NEWLETTERS

SPHERE, Newsletter of the Society for the Promotion of Human Rights in Employment

Vol 3 Number 1 August 2000

YEAR IN REVIEW

Seattle and Washington

Since the appearance of the last Sphre News in August 1999 a number of important global events have moved the human rights in employment agenda forward. Probably the most dramatic was the so-called "Battle in Seattle." Between November 30 and December 3, 1999 the World Trade Organization met in that western U.S. city. Those meetings were disrupted by a massive gathering of protesters which dominated world news and brought the issue of human rights in employment into the consciousness of millions of people world wide. Subsequent to Seattle the tone of professional meetings regarding the human rights/trade nexus changed significantly. The position that held that discussion of labour and human rights issues should be kept rigorously separate from trade liberalization became no longer credible. The notion that trade liberalization could be a force for good or evil depending on the rules which guided its progress became increasingly accepted even by many conservative proponents of free trade. As a result the global consensus in support of human rights in employment widened and deepened.

The non-governmental groups seeking to expose the deficiencies of globalization under contemporary rules followed up Seattle with another notable, although more subdued, demonstration at a meeting of the International Monetary Fund in Washington, DC. Whereas at Seattle, the focus was on the WTO's world trade rules, the center of attention in Washington was on the IMF's imposition of difficult and often inappropriate terms on poor countries in need of financial assistance leading in many cases to impoverishment and social chaos.

Stiglitz

The DC theme was picked up and given added credibility in a series of talks given by Joseph Stiglitz, long time academic expert in labour economics and during the latter years of the 1990s Chief Economist and Senior Vice President of the World Bank. Criticism of IMF and World Bank policies by this insider helped to further weaken support for the status quo and stimulated the search for new and more socially acceptable approaches. Several of his relevant talks were still available at the World Bank web site as of mid-August 2000. Address: http://www.worldbank.org/knowledge/chiefecon/stiglitz.htm.

IMF

Of the two institutions, until this year the IMF has been the more intransigent. However, if the speech (available at http://www.imf.org/external/np/speeches/2000/080700.HTM) given to the National Press Club in Washington, D.C. in August 2000 is indicative, the new head of the IMF, Horst Köhler, appears to be ready to move that institution to adopt more socially responsible policies.

Global Compact

During the year, the United Nations continued to seek new adherents to its Global Compact. By the summer of 2000 in addition to several international business organizations such as the International Chamber of Commerce many individual multinational firms agreed to honour the Compact's commitment to "promote human rights, improve labour conditions and protect the environment." For the latest developments with regard to this initiative: http://www.un.org/partners/business/globcomp.htm

OECD

During June 2000 the Organization for Economic Cooperation and Development revised its Guidelines for Multinational Enterprises. Its section on Employment and Industrial Relations  calls for observance of core labour standards, including the right of employees to bargain collectively, nondiscrimination, and the elimination of child labour and forced labour. Originally adopted in the 1970s, research on the Guidelines suggested that they did not have much impact on the actual behaviour of the relevant firms. The new guidelines, however, include a procedure which is intended to produce better results in future. Every OECD member must establish a National Contact Point whose job it is to promote awareness and compliance. Although these agencies were supposed to exist under the old guidelines a survey by the Trade Union Advisory Committee to the OECD found that they were functioning in only a handful of countries. The NCP's will be required to file a report to the OECD annually on their activities.

SPHRE sent in a formal submission to the OECD arguing that, since core labour standards have been affirmed globally to be fundamental human rights and since such rights are understood to be possessed by all human beings simply as a function of their humanity it is improper for them to be qualified by phrases such as "within the framework of applicable law, regulations and prevailing labour relations and employment practices" contained in the draft document. Although the framers of the document did not take SPHRE's advice, it is nevertheless important to let international standard setters know that concerned groups are critically monitoring their activities. SPHRE's full OECD submission is available that the Society's web site: http://www.mericleinc.com/Sphre/html/campaigns.html.

Anti-Sweatshop Movement

The Anti-Sweatshop movement also seemed to gain momentum during the year. Notable was the rapid development of United Students Against Sweatshops. Founded in the United States in 1998, by the summer of 2000 this organization had branches in nearly 150 universities. About 50 universities had agreed to join the Workers' Rights Consortium, an organization established by USAS to oversee compliance with international human rights standards by suppliers of goods carrying the university logo.

Fundamental Declaration Follow-up

A reality check on what is really happening in the trenches was provided during the year by the appearance of the International Labour Organization's report entitled Your Voice at Work, a review of the global situation regarding Freedom of Association and the Right to Bargain Collectively. In it the ILO documents numerous violations and restrictions on these rights from legal bans on trade unions in a few nations to the willing failure of many states effectively to prevent "intimidation, threats and sometimes even murder" which "still awaits many workers who attempt to organize in a number of countries around the world."

Despite the growing global consensus in support of human rights in employment, the report laments the fact that during the recent era of globalization a "significant representation gap has arisen in the world of work." It goes on to insist that "It is important to close the representation gap that has developed in order to secure a voice for men and women in a changing world of work."

But the framers of the report then fail to take the logical next step. One might have expected a clear statement in the report to the effect that employers have a responsibility to make it publicly known that they are prepared to recognize and bargain with representatives freely chosen by their employees and that governments have a responsibility to adopt policies that will effectively begin to close their national representation gaps. However, one will search this report in vain for any such statements. To those painfully aware of developments in many of the rich and powerful nations, the dearth of discussion about relevant developments is a glaring omission. There is little or no discussion of the decline in the representation rate in the United States private sector to under 10% of the labour force and its benign neglect by government, or of similar government acceptance of reduced representation in countries such as Canada, the U.K. and New Zealand.

Although the report notes the existence of a corporate culture in which "a unionized workforce" is viewed as "a sign of poor management" and modern human resource practices are seen as "a way to avoid independent collective representation by the employees" it does not clearly and forthrightly label those practices as violations of international human rights norms as one might have hoped.

SPHRE'S WEB SITE AND DISCUSSION GROUP

Although it has not attracted the traffic of some of the larger NGO's, by the summer of 2000 there had been nearly 1500 visits to Sphre's website. Several related organizations have established links to the site. Sphre members are requested to establish or recommend links wherever appropriate. Available at http://www.mericleinc.com/Sphre is information on the organization's mission and strategy, a membership application form, back copies of the newsletters, several working papers and  information on several of Sphre's initiatives and campaigns.

SPHRE EVENTS

At the initiative of Steve Meisel of LaSalle College in Philadelphia, the Eastern Academy of Management devoted its Spring 2000 meeting in Danvers, Massachusetts to Employment Rights. Sphre Chair Roy Adams gave the keynote speech on "Human Rights in Employment: Implications of the International Consensus for Management Teaching and Practice." The session was well attended and the presentation was followed by a vigorous discussion. A central theme of the paper was the need,  in light of international developments, to reassess the failure of North American management to accept collective bargaining as a human right and the acceptance by business school academics of union and collective bargaining avoidance as legitimate. The paper is at Sphre's web site: http://www.mericleinc.com/Sphre/html/working_papers.html .

Charlie McCollester, head of Pennsylvania Center for the Study of Labour Relations, made sure that human rights in employment was on the agenda of two meetings held in Western Pennsylvania during the spring of 2000. Human rights was among the topics discussed at both the Annual Labour-Management Conference of Indiana University of Pennsylvania on April 7th and at the conference on Labour Law in the 21st Century held at Aliquippa, Pennsylvania on April 8. The latter conference had several sponsors including The Pennsylvania AFL-CIO, the Industrial Relations Research Association - Western Pennsylvania Chapter, the United Steelworkers of America, the Pennsylvania Labour History Society and the Department of Industrial and Labour Relations of Indiana University of Pennsylvania.

ACTIVIVISM

One method recently developed by activists to encourage retailers to ensure that the goods that they sell are produced under decent conditions is to ask City Councils to declare the municipalities "clean clothes" zones. For example, the city of St. John's, Newfoundland passed a resolution declaring that "all clothes for sale in our community, produced domestically or abroad, should be manufactured in accordance with established international codes of corporate conduct regarding wages, workplace health and safety, forced labour, child labour and freedom of association, as embodied in the United Nations and International Labour Organization conventions." Although such declarations are unenforceable they do help to heighten awareness of the issues.

MEETINGS

The theme of this year's annual meeting of  the Industrial Relations Research Association, organized under the chairmanship of Sheldon Friedman of the AFL-CIO, is "Ensuring Respect for Human Rights in Employment." Sheldon, co-author of an early paper (with Roy Adams) reviewing the development of the international labour rights consensus and an active Sphre member, is the in-coming president of the IRRA. The meeting will be held from January 5-7 in New Orleans at the Fairmont, Hotel. The entire programme is available on line at

http://www.irra.uiuc.edu/meetings/NO2001/programdraft.htm.

It should be noted that, despite adopting the human rights theme for its next annual meeting, the IRRA continues to be equivocal about its support for core labour standards as human rights. A few years ago the executive board refused to endorse a vote by the annual meeting to include a clause to that effect in its constitution. Instead it drafted a watered down clause which left out reference to any specific rights. More recently, the executive refused to affirm its support for the ILO's Declaration of Fundamental Principles and Rights at Work.

At the initiative of Sphre Board Member Jim Gross, Cornell University's Institute for Workplace Studies will hold a conference on October 20-21 on "Human Rights in the American Workplace - Assessing U.S. Labour Law and Policy." The meeting will be held in the New York City Metropolitan Area at the Hilton Rye Brook Hotel. Rye Brook is located in Westchester County and is easily accessible from the major New York airports. The complete programme and information on how to register is available at: http://www.ilr.cornell.edu/iws/rights.html.

RESEARCH

Former chair of the U.S. National Labour Relations Board, Sphre member and currently professor of law at Stanford University, Bill Gould, is organizing, together with Bob Flanagan of Stanford's Business School, a major international study of the trade and labour nexus. The object is not only to document what is happening but also to see how international labour standards might be promoted most effectively. In addition to building up a network of researchers, Gould and Flanagan are assembling an international advisory body composed of business and labour leaders.

PUBLICATIONS

Sphre member Hoyt Wheeler recently published "Viewpoint: Collective Bargaining Is a Fundamental Human Right," in Industrial Relations, vol. 39, No. 3, July 2000.

Although a few years old now, Craig Forcese's Commerce with conscience? Human Rights and Corporat Codes of Conduct, (International Centre for Human Rights and Democratic Development, Montreal, Canada, 1997) provides a useful introduction to the subject.

A more recent paper focused on corporate codes of conduct is Kimberly Ann Elliott and Richard B. Freeman's "White Hats or Don Quixotes? Human Rights Vigilantes in the Global Economy."  The paper was presented at a conference on Emerging Labour Market Institutions sponsored by the U.S. National Bureau of Economic Research in August 2000. It should soon be available at the NBER website: http://www.nber.org/.

The full citation to the ILO report on freedom of association and the right to bargain collectively is Your Voice at Work, International Labour Office, Geneva, 2000.

HELP

The success of SPHRE's programme depends on you. If you are an academic member please try to include a section in any and all of your courses on human rights in employment. If you are a union member, please try to get HRE on the agenda of a meeting this year. If you are a journalist please consider writing a story about HRE. If you are a member of an organization that focuses on employment issues please ask that organization to put support for HRE on the agenda at the annual meeting. If you are none of the above be creative. So that these efforts might be publicized in the next newsletter please send information about them to Roy Adams (adamsr@mcmaster.ca).

VIEWPOINT

Should Freedom of Association and the Right to Bargain Collectively be treated as separate and equal rights?

By
Roy J. Adams

Historically collective bargaining has been treated as a right subsidiary to freedom of association. Legislation in many countries, for example, assumes a process in which workers first exercise their freedom of association in order to join or form a trade union which then seeks to win recognition for bargaining purposes from employers. In this scenario bargaining without prior unionization is as unthinkable as fire without fuel.

In recent years, however, the notion of collective bargaining as a separate and stand-alone right has begun to emerge. The ILO's 1998 Declaration of Fundamental Principles and Rights at Work, for example, makes it clear that all member states have a responsibility to promote both "freedom of association and the effective recognition of the right to collective bargaining." Were collective bargaining no more than a subsidiary and inherent aspect of freedom of association specific reference to a right to collective bargaining would be redundant and thus unnecessary. ILO documents, in addition, define collective bargaining as "negotiations which take place between an employer, a group of employers or one or more employers' organizations on the one hand and one or more workers' organizations on the other..." (See B. Gernigon, A. Odero and H. Guido, "ILO principles concerning collective bargaining," International Labour Review, vol. 139, no. 1, 2000). This definition would seem to include negotiations between employers and worker organizations such as works councils established by statute in addition to trade unions organized by the grassroots efforts of workers.

The notion that freedom of association and the right to collective bargaining are separate, stand-alone rights has important implications for industrial relations policy and practice. Thus, over the twentieth century a very strong international convention developed which holds that freedom of association implies the right not to associate. That convention deems as improper agreements or laws compelling union membership. As that convention has strenthened, the practice of mandatory membership has been fading in countries in which it was once actively practised. For example, in most American states although unions may legally insist that all members of statutory bargaining units pay union dues, they may not compel reluctant unit members to take on the full duties and responsibilities of union membership. In Britain, the Thatcher regime outlawed the "closed shop" and the current Labour Government of Tony Blair has opted to accept that policy.

Although "choice" has emerged as the appropriate criterion with respect to unionization, it is not at all clear that "choice" is the appropriate standard with respect to the right to bargain collectively. Thus, the law of several countries with statutory works councils simply states that councils will be established in all appropriate workplaces. Universality of representation is the criterion, not choice.

That universality should be the appropriate criterion for evaluating compliance with international commitments to promote collective bargaining would seem to follow naturally from general democratic principles. Within democratic societies the "choice" of  "government by dictator" does not exist. Representative governance at national, regional, and municipal levels is constitutionally required and by convention similar forms are universally applied in clubs and most other organizations. Since collective bargaining has long been considered the chosen method in liberal democratic states to apply democratic principles to economic activity, the criterion of universality would seem to be appropriate.

If universality is the proper criterion for evaluating compliance with international commitments to promote collective bargaining then the existence of a "representation gap" is as much of a human rights problem as is the persistence of discrimination, child labour and forced labour.

This issue it seems to me deserves widespread discussion.