The Existing Divergence between the Labor Standards - Assignment Example

? DIFFERENCE BETWEEN THE LABOUR STANDARDS AND LABOUR RIGHTS OF INTERNATIONAL LABOUR ORGANISATION (ILO) Abstract The objective of this paper is to analyze the existing divergence between the labor standards established by ILO and the actual labor practices and rights. It will help us evaluate how much of the ideal standards of labor rights are actually practiced globally. Simultaneously, it will also highlight the problems associated with the compliance with these laws given by ILO. Consequently, the report can provide solutions to each problem that is identified and on the whole, reduce the existing divergences between facts and theory of labor rights. Introduction The United Nations was established in 1945 to maintain global peace, “to reaffirm faith in fundamental human rights, in dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom”.1 It discharges its functions effectively through the working of a number of specialized organizations like the Food and Agriculture Organization of the UN (FAO) that aims to reduce hunger and poverty by developing agriculture and “providing healthy dietary intake”2 , the World Health Organization (WHO) that strives for the control and eradication of diseases, the International Monetary Fund (IMF) that works for monetary cooperation among nations and many more.3 One such organization is the International Labour Organization (ILO) that promotes social justice for laborers and aims to elevate the standards of labor rights and practices. A Brief Overview of ILO The ILO was first set up in 1919 with the motto of “more jobs, better jobs, industrial harmony, social justice”.4 Its main functions are promotion of social justice, providing vocational training and education, giving special care to women and children laborers, initiation of research in social and labor policies and creation of “international labor standards for freedom of association, wages, working hours, labor compensation, social insurance, paid vacation, safety of industrial workers, employment service and labor inspection”.5 The achievements of the ILO in the pursuit of its objectives have been many like the ‘Tripartite Meeting on Safety and Health’ in the fishing industry in 1998-99 that set safety standards for fishermen.6 However, the deviation of the actual labor standards in comparison to the labor rights stated by the ILO is a subject seeking great evaluation. In this context, research in labor policies initiated by the ILO is of considerable relevance. The paper will presently address this problem of divergence of labor practices from the standard labor rights given by ILO. Labour Standards of the ILO The labor standards theoretically stated by the ILO are reflective of its objectives and goals but whether or not these standards are applied in reality, in case of all member nations, is debatable. Statement of Labour Rights In 1995, five broad fundamental rights were identified by the ILO, addressing men, women and children workers of the world. They are freedom of association, right to organize and bargain collectively, freedom from forced labor, right to equal remuneration and non-discrimination in employment and the abolition of child labor.7 Freedom of Association implies that workers have the right to associate with one another and form unions or groups for the pursuit of a common objective or goal. The common objective is usually something aimed at improving the conditions of work for the laborers.8 Freedom to organize and bargain collectively states that the workers have the right to organize themselves into trade unions and other organizations. Collective bargaining occurs between these bodies and the management of a company on a variety of issues like wages, working hours, conditions of work, number of paid-leaves, etc. Trade Unions ensure that the welfare of all the workers is kept in mind and they are not subjected to exploitation. Freedom from forced labor means that no individual should be forced to work if he/she is unwilling to do so. Any form of forced labor, be it slavery or bond labor, is illegal. This is the most important right and helps to ensure all the other rights.9 Right to equal remuneration and employment opportunities states that all workers will be eligible to engage in occupations of their choice and qualification and in return, will receive a definite amount of remuneration. Decisions pertaining to employment and remuneration cannot be based on gender, class, creed, religion, i.e. no discrimination will be allowed. Child Labor is considered illegal and thus, should be abolished. This is to ensure that children do not fall prey to occupational hazards, exploitation and other industrial malpractices. Instead, they should invest their time in gaining education and knowledge that will bring them better employment prospects in the future. Method of Implementation of rights The implementation of the rights was done, earlier by ratification of treaties by member nations. The nations which signed a particular treaty had to abide by the rules and regulations relating to labor practices of the treaty, in law and in implementation. The ILO has a highly effective supervisory system of monitoring the compliance of these terms and conditions through reporting, dialoging, general complaining procedures and a special procedure of complaint for freedom of association. However, in this case, a nation could choose to sign or not sign a treaty as per its needs and intention and were not compelled to follow these rights. So, in 1998, the ILO adopted a Declaration on Fundamental Principles and Rights at Work. The ILO member nations are under obligation to sign this and should attempt to implement the four core rights at policy level. However, this arrangement is also, only a directive towards what has to be achieved and no punitive measures can be taken against the country who fails to achieve the targets.10 An Assessment of the actual Labor Rights Although the four fundamental rights are theoretically guaranteed for, there are various loopholes in their implementation. The paper will attempt to assess the level of implementation of these rights. The freedom of association stands for the right of workers to associate and collaborate through the formation of trade unions and other bodies. Although majority of workers enjoy this right, the army, the gendarmie and the foreigners employed at the public sector are not allowed to participate in unions or forums. The state employees and magistrates are also exempted from this right. Workers under 18 years of age cannot be a part of these unions without the prior consent of their parents. The infringement of this right is more frequent in the private sector. Some private companies have been reported to work consistently to discourage the formation of unions and forums. Trade Unions are scarce in the private sector and just 10% of the formal private sector has unions. The major part of the private sector that is informal has no such unionization or rights.11 The practice of the right to collective bargaining differs from country to country. Whereas most European countries have implemented this right effectively, USA and Brazil are yet to ratify this treaty. In Brazil, it is often suggested that the Central Organization of Workers (CUT) is dissolved based on the argument that it restricts the freedom of association. A lack of Collective Bargaining is evident in the civil sector in Brazil. The world organization that stands for the right to collective bargaining, the Standing Bargaining Committee of the Federal Civil Service can intervene judicially when both parties demand so. Consequently, there has been no judicial assistance in this respect.12 The freedom from forced labor, too, is not omnipresent. It has been found that the indigenous industries like agriculture, animal-rearing and forestry had evidences of slavery, debt bondage and serfdom. A good example is the practice of forced labor in the illegal timber industry in Ucayali. Though measures have been taken to address this violation of right, they have been largely ineffective.13 The violation of the right to equal pay is rampant in both developed and developing countries. Statistical evidence shows that there were four cases of equal pay in New Zealand were reported to the Human Rights Commission between 1998 and 2000. The surprising point in this case is that none of these cases had been heard in the courts of the country. During the same period, India reported 17,000 cases of violation of equal pay. Even the cases reported both in India and New Zealand were solved effectively,14 the fact that such cases occur in spite of the labor standards given by ILO, makes one question the credibility of ILO. Child Labor Laws are the ones that must be implemented most rigorously but it receives no such attention. The employment of children in carpet making factories is a classic example of this statement. Children employed in this industry are compelled to work long hours under inhumane conditions of work like poor lighting, no breaks and high level of occupational hazard. While some Child Labor laws are inefficient, some are gross. Egyptian child labor law prohibits the employment of children less than 14 years of age but allows children between 12-14 years of age to be employed as apprentices. Apart from this, child labor is abundant in the cultivation of cotton, in Egypt. The suitability of physical attributes of children for the cultivation of cotton is the reason for this practice.15 Case Studies of Violation of Labor Rights and Legislative measures In order to understand and evaluate the level of divergence of prevalent labor laws from the ideal standards set by the ILO, we will study some cases of violation of fundamental rights of workers. Textile Workers Union of America Vs Lincoln Mills of Alabama The petitioner in this case was the union of textile workers of Lincoln Mills, which had entered into a collective bargaining arrangement with the employer in 1953. The terms of this agreement stated the employment of the workers would not be terminated if there are no lock-outs, strikes or work stoppages. The grievances of the workers would be solved by through specific procedures. However, as the grievances of the employees remain unaddressed regularly, they were forced to press charges. The District Court gave the verdict that the employer would have to address the issues of the employees by the provisions in the collective bargaining agreement. However, the Court of Appeals contradicted this decision by stating that the District Court did not have the right to decide this case. It is evident from this case that the violation of right to collective bargaining, even though identified, it was not solved effectively.16 Existence of Forced labor in Myanmar For the construction of the Aungban-Loikaw Railways, in Myanmar, a labor force of 799,447 people were used. These were bonded laborers who had to work with little or no pay. When the construction work for the day was over, they had to stay back and work as guards throughout the night. Apart from this, they had to sweep the roads for detecting land mines. Women and children were also a part of this workforce and were subjected to the same cruel treatment. No judicial proceedings were undertaken in this case. In fact, when the government of Myanmar was confronted with these facts, it defended this act of bonded labor by remarking that there was no room for complaints as the working conditions were good and the people employed were casual unemployed laborers. When summoned to the headquarters of ILO for hearing of the case, the government did not oblige and continued with its unjust ways.17 Personnel Administrator of Massachusetts Vs Feeney In this case, the plaintiff, Helen Feeney, alleged that the preference formula established by chapters 31 and 23 of the constitution of US was resulting in the ineligibility of women for the best available jobs in the civil sector, in Massachusetts. Consequently, women were also being excluded from equal protection by law. The District Court found that this was true. The mentioned articles were destroying the employment opportunities of women in Massachusetts and were thus, depriving them of equal protection by law. Thus, the articles 31 and 23 were declared unconstitutional and dissolved.18 Prince Vs Massachusetts The state of Massachusetts, of behalf of nine year old Betty M. Simons, sued Mrs. Prince, who was the aunt and custodian of the minor. It was alleged that the accused supplied Betty with magazines to sell them, illegally, on the streets. As this is a violation of child labor laws that clearly states that “no girl under eighteen, shall sell, expose or offer for sale any newspapers, magazines, periodicals or any other articles of merchandise”.19 In defense, Mrs. Prince stated that the sale of the magazines, and for that matter the magazines themselves, were religious in nature. So, it could not be cited as child labor. The court took into account this aspect of the case, confirmed by the minor herself and dismissed the case. The point to be understood here is that in our case, the guardian may have been indeed innocent but it is not uncommon to see cases where the evidence of the child is manipulated by the accused guardian and a genuine case of child labor may be dismissed. Critical Evaluation of Implementation of Labor Rights The existence of divergences between the labor standards and labor rights is evident so far for all the rights, varying only in the degree of its application. The freedom of association had been implemented effectively in a number of nations but the huge gap it leaves by the exemption of some categories of people of it, is problematic. This would also imply an inequality of treatment of workers. The right to collective bargaining shows differing standards from one country to another. Whereas some countries are completely driven by this mechanism and has accepted it as a fundamental right of workers, some countries are yet to show it the same level of acceptance. Surprisingly, even some of the developed countries like USA, that is supposed to be the greatest democracy, are yet to implement this right. The occurrence of forced labor is industry-specific and the laws fighting this form of labor have not effective in many regions. Labor rights are expected to be uniform everywhere. Evidence on violation of the right to equal pay proves that these cases have been dealt with very well in most places, developed and developing countries alike. The issue of child labor is still not fully addressed even though a lot of efforts are being put into making each nation a safe haven for children, where they may be insured happy and carefree childhood. The first case study of Textile Workers Union of America Vs Lincoln Mills of Alabama re-emphasizes the fact that violation of the right to collective bargaining is dealt with ineffectively and non-uniformly. It seems that even the judicial system is not very certain about the procedures and outcomes of such cases. The second case study of Personnel Administrator of Massachusetts Vs Feeney proves that equal pay rights are taken seriously and thus, its violation is dealt with in a proper manner as well. Finally, the third case study of Prince Vs Massachusetts shows that child labor laws are far too lenient for a real offender to get caught. There is a need to tighten child labor laws to punish the actual culprits in spite of the fact that they may be the parents, relatives, or siblings of the victim. Problems of Compliance of Labor Rights Having established the gap the between the labor standards of ILO and the labor rights prevalent in the society, reasons for this divergence has to be identified and analyzed, in order to find a complete solution to the problem. There are many factors that are contributing to the inability of the nations or regions to comply with the labor standards set by ILO. When trade agreements are signed between member countries of ILO, it is from a commercial perspective, not a humanitarian concern. Consequently, they may not abide by the core rights for workers, set by ILO. An example is NAFTA that does not obligate its members to follow the labor laws but just includes provisions for the violation of some of the rights like right to association, right to collective bargaining and right to strike.20 Lack of publicity of the fundamental rights of workers, especially, child labor laws may be a problem in the path of attaining the labor standards set by the ILO. With more publicity of these rights, the government of nations may feel pressurized to implement them effectively. 21 The non-compliance problem is acute in developing countries and especially, in the informal sector of these countries. The reason for this is that traditional procedures to implement labor laws are not followed here. As a result, the employment relations are nor well-defined and thus, can be abused.22 Another reason for non-compliance is the unavailability of adequate date on employment statistics. Some of the libraries are lacking in these databases and in some cases, ILO itself is found to be unable to supply proper data on employment relations. This is because this kind of data is difficult to identify and has to be extracted very carefully and with great precision.23 Recommendations Measures can be taken to rectify the problem of non-compliance with labor standards set by ILO. They can be stated as follows: It is crucial to link labor rights to trade agreements to fight the problem of non-compliance. This will not only ensure that all countries maintain international standards of labor practices but it will also keep a check on countries trying to gain an advantage in trade by reducing labor costs by providing poor conditions of work.24 More publicity is one of the ways to increase the incidence of compliance with labor rights. Publicity for labor rights can be gained by peaceful picketing25 or with help of TV commercials and other forms of media. The informal sector should be brought under proper rules and regulation wherein business will be “based on well-established criteria that reflect the necessity of protecting well identified socio-economic interests such as health, environmental and public safety measures”.26 The NGOs and other monitoring bodies can act as watch dogs in these sectors to ensure that compliance with labor standards happens in reality.27 Innovation and Technology should be applied to extract accurate and timely information on employment. “Information Technology capability in the department of labor”28 should be upgraded. Resources should be invested to train and impart knowledge to research personnel Conclusion It can be concluded that the standards of labor rights, even though not at its best, is showing rapid improvement. These changes are impacting other practical and normative issues. Another finding is that countries have amended their laws as per the pointers of ILO. There have been 2,669 cases of progress as per Committee of Experts. Labor practices differ from country to country but all in all an up gradation of labor laws has been observed globally.29 References Blanpain, R., Comparative Labor Law and Industrial Relations in Industrialized Markets, (Kluwer Law International BV, The Netherlands 2010) Egyesult, A., Country Reports on Human Rights Practices in 2007(Department of State, USA 2007). Holman, F. E, Treaty Making Law (ABA Journal, Washington 1950) Human Rights Watch, Trading Away Rights (Human Rights Commission, London 2001) ILO, Activities of the ILO, 1998-99 (ILO Publications, Geneva 2000) International Labor Office, Application of International Labor Standards, Report, Issue 4 (ILO Publications, Geneva 2011) International Labor Office, Record of Proceedings (ILO Publications, Geneva 2008) International Labor Office, The Employment Relationship (ILO, Geneva 2006) Jacobsen, A. Faye, Human Rights Monitoring (IDC Publishers, The Netherlands 2008) Maatta, P., Equal Pay: Just A Principle of the ILO? (Books on Demand, France 2008) Mosley, L., Labor Rights and Multinational Production, (Cambridge University Press, USA 2011) National Research Council, Monitoring International Labor Standards (National Academy of Sciences, Washington DC 2004) Nijsen, A., Hudson, J., & Muller, C., Business Regulation and Public Policy, (Springer Science and Business Media, New York 2009) Parmar, I., New Directions in US Foreign Policy (Routhledge, USA and Canada 2009) Sengupta, S, ICSE History & Civics (Ratna Sagar Pvt. Ltd., India 2008) Shelton, D., Commitment and Compliance (Oxford University Press, New York 2000) Supreme Court of US, ‘Personnel Administrator of Massachusetts Vs Feeney’ (1979) < http://supreme.justia.com/us/442/256/case.html> (accessed on August 31, 2011) Supreme Court of US, ‘Prince Vs Massachusetts’ (1944) < http://www.law.cornell.edu/supct/html/historics/USSC_CR_0321_0158_ZO.html> (accessed on August 31, 2011) Supreme Court of US, ‘Textile Workers Union of America Vs Lincoln Mills of Alabama’ (1957) < http://supreme.justia.com/us/353/448/> (accessed on August 31, 2011) Thompson, B., & Amorosso, L., Combating Micronutrient Deficiencies (FAO, USA 2011) United Nations, Dept of Public Information, United Nations Today (UN, New York 2008) USA, Congressional Report (US Government Printing Office, Washington 2003) Vandaele, A., International Labor rights and the Social Clause (Cameron May Ltd., London 2004) Whitman, L., Megally, H., & Parekh, V., Underage and Unprotected: Child Labor in Egypt’s Cotton Fields (Human Rights Watch, London 2001) Read More