by Dr Conor Cradden

ILOreport

One of the less remarked-upon annual publications of the ILO is the report of the director general to the International Labour Conference, which appears on the ILO website sometime around May each year in the run-up to the International Labour Conference. This year’s report deserves rather more attention than it normally gets, not least because it’s the first time Guy Ryder, in post as DG since October 2012, has set out his stall so publicly. The report demonstrates that unlike his predecessor, Chilean diplomat Juan Somavia, the British former trade union leader has an acute sense of what industrial relations ought to be about. It’s also clear that he is willing to go out on a limb to promote a conception of decent work that centres on the on-going substantive relationship between workers and employers rather than on some technocratic ‘business case’ approach to standards compliance. In an occasionally strongly-worded report – or at least, as strongly-worded as these types of document ever get – Ryder puts on the record the need for the ILO to address a series of issues that it has gone out of its way to avoid over the last twenty years or so and calls to order those within the organization who seem determined to ensure that it can’t fulfil its mandate.

The report covers a lot of ground, so I won’t try to comment on all of it, but there are three areas in particular that worth looking at.

Trade and economic development

Ryder makes it clear that the overarching goal of economic development cannot be allowed to amount to an excuse for poor labour conditions. “Efforts to improve competitiveness”, he argues, are to be welcomed only up to the point at which they start to “impinge on fundamental principles and rights at work.” (para. 62). Pointedly drawing a comparison with the principles of trade regulation, he argues that labour standards violations cannot be a legitimate source of comparative advantage, just as the insistence on compliance with labour standards should not be used as a disguised form of protectionism. Obviously this is not the first time this argument has been made, but given the renewed debate about trade and labour standards in the wake of the recent factory tragedies in Bangladesh and the calls for the upcoming bilateral trade negotiations between the EU and the USA to include a labour standards component, Ryder may well be putting down an important marker here.

Globalisation and private standards systems

Ryder also points out that the ILO is in danger of relegating itself to irrelevance by wilfully ignoring the brute facts of globalisation: the shift of manufacturing from developed to developing countries and the decreasing extent to which national boundaries are of any relevance to production networks and supply chains. Ryder proposes that in this situation, the relevant question is

“whether it is sufficient to continue to address [the question of labour practices in global supply chains] purely by reference to the States which are its Members and which are legally bound to apply ratified Conventions. The responsibilities of member States are not diminished or supplanted by global supply chains, but the fact that private actors are the drivers of the constantly shifting supply chains or production networks that increasingly characterize international trade and investment would seem to indicate that there are additional opportunities for the ILO to promote decent work in their operations” (para. 75).

He politely berates the ILO’s Governing Body for having refused to make room on the agenda of the ILC for a discussion on decent work in global supply chains, and lets it be known that he for one is not willing to let it go. As he puts it, the GB will “have an early opportunity to return to the matter” (para. 76).

On the closely related subject of corporate social responsibility (CSR) and private standards systems, Ryder suggests that “there is a substantial area of unfulfilled business demand for services which the ILO could provide and which would serve to advance its objectives” (para. 137), pointing out the irony of the ILO’s passivity in the face of the rapid growth of CSR initiatives which, almost without exception, make direct reference to ILO standards. Returning to the GB’s apparent reluctance to put labour standards in global supply chains and CSR on the ILC agenda (“It may wish to give further consideration to this in the future”), he gives a strong hint that the Better Work model of factory inspection, improvement and reporting is the way that he thinks the ILO should go.

Finally, it’s interesting to see that when it comes to dealing directly with enterprises, Ryder has put his own money where his mouth is by upgrading the status of the department in the ILO secretariat that gives advice and technical assistance directly to businesses, previously something of a backwater, to equal that of the departments dealing with labour standards, employment policy, social protection, and governance and tripartism.

Tripartism and freedom of association

For me, though, the most important element of Ryder’s first report as DG is his quiet but firm criticism of the employers. That he is talking about the employers is implied rather than overt, and he and his colleagues in the ILO secretariat would undoubtedly deny that that’s what the report is intended to say, but I don’t really see that it can be read any other way given recent events. Granted, he also directs a (not unjustified) barb or two at the unions but as an attempt at even-handedness it’s half-hearted at best.

There are two elements to Ryder’s criticism of employers, one directed at employers in general and one directed at employers’ representatives within the ILO. The more general criticism evokes the traditional conception of unionized industrial relations on which the ILO standards system is based, pointing out the consequences of employers’ increasing unwillingness to accept its logical consequences:

“where laws or practice prevent the free exercise of the right to organize, tripartism and dialogue become a dead letter. Yet people join organizations for a purpose, and in the world of work that purpose is, above all, the collective representation of interests through collective bargaining – which the ILO has a constitutional obligation to promote – and social dialogue. It follows that the strength and legitimacy of tripartism and its actors depend on mutual recognition and respect of rights and roles. Refusal by any party to engage in social dialogue at national level can only be detrimental to that legitimacy. Equally, non-recognition of representative organizations for purposes of collective bargaining erodes the representational function of organizations, regardless of the voluntarist character of the exercise. In that light, the idea that individual contract arrangements could be an equal and equivalent alternative to collective bargaining between representative organizations cannot easily be squared with the ILO’s ‘unique advantage’ of tripartism and social dialogue” (para. 94; emphasis added).

Understanding Ryder’s criticism of employers’ representatives within the ILO needs a little more context. It has been widely suspected both within and beyond the ILO that employers’ representatives lack any real commitment to the ILO standards system and that for the last fifteen or twenty years they have been using their institutional position to impose a kind of regulatory immobilism in the knowledge that keeping them ‘inside the tent’ is a necessary condition for the maintenance of the unique legitimacy of ILO conventions and recommendations. They are, of course, perfectly aware that the ILO is one of the few spaces within the global public domain where unions enjoy any institutionalized legitimacy and (the argument goes) they have cynically exploited the leverage this gives them to put into question the model of cooperative pluralism on which ILO rule-making is based. Up until 2012 it would have been difficult to produce hard evidence that this is what the employers were about, but their attempt to sabotage the work of the Conference Committee on the Application of Standards in 2012 arguably marked a kind of ‘coming out’ for this strategy, so directly did it challenge the existing consensus.

To cut a long institutional story very short, the ILO’s annual conference, the International Labour Conference or ILC, is supposed to discuss the year’s worst instances of labour standards violations. Whether or not some law or government action counts as a violation is evaluated by a group of independent experts called the Committee of Experts on the Application of Conventions and Recommendations (CEACR). There are always far too many violations to deal with in the time available, so a committee of the ILC called the Conference Committee on the Application of Standards (CCAS) chooses about 25 cases to be discussed in the full session of the conference. Unlike the CEACR, the CCAS is a political committee in the sense that it is made up of representatives of employers, workers and governments. Not unreasonably, this committee has always involved a bit of horse-trading to make sure that all involved get their issues-of-the-moment on the agenda, but within this process of negotiation what has certainly never been part of the give and take is the judgement of the members of the Committee of Experts itself. The CCAS’s choice of cases to forward to the ILC traditionally carries no implication of a validation or rejection of CEACR opinion. In 2012, however, the employer members of the CCAS decided that they would veto the discussion of any case where the issue was a violation of the right to strike. Their stated reason for this was that they did not agree with the CEACR that the right to strike – nowhere mentioned explicitly in any ILO convention – could be implied on the basis of Conventions 87 and 98 on freedom of association and collective bargaining, despite the longstanding and widely-accepted view that the rights enshrined in these conventions are meaningless in the absence of a right to strike. The employers argued that they had never accepted that this was an acceptable interpretation, and that the right to strike was a matter for purely national decision. In effect, they were arguing that the ILO has no right to call states to order for restricting the right to strike.

There are two things that we need to highlight here, one a question of procedure and the other of substance. First of all, not only did the employers question the validity of the interpretation of the CEACR, they actually tried to argue that whether or not a labour standards violation has occurred is a political question rather than one of legal interpretation (Record of proceedings of the CCAS, ILC 2012, para. 82-3). This calls into question the entire basis of the ILO’s supervisory system. If a group of participants decides from one day to the next that it will not accept the settled opinion of the jointly-appointed group of non-aligned experts whose role is precisely to advise the ILO on the legal aspects of compliance or non-compliance with its standards, then the supervisory system either simply grinds to a halt or, as the employers seem to want, it becomes a purely political process in which the substance of standards compliance is at best a secondary issue and decision-making reflects nothing more than the balance of power between workers and employers.

Second, the employers’ substantive position on the right to strike makes a nonsense of the whole concept of freedom of association – as the arguments of the CEACR show very clearly (Report of the CEACR 2012 Report III Part 1B para. 117-128). While they do not claim that workers should not have the right to strike, they argue that it’s up to each state to decide for itself whether to permit strikes and in what circumstances. The obvious implication of this, of course, is that outlawing strikes is a legitimate state choice. But without the right to strike, freedom of association is nothing more than a right to collective freedom of expression. Certainly this is more than many workers have at the moment, but freedom of association is about the right of workers to insist that their interests be taken into account; to have the capacity to act collectively and not merely to speak.

Ryder’s comments on the situation and the need to resolve it are diplomatic in the sense that he only ever refers to ‘constituents’ and leaves room to conclude that the workers’ representatives are also at fault to some extent:

“Differences of position in defence of the specific interests of constituents are not only compatible with the goal of strengthening standards policy; they are a necessary ingredient. But to advance the standards function, that dynamic should be positive, and it gives way to something quite different when the perception of the actors is that their partners actually aim to extract partisan advantage at the expense of the common endeavour” (para. 108)

On the other hand, his specific comments about the controversy over the status of the CEACR’s opinions and the right to strike can hardly be directed at anyone other than the employers’ representatives since it was they and only they who called the existing system into question:

“It is important to acknowledge that this controversy poses questions of fundamental significance for standards policy and hence for the ILO itself. It follows that the ILO cannot afford to allow it to remain unresolved for very long. A standards system which does not command full tripartite support and commitment will inevitably suffer in terms of authority and credibility.” (para. 115; emphasis added)

Another clue to the employers’ intentions is that, as Ryder notes (para. 115) they seem to have decided that now is the time to question the idea that the right to strike can be implied from the ILO’s core conventions precisely because of the increasing normative reach of labour standards, included as they are in virtually every CSR policy, corporate code of practice and sustainability labelling scheme. For all that the employers claim that theirs is a long-standing position, the CEACR points out that the argument that the right to strike is a choice to be made at state level is inconsistent with a whole series of other arguments and legal precedents that the employers have never questioned. It looks very much as if the employers are happy with labour standards only as long as they do not escape from the institutional confines of the ILO itself.

Where to now?

Taken as a whole, Ryder’s report can be read as a direct challenge to employer attitudes to labour standards and employment regulation and, as a consequence, as a challenge to the currently dominant conceptual models of management and organization. These models assume that unless managers have the freedom to do precisely as they wish, economic growth and competitiveness are at risk. While the achievements of Ryder’s predecessor Juan Somavia were significant in many ways, the former DG spent almost 15 years carefully avoiding the issue of the employers’ increasingly questionable commitment to the ILO model. I don’t suppose that Ryder would have chosen to address the issue in the first year of his mandate if he could have avoided it – more cynical observers might even wonder whether the timing of the employers’ challenge to the system was entirely fortuitous – but now that his hand has been forced it’s very encouraging to see that he is willing to say out loud that the situation has become untenable.

Ryder doesn’t attempt to propose any answers in his report, though, confining himself to emphasising the urgency of finding a solution and trying to put a brave face on the failure of attempts to resolve the problem since it arose in 2012. Unfortunately, little progress was made at this year’s ILC. What emerged from the Committee on the Application of Standards was an uncomfortable and (at least as far as the Workers’ representatives are concerned) unrepeatable compromise. An agreed list of labour standards violations was produced, but wherever the CEACR had identified a violation of the right to strike, the official report of the CCAS states that

“The Committee did not address the right to strike in this case, as the employers do not agree that there is a right to strike recognized in Convention No. 87.”

No agreement of any substance was reached about the status of the CEACR’s findings, nor about the right to strike itself and both sides made it clear that they would be maintaining their established positions.

So what now? It’s difficult to fault the logic of the Workers’ representatives’ closing comments (Report of the CCAS 2013, Part 1, para. 232): if the Employers are serious about challenging the mandate of the CEACR and the protection of the right to strike, then why do they not do so via the constitutional mechanisms that exist precisely to facilitate this kind of challenge rather than wilfully jamming up the ILC’s procedures? On the other hand, while it’s clear that the employers are not playing by the rules and need to be brought into line, in the longer term the strategy of sitting tight and holding on to the existing system is not going to work. Almost a hundred years ago when the ILO was founded, there was widespread basic agreement on what labour regulation is for and how it should be created. By the time of the Declaration of Philadelphia in 1944 that agreement had become even stronger. Today, though, it no longer exists. The row in the CCAS has brought into the open the fact that that there is no shared vision and no shared understanding of industrial relations among the constituents. It’s difficult to see how this can carry on.

In targeting the right to strike, however, Employers’ representatives have unwittingly provided the perfect opportunity to begin a discussion on the most fundamental underpinnings of industrial relations and the employment relationship. Many trade unionists would argue that it would be madness to allow the global labour movement to be drawn into a discussion in which the right to strike and the right to organise could end up being questioned. But to pass up the opportunity to open such a discussion would be to waste a unique opportunity to take the initiative in an historical context more favourable to the cause of labour than it has been for decades. In the context of the global economic crisis and recent events in Bangladesh and elsewhere, the world’s ordinary workers have the moral upper hand and a rare degree of public sympathy that it would a terrible shame to waste. Taking advantage of the moment, though, demands new ideas and new institutional practices that fit the world as it is now, not as it was 50 years ago.

Guy Ryder’s report to the ILC suggests that the ILO might in future be more open to this kind of innovation and I for one am (cautiously) optimistic about what his tenure as DG might bring. I am also sure, though, that nothing will happen unless the labour movement makes it happen. Now is the time to start a discussion on what industrial relations is for. And yes, this may mean fundamentally rethinking worker representation, the institutional form and role of unions and even the practice of collective bargaining itself. What it certainly does not mean is abandoning the goal of establishing substantive forms of democracy within every organization; of ensuring that workers have the inalienable right to participate in decision-making at every level.

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