A Labour Law Summary

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Week 2 Summary of readings THE SUPERVISORY MECHANISM OF THE ILO The future of Labour Law: Is there a role for International Labour standards? The Traditional System Key reason for the establishment of the ILO= the perception that workers need to be protected against the adverse effects of international competition. The idea was that states shouldnt be able to obtain an unfair advantage by tolerating abusive labour conditions. Art 41 of the original ILO Constitution articulated some methods and principles of special and urgent importance o Labour should not merely be a commodity or article of commerce o Wages should be adequate to have a reasonable standard of life o The right of association for all lawful purposes o An 8 hour working day, or 48 hour working week o A weekly rest of at least 24 hours o Abolition of child labour o Equal pay for equal work between men and women o The establishment of a system to ensure protection for the employed. These are now reflected in the preamble to the Constitution. There are 8 core ILO human rights standards, which form the basis of the Declaration of Fundamental Rights and Principles (adopted in 1998). These are; o Conventions 87 and 98 (Freedom of Association) o Equal Remuneration Convention (number 100) o Convention 29 (forced labour #1) o Convention 105 (Forced labour) o Discrimination (Employment and Occupation Convention) (No 111) o Minimum Age Convention (No. 138) o Worst Forms of Child Labour Convention (No 182) Apart from these issues the standard setting in the post war period has concentrated upon the needs of specific occupational groups; occupational health and safety; social security and conditions of work. There is an assumption that all countries will ratify new Conventions but there is no obligation to. Ratifying states must take such action as may be necessary to make effective the provisions of the Convention. Failure to do so is a breach of international law. States must report annually to the International Labour Office on the measures it has taken to give effect to the Conventions to which it is a party (art 22 of the ILO Constitution). The Director-General is supposed to make summaries of all the reports before the next meeting of the ILC but in practice this is delegated to the CEACR.

CEACR:

The CEACR consists of 20 jurists and meets once a year for 3 weeks. It is meant to examine reports on all ratified Conventions that have been submitted over the previous year, along with the reports on un-ratified Conventions and Recommendations that have been requested under Art 19 of the ILO Constitution. The report of the CEACR is used as the basis for discussion at the ILC Committee on the Application of Conventions and Recommendations. This is how member states that have breached ratified Conventions can be called to give a public account of themselves. Reports of the CEACR are often used as a source of interpretation of Conventions and Recommendations. They are not however formal determinations as the interpretation of international labour standards (ILS) is meant to be left to the IJC (Art 37 of ILO Constitution). Despite this they are still the most authorative source as to the meaning and effect of ILS.

What has gone wrong? Quantity and Quality of Standards: As of June 2003 the ILC had adopted a total of 379 formal standard setting instruments. Also the Constitution and the Declaration of Philadelphia expressly or impliedly impose obligations on member states by virtue of the fact of membership. There have been suggested that there are too many standards, and they are of questionable quality and relevance. On the other hand it has been said that there are only too many if the standards do not meet a real need and/or they do not make meaningful provision in relation to the issues they deal with. There is also a need for new standards to take account of changing circumstances e.g. the emergence of new forms of work relationships and changing community expectations. Quality is subjected but can be measured in general terms by reference to whether a standard makes provision that moves beyond existing standards and has the capacity to confer an actual benefit upon the people whose interests it is meant to protect/promote. Many standards have become obsolete. 27 Conventions have been shelved or withdrawn but they are still theoretically on the statute book and remain binding on states unless denounced.

Ratification and Compliance: Ratification levels provide a rough guide to the practical impact of Conventions. Ratification levels are dropping as states become increasingly reluctant to do so. More important is the level of compliance with those Conventions that are ratified, but this too is poor. o During Cold War era many governments ratified Conventions that had no relevance to them, or they had no realistic prospect of establishing

and maintaining compliance. They did this to get kudos for having the most ratifications. Also many countries do not honour their reporting obligations, or having done so are found to be in breach of their obligations incurred by ratification. Many of the most serious areas of non-compliance related to the core standards in the 1998 Declaration. Levels of non-compliance recorded in the Reports of the CEACR, and of the Governing Bodys Committee on Freedom of Association (CFA) can be assumed to significantly understate the extent of non-compliance. This reflects the fact that the entire system of supervision is in a state of crisis. o The existing machinery cannot cope with the volume of material generated by ratifying states. o In practice, the greater part of the work of the CEACR is done by the Office which is extremely under resourced. E.g. the Freedom of Association Branch of the ILS Department has about 8 permanent officials. A Secretariat of this size cannot be expected to develop a level of understanding of the national legal systems of the 157 countries that have ratified Conventions 87 and 98 to ensure that the CEACR and CFA are adequately informed of the state of compliance with each of these conventions in each member state. o Many states dont hand in reports when they are due. Sometimes this is a lack of commitment but it is often a lack of resources (e.g. in developing countries).

Globalisation and Other Challenges Globalisation and Trade Liberalisation Part of the rationale for the adoption of ILS was to try to ensure that nation states did not obtain an unfair competitive advantage in the international marketplace by tolerating abusive labour conditions. However this logic is flawed given that under the voluntarist model of the ILO member states can simply maintain their unfair advantage by not ratifying. There has also always been a tension between preventing unfair competition through maintenance of abusive labour practices and a recognition that some countries can only compete effectively because of their lower labour costs. This has special significance in the context of trade liberalisation. Some say that access to liberalised trade regimes should be conditional upon adherence to core labour standards. On the other hand this is condemned on that grounds that this is simply a colourful device to protect industry in the developed world. The ILO has not addressed these issues in a coherent or effective manner- the trade/labour standards nexus has been placed in the too hard basket. o For example the adoption of the 1998 Declaration was only possible because of a clause which expressly stipulated that it could not be used for purposes of trade protection, or to deprive member states of their comparative advantage. The ILO has also failed to address the power of transnational corporations and their capacity to direct investment from countries that adhere to relatively high labour standards to those countries who do not.

The end of the Cold War: The factors that impelled the practice of trophy ratification ended. The break up of the Soviet Union and Czechoslovakia and Yugoslavia led to new ratifications as the states ratified them in their own right. But there was no longer any consensus that supported adopting these standards as a means of economic, political or moral pressure on the other side. Also Western governments became increasingly uncomfortable with the right to strike.

The Ascendancy of Neo-liberalism Neo-liberal economic orthodoxy is hostile to any kind of interference with the operation of market forces. Neo-liberal governments in developed countries want increased labour market flexibility and dont want labour standards in the countries in which they do business. This has caused some countries to withdraw from active participation in the ILO.

Competing Sources of Standards: The ILO is facing competition from regional groups e.g. the EU. The emergence of the EU as a source of international labour law is especially significant because it is supranational labour law that can be enforced both through domestic courts and tribunals and through Community institutions. However this has impoverished the ILOs standard setting and supervisory functions because it has traditionally been the democracies of Western Europe that have been the key drivers of the ILO. On the other hand the EU has actively pursued the possibility of ILO membership, which suggests that the ILO is seen to have a continuing relevance in the context of European integration. Also European labour law is mostly about individual rights and not issues such as freedom of association and the right to collective bargaining. This shows that the ILO standards are still of real relevance to EU members.

An organisation in crisis: The ILO is excessively compartmentalised and has a overly hierarchical bureaucracy of uneven ability. The appropriateness of Tripartism is questioned. o Nowadays, most member states are developing countries o Large workplaces