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the rightto strike

I N T E R N A T I O N A LVolume 21 Issue 4 2014

INTERNATIONAL CENTREFOR TRADE UNION RIGHTSunion

rights

■ The crisis at the ILO continues

■ There are now in Europe clear attempts to dissuade people from participating in protests

Focus on

CONTENTS

INTERNATIONAL union rightsPage 1 Volume 21 Issue 4 2014

Volume 21 Issue 4 2014Journal of the International Centre for Trade Union Rights

● Centro Internacional para los Derechos Sindicales● Centre International pour les Droits Syndicaux

I N T E R N A T I O N A L

unionrightsEditor

Daniel Blackburn

Guest Editor

Sandra Vermuyten

Editorial Board

David Bacon, Colin Fenwick, Kally Forrest, Steve Gibbons, John Hendy QC, Carolyn Jones Chair, Eric Lee, Pascal Lokiec, Sindhu Menon, Elizabeth J. Molinari, Jill Murray, Rory O’Neill, John Odah, Tom Sibley, Rita Olivia Tambunan, Charles Woolfson

Legal Editor

Professor Keith Ewing

ICTUR International

UCATT House177 Abbeville RoadLondon SW4 9RL020 7498 4700Fax 020 7498 0611e-mail [email protected] site www.ictur.org

President

John Hendy QC

Vice Presidents

Fathi El-Fadl, Professor Keith Ewing, Victoria Montero, Lortns Naglehus, Yoshikazu Odagawa, Jeffrey Sack QC, Jitendra Sharma, Jeff Sissons, Surya Tjandra, Ozlem Yildirim

Director

Daniel Blackburn

Subscriptions

Four issues: £20/US$30/€25Cheques should be made payable to IUR and sent toICTUR, UCATT House, 177 Abbeville Road, London SW4 9RL, UK

Printed by The Russell Press, Nottingham

INTERNATIONAL union rights

ISSN 1018-5909

2 Editorial: the right to strike

3 Crisis at the ILO and PSI Campaign for the Right to Strike Sandra Vermuyten

5 A human right curtailedRuwan Subasinghe

6 An attack on democracyJesús Gallego

8 The right to strike in the public sector in BrazilPedro Armengol

10 The politicisation and suppression of social rights in BelgiumJan Buelens and Joke Callewaert

12 How do workers respond to an employers’ strike?Daniel Blackburn

14 ICTUR in Action: InterventionsBrazil, China, Colombia, Nicaragua, Peru, Qatar, Swaziland, Tinga, Tunisia, United Nations

16 Collective bargaining as a tool of deregulationPascal Lokiec

19 ICTUR in Action: A human rights defender who should never have been prosecutedDaniel Blackburn

20 Blacklisting Update: You couldn’t make it up…Dave Smith

22 Transport workers and global supply chain governance Jeremy Anderson

24 What Next after Rana Plaza: Progress in the Garment Industry?Steve Grinter

26 WorldwideBelgium, Ebola outbreak, Europe, Fiji, Greece, ILO, Migrant workers, Privatisation, Trade agreements, South Africa, UN Special Rapporteur, Uzbekistan

28 ICTUR in ActionStaff Changes, Trade Unions of the World Publication

INTERNATIONAL union rights Page 2 Volume 21 Issue 4 2014

IUR ❐ EDITORIAL

Editorial: the right to strike

This edition of IUR returns to the theme of theright to strike just 18 months since we cov-ered this very subject in IUR 20.2. The rea-

son for this rapid recycling of the theme is thatthe right to strike – which our Guest EditorSandra Vermuyten calls ‘the only effective demo-cratic right’ available to workers in persistent con-flict situations – has been under sustained attackthroughout this time. Attacks on the right to strikeare apparent in the international human rightssystem due to an ongoing argument raised by theEmployers Group within the ILO. In an articlelooking back over the past two years I outlinedevelopments in the ongoing dispute at ILO,while Ruwan Subasinghe of the ITF says that theEmployers are trying ‘to undermine the authorityof the ILO’s supervisory mechanisms’ and con-cludes that ‘there can be no compromise on theright to strike’. While the process of negotiationand the struggle to gather support for an appli-cation to the International Court of Justice has notprovided any quick fixes it does now appear thatthe Workers have commitment to finding a clearlegal resolution to the problem, they are nowstrongly backing a reference to be made to theICJ, with Employers so far resisting this solution,and Governments divided.

Outside the ILO the right to strike is also underattack as Jesús Gallego of Spain and Jan Buelensand Joke Callewaert of Belgium tell us from what

is starting to look increasingly like an anti-demo-cratic crack down on key forms of social partici-pation. There seems to be a movement, Buelensand Callewaert argue, ‘to deter people from tak-ing part in social action and frighten them’. Suchdeterrents include excessive violence or thethreat of it, but are accompanied by an ideologi-cal campaign that seeks to portray strikes anddemonstrations not as expressions of populardemocratic social participation but rather asforms of insidious dissent, even casting the vocal-isation of criticism as ‘practically criminal’. InSpain a similar process is underway, though itappears to be more greatly entrenched: theGovernment, Gallego tells us, is ‘criminalising theright to strike and to demonstrate’. Threateningsentences are being passed against pickets andtrade unionists face ‘sentences aiming at discour-aging workers from mobilising’.

Also in this edition Pascal Lokiec returns toexpand on a theme he has previously raised withIUR, that of the far-reaching transformationsoccurring in French labour law and industrialrelations in which the focus is moving away froman industrial relations system ‘based on Stateinterventionism’ towards a more adaptable sys-tem of deregulation and individualisation that isultimately posing a ‘severe’ challenge for unions.And also returning to an issue he has raisedbefore in these pages is Dave Smith who expos-es yet another murky layer in the scandalousblacklisting episode in which the employmentprospects of thousands and thousands of con-struction workers were scuppered after an indus-try associated body recorded their involvementwith trade union and labour movement activities.

We are also pleased to feature a report fromJeremy Anderson of the ITF, who gives us aninsight into how global unions are studying howlabour rights are handled across complex supplychains in which products move through sortinghubs, warehousing operations, and docks,involving more than a dozen different groups oftransport workers as the travel across the globe.And finally Steve Grinter, formerly of theITGLWF, updates us on the efforts that have beenmade over the past two years to address safetyand union rights in the garment sector ofBangladesh.

Daniel Blackburn, Editor

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FOCUS ❐ THE RIGHT TO STRIKE

Crisis at the ILO andPSI Campaign for theRight to Strike

Until recentlymost EuropeanUnion countriescould boast ofbest practices onsocial dialogueand collectivebargaining, thistrend is nowchanging rapidly

SANDRA VERMUYTEN isEquality and Rights Officerwith Public ServicesInternational in Ferney Voltaire

and privatisation weakening trade unions andworkers’ rights. In fact, while in most of theemerging economies PSI affiliates still have tofight to obtain full recognition of union andworkers’ rights, in other countries the austeritypolicies producing cuts in public spending areforcing PSI members into defensive battlesagainst the rise of unemployment, privatisation ofpublic services, the reduction of welfare provi-sions and wage cuts.

Whereas until recently most European Unioncountries could boast of best practices on socialdialogue and collective bargaining, this trend isnow changing rapidly. Governments use thearguments of international financial institutions todismantle labour relations where it hurts most forfuture generations: in the public sector. Instead ofusing collective bargaining as a means of achiev-ing greater efficiency and better management ofthe enterprise or public institutions, top-downdecisions are pushed through that leave no spacefor negotiation.

The types of measures adopted by govern-ments include: wage freezes or cuts for publicservants (25 percent in some cases and more than20 percent in others); reduction in publicemployment by as much as 15 or 20 percent,sometimes through redundancies linked to thedissolution of many semi-public enterprises, pub-lic bodies and agencies, or through non-replace-ment of retired public servants; pushing back theretirement age; and freezing or cutting pensionsand benefits in the event of redundancy.

More importantly, these cuts have a muchwider impact on living standards and the poten-tial of employment of future and current genera-tions, for example by cutting child care for work-ing women. Moreover, privatisation and corrup-tion go hand in hand. When services become tooexpensive for people, they find other ways toprocure them. Collective bargaining can assisteffectively in the fight against corruption and inthe promotion of equality.

It is also essential to be prepared to undertakeintensive tripartite social dialogue so that excep-tional measures - which must be only temporary- are not consolidated and to review the adjust-ments made during the crisis, once the econom-ic situation improves. The danger that we arenow being faced with is that antisocial decisionsare being pushed through opportunisticallybeyond the scope of anti-crisis measures.

The recommendations by the ILO Committeeon the Application of Standards (‘CCAS’), directedat EU, IMF and World Bank, concerning the needfor effective consultations with workers’ organisa-tions and the need to fully take into account theobligations of States concerning ILO Conventions,are particularly important in this context.

Since the International Labour Conference(‘ILC’) in June 2012, the Employers’ Grouphas persisted to deny that the right to strike

forms part of ILO Convention 87, thus undermin-ing decades of jurisprudence of the application ofinternational labour law. In 2014, The Workers’Group unanimously rejected the demands of theEmployers’ group. The conflict over the right tostrike has since been referred to ILO’s GoverningBody.

In June 2014, the Executive Board of PublicServices International expressed deep concernwith the continuous attacks on trade union andworker’s rights. PSI strongly refutes the sugges-tion that limitations to collective bargaining areacceptable under any circumstances. As publicservices unions, we are committed to protect cit-izens and users by ensuring they always haveaccess to quality public services, includedthrough regulating essential services.

But when a conflict persists workers have onlyone effective democratic right: the strike.

Trade union rights violations in the public sec-tor have become a daily occurrence and evenmore so – these are systemic violations that arenot the exception, but the rule. Many govern-ments have already introduced the worst private-sector practices in public sector employment con-ditions and today 50 percent of public serviceworkers are in precarious employment, a majori-ty of whom are women. A full-time job with adecent wage and full social security coverage isagain a distant dream for millions of workers.

Therefore freedom of association and the rightto collective bargaining is at the core of many ofstruggles that we are supporting. In the last year,PSI has denounced trade union rights violationsin countries all over the world, including inAlgeria, Botswana, Chile, Colombia, Croatia,Ecuador, Egypt, Fiji, Georgia, Greece, Guatemala,Honduras, Jordan, South Korea, Lebanon,Paraguay, Peru, Swaziland, Turkey, Tunisia,Portugal and others.

An attack on the social modelIn 2014, we are experiencing the persistence

and worsening of a major crisis of the social andeconomic model on a global scale. Changes areoccurring in a very dynamic and often dramaticway. While in some BRIC countries large groupsof the population are improving their lives, theWestern world is living the biggest social crisissince the Great Depression, but both are facedwith aggressive policies that attack trade unionsand workers. All over the world, the gap betweenthe richest and the poorest is widening.

We note a concerted attack on the public sec-tor on a global scale, through austerity measures

particular to civil servants engaged in the publicadministration, such as public servants in min-istries and other similar government bodies, aswell as their auxiliary staff and all other personsemployed by the government.

Unions often have little confidence in disputesettlement mechanisms, as they are not impartialgiven the fact that they are often set up or man-aged by public institutions. A lack of remedies,i.e. the lack of judicial review, runs against thebasic guarantees of a fair procedure and is oftennot foreseen. In any case, PSI strongly encouragesits affiliates to use all legal resources available.

Moreover, some governments flout the princi-ple of trade union representativeness for purpos-es of collective bargaining, giving preference toorganisations close to the government. Many alle-gations of violations of trade union rights submit-ted to the Committee on Freedom of Associationsince its inception in November 1951 shows thatthe restriction of civil and political freedoms isone of the major causes of freedom of associationviolations. All such acts of violence and violationsalso affect public employees.

Building democracy and social justice is one ofthe priorities of our affiliates in countries whereunion rights are attacked, or where the changesof regime foster the hope of democratic reformsand peoples’ participation, such as in large partsof the MENA region. Civil and political rights areundeniably interlinked with trade union rightsand no social justice can prevail without democ-racy which is what our members in Algeria andEgypt demand.

Governments persist in interfering in tradeunion activities by arresting trade union leadersand members, such as in Turkey, using the pre-text of criminal activities and locking up morethan one hundred trade unionists at a time, forundefined pre-trial periods. This is utterly unac-ceptable and a major violation of human rights.Even worse, we have to recall the violent repres-sions of unions in other countries, such asGuatemala and Colombia, where murders oftrade unionists are occurring on a monthly basisand remain unpunished.

The PSI Executive Board therefore committedPSI to:

■ Launch a global campaign to defend andpromote the Right to Strike for all workers

■ Lobby governments to take a stand in favourof the ILO supervisory mechanisms

■ Build alliances with other trade unions for thiscampaign, as well as civil societyorganisations

■ Continue to offer solidarity and assistance toaffiliates whose rights are under attack

■ Proactively campaign to ensure nations ratifyand comply with ILO Conventions 87 and 98

■ Lobby inter-governmental bodies and otherrelevant international agencies andorganisations e.g. World Bank, IMF to declaretheir support for ILO Conventions thatguarantee fundamental trade union rights

■ Lobby to ensure global free trade agreementsinclude meaningful commitments to labourrights, including compliance with ILOConventions

Anti-socialdecisions arebeing pushed

throughopportunistically

beyond the scopeof anti-crisis

measures


The transposition of fundamental trade unionprinciples and rights set forth in the ILOConstitution of 1919 and the Declaration ofPhiladelphia into international labour conven-tions has been no easy task and has taken a con-siderable time. Today, these principles remain asrelevant as they were a century ago, both for theprivate and public sector.

Public service must be effective and efficient toensure the exercise of rights and improve citizens’quality of life by guaranteeing public safety, edu-cation, health, social security, culture, access tohousing, law enforcement in the numerous areasof competence of the public service, as well asbeing a vital factor in sustainable economic andsocial development, the well-being of workersbased on fair conditions of employment, and theprogress of sustainable enterprises.

This objective requires the provision of high-quality services by public institutions – which areoften highly complex – as well as sufficientlyqualified and motivated staff and a dynamic andpolitically neutral public management withadministrative ethos and deontology, which com-bat administrative corruption, make use of newtechnologies and are founded on the principlesof confidentiality, responsibility, reliability, trans-parent management and non-discrimination, bothin access to employment and in the provision ofbenefits and services to the public.

Rights that support social justicePSI underlines that the right to strike is directly

linked to freedom of association. All too often, thisright is denied to public sector workers, due tobroad definitions of so-called essential services.Governments that willingly thwart negotiationsshould be held accountable. The demarcation linebetween consultation and negotiation is not alwaysclear and often consultation in good faith mayresult in a more satisfactory outcome than purelyformal collective bargaining with no genuine desireto achieve results. It is therefore the spirit in whichthe parties act that is decisive. In systems that haveopted for consultation and where the right to strikeis recognised, consultation processes may result ingenuine negotiations when trade unions are suffi-ciently strong since, once a strike breaks out, thedispute has to be resolved.

This is a clear indication of the need to extendthe right to strike to all workers in the public sec-tor. Governments have often tried to be ‘creative’in their interpretation of these standards, byexpanding the notion of essential services andothers that reduce the impact of collective bar-gaining or the right to organise, besides commit-ting outright violations of human rights and fun-damental workers’ rights. Unions around theworld have made use of the supervisory mecha-nisms of the ILO to fight such violations, protectworkers and build a stronger union movement,including in the public sector.

In these turbulent times, it is important toremember that lasting peace can only be basedon social justice, which is why we need to main-tain these institutions and make sure that theirauthority is not eroded. Conventions 151 and154, whether in unitary or federal States, apply in



text message following a coordinated sick leaveaction taken in response to the Turkish govern-ment’s decision to add aviation services to thelist of industries where industrial action was pro-hibited.

Turkey currently has one of the worst rates inthe International Trade Union Confederation’s(‘ITUC’) Global Rights Index. It is quite clear fromthese examples that the critical economic role oftransport is being used as a pretext to defend thefree movement of passengers and goods beyondthe rights of people involved in the transportationitself. This trend is especially concerning as trans-port workers, including those employed in avia-tion, trucking and commercial seafaring, havesome of the most dangerous jobs in the world.

This is why the protection of the right to strikeunder Convention 87 of the International LabourOrganisation (‘ILO’) and its enforcement throughthe ILO’s supervisory mechanisms is particularlyimportant for transport workers. Not only havethese supervisory bodies acknowledged the right,they have developed clear principles which havesubsequently been relied on by national andregional courts. For example, it has beenunequivocally held that the right to strike mayonly be restricted or prohibited in the public ser-vice for those exercising authority in the name ofthe state or in essential services in the strict senseof the term (that is, services the interruption ofwhich would endanger the life, personal safety orhealth of the whole or part of the population).Furthermore, it has also been held that transportgenerally does not constitute an essential serviceand that minimum operational services can onlybe applied to non-essential services in very limit-ed circumstances.

Notwithstanding this extensive jurisprudence,the Employers’ Group at the ILO has since 2012been doing its best to undermine the authority ofthe ILO’s supervisory mechanisms. Not only hasit questioned the mandate and capacity of theCommittee of Experts, it has challenged the veryexistence of a right to strike under Convention87. The Employers’ continued intransigence hasleft the Workers’ Group no alternative but to callon the ILO’s Governing Body to seek an adviso-ry opinion from the International Court of Justice(‘ICJ’) on the question of the existence of a rightto strike.

There is little doubt that the ICJ will recognisethe right’s protection under Convention 87.Railway personnel in Korea and Thailand,Turkish flight attendants and workers all aroundthe world depend on it. There can be no com-promise on the right to strike. There can be nocompromise on human rights.

“It is good to finally shake your hand; thelast time I saw you, I was in prison”.These were the poignant words Myoung-

hwan Kim, President of the Korean RailwayWorkers’ Union (‘KRWU’), greeted me with whenwe met at the International Transport Workers’Federation’s 43rd Congress in Sofia earlier thisyear. Indeed, the last time we spoke, we had todo it through a prison intercom system as Kim,along with other leaders of the KRWU, was beingdetained for organising a strike in opposition torail privatisation. Despite complying with all‘essential services’ requirements under Koreanlaw, the authorities declared the action illegaleven before it began. Kim and his colleagues arenow facing so-called ‘obstruction of business’charges which carry a maximum sentence of fiveyears in prison or a fine not exceeding 15 millionwon (US$14,000). Furthermore, the state railoperator is pursuing a damages suit against theunion and its leaders for 16.2 billion won (US$16million) together with separate proceedings foralleged ‘damage to brand value’ amounting to 1billion won (US$990,000).

These legal actions are just the tip of the ice-berg. Hundreds of strikers have been dismissedor relocated and the union’s assets have beenseized by the authorities. All this simply becausethe KRWU sought to defend its members from anill-conceived privatisation drive that would haveheavily diluted terms and conditions of employ-ment. What this example illustrates is that despitebeing a fundamental human right enshrined ininternational law, the right to strike is certainlynot guaranteed for all workers. In fact, transportworkers are one of the groups increasingly beingexcluded from the right to strike by way of out-right bans or public service, essential services orminimum services requirements that severelylimit that right. The ITF has been called on timeand time again to provide solidarity support andlegal assistance to affiliates who have had theirright to strike curtailed.

Following a fatal train accident in 2009, theState Railway Workers’ Union of Thailand(‘SRUT’) launched an occupational health andsafety initiative and called on its members toabstain from driving trains with faulty equipment.Without even attempting to address the graveissues at hand, the authorities cracked down onthe initiative by conveniently labelling it a ‘strike’,a right denied to all public sector workers inThailand. Thirteen SRUT leaders were subse-quently dismissed and had damages suits filedagainst them for 15 million baht (US$462,000).

In another recent dispute, 316 members of theTurkish Civil Aviation Union were dismissed by


There can be nocompromise onthe right to strike

A human right curtailed

RUWAN SUBASINGHE is legal advisor with theInternational TransportWorkers Federation in London

This article first appeared in

Equal Times


Any governmentthat deprives its

citizens of theright to strike

should reconsidercalling itselfdemocratic

is now used against pickets or trade unionistsinforming other workers about an on-goingstrike. Based on this article, some recent, threat-ening sentences aiming at discouraging workersfrom mobilising have already seen the light.

Thirdly a new corpus of hardcore administra-tive sanctions is being created, cynically baptisedas ‘Public Safety Law’ that will dramatically curbthe right to protest and strike by, for example,allowing police to impose brutal fines (over euro600,000) for organising or participating in thesedemonstrations. These administrative fines makeit unnecessary to bring the defendant to courtand hence deprive her or him of the legitimateright of being assisted by a lawyer or being heardby a judge.

Forty years have passed since people in Spaingot their right to strike and demonstrate. Manytook these rights for granted. Now it seems wemight have been wrong. Today, Spain is re-join-ing a shameful blacklist of countries where thecriminalisation of trade union rights is a reality:Guatemala, Algeria, Belarus, South Korea,Greece, Honduras, and Colombia, among others.

CCOO and UGT have joined civil society in anation-wide campaign against the attempts tocriminalise the right to strike and other tradeunion activities. The campaign states clearly‘Striking is not a Crime’, la huelga no es delito,and has an action plan with information, mobili-sation, lobbying, and denouncing these policiesat national and international level, in order tostop the government’s plan and defending clear-ly that the right to strike, freedom of association,and union practices cannot be criminalised.

Both organisations maintain, in accordancewith the fundamental conventions of theInternational Labour Organisation (‘ILO’), that theright of workers to strike is a human right andthat it cannot be denied. Yet, in Spain, as in othercountries, the conservative government has usedthe economic and financial crisis to sanctify theso-called reforms in order to impose a new orderand unbalance the equilibrium between workersand employers.

UGT and CCOO have argued that Spain willdefinitively not get out of the crisis by reducingor criminalising the right to strike, nor by under-mining or destroying collective bargaining, norby downgrading workers’ and trade union rights.But three years into Mr Rajoy’s government it ismore than evident that these policies have had amajor impact on social inequality in Spain, whichis in line with the expectations of the tradeunions.

Since the very beginning of the crisis, the gov-ernment and certain media have driven a hard-hitting campaign against trade unions, question-ing their ‘old-fashioned points of view’, their

There are numerous statistics that demon-strate that Spanish workers and society areincreasingly mobilising in recent years

against the austerity measures imposed by theconservative government of Prime MinisterMariano Rajoy and other authorities. Some ofthese figures claim that only in the city of Madridmore than 4000 demonstrations took place in2013.

Austerity is not the only reason although everysingle legislative initiative produced by the nation-al government includes references to the econo-my. A good but sinister example is the preface tothe Draft for the reform of the right to legally inter-rupt pregnancy, commonly known as abortionlaw, which includes a sinister reference to the pos-itive effects of forbidding Spanish women todecide on their own body and mind on the nation-al economy. It is fair to say that the reforms onEducation, Immigration, Culture, Health, Abortionand Work have little to do with money or econo-my and much about ideology, and they achievedto bring Spanish people to the streets daily,demonstrating against the measures that tradeunions foresaw when Mr Rajoy took office.

Today, at the end of 2014, nearly forty yearsafter democracy was introduced in Spain, abouttwo hundred and fifty trade unionists are facingthe possibility of being sentenced to more than120 years in prison for participating in demon-strations or industrial actions. One of the mostshocking cases is the so-called Airbus Case. Eightunion members of the two big Spanish tradeunion confederations UGT and CCOO could faceprison sentences of eight years and three monthseach, summing up to a total of sixty-six years inprison, plus a fine of euro 31,059.52 to which thedefendants must respond jointly. This arises fromtheir participation in a strike after which clashesoccurred between workers and the police at theEADS-CASA factory in Madrid.

Any government that deprives its citizens oftheir right to strike or criminalises this rightshould consider twice calling itself democratic.Nevertheless, the Spanish conservative govern-ment of Mr Rajoy has started a three-level processwith the only aim of criminalising the right tostrike and to demonstrate (both Constitutionalrights in Spain, enshrined in Article 28). The gov-ernment wants to dissuade and persuade thepopulation not to participate in strikes or demon-strations by first questioning the necessity ofstriking, followed by the negative consequencesthat such actions have for the image of the coun-try and the recovery of the economy.

A legal argument is presented by abusing anarticle of the Spanish Criminal Code (Article 315),that foresees prison sentences to those coercingworkers to participate in industrial action, which


An attack ondemocracy

JESÚS GALLEGOis International Coordinator

with the public sector unionFSP-UGT in Madrid


But thegovernmentwants to dissuadepeople fromparticipating inprotests. This isan attack on thefundamentals ofdemocraticstructures

Numerous European and international tradeunions have expressed their deep concern aboutthe criminalisation of the right to strike in Spainand have written letters to the prime minister,urging him to reconsider. ILO Director General,Guy Ryder, informed Mr Rajoy this summer thata complaint had been filed by UGT and CCOOagainst the violation of the right to strike. Thiscomplaint is currently being examined by theCommittee on Freedom of Association.

Born as a method to get better wages, rights,and benefits, the right to strike and demonstrateis a vital tool to resist the growing attacks onworking people, welfare, and democracy.Unfortunately this fundamental right is underconstant pressure. At the last International LabourConference in June 2014, the Employer’s Groupdenied again that the right to strike is part of theILO Convention 87, ignoring more than fifty yearsof international jurisprudence. By doing so, theEmployers’ group deepens the destabilisation ofthe ILO supervisory system and which couldentail a regression of workers’ rights.

However, it is important to point out that theright to strike is not only contained in Convention87, but also in the provisions of the ILOConstitution, as well as other subsequent ILOInstruments such as Article 7 of the VoluntaryConciliation and Arbitration Recommendation 92,Article 1 of the Abolition of Forced LabourConvention 105 of 1957, and others.

There is only one worse-case scenario for thebattleplan of ultra-liberals behind the Employer’sgroup: that conservative governments will sup-port their claim. The double attack on tradeunions and their Constitutional role (at least inthe Spanish case) is questioning fundamentalrights by using an economic crisis, which is inessence the result of ultra-liberal policies.

The most important thing to remember mightbe that whenever the right to strike is questionedor criminalised, this does not only lead to break-ing the consensus on trade union rights, basiceconomic and labour relations, or social habits:this is an attack on the fundamentals of democ-ratic structures. Hence the defence of the right tostrike becomes an obligation for any citizenbelieving in democracy.

‘reluctance to modernisation through reforms’and their voices against austerity. Often seen asthe toughest political opposition, anything thathad to do with trade unions was declared theenemy. Notwithstanding the fact that the CCOOand UGT managed to conclude an agreementwith the Business and Industry Association(‘COE’) on salaries and pensions, demonstratingonce again their responsibility through social dia-logue, shortly after the government imposed alabour market reform that destroys collective bar-gaining and blows up the mere notion of socialdialogue, a key value in the democratisationprocess in Spain.

After dismantling social dialogue, which is afactor of progress and after bringing down manyof the rights achieved by workers in the last 30years, the government went after unions’ repre-sentative rights. Once that job was done, the full-reform package descended upon us: the disman-tling of public services and public education,depriving citizens of basic services. These mea-sures have made Spain the second most-unequalcountry in Europe in record-speed.

The severity of the measures and their cata-strophic results (including fear among workers tolose their jobs in a country with nearly 25 percentunemployment) has not stopped the UGT andCCOO to protest and organise several sector-spe-cific and national strikes as well as many demon-strations, most of them in cooperation with sever-al civil organisations, united under the ‘CumbreSocial’ (the ‘Social Summit’), a successful venturewhere virtually all the sectors and groups of civilsociety represented in Spain are united. At thesame time, the government has pushed towards atougher police repression of demonstrators,which led to bloodshed and violence and to someterrifying images that made the word news world.

This is why Mr Rajoy’s government has felt thenecessity of controlling this loose end and wantsto criminalise the right to strike and protest. Theirlegal initiative is the most far-reaching in Europe.CCOO and UGT, and all the left-wing politicalparties represented in parliament have called forthe immediate withdrawal of the draft law, joinedby prosecutors, attorneys, and even magistrate’sassociations.


Heavy police presence for trade union rally, Spain © Sebastian Pacheco (FSP-UGT)

Volume 21 Issue 4 2014INTERNATIONAL union rights


Currently, even with the incorporation intonational law of the principles of ILO Convention151 in Brazilian jurisprudence we can note anexcessive restriction of the right to strike of pub-lic servants, with judgements that not onlyexpand the list of essential services, but also raisethe minimum percentage of service maintenance.This makes it practically impossible for them toexercise the right to strike.

Despite the institutional recognition of the rightto strike, workers increasingly organise protestsin the form of work stoppages whereas publicadministrations refuse to negotiate.

On 11 November 2014, the Conservative partyof the Brazilian parliament, without any prior dia-logue or negotiation with public employees’organisations, adopted a draft bill that deals withthe ‘regulation of the right to strike of public ser-vants’ in the Joint Committee for Federal LawConsolidation and Regulation of the Constitution.

We would like to highlight the followingaspects on the aforementioned draft bill:

■ The draft seeks to restrict the possibility of ageneral strike. Obviously, trade unions ofpublic servants do not accept this restriction.The workers should define if the shutdownwill be partial or total, including by evaluatingthe characteristics of each activity. If theaction is considered urgent, it will be definedby the workers, meeting the minimumattendance percentage. In Brazil, nowadays,even without a regulation in a specific law,unions already exercise this concept withresponsibility.

■ The draft wants to define ‘ways to breakstrikes’ which entail a clear intervention in theform of organisation and mobilisationdynamics impacting on the principle offreedom and organisational autonomy,constitutionally guaranteed. The strike is notan ‘end’ for the union, but a means andinstrument of struggle.

■ The draft foresees that workers must informthe government at least 10 days before thebeginning of the strike. Unions consider that72 hours is a reasonable time;

■ The draft defines the strike, ‘as partialparalysis, prescribes non-payment of days off,considers the days on strike not worked, andintends to penalise workers on probation,forcing them to compensate the days notworked so as to complete the service timerequired by law. For unions, this is thedeliberate construction of a precedent tobreak the strength of joint positions, andopens space for summary dismissals.

■ The draft requires a minimum attendancepercentage ranging from 40 to 60 percent, and

Regulation ofcollective

bargaining andstrike action is

necessary for allparties as tools toregulate working

conditions

PEDRO ARMENGOL is DeputySecretary of Labour Relations

with the CUT in Sao Paulo

Workers in the public service in Brazilwere not entitled to a collective workingrelationship with the public administra-

tion until the promulgation of the 1988Constitution. Nor could they: without the right toorganise and no right to strike, they could notjoin trade unions, and thus act jointly or articulateas social partners. They were denied any form ofexpression of their common interests and desires,as well as the practical means to struggle forthem.

The 1988 Constitution no longer regards publicsector workers as mere subjects, but as collectiveactors, able to relate effectively with each otherand with third parties, notably with the publicadministration. However, after the recognition ofthe trade union rights of public servants, the lackof regulation of the right to collective bargainingand the exercise of the right to strike becameapparent, even though it is recognised as a col-lateral instrument and legitimate tool to regulateworking conditions.

At the same time, the right to collective bar-gaining is addressed in Convention 151 andRecommendation 159 of the International LabourOrganisation (‘ILO’), which have already beenratified and approved by the Brazilian NationalCongress. Convention 151 and Recommendation159 of the ILO were approved (with reservations)by the Federal Senate of Brazil, and LegislativeDecree 206 of 08 April 2010 guarantees the rightto strike to civil servants in item VII Article 37 ofthe Federal Constitution of 1988, but no specificregulation has been adopted, despite the exten-sion of trade union rights and guarantees thatearlier were applicable only to the private sector.As a result, public sector workers continue to bedenied their full rights.

Two observations should be made in relationto the text of ILO Convention 151. In the firstplace, the rights laid down in favour of publicservants in Brazil have been recognised constitu-tionally. The second is that the Constitution,which deals with fundamental rights of the indi-vidual, has predominance over the legal system,and defines the Supreme Court of Brazil. Thisshould also have an impact on the interpretationof national legislation on the subject, includingthe application of Law 7,783 / 89 in 2007, whichregulates the right to strike in the private sectorin Brazil.

In turn, the lack of regulation on the right tostrike for public servants also has a severe impacton public service users (citizens who are faced bylong strikes). Civil servants are often compelledto return to work on the basis of legal judgmentsthat point to the illegality of the strike, because ofthe lack of appropriate legal rules. The result iscyclic strike action.

The right to strike in thepublic sector in Brazil

Volume 21 Issue 4 2014 INTERNATIONAL union rights

The currentsituation ofcyclical strikeswithout any clearoutcome isdetrimental forworkers andpublic serviceusers

at the same time the proposal considers 90percent of public services as ‘essentialservices’, that will have to ensure at least 60percent coverage . This would means theconsolidation of the total restriction policy toexercise the right to strike of publicemployees in Brazil, which for now isrecognised in the constitution.

■ The draft includes the replacement of workerson strike by contract workers. This is an anti-democratic proposal. Depending on theactivity, this may be unconstitutional whenapplied to exclusive state activities which maynot be exercised by contract workers, forexample fiscal services. Such an attemptalready occurred in 2012 in Brazil, whenDecree 7777 / 12 was issued andsubsequently denounced as an anti-unionpractice by the ILO.

■ The draft includes the provision to ‘prohibitconducting strikes sixty days before theelections of the president, governors, senators,state and federal Deputies, Mayors andCouncillors’. In a country where we have twoelections every two years, this is anotherintervention in the freedom and autonomy oforganisation and struggle of civil servants inBrazil.

It is clear that there is no intention on behalf ofthese law-makers to improve the current systemand to favour the resolution of conflicts. At themoment strikes occur in Brazil for lack of spaceof the treatment and resolution of conflicts, sincethe claims of workers are treated in a non-uni-form way, generating different approaches inrelation to identical claims, thus clashing with theconstitutional principle of non-discrimination.

It is therefore necessary to establish a contrac-tual system, in line with constitutional principles,that foresees the object and scope of legal nego-tiations, defines the levels of coverage and artic-ulation, the legal effects of the agreements ateach level, solutions for deadlocks as well as thedefinition of possibility and contours of arbitra-tion and / or mediation, and immediate regula-tion in law according to the principles of C151.

This will allow Brazil to depart from an ideo-logical vision that looks at the public servant as apart of a large machine, unable to link his workto the social role. PSI affiliates in Brazil havebeen campaigning for the implementation ofC151 in law for the last 10 years. It is unaccept-able that the parliament will now debate furtherrestrictions and anti-union measures that willonly further exacerbate social tensions in publicservices, instead of making a contribution to asocial environment of dialogue and negotiation.

The case of Brazil shows that the right to strikeand the right to collective bargaining are intrinsi-cally linked to each other. There has to be a will-ingness on behalf of both parties to come to thenegotiating table otherwise no results can beachieved. The current situation of cyclic strikeswithout any clear outcome is detrimental for theworkers and to all public service users.

Historical background of the right to strike in Brazil

■ 1938 - Decree Law 481/38 defines the strike as acrime

■ 1939 - Decree Law 1237 / 39, which created theLabour Court system, provides for penalties in theevent of strike, suspension and dismissal;

■ 1940 - The Penal Code (Decree Law 2848 / 40)criminalises work stoppages in public services;

■ 1943 - The Consolidation of Labour Laws - CLT(Decree Law 5452 / 43) establishes penalties forunion workers on strike;

■ 1946 - Under international pressure Decree Law9070 / 46 is signed and the strike is no longer con-sidered a crime, and protected by law;

■ 1964 – the Strike Law comes into force (Law 4330/ 64), which finishes with the legality of the strike,and increases the capacity of state intervention intrade unions;

■ 1967 - The Constitution of 1967 ensures the right tostrike of private sector workers, banning it, however,for those working in the public service and for activ-ities considered essential;

■ 1988 - The new Constitution guarantees the right tostrike for workers in private and public sector

■ 1989 - Publication of the Law 7783 / 89, which reg-ulates the right to strike in the private sector;

■ 2007 - The Supreme Court decides to apply to civilservants, by analogy, the Strike Act of the privatesector;

■ 2008 - President of the Republic of Brazil (Lula)sends ILO Convention 151 and Recommendation159 on labour relations in the public service toCongress for approval;

■ 2010 - Brazilian National Congress adoptsConvention 151 and Recommendation 159

■ 2013 - Decree 7944 / 13, of the Presidency ofBrazil, promulgates Convention 151 andRecommendation 159;

■ 2014, November 11 - The Joint Commission for theconsolidation of federal laws and regulations of theconstitution of the Brazilian National Congress,adopts a bill proposal that deals with ‘the regulationof public servants the right to strike in Brazil’, whichaims to restrict the right to strike.



Thatcher definedthe miners’ strike

as a ‘political’strike so as to

attack the wholerange of social

and democraticrights in the UK


On 6 November 2014 in Brussels, the biggestanti-government demonstration took placesince 1986. More than 120,000 people took

to the street to protest against the refusal of thegovernment to engage in social dialogue with thethree national trade union centres and a range ofanti-social measures that were announced as partof the new government’s programme. Thisdemonstration was the first of a series of nation-al and regional action days that had beenannounced by the national centres, and thussomewhat of a test for the united trade unionfront.

In the margins of the demonstration a con-frontation by several tens of people took placewith the police, which ended up grabbing theheadlines of national and international media,notwithstanding the obvious difference in ratiobetween the number of protesters and those par-ticipating in the havoc caused. This should haveencouraged some perspective.

The political parties used the confrontation infact as an opportunity to bring a number of mea-sures, as foreseen in the government programme,into rapid implementation. Strengthening lawenforcement in theory and practice is one of theobjectives of the ruling coalition and during sub-sequent trade union actions, a massive policeforce was put together. Until then, much atten-tion had been paid to the (anti) social pro-gramme of the government, but much less to its(anti) democratic tendencies.

The reality, however, will quickly make thisnecessary. The government’s current position isin our opinion, no less than a threat to democra-tic rights. Using the level of public concern aboutthe import of the so-called jihad to Europe, thegovernment has an overall plan against any ‘rad-icalisation’. That plan includes both the creationof a National Security Council, the possibleinvolvement of the army for policing tasks,strengthening law enforcement tasks of thepolice, and restrictions of monitoring of thepolice by other public bodies.

In this planned National Security Council anunprecedented centralisation of power and espe-cially of information comes together. Snowdenrevealed the derailment of the US NationalSecurity Agency (‘NSA’) who spied on its citizenson a massive scale. One would think this experi-ence would cause concern and fear for duplica-tion. The fact that radicalisation is a very vagueconcept, is also a dangerous evolution. Actually itis not excluded that it is likely to be applied toanyone who decides to resist the authorities.

Moreover, it appears that the governmentintends to base its legitimacy solely on the basisof the ballot results of 25 May 2014, and not onthe basis of a constant democratic process of con-

sultation and negotiation with the various actorsin society. In that logic opposing governmentaction is immediately written off as resistance‘against democracy’. Would that be labelled as‘radical’? To date, there is a right to demonstrate,but how much longer?

Unseen power is granted to the Minister ofInterior, who incidentally is renamed Minister ofInterior and Security. It is no coincidence that theright-wing coalition party N-VA has claimed thisministerial post from the beginning. It wasawarded to Jan Jambon, known to be on the rightside of the N-VA.

Jan Jambon immediately put words into action.At the next demonstrations, he pledges to takepart from the command centre. However, lawenforcement belongs pre-eminently to municipalautonomy. Only when the relationship betweenthe local and federal police are at stake, Jamboncan intervene, and even then only under certainconditions.

The voluntarism with which he now takesaction, is unacceptable. The same diligenceapplies to the way in which the Brussels mayorMayeur was publicly ridiculed and even accused,before a serious investigation was conducted andwithout any serious discussions. The Mayor ofAntwerp, Mr Bart de Wever, who can be consid-ered as the shadow prime minister for the right-wing NVA, gladly took part in verbally bashinghis Brussels’ colleague.

Subsequently measures were taken to strength-en law enforcement in view of the strikes sched-uled in four provinces, including in the provinceof Antwerp on 24 November. Immediately afterthe clashes on 6 November, there were rumoursabout a possible repeat of violence on 24November. A true fear psychosis was created, itwas even suggested that people might get killed.In some media it was deliberately concealed thatthese are actions of an entirely different order, inparticular a strike. Mr De Wever announced that“an impressive order power is ready” and “othermeasures are planned but I won’t let anybodylook into cards”…

Minister Jambon and Mayor de Wever attempt-ed to deter people from taking part in socialaction and frighten them. Both men can stillsolemnly declare that they respect the right tostrike and the right to free speech, but the fearpsychosis that they created completely under-mines that. The European Court of Human Rightshas repeatedly confirmed that one can not applya ‘chilling effect’ on fundamental rights and free-doms. Their campaign is accompanied by an ide-ological offensive. De Wever considers the strikeis “a political strike”. He suggests that it is a partypolitical strike, which has nothing to do with thepension measures, the index jump, the increase

The politicisation andsuppression of social rightsin Belgium

JAN BUELENS (above)and JOKE CALLEWAERT (right)

are advocates withthe Progressive Lawyers

Network in Belgium

In Belgium todaynot only socialaction but alsopolitical debateare bothpotentiallyendangered


in enrolment fees or other measures that willimpact many individuals and families. In such away he wants to break the broad resistancemovement.

The strike is indeed organised against the coali-tion. Such a strike is perfectly legal in Belgium.People can make their voices heard. De Weveralso announced that he does not accept to becalled “a friend of big business and enemy of theworkers”. He adds delicately: “such a discourse ispractically criminal”. To describe a political dis-course as “almost criminal” is a very serious deci-sion, which is problematic in light of the funda-mental right to free speech. That way not onlysocial action, but also political debate are poten-tially endangered.

To Thatcher or not to Thatcher? The criticism that is frequently associated withthe reign of Margaret Thatcher is dismissed sum-marily by the NVA. However, she was the first todefine the miners’ strike as ‘a political strike’ soas to afterwards attack the whole range of socialand democratic rights in the UK. Mrs Thatchereroded the right to strike, but also imposed dras-

tic restrictions on the right to demonstrate. The fact that the Antwerp mayor was now rant-

ing so hard against ‘the planned rally’ on 24November in Antwerp, while no demonstration isplanned at all, should perhaps be understood inthat context. This could also be interpreted as apreventive signal by the mayor not to organisedemonstrations in the coming months. One ofthe other habits of Thatcher was the use of thearmy for ‘homeland security’. That track is alsonot excluded and as stated above, the coalitionagreement makes it possible.

Ironically, all this is happening just whenBelgium holds the six-month presidency of theCouncil of Europe. This Council was establishedin the aftermath of the Second World War toensure the respect of human rights and in itsmidst the European Court was established onHuman Rights. It would not benefit the interna-tional reputation of Belgium if some policy-mak-ers make a mockery of human rights. Unless ofcourse it is the ambition to get Belgium under thejurisdiction of the European Court of HumanRights, as Mr Cameron suggested with regard tothe UK. It remains appropriate for all democraticactors to keep a close eye on the evolution.



Workers’ case rests. It was clearly essential thatsuch a document be prepared and it hasinformed and supported the Workers’ Group intheir struggle within the ILO to repel the

It was not thedetail of a legalargument that

caused this crisis at the ILO


For many decades the ILO system hasenjoyed quiet consensus around the pro-tected status of one of the most fundamen-

tal of all trade union rights, the right to strike. Thesystem didn’t provide a total protection for strikeaction, and indeed numerous exceptions werepermitted that allowed strike action to bedelayed, limited, and even outright prohibited, incertain circumstances. But the basic notion thatstrike action constituted a protected aspect offreedom of association was endorsed by all par-ties. As has been discussed previously in thisjournal, during the Cold War era employers werehappy to endorse the right to strike as a politicalfreedom on which dissident labour activists couldrely against Eastern Bloc governments (IUR 20.2,p19). fBut all this has changed. Employers are nolonger forced into an alliance with labour as abulwark against Eastern Bloc communism, andwith the global financial crisis forcing up unem-ployment and driving down social protections –thus undermining workers - they are feelingincreasingly strident in their willingness to exer-cise power against workers and their institutions.

At the 2012 ILO Conference, a new Employerspokesperson in the Conference Committee onthe Application of Standards (‘CCAS’) interruptedthe normal rather formal ebb and flow of theCommittee’s preliminary business to launch ablistering and unexpected attack. Out of the bluethe Employers now insisted that ‘Convention 87is silent on the right to strike and therefore it isnot an issue upon which the Committee ofExperts should express an opinion. Given theabsence of any reference to a right to strike in theactual text of ILO Convention 87, the internation-ally accepted rules of interpretation requireConvention 87 to be interpreted without a rightto strike’. The surprise action halted the work ofthe Committee, and while Workers sought to finda compromise that would at least enable theCommittee to carry out its core work Employerswere adamant, holding their position and even-tually leading a walk-out that shut down theCommittee for the duration of the Conference.Clearly this was an emphatic statement, and itspoke volumes of the new paradigm and ofresurgent confidence in employer power.

Resolving the crisis?Following the Employer’s attack ITUC commis-

sioned a forensic legal analysis and defence ofthe legal basis for the right to strike and a studyof the role of the Committee of Experts. This doc-ument (to which members of ICTUR’s executivecontributed) is the backbone of the Workersresponse to the employer challenge and it pro-vides the clear firm ground on which the

How do workers respondto an employers’ strike?

DANIEL BLACKBURN,is Director of International

Centre for Trade Union Rightsin London

A world without the right to strike?

Few observers can have escaped the awful implicationsof a world without the right to strike when a clear illus-tration of what that world might look like suddenlyunfolded before a horrified world just two months afterthe Employers’ stunt at the ILO. On 16 August, in SouthAfrica, we saw what was possible when strike actionwas subjected to the most brutal form of repression.Those who sought to downplay the horror or to defendwhat the police had done attempted to hang theirobscene arguments on the idea that workers had hadno ‘right’ to stop work or to carry out their protests,seeking to further this idea that either at this time, or inthis way, or perhaps even at all, the miners had had noright to strike.

And driving home the message that seemingly distanttechnocratic developments in Geneva had a clear realworld impact on the front lines of the global labourmovement, we saw employers relaying this global tech-nical message. Here, on 29 January, in the immediateaftermath of the violent and deadly repression of astrike in the garment sector, the GarmentManufacturers’ Association of Cambodia and theCambodian Federation of Employers and BusinessAssociations placed an advert in the Phnom Penh Poststating ‘the right to strike is not provided for in C87 andwas not intended to be … the right to strike is NOT afundamental right’. Here too it was argued those whowere shot and arrested and beaten had had no right tostrike.

And just this month, Qatar, a country notorious for itspoor labour rights record, arrested 800 migrant work-ers following strike action in protest at breaches of theiremployment contracts and poverty wages. On arrival inDoha it was reported that their passports were confis-cated and their contracts torn up. They were thenforced to work for wages one-third lower thanpromised. During the arrests a supervisor attackedworkers with a plastic pipe. The ITUC believed theseworkers would be held incommunicado before eventu-al deportation. Expressing growing anger with the stateof workers’ rights in Qatar ITUC General SecretarySharan Burrow said “this is what life without the right tostrike looks like. It is deeply troubling that employergroups are now trying to undermine that very right atthe International Labour Organisation. The world needsto uphold rights, and not put every worker at the mercyof their employer with no right to strike against exploita-tion and abuse, like in Qatar”.


Employer’s attack. So far the form that this strug-gle has taken has mostly been rather quiet anddiplomatic, taking place in a number of formaland informal discussions within the ILO inGeneva. Essentially the Workers have been look-ing to find some sort of acceptable compromisewhile pointing out that the ILO Constitution con-tains a provision under which a clear, bindingand independent judicial determination of such adispute can at any point be obtained by referenceto the International Court of Justice. So far theEmployers have been reluctant to allow thedebate to move to the purely legal / technicalforum of the ICJ and have preferred to containthe dispute within the partly legal, partly politicalconfines of the ILO.

Throughout 2013 and 2014 meetings havetaken place in an attempt to resolve the impasse,but without success. Each annual Conference ofthe ILO has opened with baited breath as theWorkers essentially had to ‘wait and see’ whetherthe Employers would cooperate with the CCAS,or withdraw, shutting it down again. In 2013something of a compromise was accepted as theWorkers agreed to the inclusion of a rather prob-lematic phrase in the conclusions of the CCAS,which stated in the final report that theEmployers were not in agreement with the inter-pretation of the experts as regards the right tostrike. This was enough to get the Committeefunctioning again, and for that year at least, con-clusions were issued. But in 2014 the Employersdemanded that this phrase be included again.The Workers refused, and the Committee endedshakily, without full agreement (a number of con-clusions were reached, but not in all cases).

The matter was supposed to come to a head inNovember 2014, but the Governing Body meet-ing again ended without agreement on how toproceed. The Workers Group is ready to refer thematter to the ICJ, the Employers Group is againstthis, and the support of Governments is mixed,with just under 50 percent supporting the work-ers’ call for an ICJ reference. A specially con-vened tripartite meeting at the ILO in February2015 will offer another possibility for compro-mise, and then the Workers believe that theMarch 2015 meeting of the Governing Bodyought either to finalise any consensus agreementthat has been possible or ensure that the refer-ence to the ICJ should proceed.

Striking back?An irony that has stayed with many of us fol-

lowing the Employer action at ILO in 2012 is theconduct of the Employer’s Group in their attemptto drive home their message. In as convincing adisplay of collective power as we’ve seen in quite

some time in Geneva the Employers walked outof the Committee’s proceedings. The walk outdeprived the Committee of an essential compo-nent of its tripartite structure and shut it down.The Employer walk-out shook the ILO system,and the Workers are now more wary of theirpower, conscious of the consequences of anyfurther walk-outs for the future of that system.But without wanting to say too strongly that weshould emulate the Employers’ Group, tradeunionists must be conscious of how successfullythe Employers have forced their argument to theforefront of the agenda. Initially, the Employersbuilt a legal argument for the position they advo-cated. But they didn’t achieve their aims throughwinning a legal argument. What worked for themwas a collective walkout: a strike.

So far, the Workers have shown no appetite forfacing down the argument through the exerciseof their own industrial powers. But we can ask,for example, when has the global collectivepower of the labour movement ever really beentested? Notions of transnational strike action arerarely discussed on a scale involving more thantwo or three unions working for a single multi-national or associated employers. But in the con-text of this extraordinary attack on workers’ fun-damental rights there are unions in key globalinfrastructure points for whom such action couldconceivably be organised so as to be both politi-cally achievable and legally viable. At least oneimmediate impact of such extraordinary actionwould be to put to the test the appetite that com-panies out in the real world economy have forthe political game being played by their repre-sentative body in Geneva. For now, such dra-matic options are off the table. The Workersresponse has been formal, diplomatic, and con-sidered. Although the near stalemate is barelyresolved in the CCAS progress has been madeand the legal process is now moving slowlytowards what now looks like a near certainty ofa judicial determination of the dispute by the ICJ.This remains very clearly the preferred strategy ofthe international labour movement, and it is onethat they are increasingly confident will bringthem a successful resolution.

What caused thecrisis was theexercise ofresurgentEmployer power,which manifestedin a classicindustrial actionstrategy: the walk out


ICTUR IN ACTION ❐ INTERVENTIONS


QatarIn mid-November 800migrant workers were arrest-ed following strike action inprotest at breaches of theiremployment contracts andpoverty wages. On arrival inDoha it was reported thattheir passports were confis-cated and their contracts tornup. They were then forced towork for wages one-thirdlower than promised. Duringthe arrests a supervisorattacked workers with a plas-tic pipe. The ITUC fears thatthe workers will be heldincommunicado before even-tual deportation.

ICTUR has written to theauthorities to express graveconcern at this severe inter-ference in the exercise of thefundamental human right tofreedom of association.Observing that Qatar has notratified the key ILOConventions on trade unionrights, nor has it signed thefundamental human rightsCovenants of the UnitedNations, ICTUR urged theauthorities to examine thestate of respect for freedom ofassociation and humanrights that exist in the coun-try. ICTUR observed that fail-ure to ratify human rightstreaties on a grand scaledoes not absolve the countryof its responsibility to complywith the minimum interna-tional standards of humanrights law. ICTUR observedthat the ITUC and other glob-al union federations andNGOs have already set theirsights on Qatar as a result ofwide-ranging abuses ofworkers’ rights that arereported in the country. Suchactions, ICTUR noted, willonly intensify, along withincreasingly adverse mediacoverage, until Qatar takesmeaningful steps to ratifyILO Conventions 87 and 98and to achieve compliancewith those instruments.

tionship with Pepsi, whichIUF says echoes previouscases of anti-union actionsaround the world againstthose involved in the distrib-ution of the famous softdrink.

ICTUR has written to theauthorities to express its con-cern at this case. Noting thatthe public authority responsi-ble has intervened in supportof the workers, ICTUR indi-cated that its main concernin this case was the apparentfailure of the company tocomply with the instructionsof the Ministry of Labour.ICTUR urged the authoritiesto take appropriate action tosecure compliance by thecompany and emphasisedthe protected status of tradeunion activities under inter-national human rights law.

PeruIn December the authoritieshave revoked a long-standingleave arrangement for LuisIsarra, General Secretary ofthe water workers’ unionFENTAP just one weekbefore he was due to attendthe United Nations ClimateChange Conference(‘COP20’), meeting in Lima inmid-December. Isarra hasbeen coordinating local tradeunion mobilisation aroundthe event and is well knownas a vocal critic of neo-liberalpolicies such as water privati-sation. International publicsector workers’ union PSIsaid they could only assumethat the action was ‘political-ly motivated’.

ICTUR has written to theauthorities to protests againstthis action, which seemsmotivated to undermine thecapacity of trade unions toengage in the COP20 event.ICTUR pointed out that par-ticipation in the public dis-cussion of matters of socialand economic importance isa key role of trade unionistsand insisted that such actionis protected under interna-tional law, notably the con-ventions of the ILO, whichPeru has ratified.

ful industrial dispute. ICTURreminded the authorities thatArticle 8 of the InternationalCovenant on Economic,Social and Cultural Rights(‘ICESCR’) creates obligationsthat China must respect interms of freedom of associa-tion and protection of work-ers’ rights. The arrest ofworkers playing a tradeunion role in an industrialdispute clearly violates theseprinciples.

ColombiaIn November members of themineworkers’ unionSintracarbón received writtendeath threats signed by theRastrojos and Black Eaglesparamilitary organisations.The letters claimed thatmembers of the union werealso members of guerrillagroups and said that theywould be killed.

ICTUR has written to theauthorities calling for thematter to be investigated.ICTUR emphasised that theState has a responsibility toprotect trade unionists fromthreats and violence againstthem. ICTUR urged that allsuch threats, in the contextof the violent history ofColombia, must be takenseriously.

NicaraguaOn 10 November ShneiderNational Logistics fired 70union members, includingkey activists, just 24 hoursafter they had formed aunion at the company’s baseof operations in Managua.The Ministry of Labour,called in to investigate thesituation by the union, hasagreed that the dismissalswere contrary to law and hasordered the company to rein-state the workers. The com-pany has appealed and lostagainst this order but has notyet reinstated the workers,although it has offered toreinstate 45 of them, but isnot offering to reinstate the25 activists who organisedthe union. The internationalfoodworkers’ union IUFobserves that although thecompany delivers PepsiCoproducts and workers wear auniform featuring a Pepsilogo it denies a direct rela-

BrazilOn 24 November two armedmen entered the offices ofthe Guarulhos, Aruja andItaquaquecetuba paperwork-ers’ union, took up to twentypeople hostage and tied theirhands together, and demand-ed that they summon theunion’s President OzanoPereira da Silva. When daSilva arrived at the union’soffices he was taken into aback room and killed.

ICTUR has written to expressits profound concern at thisaction, and has urged Brazilto take appropriate steps toinvestigate this case and toensure that those responsibleare brought to justice. ICTURnoted that the killing of atrade unionist was a viola-tion of the utmost severity ofthe principles of freedom ofassociation, which Brazil isobliged to implement underthe terms of its membershipof the ILO and its ratificationof both the InternationalCovenant on Economic,Social and Cultural Rights(‘ICESCR’) and theInternational Covenant onCivil and Political Rights(‘ICCPR’). ICTUR asked to bekept informed of steps takento investigate this case.

ChinaSeven shoe factory workerswere arrested on 3November following theirparticipation in a series ofprotests at the XinshengShoes factory. Some 56workers were involved in adispute over the payment ofcompensation relating to thepending closure and reloca-tion of the factory. HongKong-based NGO the ChinaLabour Bulletin reported thatworkers had contacted theGuangdong ProvincialFederation of Trade Unions,which is part of the nationaltrade union centre ACFTU,and that the union had con-tacted the police and wasworking with governmentdepartments to secure theworkers’ release.

ICTUR has written to theauthorities to express con-cern over the role of thepolice in repressing whatwould appear to be a peace-


ICTUR IN ACTION ❐ INTERVENTIONS

United NationsJust months after the restora-tion of trade union rights forUN staff (see IUR 20.3, pp18-19 and note in IUR 21.2,p27), a dispute has flared upin the intellectual propertyorganisation WIPO. Theorganisation’s DirectorGeneral Francis Gurry hasdismissed Moncef Kateb,President of the WIPO staffunion. The dismissal camejust prior to WIPO’s annualgoverning body meeting, andit has been noted that Katebhas raised complaints againstthe Director General and wasin the process of represent-ing two former colleagues inan employment dispute.

TunisiaOn 13 November a group ofstone-throwing assailantsattacked the car in whichHoucine Abbassi, GeneralSecretary of the trade unioncentre UGTT, was travelling.No-one was hurt in theattack, although the rear win-dow of Abbassi’s car wascompletely smashed out. Theattack came as Abbassi wasleaving the union’s offices.The UGTT described theattack as ‘a despicable andcontemptible act’. Abbassi isalso the President of thenewly formed Arab regionalorganisation ATUC, which isassociated with the ITUC.

ICTUR has written to theauthorities to express con-cern around the violentattack that was carried outagainst a trade unionleader. ICTUR called on theauthorities to ensure thatthese matters were handledin full compliance withTunisia’s obligations underinternational law. ICTURreminded the authorities thatTunisia has ratified IOConventions 87 and 98, andthat the facts described inthis situation would amountto significant violations ofthose instruments, demand-ing a prompt and vigorousresponse from the authori-ties.

TongaThe Government threatenedto close a trade union, thePublic Services Association,and said that it would call astate of emergency if theunion went ahead with apublic sector strike on 20October. The hostileresponse was exacerbatedwhen the Prime Minster andMinister of Justice alsolaunched defamation actionsagainst the union’s GeneralSecretary, Mele Amanaki. Inthe light of the Government’sposition the union called offthe action.

ICTUR has written to theauthorities to protest againstthe use of emergency powerslaws to limit a strike andagainst the disproportionateand unlawful threat to closethe union. ICTUR furtherexpressed serious concern atthe use of defamation law torestrain the actions of atrade union representingpublic sector workers, notingthat the combination of thethreats and actions againstthe union together lookedlike serious violations of theprinciples of freedom of asso-ciation. Such principles,ICTUR noted, are protectedas a matter of internationallaw, including under ILOConventions 87 and 98, andalso under the terms of themain pillars of internationalhuman rights law, the ICE-SCR and ICCPR Covenants ofthe UN. ICTUR observed thatTonga has not ratified any ofthese key international foun-dations of human rights law,but noted that the countryhas expressed a commitmentto join the ILO in the nearfuture. ICTUR urged theauthorities to increaseengagement with the ILOand to call upon theOrganisation’s services tobring about a climate ofrespect for freedom of associ-ation.

SwazilandOn 8 October theGovernment announced acomplete ban on all tradeunion and employer federa-tions. Attempting to explainthe shocking ruling theGovernment has reportedthat it intends to fix a techni-cal oversight in existing legis-lation and says that the ban isnecessary during this perioduntil the legislation is amend-ing. Industrial relations andlegal experts have expressedbafflement at this purportedexplanation, with ITUCdescribing it as ‘no justifica-tion whatsoever’. Two tradeunion federations TUCOSWAand ATUSWA and twoemployers’ federations havebeen forced to cease theirformal and legal operationsfollowing the announcement.

■ When workers at theMaloma mine went onstrike on 24 Novemberthey were met with aheavy police presenceand complained thatpolice were armed withshields, helmets, firearms,and teargas, which unionleaders said wascompletely unnecessaryin response to what wasan entirely peaceful strikeover an industrial disputearound the payment of ahousing allowance.

ICTUR has written to theauthorities to protest at repeat-ed incidents of harassmentand repression against tradeunionists in the country.ICTUR observed that the banon trade union federations isa serious and unnecessaryviolation of the principles offreedom of association thatare protected under ILOConvention 87, which hasbeen ratified by Swaziland.ICTUR further observed thatthe policing of industrial dis-putes should be managed soas to diffuse tensions ratherthan exacerbating them. Anindustrial dispute, ICTURrecalled, is a civil matter, nota criminal one. ICTUR furtherobserved that trade unionrights are also protected underthe African Charter and thatfreedom of association andassembly are cornerstones ofinternational and Africanhuman rights frameworks.


cap towards fighting unemployment. The idea wasraised ten years ago with the Contrat premièreembauche (‘CPE’) and the Contrat nouvelleembauche (‘CNE’) that enabled, during the firsttwo years of employment, breach of contract with-out just cause. Today, it is a more ambitious pro-posal that is emerging again, promoted by the newNobel economic prize winner Jean Tirole who isone of the main initiators of the proposal for a ‘sin-gle labour contract’. According to the economistswho developed the idea of the single contract, thedistinction between fixed term and indefinite con-tracts should disappear. Instead, a new form ofindefinite contract would be adopted, for allemployees, which could be terminated at will1. Inexchange for this, the employers would have topay taxes on dismissals depending on the numberof employees that are dismissed (e.g. the system of‘experience rating’ in the USA).

Simplification - The ideology of simplicity on theother hand. According to a wide spread idea, nei-ther employees nor employers would be able tounderstand employment law, due notably to alabour code of more than 10, 000 provisions.Again, the philosophy that simplification carriesrequires caution. The link between simplificationand deregulation is close. In the name of simplifi-cation, the main employer organisation (‘MEDEF’)is proposing to suppress the dual channel systemthat historically characterises French labour law,that is to say the coexistence of union representa-tion (union delegates) and elected representation(works councils, staff delegates, committee onhealth and safety). Instead, a works committeewould be created, inspired by the GermanBetriebsrat, for firms with 50 employees and more;accordingly, the prerogatives of workers represen-tatives would be merged into a single institutionand be considerably reduced. For example, com-panies of at least 11 employees have the duty toorganise elections for staff delegates; if we followthe proposal, companies of less than 50 employ-ees would have no workers representation whichis problematic whereas 99 percent of firms inFrance hire less than 50 employees. Simplificationis also invoked in order to replace statute law bycollective agreements. According to another pro-posal by MEDEF, statute law should lay down thegeneral framework of labour law and collectivebargaining define the rest2.

Collective bargaining as a deregulatorymechanism

French labour law is traditionally based onState interventionism, not on collective laissezfaire. Indeed, it is the State that defines the con-ditions and scope of collective bargaining.

Collective bargaining as atool of deregulation

A new oppositionis being created –between workers

and theunemployed

Simplicity isinvoked to justify

a drive toderegulate labour

law


PASCAL LOKIEC is Professorat the University of Paris

Ouest Nanterre La Défense

Labour law is facing a serious crisis inEurope. Labour is being increasinglyanalysed as a cost that is exorbitant in glob-

alised economies and constitutes a handicap forour economies. The economic and financial crisishas undoubtedly encouraged and accelerated thetrend of deregulation of labour relations, even ifthe movement is probably deeper than aresponse to a – temporary? - crisis. The model oflabour law as a tool for protecting employees isdeclining. One of the best illustrations is offeredby the changing functions of collective bargain-ing, which plays an increasing role in the pro-motion of flexibility. Even if the process of dereg-ulation is more limited in France than in countriessuch as Spain, Italy or Greece, this country offersa useful example of the transformations of col-lective bargaining.

The arguments for deregulationFrench labour law is currently facing two ideo-

logical challenges.

Social-liberalism - The ideology of social-liberal-ism on the one hand. This philosophy, embracedby the current government, has facilitated theemergence of a perilous equation: the protectionafforded to those who have a job is considered asa handicap for the unemployed. The classicalopposition between employees and employers isdeclining in favour of a new opposition betweenworkers and the unemployed, that is to saybetween insiders and outsiders. An equation thatfundamentally disturbs the traditional conflictbetween economic and social arguments; the crit-icism of labour law now develops in the name ofsocial arguments (the fight against unemployment)which makes the defence of workers’ protectionmore difficult. Several attacks on labour law havebeen carried out in recent months on this basis.The first and most debated attack concerns thresh-olds, according to which a film reaching 11employees shall organise the election of staff del-egates, that reaching 50 employees must create aworks council, a committee on health and safetyor enable the designation of union delegates. It isargued that employment related thresholds woulddeter firms that are close to 11, or to 50, from hir-ing more employees. Not only do economic stud-ies diverge on the true impact of a modification ofthresholds but also, as most trade unions argue,this measure carries out the – quite shocking - ideathat social dialogue is a handicap for employment.It is the same equation that explains proposals infavour of derogations to the minimum wage forcertain categories of employees (the youngnotably) or in favour of the abrogation of the 35hours rule. Dismissal law is also seen as a handi-

A company levelagreement nowhas priority over asector collectiveagreement evenwhere the latter ismore favourableto employees

Individualinterests prevailover collectiveinterests



making reforms to trade unions and employersorganisations; the main reforms of labour law inthe last years come from national collective agree-ment, with the Parliament limiting its role to tran-scribing the agreement (with very limitedchanges) into statute law. Some of these reformsare controversial such as the agreement of 11January 2013, that was transcribed into the law onsecurity of employment of 14 June 2013. This lawprovides for supplementary social protection forall employees and for a weekly minimum of 24hours (with numerous exceptions) for part-timework, but also creates flexibility collective agree-ments (on wages, working time and geographicalmobility) as well as drastic time limits on infor-mation and consultation of the works council.

Decentralisation of collective bargaining - Thestrongest movement relative to collective bar-gaining concerns the rise of company level agree-ments to the detriment of sector agreements.First, except in certain fields (minimum wages inparticular) and under certain modalities (possibil-ity to limit at sector level the capacity of deroga-tion of company level agreements), a companylevel agreement now has priority over a sectorcollective agreement even where the latter ismore favourable to employees; second, thelabour code delegates the regulation of essentialparts of labour law, notably that of working time,to collective agreements, including to companylevel agreements. Here, we have a strong move-ment of labour law, from State law to enterpriselaw. The idea is raising that labour law should beconstructed at enterprise level, with an essentialrole for collective agreements whose functionwould be the organising of the firm, not grantingrights to employees. The promotion of companyagreements is one example of this movementtowards self-regulation of the firm. Anotherexample is the development of information-con-sultation on the strategy of the firm, but also thefact that, for certain types of collective agree-ments5, trade unions are required to elaborate acommon economic diagnosis with the employerto justify the drafting of the agreement. In otherwords, the responsibility to make the law is nowshared by employers and employees’ representa-tives at firm level, which constitutes a strong chal-lenge for union policy within the firm! The Tradeunions are asked to negotiate on a dismissal planor on diminishing wages in exchange for main-taining jobs.

How to resist ?Two ways can be privileged to resist this move-

ment towards flexibility through collective bar-gaining.

Traditionally, the concept of ‘ordre public’ (pub-lic policy) plays a central role in France. For sev-eral decades, State interventionism has been crit-icised, notably in the context of globalisation. Wecan hear that the rule of law requires more adapt-ability, and collective bargaining is seen as theanswer. The latter has been instrumented to thispurpose, and as a consequence, bears a trueresponsibility in the process of deconstruction oflabour law, notably in the movement towardsgreater flexibility.

More legitimacy for unions and agreements -This has been enabled by a strengthening of thelegitimacy of collective bargaining. In 2004, thelegislator strengthened the conditions of validityof collective agreements, by requiring that theseagreements should be signed by unions whoreceived 30 percent of the votes and not face theopposition of unions that, together, reached 50percent of votes. For certain agreements (notablythose concerning reclassification after economicdismissals3) we are even moving towards arequirement of 50 percent of votes for the signa-ture of the agreement. This is a complete revolu-tion considering, until 2004, the signature of asingle representative union was sufficient for thecollective agreement to be valid. In 2008, the leg-islature also strengthened the rules of representa-tiveness of trade unions4 and in 2014 it is the turnof employers organisations to be submitted to arule of representativeness. These developmentsmean that the collective agreement has gainedlegitimacy, and that the conditions are met for itto become a normal way of regulating social rela-tions. The direct consequence is that social part-ners now have the legitimacy, not only to grantsupplementary rights to employees but also toregulate in the name of the good functioning ofthe firm.

Collective agreements as an alternate to Statutelaw - The collective agreement has become a nor-mal way of regulation, first because the legislatorincreasingly delegates to the social partners, atnational level, the responsibility to lay down therules relative to employment. Copying the elabo-ration of EU labour law (Article 154 of theEuropean Treaty), the labour code contains, since2007, a provision according to which no govern-ment proposal in the field of labour can reachParliament without prior consultation with socialpartners (a specific procedure is defined in thecode). On the one hand, what is called ‘negotiat-ed law’ gives social legitimacy to statute law inaddition to political legitimacy. But the risk, thatcan be clearly identified through recent reforms,is that this procedure becomes a pretext for gov-ernments for transferring the responsibility of

ny level, sufficiently protected in relation to theiremployer to conclude agreements that createduties upon individual employees and prevailover individual contracts? MEDEF pushes infavour of laying down in the labour code that col-lective agreements have primacy over individualcontracts7, with the effect that the employees whowould refuse the change provide for by the col-lective agreement would face disciplinary mea-sures. More fundamentally, non-contractual theo-ries have more and more success on the employ-er side, notably the institutional theories accord-ing to which employees should be conceived notas contractors but as members of the firm withwhom they would share common interests.

As a conclusion, the challenge of deregulationis severe, not only for unions who have to copewith the new functions of collective bargaining,and greater responsibilities within the firm, butalso for labour lawyers who have to integrateradical changes in the construction of legal mech-anisms. France is certainly one example of amuch wider movement in Europe.

1. O. Blanchard, J. Tirole, Protection de l’emploi et procédures delicenciement “, Conseil d’analyse économique, 2003 ; P.Cahuc, F. Kramarz,De la précarité à la mobilité : vers unesécurité sociale professionnelle”, Documentation française,2005

2. This proposal has been made in a report by the MEDEF called :« One million jobs”, published in September 2014; seewww.medef.com

3. This is what we call “Plans de sauvegarde de l’emploi” (adocument elaborated either by the employer unilaterally or bycollective agreement, that defines the modalities ofreclassification within and outside the firm for employees thatshall be made economically dismissed.

4. International Union Rights, Vol. 20, No. 4 (2013), pp. 6-75. It is the case in particular of the « accords de maintien de

l’emploi » (agreements on preservation of jobs ») created bythe law of 14 June 2013. According to these agreements, theemployer can reduce wages or modify working time inexchange for a promise not to dismiss any employee foreconomic reasons for a certain period of time (two yearsmaximum).

6. ECJ 15 janv. 2014, C 176/127. See above, « one million jobs ».

Traditionallythe individual

contract isencouraged byemployers, and

collectiveagreement

by tradeunions. Now,

in France, thissituation is

reversing


Fundamental rights - The invocation of funda-mental rights on the one hand. Both collectiveagreements and statute law are bound by therespect for fundamental rights. The right to rest(recognised by the Constitutional court), the rightto health and safety, respect for privacy, etc. aremore and more invoked before courts to opposethe policies of flexibility. For instance, the collec-tive agreements on mobility of workers have toconciliate private and professional life. Frenchlawyers are now trying to reach the fundamentalrights protected by the Charter of FundamentalRights of the European Union, for instance theright to information and consultation protectedby Article 27 that has been invoked against thepolicy of excluding certain employees (appren-tices for instance) from thresholds6. Surprisingly,in a contrary like France that is supposed torespect the minimum standards of theInternational Labour Organisation (‘ILO’), the ILOconventions now appear as tools of resistanceagainst the policy of deregulation; MEDEF is lob-bying in favour of France denouncingConvention 158 that requires a fair ground of dis-missal, which is notably an obstacle to the adop-tion of the ‘single labour contract’.

Contract - The invocation of contract law on theother hand. In the traditional conception ofemployment law, the individual contract isencouraged by employers, and collective agree-ments by trade unions. The situation is reversing:the contract now appears as the main instrumentto oppose flexibility organised by collectiveagreements. In French law, a collective agree-ment, should it be signed by majority unions, can-not modify a contract which means that employ-ees can individually oppose changes provided forby collective agreements. Not surprisingly, adebate is rising, with a strong criticism of the factthat individual interests (protected by individualcontracts) prevail over collective interests. Thedebate is complex; even if the legitimacy of tradeunions has improved through changes in the law(see above), the rate of unionisation in Franceremains very low (less than seven percent). Aretrade unions sufficiently legitimate to impose onindividual rights? Are union delegates, at compa-



ICTUR IN ACTION ❐ TRIAL OBSERVATION

A human rights defenderwho should never have been prosecuted

Human rightsresearcher AndyHall has been hitwith a plethora of civil andcriminal legalcases arisingfrom his alleged‘defamation’ of amajor pineappleexporter in areport on labourrights for migrantworkers inThailand

prohibition is in breach of the requirement ofopen justice;

■ the prosecution was not fair because of:- the failure to make full disclosure to Mr

Hall of all evidence available to theprosecution before the trial including thecomplete Department of Labour files for thefactory;

- the failure of the Thai authorities to respondto the defence subpoenas and providecritically relevant files to Mr Hall concerningthe labour conditions at the factory.

■ Mr Hall had a complete defence to thecharges and deserved to be acquitted on themerits.

Plunkett continued: “Hall is not the first humanrights investigator to be placed on trial underThailand’s criminal defamation laws”, and addedthat “there is an astonishing 95 percent convic-tion rate for those tried under these laws”.Adding to the concern for the internationallabour rights community, Plunkett noted: “today’sverdict does not mark the end of the matter forHall. He now faces further, more serious, crimi-nal charges and civil suits seeking damages run-ning into millions of dollars”.

The International Centre for Trade Union Rights(‘ICTUR’) is a London-based international NGO,established in 1987 and accredited to the UNECOSOC and the ILO Special List of internationalNGOs. ICTUR is the publisher of InternationalUnion Rights journal. ICTUR’s programme of activ-ities includes the observation of key labour relat-ed trials around the world.

Mark Plunkett is a Brisbane-based barrister andan expert on human rights in the Asia-Pacificregion. For over 32 years Mr Plunkett has prac-tised law as a Barrister at the Private Bar through-out Australia and the Asia-Pacific region. He is aCourt Accredited Mediator and SpecialistNegotiator.

■ For further information about the case againstAndy Hall please see the full trial observer’sreport, available online at: www.ictur.org/Eng/Plunkett.htm.

■ For more about ICTUR’s trial observerprogramme, please see the online guide to:www.ictur.org/Eng/Lawyers.html

■ For more about the Finnish NGO researchprogramme with which Hall was involved,looking into working conditions in productionfacilities for Thailand’s canned fruit and fishexport industries, please see:www.finnwatch.org

On 29 October 2014 British labour rightsresearcher Andy Hall was acquitted by thePhrakanong Provincial Court, Bangkok,

when it dismissed charges of criminal defamationin relation to his work to expose labour rights vio-lations. Regional human rights specialist and bar-rister Mark Plunkett of Brisbane, Australia, moni-tored the trial on behalf of the London-basedInternational Centre for Trade Union Rights.

Plunkett said ‘this is a good result. Hall is clear-ly a human rights defender engaged in legitimatework to investigate the conditions of migrantworkers. The work that Hall was engaged inshould not have been the subject of a criminalprosecution. And it was no coincidence that fiveUN Special Rapporteurs had spoken out in sup-port of Hall and his work’. Plunkett welcomedthe fact that ‘the judges conducted the trial of MrHall fairly with dignity and discernment’, but hecriticised the law under which the prosecutionwas brought, the conduct of the prosecution, andthe restriction on note taking by members of thepublic and press.

The trial observer’s full report is now availableon the ICTUR website at: www.ictur.org/Eng/Plunkett.htm. Plunkett’s main conclusions are that:

■ the judges conducted the trial of Mr Hall fairlywith good grace, dignity and discernment andreached a just result by dismissing the chargesagainst Mr Hall;

■ the laws which permitted the criminalprosecution of Mr Hall for criminal defamationare not fair and are in violation ofinternational norms because Thai law makesthe exercise of a fundamental right of freespeech a crime punishable by imprisonment;

■ it is not a fair system of law that permitted MrHall to be charged in Thailand with a criminaloffence, exposing him to harsh penalsanctions for exercising his right of freespeech by giving a press interview in Burmawhere he did not even identify the injuredparty;

■ the Thai Courts had no jurisdiction to try MrHall for the acts complained of which werecompleted outside the jurisdictional limits ofthe Kingdom of Thailand;

■ the Thai criminal laws of defamation do nothave extraterritorial reach and cannot seek topunish a person for acts committed outside ofThailand;

■ there was no prima facie case made outagainst Mr Hall because Mr Hall had notidentified the Natural Fruit Company Ltd inthe interview;

■ the laws which prohibited the making ofnotes by members of the public and the pressat the trial are not fair because such a

DANIEL BLACKBURN is Director of the InternationalCentre for Trade Union Rightsin London

police in relation to this complaint continuallyraises concerns about the quality of their investi-gation, it is interesting to note that they confirmthat they have identified a potential “flow ofinformation between Special Branch and the con-struction industry”. A number of blacklist activistshave been refused copies of their own personalpolice files made under Subject Access Requestson the basis that providing the documents mayjeopardise ongoing criminal investigations. It iswithout doubt that the police and security ser-vices are spying on trade unionists fighting forjustice on the issue of blacklisting. They have col-luded with big business to deliberately targettrade unionism over decades. The refusal to pro-vide any information whatsoever smacks of anestablishment cover-up. Blacklisting is no longeran industrial relations issue: it is a human rightsconspiracy.

Protestors assaulted by constructioncompany security

Part of the work of the BSG is our campaign toensure that the role of the multinational construc-tion giants who used the Consulting Association’sservices is not forgotten. To further our demandsfor justice we regularly organise public demon-strations and protests at the offices and major pro-jects of these giant corporations. On 15 October agroup of 20 BSG activists attended headquartersof Laing O’Rourke in Dartford where we attempt-ed to distribute leaflets about the role of the con-struction giant in the Consulting Associationblacklisting conspiracy. The photograph repro-duced here shows how Laing O’Rourke chose torespond to this peaceful protest.

Time for a public inquiry?The BSG is not alone in being concerned by the

web of relationships that appears to have facilitat-ed the movement of staff and speakers betweenmajor multinationals, the Consulting Associationblacklisting operation, independent ‘employmentvetting’ services, and the UK’s secret services. Ithas been confirmed in a Select Committee inves-tigation that the undercover police unit known asthe National Extremism Tactical Coordination Unit(‘NETCU’) attended and gave Powerpoint presen-tations to meetings of the Consulting Associationblacklisting organisation. In their rather bluntresponse the metropolitan police say that the rel-evant guidance on this issue is simply ‘if asked: isit true that NETCU shared information with theConsulting Association? We do not discuss mattersof intelligence’ At least one former NETCU officernow works for an ‘employment vetting’ ser-vice. Another senior officer from the unit now

The UK’s secretpolitical police are

spying on me. Iknow this

because theyrefuse to providea copy of my file,

even after makingappropriate

requests by theproper procedure.

My ‘crime’ isbeing a trade

unionist


The metropolitan police have responded to arequest for information about continuingsurveillance of workers’ rights activists with

the unhelpful posturing that they will ‘neitherconfirm nor deny’ whether the Blacklist SupportGroup (‘BSG’) is under surveillance by under-cover police units. The statement came in aresponse to a Freedom of Information request on9 October 2014 and was sent to investigativejournalist Phil Chamberlain. The police chose tojustify their stance by quoting Section 24(2) of theFreedom of Information Act, claiming that it wasin the ‘public interest’ for them to refuse to ‘con-firm or deny in order to safeguard national secu-rity’. But the Act allows them to confirm or denyfor public interest reasons. Failing to releaseinformation under this provision seems a difficultdecision to justify given the huge public interestsurrounding the exposure of undercover policesurveillance of activists in the UK that hasemerged over the past few years.

As IUR readers may be aware, we now knowthat the UK secret State operated an extraordinaryweb of intrusive surveillance of left and environ-mental activists, over many years, by officers whoinsinuated themselves deep into the private andfamily lives of activists. Posing as activists, theseofficers formed relationships and fathered chil-dren with the activists whom they were secretlymonitoring. The destructive impact of this sur-veillance upon the lives of many peacefulactivists, and their children, is slowly emerging,although the secret State appears to be in com-plete denial about its responsibility for this awfulsituation.

The ‘neither confirm nor deny’ defence whichwas also adopted by the metropolitan police inrelation to the victims of this most intrusive spy-ing was defeated in the High Court in September.Some of the same women activists currentlysuing the Metropolitan Police following this trav-esty also appear on the blacklist that was run bythe shadowy body serving the constructionindustry, the Consulting Association. The met-ropolitan police letter regarding the BSG evenadmits that there is ‘legitimate public interest ininforming public debate in relation to issues sur-rounding surveillance tactics’ and mentions ‘theBlacklist Support Group and the wider issuesregarding the practice of blacklisting’. But theymaintain an uncooperative stance.

Lawyers working for the BSG have submitted acomplaint to the Independent Police ComplaintsCommission about the role of the police in black-listing. Despite accusations of an establishmentcover-up, even the police were forced to admitthe flow of information was not purely one way.Sarah McSherry, solicitor from Imran Khan andPartners said: “while correspondence from the

You couldn’t make it up…REPORT ❐ BLACKLISTING

DAVE SMITH is Secretary of the Blacklist Support Group

and a TUC tutor, and iscurrently undertaking research

at the University of the West of England in Bristol


holds a senior international position in charge ofsecurity for a major construction company.

A letter from John McDonnell MP to HomeSecretary Teresa May observed that the he was‘particularly concerned at the allegation that thePolice and Intelligence Services had been impli-cated in the practice of blacklisting trade union-ists’ and called for new action following the emer-gence of new evidence. A handwritten note hasemerged, taken by the late Mr Ian Kerr, ChiefExecutive of the Consulting Association, of ameeting organised by the Consulting Associationand addressed by Detective Chief InspectorGordon Mills from the NECTU. The notedescribes a presentation given by the police offi-cer to representatives from the following compa-nies: Vinci, AMEC, Skanska, Costain, Sir RobertMcAlpine, Emcor, and Sias Building Services.‘Given this record of attendance at this meeting’,McDonnell wrote, ‘it is shocking that in their evi-dence to the Scottish Select Committee’s inquiryinto blacklisting directors of Skanska and SirRobert McAlpine denied any involvement of thepolice’. ‘Despite numerous requests under theFreedom of Information Act for documents relat-ing to NECTU’s activities’, McDonnell continued,‘the response has been that no documents relat-ing to the meeting of DCI Mills with theConsulting Association exist. It appears odd thatno report of such an important meeting was writ-ten and that no evidence of the meeting is nowheld by the Metropolitan Police’. In the light ofthis evidence, McDonnell argued, an independentinquiry must now be undertaken into the role ofthe Police and Intelligence Services in blacklisting.

A big fuss about very little?Just the latest in the escalating series of scan-

dals surrounding the whole blacklisting episodewas a bust-up that took place between two of theUK’s top figures in the field of human resourcesin front of 200 of the UK’s leading industrial rela-tions academics, HR professionals and union offi-cials, when both men addressed a conference tocelebrate the 50th anniversary of the ManchesterIndustrial Relations Society. Mike Emmott, a for-mer senior civil servant and ‘employee relations

BSG Secretary Dave Smith being assaulted. Reel News, 2014

expert’ with the Chartered Institute of Personnel& Development (‘CIPD’) was booked as thekeynote speaker on the theme of the supposedimportance of ‘a culture of trust, fairness andrespect’. Following the presentation, GMB unionpolitical officer Neil Smith raised a question con-cern the CIPD’s silence with regard to blacklist-ing. Why, Smith wanted to know, had this keyhuman resources organisation failed to offer aclear condemnation of the practice?

Initially Emmott dodged the question, claimingnot to be very well informed about the issue, buthe subsequently described the blacklisting scan-dal as a “big fuss about very little” and stated thathe found “union moral outrage over blacklisting,rather distasteful”. There were audible gasps fromthe audience, as voices from the floor called outquestions that identified a number CIPD Fellowspersonally involved in blacklisting union mem-bers. Clearly rattled, Emmott again claimed igno-rance (the issue has been front page news in thenational media and even in CIPD’s own journal).He then bizarrely observed that he would behappy to have the accused CIPD members as hisneighbours. The next speaker, Sir BrendanBarber, Chair of the UK advisory and conciliationservice ACAS (and former TUC GeneralSecretary), noted that he “disagreed” with theCIPD spokesperson, and made clear his view that“blacklisting is a major injustice that has not beenresolved” and that it is one that “raises huge issuesabout corporate culture and responsibility”.

The Blacklist Support Group has submitted acomplaint to the CIPD for breaches of their codeof ethical conduct but two years later not a sin-gle member of the professional body has facedany sanction. Nor has any senior managerinvolved in blacklisting been disciplined by theiremployer, most remain in post or have evenbeen promoted to the Board. The firms involvedand the CIPD have cried crocodile tears aboutblacklisting but the mask of hypocrisy worn bythe HR profession has finally slipped. Blacklistingbreaches our human rights. It is morally wrong.For any individual to face every day of his life,with no prospect of securing a legal right toemployment because of a conspiracy is a com-plete crime.

Only a publicinquiry can revealthe truth of thesituation


REPORT ❐ LABOUR RIGHTS AND THE SUPPLY CHAIN

Garmentsproduced in the

Indian state ofGujarat are likelyto be handled by

at least 13different groups

of transportworkers beforearriving at a UK

retail store

lower cost countries in the late 1940s. By regis-tering vessels in countries such as Panama andLiberia, national regulations could be evaded.Over the past six decades ITF unions have foughtback. Starting with industrial action by dockersagainst ships with poor working conditions, theFOC campaign has resulted in an internationalcollective bargaining system that covers onequarter of all FOC vessels.

The ITF has also succeeded in entrenching itsinfluence in international law, such as throughthe ILO Maritime Labour Convention, whichrequires Port States to enforce minimum labourregulations.

For all the historical achievements of the ITF’sFOC campaign, the downward pressure on thelabour standards of transport workers is wide-spread.

On a macro scale, the rapid growth of globaltrade has moved many transport jobs into non-union spaces. A third of global shipping contain-er volumes are now handled in Chinese ports.The much smaller statelet of Dubai, meanwhile,has carved out a niche as a global transhipmenthub with its major port, land logistics, and aircargo complex.

On a micro scale, new transport infrastructurehas often been established right alongside tradi-tional bastions of union power. During the mid-2000s, the historically well-organised port ofMumbai was effectively wound down when newcontainer ports were constructed a short distancedown the coast. Union members that soughtrecognition in one these ports were the subject ofrepeated physical violence and intimidation.Halfway round the world in California, theimmense but almost entirely non-union InlandEmpire logistics complex, which employs 90,000workers, has emerged next door to some of theworld’s most highly organised dock workers.

Even where transport workers have remainedunionised, the relentless pressure on cost struc-tures from lead firms has put them under enor-mous pressure. In many countries, low barriers toentry in the trucking sector help to create intensecompetition and often dangerous pressure onworking conditions.

In Australia, for example, trucking was thecause of 30 percent of all occupational deathsover a 10 period, and truck drivers specificallyare 16 times more likely to be killed on the jobthan the average worker.

The issues facing transport workers, therefore,may not be as high profile as the issues facingproduction workers. Nevertheless, there is still aserious governance gap, and a necessity to devel-op robust frameworks that hold lead firmsaccountable for labour standards in their trans-port operations.

It is widely accepted that lead firms have amajor responsibility to govern labour standardsin global supply chains. A range of regulation

initiatives such as the OECD Guidelines onMultinational Enterprises, the UN Global Compact,and the Bangladesh Accord on Building and FireSafety, identify the ultimate responsibilities of leadfirms with varying degrees of precision.

Production workers have been the major focusof these initiatives. Whether it is Indian garmentworkers making goods for European retailers, orColombian plantation workers harvesting flowersfor North American supermarkets, labour stan-dards at the production end has been the mainpoint of scrutiny. For many observers, it is herethat the most serious labour rights abuses andgovernance failures occur.

Comparatively little attention has been paid tothe role of transport workers. And yet, theinvolvement of transport workers in these chainsis widespread, and the governance arrangementsfor these workers is highly uneven.

Take the example of the garment supply chainfrom north west India to northern Europe.Garments produced in the Indian state of Gujaratare likely to be handled by at least 13 differentgroups of transport workers across four differentmodes before arriving at a UK retail store. Thejourney of a typical consignment of shirts wouldlook roughly like this. Arriving by truck in theport of Mundra’s logistics zone, they will first bestuffed into containers. The shirts would then beloaded by dockers onto a container ship headingfor Dubai. Here, the shirts will be unloaded andtrucked to Dubai’s vast logistics hub for sorting.The shirts will then be loaded onto a much larg-er ship, perhaps an 18,000 container Ultra LargeContainer Vessel, and start making their way tothe port of Southampton in the UK. Along theirway they will pass through the Suez Canal, itselfa major employer of transport workers. Arrivingat port in the UK they will once again beunloaded by dock workers, driven to a retail sortfacility, sorted again by warehouse workers, andthen trucked, one last time, to their final locationin store.

If transport workers have such a prominentrole in the functioning of global supply chains,then why have they received little attention ingovernance debates? One explanation is thattransport workers are assumed to be more high-ly unionised, and less vulnerable. Historically, itis certainly true that transport workers haveutilised their strategic position as a buffer againstattempts to drive down labour standards. TheITF’s challenge to the Flags of Convenience(‘FOC’) system in the shipping industry is one ofthe most well known examples. Shipowners firststarted to use FOCs as a way to source crew from

Transport workers and global supplychain governance

JEREMY ANDERSON is Head ofStrategic Research with the

International TransportWorkers’ Federation in London


For lead firmsthere is noescaping theobligation toensure that labourstandards areupheld in all ofthe transportservices they use… governancetools areemerging oneway or another

Defining responsibilities: Majority versusminority contractors

If lead firms should be held accountable fortheir transport operations, the question thatremains is which lead firm?

In some cases, the situation is clear. The out-sourcing revolution in logistics means that manytransport operations are dominated by a singleclient. In such majority contractor scenarios, it isstraightforward to identify the dominant firm(s) atthe head of the chain. For example, truck driversat Linfox in Thailand, an Australian logistics com-pany, work on a contract for Tesco Lotus, a sub-sidiary of the UK supermarket giant. In othercases workers in a single location, such as awarehouse, may serve multiple clients. But thesmall number of overall clients, perhaps three tofive, means the diagram of power is obvious. Inthese situations, it is patently disingenuous forlead firms to avert their responsibilities to upholdlabour standards.

The Heavy Vehicle National Law in Australia isa path breaking response to the issue of labourstandards for transport workers. The law con-cerns heavy trucking operations, and states thatall firms in the supply chain have a chain ofresponsibility to ensure that standards areupheld. The law has a particular focus on safety,including fatigue management and safe schedul-ing practices. Crucially, it identifies competitivepressures emanating from lead firms as the keypractice that needs to be regulated.

Can the chain of responsibility model, howev-er, also be applied in minority contractor scenar-ios? In some cases, transport workers handlegoods for a very wide range of clients. The mar-itime container trade is an extreme example. Thelargest container ships carry over 18,000 contain-ers. Exactly how many end clients have theircargo on a typical voyage is not widely known.But for seafarers, dockers, and some warehouseworkers, the relationship with lead firms is morediffuse in these minority contractor scenarios.

Employers may argue that the complexity ofthese arrangements mean that it is not theirresponsibility to uphold labour standards. Theymay also insist that because they are not thedominant client of the transport sector in ques-tion, they do not have the necessary influence toensure compliance with effective labour stan-dards. They may even claim that as many trans-port firms in the shipping and ports sectors aremajor multinationals in their own right, that thefinal responsibility should lie with these firmsthemselves.

There are several reasons why these objectionsdo not stack up. Although individual lead firms inthe garment sector may not have a dominant rela-tionship over a particular port or logistics com-pany, collectively these lead firms set the terms ofthe market. As the Heavy Vehicle National Law inAustralia recognises in relation to trucking, theprivileged role of these firms at the head of sup-ply chains means that they have a responsibilityto act. Furthermore, as key drivers of global

trade, lead firms are actively reorganising theglobal economy, and also the global transportsector in the process. Lead firms are hardly pas-sive inheritors of the existing transport landscape.

An interesting precedent for minority contrac-tor responsibility can be found in the field ofinvestor relations. In 2013, a group of NGOs sub-mitted a complaint to the National Contact Points(‘NCPs’) of the Dutch and Norwegian govern-ments under the OECD Guidelines onMultinational Enterprises. The complaint relatedto plans by POSCO, a South Korean firm, to builda new steel plant in India. It was alleged that theproject would displace 22,000 people and thathuman rights violations were occurring. Both theDutch and Norwegian NCPs agreed to take upthe complaint because ABP and NBIM, the largepension funds based from their countries, hadminor shareholdings in POSCO.

The Dutch and Norwegian decisions createdsome controversy within investment circles, andnot least within the Norwegian government itself.NBIM, which is part of the Norwegian Ministry ofFinance, has minority shareholdings in 7000 com-panies worldwide. Perhaps concerned about theprecedent this move set, the Norwegian govern-ment sought to challenge the ruling of its ownNCP. The Norwegian government eventuallywithdrew its request for ‘clarification’ from theOECD in June 2014, while also emphasising thatthe Guidelines were not legally binding. By thispoint the Dutch NCP had already recognised thatthe Dutch fund ABP was potentially in breach ofits responsibilities, and facilitated a dialoguebetween all the respective parties, leading to anindependent investigation.

The principles of the POSCO case are directlyrelevant to the dynamic of lead firms and theirrole as minority contractors in transport opera-tions. A key principle in the POSCO case was thatalthough the shareholding of the pension fundswas small, 0.9 percent in the case of NBIM, thefund was nevertheless economically benefitingfrom the company’s activities, and therefore hada responsibility to uphold standards. In this casethis responsibility involved a requirement to con-duct due diligence of all of its investments, andto carry out a strategy to deal with any breaches.

The case for lead firm responsibility for alltransport workers continues to build. In 2016, theILO will hold a General Discussion on DecentWork in Supply Chains. Effective governancemechanisms for transport workers will be one ofthe key items under consideration.

As the examples in this article show, for leadfirms there is no escaping the obligation to ensurethat labour standards are upheld in all of the trans-port services they use, whether they are a majori-ty or minority client. Whether it is the chain ofresponsibility principle enshrined in Australia’sHeavy Vehicle National Law, or the principle ofminority shareholder obligations in the field ofinvestor relations, the governance tools are emerg-ing one way or another. For lead firms themselves,it would be wise to act before they are faced withoutrages on the scale of Rana Plaza.

REPORT ❐ LABOUR RIGHTS AND THE SUPPLY CHAIN

REPORT ❐ TO FOLLOW

thus uniting trade unions representing workers inall of the global manufacturing industries. Staffand affiliates of the ITGLWF were concerned thatthe priority needs of workers in ‘our’ industrymight be lost in the process of merger intoIndustriALL. However the ground-breakingachievements reacting to Rana Plaza and othervital work including achieving significant mini-mum wage gains in Cambodia has dispelled anydoubts about the prominence of the garment andtextile sector inside IndustriALL. The creation ofIndustriALL enabled the weight and resources ofthe larger organisation to work on these cam-paigns and achieve historic progress. The Accordis doing impressive remediation across the indus-try in Bangladesh. They have identified thou-sands of fire and safety risks and closed downdangerous factories. Another Rana Plaza couldhave already happened without this work.

Following the Rana Plaza collapse IndustriALLworked tirelessly to bring the brands and suppli-ers to the bargaining table with national andinternational trade unions and NGOs. Workerrepresentatives led by IndustriALL and UNIGlobal Union together with their Bangladeshiaffiliates succeeded in negotiating a strong agree-ment in the form of the Accord on Fire andBuilding Safety in Bangladesh. Until Rana Plazaonly two brands had been prepared to sign; PVH,the owner of Calvin Klein and Tchibo a Germanretailer. The Accord has now been signed by 180international brands and numerous local tradeunions. The ILO acts as the independent chair ofthe Accord.

The Accord is legally binding, a feature whichis in contrast with the plethora of voluntary cor-porate codes of conduct and multi-stakeholderstandards. Under the terms of the Accord signa-tory brands are each obliged to contribute up toUS$500,000 per year towards costs of implement-ing the terms of Accord.

Crucially the Accord includes a central role fortrade unions in the provision of safety training aswell as in the governance of the programme includ-ing membership of factory safety committees.

The Accord is managing a huge programme ofindependent and credible inspection togetherwith effective and timely remediation.

Key issues for the future■ Bangladeshi employers and Government have

hitherto conspired to deny workers their rightsto freedom of association and collectivebargaining. It remains a huge challenge fortrade unions to take advantage of the spaceoffered by the Accord to build effectivefactory level trade unions in every one of the4,000 factories producing garments for export.

What Next after Rana Plaza:Progress in the GarmentIndustry?

IndustriALLaffiliates have

organised nearly40,000 workers,but this is barely

one percent of thetotal workforce:

organisingremains a top

priority


STEVE GRINTER was Education Secretary with theInternational Textile Garment

and Leather Workers’Federation (ITGLWF) from 1994

to 2012. He is now retired

Four million largely female Bangladeshi gar-ment workers risk their lives every day inthe production of cheap garments for

European and US markets. The collapse of theRana Plaza factory in Savar, Dhaka in April 2013was exceptional only in the fact that there were1,200 fatalities. The Spectrum Factory also inSavar collapsed in similar circumstances in April2005 killing 62 workers and seriously injuring 70more. Workers in the 4000 plus garment exportfactories are not only at risk from their factoriescollapsing but also from fire. Hundreds of facto-ries are located in shared-use premises withenterprises such as shops and restaurants. Thiscompounds hazards of fire and limits the chanceof escape. The Garib fire in 2010 killed 21 work-ers; it was the second fire at the factory within 6months.

Employers have become skilled at presentingto buyers and social auditors a false impressionof ‘compliance’ with buyers’ (often patheticallyweak) corporate codes of social responsibility. Inparticular wages and timekeeping records areroutinely works of fiction for presentation toauditors. The grim reality for workers is a differ-ent story comprising excessive working hoursincluding forced overtime, unachievable produc-tion targets, brutal repression and above alldenial of all trade union rights.

Even today wages remain pitifully low; cur-rently the minimum wage in the readymade gar-ment industry is 5300 Taka or euro 54 per monthbut even this includes various non-consolidatedallowances. Since the industry took off in theearly 1990s wages have increased only half adozen times. Following each wage increase therehas been an almost immediate increase in houserents, food and commodity prices leaving realwages virtually unchanged.

The garment export industry accounts for morethan 93 percent of foreign exchange; earnings in2014 are expected to be more than euro 19Billion. A majority of Bangladeshi parliamentari-ans are investors in the industry. This is why theBangladesh Garment Manufacturers’ andExporters’ Association (‘BGMEA’) is arguablyeven more powerful than the Government itself.

Accord on Fire Safety and Building SafetyUntil 2012 it was the International Textile

Garment and Textile Workers’ Federation(‘ITGLWF’) which was the Global UnionFederation leading the campaign for workers’rights in this industry. IndustriALL was created inJuly 2012 bringing together affiliates from the for-mer International Metalworkers’ Federation(‘IMF’) together with the global union for chemi-cals and mining (‘ICEM’) as well as the ITGLWF

Many brands havefailed to deliver afull financialcontribution, thisis despite the factthat just onepercent of theirannual turnoverwouldcomfortablyprovide allnecessarysupport


on CSR. Their global reputation for upholdingethical standards has now been exposed asflawed. However it is clear that the Alliancewould not have existed without the Accordand that it has made some progress. So, albeitindirectly, IndustriALL and the Accord may becredited with compelling even Walmart tobring about some improvements for workers!

■ Success for a global buyer depends heavily onthe reputation of their brand. Many of themsigned up to the Accord for fear that failure todo so would reflect badly upon them.However IndustriALL has successfully shownthat significant and sustainable progress canbe made by working with brands to worktowards real compliance with internationallabour standards. The idea that garmentworkers in Bangladesh should be able toexercise their rights to freedom of associationwas before the Accord little more than adream. The space provided by the Accord fortrade unions to organise has fundamentallystrengthened the chance for workers to have areal voice in the struggle for better workingconditions.

■ IndustriALL has shown the importance of tradeunions thinking globally and acting locally.The achievements and credibility of the Accordwill ensure that pressure is maintained on thebrands that continue to refuse to sign up tothe Accord. It may be necessary to step up thecampaign to include strategic and targetedboycotts of garments marketed by renegadebrands such as Walmart and GAP. However aswith successful work to establish the Accordthe campaign should be lead by the globaltrade unions and their affiliates with thesupport of friends and comrades including prolabour NGOs.

IndustriALL is supporting a major organisingprogramme aiming to build a comprehensiveunion presence in the Bangladeshi garmentfactories. In 2013, the Bangladeshigovernment agreed to the registration of newlocal unions and in the last 12 monthsIndustriALL affiliates have organised nearly200 factories and 40,000 workers. This is ahistoric achievement and progress is veryencouraging. However this is barely onepercent of the total workforce so trade unionorganising remains a top priority. IndustriALLand its affiliates remain committed to ensuringthat every worker has the opportunity to jointheir trade union. Ultimately they aim toestablish a mature system of industrialrelations for the industry.

■ The brands have failed to deliver their fullfinancial contributions due under the terms ofthe Accord. A contribution of a fraction of onepercent of the global brands’ annual turnoverwould comfortably secure all of the necessaryfunds.

■ Many of the leading US brands have failed tosign the Accord and have instead establisheda rival non-binding buyers’ programme whichthey have called the Alliance for BangladeshWorker Safety. Leading brands behind thisinitiative include GAP and Walmart. Thisinitiative lacks credibility internationally andthe methodology is based on the failed CSRpractices of social auditing without tradeunion engagement. This programme mimicsthe Accord but omits many of the key aspectsthat make it effective; it is not legally bindingand requires no obligatory financialcontribution from the brands. Walmart hasalways been notoriously anti-trade union bothin the US and abroad however GAP had untilrecently been regarded as an industry leader

REPORT ❐ TO FOLLOW


wor

ldwide Belgium

In late November unionslaunched what they said wouldbe a month of intermittentstrike action in opposition toausterity measures, wage cuts,and changes to pensions andsocial security, introduced bythe new right-wingGovernment. The action beganwith dockers and rail workersclosing ports and suspendinginternational rail services

Ebola outbreakRosa Pavanelli, GeneralSecretary of the global publicsector union PSI has named325 health workers who havedied at work while trying tosave lives in Liberia, SierraLeone and Guinea. They werevictims, Pavanelli said, not onlyof a virus, but were also vic-tims of ‘a non-inclusive andinsecure system, where interna-tional financial institutions haveimposed unsustainable devel-opment programmes, based onhealth privatisation, to the solebenefit of foreign corporations.They are victims of a carelessinternational community thathas allowed such conditions ofexploitation and poverty toflourish’. PSI pledged to hon-our their memory by fightingfor safe working conditions andquality public healthcare for all.

Striking a similar note, theglobal union confederationWFTU said that the epidemichighlighted ‘in the most tragicway the chronic and deepwounds in the AfricanContinent by colonialism, bythe continuous plundering ofthe wealth-producing resourcesand by the high public debtsthat keep African States andtheir economies enslaved to theIMF, the World Bank andmonopolies cartels’. Deathsfrom Ebola were, WFTU said,‘facilitated by imperialism’.

EuropeThe European IndustrialRelations Observatory (‘EIRO’)has been merged with its sisterbody on working conditions(‘EWCO’) to form a newEuropean Observatory ofWorking Life (‘EurWORK’). Thenew body remains within theEurofound parent organisation.Much of the work of EIRO iscontinuing within EurWORK,such as the annual updating ofindustrial relations country pro-

files, the most recent of whichwas published in lateNovember.

An interesting piece of workfrom 2013 that is now moreprominently featured on thenew website is a section oncollective bargaining which dis-plays a Europe-wide map andaccompanying table whichclassify dominant local wagebargaining patterns as either‘centralised’, ‘intermediate’, or‘decentralised’ and assign eacha score for the degree of coor-dination in bargaining.

A profile on collective bargain-ing in Portugal describes thedecline in collective bargainingthat has occurred in that coun-try over recent years as ‘dra-matic’ and as having reached a‘critical point’.

Both 2012 and 2013, the reportnotes, were years of ‘collectivebargaining crisis’ in Portugal.The changes are attributed notonly to the economic crisis, butalso by ‘political measures onthe extension of collectiveagreements issued in 2012’ thatare said to undermine bargain-ing coverage.

FijiThe ILO has deferred a deci-sion on launching aCommission of Inquiry toexamine the state of freedomof association in Fiji after theintervention of Fiji’s actingPrime Minister who granted aconcession for the Organisationto go ahead with a DirectContacts Mission. The Missiontook place in early October butthe November meeting of theILO’s Governing Body decidedto defer its assessment of thesituation until its next sitting inMarch 2015.

GreeceTrade unions held a generalstrike on 27 November inprotest at the continuing harshimpacts of austerity, particularlynew plans for a further seriesof public sector job cuts andfurther changes to pensions.

The strike, the first nation-widestoppage since April, had wideranging impacts, with mostpublic offices closing, hospitalsrunning only on emergencystaff, train and ferry servicessuspended, and all domesticand international flights halted.

ILOThe ILO has issued a revisedand updated edition of its publication Rules of the Game:a brief introduction toInternational LabourStandards, which is aimed at a non-specialist audience.

The guide outlines the basicsof the ILO supervisory systemsand gives a brief overview ofkey instruments and processes.Available in print and in elec-tronic format in English, Frenchand Spanish from www.ilo,org.

Migrant WorkersThe ITUC has published a 60-page Legal and Policy Briefinto the situation of migrantworkers in the Gulf region.Facilitating Exploitation: areview of Labour Laws forMigrant Domestic Workers inGulf Cooperation CouncilCountries highlights the dra-matic increase in this form ofemployment in the region, thelack of legal protection, andpoor conditions of employ-ment.

The report says that there are‘an estimated 2.4 millionmigrant domestic workers inthe region (which includesSaudi Arabia, Qatar, Kuwait,Bahrain, United Arab Emirates(‘UAE’) and Oman).

Saudi Arabia is said to havehad a 40 percent increase indomestic workers over thedecade, while Kuwait has seena 66 percent increase since1995. Each UAE household issaid to have, on average, threedomestic workers.

In many of these countrieslegal frameworks such as thekafala sponsorship regime orexclusions from general labourlaw frameworks for domesticworkers facilitate exploitationand prevent access to justice.

Not one of these countries, thereport notes, has ratified theDomestic Work Convention.ITUC calls for these countriesto ratify that instrument ‘imme-diately’.

And it says that legal reforms inthe neighbouring country ofJordan, where labour lawswere extended to domesticworkers six years ago, showthat the needed reforms arepossible.

worldw

ide

Page 27 Volume 21 Issue 4 2014 INTERNATIONAL union rights

Privatisation A new report is now out fol-lowing a major conferenceorganised by Canadian publicsector trade union NUPGE. Theconference and the accompa-nying report examined newforms of privatisation.

The report describes ‘the pri-vatisation industry’ as a secre-tive and unaccountable lobbycomposed of ‘wealthy businessowners, corporate CEOs,lawyers, accountants, and for-mer politicians’. This ‘industry’,NUPGE argues, uses ‘secrecyand sleaze to dupe citizens intoprivatizing more and more oftheir public services’.

If left unchecked the reportsays that its activities will stripcitizens of wealth, values, anddemocratic control over healthcare, education, infrastructure,and government.

Trade agreementsThe European regional publicsector union EPSU has reportedthat a global meeting that itorganised to discuss the secre-tive ‘TISA’ trade agreement hadbeen ‘a resounding success’. 75participants from unions andcivil society organisations tookpart in the discussions aroundhow to move forward withtheir campaign on TISA.

EPSU highlighted what it calledthe ‘dangers’ of TISA, whichproposes eliminating barriers totrade in services, and insistedthat the European Commissionshould have a full and opendebate about the scope of theproposed agreement.

The international trade unioncentre ITUC called the pro-posed TPP trade agreementbetween the US, Japan andother Pacific region States‘secretive’ and ‘damaging’, say-ing it would be ‘good for somemultinational corporations butdeeply damaging to ordinarypeople’. Governments andother democratic actors were‘being kept in the dark’ aboutthe agreement’s contents, ITUCcomplained.

The trade union economicthink tank TUAC, associatedwith the OECD in Paris,launched a report in late JulyInvestment Treaty Law, sustain-able development and responsi-ble business conduct: a fact-

finding survey. TUAC describedthe report as an importantpiece of work that ‘exploresthe relationship betweeninvestment treaty law and gov-ernments’ ability to advanceresponsible business conduct’.Densely written and technicalthe report is filled with infor-mation and will be an impor-tant resource for legal analystsand economists working onthese issues.

South AfricaThere have been dramaticdevelopments in the ongoingdispute between trade unioncentre COSATU and its largestaffiliate, the metalworkers’union NUMSA. NUMSA wasexpelled from the federation on8 November, following allega-tions that it had called forCOSATU to leave the TripartiteAlliance political grouping withthe ANC and the CommunistParty, and that it had beenorganising outside of agreeddemarcation sectors. COSATUGeneral Secretary ZwelinzimaVavi has been perceived as anally of NUMSA and describedthe expulsion, which NUMSAitself strongly contested, as ‘adisaster’.

UN SpecialRapporteurThe UN Special Rapporteur onFreedom of Association andAssembly has opened two new‘discussions’ into LitigatingAssembly and AssociationRights and Assembly (opened24 September) and AssociationRights in the Context of NaturalResource Exploitation (opened28 November). The centrepieceof each discussion is a consul-tation seminar with pre-selectedexpert panels, both of whichwill have completed by thetime our readers receive thisedition of IUR, but the views ofother interested parties areinvited and can be submitted by email to:[email protected].

UzbekistanMillions of people, includingchildren, were forced to pickcotton for the 2014 Uzbek cot-ton harvest in one of thelargest State-sponsored systemsof forced labour in the world,according to the annual reviewproduced by the internationalCotton Campaign NGO.

The Cotton Campaign’s find-ings following both the 2013and 2014 harvests seem to con-tradict reports in 2013 pro-duced by an ILO monitoringteam that found that the situa-tion was markedly improved.One source of disparitybetween the ILO and NGOfindings may be the focus onchild labour, which doesindeed seem to have beenreduced.

However, Umida Niyazova,Director of the Uzbek-GermanForum, that conducts a detailedannual review of the harvest,said ‘reducing the number ofchildren in the fields by forcingmore adults to work againsttheir will is not sufficient’. The review is available atwww.uzbekgermanforum.org.


ICTUR IN ACTION ❐ STAFF CHANGES

Nick produced someremarkable work for ICTURand is already much missed.

We wish him well in hislegal practice and wouldadvise any of our readersthat commission legal ser-vices to consider givinghim a call.

Apparently missing the buzzof editorial work from IURNick informs ICTUR that hewill combine a demandinglegal practice with a newvoluntary role as the Editorof the Haldane Society’smagazine, Socialist Lawyer.

ICTUR Researcher NickBano has moved into legalpractice and is now com-pleting his vocational train-ing as a barrister with 5 Pump Court Chambers,where his expertise inemployment, housing, crime,international law, andhuman rights will doubtlessbe a great asset.

Staff changes

ICTUR is pleased to announce that in 2015 we will be updating the key globalreference book on the international trade union movement, Trade Unions ofthe World (‘TUW’).

This will be the 7th edition of TUW since the book was first published back in1987, when it replaced the similarly themed International Directory of theTrade Union Movement, published in 1979.

The last edition marked the end of the direct involvement of long-term EditorJohn Harper, who also published previous editions, although John has beenkind enough to endorse ICTUR as the new publisher of the title, and hasgiven us some very welcome advice and assistance in getting the newedition up and running.

Trade Unions of the World

for leading NGOs, includingthe European Centre forConstitutional and HumanRights in Berlin, where heworked on business andhuman rights issues andstrategies for enforcing cor-porate accountability.

He has published researchon human rights, trade andinvestment law, and acted asa legal consultant advisingGreenpeace on the TTIPtrade agreement.

Ciaran will assist ICTUR withthe updating of a new edi-tion of the reference bookTrade Unions of the World(see below), and withICTUR’s monitoring of andresponding to trade unionrights violations, and willcontribute generally to ourresearch, advice, and advo-cacy work.

Joining ICTUR as our newResearcher is Ciaran Cross,who will start work inJanuary 2015. Ciaran holds aGraduate Diploma in Lawwith distinction and is cur-rently studying for an LLM ininternational economic law,justice and development.

He has a background as atrade union lay representa-tive in the charity sector.Ciaran previously producedlegal analysis and research

Nick Bano

Ciaran Cross

PublicServicesInternational

PSI is a global trade union federation representing20 million working women and men who deliver vital public services in more than 150 countries.

PSI works with our members and allies to campaign for social and economic justice, andefficient, accessible public services around theworld. We believe these services play a vital role insupporting families, creating healthy communities,and building strong, equitable democracies.

Our priorities include global campaigns for water,energy and health services. PSI promotes gender equality, workers’ rights, trade unioncapacity-building, equity and diversity. PSI is also active in trade and development debates.

PSI welcomes the opportunity to work co-operatively with those who share these concerns.

Visit our website www.world-psi.org

Uniting Food, Farm and Hotel Workers

Worldwide

www.iuf.org

Building global solidarity

International Union of Food, Agricultural, Hotel,Restaurant, Catering, Tobacco and Allied Workers’

Associations

8 Rampe du Pont-Rouge, CH-1213, Petit-Lancy, SwitzerlandTel: + 41 22 793 22 33 Fax: + 41 22 793 22 38 Email: [email protected]

General Secretary: Ron OswaldPresident: Hans-Olof Nilsson

Promoting qualityeducation for all anddefending human andtrade union rights in ourunions, in our schoolsand in our societiesEI is the global union federation representing 30million teachers and education workers in 171countries and territories around the world.

To learn more, please visit: www.ei-ie.org

Education International

Also in this edition: ■ Labour researcher acquitted in Thai defamation case

■ Deep changes to industrial law concepts in France

■ Update on the UK blacklisting scandal

■ ICTUR web site:

www.ictur.org

Cover Image: Heavy police presence for trade union rally, Spain © Sebastian Pacheco (FSP-UGT)

psi | - focus on the right to strike...international union rights page 2 volume 21 issue 4 2014iur...

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