Globalization poses daunting challenges to workers’ conventional forms of self-organization, some stemming from the mismatch between national governmental and industrial relations institutions and the increasingly transnational organization and mobility of capital, production, services, and labour. One major challenge posed by globalization, and the focus here, is growing transnational diversity within workplaces and within the workforces of transnational enterprises. Even familiar forms of workplace diversity along lines of national origin, race, culture, and religion can be a source of friction, and can complicate the project of building solidarity and institutions of collective voice. Yet the experience of working together across lines of social division – cooperating, commiserating, and socializing over weeks, months, or years – can help to bridge social divisions, foster connectedness, and facilitate self-organization and solidarity among diverse groups of workers. Globalization further complicates the project of self-organization by adding differences of national citizenship and sometimes language, and by adding distance to the challenge of diversity: Co-workers in transnational enterprises are spread across many countries, and must communicate virtually and remotely rather than face-to-face. In the long run, interaction among workers from different countries may help to lay a foundation for new forms of transnational organizing and worker voice (although the long run might be too long given other mounting challenges to self-organization). In the meantime, whatever their instrumental payoff for workers’ organizations, transnational connectedness and solidarity are worth cultivating for their own sake.
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Although the World Trade Organization (WTO) may today be the international organization most associated with the role of overseeing the world economy, 90 years ago, that role was held by the International Labour Organization (ILO). The ILO not only showed how a functional international organization could help states cooperate on economic policy, but it also showed the utility of new principles in international law for disciplining domestic policy. Students of the WTO may not realize how important the ILO experience was in shaping the trading system. This chapter explains how international trade law in the WTO has been directly influenced by international labour law. The inter-organizational learning extends over matters of substantive law as well over a judicially-based dispute settlement system. For substantive law, the most prominent example is the trade law on special and differential treatment for developing countries. Such special treatment harks back to the ILO Constitution of 1919 which was proclaimed the Treaty of Versailles. WTO law language on full employment and social development is also traceable to ILO norms, particularly the Declaration of Philadelphia of 1944. A more remarkable borrowing occurs in WTO dispute settlement which is premised on numerous principles and procedures that were first articulated for the ILO. Ironically, these innovative procedures – such as adjudication for complaints, trade sanctions, compliance review, and the omission of the remedy of reparation – were never actually used by the ILO because that tripartite body preferred to promote higher standards by persuasive techniques.
Why have arbitral rules designed for use in international labour dispute resolution proceedings not yet materialized? International labour arbitration experts at a 2003 symposium in The Hague were optimistic about the creation of a set of arbitral rules that would include provisions with special relevance to labour disputes, like other specialized arbitration rules, addressing issues such as the participation of multiple parties or the transparency of the proceedings. As cross-border work increases, the need for such rules becomes more pressing because, in the absence of a global enforcement mechanism for labour standards beyond what is foreseen in the Constitution of the International Labour Organization (ILO), the potential for conflict among jurisdictional labour standards and the practices of individual actors also increases. The labour complaints process under the ILO Constitution has rarely been invoked; a more promising potential tool to promote labour arbitration may be the ‘social clauses’ found in multilateral and bilateral trade and investment agreements. While the investment community, with heavy clout in political circles, has succeeded in establishing a regime for international investment, the labour community, while making considerable progress in recent years, has not yet achieved the same stand-alone enforcement strength in the dispute resolution sphere for cross-border labour disputes. To the extent these treaties retain some flexibility in the subject matter encompassed by the dispute resolution mechanism, they may hold the potential to provide a forum for the resolution of grievances arising in labour contexts.
Transnational corporations’ efforts to avoid being associated with abusive labour conditions in their supply chains is a key dynamic in today’s business environment. The threat that consumers might punish bad corporate actors is a key driver of transnational private labour regulation and of various supply chain governance initiatives, and it is a powerful tool of transnational labour activist networks. The increased regulatory role of consumers that feel ethically and even politically obligated toward workers in global supply chains suggests the rise of a new form of transnational consumer-citizenship. But, there is a paradox at work here that is similar to one that has been noted in Benedict Anderson’s work on political citizenship. That is, the relationships between consumers and workers in the global supply chain are largely imagined. Transnational labour activist networks as well as companies increasingly foster and utilize this consumer imaginary by acting as intermediaries between workers and consumer-citizens. The imagined nature of these various relationships presents both opportunities and perils for evolving forms of transnational private labour governance and for the role of consumer citizens in international economic regulation.
David J. Doorey
Among the institutions that will be most affected by climate change are work and employment. The potential impacts on labour markets are a major obstacle in the progress towards the sorts of legislative responses most experts agree are necessary to save the planet. However, even though labour law is the discipline that studies the intersection between law and labour markets, its scholars have been mostly absent from climate change discussions. This should change. A legal field organized around the concept of a ‘just transition’ offers a promising portal to bring labour law into the room. Just Transitions Law could provide the organizational architecture for a rich, new legal field that brings together labour law, environmental law, and environmental justice, among other legal fields, in ways that produce interesting new insights into the challenge of governing work in a warming world. A legal model to address climate change should promote public voice, and recognize the many public and private actors already engaged in dialogue, contestation, and problem solving around climate mitigation and adaptation. It should include a theory of justice that recognizes that there will be costs and benefits to societies associated with climate change, which should be distributed in an equitable manner within and across borders. And climate change demands a regulatory solution that overcomes market failures and well-known collective action problems associated with environmental degradation. Few legal fields know more about harnessing collective voice and power in pursuit of social and economic justice than does labour law.
The emerging critical tradition in transnational labour law has fruitfully engaged with the literature on collective autonomy. Autonomy has come to be understood as relational, rather than individualistic, and is a capability to be supported and enhanced through the freedom of association and right to bargain collectively. The example of domestic workers—who have been at the centre of a flurry of recent international mobilization—demonstrates the importance of autonomy to transnational labour law. Domestic workers make social reproduction possible in market economies, yet they have faced exclusion from the corpus of labour law. As this reality is progressively reversed, more must be done than simply extending state ‘protection,’ while remaining oblivious to collective autonomy. In this respect, international instruments such as ILO Convention No. 189 and Recommendation No. 201, which account for the specificity of domestic work, offer helpful guidance. These new international standards were partly influenced by France’s national collective agreements (CCNs), and they should continue to inform the development of the effective exercise of collective autonomy by all domestic workers, including migrant domestic workers, in France.
An emergent trade in services is challenging the standard application of transnational labour laws promulgated by the International Labour Organisation (ILO) and the European Union (EU). This chapter considers who benefits from this shift in orientation. It begins by considering past linkages between trade in goods and the establishment of transnational labour standards predominantly by high-income industrialised states in the North. The second part of the chapter then goes on to examine the current scope for protection of labour standards where there is trade in services, exploring a tendency towards commodification of labour in this sphere. Two specific settings are examined: the movement of natural persons under ‘mode 4’ of the General Agreement on Trade in Services (GATS) and EU ‘posted work’ which accompanies the exercise by employers of their entitlement to free movement of services between EU Member States. The scope for renegotiation of labour norms might, at least superficially, appear to open up possibilities for lower-income States to engage politically where they were once absent. This could be a turn of events which has deliberative potential and it is certainly worth exploring more fully how such renegotiation around service provision could be beneficial to developing and emerging economies in the South. However, the development benefits may be illusory. The main drivers of change appear to be higher-income States (for whom the services industry constitutes an estimated 70–80 per cent of output and employment) and multinational corporations based in the North (eager to expand service markets and utilise cheaper labour). The impoverished workers and low-income States each remain largely excluded from the benefits of trading in services.
P. Martin Dumas
The set of rules contained in the increasing number of independent codes of conduct used as instruments of corporate governance that are enforced through demand-side, market-based mechanisms can be described as consumocratic law. In contrast with ex ante expressions of citizen preferences for particular socio-economic forms of regulation through the electoral sphere, here consumocrats (i.e. consumers) play an ex post role, and choose to purchase goods according to non-traditional criteria embodied in labelled codes. The substance of these is not confined to ‘process information’ as described by the WTO, but may also pertain to eco-systems, animals, military technologies, wage inequities, and labour conditions—in particular, those of children. One of the most sophisticated regimes of consumocratic labour law was developed by Rugmark in 1994 in Uttar Pradesh, India. Carpets bearing the Rugmark label are certified as child-labour free, and Rugmark rehabilitates former child weavers uncovered by its inspectors and manages free schools in Uttar Pradesh. Thanks to Rugmark and its consumocratic regime, the illegality of child labour in the carpet belt has been progressively recognised and thousands of deprived (working and non-working) children have had free access to a primary education of relatively good quality, many of them having subsequently engaged in higher studies. The Rugmark code, however, is not without potential concerns or limitations, due to its originality, and, when used to strictly enforce state-defined prohibitions, in the absence of a pragmatic approach, may even lead to unintended consequences, including contributing to driving child labour further underground, in some instances.
Zoe Adams and Simon Deakin
Beginning in the 1980s, structural adjustment programmes (SAPs) were widely used in the developing world as instruments of economic policy. Imposed by the international financial institutions—primarily the International Monetary Fund (IMF)—as a condition of financial support for countries facing high levels of public debt, SAPs quickly became the basis on which to apply policies of deregulation and privatization. Since the onset of the financial crisis of 2008, policies similar to SAPs are now also being applied in the developed world, above all in Europe in response to the risk of sovereign default in several European Union (EU) member states. Economic adjustment programmes (EAPs) have led to wage cuts, decentralization of collective bargaining, and greater selectivity in employment protection and social security. The rigidity of the core EU institutions and practices—notably the single monetary policy adopted by the economic and monetary union (EMU) in the Maastricht Treaty—made the 2008 crisis particularly difficult for the EU to weather. Until this systemic flaw is recognized and addressed, austerity measures are likely to continue to be seen as the appropriate response to a crisis framed in terms of fiscal irresponsibility.
Pamhidzai H. Bamu and Rutendo Mudarikwa
The Southern African Development Community region (SADC) has seen a trend toward applying Alternative Dispute Settlement (ADR) systems to labour disputes. This chapter first looks at the social and human rights dimensions of SADC, highlighting its history, its character and some of the controversies surrounding the notion of SADC supra-nationalism. The second section describes the actors in the harmonization process, underlying causes and the driving forces, highlighting the limited role played by SADC in driving the adoption and harmonization of ADR systems in the region. Instead, the ILO, South Africa, and local initiatives have been the key drivers of labour law reform in the context of its activities to improve labour law and promote decent work. This section also explains the form and content of the labour dispute settlement within selected SADC states, specifically the status, jurisdiction, timelines, procedures, enforceability, and costs of the respective systems. The fourth section provides an evaluation of the performance of the labour ADR systems in SADC. The fifth section considers the strengths and weaknesses of regionalism in SADC. On the whole, the adoption of labour ADR systems in SADC States represents an improvement over the resolution of labour disputes through litigation. But the assumption that access to resources is the only determinant of the success or failure of ADR systems appears to be overly simplistic, and the legal provisions governing ADR and the imperatives to provide speedy dispute resolution also risk resulting in unintended consequences.