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7 O. ~ pen forums The regional forums in Sri Lanka and South Africa included an open forum in which presenters and audience members were encouraged to share their perspectives on labor standards monitoring and compliance issues. This chapter includes a brief summary of these perspectives. SRI LANKA Basil Ilangakoon of the Marga Institute in Sri Lanka opened the ses- sion by asking participants to elaborate on several issues discussed in the Sri Lanka forum. On the applicability of labor standards, Mr. Ilangakoon asked whether there are "universal standards" or standards that vary according to particular circumstances. "Are there different classes of human beings? Some who must have all the rights, others who need not have all the rights be- cause they are born and work in the so-called developing world?" In addi- tion to discrepancies in application between various countries, Mr. Ilangakoon addressed the inconsistencies that may exist within countries. "Do labor standards apply to all workers in our countries? Or is there a set of rules that apply to a privileged class of workers, which by itself may allow that block of people to exploit the rest of the workforce in the country?" Last, he asked, does the concern with labor standards "interfere with our thinking to the point where we forget the larger picture the need for growth and the need to eliminate poverty, or is the concern with labor standards part of this main concern of eliminating poverty?" 88
OPEN FOR UMS 89 T.M.R Rasseetlin, the general secretary of the National Association for Trade Union Research and Education (NATURE) in Sri Lanka, also discussed the difficulty of trying to address labor standards and economic development simultaneously. Facing the pressures of globalization, interna- tional competition, and the influence of international financial institutions such as the IMF (International Monetary Fund) and the World Bank, gov- ernments in Southeast Asia are "taking the easy way out," Mr. Rasseedin said. "They think that labor is a burden, a hindrance to development, so therefore there has to be some restructuring in that field, and labor reform is supposed to be the panacea of all ills in this region." The concern of trade unions, he said, is that these reforms should not jeopardize implementation of the rights found in the core Conventions of the ILO. "We can't go below the floor. That is the basis on which we could develop, because labor is an important component in development, and workers' rights will have to be respected, recognized, and guaranteed if any meaningful development is to take place." Adhikari layaratna, the general secretary ofthe Confederation of Pub- lic Service Independent Trade Unions in Sri Lanka, commented that the ratification of ILO conventions is essentially meaningless if there is no implementation. In Sri Lanka, for example, despite the ratification in 1995 of Convention 87 on freedom of association, amendments to the Trade Union Ordinance have not yet been made to bring the legislation in line with the Convention. Referring to the earlier presentation by Mr. Wickremasinghe, Mr. layaratna pointed out that governments often use language such as "action will be done," "[we are] taking steps," or "steps will be taken very soon." Despite these commitments, the promised action is not always taken, prompting Mr. layaratna to recommend that each country have a specific timetable for implementation of Convention ar- ticles. William Conklin, a representative of the Solidarity Center in Sri Lanka, raised the issue of unions and politics. Characterizing all unions as "political" is not only false, he said, but a very loaded statement "because basically it says that Funions] are irresponsible or obstructionist." This serves as "a very convenient excuse" for governments and employers to justify noncompliance. As an example, he said, the Solidarity Center has "been supporting responsible, independent unions to organize in the Free Tratle Zones, but unfortunately because of the nonenforcement of laws these unions have been stifled." Ram Thiagarajah, a consultant on labor standards issues, emphasized
so INTERNATIONAL PERSPECTIVES the correlation between a strong union movement and compliance with standards. He noted the efforts within the region to unify various national unions and the potential benefits of such an approach. Within the frame- work of the ILO, representative unions can join the national tripartite con- sultative mechanism and "strengthen Etheir] position as equal partners in social dialogue." This, he said, is the first step toward making governments take union concerns more seriously. The second step is to codify the com- mitments between employers and workers in codes of conduct and collec- tive agreements, reflecting a common understanding between the parties involved at the enterprise level. Once this "tripartite code of conduct" is developed, he said, there must be a National Labor Tripartite Council to serve as a forum to review implementation at the enterprise or industry level. However, to monitor compliance at an international level, Mr. Thiagarajah concluded, the ILO is the only organization with the mandate and competence to conduct these assessments. Anton Marcus of the Free Trade Zone Workers Union in Sri Lanka addressed several problems that the union movement has been facing. While a tripartite consultation agreed that trade unions would be recognized in the zones, the Board of Investment (BOI) issued guidelines for Employees' Councils that were not in conformity with Convention 87 and were re- jected by the unions. "Freedom of association," he said, "means that the workers must have a right to join the union of their choice, not what the organization of employers has decided or introduced." In order to chal- lenge this, Mr. Marcus' union has submitted GSP (Generalized System of Preferences) petitions to the United States and the European Union. Mohamed ShaLul, a program officer with the Friedrich Ebert Foun- dation in Sri Lanka, noted several encouraging steps that the BOI and the Sri Lankan government claimed to have taken to ensure that national laws are in conformity with ILO Conventions. However, he said, "it is unfortu- nate that, in reality, enforcement of EConventions] 87 and 98 and the ac- cess to freedom of association in the Free Trade Zones and also in the enter- prises that come under the purview of the BOI is far behind reality.... All these efforts of the BOI, which proudly claims that they have recognized the UN Global Compact initiative, they are behind Fin enforcing Conven- tions] 87 and 98, and all these are jUSt eyewashes to please the U.S. GSP, the EU GSP special incentive scheme, the ethical trading mechanisms, and possibly to clinch another broad trade agreement with the United States." Pranav Kumar, representing the Consumer Unity and Trust Society of
OPEN FOR UMS 91 Inctia, made a brief comment on the ILO's use of "soft law options" in . . . promoting compliance. As a result of this, the ILO's authority has been challenged, especially after the inception of the WTO World Trade Organization] in 1995. Some devel- oped countries are trying to bring this issue under the ambit of the TO, so I think that it is high time for the ILO to contemplate some kind of hard law optionsas it has recently done in the case of Burma. Just adding one Con- vention after another won't be of any use to us. SOUTH AFRICA The open forum in South Africa was moderatecl by Thea Lee, a mem- ber of the Committee on Monitoring International Labor Standards (CMILS) and the chief international economist of the AFL-CIO. Ms. Lee reviewed several tools mentioned throughout the forum that might be used to improve compliance with core labor standards. Broadly speaking, the first of these tools includes ILO programs, such as social dialogue, the fol- low-up to the Declaration, and the supervisory mechanisms, which may pressure nations to comply in order to avoid censure. The second tool is external pressure, such as GSP or AGOA (African Growth and Opportu- nity Act), where workers' rights have been linked to tra(le benefits. Region- ally, she said, this type of tool may be of particular importance as negotia- tions are currently underway for a trade agreement between the United States and the Southern African Customs Union. "This Free trade agree- ment] will eventually override the GSP program," she said, "so if we put in place weaker "workers' rights] provisions, that will have some impact." The thirc! tool is the collection of national institutions that constitute civil soci- ety, such as the National Economic Development and Labour Council, which can promote social dialogue on a broad basis. Ms. Lee then posed several questions related to improving compliance with core labor standards. First, should the approach taken with regard to countries that are willing to make changes, yet lack resources, be com- pletely different from that taken with countries that are "bad actors" mak- ing no effort to address labor standards issues in a meaningfid way? Second, given the many references to the challenges of increased informality, what approach is best for integrating the formal and informal economies and to what extent can governments improve their abilities to monitor working conditions in the latter? Third, given the important role of each national legal system in defining and protecting workers' rights, how can one assess
92 INTERNATIONAL PERSPECTIVES the effectiveness of essential institutions, such as inspectorates and the judi- ciary? Last, Ms. Lee asked how pressing regional questionsin particular the impact of HIV/AIDS could be integrated into strategies to promote compliance with core labor standards. Professor Evance Kalula of the University of Cape Town addressed Ms. Lee's first question on the strategies for dealing with countries that are "willing, but incapable" of implementing core labor standards and those that are "unwilling and simply disregard" them. While a spectrum of na- tional commitment certainly exists, he said, it is important to note the power that linking trade and labor rights has in both circumstances. Profes- sor Kalula offered his experience in Swaziland as an example, noting that although there are still significant problems in Swaziland, the linkage cre- ated by AGOA has pressured the government to reach agreement with the social partners on several contentious compliance issues that it was not willing to address in the years preceding AGOA. Professor Kalula said that in the Southern African Development Com- munity (SADC) regional context, there has been a commitment to work with the ILO to move toward greater compliance with the core labor stan- dards. "One needs to make the best of that," he said, "and any kind of approach would do well to try to strengthen the hand of the ILO in terms of ensuring that countries strengthen their technical capacities." Addition- ally, he recommended working with the SAD C secretariat toward the har- monization of labor market regulatory approaches. "That way," he con- cluded, "you are localizing and making the process much more legitimate, rather than being seen as the usual kind of imposition from outside." Professor OluLunle Iyanda from the University of Botswana also commented on the issue of"willing and unwilling" countries. As seen in countries such as Swaziland and Zimbabwe, the issue of labor standards, he said, often transcends the scope of the ILO and its activities, focusing on the world of work. "In spite of all the noise and rhetoric that African lead- ers are making, they all agree, or connive, or close their eyes to the blatant abuse not only of workers' rights but also of human rights in Zimbabwe." That situation, he said, differs from many countries where there is willing- ness to address workers' rights, but the governments face extreme resource pressures as other needs such as investments in health and education- understandably receive priority over efforts to monitor or enforce labor standards. It is these countries, he said, that need to be assisted with mate- rial resources, equipment, training, and perhaps even personnel. Professor Iyarlda also suggested several indicators or factors that the
OPEN FOR UMS 93 CMILS might consider when assessing compliance with core labor stan- dards. These include case studies of labor disputes, with an examination of the issues and institutions involved, the procedures followed, and the even- tual outcomes. Citing earlier discussions about the positive correlation be- tween compliance and a strong union movement, Professor Iyanda also recommended measures related to the number, strength (as a share of the total workforce), and independence of unions. In general, he added, broader issues such as good governance, democracy, and respect for the rule of law must also be considered to the extent possible. Last, he said, "micro-case studies" of corporate human resource practices as well as sectoral studies might reveal particular areas where there are gaps in compliance. labu Ngcobo of the ITGLWF (International Textile, Garment and Leather Workers' Federation) continued the discussion of the challenges of protecting workers' rights as governments implement policies to generate employment and alleviate poverty. What he has heard from government officials in the region, Mr. Ngcobo said, is that the fear of employers leav- ing for other countries leaves them with no alternative to being "flexible" in their protection of standards. Some of Flcials, he said, were quite open about the fact that they were not going to enforce existing labor laws. It is there- fore important to take into account the various "forces outside," he con- cluded, that "make our governments feel that they have to create jobs at all costs and develop the idea of racing to the bottom instead of protecting their own nation." Sahra Ryldief, representing the Labour Research Service in South Af- rica, continued the discussion of national will to implement standards, stat- ing that the level of national compliance is always in direct relation to the strength of the labor movement. In particular, the strength of the labor movement is a determinant of the level of social dialogue within a country, and "there is not a single government," she said, "that has the political will to enforce compliance without this dialogue and this pressure coming from below." Turning to the changing nature of the labor market in the region, Ms. Ryklief emphasized that the systemic lack of jobs in the formal sector and the rapid growth of informal employment result in labor legislation that is inapplicable to the vast majority of the working population. Additionally, as the "notions of employment and work are completely redefined" and traditional forms of organization and social dialogue are potentially ren- dered inappropriate, historical approaches to regulating the labor market must be adapted to the current context. "We can take the ethos of these
94 INTERNATIONAL PERSPECTIVES labor standards and translate them into new settings and new requirements. And that essentially is the task in the developing countries of the south, and the labor movement has an important role in that," she said, "but so do academics and sociologists who raise the problems that we have to address." Jeffrey Wheeler, a representative of the ILO office in Zambia, acl- dressed Ms. Lee's question on the legal framework and judicial systems in the region. The problems faced in Swaziland, he said, are much more pro- found than those faced in other countries in the region. Particularly in Lesotho, Malawi, and Zambia, the industrial relations courts "have judges who are very much interested in enforcing the international labor stan- dards." However, he said, "the basic problem is that they lack the funda- mental capacity to issue the decisions." This may result from a lack of training but also relates to a lack of resources and technical support, such as case management systems. Therefore, he said, assessments of legal systems must go beyond looking for the existence of institutions and must also probe as to whether these institutions are adequately funded and can actu- ally function. On the issue of HIV/AIDS, Mr. Wheeler said that empowering work- ers and managers to address the crisis on their own is an important way of promoting freedom of association and social dialogue. "You can promote labor-management cooperation by doing joint training with managers and union representatives," he said, and this can lead to the development of bipartite committee structures focusing on HIV/AIDS and other issues at work. Momar N'Diaye, a representative of the ILO, discussed the develop- ment of international labor standards and the flexibility that exists in the approaches that countries may take to implement them. While there is a bit more rigidity in the application of the fundamental human rights found in the core Conventions, all of the standards derive from the consensus of the tripartite constituents of the ILO. In this sense, he said, these standards are based on realities and should be viewed as a tool. To be able to apply these standards effectively in the African region, Mr. N'Diaye said, it is impera- tive to strengthen labor administration. Labor inspectors are not adequately trained, and they do not have the necessary resources at their disposal. Additionally, the ministries of labor often have a very weak position within the government. "Under the Declaration program," he said, "a lot of the ministries of labor in Africa were expecting to be supported in order to prove that they are useful and that improving social conditions will have an effect on the improvement of the economy." The weakness of these minis-
OPEN FOR UMS 95 tries, he said, is most often accompanied by weakness of the social partners, and capacity building is thus required in order to promote meaningful tri- partite debate or dialogue. Fisseha Tekie from the Solidarity Center in South Africa discussed the role of the labor movement in organizing the informal sector. In South Africa, he said, there are several groups that have met recently under the auspices of the ILO to begin the process of establishing linkages between formal and informal workers. Returning to the critical challenge of acldress- ing HIV/AIDS, Mr. Tekie discussed several steps that the labor movement has been taking in South Africa. The three largest federations have launched a massive awareness campaign, hired HIV/AIDS educators, and are seeking to pressure companies to adopt policies to reduce the prevalent stigma of HIV/AIDS, protect the rights of the infected, and promote prevention ef- forts for those who are not infected.
