3
Assessing Compliance with Freedom of Association Standards

PRESENTATION

Anthony Giles, Research Director of the Secretariat of the CLC—created as part of the NAFTA—presented a paper written by Cornell University lecturer Lance Compa (Compa, 2002). Giles said he would begin by defining freedom of association and then talk about measuring freedom of association, emphasizing “the crucial difference between indirect measures and direct measures.” He would summarize Compa’s “thorough review of existing reporting mechanisms and sources of information” and then conclude with some suggestions for further research.

Defining Freedom of Association

Freedom of association, as defined by Compa, includes four components:

  1. freedom of association in general (including the freedom of workers to form and join any kind of association);

  2. the right to organize unions;

  3. the right to engage in collective bargaining; and

  4. the right to strike.

Giles explained that each of these four rights has both a “negative” and a “positive” face (Donnelly, 1995; Steiner and Alston, 1996). As negative



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3 Assessing Compliance with Freedom of Association Standards PRESENTATION Anthony Giles, Research Director of the Secretariat of the CLC—created as part of the NAFTA—presented a paper written by Cornell University lecturer Lance Compa (Compa, 2002). Giles said he would begin by defining freedom of association and then talk about measuring freedom of association, emphasizing “the crucial difference between indirect measures and direct measures.” He would summarize Compa’s “thorough review of existing reporting mechanisms and sources of information” and then conclude with some suggestions for further research. Defining Freedom of Association Freedom of association, as defined by Compa, includes four components: freedom of association in general (including the freedom of workers to form and join any kind of association); the right to organize unions; the right to engage in collective bargaining; and the right to strike. Giles explained that each of these four rights has both a “negative” and a “positive” face (Donnelly, 1995; Steiner and Alston, 1996). As negative

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rights, they require that the state and its agents not interfere with workers who choose to exercise them. In other words, state authorities shouldn’t do anything that prohibits or even dissuades workers from forming or joining independent organizations of their choosing, from seeking to negotiate their terms and conditions of employment with their employers through those organizations, or from withdrawing their labor as a means of putting pressure on employers. But, Giles said, even if a state refrains from intervening, this will not ensure that workers will genuinely enjoy these rights because employers and business associations may try to prevent workers from organizing, bargaining, or striking. In a free market society, he said, “It’s usually the case that employers will seek to do precisely this.” Therefore, the rights have to be positive, that is, the state must protect workers who wish to exercise their right to organize, bargain, and strike. Giles said that this definition of freedom of association suggests two criteria for evaluating the quality of data and indicators used to assess compliance: The four key components must be covered—the right to associate, to organize unions, to engage in collective bargaining, and to strike. Both the negative and the positive faces of these rights must be addressed. This entails measuring whether the state is refraining from interfering with the exercise of those rights and providing positive protections to workers who choose to exercise those rights. Giles warned that assessing freedom of association rights is “enormously complex” because it is difficult or impossible to design absolute measures of any one of the four components. As Compa stressed in his paper, “Ultimately a judgment call has to be made.” For example, although many governments allow workers to strike, most of them also limit that right by such measures as prohibiting certain groups of workers from striking and limiting strikes to certain time periods. Consequently, measuring compliance requires that a judgment be made about which kinds of limits are reasonable and which constitute an effective denial of the right to strike. Moreover, Giles asked, how do we compare or weigh these different limits? Because subjectivity is unavoidable, Giles said, “it is crucial to ensure that judgment is exercised in a consistent and transparent way.” Giles identified a second reason for the complexity of assessment: Legal texts, regulations, and official statements are not always implemented,

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leading to “yawning gaps” between workers’ theoretical rights and actual practice. For this reason, he said, it is important to underline one of Compa’s key points: Data have to be gathered from the field through interviews and questionnaires aimed at those who have actual daily experience with a country’s system. This led Giles to identify a third criterion for evaluating data on freedom of association and collective bargaining: Are these data based on research into the context in which workers try to exercise their freedom of association rights, and does that research use consistent methods (questionnaires, interviews, on-the-ground investigations)? Measuring Freedom of Association Giles distinguished between two distinct groups of data and information to measure freedom of association—indirect measures and direct measures. Indirect measures include whether or not a country has ratified ILO Convention 87 on Freedom of Association (ILO, 1948) and/or ILO Convention 98 on Organizing and Collective Bargaining (ILO, 1949). Other indirect measures include the number of complaints the ILO receives about that country, the nation’s union density, the existence of multiple unions and union confederations, collective bargaining coverage, and data on strikes. Indirect measures also include data on a government’s potential enforcement capacity, such as labor ministry budgets, numbers of workplace inspectors, and caseloads of administrative bodies. These indirect measures are proxies, based on assumptions about what the results of genuine freedom of association will be, Giles said. For example, some researchers assume that, all other things being equal, freedom of association will lead to—or at least be associated with—ratification of ILO Conventions 87 and 98 and higher rates of union density. However, neither of these is a good proxy. For example, several nations that have ratified ILO Conventions 87 and 98 are widely viewed as among the worst violators of labor rights.1 In addition, high union density might be accompanied by a complete absence of freedom of association in an authoritarian regime that effectively controls official unions and essentially requires union membership. Conversely, as is the case in France, low union density may 1   See Compa (2002) for a discussion of several studies of the relationship between ratification of ILO conventions and other factors, including national compliance with international labor standards.

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simply reflect the free choice of workers not to unionize because they have other avenues in which to pursue their goals. As a result of these problems, Giles warned that these indirect measures are not a substitute for direct measures, although they can play a role if interpreted carefully and used together within composite indexes. When researchers use direct measures, most begin by scrutinizing a country’s legal texts, structures, and enforcement measures. Although this method can identify infringements of both the positive and negative faces of workers’ freedom of association rights, it does not reveal whether these legal mechanisms are adequate or administered properly. Identifying the actual practices in a country requires one or both of two methods—the analysis of secondary sources and fieldwork (examining the actual records of agencies and organizations and interviewing a wide range of participants in the system). Direct measurement “is unavoidable if you want an accurate picture of the extent to which workers can actually exercise the right to associate, organize, bargain, and strike,” Giles said. Existing Data Sources Giles organized Compa’s assessment of existing data sources into three broad groups. The first group included the “huge number” of occasional studies issued by government and nongovernmental institutions. U.S. agencies, such as the Trade Policy Staff Committee, the Overseas Private Investment Corporation, the Department of State, and the DOL’s Bureau of International Labor Affairs, issue reports in this category. Foreign governments and international agencies, including the ILO, the World Bank, and the CLC Secretariat, also occasionally assess and report on workers’ rights to freedom of association. In addition, this group includes numerous country-specific reports by such NGOs as Human Rights Watch, the Asia Monitor Resource Centre in Hong Kong, and the International Centre for Trade Union Rights in London, and by monitoring organizations such as the Fair Labor Association, the Ethical Trading Initiative, and the Clean Clothes Campaign. Finally, the group includes important studies by researchers from a range of disciplines who publish hundreds of academic articles and books addressing freedom of association. Giles identified several reasons why none of the reports in this group “offers a ready-to-use model for assessing freedom of association at the international level.” First, most are occasional, conducted either in response to a specific complaint or as a one-time initiative, and this limits their

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timeliness. Second, because most focus on a single country, an industry, or even just one particular plant, their findings cannot be generalized. Finally, the authors of these reports are not always independent, so the results may be flawed. But Giles cautioned against dismissing these one-time reports. Although weak in terms of the goal of developing a broad and systematic assessment methodology, they provide detailed information and assessment that could inform broader global evaluation systems. In the second broad group of reports, Giles placed those that generally apply the same methods across many countries to describe aspects of freedom of association. He said reports in this group “lay descriptive accounts of country experiences side by side and leave it to you, the reader, to make the comparison.” Many of the same organizations that produce occasional reports included in the first group also produce these broader comparisons. They include the CLC Secretariat; human Rights Watch; ILO committee reports; the ICFTU, Annual Survey of Violations of Trade Union Rights; and the U.S. State Department annual Country Reports on Human Rights Practices. Commenting on the sources in the second group, Giles said that, in Compa’s view, the State Department reports (U.S. Department of State, 2002) provide “the most universal and systematic reporting on workers’ freedom of association.” The ICFTU annual survey, Giles said, contains “carefully documented and reasonably systematic country level descriptions of labor law and recent attacks on workers’ rights” (ICFTU, 2001). Reports from the ILO Committee of Experts on the Application of Conventions and Recommendations (International Labour Office, 2002) and the ILO Committee on Freedom of Association (2002b) also provide a wealth of information, although they are sometimes couched in diplomatic jargon. According to Giles, these three information sources in the second group have several important attributes. First, they provide broad coverage of all or most of the world. Second, they address most of the key components of freedom of association. Most important, they “all seek to apply . . . a standard formula in a systematic way to all countries.” Reports in the third group studied by Compa, Giles said, “actually seek

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to compare or rank in an explicit way the degree of compliance with . . . freedom of association.” This group includes a study of labor standards and trade by the OECD (1996), a study by International Institute for Labor Studies economist David Kucera (2001a, 2001b), and an analysis conducted by Verité, a U.S. labor monitoring organization (no date). The three studies are similar in many ways. They all cover many countries, ranging from 27 in Verité’s study, to 75 in the OECD study, and 127 in Kucera’s work. All three studies examine most of the components of freedom of association outlined above, including the right to organize, to bargain, and to strike. In addition, they all use detailed lists of criteria (Verité uses 14, the OECD uses 20, and Kucera uses 37) to evaluate the extent to which countries provide workers with the right to freedom of association. According to Giles, the three studies draw on multiple data sources, including both direct and indirect measures, transforming the information “into some sort of weighted index of compliance.” In addition, each study acknowledges that subjective judgments were made at some point in the process. Finally, “Although all three are very useful models upon which to build, none is perfect.” Suggestions for Further Research In conclusion, Giles said that the best existing data sources on freedom of association are those that “combine select quantitative measures with careful qualitative data in a systematic way.” These include the three studies discussed above (Kucera, 2001a, 2001b; OECD, 1996; Verité, no date). Giles also said that the best examples of detailed descriptive assessment of many countries are the ILO committee reports and the ICFTU and State Department annual reports. Giles outlined a number of Compa’s suggestions for further research and analysis that build on these model assessments. First, a group of experts might construct a detailed template of questions that probe all aspects of freedom of association, including government noninterference with rights and government action to protect those rights. Second, he suggested combining such measures as union density, collective agreement coverage, and strike incidence to create “a composite measure of industrial relations indicators.” A third step would involve developing quantitative measures of reprisals against workers who attempt to organize, bargain, or strike. Such measures could begin with records of enforcement bodies, supplemented with in-depth field interviews. Fourth, it would be useful to construct quantita

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tive measures of institutional and enforcement capacity, using data such as the budgets, personnel, caseloads, and available remedies of those bodies that are responsible for enforcing workers’ rights. Fifth, rather than relying solely on the three best documentary sources (the ILO, ICFTU, and State Department reports), Giles said, expert assessments should systematically draw on information from a wider range of reports and studies, including scholarly studies of particular countries. He also suggested using a standard questionnaire to conduct in-depth interviews with workers and other actors in the field; respected labor law scholars or industrial relations scholars might be the best people to conduct such interviews. Although it is impossible to avoid subjective judgment, Giles said, it is important to acknowledge this and to use staff experts who apply their judgment as dispassionately and consistently as possible in order to minimize discrepancies. To achieve international credibility, the United States should be included in any systematic, country-by-country assessment of workers’ freedom of association rights. Finally, he suggested creating two expert advisory groups to oversee these research and development activities. The first group, comprising representatives of labor, management, NGOs, and other groups, would review and discuss draft country reports on freedom of association prior to publication. The second group, including experts in economics, political science, sociology, industrial relations, law, and other relevant disciplines, would provide guidance in developing and applying the best methods to assess freedom of association. DISCUSSION Former U.S. State Department official Sandra Polaski began her response by saying that the Compa paper provided “an excellent basic checklist of the issues to look at.” Because she felt that the author had done a thorough and balanced job of evaluating existing information sources, Polaski did not provide detailed comments on the paper. Instead, she addressed five “macro” issues, which she defined as broad questions the committee should consider in building a database of information. First, she suggested that the committee consider “who is the customer” for the freedom of association information that will be included in the database. She said that the key customers will include the U.S. State and Labor Departments, the U.S. Trade Representative, and other agencies charged with carrying out national laws and trade agreements that require respect for core labor standards. She also would “strongly encourage” the

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database to be made public, as an aid for those seeking government redress of labor rights violations and to help consumers and investors make socially responsible purchasing and investment decisions. Second, Polaski suggested designing the database in a way that will allow it to present “a dynamic picture, not a static picture, of respect for freedom of association.” She argued that countries’ varying levels of economic development, political histories, and other factors mean that there can be great variation in the actual respect for core labor standards. She said that the U.S. would want to encourage, not sanction, a country that has imperfect institutions but whose government is making a “substantial credible effort . . . to improve.” However, the database should also clearly indicate those countries “where rights are deteriorating sharply.” Third, Polaski cautioned against aggregating information on compliance with core labor standards into a single index or ranking for a country, as was done in some of the studies Compa reviewed. She said that the rights guaranteed in the ILO 1998 Declaration of Fundamental Principles and Rights at Work “are not substitutable.” Each is a “fundamental human right,” and ranking a country based on a combined measure is “profoundly flawed.” For practical reasons, it also does not make sense to aggregate measures of compliance because U.S. and international organizations have different policy instruments for different rights. For example, U.S. trade laws ban the importation of products made with forced or prison labor, a constraint that does not apply to other core labor rights. In her fourth point, Polaski urged the committee to consider the negative and positive aspects of freedom of association rights. For public sector workers, governments need to not only “stay out of the way” by including these workers in laws protecting the right to organize (a negative right) but also take a positive action by bargaining with public sector employees. In the private sector, the government role in securing positive rights is critical because employers as well as workers are involved. She said that most reporting on freedom of association assumes that “the main responsibility lies on the government.” Although the government bears ultimate responsibility for guaranteeing these rights, the first line of responsibility rests with the employer. She recommended that the committee focus much more on the responsibility of private sector employers in allowing workers the right to organize, to bargain, and to strike. While acknowledging that governments in very poor countries lack resources to monitor employers and enforce freedom of association laws, Polaski urged the committee to look “very closely” at the actions of employ

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ers. She suggested that the committee’s database include the “slowly increasing” number of reports generated by voluntary private sector labor monitoring. She said that monitoring is “just starting to take place on the ground to a significant extent” and will provide an important source of information in the future. Fifth, Polaski strongly suggested that the committee create a quantitative index for each core labor right for each country and present the index in the database with a strong caveat against using it in isolation. The database should also present a range of qualitative sources. The reason to create a quantitative index, despite the difficulties, is that there are “huge amounts of information” on the web, and more is becoming available every day. “What we have today,” Polaski said, “can frankly be overwhelming,” even for a full-time official. Because “quantification can provide a rough sorting function and a point of entry into the more detailed information,” Polaski suggested assigning countries a rank of 4 to 0, as follows: 4: countries provide generally acceptable protection for all aspects of freedom of association, both in law and in practice; 3: countries where some problems exist, “but significant efforts are underway with visible, demonstrable” improvement; 2: countries with serious problems and no significant effort at reform; 1: countries where protection of the right of freedom of association is deteriorating; 0: countries where workers lack these rights, both in law and in practice. Polaski suggested accompanying the index with a “very tightly organized” base of qualitative information sources for each country. The database should present the qualitative sources roughly in descending order of importance, depth, reliability, and precision. The most credible and useful reference sources should appear first, to maximize the usefulness of the database. The less credible sources could appear further down in the database, and sources that are “clearly either hearsay . . . or libel” should be left out. In response to a question, Polaski expanded on her proposal, suggesting that the committee take four steps to create the ranking for each country: Read the relevant labor laws and any evaluations that have been done of these laws in the major reference sources, and assign a numerical

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indicator of quality. A 4 would be awarded to a country whose laws fully protect freedom of association; 3 would indicate some problems; 2 would indicate more serious deficiencies in legal protection for freedom of association; 1 would indicate extreme legal restrictions; and 0 would indicate no protection of freedom of association. The points based on this legal analysis would be weighted at about 30 percent of the overall ranking. Evaluate the country’s capacity and performance in implementing its freedom of association laws. Implementation would include both proactive enforcement and widely available judicial methods to deal with cases where unions or individual workers claim that their rights were denied. Again, this would require a review of the relevant available reporting, including ILO, State Department, and ICFTU reports. This evaluation would produce a 4 for a country where the rule of law prevails consistently, and a 3 for a country where either proactive enforcement or adjudication works well, but not both. A 2 would be assigned where there are serious deficiencies in both proactive enforcement and adjudication mechanisms, and a 1 would be assigned to countries where there is a complete failure of either proactive enforcement or adjudication. Finally, a 0 would be assigned where both fail completely. The points assigned for this analysis would also constitute about 30 percent of the overall ranking. Obtain and analyze available outcomes measures. This step would take into account any available data that shed light on the actual enjoyment of the right of freedom of association by the citizens of the country, including union density, collective bargaining coverage, and statistics on what happens to workers who attempt to enjoy their rights to freedom of association (in all of its aspects). To the extent that good data are available, this information approaches “silver bullet” status as an indicator of freedom of association. For example, if only one worker in 10,000 attempting to organize faces punitive action as a result, that would indicate an extremely high respect for freedom of association by both government and employers. On the other hand, if one worker in 100 attempting to organize suffers adverse consequences, that would indicate very low respect for freedom of association because the frequency of such an action has a chilling effect, signalling to all workers that organizing is a high-risk endeavor in the country or sector involved. Each country would be assigned a 4 to 0 rating, based on an analysis of all available outcomes data. Although this indicator would be based on the “hardest” information, Polaski said, it is also an area where the judgment of the database builders would be critical. This rating, too, would be weighted at 30 percent of the overall ranking.

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Determine whether the country has ratified ILO Conventions 87 and 98. Although this indicator has limited usefulness, it is “not meaningless” and should be included. To make it more meaningful, Polaski suggested giving credit only to those countries that have ratified the conventions and then followed up by approving domestic laws that provide the rights called for in the conventions; ILO reports would be a key source of this information. A country that meets these criteria for both conventions would be assigned a 4; for only one, a 2; and for neither, a 0. This measure would only constitute 10 percent of the overall ranking. Following Polaski’s remarks, Dwight Justice of the ICFTU offered a second response. He said that freedom of association is both more complex and more complicated than the other core labor standards. Freedom of association, as narrowly defined in ILO standards, rests on the “rock” of broader civil liberties and human rights, he argued. He suggested that the committee examine this broader context, including the question of whether a particular nation is a democracy or not, when measuring compliance with freedom of association standards. He said that, where freedom of association exists, trade unions bring political, economic, and social benefits. In particular, he said, trade unions can help advance broader civil liberties. In contrast to unions, which can help build civil society, he said, NGOs are simply “occupying a vacuum.” Justice indicated that unions’ role in building a civil society is particularly important in light of the link between the informal economy and governance. He said that the problem of vulnerable people, working outside of the legally recognized system and unable to change their circumstances, is due to both a failure of governance and a lack of freedom of association. He said that some parts of the basic legal framework providing freedom of association have been made irrelevant by changes in employment relationships, including the growth in use of temporary workers. Justice said that the ILO has clearly defined the many aspects of freedom of association through its conventions, recommendations, and decisions. In particular, ILO committees over the years have examined many specific situations and provided written opinions about whether those situations provide for, or violate, freedom of association rights. He urged the committee to examine the ILO definitions and decisions in order to thoroughly understand what is to be measured. Justice argued that the most important measure of freedom of association is the existence of unions. He would not take the absence of unions as

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an indication that workers were simply not choosing to exercise their rights, because an absence of unions is likely due to intimidation, and we lack “instruments that can measure intimidation.” Because unions change the “power relationship” in the workplace, they can help improve compliance with other core labor standards, reducing the use of child labor and forced labor, he said. Unions play a critical role because elected representatives speak for individual workers who might otherwise remain silent. Justice argued that there is no substitute for this “very powerful notion.” Interviews, surveys, and other methods of obtaining employee opinions do not give individual workers the same feeling that they are protected and may speak freely about workplace conditions, including possible violations of international labor standards. He said that the very best way to both monitor workplaces and increase compliance with international labor standards was through “a unionized workforce.” Commenting on the ICFTU’s Annual Survey of Violations of Trade Union Rights, Justice acknowledged that it is not completely systematic, partly because of a lack of resources. However, the survey’s strength is that it draws on information from unions around the world that are affiliated with the ICFTU and willing to freely share information with the ICFTU. Justice expressed his concern that business codes of conduct and monitoring systems were leading to a “dumbing down” of freedom of association rights and principles. For example, the Global Sullivan Principles provide the right to freedom of association but do not mention the right to collective bargaining. He said that the voluntary monitoring industry has made some mistakes, and that it is time to think about business responsibility for respecting freedom of association. In some European countries, he said, businesses do not really have a choice about respecting these rights, but in the United States and other countries, companies have the option of fully respecting these rights or not doing so. He pointed to the OECD Guidelines on Multinational Enterprises as a positive development. These guidelines, he said, direct companies to respect the labor laws and regulations of the host nation and to have a positive and open attitude toward unions and collective bargaining. He argued that voluntary codes of conduct “can’t be substitutes for law” and “shouldn’t be substitutes for unions.” In further discussion, members of the committee and audience offered a number of comments and suggestions related to workers’ freedom of association rights. Dwight Justice said that, as part of their “positive” role, governments should use national education systems to inform young people and workers about their freedom of association rights. Ruth Rosenbaum of

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the Center for Reflection, Education and Action disagreed with Giles’s suggestion that respected scholars might be the best people to conduct field interviews with workers. She said that workers are more likely to be open and truthful when they can identify with interviewers who look and talk as they do.