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The International Labour Organization WERNER KONRAD BLENK—ILO SOUTH-EAST ASIA AND THE PACIFIC MULTIDISCIPLINARY ADVISORY TEAM, PHILIPPINES Mr. Blenk gave a broad overview of the mechanisms and issues that might be relevant for monitoring compliance with international labor stan- dards. These included · regular supervisory machinery of the ILO, induding national re- porting requirements, observations of the Committee of Experts on the Application of Conventions and Recommendations (CEACR), and the cases of the Committee on Freedom of Association (CFA); · the "more promotional approach" of the ILO Declaration, which states that the obligation of member states to respect, promote, and realize the principles concerning the fundamental rights is matched by an obliga- tion of the ILO to provide technical and advisory services; · workplace monitoring in ILO technical cooperation projects, in particular through the International Programme on the Elimination of Child Labour (IPEC) and new Declaration programs; and · developments in corporate social responsibility, such as codes of conduct and the United Nations Global Compact. In addition to the above, Mr. Blenk said that the National Action 5
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6 INTERNATIONAL PERSPECTIVES Programmes for Decent Work, which are being developed by the ILO with its tripartite partners in several countries, can be a useful resource, offering an analysis of gaps that may exist in the implementation of standards. These documents also address the current policies of the government and discuss the priorities and activities of the social partners. It is important to note that the national action programs also contain an examination of the ILO's responses to promoting "decent work" (described below by Mr. Bru). This impact assessment further describes ongoing challenges and the ways in which the ILO through various seetoral or integrated programs—seeks to address these issues with the government and social partners. While these programs are still being developed within the region, the Philippines has already begun to implement its action program, which is available online through the ILO's website. Responding to a question from the audience on the ILO's impact within the informal sector, Mr. Blenk acknowledged that international la- bor standards "do not reach deeply into the informal sector." However, he noted that a large portion of ILO technical cooperation projects, such as those addressing child labor, target workers in the informal economy. Addi- tionally, ILO assistance to trade unions increasingly focuses upon the ehal- lenges of recruiting workers in the informal economy. For trade unions, Mr. Blenk said, it is "a question of their playing a continued important role in society because this is where the working people are." ENRIQUE BRU- ILO, COSTA RICA Mr. Bru, director of the ILO office in Costa Riea, discussed some of the new challenges to the ILO as the realities of the "labor world" are trans- formed along with increasingly globalized economies. He i(lentified the following three processes that are occurring simultaneously: · the increasing informalization of the economy, · the growth of the service and trading sectors, and · the "deterioration of employment." Mr. Bru explained that the nature of work is changing not only within the informal economy. "We have seen that, as a reaction and response to the globalization challenges, many companies, many productive sectors tend to address these challenges by reducing some values, rights, and job
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THE INTERNATIONAL LABOUR ORGANIZATION 7 characteristics that lead to deterioration in the quality of employment even in the modern sectors of society." In response to these challenges, Mr. Bru said, the ILO has been pro- moting the concept of"decent work." He described "decent work" as a complex concept with several dimensions including "productivity, com- pensation, security, equality, freedom, and human dignity." In order to measure the extent to which the decent work concept is being implemented at a national or regional level, the ILO has been developing sets of indica- tors that go beyond the fundamental rights and principles. These indica- tors, Mr. Bru said, "allow Ethe ILO] to diagnose the deficiencies in each of the dimensions of decent work that could exist at a certain moment in a specific country." He said that the ILO's Central American office is enter- ing 27 indicators of decent work into a database, "which is gradually be- coming more public depending on the relationship we have with each coun- try and on the permissions to make the data public.''] In the discussion that followed his presentation, Mr. Bru emphasized an important aspect of the ILO's work to promote "decent work": Estab- lishing national commitments to reduce deficits in "decent work" must be based on a tripartite consensus. Although it is "the countries that are com- mitting themselves to making improvements regarding their deficiencies in the area of decent work," he said, all of the social partners should assist in clefining common commitments and work with the ILO to meet national goals. Mr. Bru also answered a question from the audience about the possi- bility that the incorporation of the ILO's core labor standards into a re- gional free trade agreement would "debilitate the ILO." He responcled by noting that the discussion of the ILO's role in trade issues is closely tied to a debate that has been ongoing since the World Trade Organization's minis- terial meeting in Singapore in 1996 regarding the role of the ILO. The conclusion of that conference, he said, was to recognize the ILO as the competent body to deal with labor standards and to reject the use of stan- dards for protectionist purposes or to call into question the "comparative advantage" of low-wage developing countries. It is therefore perceived by some, he said, that incorporating references to the fimdamental rights in trade agreements would mean "invading the field of the ILO." In response, This database and other regional statistics can be accessed through the website of the ILO's Regional Office for Latin America and the Caribbean at www.oit.org.pe/spanish/ 260ameri/index.htrnl.
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8 INTERNATIONAL PERSPECTIVES he said, the ILO is planning to more fully integrate economic and social policies. "We have to make sure that people understand that if macroeco- nomic policies are only addressed at reestablishing financial and monetary policies, that if they are only aimed at reestablishing this balance, they will not solve the problems of unemployment and poverty." ULLRICH FLECHSENHAR ILO SOUTHERN AFRICA MULTIDISCIPLINARY ADVISORY TEAM, ZIMBABWE Mr. Flechsenhar discussed some of the economic, social, and political factors that have a great impact con the implementation of labor standards in Africa, as elsewhere. "After nearly two decades of economic stagnation, the economic performance of a number of African countries has started to improve," he said. In addition, the process of democratization in Africa, begun in the 1980s and continued through the 1990s, has led to greater transparency in the management of public and private institutions at the national, provincial, and local levels. However, Africa is still facing a multitude of problems, which include a "towering" debt burden, a lack of food security, instability caused by armed conflicts, and the pandemic of HIV/AIDS, which "devours the mar- ginal gains of the economies." These problems have complicated a&er- ence to the provisions of the ILO Declaration, in particular with regard to child labor. Mr. Flechsenhar said that the ILO estimates that there are about 85 million children working in Africa, many of them under exploit- . . . atlve cone citrons. Adequately addressing these problems, Mr. Flechsenhar said, will re- quire a concerted effort involving information, advocacy, and training to facilitate the ratification and adherence to the ILO's core Conventions. The ILO's employment agenda also emphasizes the need for a strategy that pro- motes the major forces of change in today's global economy, including expansion of trade and foreign direct investment; promotion of the Declaration; technological innovations of all sorts in particular, the improve- ~ . ~ · . . ~ ment ot Information anc ~ commumcatlons capacity; · abstention from pressures on natural resources; and . good governance. Mr. Flechsenhar called for full support of the New Partnership for
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THE INTERNATIONAL LABOUR ORGANIZATION 9 Africa's Development (NEPAD) initiative. This program commits African countries to setting and policing standards of good governance across the continent, respecting human rights, and working for peace and poverty reduction in return for increased aid, private investment, and a reduction of trade barriers by rich countries. "It might well be that, if this initiative fails, Africa risks becoming even more marginalized than is already the case." He concluded by saying that the NEPAD initiative should be used for aligning labor market information systems, improving collection of data, defining effective frameworks for social protection, harmonizing basic la- bor legislation, and reviewing migration policies within Africa. MOMAR N'DIAYE ILO PROGRA~IE ON PROMOTING THE DECLARATION, S=TZERLAND Mr. N'Diaye opened his presentation with a "pessimistic remark" de- rived from the evolution of the United Nations Development Programme objectives. The aim of poverty eradication in the 1970s has been replaced with discussions of poverty alleviation, which "means that we are less ambi- tious, and this shows the seriousness of the poverty situation in the world and especially in Africa." Turning to the role of the ILO Declaration and its follow-up mecha- nisms within the context of globalization and marginalization of econo- mies in Africa, Mr. N'Diaye emphasized that the fundamental principles are applicable irrespective of the country's level of socioeconomic develop- ment. They provide a "universal framework for all countries to pursue eq- uity and social progress hand-in-hand with economic growth, and they are a key element to decent work as they reinforce participation and empower- ment." Recognizing and respecting the rights of the Declaration, he said, is part of a "dynamic puzzle" consisting of several phases: First, there must be respect for the individual, which should protect individual rights to associ- ate with others as well as promote protection against forced labor, child labor, and discrimination. Second, social dialogue and participation must be encouraged, leading to the third phase in which all social forces combine their efforts to work together for economic and social development. Both the Declaration, with its promises oftechnical support, and other instruments, such as the U.S. African Growth and Opportunity Act (AGOA) which offers trade incentives based on eligibility criteria includ- ing observance of international workers' rights have raised the expecta- tions of many countries to foster social and economic development and to
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10 INTERNATIONAL PERSPECTIVES be less marginalized in the global system. However, Mr. N'Diaye said, these hopes are not necessarily matched by the reality, and countries have be- come disappointed. For example, the high demand for technical coopera- tion through the Declaration programs has not been met, particularly as support from the current U.S. administration has declined, he said. On the critical impact of HIV/AIDS on the workplace, Mr. N'Diaye stressed the need for being sensitive to employee rights and, at the same time, addressing employer concerns about productivity. He concluded by discussing the need for support in the democratization process through social dialogue. CHARLES NUPEN—ILO TECHNICAL ADVISOR, SOUTH AFRICA Mr. Nupen is the chief technical advisor to an ILO project on dispute resolution in the southern African region. The project covers South Africa, Lesotho, Namibia, Swaziland, Botswana, Zimbabwe, and Mozambique, and there are plans to expand to Angola. Mr. Nupen discussed the critical relationship between conflict management and labor standards. Because labor standards often come to the public domain in the form of disputes, he said, having the appropriate institutional mechanisms to resolve and prevent conflict could have a positive impact. The starting point for developing conflict management capacity, Mr. Nupen said, is labor law reform. While the southern African region has a good record of ratifying Conventions, one must ask to what extent have those standards been incorporated into national laws and actually given practical expression on the ground. This requires an examination of current laws and practices and determining what changes, if any, need to be made to establish the appropriate regulatory environment of dispute prevention and resolution systems. This assessment presents an opportunity to ad- vance the notion—often through recommending legislative amendments- of the adoption of core labor rights. Mr. Nupen said, "Most countries in this region historically have not had the capacity to do anything real and profound on the ground in terms of protecting core labor rights through enforcement." The most common, and perhaps most difficult, obstacle is "logjam and delay" of the adjudica- tory system. For example, he said, if a dispute arises in a factory in Zimba- bwe, one can reasonably expect seven years to elapse before the case comes before the courts. In Mozambique, even though the laws require a "timely resolution," it can take 5 to 10 years a situation that Mr. Nupen de-
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THE INTERNATIONAL LABOUR ORGANIZATION 11 scribed as "completely subversive of the possibility of any real prospect of enforcement." Additionally, the legal system can be manipulated through "forum shopping" litigants choose the forum they believe will give them the greatest aclvantage. In this type of situation, Mr. Nupen said, "questions of evenhandedness and industrial justice will go out the window." Access to industrial justice is another critical issue in terms of geogra- phy (access) and cost. While institutions to address workers' or employers' claims may exist in the major cities, farm workers and others in the rural areas may have no practical means of exercising their rights through a judi- cial system that does not extend to the region where they live. Mr. Nupen added that new arrangements in the countries seek to address this issue, with most of the social partners viewing access as a "non-negotiable politi- cal imperative." Without access, which is critical to lending stability and predictability to labor markets, "disputes will continue to exhibit them- selves in increasingly problematic ways on the shop floor." Turning to the issue of education, Mr. Nupen discussed the develop- ment of codes of best practice and guidelines. Describing the codes as a relatively innovative and low-cost approach in the southern African con- text, he said that they could have a profound impact if they are accepted by the social partners. The codes seek to educate the social partner on the best ways to address a range of issues at the level of the shop floor before they turn into formal disputes submitted to the courts. "This," he said, "is the notion of dispute prevention, pure and simple." The codes are intended to be "infused" into national systems through the adoption and promulgation by the minister and will have the status of "soft law." "In other words," Mr. Nupen said, "people are enjoined to abide by the terms of these instru- ments. They are not obliged to abide, but if they depart, then they have to justify why they departed." He noted that Botswana has been a leading example of this approach; the social partners there are in the process of adopting 23 different instruments. By educating the social partners on best practices in the workplace, Mr. Nupen concluded, one is promoting the notions of certainty and stability in labor relations because both workers and employers will have a clearer understanding of what practices are ac- ceptable, and they will be able to "play the game according tO the rules." OSCAR ERMIDA URIARTE ILO, URUGUAY Mr. Uriarte provided a historical background of the ILO's develop- ment; he said that two concerns have coexisted since the formation of the
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12 INTERNATIONAL PERSPECTIVES organization after World War I: "One Econcern is] ethical and legal, related to social justice, and Ethe other is] economic ... more specifically related to international trade to prevent social dumping." In order to address these concerns, the core purpose of the ILO working through its unique tripar- tite structure—has been the development of international standards through Conventions, Recommendations, and Declarations. However, these standards have to be implemented at the national level through incor- poration into national legislation and development of national machinery, such as an independent judiciary, with responsibility for ensuring compli- ance. "It is important to mention this because the efficacy of these interna- tional labor standards in those countries that have ratified them is not just an international control problem; it is also a national control issue as they are part of the national legislation of these countries." The specific legal obligations that states have undertaken upon ratifi- cation of specific Conventions, Mr. Uriarte said, have now been supple- mented by the Declaration on Fundamental Principles and Rights at Work. "The dogma of the national sovereignty is surpassed, and it no longer matters whether the state has ratified EConventions] or not." Even though the Declaration did not require the act of ratification, Mr. Uriarte asked, is it "a draft of the universal social clause that is going to operate in interna- tional trade so that those countries that do not comply with these mini- mum core standards are effectively going to be banned from the interna- . , · - ,, tlona1 commumty! HUMBERTO VILLASMIL—ILO, Cost RICA Mr. Villasmil continued the discussion of the 1998 Declaration and its role in promoting the universal application of core standards. While noting that most countries in the Central American region have ratified the major- ity of the core Conventions, Mr. Villasmil said that the Declaration has been an "important qualitative step forward for the LILO1 and in the inter- national guardianship of the core labor standards." The Declaration, he said, is transcendental because it bases the obligations of states to observe certain fundamental principles on membership and the ILO Constitution, rather than on ratification of specific Conventions. He said that it's impor- tant to note that the ILO Constitution "has always allowed the creation of monitoring mechanisms and requests of information from countries that can no longer shield themselves under the argument that they have not ratified some of these Fundamental Conventions."
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THE INTERNATIONAL LABOUR ORGANIZATION 13 In farther describing the process of international norms being incor- porated into domestic systems, Mr. Villasmil discussed several aspects of international treaty law. For the purposes of monitoring compliance, the states' obligation under Article 22 of the ILO Constitution to submit regular reports on application of Conventions provides the `'basic input for the ILO's monitoring bodies," such as the CEACR, the CFA, and the Con- ference Committee on the Application of Standards. JEFFRELY~7HEELER—ILO STRENGTHENING LABOUR ADMINISTRATION IN SOUTHERN AFRICA, ZAMBIA Before describing the Strengthening Labour Administration in South- ern Africa (SLASA) project, Mr. Wheeler emphasized the importance of recognizing practical realities. In the ILO's work in southern Africa, one of the realities that "casts a shadow over everything is the impact of HIV/AIDS." The ILO's SLASA project is funded for three years by the U.S. Depart- ment of Labor. The project countries include Zambia, Malawi, Lesotho, and, to a lesser degree, Botswana. The development objective of the SLASA project, which recently completer! itS first year of operation, is to improve the application of the ratified fundamental Conventions and thereby help promote stable economic growth beneficial to the countries, businesses, and workers. The immediate objectives are to · help bring Zambian labor legislation into conformity with ratified ILO Conventions; . strengthen the institutional capacities of the ministries of labor in all the project countries to protect international labor standards (ILS) and support social dialogue; · · . . · strengthen the institutional capacities of worker organizations in Zambia, Malawi, and Lesotho; · strengthen the institutional capacities of employers' organizations in those three countries; · strengthen the capacities of the dispute resolution systems, includ- ing the labor courts, as well as promoting mediation, conciliation, and ar- bitration; and · promote tripartite and bipartite cooperation through regular meetings.
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14 INTERNATIONAL PERSPECTIVES During the course of the SLASA project, several difficulties have been encountered, often involving processes and procedures. For example, the amount of time between meetings and the lack of "institutional memory" on the part of the social partners have hampered momentum and made it difficult to move forward with necessary reforms. However, Mr. Wheeler said, the social partners have been able to raise important issues. Employers have expressed concern about the high cost of the retirement benefits re- quired by law, and the unions have criticized the government's occasional Ire to pay public employees their wages or to grant wage increases to lower-level employees. Assisting all stakeholders in the SLASA project countries to implement ILS poses different challenges. The social partners must be empowered, Mr. Reeler said, by providing them with skills and resources to address their own concerns. Assistance is also needed in building governmental institutions that can effectively implement the standards. For example, la- bor courts may require a system that allows them to track their caseloads in order to issue decisions in a timely manner. The ministries and courts need strong institutional structures that will allow them to set specific goals and monitor their performance, Mr. Wheeler said. "The temptation to avoid is to promote complex comprehensive systems that cannot be maintained because of a lack of funding, insufficient infrastructure, or an insufficient number of properly trained personnel." Mr. Wheeler also identified as a problem the extensive reliance OI1 ex- ternal donors. As a way to help "internalize" the development of institu- tional mechanisms and policies, and thus promote sustainability, SLASA emphasizes social dialogue. He said, "In some cases, there may be a tradeoff between short-term outcomes and long-term process changes. For example, social dialogue may lead to changes that are only partly consistent with ILS principles. On the other hand, the social partners may very well find solu- tions that are better adapted to local conditions and provide a foundation for later changes." Mr. Wheeler concluded by stating that ILS issues are intricately linked to a broader range of issues. To address these issues properly, it is useful to understand a country's history, culture, economics, and politics. Protection of ILS may be affected by programs on poverty reduction, job creation, childhood eclucation, trade, anti-corruption, HIV/AIDS, structural adjust- ment, and government reform.
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