dialogThe paper below has been submitted for open discussion by members and friends of the New Unionism Network1. Our conclusions will be presented to the International Labour Organisation (ILO) on or before 30th April 2018, in the run up to their centenary ‘Future of Work’ project. In order to join the discussion we suggest you look at this ILO paper first (download). In particular, we are concerned with Chapter 5: The Governance of Work. What do you think? We have a draft reply below and we invite you to share your feedback, thoughts and/or questions. Because many of you work directly with the ILO, at local or global level, our discussion will take place with in an anonymised meeting room here: safe.space/room22.

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Taking a Stand in The Age of Uncertainty

Members and friends of the New Unionism Network have read the ILO’s Inception Report for the Global Commission on the Future of Work. We would like to make the following response, particularly in relation to Chapter Five: The Governance of Work.

The ILO asks: “Are existing institutions and tools fit for purpose to address the challenges of the future?”  The short answer, we believe, is no.

In summarising the challenges we face, the ILO concludes that (page 45):  “All forms of governance will continue to require the effective representation of the interests of governments, employers and workers.” It is clear that workers cannot be effectively represented where unionism is actively repressed. But effective representation is also prevented where the law demands that workers jump through a series of legal hoops to prove they want representation before they can have it. Any serious discussion about the governance of work, then, must start by looking at how well their representation is really organised. Do workers have a genuine right to representation or do they just have the right to ask for it? And in cases where they only have the right to ask, how easy is it for employers to ensure that the answer is no?

We know from the work of the ILO itself that unionism is being systematically undermined in most countries. Let’s not have this discussion without acknowledging that fact. More to the point: how can we ensure representation where independent unions are repressed, banned, corrupted or co-opted? But also, how can we guarantee representation where the law sets an unreasonably high bar for workers to clear before their employer is obliged to sit down and bargain with them?

The ILO was formed in 1919, in the wake of a devastating war: “to pursue a vision based on the premise that universal, lasting peace can be established only if it is based on social justice” (more). At the time it seemed obvious that organised labour as a social force was unstoppable. A negotiated peace between capital and labour looked like the only alternative to a confrontation that risked tearing society apart. Others describe the same situation in a slightly different way: governments needed to preempt the rise of communism and to re-enroll workers and their unions in the process of social and economic reconstruction.

Whether the ILO was founded out of principle or pragmatism  is not the issue. What matters is that the ILO was created out of the belief that the fair and effective governance of work demands the creation of decision-making structures in which workers and employers are equally represented. There were no ifs and buts in this basic assumption. Collective rather than individual industrial relations was not something that had to prove its usefulness before it was adopted. Rather, it was the way things had to be.

Almost 100 years later, the world looks very different. Over the last 40 years the terms of the debate about governance have changed. Independent worker organizations and collective bargaining are now presumed guilty of causing economic damage until proven innocent. There is no longer any social consensus around, nor clear social and political support for, collective industrial relations. The question is no longer how best to organise collective worker representation but whether to have it at all.

In this context, longstanding policy positions about worker representation that have stood workers in good stead for many years need to be re-examined. These are difficult issues. They have led to deep controversy within the ILO. However, in light of the coming disruption they can no longer be ignored.

Promoting bargaining in the face of employer resistance

Chapter Five of the Inception Report (download) notes with concern that collective bargaining coverage has declined in many countries. It goes on, rather disingenuously, to suggest that employer resistance to unionisation and collective bargaining is not the root cause of this decline.

“…the sharp decline in collective bargaining coverage was not the direct result of employer resistance to collective bargaining or declining membership in unions … but rather the result of policy-induced changes reversing government support for collective bargaining.” (pp39-40).

While it is certainly true that many governments have introduced policy changes that undermine independent worker organization, employers have lobbied for and supported these changes. More importantly, they have subsequently chosen to take advantage of the increased scope for union avoidance that these changes allow for.

The rolling back of support for collective bargaining in the industrialised world is a serious problem, but more serious still is the ILO’s failure to develop and promote genuinely effective institutional models for collective industrial relations in developing and emerging economies.

There can be no question that the ILO has a duty to actively support and encourage the emergence of collective bargaining. Article 4 of ILO Convention 98 states:

“Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.”

Unfortunately, the ILO’s interpretation of what Convention 98 means in practice is that workers are not guaranteed the right to collective representation and collective bargaining, but only the right to organize and take action to demand it. Before workers acquire the collective right to take part in joint decision-making at work they have to pass a legal test to prove that they want that right. Members of the New Unionism Network believe that the requirement for workers to prove that they want collective representation is the critical weakness in the ILO policy model.

Common law and civil law approaches to industrial relations

The ILO position is based on the Anglo-American or ‘common law’ approach to industrial relations, rather than the continental European or ‘civil law’ approach. The distinction between these two can be grasped by contrasting the common law concept of trade union recognition and the civil law concept of trade union representativity.

When a British or American or Indian employer recognizes a trade union for the purposes of collective bargaining, it formally accepts that its employees wish to act collectively rather than individually in agreeing the terms of the employment contract. The default position in common law systems is that the employment relationship exists between an employer and an individual worker. Rights to collective representation, most notably the right to bargain collectively about the terms and conditions of work, only arise if workers formally constitute themselves as a collective actor in the form of a trade union.

In short, workers have to prove that they have an authentic ‘collective will to act collectively’ before they can exercise their rights to representation and bargaining. What counts as proof is defined in the law. Usually it involves union card counts (membership thresholds) or elections, and the results can be contested, either by the employer or by workers.

By contrast, when a trade union in France or Spain or Togo is deemed to be representative via an election at national, sectoral or company level, this is an administrative decision that deems one or more unions to be the authentic voice of workers. Workers in these countries have an inalienable right to collective representation which persists and can be exercised regardless of whether they choose to have a union carry their voice. Their ‘collective will to act collectively’ is simply assumed to exist; it does not have to be proven. All that is at issue is which union (if any) will be chosen to articulate the workers’ voice.

The locked-in legal advantage of employers

The difficulty with the common law approach is that the authenticity of workers’ collective will to act collectively is difficult to prove and easy to challenge. When trade unionism is strong and collective bargaining is socioculturally well-embedded it may not be difficult to clear the hurdle of recognition. However, where trade unions are weakened or underdeveloped and collective bargaining is not well understood, even a membership threshold below 50% can be nigh-on impossible to achieve. The fact that trade unions generally do not have the right to freely organize in workplaces until they have been recognized makes this task all the more difficult.

At the same time, employers who wish to avoid union recognition have an inherent advantage. The harassment and intimidation of workers seeking recognition for their organizations is all too common, but workers can be deterred from exercising their right to demand collective representation even where employer action is legally irreproachable. The imbalance of economic and sociocultural power between workers and employers means that workers may be deterred from taking up union membership or voting in favour of union representation simply because their employer has (tacitly or overtly) expressed opposition to unionization.

This situation is compounded when, as is frequently the case, workers do not have full and fair information on what trade unionism and collective bargaining are actually about. Workers’ fears are likely to be exacerbated when political discourse places a heavy emphasis on the urgency of economic development and where employer voices argue that accepting the labour movement’s claims for rapid improvements in pay and working conditions will have a negative impact on the competitiveness of the national economy.

All of this leads to a situation in which workers in practice have no access to any means of collective representation or expression, while employers can nevertheless claim that the rights of those workers are being respected. The law sets up a situation in which the absence of representation can appear to be a workers’ choice.

The ILO’s established solution to this problem is to use training and ‘capacity-building’ for workers, employers and governments. The hope is that these will lead to a situation in which workers can freely choose to unionize, while employers freely choose to accept their choice and governments remain neutral. Any reasonable analysis of the evidence must conclude that this decades-old ILO strategy has failed.

Even in those developing economies where the ILO has invested the most time and effort, collective bargaining coverage among formal sector workers remains pitifully low. Workers in the informal sector, of course, have even fewer opportunities to organize and take collective action. There is simply no sign that anything is changing.

Back to first principles

We believe that the ILO approach to the governance of work must change. What we need is a realistic approach to the implementation of two basic principles, both of which are surely uncontroversial in the context of the ILO’s historic mission:

  1. The needs and interests of workers must be taken into account in business decision-making. In particular, decisions about pay, working time and other basic terms and conditions should normally be made jointly by employers and workers acting collectively.
  2. ONLY workers themselves are in a position to determine what their needs and interests are.

In redesigning institutions to put these twin principles into practice, there is one major constraint that needs to be taken into account. This may be rather difficult for the ILO to accept, but the evidence is overwhelming:

If a choice is available, employers will generally choose to avoid the obligation to make certain decisions jointly with their workers (acting collectively) as long as this avoidance does not involve a significant financial or reputational cost to the business.

Employers cannot have an effective right of veto over workers rights to collective representation. We need to rethink the institutional structures of the governance of work so as to guarantee workers’ rights to collective representation—regardless of whether their employer would or would not choose to deal with workers collectively.

In designing any new institutional model there would be a need, as always, to be careful to ensure that mandated forms of worker representation cannot be controlled by employers. Trade unions would also need to have at least as much freedom to organize and operate as they do under the common law model. What we cannot do is carry on with a situation in which it is so very easy for employers to avoid collective bargaining and other forms of joint decision-making while remaining within the letter of compliance with international labour standards.

What kind of industrial relations structures do we need?

There need be no mystery about the kind of structures that would achieve this. One industrial relations model that has remained  effective in the face of policy attacks on collective IR has been the dual channel model2. This combines automatically extended sectoral collective bargaining with enterprise level works councils elected by all workers. Workers can stand for election either as independents or on a union ticket. This model has not only been shown to produce the best economic outcomes. It is also particularly suited to the context of emerging economies.

Sectoral bargaining is a flexible supplementary source of workplace regulation. The outcomes—i.e. rules—are easy to understand and their application can be monitored without sophisticated compliance evaluation techniques. It provides a guarantee that workers will share in the fruits of industrial development, which makes working with employers at the level of the enterprise a rational choice. It can be implemented before a critical mass of workers understand what collective industrial relations means and how it is practised. It makes better use of limited union resources and expertise. It also provides a specific and limited target for capacity-building by international organizations of workers and employers and technical intervention by the ILO.

There may well be other institutional models that deserve serious consideration. Regardless of what solutions are found to be most effective, the critically important thing is to open up the question of representation. Neoliberalism is politically and intellectually exhausted and there is an enormous appetite for more democratic forms of management. It is not enough to say to workers: ‘if you really want representation at work show us that you do by joining a union’. Workers need to be guaranteed rights to representation from day their workplace opens its gates.

 

 

 

No serious discussion of the future of work can continue to avoid the question of the structures of workplace representation. The New Unionism Network therefore calls on the ILO to begin research and open debate around this question. This needs to become an integral part of the Future of Work project.

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DISCUSSION: Because many of you work directly with the ILO, at local or global level, our discussion will take place with in an anonymised meeting room here: https://safe.space/room22. You are invited to join in!

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NOTES

1 The New Unionism Network (http://newunionism.net) is a global collective of working people, unionists and labor academics, organizing internationally for workplace democracy.

2 ‘Single channel’ representation is where worker representation is carried out exclusively via trade unions. All worker representatives are elected by trade union members rather than the workforce as a whole. ‘Dual channel’ representation involves both trade union representation, particularly in sectoral collective bargaining, and a second representative structure at the enterprise level elected by the workforce as a whole. Although workers frequently stand for election to this ‘works council’ on a union ticket, it is not necessary to be a union nominee to be elected. In most dual channel systems, only trade union representatives are involved in collective bargaining.