 mula which consists of setting up in each State Party a national ad hoc committee established by the Ministry of Justice and Interim assessment composed of experts tasked with examining and preparing observations on the Up to now, the conclusion has to be that, fi rst drafts of Acts. However, it has to be with some possible exceptions and despite admitted that “these committees, which some modest advances, the involvement of are supposed to be the transmission belt the main stakeholders remains unsatisfac- between each Member State and the Per- tory and defi cient. manent Secretariat, so as to take account For one thing, cooperation – or even of the different States’ concerns and put a mere communication – between the Min- national stamp on the Uniform Acts, do istries of Justice and Finance, which are

74 the only ones represented on the Organ- invent more productive ones, even if the ization’s Council of Ministers, and their old judgement that the partners are, on opposite numbers in the labour ministries the whole, “weak, badly structured and is still lacking in most cases, even though poor” 13 is still all too true today. Conse- it was agreed back in 1999 that the labour quently, the promotion of social dialogue ministries should be involved in this at the national level has progressed, and work. They clearly expressed their dis- the creation of dialogue structures is well satisfaction at this state of affairs during on its way at the level of the regional eco- the Labour Ministers’ Forum on OHADA, nomic communities CEMAC (Economic held in N’Djamena in February 2005 by and Monetary Community in Central the African Regional Labour Administra- Africa) and UEMOA (West African Eco- tion Centre (CRADAT), and more recently nomic and Monetary Union). on the fringes of the June 2006 session of Until now, both the employers’ organ- the ILO International Labour Conference izations and the trade unions have been in Geneva. So it still seems essential that taking a “wait and see” attitude, which the States Parties should really get down has certainly been shaken at the work- to improving coordination and commu- shops that it has been possible to hold in nication between the ministries that are a number of countries, and at the meet- OHADA’s institutional interlocutors and ings of national committees at the national the ministries with responsibility for la- and sub-regional levels, 14 but which has bour, as the latter are technically those not yet given way to any real mobiliza- most directly concerned by this draft Uni- tion on an issue that is, after all, a major form Act. As an instrument of regional one for the future of industrial relations integration, OHADA law in any case has within the framework of the current “new a bearing on all areas of government regionalism”. In particular, with a few rare policy, and the conditions under which exceptions such as that of the Central Af- it is framed are a litmus test of the co- rican employers grouped in UNIPACE, no herency of the latter’s formulation and position has been taken on this issue by implementation. the regional employer and union federa- Held in January 2006 by the CRADAT tions. Fortunately, however, a workshop and the ILO, a workshop on the draft Act for trade union leaders from the OHADA showed that the full extent of OHADA’s countries concerning the fi rst draft of the uniformization philosophy has not been harmonization project did lead, in May understood by all representatives of la- 2003, to the adoption of a memorandum 15 bour administrations, some of whom still which clearly emphasized the need for the have a harmonization mindset which elaboration process to bear the stamp of allows them to regard a Uniform Act as social dialogue. Interestingly enough, the a non-binding charter. In fact a certain participants even expressed the wish that resistance, with a “sovereignist” edge to OHADA itself should acquire a tripartite it, against the regional standard can be dimension… . However, as regards the observed ( it already exists within certain substantive options, no common position national jurisdictions concerning the acts has yet been reached that goes beyond the currently in force), whereas the elabora- national positions. tion phase of the draft Act is in for a long A coordination of positions, respec- haul and revised national codes are still tively within the employers’ groups and being adopted within the OHADA area. within the workers’ groups of the States As for the social partners in the coun- Parties, will in any case have to precede tries concerned, the capacities of their the fi nal stage of the elaboration process, industrial relations systems have con- or the holding of a plenary meeting of the tinued to benefi t from a deliberate effort, national committees. In the meantime, a during this period, to dynamize the ex- fi rst draft should have been fi nalized by a isting social dialogue mechanisms or to group of experts.

75 In short, unless there is a space for de- placement, recruitment, the various types liberation, the chances are that no common of employment contract, dismissals, night juridical space will be created to regulate work by women, and collective labour labour relations. By concentrating its ef- relations.17 forts on establishing a common labour Although these days, development regime, OHADA would be better able policies have evolved towards a double to counter the perception that its mech- recognition of the fi ght against poverty as anisms “will scarcely be of interest to the the ultimate aim of economic and social great mass of people to whom justice is policy, and of the importance of effective dispensed and (that it) is disingenuous, to participation by the national actors in the say the least … to see in it a tool for bring- elaboration and implementation of policy, ing populations out of the state ... of great they seem to have had no infl uence on the material and moral misery with which terms of the debate on labour law, as ap- they currently have to contend”.16 proached by the World Bank. The elaboration by OHADA of a Uni- Concerned solely about its economic form Act on labour issues has the charac- effectiveness, the World Bank analysts teristics of a theme around which several have persisted in their one-dimensional ILO objectives could be grouped, such as reading of labour regulation, purely and support for processes of regional integra- simply overlooking the fact that labour tion, the improved effectiveness and wider law’s objective and raison d’être is to gov- communication of juridical rules, a tripar- ern the individual and collective relations tite approach to the formulation of those between workers and employers, so as to rules, and stronger involvement of Labour ensure a satisfactory balance between not Ministers in the governmental decision- only the economic interests but also the so- making process on matters within their cial and political interests of all concerned competence. – employers, workers and governments. The ILO has set itself the task of working, with the countries concerned and OHADA, to ensure that harmonization A unique analytical reference point: will not turn into a hunt for the lowest the Doing Business indicators common denominator in member countries’ legislations, but will represent an Launched three years ago, the report advance by enabling all to benefi t from the Doing Business 18 rates countries each year experience and social gains of each. on the basis, fi rstly, of the main regulations In parallel to the work going on within governing the creation and development OHADA, the World Bank is taking a re- of enterprises and, secondly, of the legis- newed interest in labour law in Africa. lative reforms implemented. This business regulation index is composed of a number of indicators, of which some evaluate the The World Bank or the quest rigidity of the provisions governing em- for a model, flexible labour law ployment and, in particular, recruitment, dismissals and working hours. Back in the 1990s, through the structural As regards labour law, this report’s adjustment programmes and their condi- basic postulate, leaving no room for ei- tionalities, the World Bank had already ther nuances or discussion, is that certain established itself as the main promoter regulations in these fi elds create such la- in Africa of the fl exibilization of the legal bour market rigidities that they prevent framework governing the labour market. the development of enterprises and em- A good many countries proceeded, within ployment creation. The Doing Business in- this context, to revise their labour codes dexes take no account of the fact that these and modernized, or more often than not regulations may correspond to specifi c fl exibilized, the provisions governing job organizational needs of national labour

76 markets or the need to ensure adequate So these reference points are, in fact, ad- protection and safety for workers, in add- ditional conditions which the national part- ition to the measures taken to ensure that ners play very little part in determining. employers have the fl exibilities they need. In most of the countries, the content and As the usefulness of labour law is evalu- details of government commitments con- ated purely in relation to the economic cerning specifi c policy measures and the interests of one single category of recipi- loans as a whole have been little publi- ent, rather than all of them together, any cized – in marked contrast to the policy analysis derived from this method can- of transparency and consultation with na- not be other than one-dimensional and tional actors vaunted in the PRSPs. Some therefore partial. observers therefore feel that the conditions Nonetheless, despite all the criticisms accompanying the PRSCs are in open con- that can levelled at it, this index has been tradiction to the principle of the national designed to “give policymakers the abil- determination of economic and social pol- ity to measure regulatory performance in icy, and they call for independent external comparison to other countries, learn from reviews of the effects of these conditions best practices globally, and prioritize re- on poverty reduction and the democratic forms”. While the 2006 report was scath- ownership of political choices.20 At the end ing in its conclusions about African coun- of an independent evaluation, in 2004, of tries, most of which were put at the bottom the progress achieved by the World Bank of the league, the 2007 report emphasizes and the IMF regarding poverty reduc- African countries’ reform efforts.19 tion strategies, recommendations were These conclusions will no doubt be drawn up to “reduce or eliminate uniform used – in fact, they are already being used requirements, to encourage PRSPs to ex- – to promote new revisions of legislation plore a wider range of policy options and in countries where the Bank is support- to defi ne clearer partnership frameworks ing the implementation of poverty reduc- for better accountability”.21 tion strategy papers and, in particular, the However, the “triggers” are still, at the “private sector development” side of the time of writing, defi ned in terms of actions lending frameworks that go with them, or reforms to be implemented. As regards namely the Poverty Reduction Support labour law, these pointers are inevitably Credits (PRSCs). infl uenced by the conclusions of the Doing Business reports, the aim of which is precisely to identify the reforms judged to be African labour law reforms subject necessary, including in the fi eld of labour to conditionalities again law. So it is no surprise to discover that the revision of legislation is among the PRSC The PRSCs were introduced by the World “triggers”. This is the case for the PRSCs of Bank in 2001, to give fi nancial support to Burkina Faso and Mozambique. For these the implementation of the national devel- two countries, poverty reduction support opment plans contained in the poverty credits are conditioned in part by the re- reduction strategy papers (PRSPs). While vision of labour code provisions regarded serving to establish a hierarchy of national as constraints that slow down economic priorities and identify the action to be development and employment creation. taken, they also contain “triggers” which In this regard, the report Doing Busi- enable their implementation to be evalu- ness 2007 welcomes the stimulating effect ated. Depending on the degree of realiza- on some 29 African countries of the con- tion, countries are classed in the “high”, ditionalities set by the International De- “base” or “low” category, and this rating velopment Association and the US Millen- determines the amount of the future cred- nium Challenge Account. In 2003 and 2004 its that will be granted to assist the fi ght respectively, they set targets for reducing against poverty. the time and cost of starting a business as

77 conditions for obtaining additional grant Labour law, while ensuring adequate protec- money. The lesson drawn from this by the tion for workers, should establish working con- report’s authors is that “what gets meas- ditions which encourage the workers to con- ured gets done”.22 Taking that conclusion a tribute to the interests of the enterprise, to the step further, are we to understand that what growth of its productivity and competitiveness. doesn’t get measured doesn’t get done? The appropriate regulation of labour relations The fact that the business regulation and relations between the employer and the index Doing Business, constructed on par- worker should, in its application, promote sta- tial postulates inspired by neo-liberalism, bility, predictability and mutual confi dence, as is guiding labour law reforms recom- well as just and equitable treatment, within em- mended by the World Bank in the frame- ployment relations. In any process of labour law work of the PRSCs is a good illustration, if reform, the social partners should seek a bal- any were needed, of what Claude Kwaku ance between the workers’ need for equitable Akpokavie emphasized in Labour Educa- and appropriate protection and the enterprise’s tion, 2004/1-2, No. 134-135, in terms simi- need for effi ciency and productivity.24 lar to those used by a growing number of analysts and social partners, namely that the economic and social policies thus pro- Notes moted have not evolved in any radical way 1 M’Baye, K. 1971. “L’Unifi cation du droit en 23 towards a real focus on issues of equity. Afrique”, in Revue Sénégalaise de Droit, No. 10, pp. 67, To our knowledge, there are no indicators 69. so far that measure, and thus promote, the 2 Benin, Burkina Faso, Cameroon, Central Afri- social effectiveness of labour legislation in can Republic, Chad, Comores, Congo, Côte d’Ivoire, terms of equity. D.R. Congo, Equatorial Guinea, Gabon, Guinea, Guinea Bissau, Mali, Niger, Senegal, Togo. So it seems that we should be prepar- 3 Paillusseau, J. (ed.), Preface, “Le nouveau droit ing for a revival, over the coming months des affaires en Afrique – OHADA”, Price Waterhouse and years, of the debate on labour law Fidafrica, pp. 5-6. fl exibility in Africa – under the impul- 4 Pougoué, P.G. 2005. “Etude préparatoire sur sion of the World Bank. The social part- l’harmonisation du droit du travail”, in Mémoran- ners should not only participate in that dum des leaders syndicaux des pays de l’OHADA sur debate but should actually run it so that l’avant-projet d’harmonisation du droit du travail, ILO, Sub-Regional Offi ce for Central Africa (April). it moves beyond ideological conditioning 5 and tackles, in a pragmatic, constructive The texts of the Treaty and Uniform Acts adopted, as well as the doctrine (“Ohadata”) and ju- and useful way, the real problems of the risprudence, are available at www.ohada.com. For a world of work and its actors in the context detailed introduction, see J. Issa-Sayegh and J. Lo- of the fi ght against poverty. That can only houes-Oble, 2002, Harmonisation du droit des affaires happen if everyone recognizes the raison (Brussels, Bruylant). d’être of labour law – in its economic, so- 6 Opinion No. 002/99/EP, on 13 October 1999. cial and political dimensions – and thus 7 ILO. 2003. “Etude préalable à l’adoption d’un the need to seek a balance that meets the acte uniforme en droit du travail dans le cadre de l’OHADA”, by J-M. Béraud, pp. 102-103. divergent interests of labour law users as 8 a whole, be they employers, workers or Lohoues-Oble. 2003. Le Traité OHADA, 5 ans après, Ohadata D-03-06, p. 11. governments. 9 ILO. 1997. “Séminaire sur le rôle des parte- As they are still completely relevant, naires sociaux dans la révision des codes du travail let us recall in the present context the (Abidjan, 9-11 avril 1997), Recommandations des recommendations made in 1997 by the participants”, p. 18. representatives of governments, employ- 10 “Any business plan requires developing a sup- ers’ organizations and trade unions at the portive, mutually accountable relationship among seminar, organized jointly by the ILO and business, labor and government. Strong business associations and labor movements can help in this … the World Bank in Abidjan, on labour law Cooperation and higher productivity are more likely reform in French-speaking Africa, and when a consultative process ensures the effective more particularly this recommendation: participation of labor in policy formulation, or at least

78 its full understanding of the beneﬁ ts.” (World Bank, 18 The Doing Business reports for 2004, 2005 and 2000, Can Africa Claim the 21st Century?, p. 225). 2006 are available at www.doingbusiness.org. 11 Buckley, G., Casale, G. 2006. “Social Dialogue 19 See the press release “Doing Business in 2006: and Poverty Reduction Strategies”, ILO. African Nations Lag Behind in Efforts to Encourage 12 Declaration of Bamako (3 November 2000), Businesses through Regulatory Reforms”. para. 6, in Parlements et Francophonie, No. 111, p. 46. 20 ILO. 2005. Decent Work and Poverty Reduction 13 Etukudo, A. 1995. “Reﬂ ections on the role Strategies (PRS) – A reference manual for ILO staff and of African employers’ organizations in tripartism constituents. and social dialogue”, in International Labour Review, 21 ILO. 2005. Decent Work and Poverty Reduction Vol. 134, No. 1, p. 70. Strategies, p. 6.2. 14 In 2003, in Bamako for West Africa (July) et 22 Doing Business 2007 – How to Reform, Over- Libreville for Central Africa (September). view, p. 4 ff. 15 Mémorandum des leaders syndicaux des pays de 23 For a more detailed analysis of these issues, l’OHADA, see note 4. see Claude Kwaku Akpokavie, 2004, “Unions and 16 Vanderlinden, J. 2001. “‘Production pluraliste Poverty Reduction Strategy Papers – an Overview”, du droit’ et reconstruction de l’Etat africain?”, Afri- Labour Education, No. 134-135, 2004/1-2. e que contemporaine, No. spécial, 3 trimestre, p. 89. 24 World Bank. 1999. La réforme du droit du tra- 17 For a comparative analysis, see ILO, 1995, ILO/ vail en Afrique francophone, Actes du séminaire BIT- World Bank workshop on labour code reforms in Africa, Banque mondiale (eds. Corinne Vargha and Philipp Working document, Washington DC, 16-17 Oct. English).

Labour reform in Latin America

The reforms of labour legislation in Latin America, centring on flexible employment contracts and reduced labour costs, have not led to the improvements in employment that they were supposed to produce. So the factors that were labelled as “rigidities” in the labour market may have been nothing of the kind. And other factors may be more crucial – debt, inequality and the levels of investment in human capital.

María Luz Vega Ruiz Labour Law Specialist Programme on Promoting the Declaration ILO, Geneva

atin America, particularly over the past In recent years, however, criticism of Lfi fteen years, has not escaped the clas- the excessively protectionist nature of sic legislative debate about protection and standards in the region has been modifi ed fl exibility.1 A whole series of reforms have to a certain extent. These days, what tends been brought in, aimed both at a “down- to be said is that, although Latin American ward” modifi cation of some of the rights labour legislation is too regulatory and traditionally recognized by labour law too extensive, this is not the main prob- and at reducing labour costs, as a sacrifi ce lem. Rather, its main failing is said to be on the altar of greater competitiveness and rooted in the lack of effective implementa- job creation. On the other hand, some re- tion mechanisms, to the detriment of the visions of standards have consolidated or workers whom it is supposed to protect. improved worker rights and have modern- While some writers maintain that the ized institutions. modifi cations made to labour legislation From the year 2000 onwards, following in the region are inadequate, a review of on to a certain extent from the reforms un- reform laws shows that, in fact, almost dertaken in some industrialized countries, all the labour codes have undergone far- the focus of the discussion shifted from reaching modifi cation, some of them sev- general, radical reform to more closely eral times over, as regards their basic indefi ned topics. Thus, the regularization of stitutions.2 The exceptions are Costa Rica, undocumented workers, of those working Cuba, Honduras, Mexico and Uruguay, 3 “on the black”, and the search for fuller although labour laws have been partially legal coverage of the various types of em- modifi ed in these countries too, and re- ployment relationship, through contract forms are underway.4 Even those reforms types that take suffi cient account of a that are seen as more protection-oriented changing market and of certain growing (Brazil, Venezuela) show many signs of employment needs, are key themes of the fl exibility, aimed at adjusting labour rela- national and international debate. In other tions to economic change. words, the main theme now is employ- Generally, these reforms deal only with ment creation, but as governments have the substantive aspects and there are no cor- been coming to recognize, the jobs created responding reforms in the structures and must meet certain criteria of relevance and procedures in order to promote the imple- quality. They should, in short, be what the mentation and effectiveness of standards, ILO calls “decent work”. whether judicially or administratively. A

81 particular case in point is an Argentinian Main modifications to individual law dating from 2004 in which the reform employment relations of labour inspection, aimed at better internal structuring and operational effi ciency, As far as the regulation of individual re- features prominently alongside substan- lations is concerned, the main legislative tive changes to individual and collective changes concern the employment contract relationships. Other changes, apart from regime, working conditions and attempts the reforms to the Codes of Procedure in to regulate labour relations in small and Ecuador and Venezuela, are those adopted medium-sized enterprises while taking in Peru, and to a lesser extent in Brazil, account of their specifi cities and needs. Chile, Guatemala and Nicaragua. If the overall promulgation rate for new labour laws has slowed down considerably The employment contract over the past fi ve years, the reforms have continued in a number of countries, some- The beginning and the ending of an em- times in opposite directions, so demon- ployment contract are the two key mo- strating both the ineffectiveness of some ments in the development of an individual initial changes – particularly as regards employment relationship and, as such, two employment creation – and the need for of the main focuses of the Latin American corrections to reassert rights that were legislative reforms over the past decade. temporarily curbed. Originally, a preference for contracts of Thus, revisions of labour legislation are unspecifi ed duration was the rule in Latin controversial not only for technical rea- American legislation, and historically this sons, but also for ideological, philosoph- refl ected the intentions of those binding ical and political ones that have to do with themselves by a voluntary contract on la- the “model” of economic opening and its bour issues. This preference was expressed demands, as well as the need to preserve in the presumption that the employment labour values and rights, irrespective of contract is for an indefi nite period unless the economic model in force. Such contro- proof can be shown to the contrary, 5 and versies may, however, be complicated by in the specifi cation of the restricted cir- differing levels of knowledge of the scope cumstances in which durations limited of the legislation and its reforms, or simply by time or by the nature of the work were by the fact that discussants are thinking admissible. of different cases or time periods. Conse- Some employment contract reforms, quently, if dialogue is to lead to more uni- mainly those in Argentina (in their initial form criteria and conclusions, a necessary phases), Colombia, Chile, Peru, and to a condition is that the topic – in other words, lesser degree Brazil and Panama, consisted the legislation and reforms to be debated in lightening or eliminating the rules that – should be clearly defi ned. made contracts of unspecifi ed duration It should be added that the reforms of the “preferred” form of employment con- individual and collective labour relations tract. In these cases, the idea prevailed that are not the only ones to have taken place fi xed-term contracts are better adapted to in the region recently in the labour fi eld. fi rms’ requirements, permit labour mobil- There have also been reforms of social se- ity and considerably reduce labour costs. curity (health and pensions), vocational In Peru, the most extreme case, new mo- training, labour court procedures and, to dalities have existed since 1991 for fi xed- a lesser extent, occupational health and term contracts, which may be concluded safety. for a very long duration. In fact, the regulations are detailed but permissive. Thus, a fi xed-term contract authorized on the grounds of market needs, in order to provide for “economically conditioned” production

82 increases triggered by substantial vari- On the other hand, modifi cations to the ations in demand on the market, may trial period, in the interests of fl exibility, have a duration of up to fi ve years, which have not been used in the region to the does not seem to accord with the “econom- same extent as in some European coun- ically conditioned” aims assigned to it. tries, where trial periods can even be set Reviewing these trends, it is diffi cult by collective agreement. to measure with any precision the general Generally, the maximum trial period impact of the new contract policies, both in the region is on average between two because of the speed with which they have months (Colombia, Guatemala, Hondu- been promulgated and due to the lack of ras, Paraguay) and three months (Bolivia, reliable statistics. Nonetheless, in perhaps Brazil, Ecuador, Panama), although as part the most typical cases, Argentina and of the region’s reforms, there does seem Peru, the labour effects are not particularly to be a trend towards extending it to six encouraging. In practice, the employment months. problems have not diminished. Rather, The preference for contracts of unlim- they have increased, even though the re- ited duration has traditionally been com- forms were justifi ed as a way of improving plemented in the legislation by restrictions enterprises’ competitiveness by overcom- on the employer’s ability to terminate ing rigidities which “discouraged employ- them, motivated by the principle of em- ment creation because they made dismiss- ployment stability, which is enshrined in als more diffi cult or expensive”. the constitutions of most countries in the In this regard, it seems that the ends region. In concrete terms, this principle pursued through the massive use of fi xed- translates into the protection of the worker term contracts are being called into ques- against arbitrary or unjustifi ed dismissal, tion, from the point of view not only of or at least when there is no culpability on social protection, but also of economic the worker’s part. effectiveness. Moreover, frequent recourse Because of its economic and social to fi xed-term contracts can create com- implications, the termination of the em- plications within fi rms’ own personnel ployment relationship at the employer’s management and discourage investment initiative remains one of the most debated in worker training, thus inevitably limit- issues. For workers, protection against ing, over a certain period, fi rms’ technical dismissal is a key element of the right to capacities and the technical qualifi cations employment. For employers, strict regula- that international markets may require. tion of terminations may limit the enter- Some reforms authorize new types of prise’s possibilities for adjusting to chang- subcontracting by third parties (labour ing market situations and the demands of outsourcing via cooperative societies), competitiveness. which may promote precarious contracts Discussion about the termination of by casualizing the labour of those con- the employment contract is generally cerned. Certainly, in Peru the cooperative limited to the subject of dismissal – the society members do not acquire the status annulment of the contract at the wish of of employees within the user enterprise, the employer, as termination by mutual nor within the cooperatives of which they consent, at the worker’s wish or at the end are partners.6 Nonetheless, purely for so- of the contract’s duration, does not create cial security purposes, a “legal fi ction” specifi c problems because it does not gen- means that they are regarded as depend- erate additional costs for the enterprise. ent employees for the purposes of the pri- So the debate centres on the grounds for vate pension system, the national pension dismissal, the length of notice and the system and the health insurance scheme possible payment of fi nancial compen- (Law 26504 of 8.7.95, Art. 15). From the jur- sation in lieu of notice, the indemnity idical point of view at least, this device is owed by the employer for terminating certainly questionable. the contract and, to a lesser extent, in the

83 role played by rehiring or reinstatement 7 dismissal without notice, one week’s pay which is less common. per year of service. The indemnities for Brazil was the fi rst country to deregu- unjust dismissal were also increased in late and fl exibilize dismissal, from 1966 the Dominican Republic, El Salvador and onwards, although this fl exibility was mit- Paraguay (which also slightly increased igated by the Constitution of 1988, which the notice), while in Venezuela a ceiling decided that, although the early stages of was imposed. In Nicaragua, the indemni- the Length of Service Guarantee Fund ties are the lowest in the region, namely (FGTS) were not to be regulated, unjustly one month’s pay for each of the fi rst three dismissed workers were entitled, apart years and 20 days’ pay for the others, with from the sums deposited in the FGTS, to a ceiling of fi ve months’ pay. an indemnity equivalent to 40 per cent of As far as collective dismissals are the funds accumulated and to 30 days’ no- concerned, the innovations have not tice, at the employer’s expense. been very far-reaching, amounting sim- Later, various reforms opted for the ply to a clearer defi nition of the grounds creation of redundancy funds which light- (Argentina, Chile, Panama, Peru), which ened the compensation burden (Colombia) are generally to do with economic and or- and the introduction of economic and ganizational matters. structural grounds for dismissal, which permit lay-offs for objective causes (Chile, Peru), with fewer procedural requirements Working conditions and lower compensation. In Peru, further grounds for dismissal As well as the initiation and termination of were added from 1991, including the ter- the employment contract, the law regulates mination of the employment relationship its content, although this does not prevent for objective reasons, for which a simpli- the parties from changing or adding to fi ed compensation regime was provided, it, as long as they do not breach binding based on length of service, with a notice regulations. As part of the recent reforms, period of 30 days which may be replaced some changes are being made concerning by compensation payments. In Argen- worktimes, breaks and pay. tina, since 1990, a number of laws have In general, the norms governing the facilitated dismissals and simplifi ed the working day do not differ greatly from procedure. one country to another in the region, In Colombia, a so-called redundancy probably because limits on daily work- regime was established, the amount ining times have been a traditional social volved being calculable only at the end of demand, long since enshrined in inter- the employment relationship.8 The law cre- national standards. The great majority of ated a system of annual redundancy depos- the region’s countries have maintained a its on individual interest-bearing accounts, legally defi ned eight-hour working day which have been administered since 1993 and 44-48-hour week, with variations set by redundancy and pension funds. This for the most part by collective agreements. avoids the need for the employer to pay Leisure time is 9 or 10 hours per day at a redundancy compensation at the moment minimum. when the employment contract is termi- Without prejudice to the legal re- nated and, in principle, guarantees to the quirements, there has been a tendency, worker the coverage of the sums owed, in countries such as Argentina, Brazil, even if the employer is insolvent. Chile, Colombia and Mexico, to increase In Ecuador, the indemnities owed in the the real number of hours worked (which case of unjust dismissal were increased in in some sectors exceeds the legal working 1991, but up to then, they had been very day). This may be linked to the low cost modest: the increase brought them up to of overtime and the ineffectiveness of the a minimum of three months’ pay and, for control mechanisms.

84 It should be noted that in Argentina, and other labour benefi ts as well as social collective agreements may establish meth- security and vocational training contri- ods of calculating the maximum working butions. In 1992, Panamanian legislation day on the basis of averages, “according excluded “production bonuses and other to the characteristics of the activity con- allowances” from the defi nition of a wage, cerned”, thus allowing hours to be tallied while the Ecuadorian reform in 1991 ex- by the week, the month or the year. In cluded from the same defi nition “usage, Brazil, the Constitution already permitted accommodation and benefi ts in kind”. time-based compensation and the reduc- The reforms in Colombia and Peru tion of the working day, by mutual agree- introduced the concept of a consolidated ment or collective agreement. It also estab- wage, 9 a formula which makes it possible lished a reduced working day of six hours to group together all the payments made in the case of discontinuous shifts, unless for different reasons in the course of one otherwise agreed through collective bar- year, with the exception of paid leave in gaining, which was certainly an interest- Colombia and fringe benefi ts in Peru. ing opening. The changes introduced in The minimum wage, another impor- January 1998 complete the fl exible system, tant aspect of the legislation, sets limits on bringing with them the legal recognition the negotiating freedom of the partners, of fl extime (already established in some who may not agree rates below the mini- collective agreements). mum. The rare legal reforms concerning The law usually permits overtime, ei- the minimum wage centre on concrete is- ther in exceptional circumstances (Bolivia, sues (Chile, Ecuador and the Dominican Dominican Republic), or by establishing Republic). quantitative limits (Paraguay and Ven- ezuela). The recent reforms have maintained certain guarantees of protection for Labour law and small enterprises the worker. However, recourse to overtime over and above legal limits is common Labour regulations for small enterprises practice. are not homogeneous throughout the re- As regards night work, there have been gion and are at an early stage. Some reforms few innovative reforms and the tendency establish particular rules on working con- has been towards improvements in the per ditions, particularly daily worktimes, that centage of the bonuses paid. Only in Para- are more supple and less burdensome for guay is night work subject to administra- the employer. In particular, the law in Ar- tive authorization. gentina not only eases the inscription and In addition to the norms on working registration system for small enterprises, times, some reforms have extended an- but also permits them to use temporary nual leave entitlements, in line with in- contracts without the still generally re- ternational trends. Venezuela added to its quired prior entitlement or approval by 15 days of annual leave one day per year of collective agreement. On working condi- service, up to a maximum of 30. Paraguay tions, it permits modifi cation by collective increased entitlements on the basis of pro- agreement of the formalities, require- gressive criteria linked to seniority. Guate- ments, notices and opportunity for nor- mala made its 15-day minimum applicable mal annual leave, subject to certain con- to all sectors. Nonetheless, average annual ditions, and this opens up space for almost leave entitlement across the region is 15-20 unlimited fl exibilization on this issue. The days, with a waiting period of 11 months Brazilian law, meanwhile, although main- or a year before leave becomes due. taining the obligation on the enterprise to Some reforms have opted to clarify the control the leave periods of its employees, legal defi nition of a wage, in order to de- is nonetheless moving in the same direc- cide which concepts must be used as the tion, towards freeing small businesses basis for calculating dismissal indemnities from the obligation of communicating the

85 starting and fi nishing dates of holidays to Venezuela by the adoption of the 1999 the authorities. Constitution whose articles 95 and 293 re- The simplifi cation of dismissal proced- spectively make provision for interference ures is another possible objective of the in trade unions’ management, elections reforms, the argument being that small and free use of their funds. Other norms enterprises need greater contractual lee- established since then continue down this way. In a number of countries, the gen- part of interference. eral provisions on the termination of the Apart from the rescission of norms employment relationship do not apply to that restrict freedom of association (the small enterprises, for historical reasons or case of El Salvador), some reforms tend on the grounds of fl exibility or simplifi - towards facilitating the exercise of this cation. In Latin America, there are some right, either by reducing the minimum examples of this, but in none of them are number of members required in order to the small enterprises exempted from the found a union (El Salvador, Panama) or by norms on dismissals themselves. Rather, simplifying the procedure for registering exemptions centre on the effects of the dis- a union and obtaining a legal personal- missals, and above all on indemnities. ity, up to and including a presumption that full registration has taken place if the authorities neither respond nor intervene Main changes to collective (Colombia, El Salvador, Panama and Para- labour relations guay). Other reforms extend the right to organize to new categories of worker (ag- The spread of democratic regimes through- ricultural workers in El Salvador; public out the region over the past two decades, service workers in Chile, Nicaragua and together with the high ratifi cation rate for Panama), or facilitate the establishment ILO Conventions Nos. 87 and 98, respec- of enterprise-based unions, or unions of tively on freedom of association and the casual or temporary workers, or of the right to organize and to bargain collect- self-employed (Peru), or sectoral unions ively, 10 is certainly one of the reasons (Chile), or foreign workers’ unions (Pan- leading to a series of revisions on these ama and to a certain extent Colombia), or issues in the region. On the other hand, federations and confederations (Chile, El the observations of the ILO Committee Salvador). And in Colombia, the recent re- of Experts on the Application of Conven- form of Law 584 abolishes controls on the tions and Recommendations concerning trade unions’ internal management. both Conventions have continued to be However, the practical effects of these extensive and the number of complaints measures are from removed from their lodged with the Committee on Freedom of aims. In many countries, trade union or- Association is still constantly increasing, ganizations have been weakened and have showing that there are many diffi culties low rates of membership. Is this situation in this area. a direct consequence of the reforms? It is diffi cult to explain this rather regressive effect in terms of a progressive reform. The Freedom of association fact is that the reforms have taken place in a context of stronger enterprise-level la- Recent reforms in the fi eld aim, generally bour relations, and in countries where the and formally, to reinforce trade union proportion of SMEs is very high, they as- rights, either by evolving the legislation sume a major decline in the role of sectoral or, as in the case of Chile, by an attempt to trade union organizations, and, therefore, restore the previous system, a drive which a limit on the inclusion of workers in trade is still only half-completed. union structures. Indeed, fragmentation An exceptional case in the region is (the minimum number of people required undoubtedly the process launched in to form a union is, on average, 20) makes

86 it more diffi cult to bring workers into an of clauses which alter the legal minimum organization, as industrial unions do not provisions or reduce workers’ benefi ts. exist in practice (and, indirectly, are limited by the legislation). Another pending issue is the unioniza- Disputes – and dispute prevention tion of the public sector, which is generally or resolution ignored by the law, is poorly developed and is subject to practical limitations on its The meagre reforms of recent years also growth (as is the case in Bolivia, Colombia, seem to confi rm a trend towards less state El Salvador and Paraguay). intervention in disputes. These reforms do refer both to the issue of strikes and to the mechanisms for preventing and resolving Collective bargaining collective disputes. In the new norms, more leeway is given Within this context, the regulation of col- in regulating the concept of strikes and lective bargaining has also been renewed the procedures for strikes (for instance, in and in some cases, this was the fruit of Chile, Colombia and Nicaragua), includ- consensus or agreements between governing public service strikes and solidarity ments, workers and employers (in Argen- strikes. At the same time, some legislations tina for example). do deal with the exercise of this right, ei- Reforms in this fi eld cover mainly the ther through a requirement to give notice following aspects: the development of (Paraguay), or by setting a time period collective bargaining, approval proced- for the declaration of a strike, or by pre- ures, and the fl exibilization of individual scribing a maximum duration of 60 days labour relations through negotiation. (Colombia). There are also some reforms Various reforms (Chile, Dominican Re- which prohibit or limit strikes in essential public, Venezuela) tend to favour the de- services, and which provide for a mini- velopment of collective bargaining, either mum service in the case of a strike. through expansion of the number of issues Some new legislations deal with mech- that it can cover (Panama and Peru), or of anisms relating to disputes, particularly its scope, including the public services conciliation and arbitration, whether vol- (Argentina, Paraguay, Venezuela), or by untary or compulsory (Argentina, Chile, broadening the coverage of so-called “un- Peru). regulated bargaining” (Chile). In addition, there have been attempts to consolidate collective bargaining as a Conclusions trade union activity, and in some countries, groups of workers have been pro- Looking back over the labour legislation hibited from bargaining collectively when produced in the past decade, it is possible a trade union is available to do so (Costa to draw some conclusions about the re- Rica, El Salvador). In Peru, Ecuador and forms and their scope. Colombia, on the other hand, the law does Firstly, there have been reforms in permit collective agreements with non-un- most of the Latin American countries, to ionized workers and, in Colombia since a greater or lesser extent and in different 1990, collective pacts (agreements without forms. trade union participation) have increased In many of the reforms, the infl uence to around 10 per cent of the total, while of an external factor may have prevailed collective agreements have decreased in – for example, the conditionalities for proportion. loans or assistance from the international Some reforms emphasize the role of fi nancial institutions, or the comments collective bargaining in regulating em- through which the ILO Committee of Ex- ployment contracts, including by means perts on the Application of Conventions

87 and Recommendations requests a Mem- violence, poverty and inequality, together ber State to bring its legislation into line with limitations on the creation of tech- with such and such a Convention that it nology and modern enterprises and defi - has ratifi ed. ciencies in vocational training. Secondly, behind some reforms there Fourthly, one aim of the reform may is the intention of fl exibilizing employ- in some cases have been to strengthen the ment relationships. Thus, Panama sought position of the workers and their organ- to “ensure that capital receives a fair re- izations, as may be seen above all in the turn on its investments”, whereas in the treatment of collective employment rela- Code of 1971, the aim was to “establish tions and the search for greater collective special State protection to the benefi t of autonomy. the workers”. And the preamble to the Co- Finally, for many reasons, it is very dif- lombian reform states that “the modern- fi cult to give a precise assessment of the la- ization of the economy makes it necessary bour reforms, except in cases where there for the labour system to become more has been radical change ... Many problems fl exible, in order to ensure that our prod- ascribed to substantive legal issues may in ucts are more competitive, to promote fact be due to improper application of the investment and to increase the creation law and to long, complicated, costly ad- of employment... .” ministrative and judicial procedures. The Thirdly, one of the main concerns guid- search for rapidity, simplicity and trans- ing the most important reforms has been parency, under the watchful eye of the to promote employment. Starting from the social interlocutors, could lead to a new, assumption that the traditional employ- more satisfactory stage in the regulation ment contract set-up and the costs asso- of labour relations. ciated with dismissals are rigid and expensive, and so discourage employment, schemes have been devised to simplify the Notes initiation and termination of contracts and reduce wage costs, including indemnities 1 The present text draws on a summary of the for dismissal. Nonetheless, more fl exible author’s book La reforma laboral en América Latina: contracts and lower costs have not brought 15 años después. Un análisis comparado (Lima, 2006). about growth in waged employment, any 2 Bolivia is a special case, with a Code dating more than have the structural reforms that from 1939 which has undergone continual partial inspired them. modifi cations. Ex per ience shou ld lead to new t h i n k i ng 3 The labour reforms of 1985 in Uruguay were about the possible relationship between aimed at annulling the trade union laws of the dictatorship period, which were never replaced by new labour legislation and employment cre- legislation. ation. It is a basic legal tenet that the law 4 In Costa Rica, for example, Law No. 7360 was should take great account of the social adopted in 1993. This reformed the law on solidar- reality that it regulates, so in this case all ity associations, the Labour Code and the organic the efforts made to constantly adapt la- law governing the Ministry of Labour. In Hondu- bour legislation to the reality of relations ras, active work has been carried out for a number of years on a reform of the Labour Code, and vari- between employers and workers may be ous partial modifi cations exist. The same goes for legitimate, provided that they do not en- Cuba since 1999. tail sacrifi cing the principles and values 5 Unless otherwise specifi ed, the employment on which this law has been based. How- contract is presumed to have been concluded for an ever, it does not look as if labour stand- indefi nite period, full-time and to be devoid of any ards are among the variables that put a particularities having a bearing on its aims or the place or type of work. brake on employment in Latin America, or 6 Even though the law does, since 1995, entitle at least not at the same level as elements them to incomes and working conditions that are like insuffi cient investment, external debt, not inferior to those due to workers within the user misaligned currencies, political problems, enterprise who perform comparable tasks.

88 7 Reinstatement exists in Cuba, Honduras, opts for this formula does not receive legal benefi ts Mexico Nicaragua, Panama, Peru and Venezuela, or fringe benefi ts such as redundancy compensa- although it is subject to conditions such as a mini- tion or Christmas bonuses, as all such elements are mum of one year in Mexico, a minimum number of consolidated into an improved monthly wage. This workers in the enterprise in Venezuela, etc. means that the worker receives, month by month 8 Which also meant that enterprises which had with the normal wage, all the other payments due employed staff for longer had to pay more than those from the employer. which fi red people frequently. 10 As of July 2001, Convention 87 had been rati- 9 This is a monthly wage that includes all eco- fi ed by 18 Member States in the region and Conven- nomic benefi ts due from the employer. A worker who tion 98 by 17.

Chinese labour law in transition

The Labour Code of the People’s Republic of China is obsolescent, and different parts of the country’s labour legislation sometimes contradict each other. These inconsistencies are partly due to the country’s rapid transition towards a social market economy. In this article, the need for labour law reform is placed in its broader economic and legislative context.

Yun Gao Legal Officer Special Action Programme to Combat Forced Labour Programme on Promoting the Declaration

t the end of 2005, the Standing Establishing a widespread social se- ACommittee of the National People’s curity system. Congress (NPC) 1 organized a special evaluation of the implementation and ap- At the same time, the report contributes plication of the Labour Code at the national just as much to the identifi cation of exist- level. This was the second such evaluation ing problems, “especially in the construc- since its entry into force (the fi rst was in tion, light industry, garment, hotel and 1996). The report 2 affi rms the achieve- restaurant etc., labour-intensive sectors ments of the Labour Code, including: and in medium and small enterprises and individual economic organizations, where Helping enact supplementary statutes infringements of workers’ legal rights are and regulations (including the 7 ad- widespread, and some problems are fairly ministrative statutes adopted by the serious”. These problems include, fi rstly, State Council, more than 50 depart- low coverage of labour contracts, but also mental regulations adopted by compe- a tendency towards short contract terms tent ministries, relevant interpretations and unregulated contract content. The by the Supreme Court and a range of coverage of labour contracts is less than local legislation); 20 per cent in small and medium-sized Implementing active employment pol- enterprises (SMEs). Most contracts are icies, promoting job creation and con- limited to one year. Some employers abuse trolling the unemployment ratio; the probation period to exploit workers, especially peasant workers. Many contracts Establishing primarily new forms of are full of illegal clauses. Some employers employment relations and implement- provide work contracts without any con- ing labour contract, collective consul- sultation or even provide blank contracts. tation and collective contract systems. Moreover, the minimum wage system A tripartite system was set up at the has not been fully implemented, and de- national, provincial and municipal lev- lays in payment are still a frequent occur- els. The coverage of labour contracts rence. According to the survey, 12.7 per has reached 85 per cent in state and cent of workers’ wages are below the local collectively-owned enterprises and minimum wage. Occasionally, the mini- foreign investment ventures; mum wage is set too low to meet work- Regulating wages and improving la- ers’ subsistence needs. Some employers bour remuneration; randomly increase the production quota

91 but decrease the piece rate, and workers A complex labour relation system cannot fi nish the production quota within regular work times. More than forty per In sum, the report not only acknowledges cent of cases sanctioned by the labour in- the challenges presented by the diversity spection in 2004 were due to deductions of market actors, the multiple forms of and delays in payment. The survey sug- employment relations and the complexity gests that 7.8 per cent (16 per cent in some of labour relations, but also identifi es the provinces) of workers had experienced a defi ciencies, sometimes obsolescence, of delay in payment averaging 3.2 months. law and policies, the lack of knowledge of The problem is particularly prominent in labour law by law enforcement agencies the construction, manufacturing and hotel and local protectionism as main causes of and restaurant sectors. Some employers these problems. make profi ts by “disappearing” after wage A decade after the entry into force of payments become due. the Labour Code, this initiative taken by Illegal overtime is widespread and la- the NPC aimed to review the system of bour conditions are poor. Many employers Chinese labour law and to assess the gap request workers to work supplementary between that law and its application in hours, in breach of the labour law, and practice. often without overtime payments. In some This article sets out to give a general enterprises, workers are exposed to dust, introduction to Chinese labour law, in- noise, heat or even toxic environments, cluding the context in which it is being while injuries and accidents are frequent. developed, its place in the overall Chinese Some enterprises fail to implement legal legal system, the most recent discussions provisions on the protection of women and debates amongst Chinese jurists, and and minors. some principal diffi culties identifi ed by Furthermore, social security coverage actors responsible for implementing the is narrow, the harmonization of social se- law. curity contributions and benefi ts is low As regards the basis of the law, the Chi- and the delays in paying social security nese modern legal system has been clas- contributions are serious. A large number sifi ed as a “socialist system” functioning of non-public enterprises and individual in parallel to the common law and conti- economic organizations have not par- nental law systems. It is also described as ticipated in the social security system, a “socialist continental system” by some and the majority of peasant workers fi nd Chinese jurists since it is mainly based on themselves excluded by the current sys- statutes and written legal documents. tem. In most places, harmonization has Historically, as a big country with taken place only at the county level, and a broad territory inhabited by diverse this causes diffi culties for the transfer of groups, the centralized power gave much contributions and funds. Some employers more importance to penal law than any avoid paying contributions by falsifying other law. It “prioritized penal and down- the amount of salary paid and the number played civil law” in ruling the State. Civil of employees. and commercial law, as a body of law gov- Finally, labour inspection is too weak. erning legal relations between two private The labour inspection department is short parties, has been developed in an unsys- of manpower, has restricted scope for ac- tematic way, compared with the effective tion and is weak in enforcing sanctions. instruments of penal law, with their obligations imposed vertically by the State on its people. Later, while the industrial revolution was under way in Europe, China was struggling to change its “semi-feudal, semi- colonized” situation. After the foundation

92 of the People’s Republic of China in 1949, Labour law – A late developer the early establishment of the Chinese socialist legal system was strongly infl uenced Compared with penal and civil law, the by that of the Soviet Union. The principles development of labour law was delayed. and ideology of socialism, such as social- No labour law was enacted until 1994. ist public ownership and the omnipotence The adoption of the Labour Code in 1994 of collective interests, were refl ected or in- could be regarded as a milestone for the corporated in the enactment of laws. The establishment of a Chinese labour law sys- leading role of the working class in society tem, even though it was adopted before was established, and all members of society the recognition of the private economy were expected to work for the interests of by the 1999 Constitution. Since its entry the State. In this period, the internal regula- into force, it has played an important role tions of work units regarding labour disci- in promoting employment and protect- pline were usually binding for the workers ing workers’ rights and interests. The La- and produced quasi-legal effects. bour Code is the core instrument around The process of legislation was inter- which the Chinese labour law system is rupted when several political movements, being constructed. It recognizes workers’ such as the “Struggle against Rightists”, right to resign, introduces the concept of and the “Great Leap Forward”, came one discrimination at work (though with a after another. A slogan of “smash the pub- narrow focus on discrimination based on lic security, the procuratorship and the ethnicity, race, sex or religion), sets mini- justice system” was raised and all law en- mum wages, and empowers trade unions forcement became paralyzed during the (see box) to bargain for collective contracts. Cultural Revolution. For nearly two dec- The Labour Code comprises 107 articles ades, there was almost a legislative void divided into 13 chapters, including gen- in China. The situation changed after the eral provisions, promotion of employment, crack-down on the “Gang of Four” in the labour and collective contracts, working 1970s: law enforcement agencies were pro- hours, rest and vacations, wages, occupa- gressively re-established and law schools tional safety and health, special protection re-opened. The Constitution promulgated for female and young workers, and social in 1982 3 recognizing “socialist public own- insurance and welfare. ership” was amended three times within The Labour Code can be described as a less than 20 years, in 1988, 1993 and 1999 skeleton laying down the framework and respectively. Each time the amendment fo- main principles, but fl eshed out by subsid- cused on the ownership of property. From iary legislation in the form of regulations, 1982, only “socialist public ownership” decisions and circulars, etc. such as 17 new was accepted. Under the 1993 Amend- labour laws promulgated by the Ministry ment, “the State practises the socialist of Labour (MOLSS) shortly after its enact- market economy”.4 And when the 1999 ment, covering the aspects and subjects Amendment recognized that “the indi- addressed by the Labour Code. vidual economy and the private economy” The sources of labour law include the constitute “an important component of the Constitution, laws, administrative regu- country’s socialist market economy” and lations, administrative rules, local regula- that public ownership and diverse forms of tions, local administrative rules, judicial ownership develop “side by side”, 5 China interpretation and international treaties. had completed its process of normalizing China has ratifi ed 23 ILO Conventions, the ownership of property. Each amend- including four out of eight fundamental ment, particularly that of 1999, has histori- Conventions, namely the Equal Remuner- cal signifi cance for the Chinese political, ation Convention, 1951 (No. 100), the Mini- economic and legal system. A socialist mum Age Convention, 1973 (No. 138), the market economy constituted by multiple Worst Forms of Child Labour Convention, components requires reform in all areas. 1999 (No. 182), and the Discrimination

93 (Employment and Occupation) Conven- The State Council was traditionally tion, 1958 (No. 111).6 These ratifi ed Con- given extensive power to adopt admin- ventions have been taken into considera- istrative measures and enact adminis- tion when relevant legislation is enacted trative rules. and reformed. Others, though not ratifi ed, Administrative departments: various are also given attention. For example, Ministries are entitled to make regula- forced labour is prohibited by labour law tions within their jurisdictional areas and was added as a new crime when the Penal Code was revised in 1997. At local level, Local People’s Congresses and governments are empowered to enact specifi c measures relating to the Hierarchy of law localities and to draft local decrees within the sphere of their authority. To understand the hierarchy of Chinese law is a prerequisite for studying and applying it. In the past 20 years, China has seen one of the greatest fl oods of legislation in its The NPC, together with its Standing history. However, the above-mentioned le- Committee, is the highest organ of gislative power and competence of various State power. It has the sole power to State organs had not been clearly defi ned amend the Constitution and enact and for a long period. Effectively, legislation in amend “penal, civil, State organic and various forms of laws, regulations, statutes, other basic laws”. The Penal Code and rules, decisions, decrees, circulars, provi- General Principles of Civil Law were sions, interim provisions, implementing adopted at this level. Law in respect of measures and even responding letters 10 categories of matters relating to State was adopted by different organs without sovereignty, establishment, organ- procedural rules or hierarchy to respect. ization and authority of State organs, The adoption of the Legislation Law in the autonomy system of ethnic and spe- 2000 was expected to change the situation cial administrative regions, crime and by harmonizing legislative procedures, criminal sanctions, fundamental civil structuring the hierarchy of legislation institutions, and the fundamental eco- and clarifying who has what competence nomic system, are reserved for the NPC to adopt what forms of legislation at which (Art. 8 of the Legislation Law). Other level. However, since the Legislation Law basic laws harmonizing some essen- has no retroactive effect on laws adopted tial relationships of political and social before its entry into force, these laws re- life and playing an important part in main effective and sometimes contradic- ensuring normal order in the society, tory to the Legislation Law. While whether such as Marriage Law and Electoral China needs to establish a judicial review Law, should also be promulgated by mechanism is still a long-debated topic, the NPC. and judicial reviews have rarely been The Standing Committee of the NPC conducted, the jungle of law constituted enacts and amends all laws except before the entry into force of this law con- those only enacted by the NPC. The tinues to create much confusion both for current Labour Code was enacted by law enforcement agencies and for employ- the Standing Committee. As labour is- ers and workers. sues are neither explicitly enumerated Confl icts and incoherence between le- in the list of laws reserved to the NPC gislation at the same hierarchical level, as nor given as much attention as other applied by different organs, are not rare. basic laws, in the hierarchy of legisl- The same goes for legislation at different ation the Labour Code is therefore in- hierarchical levels. In some cases, one issue ferior to other basic laws. is governed by more than one regulation

94 with substantially different stipulations. A Labour rights – A contractual matter? typical case is the provision with regard to working hours: the working week is That labour law has traditionally been stipulated as being 44 hours (art. 36) in given less importance and attention in the the Labour Code, while in the decision legal system is refl ected by the very small issued by the State Council (in 1995), it number of scholars and academicians is 40 hours. Another example is the re- studying labour law compared with those education through labour system (RETL), in penal, civil and economic law areas. La- which was established in 1957 by a deci- bour law is taught as an optional subject sion of the State Council and later speci- in most law schools. The Standing Com- fi ed by another administrative decision of mittee of the NPC, as a legislature, has not the Ministry of Public Security. Both the established an individual offi ce of labour legislative organs (criminal sanctions are law in its legal affairs department as it did a reserved competence of the NPC) and for penal and civil laws. This lack of clear the form of legislation (legislation restrict- identifi cation and independence of labour ing physical liberty can only take the form law in the legal system could be one rea- of a “law”) have been in confl ict with the son for misunderstanding, confusion, or amended Constitution, the Administra- worse, manipulation of labour law in its tive Punishment Law and the Legislation application by public and different actors. Law for years. In theory and in practice, the character- In the current legal set-up, whether istics of labour law – the intervention of the labour law system stands as an inde- the State – are insuffi ciently refl ected in pendent legal department or branch in law. Labour relations are usually confused the whole system remains ambiguous. At with employment relations. The protection universities, labour law is classifi ed as a of labour rights is then dependent on the sub-category of either economic or admin- employer’s discretion and conduct. Labour istrative law. In the 1950s, China followed contracts, including abusive clauses such almost completely the Soviet Union’s so- as “the employer is not responsible for any cialist system, which brushed aside the accidents at work place”, “the employer distinction between private and public law will not be responsible for the maternity, on the grounds that socialism has trans- retirement, sickness, and death of work- formed everything in the economic sphere ers”, are sometimes understood by both in a collective society. The division of law employers and workers as effectively and as a general theory of legal science was not legally established, since they have been raised until the rule of law was stressed in negotiated between both contracting par- the 1990s. Although Chinese academicians ties and valid consent is given by them. and jurists are referring more and more to This lack of independence can also the distinction between “public law” and be refl ected by the labour dispute settle- “private law” in their legal language, how ment system. There are neither special to fi t this division of law into the theory procedures nor specifi cally established of the Chinese socialism legal system re- institutions for labour litigation. The Civil mains to be explored. Labour law, as an Procedure Law is to apply to labour litiga- overlapping system of private and public tion. With the development of a diversi- law, risks becoming a “patchwork” if no fi ed economy and the reform of Chinese further clarifi cation is given in Chinese political systems, the Civil Procedure Law legal theory with regard to the place and is becoming ill-equipped to respond to importance of Chinese labour law in the increasingly complicated labour disputes. whole legal system. Theoretically, labour law is characterized both by private law through respect for freedom of contract and by public law through the imposition by the State of obligations on both parties to the labour

95 contract, beyond the free choice of parties sible for 280,000 employers with more as in civil law. In this sense, the substan- than 5.1 million workers.8 Litigation tive labour law cannot be appropriately involving violation(s), in most cases implemented through the application of by employers, of labour laws also the Civil Procedure Law: ends in compromise, negotiation and conciliation, instead of the employers’ 1. When workers, especially peasant being held responsible for their illegal workers, 7 are in a vulnerable position conduct. There is a risk that the same and not unionized, most labour dis- violations will be repeated. putes arising from sometimes serious violations by employers of their obli- 2. Considering that workers are in a rela- gations are not “disputes” in the sense tively vulnerable position, and that legal of civil law (which are principally de- assistance from professionals and sup- termined by the principle of freedom port from workers’ organizations are of contract by two parties in an equal rarely provided, the principle that “the position), but rather a challenge to the burden of proof is on the complainant” public power of the State which should in civil procedure appears inappropri- be settled through interventions of the ate to labour litigation. In particular, as State. These obligations are impera- the absence of labour contracts is still tive and compulsory. The violations a serious and widespread problem, of these obligations are not subject and as most peasant workers are not to compromise, are non-negotiable familiar with laws, the onus of proof is and non-conciliable, and should be obviously another burden for workers. sanctioned. However, the application Some local governments, such as Zhe- of the Civil Procedure to labour dis- jiang province, have pioneered innova- putes (Chinese civil procedures place tive legislation by inversing the burden particular emphasis on mediation in of proof, so that it rests with the employ- resolving disputes, and mediation is ers, but this is limited to disputes aris- applied wherever possible) turns these ing from wage payments. The Supreme violations into ordinary civil cases, and Court also specifi ed several categories the intervention of the State in labour of dispute, such as discharge of work- relations is not refl ected in the settle- ers, termination of contracts and reduc- ment process. In particular, when there tion of payments, in which the burden are no specially established institu- of proof is on the employers.9 tions to examine the substantive nature of the dispute (such as labour courts 3. The law on the preservation of property, or the “conseils” in France’s special and the prerequisite systems, could be “Prud’hommes” labour jurisdiction), used to secure the future execution of the circumstances under which dis- judgements in ordinary civil cases, but putes could be regarded as violations this is usually under the condition that of obligations defi ned by labour laws, the litigant put up a fi nancial guarantee and the extent to which the violations equivalent to the sum claimed. If the will be punished, depends too much case is lost, the guarantee is forfeited. on the occasional and optional coordi- This makes the use of such procedures nation between civil courts and labour nearly impossible for workers who are inspectorates. And yet, 22.2 per cent already in fi nancial diffi culties because of municipalities and 42.2 per cent of of the dispute. counties have not established a labour inspectorate structure. In a city like The number of disputes received by Ar- Guangzhou, where there is a concen- bitration Committees kept increasing, tration of labour-intensive production, from 33,000 in 1995 to 120,191 in 1999 only 130 labour inspectors are respon- then 184,000 in 2002, and 240,000 in 2004.

96 China and ILO standards China has ratified neither of the two fundamental ILO Conventions on freedom of association; the right to organize and to bargain collectively (ILO Conventions No. 87 and No. 98). In February 2001, it ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR), but announced at the same time that provisions guaranteed under Article 8, 1 (a) of the covenant, namely the right to establish and join workers’ organizations of one’s own choosing, would be dealt with in accordance with Chinese law. In doing so, the government effectively entered a reservation concerning a fundamental element of the Covenant, thereby putting itself in breach of internationally recognized principles on the law of treaties. It did not, however, enter any such reservation concerning Article 8, 1 (d) of the covenant which, alone amongst international legal instruments, explicitly guarantees the right to strike.

Freedom of association China’s Trade Union Law was adopted in 1950. It was amended in 1992 and again in October 2001. Workers are not free to form or join the trade unions of their choice. Only one “workers’” organization is recognized in law, the All China Federation of Trade Unions (ACFTU). According to the revised version of the law, “the ACFTU and all organizations under it represent the interests of the workers and safeguard their legitimate rights”. Trade unions must also “observe and safeguard the Constitution … take economic development as the central task, uphold the socialist road, the people’s democratic dictatorship, leadership by the Communist Party of China, and Marxist-Leninism, Mao Zedong Thought and Deng Xiaoping Theory … and conduct their work independently in accordance with the Constitution of trade unions”. Among their basic duties and functions, trade unions shall “coordinate labour relations through consultation”, “mobilize workers to strive to fulfil their tasks in production” and “educate them in the ideological, ethical, professional, scientific, cultural and other areas, as well as self-discipline and moral integrity”. The law also gives trade unions ample prerogatives in various areas such as “democratic management and supervision” (see below).

Trade union monopoly Article 10 of the law establishes the ACFTU as the “unified national organization”. Under Article 11, the establishment of any trade union organization, whether local, national or industrial, “shall be submitted to the trade union organization at the next higher level for approval”. Trade union organizations at a higher level “shall exercise leadership” over those at lower level. The law also empowers the ACFTU to exercise financial control over all its constituents.

Collective bargaining There is currently no law governing collective bargaining procedures, only regulations on collective contracts (CC). However, if a collective contract is established in line with the regulations, it is legally binding. The new labour law (effective 1995) adopted collective consultation as a key medium for settling disputes between employers and workers, with the government pushing the ACFTU to “consult” with employers on labour terms for workers as a way of pre-empting independent efforts at negotiations. Article 33 of the Labour Law states that workers have the right to conclude a collective contract “in an enterprise where the trade union has not yet been set up”. The CC regulations also reinforce this. The 2004 government “white paper” on employment encourages the ACFTU to conclude “collective contracts” in order to protect workers’ rights, and the labour law permits collective consultation and contracts to be concluded between the ACFTU (or workers’ representatives) and the management. According to official statistics, collective contracts cover almost 100 million workers with some 80,000 sectoral/industrial contracts for 33 million workers while 61.7 million workers are parties to contracts with their individual employers. In May 2004, amendments to the Provisions on Collective Contracts came into force. They call for more detail in the collective contracts signed. The regulations also outline the procedures involved in the consultation and the theoretical equality of both parties. However, despite greater opportunities for collective bargaining and the obvious need for worker protection for many workers – including migrants – there has been little progress towards any form of genuine collective bargaining. Instead the ACFTU continues to “represent” the workers to management and government structures, without seeing the need to discuss, inform, listen to or be guided by the workers who still have little say in policy. In the private sector, where branches of the ACFTU are largely non- existent, workers denied the ability to organize independently face almost insurmountable obstacles to collective bargaining and representation. Source: ICFTU Annual Survey on Trade Union Rights Violations, 2006.

97 This includes collective disputes, whose provisions in the Labour Code. This bears number increased even more rapidly.10 all the hallmarks of a system which is still Disputes are more and more characterized in a transitional period from a planned by acute confl icts, which are diffi cult to to a market economy. The orientation of mediate. Some collective disputes end in the Labour Code is rather one of labour street demonstrations. At the same time, administration than of a set of rights and abusive working conditions are frequently obligations. The paradox is, that, while reported. Certain extreme cases, such as the Labour Code is obsolete, some of its workers dying from exhaustion at work, norms appear too exacting and ambitious have been widely reported by the media. to be complied with, even according to to- In late 2003, the All China Federation of day’s standards. It sets future goals to be Trade Unions (ACFTU) revealed that the attained, rather than taking realistically total amount of unpaid wages owed to into consideration the level of economic, peasant workers had reached 100 billion political and social development and other yuan (approximately US$12.5 billion). Ac- circumstances in China today. cording to the Beijing Statistics Bureau, Moreover, the provisions in the La- the salaries of 72.2 per cent of construc- bour Code are general principles and not tion workers were unpaid or delayed in directly applicable. Its implementation payment, and only 6 per cent of workers measures are devolved to the competent were paid punctually.11 The initiatives authorities within central government and taken by certain local governments, such local legislative bodies. It is then criticized as the publication of a list of “sweatshops” by legal specialists for leaving too much in Guangzhou, may be locally effective power to local government. The conse- only as a short-term solution. All these quences of this are, fi rstly, abusive local phenomena of abuse of workers require protectionism and, secondly, diffi culties of a legal response. This has stimulated dis- harmonization on certain issues. For ex- cussions among Chinese labour law spe- ample, the social security system is more cialists on the eventual possibility of legal or less unifi ed only at the county level. For reform. Especially after the last amend- the numerous workers who fi nd employment to the Constitution in 2004, which ment in other municipalities or provinces, recognizes that “the State respects and there are no applicable regulations to be protects human rights”, the discussions followed for the transfer and continuation have increasingly been framed in the lan- of contributions. guage of the protection of human rights. The Labour Code also leaves also too much of a legislative vacuum in some essential areas. There are no provisions either for foreign workers employed in China, or for expatriate Chinese workers; Labour law in transition no stipulations or criteria for the economic compensation due in case of the revoca- As the core of the labour law system and tion of labour contracts by employers; no the source of inspiration for future subsid- provisions on the legal effects on the em- iary legislation, the Labour Code is obso- ployment relationship of employer merg- lete. It was adopted before the recognition ers/demergers/restructuring. In other of a private and individual economy by the areas, the simple stipulation of principles 1999 Constitution, which had a radical has not suffi ced to regulate labour rela- infl uence on labour relations. While pri- tions, and the pace of enactment of aux- vate property is legally recognized, work- iliary regulations needs to be intensifi ed. ers have lost the ownership of means of For example, there is much confusion as production, and the State is no longer the to whether or not the Civil General Princi- only employer. Some lately adopted labour ples and Contract Law should be applied legislation has entered into confl ict with to regulate the labour contract system,

98 which is claimed to be the core of the La- mark over the status of almost 200 million bour Code, whilst a Labour Contract Law “peasant workers”.14 But in 2003, in its let- has not been enacted until today. ter of response to the Supreme Court with At the same time, the content of la- respect to the application of labour law to bour rights and their protection needs to peasant workers, the MOLSS changed its be further developed. According to the opinion by confi rming that “for all peasant theory commonly acknowledged by la- workers who form labour relations with bour lawyer, the role of law in securing an employing unit, the Labour Code shall justice in labour relations is to intervene apply”.15 not only in a substantial way by regulating However, the discrimination against labour relations in the form of a human peasant workers with regard to legal access rights code, but also in a procedural way is only one of various forms of discrim- by protecting freedom of association and ination to which they are subjected in a structuring the bargaining process. In this dual society where cities are administered sense, the content of both procedural and separately from the countryside. There are substantial labour law in China could be currently 98 million peasants “entering further discussed. Some Chinese labour cities for employment” and 130 million law specialists divide labour rights into peasants engaged in “village and town- “individual” and “collective” rights, con- ship enterprises”. China ratifi ed the ILO’s sidering that the protection of the former Discrimination Convention (Employment is fairly adequate in law while the latter and Occupation), 1958 (No. 111) in 2005 needs further development.12 In particular, but the provision in the Labour Code on the China ratifi ed the International Covenant prohibition of discrimination is much nar- on Economic, Social and Cultural Rights rower than that of the Convention. How to in 2001 but entered a reservation on Art- eliminate other forms of discrimination as icle 8.1 (a) by declaring that its application a consequence of the “Hukou” 16 system, shall be consistent with the relevant pro- which splits people into those with urban visions of the Constitution, Trade Union and those with rural status, is the high- Law and Labour Law of the People’s Re- est priority for Chinese labour authorities. public of China. The right to strike was not Some researchers argue that the key rea- subject to a reservation but it has not been son for the violation of peasant workers’ effectively incorporated into domestic le- economic, social and cultural rights is the gislation.13 Nevertheless, the protection of loss of their civil and political rights. The individual rights could still be improved. “Hukou” system should be systematically With regard to the controversial issue reformed in such a way as to permit all of the scope of application of the Labour citizens to choose their place of work and Code, Article 2 stipulates that all enter- residence and to benefi t from equal rights prises and individual economic organiza- and protection.17 tions and labourers who form a “labour As for access to justice, the procedure relationship” are to be regarded as one for labour dispute settlement has been category; and State organs, institutional established in a contradictory way in the organizations and societies who form a Labour Code, and the process takes too “labour contract relationship” as another. long. Art. 77 of the Labour Code stipulates Neither of these two terms is defi ned in the that the methods to be used to resolve la- Code. Whether or not interim workers fall bour disputes, including consultation, within the jurisdiction of the Labour Code mediation, arbitration and litigation, are remains unclear. In its Opinions on Imple- to be freely chosen by the disputing par- mentation of the Labour Code, the Ministry of ties, while Art. 79 provides that arbitra- Labour (MOLSS) explicitly excluded civil tion should be the preliminary procedure, servants, peasants, soldiers in active serv- prior to recourse to civil tribunals. The ice and domestic workers from the scope Supreme Court confi rms 18 that if a party of application. This placed a question has recourse to the courts, according to

99 the administrative litigation procedure, judgements in China is less than 50 per against a decision by an arbitration com- cent on average and 30 per cent in some mittee to dismiss a dispute, the courts will economically less developed regions. not accept the case. In 2001, the Supreme Xiao Yang, the President of the Supreme Court clarifi ed the procedure applicable Court, in the Court’s 2004 and 2005 An- for labour disputes by specifying that if nual Reports to the NPC, stated: “the dif- courts regard the disputes in question as fi culty of executing civil and commercial labour disputes, the courts should accept judgements has become a major “chronic the case.19 However, for cases exceeding ailment”, often leading to chaos in the en- the prescription period for arbitration, forcement process”. It would be diffi cult i.e. 60 days from the occurrence of the to be any more optimistic about the im- dispute, the courts will reject the request. plementation of arbitration decisions, as Still, the parties will never get an opportu- this relies on judicial assistance from the nity to have the substantive part of labour courts. disputes examined because of procedural In conclusion, the birth of the Chinese defaults, especially when the period of social market legal system is still very re- prescription is limited to 60 days. This cent and much time is still needed to ex- appears unreasonably short compared plore the paths towards China’s goal of a with the two-year period for ordinary democratic and harmonized society. Chi- civil cases. nese labour law is certainly not isolated In addition, this “one mediation, one ar- from this process. Studies on Chinese la- bitration, then two litigations” procedure bour law should be placed in the context is a burden for the parties to a dispute, of the evolution and reform of the whole and especially for the workers. Complet- Chinese legal system. Its confl icts with ing the whole procedure could take up to other laws and the obsolescence of some two years.20 This represents an investment parts of labour law have been emerging of time and money so enormous that an only gradually, following the progressive ordinary worker could never afford it. establishment or reform of other legal Unpaid workers may fi nd that lawyers systems – in particular, of constitutional are reluctant to represent their interests, reform. The accession of China to the and that employers disappear or fi le for WTO has triggered much legislation and bankruptcy in order to avoid paying what legal reform, especially in the fi eld of pri- is owed. vate law. In addition, China is preparing Furthermore, the arbitration commit- actively for the ratifi cation of the Inter- tees, as standing bodies for the settlement national Covenant on Civil and Political of labour disputes, are not freely chosen by Rights (ICCPR), which will bring further the parties to a dispute and are attached to reform of the Chinese legal system with labour administration institutions whose regard to the effective protection of human interventions infl uence the independence rights, including labour rights. No doubt, of the committees. The absence of trade much action is still needed to strengthen union and employers’ organization rep- the government’s capacity to both adopt resentatives from these committees and and implement labour legislation. the lack of professionalism of committee Studies on Chinese labour law should members explain why a high per centage also be placed in the context of the chal- of arbitration decisions are subsequently lenges posed to China by globalization brought to court. and the internationalization of employ- Finally, even though statistics indicate ment. As four-fi fths of multinational that most court judgements come down in companies have a presence in China, and favour of the workers rather than of their China is said to have been transformed employers, the enforcement of civil judge- into a world workshop, criticized as ments remains a serious problem. The “sweatshop” by some human rights or- enforcement rate for civil and economic ganizations, it should also be noted that

100 a far from perfect legal environment in 8 People’s Daily, “Unstrengthened Institution and China cannot always justify some abusive Manpower Shortage, Labour Inspectorate’s Ability practices by investors from countries of Falling Short of Wishes”, 21 Dec. 2005. 9 the North. Rather than helping China to The Supreme Court’s Interpretation on issues with regard to Applicable Procedures for Labour Dispute Cases improve the protection of workers, such (2001(14)), adopted by the Judicial Committee of the abuses are downgrading working condi- Supreme Court on 22 March 2001 and entering into tions there. According to the ACFTU, only force on 30 April 2001, Article 13. one-third of 480,000 foreign ventures in 10 Chinese Statistic Yearbook, 1992-2003, China China (in 2005) have established trade Statistic Publications. unions, even though Chinese law requires 11 Beijing Morning Post, 1 Dec. 2003, cited by Yang enterprises with 25 employees or more to Lei, 2003: China’s Wage Arrears Memorandum, China Labour Research and Support Network Forum 2004, establish trade unions, which have to be No. 1. affi liated to the ACFTU. 12 Ye Jingyi, Qian, W. 2005. “International Cov- As just one link in the supply chain to enant on Economic, Social and Cultural Rights and the global market, some suppliers have to the Protection of Labour Rights”, Beijing University fi nd a way around the confl ict between Journal, No. 2. compliance with labour standards and the 13 The right to strike was explicitly listed as fun- “sweat price” paid by their foreign buy- damental right of citizens in the 1975 Constitution (art. 28), which was subject to some modifi cations in ers. This price is obviously insuffi cient to 1980. It completely disappeared from the 1982 Con- maintain production while fully respect- stitution. Nevertheless, article 27 of the Trade Union ing the labour legislation. So respect for Law recognizes the occurrence in reality of strikes, both Chinese domestic legislation and in- which have to be dealt with by stipulating that “when there are work stoppages or slow-downs, the trade ternational labour standards requires ef- union should represent the workers in negotiating forts from all actors directly or indirectly and consulting with the enterprise…” related to China’s labour market. 14 Opinion 4 of the Opinions on the Implementa- tion of the Labour Code, published on 4 August 1995, MOLSS (1995), No. 309. Notes 15 MOLSS (2003), No. 180. 16 Hu (family) kou (person) is a household regis- 1 The NPC is the highest legislative body in the tration system. At the birth of each person, he/she People’s Republic of China. It consists of about 3,000 should be registered in accordance with the Hukou delegates and meets for about two weeks each year of his/her mother. The rural Hukou in principle can- usually in spring. Between these sessions, power not be transferred to an urban one except under very is exercised by the Standing Committee of the Na- restrictive circumstances. The system emerged in the tional People’s Congress which consists of about 150 1950s when China prioritized the development of members. heavy industry. A strategy including three compo- 2 The Report on the Implementation of the La- nents was adopted: fi rstly, the State monopolized the bour Code of the People’s Republic of China by the purchase and marketing of key agricultural prod- Law Application Inspection Team of the Standing ucts and obstructed the channels for the free circu- Committee of the NPC, 28 December 2005. lation of urban and rural products in order to keep 3 the wages and living costs of workers in industrial After the 1954 Constitution, there were the fi elds as low as possible. Secondly, the founding of amendments in the 1975 “Cultural Revolutionary agricultural cooperatives in the late 1950s hastened Constitution” and the 1978 “Four Modernizations the process of communizing rural people, and the Constitution”. The 1982 Constitution is rather an fl ow of production materials between urban and enactment or rewriting than an amendment of the rural areas was blocked. Thirdly, the implementa- constitution. tion of the household and residence administra- 4 Article 15 of the 1993 Constitution. tion system was nationalized, in order to regulate 5 Article 11 of the 1999 Constitution adopted on population distribution and labour deployment. It 15 March, 1999. was progressively completed and became the legal 6 basis for the establishment of other social systems. Respectively on 02.11.1990, 28.04.1999, Almost all social systems are based on the Hukou 08.08.2002, and in August 2005. system in a dual society. Treatment and benefi ts as 7 The term is unique to China. It appears dis- regards access to employment, marriage, child care, criminatory but has recently been confi rmed by the compulsory education and social security, etc. vary State Council as the most appropriate term to be used in accordance with the distinct social status deter- to describe the status of this category of worker. mined by Hukou.

101 17 Kaiming, L. 2005. A Social Structure of Lost En- 20 The arbitration committee may make an adju- titlements: An Investigative Report on a Case of Collective dication within 60 days of receiving the application. Labour Dispute, Institute of Contemporary Society Upon receipt of the adjudication, the party may bring Observation, June. the lawsuit to court within 15 days. If the simpliﬁ ed 18 Response No. 1998-24, adopted by the Judicial procedure applies, it takes three months; if the or- Committee of the Supreme Court on 8 June 1998 and dinary procedure applies, it takes six months, which entering into effect on 9 September 1998. may be extended by three months with the approval 19 The Supreme Court’s Interpretation on issues with by the Chief of the court and six months more with regard to Applicable Procedures for Labour Dispute Cases the approval of the superior court; an appeal is pos- (2001(14)), adopted by the Judicial Committee of the sible within 15 days of receiving the judgement, and Supreme Court on 22 March 2001 and entering into the appeals procedure takes three months, with the force on 30 April 2001. possibility of a three-month extension.

102