ILO CORE LABOUR STANDARDS and OECD GUIDELINES FOR MULTINATIONAL ENTERPRISES

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ILO CORE LABOUR ILO CORE LABOUR STANDARDS STANDARDS

andand

OECD GUIDELINES FOR OECD GUIDELINES FOR MULTINATIONALMULTINATIONAL

ENTERPRISESENTERPRISES

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ION ILO CORE LABOUR STANDARDS &ILO CORE LABOUR STANDARDS &

OECD GUIDELINES FOR MULTINATIONALOECD GUIDELINES FOR MULTINATIONALCOMPANIESCOMPANIES

INTRODUCTION INTRODUCTION

The International Labour Organisation (ILO) Core Labour StandardsThe International Labour Organisation (ILO) Core Labour Standards and the OECD Guidelines for Multinational Enterprises OECD Guidelines for Multinational Enterprises are 2 international instrumentsthat can be used by organisations or individuals which are not directly affected by a

violation oftrade union rights.

The ILO Core Labour Standards are international legal instruments (internationalconventions) and the OECD Guidelines are soft law instruments (guidelines).

However, they may both be considered to be soft law instruments, because inboth cases no effective mechanisms have yet been designed to ensure enforcementof the principles they promote.

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The two instruments refer to The two instruments refer to fundamental trade union rightsfundamental trade union rights, i.e.:, i.e.:The right to freedom of association and the right to collective bargainingThe right to freedom of association and the right to collective bargaining

(The OECD Guidelines refer to additional workers’ representatives right, such as the right to (The OECD Guidelines refer to additional workers’ representatives right, such as the right to information and consultation, etc…).information and consultation, etc…).

The two instruments use The two instruments use two different channelstwo different channels to promote fundamental trade union to promote fundamental trade union rights : rights :

1.1. the legal obligations of States/Governments to comply with international conventions the legal obligations of States/Governments to comply with international conventions they have ratified (ILO),they have ratified (ILO),

2.2. The good will of Multinational Enterprises to live up to their commitments to respect The good will of Multinational Enterprises to live up to their commitments to respect fundamental human and labour rights and good governance principles (OECD).fundamental human and labour rights and good governance principles (OECD).

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STRUCTURE OF THE PRESENTATION STRUCTURE OF THE PRESENTATION

1.1. Brief overview of the International Labour Organisation (ILO) and of the Brief overview of the International Labour Organisation (ILO) and of the Organisation for Economic Cooperation and Development in Europe (OECD)Organisation for Economic Cooperation and Development in Europe (OECD)

2.2. Introduction to the Core Labour Standards and to the GuidelinesIntroduction to the Core Labour Standards and to the Guidelines

3.3. How can trade union andHow can trade union and/or/or EWCs use the complaint mechanisms EWCs use the complaint mechanisms

4.4. ConclusionConclusion

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1. 1. Brief overview of the International Labour Organisation (ILO) and of Brief overview of the International Labour Organisation (ILO) and of

the Organisation for Economic Cooperation and Development in the Organisation for Economic Cooperation and Development in Europe (OECD)Europe (OECD)----------------

The International Labour OrganisationThe International Labour Organisation was created in1919, as part of the Treaty of Versailles.

Trauma of the first world war. The preamble of the ILOConstitution states that : « « Universal and lasting peace canUniversal and lasting peace canbe accomplished only if it is based on social justicebe accomplished only if it is based on social justice » ».

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The preamble of the Constitution of the ILOThe preamble of the Constitution of the ILO, recognises that:

1. “Where social injustice, hardship and privation existpeace and harmony are imperiled”,2. “The failure of any nation to adopt humane conditions oflabour is an obstacle in the way of other nations whichdesire to improve the conditions in their own countries”.

Therefore the ILO assigns itself the following objectives ILO assigns itself the following objectives :1. Strengthen tri-partism and social dialogue2. Promote and realise standards and fundamental principles and

rights at work3. Enhance the coverage and effectiveness of social protection for

all

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The ILO is the only tri-partite international organisation ILO is the only tri-partite international organisation : Employers, trade unions and governments are all represented.

The three parties negotiate negotiate and draft international labourdraft international labourconventions/standardsconventions/standards. Convention will then be adopted byadopted bythe International Labour Conferencethe International Labour Conference (held every year inJune in Geneva, Switzerland). Once a convention is adopted, it willbecome binding to a Member State if it is ratified by its nationalParliament.

Basic trade union rightsBasic trade union rights (freedom of association &collective bargaining) are fundamental labour rights which are

embedded in ILO conventions.

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The Organisation for Economic Cooperation andThe Organisation for Economic Cooperation andDevelopment Development was created in 1948 after the second worldwar.

Its original mission was to administer the funds of the MarshallPlan and only gathered European countries.

Today it is a Forum of 30 countries « committed to democracyand the market economy »,

It provides statistic, economic and social data, analyses ofeconomic development and, act as a fierce advocate of free marketand free trade policies,

The OECD does not produce legislation.

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2. 2.

Introduction to the ILO Core Labour Standards and the OECD GuidelinesIntroduction to the ILO Core Labour Standards and the OECD Guidelines

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THE ILO CORE LABOUR STANDARDSTHE ILO CORE LABOUR STANDARDS

The ILO Declaration on Fundamental Principles and Rights at WorkThe ILO Declaration on Fundamental Principles and Rights at WorkAdopted in 1998, the Declaration commits Member States to respect and promote

principles and rights in 4 categories4 categories, whether or not they have ratified the relevantwhether or not they have ratified the relevant

ConventionsConventions.

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ILO CORE LABOUR STANDARDSILO CORE LABOUR STANDARDS

These 4 categories areThese 4 categories are: :

1.1. freedom of association and the effective recognition of the right to freedom of association and the effective recognition of the right to collective bargaining, collective bargaining,

2. the elimination of forced or compulsory labour, 3. the abolition of child labour, and 4. the elimination of discrimination in respect of employment and

occupation.

(Convention 87 – Freedom of Association and Protection of the Right to Organise, Convention 98 - Right to Organise and

Collective Bargaining, Convention 29 – Forced Labour, Convention 105 - Abolition of Forced Labour, Convention 111 –

Discrimination (Employment and Opportunity), Convention 100 – Equal Remuneration, Convention 138 – Minimum Age,

Convention 182 – Worst Forms of Child Labour)

(These are universal rights, they apply to all people in all States - regardless of the level of economic development)

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FREEDOM OF ASSOCIATION & EFFECTIVE FREEDOM OF ASSOCIATION & EFFECTIVE RECOGNITION OF THE RIGHT TO COLLECTIVE RECOGNITION OF THE RIGHT TO COLLECTIVE BARGAININGBARGAINING

These two fundamental rights are recognised in ILO Conventions n°87 (1948) and 98 (1949)These two fundamental rights are recognised in ILO Conventions n°87 (1948) and 98 (1949)

Convention n°87 Convention n°87

“ Workers..., shall Workers..., shall have the right to : establish and to join organisations of their own choosing without previous authorisation.” “to draw up their constitutions and rules, to elect their representatives in full freedom,to organise their administration and activities and to formulate their programmes.”

“The public authorities shall The public authorities shall : refrain from any interference which would restrict this right or impede the lawful exercisethereof”. take all necessary and appropriate measures to ensure that workers and employers may exerciseensure that workers and employers may exercisefreely the right to organisefreely the right to organise.

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FREEDOM OF ASSOCIATION & EFFECTIVE FREEDOM OF ASSOCIATION & EFFECTIVE RECOGNITION OF THE RIGHT TO COLLECTIVE RECOGNITION OF THE RIGHT TO COLLECTIVE BARGAINING BARGAINING

Convention n°98 : Convention n°98 :

This convention defines the practical conditions the practical conditions that must be guaranteed to ensureproper freedom of association and right to collective bargaining

“Workers shall be protect against acts of anti-union discrimination in respect of their employment”

What protection should be guaranteed ? “ (a) Employment of a worker must not be subject to the condition that he shall not join a union orshall resign from trade union membership; (b) A worker shall be dismissed of or be otherwise prejudiced by reason of union membership orbecause of participation in union activities.”(c) Workers' organisations shall be protected against any acts which are designed to promote theestablishment of workers' organisations under the domination of employers or employers‘ organisations, or to support workers' organisations by financial or other means, with the object ofplacing such organisations under the control of employers or employers' organisations”.

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FREEDOM OF ASSOCIATION & EFFECTIVE FREEDOM OF ASSOCIATION & EFFECTIVE RECOGNITION OF THE RIGHT TO COLLECTIVE RECOGNITION OF THE RIGHT TO COLLECTIVE BARGAININGBARGAINING

The right to collective bargaining The right to collective bargaining is detailed in Convention n°98 :

“Measures appropriate to national conditions shall be taken to encourage and promote the full

development (...) of (...) voluntary negotiation between employers voluntary negotiation between employers (...) andand

workers' organisations with a view to the regulation of terms and conditions of employment by meansworkers' organisations with a view to the regulation of terms and conditions of employment by means

of collective agreementsof collective agreements”.”.

Where a company fails to respect the right to freedom of association, the right to organise Where a company fails to respect the right to freedom of association, the right to organise and to bargain collectively, it is the duty of the public authorities of the country concerned and to bargain collectively, it is the duty of the public authorities of the country concerned to ensure that these rights are enforced.... to ensure that these rights are enforced....

... If the public authorities fail to ensure enforcement, a complaint to the ILO may be lodged ... If the public authorities fail to ensure enforcement, a complaint to the ILO may be lodged by interested parties.by interested parties.

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The OECD Guidelines for Multinational EnterprisesThe OECD Guidelines for Multinational Enterprises

First adopted in 1976 Revised and strengthened Guidelines adopted in 2000 The Guidelines are not legally binding, but they are not optional for

companies Countries that have adopted the Guidelines should encourage the

enterprises operating in their territories to observe the Guidelines wherever they operate’

The Guidelines are composed of 10 chapters containing principles by The Guidelines are composed of 10 chapters containing principles by which which a company should abide in all its activities, wherever it a company should abide in all its activities, wherever it operates.operates.

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Four of these 10 chapters are of particular interest for trade unions as they Four of these 10 chapters are of particular interest for trade unions as they relate to economic and social matters. relate to economic and social matters.

Companies should :Companies should : Contribute to sustainable economic, social and environmental progress,

respect human rights, build capacity with local communities, Support good

Corporate governance, promote awareness of company policies to employees

(Chapter 2, General policies)(Chapter 2, General policies)

Ensure that timely, regular, reliable and relevant information istimely, regular, reliable and relevant information is

DisclosedDisclosed. Information should cover basic information, company activities,Information should cover basic information, company activities,

structure, financial situation and performancestructure, financial situation and performance, further information regarding,

for example, social and/or environmental reporting are also covered. (Chapter (Chapter 3, Disclosure)3, Disclosure)

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The abolition of child labour, elimination of forced labour, nonDiscrimination (on grounds of race, colour, sex, religion, political opinion,national extraction or social origin other than to address disadvantage),observe standards not less favourable than comparable employer, employand train local labour. (Chapter 4, Employment)(Chapter 4, Employment)

The right to trade union representation, the right to ‘constructiveThe right to trade union representation, the right to ‘constructivenegotiations’, the provision of facilities to support these rights, providenegotiations’, the provision of facilities to support these rights, provideinformation necessary for meaningful negotiations, information necessary for meaningful negotiations, not use the threat oftransfer to unfairly influence negotiations or the right to organise. (Chapter 4, Employment)(Chapter 4, Employment)

Promote consultation and co-operation, provide information toemployees to give them a ‘true and fair view of the performance’ of the entityor whole organisation, allow consultation with representatives ofmanagement authorised to take decisions. (Chapter 4, Employment)(Chapter 4, Employment)

( = ILO FUNDAMENTAL LABOUR RIGHTS)

Where a company fails to respect these guidelines, an interested party (a trade Where a company fails to respect these guidelines, an interested party (a trade union, an EWC) may decide to lodge an OECD complaint.union, an EWC) may decide to lodge an OECD complaint.

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3. 3.

How to use the ILO and OECD complaint mechanisms?How to use the ILO and OECD complaint mechanisms?

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The ILO Core Labour Standards ILO Core Labour Standards and the OECD Guidelines OECD Guidelines are particular instruments:

There are no effective enforcement mechanisms, but a complaint mechanism exist.

The two instruments use different channels to achieve similar means : The ILO complaint mechanism is used to put pressure on governments so they

enforce their own labour legislation or their international commitment to respect the principle of freedom of association and collective bargaining.

The OECD complaint mechanism is used to put pressure on a company to have it comply with basic principle of social responsibility and, additionally, make them bad publicity.

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THE ILO COMPLAINT MECHANISM THE ILO COMPLAINT MECHANISM consists in writing a letter to the ILO Committee on Freedom of Association, in which allegations of trade union rights’ violations are described clearly and accurately.

The Committee on Freedom of Association The Committee on Freedom of Association was set up in 1951. It has examined more more than 2,000 cases since its creationthan 2,000 cases since its creation. There are currently 142 under its scrutiny.

Paul van der HeijdenChairmanCommittee on Freedom of AssociationInternational Labour OfficeRoute des Morillons, 4CH - 1211 Geneva 22Switzerland

The Committee on Freedom of Association The Committee on Freedom of Association will :

1. Examine the complaint,2. Consider whether it falls under its remit, 3. Send a request to the Government of the country where the violation took place to

allow it to respond,4. Draft recommendations with which the Government is « invited » to comply.

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The ILO complaint mechanism is only open to workers’ and employers’ organisations: NGOs or even European Works Council are not entitled to lodge a complaint.

However, a European Works Council a European Works Council may lodge a complaint in the name of the trade union of one of its member in solidarity with employees of its company abroad.

Example of cases when a complaint may be lodged :Example of cases when a complaint may be lodged : - Workers’ have been dismissed, downgraded, intimidated, threatened, hassled or discriminated

because 1/ they have joined a union, 2/ the union has been gaining membership and the management decides to dismiss union members to undermine the union’s influence, 3/ they have undertaken collective action (strike, lock-out, sit-in etc…),

- When there is evidence that the management is supporting directly or not a competing trade union,- When the management refuses to negotiate after constructive attempts have been made on the

part of workers’ representatives...

It is important that any allegations that is made against an employer is supported byhard and relevant evidence.

In some instances, the ILO complaint will come as a support to legal proceedingsundertaken against the employer at national level and often as a way to accelerate theadvent of a solution, either legal (through the court) or amicable.

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The OECD COMPLAINT MECHANISM The OECD COMPLAINT MECHANISM will put pressure on the company rather thanon its Government, by reminding it universal principles of good governance and labourrights. But the complaint procedure will involve the Government.

OECD member States have established « National Contact Points » (NCP)« National Contact Points » (NCP), whichare in charge of examining complaints lodged against a company of that country. TheNCP will rather offer their « good offices » to settle a dispute amicably.

Contrary to the ILO mechanism, the OECD complaint mechanism is open to anythe OECD complaint mechanism is open to anyparties interested in a case of violation parties interested in a case of violation (NGOs, trade unions, employers’ association,group of individuals…).

At present, only 90 cases have been lodged with the NCPs.

The complaint may be lodged against a company originating from an OECD countryagainst a company originating from an OECD countryor against the subsidiary of a company outside the OECD area. The Guidelines thereforeThe Guidelines thereforeapply worldwide...apply worldwide... (Bulgaria and Romania Bulgaria and Romania are not members of the OECD but theGuidelines apply to companies and their subsidiary having operations there).

Do the Guidelines apply to the supply chain ? Do the Guidelines apply to the supply chain ?

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How to proceed concretely with the complaint ?How to proceed concretely with the complaint ? The complaint must be written and sent to the National Contact Point (addresses are

made public on www.oecd.org),

It must explain what is your stake, your link to the company or to the violation,

It must state clearly what paragraphs or chapters of the Guidelines have been breached (prioritise !)

It must detail accurately facts that demonstrate that specific chapters of the Guidelines have been breached.

It must bring hard evidence supporting allegations of violations.

It must stress the urgencystress the urgency of the situation and request a prompt examination of the request a prompt examination of the complaint...complaint...

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4. 4. ConclusionConclusion----------------

The ILO and OECD complaint mechanisms are international instrumentsILO and OECD complaint mechanisms are international instruments,recognising workers’ rights to freedom of association and collective bargaining asuniversal rights,

They are accessible to stakeholders not directly affected by a violation accessible to stakeholders not directly affected by a violation (EWCs in thecase of the OECD Guidelines, other trade unions, EMF),

They can be instruments of trade union solidarity can be instruments of trade union solidarity in order to defend trade unionrights in countries where enforcement is weak,

They offer two different channels to defend and promote trade union rights : either byputting pressure of the Government of the country where the violation takes place or onthe company itself.

In both cases, publicity of the violation publicity of the violation is one the best instrument to put pressure on acompany and/or its subsidiaries.

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Weaknesses of the complaint mechanisms :Weaknesses of the complaint mechanisms :

Both the ILO and OECD complaint mechanism are slow to deliver...

The ILO system is dependent on the “good will” of the member State to respond indue time,

The OECD system is dependent on the “good will” of the NCP and of the company,

The lack of possible sanctions for companies or government is the main weakness of these instruments.

Nevertheless, in both cases the accumulation of cases creates a form of “jurisprudence” which is favourable to workers and their organisations.

ILO CORE LABOUR STANDARDS and OECD GUIDELINES FOR MULTINATIONAL ENTERPRISES

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