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International Labor Standards in the National Context: Legal Frameworks and Monitoring The opening session of the workshop focused on the complex relation- ship between international labor standards and national legal structures. To assist the National Academies' Committee on Monitoring International Labor Standards (CMILS) in examining legal aspects of labor standards compliance, the two presenters, Arturo Bronstein (International Labour Office) and Marley Weiss (University of Maryland), offered their perspec- tives on some of the challenges of incorporating international norms into national systems and discussed methods of assessing the extent to which this has been accomplished. Art?vro Bronstein Senior LaIDour Law and Policy Advisor, ILO Mr. Bronstein opened his presentation with an overview of the role of the ILO within the United Nations system and its relationship with mem- ber states. While the main task of the ILO is the formulation of labor standards, he added that these standards call for implementation, which most often comes in the form of statutory law. "Very few countries in the world really can implement labor standards by means other than state in- tervention," he said. When "intervention" does come in the form of a revision or creation of national labor laws or policies, states often turn to the ILO for assistance. Because national laws should not be an "abstract 4

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INTERNATIONAL LABOR STANDARDS IN THE NATIONAL CONTEXT production," Mr. Bronstein said, the ILO always attempts to include in the process the social partners representatives of workers and employers. The Role of the ILO in the Framing of National Legislationi Mr. Bronstein discussed the ILO's historical role in working with na- tions to adopt or revise labor laws. In the 1960s, this included extensive cooperation with newly independent countries emerging from colonialism. In the 1980s, as an increasing number of countries particularly in Africa and Latin America made efforts to democratize their political systems, the ILO offered assistance in reorganizing legislation to match shifts in industrial relations. In the 1990s, newlyindependent states in Eastern Europe sought assistance from the ILO in making the transition away from centrally planned economies. "They needed to assess their collective labor legislation in order to take into account the fact that a basic assumption of the labor relations system in a market economy is freedom of association." The "transition countries" of Central and Eastern Europe have also re- quested assistance from the ILO to integrate the acq?vis communautaire.2 Several recent examples of ILO technical assistance in the field of labor law canbefoundinBox2-1. Currently, according to Mr. Bronstein, member states call on the ILO for assistance in revising their labor law for a number of reasons: 1. implementation of ratified ILO standards; 2. reorganization of their labor legislation so that it is consistent with a different pattern of economy; 1"The International Labour Office is the permanent secretariat of the International Labour Organization and focal point for the overall activities that it prepares under the scrutiny of the Governing Body and under the leadership of a Director-General, who is elected for a five-year renewable term. The Of lice employs some 1,900 of ficials of over 110 nationalities at the Geneva headquarters and in 40 field offices around the world. In addi- tion, some 600 experts undertake missions in all regions of the world under the programme of technical cooperation. The Office also constitutes a research and documentation centre and a printing house issuing a broad range of specialized studies, reports and periodicals." Aloout the ILO, "Structure of the ILO," available at www.ilo.org/public/english/depts/ fact.htm. 2The acq?~is comm?~na?~taire is the body of European laws that a country must adopt, implement, and enforce in order to be allowed to join the European Union. This includes treaties, regulations, and directives passed by the European institutions as well as judgments of the Court of Justice.

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6 NATIONAL LEGAL FRAMEWORKS 3. structural adjustment seeking advice on how to address labor and social issues within the context of a more open and internationally com- . . petltlve economy; ant ~ 4. creation of labor law "from scratch."

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INTERNATIONAL LABOR STANDARDS IN THE NATIONAL CONTEXT The last example, rare cases in which ILO assistance is requested for the initial drafting of labor legislation, is not the preferred method because it tends to reduce the state's sense of"ownership." More often, the ILO works to identify how to assist a member state in carrying out its own "responsibility of creating labor law for Lits] citizens." In this process, the nonbinding technical advice of the ILO is made "in light of international labor standards, ratified or unratified Conventions." Mr. Bronstein added that Recommendations "are not second-class instruments, they are first- class guidelines for countries to help them address labor law issues."3 In addition to referencing international standards, ILO guidance also consid- ers aspects of comparative labor law. On this issue, Mr. Bronstein said, "It's important for a country, before it takes a decision on a new labor law, to know how such and such labor law problem is tackled in a would-be com- petitor country or in a country which shares a number of cultural or his- . . .. torte values. There are several basic elements of the ILO's approach to addressing labor legislation in such a wide array of countries. Mr. Bronstein said that the ILO, in its work to assist countries in revising their labor law, does not promote any particular kind of framework for labor market regulation. Because the aim of the ILO is to promote the protection of workers, tech- nical advice "must seek a balance between the needs of capital and the needs of labor." To achieve this balance, a basic feature of ILO assistance is to involve workers, organized labor, and organized management in the pro- cess. Mr. Bronstein said that labor law must be realistic and applicable. This requires legislation that is consistent with the particular economic and social environment, and each country has the right to structure its labor law regime in line with its own values. And finally, labor law should be able to generate predictable behavior from those covered by the labor laws. The ILO's technical assistance in the realm of labor law may be im- pacted by a broad array of factors, both within a country and globally. Mr. Bronstein said that social and political stability within a member state could greatly influence the types of reforms that might be recommended in par- 3An ILO Recommendation "is an instrument not open to ratification but which lays down general or technical guidelines to be applied at the national level. They often provide detailed guidelines to supplement principles set out in Conventions, or they may provide guidance on subjects which are not covered by Conventions." ILO Glossary of Terms Re- lated to International Labour Standards, available at www.ilo.org/public/english/standards/ norm/sources/glossry.htm#r.

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8 NATIONAL LEGAL FRAMEWORKS ticular cases. And the prevalence of market-oriented economies necessi- tates awareness of the aspects of national labor law that could potentially impact the international competitiveness of the state requesting assistance. Because of the wide variety of national political and economic settings, the ILO has to handle a broad range of technical requests. Mr. Bronstein listed some of the recurring issues of ILO assistance in labor law development: How to regulate the contract of employment has become an in- creasingly important subject for policy advice from the ILO because of the increase in "atypical forms of employment."4 The transfer of enterprises, managing mergers and takeovers, also calls for careful assessment and regulation. Termination of employment is "perhaps the most emotional indi- vidual employment relations problem." Hours of work is a very important issue, particularly among coun- tries that have recently applied for European Union (KU) membership. These nations must integrate a critical European directive on working time before they can join the KU, and they have sought ILO assistance in under- standing the subtleties of the directive. Remuneration, minimum wages, and "protection of wages" are among the issues raised most often by member states.5 Other topics that arise include maternity issues, protection of young workers, safety and health, and training. Within the realm of industrial relations, Mr. Bronstein said, it is "clear that the most important issues are those of freedom of association, collec- 4"Atypical forms of employment" generally refers to those forms that may not be cov- ered by labor laws, collective bargaining agreements, and social security systems. Examples include contributing family members, subsistence workers, and some temporary, part-time, or self-employed workers. See International Labour Of lice, "Developing a conceptual frame- work for a typology of atypical forms of employment: Outline of a strategy," paper submitted to Joint UN Economic Commission for Europe, Statistical Of lice of the European Commu- nities, International Labour Organization Seminar on Measurement of the Quality of Em- ployment, Geneva, May 27-29, 2002. Available at www.unece.org/stats/documents/ces/ sem.48/3.rev. 1.e.pd 5"Protection of wages" refers to remuneration issues such as the forms (e.g., legal ten- der), methods, and periodicity of wage payments; allowable deductions or assignment of wages; and notification of wage conditions. The ILO Protection of Wages Convention 1949 (No. 95) contains additional information on the topic.

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INTERNATIONAL LABOR STANDARDS IN THE NATIONAL CONTEXT 9 rive bargaining, and dispute settlement." On freedom of association, the ILO receives frequent requests for policy advice on trade union recogni- tion, trade union structure, and trade union protection. While there are a few cases of states imposing a single union structure, Mr. Bronstein added, most member states have a multi-union structure, which can exist at both the national and enterprise level. This can lead to "cases of inter-union rivalry," complicating the issue of trade union recognition and leading to numerous requests for advice from the ILO. In addressing questions of trade union structure, the ILO makes it clear that workers are to determine the structure of their organization. Mr. Bronstein said that governments cannot impose a given trade union struc- ture, but there is the possibility of "framework legislation" that proposes different patterns of trade union structure to member states. States may then offer this range of possibilities, with the understanding that it will be up to the workers themselves to make a final determination on how they want to organize themselves. Where trade unions have already been formed, requests for advice on protection of trade union leaders and mem- bers from anti-union discrimination are received very frequently. In terms of addressing trade union leverage, Mr. Bronstein highlighted the fact that the right to strike is highly debatable in many countries, and the ILO finds itself in the position of trying to propose a balance between the needs of workers to have at their disposal a fundamental means of trade union ac- tivities and the need of the state to have the right to strike organized in an orderly fashion. The ILO advice to member states on collective bargaining issues gen- erally covers procedures, structures, and the legal effects of collective bar- gaining. Mr. Bronstein said that the question of legal effect is particularly relevant in countries in which the legal system permits the extension of collective agreements to workers and employers who do not belong to the associations that have initially signed the agreement. The ILO is also asked to provide advice on mechanisms for social dialogue at the national and enterprise levels, addressing issues such as labor-management cooperation, consultation rights, and the relations between trade unions and non-union- ized workers. In conclusion, Mr. Bronstein said that, in addition to advice on the content of national labor laws, the ILO provides assistance to member states on the enforcement of national law. This involves several key institutions. The first is the national labor inspectorate, which must be empowered and adequately equipped to carry out its responsibilities effectively. Law en-

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10 NATIONAL LEGAL FRAMEWORKS forcement agencies, such as the police force, and specialized judicial ma- chinery can also play critical roles in implementing national efforts to pro- tect workers; there are approximately 100 countries that have specialized labor courts. Finally, there are alternative dispute settlement procedures and machinery that often require the advisory services of the ILO. Marley Weiss Professor, University ofMaryland(SchoolofLaw Professor Weiss began her presentation by polling the workshop audi- ence to determine how many were lawyers or economists. Finding that most of the audience fell into one or the other of these categories, she said that the issues of concern in assessing national compliance with interna- tional labor standards are at the intersection of law and economics with a "little dash of politics and sociology." It is this combination that makes the task so complicated. Assessing National Compliance with International Obligations In attempting to assess whether an international norm has been trans- posed into a national legal obligation, she said, we need to ask some basic questions that are often overlooked. The first concerns the basis for the international obligation. How obligated is the government? Is the norm "soft law," created to be hortatory or advisory in nature? Deviating from this norm "may be less than optimal behavior, it might not be either eco- nomically or morally the best behavior, but from the point of view of talk- 1 . . r 1 . . . . 1 1ng about monitoring anc ~ using enforcement mechanisms In International law. there isn't any justification for going further than treating these things as advisory." A related question concerns the clarity of the norm. Some- times international standards can be extremely vague, and this vagueness often tends to coincide with the "soft law" instruments, "as opposed to the firmer, harder, more prescriptive bodies that are more likely to be tied to serious monitoring, compliance enforcement, and, in some cases, sanction- . .. 1ng regimes. Professor Weiss described four stages of assessing national compliance with international obligations: 1. Assessment of the transposition of the international standard into domestic national law. While some governments consider treaties to be

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INTERNATIONAL LABOR STANDARDS IN THE NATIONAL CONTEXT 11 self-executing and automatically incorporate the standard into a national legal obligation, most states require enactment of a law. Once the standard has been enacted, interested actors, such as employers, workers, and trade unions, may then use domestic machinery more readily to enforce their rights. 2. Assessment of the broader legal context into which the norm is transposed, including procedures and remedies as well as other legal provi- sions that will interact with the transposed norm and either promote or impede its effectiveness. 3. Assessment of the government's post-enactment efforts to enforce the transposed measure, including allocation of resources to agencies that inspect, investigate, prosecute, and adjudicate these matters. 4. Assessment of direct and indirect measures of compliance by em- ployers, including labor statistics, litigation rates, and prevalence of labor disputes. In discussing the incorporation of international norms into domestic bodies of labor and employment law, Professor Weiss made the comparison between the federal and state levels in the United States. She described the methodology of Title VII6 discrimination cases, in which there are two fundamental questions: . Are the laws "facially discriminatory"? Does the text itself provide for different treatment of similarly situated people based on race, sex, age, nationality, religion, or other status? Professor Weiss offered the example of a U.S. Supreme Court case that held that an employer who relied on sex- segregated mortality tables to develop a pension plan, paying different ben- efits based on gender, was engaging in facial discrimination.7 Are the laws discriminatory in practice? While the law may look okay as written, do the procedures, remedies, or context render it ineffec- tive or in conflict with another regulation? Professor Weiss cautioned, "If all you do is read the words on paper and say 'oh, this all looks good,' and there isn't anything conflicting, you 6 Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, and national origin. 7 City ofLos Angeles Department ofWater and Power v. Manhark 435 U.S. 702 (1978).

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12 NATIONAL LEGAL FRAMEWORKS will miss an awfully high proportion of the more difficult situations." Therefore, after the initial assessment based on the facial meaning and the context of the law, one must determine whether there is a "disparate im- pact," measuring the violation of the law or norm by the effects. Professor Weiss gave the example of the U.S. Supreme Court case addressing a fa- cially neutral employer policy that required all janitors to have a high school diploma. The Court ruled that because this could operate to dispropor- tionately exclude members of one racial group or another in some parts of the country, and could not be justified on grounds of job-relatedness, the policy was "fair in form, but discriminatory in operation."8 Disparate impact may be by design or by accident, which leads to several consequences. The first is that some international norms are based on the outcomes, and there is "a large tendency in the literature about monitoring to assume that it's the outcomes that we're measuring," Profes- sor Weiss said. This may be effective in the determination of disparate impact, but "once you move away from a norm designed in terms of out- comes, you have this very big gap about how well the outcomes measure compliance or noncompliance with the norm." Using outcome measures to determine domestic implementation of international norms is compli- cated further by the need to examine two different layers. First, what is the government doing, and second, what are domestic actors, such as employ- ers, doing? Understanding each of these layers can be very difficult for an outside assessor because of language, cultural, and legal differences. Profes- sor Weiss offered a domestic example of contextual factors that can lead to different outcomes. In Maryland, a plaintiff's lawyer in a wage and hour case may often choose to file in the U.S. District Court, which is geared toward enforcing the rights of creditors against debtors. That court will view the worker as a creditor and be very quick and effective in enforcing those rights. However, in federal court or in the general jurisdiction Mary- land Circuit Court, where workers' cases often address wrongful discharge and discrimination, the court is more accustomed to viewing the worker "in the posture of someone challenging the employer's need for efficiency, economy, productivity, and so on." Because of this, Professor Weiss said, "the exact same norm, even with the same formal remedies and procedures, will get very different treatment in those different forums." This example highlights the difficulty that an external assessor faces in Grist. Duke Power Co., 401 u.s. 424, 431, 28 E. Ed. 2d 158, 91 s. cr. 849 (1971).

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INTERNATIONAL LABOR STANDARDS IN THE NATIONAL CONTEXT 13 measuring contextual factors. Although in certain cases an examination of available procedures or remedies may provide facial evidence of compliance or noncompliance with a norm, often "insider information" is needed. Pro- fessor Weiss emphasized the need to recruit experts who are knowledgeable about the domestic body of law in question. This expertise must extend beyond the statutory scheme to knowledge of the procedural and remedial structure of the courts as well as the industrial relations context in which these laws and institutions operate. Without in-depth knowledge of these issues, legal data the published documentation of the legal system in op- eration may conceal many of the less blatant cases. An examination of employer compliance poses even greater problems. A plethora of "confounding variables that have to do with social attitude, employee choices, very peculiar interactions with other bodies of law" led Professor Weiss to conclude that the four-stage approach described above can be used to detect only the most blatant cases. There is a choice between monitoring compliance "at this very superficial level" and developing the expertise to "get below the surface" of law, economics, and sociology. As an example of the latter, Professor Weiss mentioned the EU's efforts to moni- tor legal developments of member states. However, even with ample re- sources, these efforts do not fully reveal the extent of compliance. To do that, Professor Weiss said, would require recruiting insiders, perhaps through complaint procedures or partnership arrangements, who will "shed a different kind of light on what's going on than what governments usually supply." DISCUSSION The discussion period allowed members of the CMILS and other at- tendees to ask Mr. Bronstein and Professor Weiss for clarification of certain points in their presentations and to explore other related issues. T.N. Srinivasan, a professor of economics at Yale University, asked several ques- tions about the representativeness of the ILO's tripartite structure. First, "given the fact that a significant number of ILO members are not partici- pating in democracies in any sense of the term, how seriously should one take their nominations of employer representatives and worker representa- tives to the ILO?" Mr. Bronstein said that the ILO has no clear criteria on representativeness, but challenges can be made to the Credentials Commit- tee, which reports to the annual International Labour Conference. In addi- tion, representatives of questionable independence would not be likely to

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14 NATIONAL LEGAL FRAMEWORKS receive the nominations from other worker or employer group members when the Governing Body is appointed, thus limiting their influence on the organization. Offering the example of one Central American country, Mr. Bronstein added that if member states exclude certain organizations from their delegations to the ILO, the Governing Body might still appoint a representative from that organization.9 Mr. Srinivasan asked how well the ILO represents workers in the infor- mal economy a large share of the workforce in developing countries- and how this impacts advice to governments if labor laws may cover only 10 percent or less of the workforce. Mr. Bronstein responded that, in some cases, there is "no practical possibility for the labor law to apply." However, the ILO's fundamental Conventions do not distinguish between the formal and informal economies; although there are some issues of the informal economy that can be addressed through these instruments, others will re- quire different approaches. Mr. Bronstein emphasized that the problem of narrow coverage in national labor law is not limited to developing econo- mies. According to Mr. Bronstein, the increase in the "contingent workforce" including temporary, part-time, or subcontracted labor in the developed world calls for "serious reflection" on the coverage of labor law in all settings. Mo Rajan (Levi Strauss & Co.) asked the presenters, given the "vagar- ies of the Conventions" and the latitude given to member states in their application, how does the ILO advisory process address whether a country's laws are currently consistent with a particular Convention? Mr. Bronstein responded, "In practice, when I see how the texts are discussed, I will say the cases of real vagary are an exception. The Conventions often call for implementation 'according to national law and practice,' which may mean that countries can assert flexibility to implement Conventions." Laws that may be inconsistent with a Convention can be brought to the attention of 9"The Governing Body is the executive council of the ILO and meets three times a year in Geneva. It takes decisions on ILO's policy. It establishes the programme and the budget, which it then submits to the Conference for adoption. It also elects the Director-General. It is composed of 28 government members, 14 employer members and 14 worker members. Ten of the government seats are permanently held by States of chief industrial importance. Representatives of other member countries are elected at the Conference every three years, taking into account geographical distribution. The employers and workers elect their own representatives respectively." Structure of the ILO, available at ilo.org/public/english/depts/ fact.htm.

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INTERNATIONAL LABOR STANDARDS IN THE NATIONAL CONTEXT 15 the ILO supervisory mechanisms and lead to recommendations for legisla- tive changes. Mr. Bronstein added that, in addition to the member states' own reports to the ILO on ratified Conventions and the observations of the Committee of Experts, the ILO Constitution provides other procedures. Article 24 allows national and international workers' and employers' orga- nizations to make a "representation" that a member state has "failed to secure the effective observance" of a ratified Convention. Article 26 proce- dures, which are "very rarely used," allow the complaint to be made by another member state that has also ratified the Convention in question. Professor Weiss added that many international norms, including ILO Conventions, "are in the form that says we will specify the ends to be ac- complished, the moral principle to be observed. And we will leave it up to you, the member states, to figure out the right way, the means, to make that work in your system." While "ILO Conventions are frequently relatively precise," like other international norms, they must "leave a lot of room to accommodate the different needs of countries that in good faith and with vigorous efforts wish to implement the standard." Thus, as Professor Weiss said at the beginning of her presentation, it is a complicated task to deter- mine whether a member state's chosen means within its legal, economic, and political context are compatible with a norm that defines ends. She added, "There is tremendous value in having an authoritative body to in- terpret the international norm. The ILO, at least partly, has that in its system," and the EU has the European Court of Justice to fill that role. As an example, Professor Weiss said that the lack of a similar body in the North American Free Trade Agreement Labor Side Agreement was indica- tive of structural problems found in many systems. "If you don't have an adjudicator, then you only have withdrawal from one side or the other from the treaty or contract as a vehicle to coerce the other to accept your . .. Interpretation. Professor Weiss responded to a question from Kimberly Ann Elliott (Institute for International Economics) on the utility of examining com- plaints as a measure of compliance problems. Citing the difference in the large numbers of complaints the ILO has received from Latin America, compared to the relative absence of those received from China, Ms. Elliott asked, "What alternative mechanisms can you use where people don't have the opportunity to blow a whistle?" Professor Weiss agreed that complaints are "inadequate" as a measure, adding, "It's another one of these indicators that works if there's a lot. But if you don't have a lot of complaints, it just may mean that people are too scared."

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16 NATIONAL LEGAL FRAMEWORKS Professor Weiss reiterated her point concerning the critical need to obtain information from within countries. "Part of my bottom line is that it's really important to have both some systematic monitoring and some vehicle to receive complaints that will get you direct information. If you can buttress that in away by developing a core of people with real compara- tive law expertise, then you have an inside domestic source and you can actually get some good information" on the cases that warrant further at- tention after an initial screening of national laws and data.