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Essays ILAW NETWORK The Global Labour Rights Reporter The Global Labour Rights Reporter Access to Labour Justice January 2021 | Volume 1 Issue 1 1 Volume 1 Issue 1 Essays ILAW NETWORK The Global Labour Rights Reporter Global Labour Rights Reporter Volume 1, Issue 1 Copyright held by ILAW Network and contributors © 2021 All rights reserved. Except as permitted under U.S. Copyright Act of 1976, no part of this publication may be reproduced, distrib- uted, or transmitted in any form or by any means, or stored in a database or retrieval system, without the prior written permis- sion of the publisher. Published by the ILAW Network 1130 Connecticut Avenue, NW 8th Floor Washington, DC 20036 USA Please direct all inquiries to [email protected] This publication is available online permanently at: https://www.ilawnetwork.com/ilaw-network-journal-the-global-labour-rights-reporter/ ISSN 2693-9657 (print) ISSN 2693-9665 (online) It is printed in the United States by union labour. Font: Open Sans Layout by Haley Gray GLRR Editorial Board Antonio Loffredo Bobbie Sta Maria Colin Fenwick Femi Aborisade Marlese von Broembsen Mary Joyce Carlson Matías Cremonte Maximiliano Garcez Preeda Tongchumnum Ruwan Subasinghe Sara Khatib Steven Barrett Tonia Novitz 2 Volume 1 Issue 1 Table of ContentsEssays ILAW NETWORK The Global Labour Rights Reporter TABLE OF CONTENTS EDITOR’S NOTE ACCESS TO LABOUR JUSTICE 4 ESSAYS WORKER-ENFORCEABLE SUPPLIER CODES OF CONDUCT AS A TOOL FOR ACCESS TO JUSTICE 7 IN GLOBAL SUPPLY CHAINS BETTINA BRAUN, AVERY KELLY & CHARITY RYERSON ACCESS TO JUSTICE IN LABOUR RELATIONS IN GEORGIA 11 RAISA LIPARTELIANI & TAMAR GABISONIA ACCESS TO LABOUR JUSTICE AND PROCEDURAL BARRIERS IN COMMENCEMENT OF PROCEEDINGS: 15 A PARADIGM SHIFT IN ZIMBABWEAN COURT PRACTICE OR A JUDICIAL MIRAGE? MUNYARADZI GWISAI EFFECTIVE JUDICIAL PROTECTION AND THE RIGHTS OF WORKING PEOPLE UNDER COVID-19: 19 A VIEW FROM COLLECTIVE LAW MIGUEL ANGEL GARRIDO PALACIOS THE RIGHT TO FAIR AND SATISFACTORY WORKING CONDITIONS: RISK PREVENTION AND ACCESS TO JUSTICE 23 MARÍA PAULA LOZANO & MATÍAS CREMONTE AUSTRALIA’S UNIQUE AWARD SYSTEM HAS BEEN TESTED BY THE COVID-19 PANDEMIC: IT HAS BEEN 27 SHOWN TO BE READILY ADAPTABLE TO PROTECT EMPLOYER INTERESTS BUT LESS EFFECTIVE AT PROACTIVELY PROTECTING EMPLOYEES TREVOR CLARKE COVID-19 & NEOLIBERALISM: IMPACTS ON LABOUR JUSTICE IN BRAZIL 32 PEDRO DANIEL BLANCO ALVES & MAXIMILIANO NAGL GARCEZ THE COVID-19 PANDEMIC AND THE WHISTLE-BLOWER PROTECTION IN POLAND 36 ŁUCJA KOBROŃ-GĄSIOROWSKA LABOUR INSPECTION: MORE THAN AN EXERCISE IN ETHICS 39 SAMANTHA RAMSAY & BERYL TER HAAR CASE NOTES PRIVATE EQUITY, HUMAN RIGHTS DUE DILIGENCE, AND GLOBAL LABOUR RIGHTS: 44 THE CASE OF “HOTEL CALIFORNIA” JEREMY BLASI & SAMIR SONTI UNIONS USE THE OECD GUIDELINES TO CHALLENGE GENDER-BASED VIOLENCE AND HARASSMENT 49 IN THE GLOBAL OPERATIONS OF MCDONALD’S CORP MARY JOYCE CARLSON 3 Volume 1 Issue 1 Editor’sEssays Note ILAW NETWORK The Global Labour Rights Reporter EDITOR’S NOTE ACCESS TO LABOUR JUSTICE JEFFREY VOGT, ILAW NETWORK CHAIR What is Access to Justice? These articulations of the concept of access to justice require that States ensure that procedures are avail- The right of access to justice is a multifaceted human able to ensure effective exercise of the right. As the right protected by numerous international1 and re- UN Working Group on Business and Human Rights gional2 instruments and is undoubtedly a customary has pointed out, however, effective procedures do not international law norm.3 At its most basic, it means necessarily guarantee an effective outcome. Indeed, possessing and enforcing a legally protected right be- the Working Group considered a focus on the formal fore a court or other tribunal, although a fuller concep- or procedural aspects of access to justice to embody a tualization of access to justice would include, inter alia, “narrow” sense of the right. Hence, the Working Group equality before the law, fair legal proceedings and an articulated a version of the right that extends beyond effective judicial remedy. access to formal judicial procedures. The Working Group explained that “access to justice can also be In recent years, the United Nations (UN) has had oc- used in a broader sense to deal with larger issues of casion to reassert the importance of access to justice. injustice that may not be addressed through individu- In 2012, the UN Declaration of the High-level Meeting alized remedies offered for a given set of human rights of the General Assembly on the Rule of Law at the Na- abuses, but would require more fundamental changes tional and International Levels emphasized the “right in social, political or economic structures.”6 of equal access to justice for all, including members of vulnerable groups.”4 And, in 2015, the right of access to In the specific context of labour, the ILO constitution7 justice was incorporated into the 2030 Agenda for Sus- and several instruments8 enshrine a right to access to tainable Development - specifically Goal No. 16 (Peace, justice for all workers without distinction, including Justice and Strong Institutions), Target 3, which calls on that workers have access to courts and other formal states to “promote the rule of law at the national and dispute resolution mechanisms to purse an effective international level and ensure equal access to justice remedy. Most recently, the 2017 ILO Tripartite Declara- for all.”5 tion of Principles concerning Multinational Enterprises and Social Policy, drawing on the UN Guiding Principles 1 See, e.g., Universal Declaration of Human Rights, G.A. Res. 217 (III) A, on Business and Human Rights, provides that states at art. 1, 2, 6, 7, 8 and 10 (Dec. 10, 1948)( Articles 1 (equality of rights), 9 2 (entitlement of rights without distinction), 6 (recognition as a person should provide workers access to a remedy. The ILO before the law), 7 (equality before the law and equal protection of the Committee of Experts on the Application of Conven- law), 8 (right to an effective remedy) and 10 (fair and public hearing)). tions and Recommendations has also on numerous oc- 2 See, e.g., Francesco Francioni, The Rights of Access to Justice Under Cus- casions called on states to guarantee access to formal tomary International Law, in ACCESS TO JUSTICE AS A HUMAN RIGHT (Francesco Francioni ed., 2007). 3 Convention for the Protection of Human Rights and Fundamental Freedoms, Europ.T.S. No. 5, at art. 6, 13 (Nov. 4, 1950) (Articles 6 (fair 6 and public hearing) and 13 (right to an effective remedy)); Organi- See, Human Rights and Transnational Corporations and Other Busi- zation of American States, American Convention on Human Rights, ness Enterprises U.N. Doc. A/72/162 (18 July 2017), at ¶16, available at O.A.S.T.S. No. 36, 1144 U.N.T.S. 123, at art. 3, 8, 10, and 25 (Nov. 22, https://documents-dds-ny.un.org/doc/UNDOC/GEN/N17/218/65/PDF/ 1969)(Articles 3 (recognition as a person before the law), 8 (right to N1721865.pdf. a fair trial to determine rights, including labour rights), 10 (right to 7 It is the expectation with any ratified convention that a member compensation) and 25 (right to judicial protection, which includes state protects the rights and standards in national law and practice. the right to a competent tribunal, the right to judicial remedies and See International Labour Organization, Constitution, Article 19. enforcement of said remedies)); African Charter on Human and 8 See, e.g., International Labour Organization (ILO), Examination Peoples’ Rights, 1520 U.N.T.S. 217 at art. 3, 7 (June 27, 1981)(Articles 3 of Grievances Recommendation, 1967 (No. 130) at art. 17 (which (equality before the law and equal protection of the law) and 7 (right recommends that states guarantee access to a labour court should to have his cause heard before an impartial tribunal)). grievances not be resolved at the workplace level); ILO, Workers’ Rep- 4 United Nations, General Assembly, Declaration of the High-level resentatives Recommendation, 1971 (No. 143) at art. 6 (which refers Meeting of the General Assembly on the Rule of Law at the National to access to an “effective remedy” for dismissal of a worker represen- and International Levels, U.N. Doc. A/RES/67/1 (2012), at ¶14, avail- tative); ILO, Forced Labour (Supplementary Measures) Recommenda- able at https://www.un.org/ruleoflaw/files/A-RES-67-1.pdf tion, 2014 (No. 203) at art. 12 (requiring “access to justice”); and ILO, 5 Transforming Our World: The 2030 Agenda for Sustainable Devel- Transition from the Informal to the Formal Economy Recommenda- opment, U.N. Doc. A/RES/70/1 21 (2015), available at https://www. tion, 2015 (No. 204) at art. 11 (requiring “access to justice”). un.org/ga/search/view_doc.asp?symbol=A/RES/70/1&Lang=E (“The 9 ILO, Tripartite Declaration of Principles concerning Multinational new Agenda recognises the need to build peaceful, just and inclusive Enterprises and Social Policy, 329th Session (March 2017) at ¶64 (“gov- societies that provide equal access to justice and that are based on ernments should take appropriate steps to ensure, through judicial, respect for human rights (including the right to development), on administrative, legislative or other appropriate means, that when effective rule of law and good governance at all levels and on trans- such abuses occur within their territory and/or jurisdiction any affect- parent, effective and accountable institutions.”) ed worker or workers have access to effective remedy.”) 4 Volume 1 Issue 1 Editor’sEssays Note ILAW NETWORK The Global Labour Rights Reporter legal mechanisms and remedies.10 • In several countries, millions of workers employed in global supply chains experienced mass unem- The ILO also protects the robust concept of the right to ployment and hunger when global garment brands access to justice, including the right to take collective suspended or cancelled contracts with suppliers action in pursuit of social justice.
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