Arguments against and for Reframing Labor Rights as Human Rights - Assignment Example

 Introduction The Human Rights Act of 1998 implemented the government’s manifesto commitment to incorporate the European convention on human rights into domestic law. It is widely believed that the implications of the Act were far reaching and that no department of legal practice will be unaffected due to the radical manner in which the Act was implemented (Bakan, 1997). The Human Rights Act operates basically through the imposing a duty on the courts to interpret legislation so far as possible to give effect to convention rights and the provision of assurance that the Act will remain unlawful to public authorities which will act in an incompatible way with them (Bakan, 1997). The labor law on the other hand argues that although the Act may be helpful in filtering and filling some gaps in the framework of legal protection at the work place, the general effect is quite limited. This is due to the narrow range of employment related issues to which convention rights apply. In addition, the Act provides limited opportunities for direct and indirect enforcement of employees who claim to be victims of a breach by their employers (Bakan, 1997). The effect of the duty on courts to interpret legislation in a manner which gives effect to convention rights is likely to disappear through the narrow interpretation of the respective rights by the Strasbourg authorities and the equivocal nature f the rights themselves. Incorporation is not a substitute for careful tailored legislation as it raises questions about the obligations under the international treaties in the social field like the council of Europe’s Social Charter. What are the Arguments for Reframing Labor Rights as Human Rights? The first argument for reframing labor rights as human rights is that human rights approach facilitates partnerships with human rights friends. In addition, the system works well with the inexorable internationalization of labor struggles, it allows the naming, blaming and shaming of labor abusers and it is more responsive to the current political and cultural zeitgeist as compared to the traditional labor arguments (Savage, 2009). A human rights reframing is likely to bring about authoritativeness to labor discourse that will never be achieved by trade unionists (Adams, 2008). The historical curve of labor organizations keeps on changing toward wage compression, equal pay for work of equal value as well as equal benefits bringing up the bottom at a faster pace than advancing the top. Some unions that had gone to two tier contracts succeeded in reversing them when possible. Trade unionists may fail to instinctively articulate their motives as human rights based but the fact is that they are indeed reflecting a sense of the dignity of less skilled workers (Savage, 2009). Workers tend to be empowered in campaigns the moment they get convinced and are in a position to convince the public that they are vindicating their fundamental human rights instead of just seeking a wage increment or more job benefits. Employers are in most cases thrown on the defensive by charges that they are violating workers’ human rights. The larger society is more responsive to the notion of trade union organizing as an exercise of human rights rather than an economic strength (Savage, 2009). Human rights advocates make strong arguments for living wages, safe and healthy working conditions, descent treatment at work place and for migrant workers, non-discrimination, equal pay, workers compensation, social protections or workers, limits of working hours, health insurance, descent pensions, paid vacations, no child labor and other just and favorable conditions of work. Human right watches its own reporting on health and trade unions as well as friends’ abroad s critical for success (Adams, 2008). Human rights framework is crucial in the building of alliances with European trade unions and other allied groups. The rights are strongly attuned to fundamental rights arguments as well as acknowledgeable about the ILO standards. The rights constantly raise the alliances in European Union labor affairs (Savage, 2009). Some nations especially in Europe don’t care about the National Labor Relations Act (NLRA) or the technicalities of labor law violations under U.S. law. All they want to know is how management abuses and labor law failures get stack up under ILO standards and international human rights standards. The hope of labor advocates is that they will put pressure on European companies to respect workers rights in their U.S, operations (Harcourt & Haynes, 2011). For instance in 2004, their was an issue of Human rights critique by the teamsters union of maersk-Sealand which is the giant Denmark- based international shipping company for the violation of rights of association among truck drivers who carried cargo containers from ports to inland distribution centers (Adams, 2008). The company had fired employees who protested low pay and dangerous working conditions as well as threatened retaliations against others if they continued the organization efforts. The company’s abuses were technically legal because the drivers were defined as independent contractors, meaning that they were excluded from protections of the NLRA hence were entitled to being fired and threatened with impunity. Upon invoking the human rights standards to counter this technicality of US labor law, the union charged that the company’s actions violated international human rights and labor rights norms for workers (Savage, 2009). At the same time, it emphasized on the responsibility of multinational corporations to recognize international human rights as an important facet of international law What are the arguments against reframing labor rights as human rights? Those arguing against reframing labor rights as human rights argue that reframing labor rights as human rights is first and foremost misplaced (Savage, 2009). Their views are that it is not hyperbole to say that replacing the solidarity and unity as the anchor for justice with individual human rights will mean ending the union movement known for its true tactics, strategies, and philosophies. They continue to argue that rights discourse tends to individualize the struggle at work. The union movement is built and nourished by solidarity and the community at large and will never be an individual thing (Adams, 2008). The powerless workers can only progress their work life in labor unions and not human rights movements. Turning completely toward the human rights approach which is individualized by the labor movement is likely to signal the surrender of the fight for work place solidarity and the unique and crucial position that the movement has held over a century in a permanent struggle for justice for those at work (Savage, 2009). Furthermore, without the primacy of solidarity, the union movement is little more than a political grouping along the lines of the environmental movement or the American Association of Retired Persons (AARP). The retirees will be forced to rely on tactics like direct mail solicitation and revenues from labor banks and insurance plans (Walchuk, 2009). These concerns among others of seniors and environmental issues are extra ordinary and call for immediate attention. The labor movement which imitates them is not the labor movement that has been the force for the 21st century social change, nor is it the same movement as that which brought down the Oakland port in 2008 (Harcourt & Haynes, 2011). Most people in labor movements find the reframing of the law to be abstractive and a waste of time. Another argument against the idea is that it is not those working on the ideological underpinnings of the labor movement are to be commended. Rather, the move to raise individual rights over solidarity has a normative component (Savage, 2009). Any reframing is likely to control how workers think and fight for their rights. The process should hence not be considered as a mere pragmatic move. Those intending to reframe the rights should consider that words and ideas matter. The effect f right to work laws is an obvious example. They should consider the issue of meat and potatoes unionism in thinking of the effects of labor strategic decisions (Harcourt & Haynes, 2011). For instance in the past, the American labor movement has raged a debate over the proper role f the movement in the politics of the country. The dominant strain has been that employees should focus on what is closest to them, their wages and benefits and pay less attention to the larger political and systematic trends. Although electoral activities have increased as union’s organizational success has declined, most labor continues to stare the strategic ideology which is meat and potatoes being a seductive way of organizing (Adams, 2008). Most high density unions tend to stress on this approach. The results f the approach’s primacy is that employees’ or workers are influenced ideologically with a resulting difficulty in mounting movements to confront the source of their oppression systematically or to understand why an injury to one is an injury to all. The continuous battles among building trades and rail unions to take just two sectors and a membership often out of step with new positions of labor’s leaders on immigration are the result (Harcourt & Haynes, 2011). The elevation of human rights to the dominant position within labor ideology will gut support for the common concerns of all employees and tat will be the keystone of labor solidarity. Hence the issue of individual rights versus solidarity is a critical discussion. Its ramifications are likely to penetrate the consciousness and actions of employees internationally (Walchuk, 2009). Unions are obligations to fellow workers. A narrow selfish and rationalistic view of individualism will make it impossible to find a valid theory of obligation to everyone in the system that stresses a possessive individualism (Walchuk, 2009). The difficulties are likely to come up from the conception of the individual as an essential proprietor of his or her own personal capacities which will owe nothing to society for them. Over a long time, the labor movement has stood in opposition to this ideology. Labor unions are viewed as communities where tremendous blossoming power resides (Walchuk, 2009). The current liberal theory and cultural practice which emanated the reframing of rights has devalued the role of solidarity and weakened the crucial component of community in movements for social change. Ideologically, in contrast to an individualistic focus, for all but the most advantaged entering into a community provides moral meaning. Participating in a struggling community like a job action or strike of workers leads to practical answers to existential anxieties and economic concerns (Harcourt & Haynes, 2011). A conception of unity and solidarity as the intentional ideology of labor communities enhances a strong ethical foundation in a world in which globalized capitalism only offers a mentality of dog eat dog. Such communities offer workers an opportunity to find passion and enthusiasm necessary for the movement of the less powerful against the institutions which strive to divide resources in a manner favorable to elite (Walchuk, 2009). Demonstrate your familiarity with the discussion set Labor rights are entitlements that relate specifically to the role of being an employee. Some of these rights are individually exercised while others are exercised collectively. They include; a right to work in a job chosen freely, a right to fair working conditions, which may encompass issues as diverse as a just wage or protection of privacy; a right to be protected from arbitrary and unjustified dismissal; a right to belong to and be represented by a trade union and a right to strike among others (Adams, 2008). These rights may be based on different foundations like freedom, dignity or capability. Since the unfair advantage was published in US, the issue of framing labor struggles as human rights has been debated continuously. U.S. international responsibilities with regard to freedom of association and the right to organize and bargain collectively stem to several sources for which the most prominent is ratified covenant and conventions constitutional responsibilities stemming from the international human rights consensus (Harcourt & Haynes, 2011). The two UN human rights covenants and ILO’s convention 87 on the right to organize is one of the key document the U.S has ratified. Recently, U.S endorsed the Vienna Declaration which has made it commit itself to promote ad respect the human rights aims according to the document (Walchuk, 2009). Freedom of association is a general concept with detailed meaning in the context of work being delegated by the world community to the ILO to work out. This has led to the creation of two key committees which are the committee of experts on the application of conventions and recommendations in composed of distinguished lawyers whose main task is to review alleged infringements of ILO conventions in nations with ratified relevant conventions (Walchuk, 2009). The disagreement cropping up from the two groups is due to the degree of optimism held by the two groups. The two groups reason differently regarding the matters of working people taking matters into their own hands. It unions and working people are in a similar strait to people suffering n situations like Sudan, the human rights centered appeals to friends are the only way to succeed. Although I am tempted to understand that this is a bleak time in the global labor movement, it is not that bleak (Walchuk, 2009). If it is, all our efforts will be a waste of time. Both the individual and the society of movement must and will definitely exist. The question is, must it be primarily a union movement empowering and powerfully supporting workers (Savage, 2009). A strategy based on solidarity is a practical one and people have a craving to belong to a community. The explosive growth in social networking sites on the internet is just an example. The current commoditized society separates people but people do not want to go on their own despite the fact that they have been forced to (Harcourt & Haynes, 2011). Unions are considered to be the finest examples of caring communities which can unite people. The ideology of solidarity powerfully and practically connects to and inspires the society at large. The framing of human rights tends to put off the basic issue in the workplace. The question asked by many is, how are the efforts of labor to be divided? This has been and continues to be the concern of the fight between labor and capital since the foundation of capitalism (Walchuk, 2009). This is the reason why labor has never been a human rights movement like others. The hostility within the management directed towards the workers is not a human rights issue but rather an increased unionization which ahs the potential to strengthen the ability of workers to get more of the pastry. The Wagner Act recognizes a basic fact about capitalist economy. Employers inherently hold the upper hand in the workplace based on property ownership, entrepreneurial control and managerial authority (Walchuk, 2009). The law should side with workers to right the balance. Federal labor law and labor law authorities should hence be forthrightly pro-workers and pro-collective bargainers. However, workers cannot win this alone. Fashioning a human rights case for reform can assist in gaining support from fence sitting politicians and middle class reformers (Harcourt & Haynes, 2011). Winning even modest legislative victories in the prescribed direction will give workers confidence that the law is on their side. In return success on the political front will generate new organizing success. However, it should be noted that this is not meant to overstate the human rights and expect that the workers will change their behavior or congress to enact labor reform (Harcourt & Haynes, 2011). For instance, strategists’ f the EFCA debate concluded that human rights would be a secondary frame to yield priority to a restoration of the middle class. This is an argument that would make it easier for workers to organize and bargain to address the growing inequality. Change is an incremental. Labor and human rights advocates still confront general unawareness in the US of international human rights standard and the ILOs work in giving precise meaning to those standards (Savage, 2009). Advocates still have an enormous educational challenge of making them more widely known and respected. The fact that international human rights arguments strain for a place in American political discourse is not a reason to shy away from their use. Instead, it is a reason to bring human rights into the discourse to connect with natural sense of rights that all people know (Adams, 2008). The human rights argument interferes open more space for workers’ organizing and bargaining by framing them as human rights mission not just as a test of economic power between institutional adversaries. If you were a labor leader, what strategy would you advocate around labor rights as human rights? Justify your strategy. If I were a labor leader, I would advocate for the theoretical idea of workers’ rights as Human Rights. From a perspective of a labor union, the united food and commercial workers (1UFWC) and the National Union of Public and General Employees (NUPGE) have been at the fore front to promote labor rights as human rights agenda in U.S. Among the highlights brought up in their campaigns is the dismal record at the international labor organization’s (ILO) committee on Freedom of Association in a bid to embarrass governments into complying with international labor rights (Bakan, 1997). The National Teacher’s Federation and the U.S professional Police Association have continuously joined these unions in the call for the federal and provincial governments to respect the right to organize and bargain collectively as elaborated by the ILO. However, it has never been clear whether the unions support the theoretical idea of workers’ rights as human rights. In light of the recent national and international developments related to the human rights status of collective bargaining, labor movements should examine the suitability of the exclusive-agent certifications model used to extend collective bargaining rights in U.S. Specifically, I advocate the development of a non-statutory unionism, characterized by independent, non-union, non-standard employee organizations operating alongside established labor unions (Bakan, 1997). Unions are required to come to grips with the legitimacy of independent organizations and modern procedures that survey evidence indicates. This is because most employees prefer over certified exclusive agent representation. In any true human rights compliant system, workers should be in a position to establish a broader range of organizations and the organizations should be able to negotiate the sort of arrangements needed with the employer. Although most unions are likely to oppose the development of such no-standard workers association, the threat posed by the organization is weak when compared to the relative strength of the labor movement. Such organizations lack the statutory strength of labor unions and they are often organized at the request of employers in attempt to deter unionization. Concerning the right to strike, from a human rights perspective, it is highly doubtful that effective denial of the right to strike to employees who prefer organizing in flexible, non-statutory formats meets international human rights standards. For the sake of being sure, the right of workers to strike is of equal value to the right of workers to engage in collective bargaining (Bakan, 1997). At this point, the theoretical approach to the labor right is abandoned to the rights as human rights model through the construction f a set of exceptions justifying encroachments on the right to strike. What are the implications of New Zealand minority unionism model for workers and unions? Since 1894 to 1991, New Zealand unions were regulated by a state-sponsored, compulsory dispute resolution system, which accorded them exclusive collective bargaining rights for workers in their bargaining unit i.e. exclusive jurisdiction, similar to US. Furthermore, union membership was basically compulsory for private sector workers during this period, other than in the 1930s and early 1980s (Podder & Chatterjee, 2002). Dramatic changes then came in 1991 with the enactment of the Employment Contracts Act, which in effect removed unions’ exclusive bargaining rights, leading to a drastic drop in union density and increase in income inequality (Podder & Chatterjee, 2002). Ultimately, to strike a better balance between protecting the integrity of individual choice as well as to promote collective bargaining, the Employment Relations Act was implemented in 2000. Under this current system, multiple unions, big and small, may represent workers who are members in the same work units/occupations for bargaining and grievances. Only registered unions are allowed to legally enter into, or enforce, collective agreements, but union registration is manageable. Workers may associate with a union and be covered by its collective agreement, or choose to be employed on an individual agreement or on contract. I.e. the issue of open shop applies as a contract, agreement, or other arrangement between persons must not require a person; To become or remain a union member of a union To cease to be a member of a union, Not to become a member of a union. Workers on individual contracts, however, are entitled to the same terms and conditions of employment as their co-workers doing the same or similar work under union collective agreements, at least for the initial 30 days of employment, incase there are multiple unions involved, the provisions under the collective agreement with the most union members applies. New Zealand is similar to US in many respects; New Zealand and U.S are relatively developed, predominantly English-speaking countries. Both are ethnically diverse, ‘new world’ countries but remain influenced by Britain and its associated legal and political traditions. New Zealand and U.S. are both liberal market economies (Podder & Chatterjee, 2002) with considerable dependence on resource extraction and manufacture. Unions in both countries have a business orientation, focused on bargaining gains for members rather than broader political objectives. Union density rates, at 30% of the workforce in U.S and 21% in New Zealand, are at similar levels (Podder & Chatterjee, 2002). U.S. and New Zealand cultural values are also similar (Podder & Chatterjee, 2002). There are various reasons why unions in Zealand wanted to cooperate with each other. For example, there could be gains for the overall labor movement, the unions were involved and as for the membership. There are different areas of collaboration like collaborating over bargain and policy issues among others. Collaborating over bargains Sharing the same workplace induces unions to collaborate as a strategy to counter the employer’s power and improve the union’s bargaining leverage. Indeed, 29% of responding worker representatives in the 1980 UK Workplace Industrial Relations Survey considered joint bargaining an effective means of avoiding the problems of ‘divide and rule’ by the employer (Podder & Chatterjee, 2002) when interests converge and overlap in membership is absent or only moderate, unions may see opportunities to join forces” such as through joint bargaining and coordination in strikes. When there are only two unions representing the same worker group, cooperation between them resembles a monopoly situation and collusion is always superior to competition from the union perspective. Groups of workers can raise wages by bargaining together if the groups are labor substitutes, and by bargaining separately if they are labor complements. So, there are certainly circumstances in which inter-union cooperation is beneficial to workers. Union cooperation over bargaining can take many forms from tacit coordination like harmonizing bargaining agendas, sharing information, joint planning and mutual consultation, respect for each other’s picket lines, as well as tangible and intangible support to striking members of other unions to formal coalition in bargaining with the same demands, joint negotiation process, and common settlement (Podder & Chatterjee, 2002). Moreover, joint union negotiation is nothing new, dating at least as far back as the 1880s in the American construction industry and 1902 in the American railways (Podder & Chatterjee, 2002). The major factors that have stimulated the growth of joint or coordinated bargaining are; The expansion of corporations (and the corresponding increase in employer power), centralization of labor policies in multi-plant companies, Union weakness due to fragmentation, Growth in the complexity of labor relations issues, Standardization of organisation or industry-wide terms of employment, Inability of individual unions to push for changes independently, The need to design a bargaining structure that maximizes union bargaining power References Adams, R. J. (2008). From statutory right to human right: The evolution and current status of collective bargaining. Just Labor, 12 (Spring), 48-67. Bakan, J. (1997). Chapters 5 and 6 from Just words: Constitutional rights and social wrongs. Toronto: University of Toronto Press. Harcourt, M. & Haynes, P. (2011). Accommodating minority unionism: Does the New Zealand experience provide options for Canadian law reform? Canadian Labour and Employment Law Journal, 16(1), 51-79. Podder, N. & Chatterjee, S. (2002). Sharing the national cake in post reform New Zealand: Income inequality trends in terms of income sources, Journal of Public Economics, 86 (1), 1-27. Savage, L. (2009). Workers’ rights as human rights: Organized labor and rights discourse in Canada. Labor Studies Journal, 34(1), 8-20. Walchuk, B. (2009). The best of both worlds: A pragmatic approach to the construction of labor rights as human rights. Just labor, 14(autumn), 75-91. Read More